In the Matter of the Welfare of the Child of: D. L. P. and J. A. 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This opinion is nonprecedential except as provided by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
A22-1594

In the Matter of the Welfare of the Child of: D. L. P. and J. A. P., Parents.

Filed April 10, 2023
Reversed and remanded
Larson, Judge

Chippewa County District Court
File No. 12-JV-22-341

Jeremy Blackwelder, Holmstrom, Kvam & Blackwelder, P.L.L.P., Granite Falls,
Minnesota (for appellant-mother D.L.P.)

John E. Mack, New London Law, P.A., New London, Minnesota (for appellant -father
J.A.P.)

Matthew Haugen, Chippewa County Attorney, Montevideo, Minnesota (for respondent
Chippewa County Family Services)

Sheila Kosbab, Willmar, Min nesota (guardian ad litem)

Considered and decided by Larson, Presiding Judge; Reilly , Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
In this appeal, appellants D.L.P . (mother) and J.A.P. (father) (collectively, the
parents) challenge the district court ’s decision to terminate their parental rights to their
child, B.A.P., on the grounds that they failed to rebut the presumption that they were
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palpably unfit to parent. The parents argue that they presented sufficient evidence to rebut
the presumption and that the district court applied an incorrect standard when it determined
they failed to rebut the presumption. Because we conclude that the district court applied
an incorrect standard when analyzing whether the parents produced sufficient evidence to
rebut the presumption, w e reverse and remand.
FACTS
Respondent Chippewa County Family Services (CCFS) petitioned the district court
to involuntarily terminate the parents’ parental rights pursuant to Minn. Stat. § 260C.301,
subd. 1(b)(4) (2022) (TPR petition). The TPR petition alleged that the parents were
palpably unfit to be parties to the parent -child relationship because their parental rights to
their first two children (the twins) had previously been involuntarily terminated. 1 See
Minn. Stat. § 260C.301, subd. 1(b)(4) . In the prior involuntary termi nation, the five -
month-old twins suffered egregious harm caused by child abuse, including “rib fractures,
facial bruising, and a subdural hematoma (brain bleeding).” See In re Welfare of D.L.T.,
No. A19-0954, 2019 WL 7049938, at *2 (Minn. App. Dec. 23, 2019). 2
At a pretrial hearing, the parties discussed the trial procedure given the statutory
presumption that the parents were palpably unfit due to the prior involuntary termination.
Mother’s attorney suggested that CCFS must first offer evidence that the prior involuntary
termination occurred, then the burden would shift to the parents to overcome the

1 Mother also voluntarily terminated her rights to a third child.
2 Since the involuntary termination, the parents wed . Mother now shares father’s last
initial.
3
presumption. Mother’s attorney suggested that if the parents met their burden, CCFS
would then put on its case. CCFS’s attorney responded with his view that the burden would
shift to the parents “relatively quickly” and CCFS only intended to call a CCFS social
worker to establish jurisdiction, explain the reason for the current TPR petition, and offer
the prior order terminating the parents’ parental rights. CCFS’s attorney did not comment
on what would occur if the parents successfully overcame the presumption. The district
court responded to this discussion, agreeing that to invoke the presumption, CCFS should
provide “some background” and the certified copy of the prior order. The district court
then stated that the parents would need to put on their case to overcome the presumption
by “clear and convincing evidence.” The district court did not establish what would occur
if the parents overcame the pre sumption. The case proceeded to trial.
At the beginning of trial, CCFS called the social worker who explained the reasons
for the current TPR petition. CCFS offered into evidence a certified copy of the prior
termination and documentation regarding the parents’ recent drug tests.
3 After the social
worker’s testimony, CCFS’s attorney stated, “I believe in this case it has been demonstrated
that there is a presumption that the parent[s are] palpably unfit because of that prior
involuntary termination, and now the burden would shift to the [parents] to demonstrate
they are not palpably unfit.”

3 Out of 11 randomly scheduled drug tests, the parents failed to show or complete tests on
five occasions. On all occasions whe n the parents tested , one or both tested positive for
marijuana or alcohol.
4
The parents then presented their case, beginning with mother’s testimony. Mother
testified, and offered three letters demonstrating , that she was diligently attendi ng therapy
with three different counselors each week. Mother testified, and her therapists agreed, that
therapy was helping her with her anger issues and that couple’s counseling had improved
the parents’ communication skills. Mother further testified that the parents have the
necessities to care for B.A.P., such as stable and clean housing, clothes, diapers, toys, etc.,
and the parents have a strong support network. Mother described her alcohol and marijuana
use, explaining she missed several random -drug-testing appointments because she had
difficulty finding transportation. Mother also clarified that she had a prescription for
medical marijuana, but was not currently using marijuana, and that she ceased her alcohol
use as soon as she realized she would also be tested for alcohol. Concerningly, mother’s
testimony also indicated her view that her parental rights to the twins should not have been
involuntarily terminated.
4
The parents then called their roommate. The roommate testified that the parents
currently live with her and her boyfriend. The roommate described that in her current
Certified-Nursing-Assistant role she is a mandated reporter for child neglect or abuse. The
roommate testified that: mother helps clean the apartment; the parents get a long and treat
each other respectfully; the parents are current on their bills and rent; the roommate would

4 Mother argued during the prior termination that the cause of the twins’ injuries was not
child abuse, but “ osteogenesis imperfecta (O.I.)—a gene tic disorder commonly known as
brittle bone disease. ” D.L.T., 2019 WL 7049938, at *2. We concluded that the county
presented clear and convincing evidence from a child -abuse pediatrician that the twins do
not suffer from O.I. Id. Yet, in this case, mot her repeated her position that the twins
suffered their injuries due to O.I.
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have no problem with B.A.P. living in the apartment; the parents do not have a phone or
car, and the community lacks public transportation, so t he parents have difficulty meeting
their drug-testing obligations.
The parents then called father. Father explained that he began attending individual
therapy before the hearing. And prior to individual therapy, father attended couple’s
counseling which had helped the parents’ communication. Father testified that he made
mistakes in parenting the twins, that he had put his chemical -dependency issues behind
him, and that he would prioritize B.A.P. “above and beyond” anything else. Father
acknowledged tha t he faced difficulties attending drug tests because he could lose his job
for being absent too often. But father indicated that he might get laid off, which would
make him available to help with B.A.P.’s childcare.
After father testified, the parents ind icated they had no more witnesses. CCFS then
called the guardian ad litem (GAL). The GAL testified that B.A.P. was doing well,
developing normally in foster care, and was without any known specialized -care needs.
The GAL noted that the parents had misse d visits with the child because the parents insist
visits take place on weekends when they are not at work. The GAL expressed her view
that it was not in B.A.P.’s best interests to return B.A.P. to the parents due to the parents’
failure to complete drug testing and the parents’ lack of transportation. The GAL also
expressed concern about the parents’ past and whether the parents would be able to care
for B.A.P. around their work schedules.
The district court filed an order terminating the parents’ parental rights to B.A.P. on
the sole basis that the parents failed to rebut the presumption of palpable unfitness. In
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doing so, the district court broadly indicated that palpable unfitness of the parents must be
proven by “clear and convincing evidence,” without explaining which party bears that
burden. And the district court generally described the statutory presumption that the
parents are palpably unfit because of the prior involuntary termination, and the parents
must rebut the presumption “by introducing evidence that would justify a finding of fact
that the parent is not palpably unfit.” The district court supported its determination that the
parents failed to rebut the presumption by weighing the parents’ evidence against CCFS’s
evidence.
The parents appeal.
DECISION
The parents challenge the district court’s decision that they failed to rebut the
presumption of palpable unfitness. The parents argue that they presented sufficient
evidence to rebut the presumption of palpable unfitness and that the district court applied
an incorrect standard. We agree that the district court applied an incorrect standard when
analyzing whether the parents produced sufficient evidence to rebut the presumption.
“Parental rights are terminated only for grave and weighty reasons.” In re Welfare
of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). As relevant here, a district court may
terminate a parent’s rights if it determines that the parent is “palpably unfit to be a party to
the parent and child relationship.” Minn. Stat. § 260C.301, subd. 1(b)(4) . Under the
relevant statute, the district court must presume that a parent is palpably unfit if the parent’s
rights to a differe nt child were previously involuntarily terminated. Id.
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But the statutory presumption is “easily rebuttable” if the parent introduces evidence
that could support a finding that the parent is able to care for the child . In re Welfare of
Child of J.A.K., 907 N.W.2d 241, 245- 46 (Minn. App. 2018) ( first quoting In re Welfare
of Child of R.D.L., 853 N.W.2d 127, 135- 38 (Minn. 2014); and then quoting In re Welfare
of Child of J.W., 807 N.W.2d 441, 445- 47 (Minn. App. 2011), rev. denied (Minn. Jan. 6,
2012)). The statute imposes “only a burden of production,” meaning the “parent may rebut
the statutory presumption merely by introducing evidence that would justify a finding of
fact that [the parent] is not palpably unfit.” Id. To analyze whether a parent rebutte d the
statutory presumption, the district court should consider the evidence without weighing it
against any contrary evidence. See J.W., 807 N.W.2d at 445- 47 (concluding that the
parent’s evidence, “if believed,” would support a finding that the parent w as not palpably
unfit and that the evidence was therefore sufficient to rebut the statutory presumption).
If a parent produces enough evidence to rebut the presumption, the county bears the
burden to prove by clear and convincing evidence 5 that the parent is palpably unfit or that
another statutory basis for involuntary termination exists under Minn. Stat. § 260C.301,
subd. 1(b) (2022). See J.A.K., 907 N.W.2d at 247- 48. With regard to palpable unfitness,
the county carries its burden with evidence demons trating a consistent pattern of specific
conduct before the child or specific conditions that directly relate to the parent -child

5 A heightened standard applies to cases involving the Indian Child Welfare Act. See 25
U.S.C. § 1912(f) (2022) (“ No termination of parental rights may be ordered . . . in the
absence of a determination, supported by evidence beyond a reasonable doubt . . . .”);
Minn. Stat. § 260.771, subd. 6(a) (2022) (“In a termination of parental rights proceeding,
the court must determine by evidence beyond a reasonable doubt . . . .”).
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relationship. Minn. Stat. § 260C.301, subd. 1(b)(4). The county must show this conduct
or these conditions are of a duration or nature rendering the parent unable to care
appropriately for the child’s needs for the reasonably foreseeable future . Id.
Thus, when a county files a TPR petition on the basis that a parent is palpably unfit
because the parent’s rights to a different child were previously involuntarily terminated
under Minn. Stat. § 260C.301, subd. 1(b)(4) , the appropriate procedure is: (1) the county
presents evidence of the prior involuntary termination; (2) the burden shifts to t he parent
to meet their “burden of production” to rebut the statutory presumption by introducing
evidence that , if believed, “ would justify a finding that the parent is not palpably unfit ”;
and (3) if the parent meets that “easily rebuttable” presumption, the burden shifts back to
the county to show by clear and convincing evidence that the parent is palpably unfit or
that another statutory basis for involuntary termination exists under Minn. Stat.
§ 260C.301, subd. 1(b). See J.A.K., 907 N.W.2d at 245-48.
Here, the parents attempted to meet their burden of production to rebut the palpable-
unfitness presumption through the presentation of the following evidence. The parents
both testified that they have made changes in their lives since the prior involuntary
termination. Mother testified that she attends therapy three times a week and produced
three letters corroborating her testimony and her progress. Mother also indicated that
couple’s counseling had improved the parents’ communication, which the roommate’s and
father’s testimonies corroborated. Mother testified, and the roommate corroborated, that
the parents have safe and stable housing, and a strong support network. Further, mother
explained that her drug-testing failures were due to excusable mista ke or good -faith error.
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Father testified that he had attended several sessions with an individual therapist, realized
he had made mistakes in parenting the twins , had put his chemical -dependency issues
behind him, and would prioritize B.A.P. “above and be yond” anything else. If believed,
this evidence may be sufficient to rebut the statutory presumption.
In making the determination that the parents failed to rebut the presumption, the
district court did not accurately articulate the statutory presumption. While the district
court noted that the presumption could be rebutted if the parents produce “evidence that
would justify a finding of fact that the parent is not palpably unfit,” the district court failed
to discuss the “easily rebuttable” nature of th e statutory presumption. See J.A.K., 907
N.W.2d at 245-46 (first quoting R.D.L., 853 N.W.2d at 135-38; and then quoting J.W., 807
N.W.2d at 445-47). Moreover, the district court did not accept the parents’ evidence as
true. See J.W., 807 N.W.2d at 445- 47. Instead, the district court improperly weighed the
parents’ evidence against the evidence CCFS presented, improperly shifting the parents’
burden from a burden of production to a burden of proof. Id. We conclude the district
court’s analysis misapplies the holdings in R.D.L., 853 N.W.2d at 135-38, J.A.K., 907
N.W.2d at 245-48, and J.W., 807 N.W.2d at 445-47.
CCFS urges us to affirm the district court even if we conclude the district court
applied an incorrect standard, reasoning that the record nevertheless shows that CCFS met
its burden to prove by clear and convincing evidence that the parents remain palpably unfit.
But the district court never made the finding that CCFS proved by clear and convinc ing
evidence that the parents are palpably unfit to parent or otherwise meet the standard for
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involuntary termination under Minn. Stat. § 260C.301, subd. 1(b). We see nothing in the
district court’s decision that would justify affirming on this suggested alternative ground.
For these reasons, we reverse and remand because the district court applied an
incorrect standard when analyzing whether the parents produced sufficient evidence to
rebut the palpable-unfitness presumption. See J.A.K., 907 N.W.2d at 248. On remand, the
district court must apply the correct standard, evaluate whether the parents met their burden
of production to rebut the palpable -unfitness presumption, and, if so, evaluate whether
CCFS proved by clear and convincing evidence that the parents are palpably unfit. In
reversing and remanding, we offer no opinion about the quality of either the parents’ or
CCFS’s evidence. “Because any termination of parental rights must relate to conditions
that exist at the time of termination and it must appear that the conditions giving rise to the
termination will continue for a prolonged, indeterminate period, it will be necessary for the
district court to reopen the record to allow the parties to introduce supplemental evidence.”
Id. (quotation omitted). Therefore, w e direct the district court to reopen the record on
remand.
Reversed and remanded.