In the Matter of the Welfare of the Children of: D. O. and L. P., Parents.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0865

In the Matter of the Welfare of the Children of: D. O. and L. P., Parents.

Filed December 12, 2022
Affirmed
Bryan, Judge

Pipestone County District Court
File No. 59-JV-22-6

Amie Ascheman, Runche y, Louwagie & Wellman, PLLP, Marshall, Minnesota (for
appellant D.O.)

Damain D. Sandy, Pipestone County Attorney, Pipestone, Minnesota (for respondent
Southwest Health & Human Services)

Sherri Smith, Luverne, Minnesota (guardian ad litem)

Considered and decided by Bryan, Presiding Judge; Segal, Chief Judge; and Cleary,
Judge.
*
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from a termination of appellant’s parental rights, appellant argues that
the district court abused its discretion when it determined that he was palpably unfit to care
for the children, when it ordered him to comply with an inadequate case plan, and when it

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
took judicial notice of reports filed in other child protection cases regarding appellant and
the children. We affirm.
FACTS
Appellant D.O. (father) and L.P. (mother) have three children together: Child 1,
born in 2016; Child 2, born in 2017; and Child 3, born in 2021. 1 Mother and father were
not married when Child 1 and Child 2 (the children) were born, but they signed recognitions
of parentage concerning the children, and mother was the sole legal and physical custodian
of the children. I n 2019, respondent Southwest Health & Human Services ( the county)
commenced a case in court cas e number 59- JV-19-17 alleging that the children were in
need of protection or services (CHIPS). The children were ultimately returned to mother’s
care and the c ase was closed. However, in January 2022, the county again removed the
children from mother’s home after mother was arrested for a controlled substance offense
and driving while impaired with Child 3 in the vehicle. After mother’s arrest, the county
filed a second CHIPS petition in court case number 59- JV-22-5, as well as a petition to
terminate mother ’s and father’s parental rights in court case number 59- JV-22-6. The
district court adjudicated the children in need of protection or services, and the termination
matter proceeded to a pretrial hearing and trial.
At the pretrial hearing on April 5, 2022, the county stated its intent to request th at
the district court take judicial notice of the two CHIPS case files in the termination trial.
On the first day of trial, on April 18, 2022, the county made an oral motion for the district

1 The termination petition relates to father’s parental rights over Child 1 and Child 2 only.
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court to take judicial notice of court case numbers 59-JV-19-17 and 59-JV-22-5, including
the reports submitted by the guardian ad litem (GAL) and the social worker in those cases.
Father opposed the motion in part, requesting that the district court only take judicial notice
of the findings of fact and orders from the two CHIPS cases, but not any previous GAL or
social worker reports. The district court granted the county’s motion and admitted the GAL
and social worker reports to “expedite litigation, elimi nate costs, and delay by noticing
readily verifiable facts without having to prove the facts in the current proceedings.”
At the ensuing trial, a social worker testified on behalf of the county. She was
assigned as the social worker on the current CHIPS cases as well as on the termination
matter and knew the family’s child protection history. She explained that the children were
first removed from mother’s home in 2019 because of mother ’s and father’s use of
methamphetamine. According to the social worker, d uring the pendency of that initial
CHIPS case, th e county offered the parents support and services and the children were
eventually returned to mother. After mother’s arrest i n January 2022, the county again
removed the children and again offered both mother and father services. The social worker
testified that as of the date of the trial, both mother and father were in general compliance
with their case plans, receiving mental health services, and maintaining sobriety. However,
the county requested termination because mother and father have not shown an ability to
maintain their sobriety, father has never been the custodial parent , and he had not shown
an ability to parent the children on his own.
On the second day of trial, on May 19, 2022, mother voluntarily consented to the
adoption of the children by a nonrelative third party . Mother also provided testimony
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regarding the termination of father’s parental rights. Mother believed father had a “ very
good bond” with the children and that the chi ldren love him. She testified that she would
prefer the children to go to a family member, but she did not believe it best for the children
to be placed with father at this time because the third party could provide the children with
a life that father could not. Mother testified that she believed father could be a good parent
but was concerned about his lack of support.
The GAL also testified , declaring that based on her “education, training, history,
and all information,” father “lacks the ability to pa rent [the children] on a consistent and
daily basis on his own without significant assistance.” She noted that father ha d a history
of drug abuse and relapses, lacked consistency in his participation with Greater Minnesota
Family Services, and was currently attending only one chemical dependency treatment
session per week instead of the recommended two sessions. She testified that she did not
believe it to be in the c hildren’s best interests to transfer custody to father. She testified
that from 2019 to the time of the trial, father attended outpatient treatment for chemical
dependency and saw a mental health therapist , but he had not made sufficient
improvements or done what was necessary to have custody of the children.
Family members—i ncluding the children’s maternal grandmother , a paternal aunt,
and a paternal uncle —t estified on behalf of father. The children’s grandmother testified
that father’s parent ing abilities have significantly improved since he started attending
parenting classes and that she believed father could care for the children on his own. The
children’s aunt and uncle testified that father has a good support system and is a good
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parent to the children. Uncle testified that he believed father could parent the children but
expressed concerns that father would be unable to do so without help.
Father also testified on his own behalf. Father is currently living with his sister but
testified that he planned to move into the children’s maternal grandmother’s home if he
gained custody of the children. H e also planned to get his driver’s license reinstated and
obtain a vehicle. He testified that he had been pursuing parenting classes with Greater
Minnesota Family Services to work on assessing the children’s feelings but stopped doing
so and, around that time, started using drugs again. Father testified that he has addiction
issues and detailed his history of drug abuse. He first used methamphetamine at age 19,
used other drugs such as heroin in his 20s, and his most recent methamphetamine relapse
occurred in January 2022 because he was tired from helping with the children and working.
He also testified that in th e past, he had tried unsuccessfully to complete treatment but did
not take those programs or his addiction seriously enough.
Following the hearing, the district court issued an order terminating father’s parental
rights. The district court found that although father started helping mother care for the
children in the past two years and has abstained from methamphetamine since January
2022, father cannot parent the children on his own and has been unable to maintain long-
term sobriety. Specifically, the district court emphasized that at the time of the trial, father
had been sober for less than three months , was only attending one of two chemical
dependency sessions per week, and failed to show a consistent willingness to address his
chemical abuse. The district court also found that the children had been exposed to drug
use in the home and noted that the January 2022 hair follicle tests for the children were
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positive for methamphetamine. The district court then explicitly found that father’s
substance abuse “has had a negative impact on his ability to parent the children” and
identified father’s ongoing inability to remain sober as a barrier to his ability to parent:
“Father minimizes his use of chemicals a nd lacks insight into the effect the exposure to
drug use has had on the children.”
Apart from his substance abuse, the district court emphasized the brevity and
uncertainty of father’s mental health progress. Although the social worker testified that
father’s parenting assessment from 2019 recommended that he obtain mental health
treatment and attend a domestic violence program, father started a mental health treatment
program for his diagnosed antisocial personality disorder and generalized anxiety only one
month before the trial and had yet to complete any domestic abuse program.
The district court also made several findings regarding father’s inability to parent
on his own, noting testimony from the social worker, the GAL, the children’s uncle, and
mother. Each expressed concerns about father’s ability to parent the children on his own
without help and support. Although father has never been the custodial parent and had
limited parenting time with the children, the district court found that “[f]ather has not
cooperated with services through [Greater Minnesota Family Services] to increase his
parenting skills so that a transition to unsupervised visits could occur .” In addition, the
district court found that father did not demonstrate suitable residenti al or transportation
stability because he has moved four times in the last three years and does not have a driver’s
license. More substantively, the district court acknowledged that the children have been
diagnosed with post traumatic stress disorder and have experienced trauma. The district
7
court found that father lacked insight into the children’s mental health needs: “Father
recognizes the children have experienced trauma but attributes their trauma to being
removed from the home by human services. Father lacks insight in his role in placing the
children in situations that are traumatic for the children, such as exposure to drug use and
domestic violence.”
The district court also made specific findings regarding the following five goals that
it summarized from father’s case plan: (1) “[f]ather shall address his chemical
dependency”; (2) “[f]ather will provide a safe and secure home for his children and meet
the children’s needs”; (3) “[f]ather will address his mental health”; (4) “[f]ather shall
cooperate with [the county] and GAL” ; and (5) “[f]ather shall maintain contact with his
children.” As noted above, the district court found that although father had not tested
positive for drugs since January 2022, he was not attending all recommended che mical
dependency treatment sessions. The district court also found that father was unable to
provide adequate care for the children and meet the children’s needs without help from
others. Regarding the remaining three goals, the district court found that father was
attending therapy, maintaining contact with the county and the GAL, and attending
supervised visits with the children. The district court found that reasonable efforts were
made by the county, but the efforts were unsuccessful. The district c ourt also found that
the county established a basis for termination under Minnesota Statutes section 260C.301,
subdivisions 1(b)(2), (4), and (5) (2022). Father appeals.
8
DECISION
Father challenges the termination of his parental rights, raising the following three
arguments: (1) the district court abused its discretion when it determined that a statutory
basis for termination existed; (2) the county did not develop an adequate case plan for him;
and (3) the district court abused its discretion when it took judicial notice of the GAL and
social worker reports from the two CHIPS cases. We address each argument in turn .
I. Statutory Basis: Palpable Unfitness
As a threshold matter, we acknowledge that although the district court determined
that the county established three separate statutory bases, we may “affirm the district
court’s termination of parental rights when at least one statutory ground for termination is
supported by clear and convincing evidence.” In re Welfare of Child. of S.E.P., 744
N.W.2d 381, 385 (Minn. 2008). Because we conclude that the district court did not abuse
its discretion when it determined that father is palpably unfit to be a party to the parent -
child relationship, we need not address the other two statutory grounds for termi nation.
Under Minnesota Statutes section 260C.301, subdivision 1(b)(4), a district court
may terminate parental rights if clear and convincing evidence shows that a parent is
palpably unfit because of “ specific conditions directly relating to the parent and child
relationship . . . that render[] the parent unable, for the reasonably foreseeable future, to
care appropriately for the ongoing physical, mental, or emotional needs of the child.” The
county “must prove a consistent pattern of specific c onduct or specific conditions existing
at the time of the hearing that , it appears, will continue for a prolonged, indefinite period
9
and that are permanently detrimental to the welfare of the child.” In re Welfare of Child.
of T.R., 750 N.W.2d 656, 661 (M inn. 2008).
Conditions such as substance abuse and mental illness can support a determination
of palpable unfitness when those conditions have a “causal connection” to the parent’s
continued inability to care for the child. Id. at 662; see also In re Welfare of Child of J.H.,
968 N.W.2d 593, 603 (Minn. App. 2021) (affirming termination of parental rights despite
recent progress in chemical dependency treatment program and present sobriety because
of the parent’s history of inconsistent sobriety) , rev. denied (Minn. Dec. 6, 2021) ; In re
Welfare of J.L.L., 396 N.W.2d 647, 652 (Minn. App. 1986) ( affirming termination of
parent’s rights despite parent’s improvement because “minimal improvement is not enough
to overcome the conclusion tha t appellant’s past problems make his future performance as
a parent uncertain”). We review the district court’s factual findings for clear error, In re
Welfare of Child of J.K.T., 814 N.W.2d 76, 87 (Minn. App. 2012) , and we review the
district court’s ultimate determination of palpable unfitness for an abuse of discretion, In
re Welfare of Child of W.L.P., 678 N.W.2d 703, 710 (Minn. App. 2004). The district court
abuses its discretion when its decision is against logic or contrary to the factual findings of
the district court. In re Welfare of Child of A.M.C., 920 N.W.2d 648, 660 (Minn. App.
2018).
Father argues that the district court abused its discretion when it concluded that he
was palpably unfit to care for the children in the reasonably foreseeable future. 2 We are

2 Father’s argument concerns the sufficiency of the evidence presented regarding palpable
unfitness and does not specifically assert error in or otherwise challenge any of the district
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not convinced by father’s argument because the district court’s determination is consistent
with logic and the underlying findings of fact. The district court found that father has been
unable to maintain long-term sobriety, noting his recent methamphetamine relapse. Father
testified that he relapsed because he was tired from helping with the children and working,
and the di strict court noted that at the time of trial , father was not attending his treatment
program as recommended. The district court also found that father’s substance abuse was
a barrier to his ability to parent now and in the future .
Apart from his substance use, the district court emphasized the brevity and
uncertainty of father’s present mental health progress , noting that father only began the
recommended treatment one month before the trial and had yet to complete a domestic
abuse program. The d istrict court also cited testimony from the social worker, the GAL,
the children’s uncle, and mother, each of whom expressed concerns about father’s abilit y
to parent the children on his own. In addition, the district court also found that father did
not demonstrate suitable residential or transportation stability and that father lacked insight
into the children’s mental health needs . Given these findings and the evidence in the
record, we conclude that the district court did not abuse its discretion when it determined
that specific conditions directly relating to father’s relationship with the children will

court’s underlying find ings of fact. To the extent father’s argument characterizes the
record as containing a complete absence of evidence regarding his ability to parent the
children in the reasonably foreseeable future, we disagree. The evidence presented
included testimony from father and other witnesses as well as documentary evidence
regarding father’s ability to parent and the nature of his relationship with the children.
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continue for an indefinite period of time and render father unable to care appropriately for
the children’s ongoing physical, mental, and emotional needs.
II. Adequacy of the Case Plan 3
Father also challenges the adequacy of hi s case plan . However, father does not
challenge any factual findings or identify specific deficiencies in the case plan. Instead, he
argues that the case plan must have been inadequate because the county believed he was
unfit to parent even though he was in compliance with the case plan. We conclude that
father has forfeited this argument.
Upon adjudication in the CHIPS proceeding, the district court shall order the parents
to comply with the plan. Minn. Stat. § 260C.201, subd. 6 (2022).
4 Court-approved case
plans are “presumptively reasonable.” S.E.P., 744 N.W.2d at 388. “A party has a right to
request a court review of the reasonableness of the case plan upon a showing of a
substantial change of circumstance s,” Minn. Stat. § 260C.201, subd. 6(d), and “the
appropriate action for a parent who believes some aspect of the cas e plan to be
unreasonable is to ask the court to change it, rather than to simply ignore it,” S.E.P., 744
N.W.2d at 388. In this case, the district court ordered father to comply with the case plan,
and nothing in the appellate record shows that father requested review of the case plan or

3 This argument appears under a heading regarding reasonable efforts, but father does not
actually ch allenge the district court’s determination of reasonable efforts. Accordingly,
despite the heading, we need not address the reasonableness of the reunification efforts.
4 We cite the most recent version of section 260C.201 because, although subd ivisions 1
and 2 of that statute have been amended from the version that applied at the time of trial,
the relevant part cited here has not been amended. See Interstate Power Co. v. Nobles
Cnty. Bd. of Comm’rs , 617 N.W.2d 566, 575 (Minn. 2000) (stating that, genera lly,
“appellate courts apply the law as it exists at the time they rule on a case ”).
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requested any changes to the case plan . Thus, he cannot make this argument for the first
time on appeal.5
III. Judicial Notice
Finally, father argues that the district court abused its discretion by taking judicial
notice of the social worker and GAL reports filed in the two CHIPS cases. Father has also
forfeited this argument.
Under the Minnesota Rules of Juvenile Protection Procedure, a district court may
take judicial notice as allowed by the rules of evidence. Minn . R. Juv. Prot. P. 3.02, subd.
3. Consistent with rule 3.02, this court has recognized that a district court may take judicial
notice of “[c]ourt records and files from prior adjudicative proceedings.” See In re Welfare
of D.J.N., 568 N.W.2d 170, 174 (Mi nn. App. 1997). We review a district court’s
evidentiary decision to take judicial notice for an abuse of discretion. Fed. Home Loan
Mortg. Corp. v. Mitchell , 862 N.W.2d 67, 71 (Minn. App. 2015) (“A district court’s
decision whether to take judicial noti ce of proffered facts is an evidentiary ruling that we
review only for abuse of discretion.”), rev. denied (Minn. June 30, 2015).

5 We also note that father’s argument misstates the district court findings and
misunderstands the significance of compliance with portions of a case plan. Contrary to
father’s argument, the district court did not find that he was in complete compliance, but
instead made several findings that would indicate a lack of specific compliance, including
findings that father was not attending his treatment program as recommended, was not able
to parent the children on his own, had not found stable housing or transportation, and lacked
insight into the children’s mental health needs. As noted above, father does not challenge
any of these findings and the record supports these find ings of fact. In addition, we have
previously concluded that completion of a case plan does not necessarily equate with being
presently able to assume the responsibilities of caring for the children. In re Welfare of
Child. of K.S.F., 823 N.W.2d 656, 667 (Minn. App. 2012). Given father’s forfeiture of this
argument, however, we need not determine the merits of this argument.
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In this case, although father opposed the motion to take judicial notice of the
previous court findings, father did not move for a new trial or for amended findings
following the district court’s order. In juvenile cases, appellate courts may only review
evidentiary rulings “if there has been a motion for a new trial in which such matters have
been assigned as error.” In re Welfare of D.N., 523 N.W.2d 11, 13 (Minn. App. 1994)
(quoting Sauter v. Wasemiller , 389 N.W.2d 200, 201 (Minn. 1986)) , rev. denied (Minn.
Nov. 29, 1994).
In addition, father offers no explanation about how the district court’s decision
prejudiced him, especially in light of the fact that the social worker and the GAL testified
at trial regarding their experience with the family during t he pendency of the CHIPS cases.
See D.J.N., 568 N.W.2d at 176 (declining to reverse termination of parental rights where
appellants failed to demonstrate that a district court’s error caused prejudice); In re Welfare
of Child. of A.D.B., 970 N.W.2d 725, 731 (Minn. App. 2022) (citing this aspect of D.J.N.);
Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (stating that “ on appeal error is never
presumed,” and placing the burden of showing prejudice on appellant (quotations
omitted)). Therefore, father has forfeited this argument.
Affirmed.