In the Matter of the Welfare of the Children of: A. D. B. f/k/a A. D. H. (Mother) and D. M. D. (Father), Parents.

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0978

In the Matter of the Welfare of the Children of: A. D. B. f/k/a A. D. H. (Mother) and
D. M. D. (Father), Parents.

Filed February 14, 2022
Reversed and remanded
Bryan, Judge

Stearns County District Court
File No. 73-JV-21-441

Jennifer L. Thompson, JLT Law & Mediation, Litchfield, Minnesota (for appellant father)

Janelle P. Kendall, Stearns County Attorney , Patrick M. Moen, Assi stant Stearns County
Attorney, St. Cloud, Minnesota (for respondent county)

Kimberly Stommes, Stommes Law Office, LL C, St. Cloud, Minneso ta (for respondent
mother)

Stephanie Schwegel, Sauk Rapids, Minnesota (guardian ad litem)

Considered and decided by Jesson, Presiding Judge; Bryan, Judge; and John Smith,
Judge.
*
SYLLABUS
A district court abuses its discretion by making a posttrial determination that efforts
to reunite the parent and chil d would be futile when: (1) the parent was incarcerated but
scheduled for release in the near future; (2) the agency failed to develop a case plan for the
parent, failed to engage with the parent prior to termination, and failed to otherwise identify
any potential services that might be suitable and available to the parent; and (3) the agency

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
did not request a prima facie determination of futility based on the facts contained in its
petition.
OPINION
BRYAN, Judge
Appellant appeals from a termination of his parental rights, challenging the district
court’s after-the-fact determination that futu re reunification efforts would be futile. We
conclude that, given the uncont ested facts of this case, th e district court abused its
discretion when it made a determ ination of futility after trial. 1 Accordingly, we reverse
and remand.
FACTS
Appellant, D.D. (father), and respondent A.B. (mother) are the parents of one child,
T.M.D., born in May 2015 (the child). In March 2020, respondent Stearns County Human
Services (the agency) began child protection proceedings against mother after she gave
birth to the child’s half-sibling, who tested positive for three controlled substances and for
alcohol. The child and three of his half-siblings were placed into emergency relative foster
care, where they remained throughout the proc eedings. Father was a participant in those
child protection proceedings but was never made a party to those proceedings and no case
plan was developed for him.

1 Appellant alternatively argues that the reco rd does not contain clear and convincing
evidence to support a statutory basis for te rmination. Given our decision regarding
reasonable efforts, we need not address this alternative argument.
3
In January 2021, the agency began termination proceedings against both mother and
father. The termination petition does not distinguish between father and mother, requesting
termination of “[a]ll rights of the parents to the children” on each of the following three
statutory bases: (1) palpable unfitness, pursu ant to Minnesota Statut es section 260C.301,
subdivision 1(b)(4) (2020); (2 ) failure to correct the cond itions leading to placement,
pursuant to section 260C.301, subdivision 1(b)(5) (2020); and (3) neglect, pursuant to
section 260C.301, subdivision 1(b)(8) (2020). The affidav it accompanying the petition
focuses overwhelmingly on mother’s conduct. The affidavit does include some allegations
regarding father, such as a description of his criminal history and a statement that father is
currently incarcerated for a felony stalking conv iction involving mother,2 that he will be
released on October 24, 2022, and that an ex parte protective order prohibits father from
contacting mother and the child until its expiration in Nove mber 2021. The affidavit
contains no statements about any efforts to reunite the child with father and instead
describes efforts and services related to the ch ild and to mother. This description of the
agency’s efforts to re unite mother and the child occupi es more than 10 pages and 90
paragraphs of the affidavit accompanying the agency’s petition. The affidavit closes with
a conclusory statement regarding the futility of provided services to the parents, but it does
not distinguish between mother and father and does not requ est that the district court
determine whether the facts in the affidavit establish a prima facie case of futility.

2 Father received a probationary sentence, but he subsequent ly violated the terms of
probation when he contacted mother in Novemb er 2020. The affidavit states that father
was incarcerated but does not contain statements explaining that father was incarcerated as
a result of the probation violation.
4
The case proceeded to trial in June 2021. At no point prior to trial did the agency
request that the district court issue an order relieving the agency of its statutory obligation
to develop a case plan for father or its stat utory obligation to make reasonable efforts to
reunite father and the child. In addition, prior to trial, the district court did not make any
determination regarding whether the termination petition or the affidavit accompanying it
stated a prima facie case that reunification efforts would be futile.
As it relates to father, the ev idence presented at trial in dicates that the agency did
not contact father, did not engage with him, did not provide any services to him, did not
conduct any type of assessments, and did not develop a case plan for him. One social
worker testified to “[n]ot really” working with father over the course of the case. The other
social worker testified that she had “not been able to make contact with him” prior to trial.
This social worker explained that she called the prison one week be fore trial but had not
yet made any direct contact w ith father’s case manager. The guardian ad litem testified
that she had not had any contact with father. There is no evidence regarding what services
might be available to father while incarcerated.
At the conclusion of the trial, the agen cy made written closing arguments and
proposed findings of fact and conclusions of law. The overwhelming majority of
arguments and proposed findings and conclusions relate to mother, not father. Importantly,
the agency’s posttrial submissions contain no argument that efforts to reunite the father and
the child would have been futile . Nor do they incl ude any proposed find ings of fact or
conclusions of law regarding the futility of reunification efforts. Instead, the agency argued
5
that clear and convincing evid ence presented at trial estab lished that it made actual
reunification efforts, and that those efforts were reasonable.
After trial, the district court terminated the parental rights of both mother and father.
Regarding mother, the district court determ ined that the agency presented clear and
convincing evidence that reasonable efforts failed to correct the conditions leading to the
child’s placement out of the home pursuant to section 260C.301, su bdivision 1(b)(5).
Regarding father, the district court concl uded that the agency presented clear and
convincing evidence that the child was neglected and in foster care pursuant to section
260C.301, subdivision 1(b)(8).
The district court made extensive findings regarding mother but only devoted a few
paragraphs to addressing father. Among other findings, the district court determined that
father “is interested in parenting the child when he is released [from prison]” and that father
“believes that he could be a loving, supportive father to the child.” The district court also
analyzed the seven statutory factors regarding neglect, including the factors relating to “the
use of rehabilitative services offered to the parent,” “the appropriateness and adequacy of
services provided or o ffered to the parent to facilitate a reunion,” the likelihood that
additional services could enable “a return of the child to the parent within an ascertainable
period of time,” whether these additional servic es “have been offered to the parent, or if
services were not offered, the reasons they were not offered,” and “the nature of the efforts
made by [the agency] . . . and whether th e efforts were reasonable.” Minn. Stat.
§ 260C.163, subds. 9(2), (5), (6), (7) (2020). In its analysis of these factors, the district
court concluded that the agency made no reunification efforts and provided no services to
6
father but determined that the agency’s failure to do so was reasonable, given the existence
of a protective order3 and due to father’s incarceration:
The lack of services provid ed to [father] to facilitate
reunification were appropriate gi ven that [father] is currently
incarcerated, where services are limited, and is ordered not to
have contact with the child for the child’s safety. [Father] is
incarcerated until 2024 and while th at cannot be the basis for
termination, it does make the services offered to [father]
reasonable.

The district court also concluded that because of father’s “history of violating the protective
orders protecting the child and the child’s mo ther . . . additional services would not be
likely to bring about lasting pa rental adjustment enabling th e child’s return.” Father
appeals.
ISSUE
Did the district court abuse its discretion when it made a posttrial determination that
making reasonable efforts to reunite the father and the child would be futile?

ANALYSIS
Father challenges the district court’s posttrial determination of futility, arguing that
the district court abused its discretion.
4 We agree that the decision is against logic and

3 As noted above, the ex parte protective order was set to expire in November 2021,
approximately five months after the trial occurred.
4 Father also challenges the underlying findings of fact, which we review for clear error.
In re Welfare of Children of J.R.B., 805 N.W.2d 895, 900 (Minn. App. 2011), rev. denied
(Minn. Jan. 6, 2012). The district court ba sed its futility determination on the following
four factual findings: (1) father “is incarcerat ed until 2024;” (2) father “is ordered not to
have contact with the child for the child’s safety;” (3) father is “currently incarcerated for
violation of the protective order protecting th e child and [mother];” and (4) father has a
“history of violating the protective orders protecting the child and the child’s mother.” In
their arguments to this court, the parties agree that the district court erred when it
incorrectly stated father’s anticipated release date and wh en it described father’s criminal
7
amounts to an abuse of discretion for the following three reasons: (1) father had an
ascertainable date of release that was to occu r in the near future; (2 ) the agency failed to
identify potential services that might be suitable and available to father while incarcerated;
and (3) the futility determination was not requ ested by the agency, was not limited to the
facts in the agency’s termination petition, and occurred after the agency had decided on its
own to cease reunification efforts.
Generally, to terminate a person’s parental rights, the district court must determine
that clear and convincing evidence establishes each of the following three elements: (1) the
existence of at least one statutory basis for termination; (2) termination is in the child’s best
interests; and (3) the social services agency made reasonable efforts to reunite the family.
In re Welfare of Children of T.A.A. , 702 N.W.2d 703, 708 (Minn. 2005); see also, In re
Welfare of Child of A.M.C., 920 N.W.2d 648, 655 (Minn. App. 2018) (stating that, in the
context of children who are not Indigenous Americans, “the petitioner must show clear and
convincing evidence that reasonable efforts were made to reunite the parent with the
child.”). “Reasonable efforts are made upon the exercise of due diligence by the
responsible social services ag ency to use culturally appropria te and available services to
meet the needs of the child an d the child’s family.” Minn. Stat. § 260.012(f) (2020). A

history and current offense. The parties also agree that the ex pa rte order for protection
was due to expire five months from the time of the termination trial. In this way, each of
the district court’s underlying factual determ inations are erroneous or incomplete. The
parties’ agreement ends there, and they dispute whether thes e factual errors are harmless
or compel reversal. We conclude that thes e errors are not harmless given the remaining
evidence in the record. The undisputed evidence that the agency failed to contact father or
his case manager and failed to consider what programs might have been available to father
while incarcerated does not support the findings necessary for a determination of futility.
8
determination of reasonable efforts also requi res the district court to consider whether
services to the child and the family were relevant to the safety and protection of the child,
available and accessible, consistent and timel y, and realistic under the circumstances. In
re Welfare of S.Z., 547 N.W.2d 886, 891 (Minn. 1996).
Reasonable efforts are required absent a court order concluding that a petition, filed
by the agency, states a prima facie case of futility: “Reasonable efforts to prevent placement
and for rehabilitation and reunification are always required except upon a determination by
the court that a petition has been filed stating a prima facie case that,” in relevant part, “the
provision of services or further services for the purpose of reunification is futile and
therefore unreasonable under the circumstances.” Minn. Stat. § 260.012(a), (a)(7) (2020).
To be clear, just as the agency must establish the reasonableness of its efforts by clear and
convincing evidence, it also must establish the unreasonableness or futility of reunification
efforts by clear and convincing evidence.
In addition to the statutory requirement that the social serv ices agency make
reasonable efforts, the agency is required by statute to develop a case plan with each parent.
Minn. Stat. § 260C.212, subd. 1 (2020). We have tied these two statutory requirements
together, concluding that an agency fails to make reasonable efforts when it fails to prepare
a case plan with an incarcerated parent or otherwise identify any potentially suitable
programming available to an incarcerated parent. In re Welfare of Children of A.R.B., 906
N.W.2d 894, 900 (Minn. App. 2018) (“Becaus e the county did not provide D.T.R. with a
written case plan . . . or even attempt to determine whether any prison programming might
9
have been available to D.T.R. and suitable to include in a case plan . . ., the county failed
to make reasonable efforts.”).
We review the determination that reunification efforts would be futile for an abuse
of discretion. See A.M.C., 902 N.W.2d at 660 (“When statutes explicitly entrust the district
court to determine what is appropriate, we review for an abuse of discretion”); In re Welfare
of Child of D.L.D., 865 N.W.2d 315, 322 (Minn. App. 2015), rev. denied (Minn. July 20,
2015) (concluding that appellate courts review a district court’s decision that the social
services agency made reasonable efforts for an abuse of discretion). In addition, we reverse
only where there is no harmless error. See In re Welfare of D.J.N., 568 N.W.2d 170, 176
(Minn. App. 1997) (refusing to reverse termination of parental rights for harmless error).
As a threshold matter, we construe the dist rict court’s decision as a determination
that making reunification effo rts would be futile. As noted above, the district court
addressed the statutory neglect factors, incl uding the second, fifth, sixth, and seventh
factors, which relate to the services and effort s that an agency is re quired to provide to a
parent. As part of its analysis of these factors, the district court found that the agency did
not provide any services or make reunification efforts and determined that its failure to do
so was reasonable.
Father contends that the district court de termined that the ag ency made sufficient
reunification efforts. Father then challenges this decision, arguing that the agency made
no efforts to engage with him and that a failu re to provide efforts can never satisfy the
agency’s statutory obligation to provide reas onable efforts. In response, the agency
appears to characterize the district court’s an alysis of the statutory neglect factors as a
10
determination of futility, although the agency did not make a futility argument at trial and
did not request a pretrial prima facie determination of futility. We observe that the statute
contemplates a court relieving the agency of its obligation to make reasonable efforts when
“the provision of services or further servic es for the purpose of reunification is futile and
therefore unreasonable under the circumstances.” Minn. Stat. § 260.012(a)(7) (emphasis
added). Given this statutory language, we agree with the agency and construe the district
court’s determination not as me rely analyzing the statutory ne glect factors, but also as a
determination of the futility of reunification efforts.
With this framework in mi nd, we turn to father’s primary argument regarding
reasonable efforts: that the district court a bused its discretion when it determined that
father’s incarceration rendered re unification services effectivel y futile. In response, the
agency contends that the failure to provide services in this case is justified based on two
prior opinions from this court, both of which affirmed termination of parental rights in the
absence of a case plan and reunification efforts: In re Children of Vasquez , 658 N.W.2d
249, 253 (Minn. App. 2003), and In re Welfare of Udstuen , 349 N.W.2d 300, 303-04
(Minn. App. 1984). We agree with father and do not find e ither case cited by the agency
to be applicable.
First, father argues that the district cour t abused its discretion because the district
court based its futility determination on a term of imprisonment that is nearly double the
remaining length of father’s act ual period of incarceration. We agree. Because his
anticipated release date was “an ascertaina ble period of time,” Minn. Stat. § 260C.163,
11
subd. 9(6), and because it is to occur in the relatively near future, it is an abuse of discretion
to conclude that the agency established futility by clear and convincing evidence.
Second, father argues that the district court’s determination is erroneous in light of
the agency’s failure to develop a case plan, contact father or his case manager, and identify
any potential services that might be suitable and available to the parent. The purpose of a
case plan is to give parents written guidelin es for correcting the conditions resulting in
child protection proceedings. E.g., In re Welfare of Copus, 356 N.W.2d 363, 366 (Minn.
App. 1984). This is true even when a pare nt is incarcerated, a nd being imprisoned does
not automatically relieve the agency of its obligation to engage with a parent and to develop
a case plan:
We recognize that D.T.R. was incarcerated and that this
circumstance might change what qualifies as “reasonable”
under the county’s duty to make “reasonable efforts” to reunite
father and child. Bu t the statute nowhere excuses the county
of making reasonable efforts in this situation, and it is well
established that “[i]ncarcerati on alone does not necessarily
preclude a person from acting in a parental role.” In re Welfare
of Children of A.I. , 779 N.W.2d 886, 892 (Minn. App. 2010)
(citing cases). The county identifie s nothing in this situation
that prevented it from creating a case plan for D.T.R. and
attempting to coordinate with prison officials about the
availability of potentially su itable programming during
D.T.R.’s incarceration period. . . . And at no point did the
county ask the district court to dispense with the need for
reasonable efforts because of futility.

A.R.B., 906 N.W.2d at 899 (rejecting the soci al service agency’s argument that
incarceration rendered reunification efforts futile and reversing the termination of parental
rights because of the agency’s failure to develop a case plan).
12
Pursuant to A.R.B., the social service agency is required to identify potentially
suitable programming during incarceration and to at least “attempt to determine whether
any prison programming might ha ve been available . . . and su itable to include in a case
plan to correct the conditions that led to . . . out-of-home placement.” Id. at 900. The
record in this case shows that the agency made no effort to identify potentially suitable
programming. In fact, the agen cy did not even contact father’s case manager. Given the
holding in A.R.B., it is an abuse of discretion to dete rmine that services would be futile
without first identifying the se rvices and programs available at the parent’s correctional
facility and determining the suitability of those services and programs.
Third, father challenges the timing and process surrounding the district court’s
futility determination. Typically, as direct ed by the pertinent statute, the agency
affirmatively requests that the district cour t determine whether “a petition has been filed
stating a prima facie case that . . . the provi sion of services or further services for the
purpose of reunification is futile.” Minn. Stat. § 260.012(a), (a)(7). The district court has
the authority to allow the agency to cease its ongoing or interim efforts: “Under Minn. Stat.
§ 260.012(a) (2006), reasonable efforts ‘for rehabilitation and reunification are always
required’ until the district court determines that the county has filed a petition stating a
prima facie case . . . justifying cessation of such efforts.” In re Welfare of Children of T.R.,
750 N.W.2d 656, 664 (Mi nn. 2008). This futility determina tion should occur prior to an
agency’s cessation of efforts and prior to th e termination trial, because the alternative
would allow a social services agency to decide for itsel f that ongoing efforts would be
futile, something the supreme court has rejected:
13
[T]he county may not, as it did here, decide for itself that
further efforts are futile. Rath er, if the county decides that
further efforts to rehabilitate a parent and reunify parent and
child would be futile, its remedy is to seek, as outlined in Minn.
Stat. § 260.012(f) (2006), a court determination that reasonable
efforts at reunification are no lo nger required. Until then, the
statute requires the county to co ntinue to provide services to
the parent as outlined in the case plan or out-of-home
placement plan.

Id. at 665-6. The statute governing the district court’s futility determination, therefore,
contemplates an affirmative request of the agency (as opposed to the sua sponte actions of
a district court), requires a prima facie de termination based on facts contained in the
agency’s petition (as opposed to a determination based on cl ear and convincing evidence
offered at a trial), and relates to cessation of an agency’s interim or ongoing efforts before
a termination trial (as opposed to justifying the agency’s overall efforts after the fact).
5
In this case, father is correct that the agency did not follow this procedure. The
agency never requested a prima facie determ ination based on the petition. Instead, the
agency decided for itself, without a court determination, not to make reunification efforts.
By making the posttrial determ ination of futility, the district court justified the agency’s
inaction and its unilateral decision to cease ongoing reunification efforts. The district court,
however, did not confine itself to the agency’s petition or accompanying affidavit. In

5 We observe that the final paragraph of section 260.012(h) also references futility: “In the
alternative, the court may determ ine that provision of services . . . is futile and therefore
unreasonable under the circumstances or that reasonable efforts are not required as
provided in paragraph (a).” The agency make s no argument regarding this portion of the
statute or any argument that the requirements of section 260.012(a)(1)-(7) and (f)(4) do not
apply. Absent any such argument, we declin e to address whether the final paragraph of
section 260.012(h) is in conflict with section 260.012(a)(1)-(7), section 260.012(f), or with
the holding in T.R., 750 N.W.2d at 664.
14
addition, it is also not clear what standard of proof the district court applied. Under a clear-
and-convincing standard of proof, it would be an abuse of discretion to conclude that the
agency established the futility of services and reunificati on efforts when the agency
presented no evidence regardin g any assessments undertaken to determine what services
father might need and no evidence regarding whether any of these services are available at
the correctional facility where father is imprisoned.
Finally, to the extent that the two cases from this court cited by the agency survive
the Minnesota Supreme Court’s subsequent decision in T.R., we conclude that neither case
applies here. In Vasquez, this court excused the agency’s failure to develop a case plan
and to make reunification efforts because the district court relied on the nature of the
criminal conviction (Vasquez murdered the children’s mother), the length of his prison
sentence which made reunification impossible (V asquez was not eligible for release until
2023, when the children would be betw een 27 and 33 years ol d), inappropriate
communications that Vasquez ha d with his oldest child in vi olation of a court order, and
additional behavior that Vasque z exhibited while incarcerated. 658 N.W.2d at 251, 253.
None of the reasons for excusing the agency’s failure to develop a case plan and to make
reunification efforts in Vasquez is present in the instant ca se. In addition, unlike the
circumstance of the instan t case, the agency in Vasquez affirmatively requested a futility
finding before the district court.
Udstuen is similarly inapplicable . In that case, the pare nt had been charged with
attempted murder of the child, was then convicted of first-degree assault for physically
abusing the child, and “as a result of the abusive treatment” by the parent, the child suffered
15
life-long injuries, including cerebral palsy, br ain damage, seizures, trauma, and “night-
screams.” Udstuen, 349 N.W.2d at 302. The child was “unable to walk, crawl, hold things
in his hands, or feed himself” and needed to use “[a]n orthokinetic wheelchair equipped
with a halo to hold his head upright.” Id. The abusive actions of the parent and the resulting
special needs of the child are unique circumstan ces justifying the district court’s decision
in that case. See, e.g., Minn. Stat. § 260.012(g) (2020) (noting that reunification efforts are
not required if the parent has been convicted of homicide, attempted homicide, or assault
against the child, among other listed offenses). Those circumstances are not present here.
DECISION
For the foregoing reasons, the district court abused its discretion in this case when
it made a posttrial determination that efforts to reunite the father and child would be futile.
We reverse the termination of father’s pare ntal rights and remand for further proceedings
consistent with this opinion.
Reversed and remanded.