In the Matter of the Welfare of the Children of: S. S. and K. W., 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This opinion is nonprecedential except as provided by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
A23-0110

In the Matter of the Welfare of the Children of:
S. S. and K. W., Parents.

Filed May 30, 2023
Affirmed
Bratvold, Judge

Mower County District Court
File No. 50-JV-22-1681

Daniel T. Donnelly, Donnelly Law Office, Austin, Minnesota (for appellant K.W.)

Paul R. Spyhalski, Austin, Minnesota (for respondent S.S.)

Kristen Nelsen, Mower County Attorney, Aaron Jones, Assistant County Attorney, Austin,
Minnesota (for respondent Mower County Health and Human Services)

Todd Schoonover, Austin, Minnesota (guardian ad litem)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant father argues the district court erred by transferring permanent legal and
physical custody of his children from respondent mother to maternal grandmother. Father
contends that the district court clearly erred in its analysis of the best-interests and
corrected-conditions factors. Because we conclude the district court did not clearly err by
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making its factual findings or abuse its discretion by ordering the transfer to grandmother
and denying father’s petition, we affirm.
FACTS
These facts summarize the evidence received at the evidentiary hearing and the
district court’s order following the hearing. Appellant K.W. (father) and respondent S.S.
(mother) have two joint children, T.W., born in 2014, and E.W., born in 2016 (collectively,
the children). In 2014, father and mother cohabitated in Minneapolis. By the time E.W.
was born in 2016, father and mother had separated, and mother and the children had moved
to Austin . The children’s maternal grandmother also lives in Austin. Father moved to
Madison, Wisconsin , then moved to Aurora, Colorado, where he currently resides. In
Aurora, father works for an airline and lives in a two-bedroom, two -bathroom apartment
with his sister, his sister’s adult child, and father’s adult child.
Between 2016 and 2021, father did not visit the children in person. Father
“chat[ted]” with the children by video. Father “talked to [the children] once a week.” The
children have “mainly . . . been with [grandmother]” since they moved to Austin.
On September 8, 2021, the children were removed from mother’s home “due to
[mother’s] chemical use and incarceration.” The district court placed the children with
grandmother and adjudicated them as children in need of protective services.
Respondent Mower County Health and Human Services (the county) unsuccessfully
tried to contact father at a Minneapolis address “immediately” after the out-of- home
placement. In October 2021, the county mailed father “a packet of paperwork” that was
returned as “undeliverable” from an Aurora address mother provided. The county called
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father, and he provided an updated address in Aurora. The county mailed the paperwork to
the updated address, but it was again returned as “undeliverable.” Father’s phone number
was “then shut off shortly after.” The county continued to “attempt phone calls each
month” and to send letters.
On August 23, 2022, the county petitioned for a permanent transfer, asking the
district court to grant custody of the children to grandmother under Minn. Stat. § 260C.515,
subd. 4 (2022). The petition outlined mother’s case plan and concluded that “mother ha[d]
not corrected the conditions leading to the children being placed out of her care.” The
petition also noted that “father has had no contact with [the county] nor the children during
the pendency of this matter. His current whereabouts are unknown.” The petition stated
that placement with grandmother “will be in the best interests of the children” because “the
children have an established relationship with” grandmother. The petition did not seek or
recommend termination of parental rights for either parent.
On August 24, 2022, the county learned father was in Minnesota. Father had some
supervised visits with the children; how many visits occurred is not clear. Father canceled
“a lot” of the supervised visits and later “canceled all [future] visits.”
In September 2022, the county had “completed paperwork and referrals for therapy
to start for the children,” and the district court assigned a guardian ad litem (GAL). One of
the children “demonstrated indicia of trauma following visits with . . . mother, including
self-harm ideations.”
On October 11, 2022, father petitioned for sole physical and sole legal custody of
the children. That same day, mother consented to the transfer of custody of the children to
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grandmother and agreed the transfer “is in the best interest” of the children. Mother stated
that her admission was conditioned on placement with grandmother, and she did not agree
with transferring custody to father.
On October 21, 2022, the district court conducted an evidentiary hearing and heard
arguments on the competing petitions. Mother, father, grandmother, father’s sister, the
GAL, and the county social worker testified. Father testified that he planned to return to
Aurora with the children and continue living with his sister. Father testified that he did not
visit the children between 2016 and 2022 because of COVID-19 and because he did not
have a place to stay. Father also testified that he does not “remember talking to [the social
worker] at all.”
After hearing arguments, the district court determined that “the County has proven
its permanency petition” and that father “has not proven his petition.” The district court
therefore granted the county’s petition and denied father’s petition.
Father appeals.
DECISION
A district court may “order permanent legal and physical custody to a fit and willing
relative in the best interests of the child.” Minn. Stat. § 260C.515, subd. 4. The district
court’s order transferring permanent custody must include detailed findings. Minn. Stat
§ 260C.517(a) (2022). Each statutorily required finding must be proved by clear and
convincing evidence. Minn. R. Juv. Prot. P. 58.03, subd. 1; In re Welfare of Child. of J.C.L.,
958 N.W.2d 653, 656 (Minn. App. 2021), rev. denied (Minn. May 12, 2021).
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On appeal, “[t]he concept that findings of basic or underlying fact are reviewed for
clear error while ‘ultimate facts’ and ‘mixed questions of law and fact’ . . . are reviewed
for an abuse of discretion . . . is inherent in juvenile-protection caselaw.” In re Welfare of
Child. of J.R.B., 805 N.W.2d 895, 900-01 (Minn. App. 2011), rev. denied (Minn. Jan. 6,
2012). “A district court abuses its discretion by making findings of fact that are
unsupported by the evidence, misapplying the law, or delivering a decision that is against
logic and the facts on record.” Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022)
(quotation omitted).
The clear-error standard of review “is a review of the record to confirm that evidence
exists to support the decision.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 222
(Minn. 2021) (reviewing order for provisional discharge after civil commitment). “When
the record reasonably supports the findings at issue on appeal, it is immaterial that the
record might also provide a reasonable basis for inferences and findings to the contrary.”
Id. at 223 (quotation omitted). When applying the clear-error standard of review, appellate
courts (1) view the evidence in the light most favorable to the findings, (2) do not reweigh
the evidence, (3) do not find their own facts, and (4) do not reconcile conflicting evidence.
Id. at 221-22. Thus,
an appellate court need not go into an extended discussion of
the evidence to prove or demonstrate the correctness of the
findings of the [district] court. Rather, because the factfinder
has the primary responsibility of determining the fact issues
and the advantage of observing the witnesses in view of all the
circumstances surrounding the entire proceeding, an appellate
court’s duty is fully performed after it has fairly considered all
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the evidence and has determined that the evidence reasonably
supports the decision.

Id. at 222 (quotations omitted); see In re Welfare of Child of J.H., 968 N.W.2d 593, 601
n.6 (Minn. App. 2021) (applying Kenney on review of a juvenile -protection order), rev.
denied (Minn. Dec. 6, 2021).
Before approving a permanent transfer of custody, a district court must make
“detailed findings” on four factors: (1) the best interests of the children, (2) the county’s
reasonable efforts to reunify the children with the parents, (3) the parents’ use of services
to correct the conditions that led to the out-of-home placement, and (4) whether the
conditions that led to the out-of-home placement have been corrected. Minn. Stat
§ 260C.517(a).
On appeal, father does not challenge the district court’s analysis of the second and
third factors and focuses on the first and fourth factors. Father argues the evidence is
insufficient to sustain the district court’s determinations (A) that it is in the children’s best
interests to transfer custody to grandmother and (B) that the conditions that led to the
out-of-home placement were not corrected. We discuss the district court’s decisions on the
first and fourth factors in turn.
A. Best Interests of the Children
Father challenges the district court’s determination that it is in the children’s best
interests to transfer custody to grandmother. Father also challenges the district court’s
denial of his petition for custody based on this determination.
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“The paramount consideration in all juvenile protection proceedings is the health,
safety, and best interests of the child.” Minn. Stat. § 260C.001, subd. 2(a) (2022). In a
permanency proceeding, “‘best interests of the child’ means all relevant factors to be
considered and evaluated.” Minn. Stat. § 260C.511 (2022). Section 260C.511 “provides
the best-interests criteria that a district court must consider before ordering a transfer of
permanent legal and physical custody of a child to a relative.” J.C.L., 958 N.W.2d at 656.
The district court “must be governed by the best interests of the child, including a review
of the relationship between the child and relatives and the child and other important persons
with whom the child has resided or had significant contact.” Minn. Stat. § 260C.511(b).
Father’s brief to this court argues that Minn. Stat. § 260C.212, subd. 2 (2022),
provides the relevant best-interests factors. Father ignores this court’s decision in J.C.L.
and argues that for “consisten[cy],” the factors from Minn. Stat § 260C.212, subd. 2, should
apply.
Father’s argument relies on In re Welfare of Children of M.L.S., 964 N.W.2d 441,
454 (Minn. App. 2021). M.L.S., however, arose in a different circumstance because we
reviewed a district court’s denial of a motion for permissive intervention in adoption
proceedings. Id. We noted both that (a) the use of the list of factors in Minn. Stat.
§ 260C.212, subd. 2, guided the county’s decision on the child’s placement and was used
in the district court’s analysis by the parties’ agreement, and (b) what a district court is to
examine when evaluating a child’s best interests varies with the decision the district court
is making and the circumstances of the child. Id. at 452 & n.6.
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We decline to follow M.L.S. as father urges. We are bound by our precedential
opinions, State, Comm’r of Hum. Servs. v. M.L.A., 785 N.W.2d 763, 767 (Minn. App.
2010), rev. denied (Minn. Sept. 21, 2010), and J.C.L. states that Minn. Stat. § 260C.511
provides the applicable best-interests factors ; therefore, we review the district court’s
decision given those factors.
Father also argues that the district court abused its discretion by granting the
county’s petition and denying his petition. Father contends that “[t]here is absolutely no
evidence of [his] parental unfitness” and that absent “extraordinary or grave reasons . . . he
should have been awarded custody.” Father concedes that grandmother has met the special
needs of the children but argues there is “no evidence” that he could not meet the children’s
needs. Father cites his sister’s testimony as showing that the children’s needs would be met
in Colorado. Lastly, father argues that his absence from the children’s lives or his delayed
response to the county’s petition “should not be held against” him because “he made
enormous sacrifices to take an extended leave from his job, to travel to Minnesota, and to
attempt to reunite with his children.”
In the order transferring custody to grandmother, the district court considered
father’s arguments and the evidence received at the hearing. The district court found that
father lived with mother and T.W. “for a short period of time,” but father “never resided
with [E.W.]” On the other hand, the district court found that the children “had previously
resided with
. . . grandmother” and that “[t]he home of . . . grandmother is what the
children call home.” The district court expressed “concern[] about how long it took for
[father] to come and see the kids” after the county contacted him in October 2021. The
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district court determined father’s “reasons for not seeing the children before and after they
were placed out of home were not credible.” The district court expressed its “concern[] that
[father] cut off [supervised] visits [with the children] which were meant as a starting
point . . . to develop a relationship.”
The district court acknowledged that father’s sister “seem[s] to be a good support
for [father]” but found that “moving the children to Colorado to live with relatives they
have little to no established relationship with would be extremely traumatic and not in their
best interests.” The district court determined that “[s]tability is especially important for
the[] children because of struggles they have had in the past as well as their ongoing mental
health.” Lastly, the district court found that “[t]he children have repeated[ly] expressed the
opinion that they do not want to leave the home of . . . grandmother. The idea of being
separated from grandmother ‘scares the living daylights’ out of the children according to
the [GAL].” The district court concluded that it is in the children’s best interests to transfer
permanent custody to grandmother and explained that
[t]here is a preference for placement with a biological parent.
However, in this matter that preference is overcome by a
number of reasons placement with the grandmother is in the
best interests of the children. The home of the grandmother is
the only stability the children have had in their lives. The
children have a very limited relationship with the father.
Sending the children with the father at this point would not
alleviate trauma, it would cause it. This would not be in the
best interests of the children.

We conclude that the record evidence supports the district court’s findings. Mother
testified that father did not live with her when E.W. was born and that father did not have
any in-person visits with the children for many years. The social worker testified that in
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October 2021, she spoke with father and informed him of the county’s involvement with
the children, but she agreed that she was never “successful in getting involvement from ”
father. The social worker also testified that she arranged for father to have supervised visits
with the children, but “a lot of those visits [got] canceled,” and eventually, father “canceled
all [future] visits.”
The social worker and the GAL testified about the children’s well-being. The social
worker testified that the children are “doing very well” with grandmother and “are engaged
in therapy,” “doing very well in school,” and “meeting goal[s] on their IEP.” The social
worker testified that the children “spent significant time with [grandmother] throughout
their life.” The social worker opined that “[s]tability would be important for [the children]
because they both struggle in school. They struggle with their mental health and a stable
home environment would give them an opportunity to do better.” The social worker
described the children’s relationship with father: “it was my understanding [father] had not
seen the boys since [E.W.] was very little . . . [and] there was never a significant
relationship.” The GAL testified that the children have had “tremendous improvement”
living with grandmother. The GAL also testified that it is in the children’s best interests
“[t]o remain with their grandmother.”
Because the record supports the district court’s findi ngs, the district court did not
abuse its discretion by determining that it is in the children’s best interests to grant the
county’s petition to transfer permanent custody to grandmother.
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B. Corrected Conditions
Father argues that “there is no evidence whatsoever that his home ever needed to be
‘corrected,’” and the district court’s finding that the conditions leading to the out-of-home
placement were not corrected is therefore clearly erroneous. We disagree. The district
court’s determination concerned the failure to correct the conditions in mother’s home. The
district court’s finding did not involve father’s home. Father agreed at trial and on appeal
that the children could not return to live with mother. The district court therefore did not
abuse its discretion by determining that the conditions that led to the out-of-home
placement were not corrected.
In sum, the district court considered the evidence received at the hearing and issued
a detailed order. Because the record supports district court’s findings, the district court did
not abuse its discretion by granting the county’s petition to transfer permanent custody of
the children to grandmother and by denying father’s petition for custody.
Affirmed.