In the Matter of the Welfare of the Children of: D. L. W., Legal Custodian

This opinion is nonprecedential except as provided by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
A23-0635

In the Matter of the Welfare of the Children of: D. L. W., Legal Custodian.

Filed December 4, 2023
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-JV-21-1598

Brooke Beskau Warg, Hennepin County Adult Representation Services, Minneapolis,
Minnesota (for appellant-father D.L.W.)

Mary F. Moriarty, Hennepin County Attorney, Britta Nicholson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and
Public Health Department)

S.B.A., Shakopee, Minnesota (pro se respondent-mother)

David A. Yates, Minneapolis, Minnesota (for guardian ad litem)

Considered and decided by Smith, Tracy M., Presiding Judge; Gaïtas, Judge; and

Wheelock, Judge.

NONPRECEDENTIAL OPINION

SMITH, TRACY M., Judge

On appeal from the district court’s order for involuntary transfer of permanent legal

and physical custody of appellant-father D.L.W.’s children to a relative, father argues that

the district court (1) failed to make adequate findings of fact regarding the credibility of

certain witnesses, (2) should not have relied on father’s failure to complete family therapy
in transferring permanent custody of the children, and (3) failed to make adequate findings

of fact specific to each child’s best interests and should not have found that the transfer

was in the best interests of the children. We affirm.

FACTS

Father has four children—D.D.W., born in 2005; T.D.W., born in 2007; V.D.W.,

born in 2010; and D.A.A.-W., born in 2015. In a family court proceeding, father was

granted joint legal and temporary sole physical custody of V.D.W. and D.A.A.-W. In May

2021, respondent Hennepin County Human Services and Public Health Department

received a report alleging that father had sexually abused T.D.W. The department removed

V.D.W. and D.A.A.-W. from father’s home and placed them in relative foster care.

Shortly thereafter, the department filed a petition alleging that father’s four children

were in need of protection or services (CHIPS). The district court held an emergency

protective-care hearing and ordered that V.D.W. and D.A.A.-W. remain in foster care with

their maternal grandfather. Father entered a denial to the CHIPS petition.

In July 2021, the department filed an expedited termination-of-parental-rights

(TPR) petition to terminate father’s parental rights to his four children. The district court

found that the TPR petition stated a prima facie case for termination and dismissed the

CHIPS petition.

In January 2023, the department filed a petition to transfer permanent legal and

physical custody of V.D.W. and D.A.A.-W. to grandfather. The department then amended

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the TPR petition to remove V.D.W. and D.A.A.-W. 1 Following a five-day permanency

trial in January and February 2023, the district court granted the transfer petition and

ordered that legal and physical custody of V.D.W. and D.A.A.-W. be permanently

transferred to grandfather pending the approval of grandfather’s application for Northstar

kinship assistance. 2 Father moved for a new trial or amended findings. The district court

denied the motion. The district court amended its order transferring permanent custody

after grandfather’s Northstar kinship assistance application was approved.

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 . . . after the court has reviewed the suitability of

the prospective legal and physical custodian.” Minn. Stat. § 260C.515, subd. 4 (2022).

Under Minnesota Statutes section 260C.517(a) (2022), the district court’s order

transferring permanent custody of the child must include “detailed findings” on four

factors:

(1) how the child’s best interests are served by the order;
(2) the nature and extent of the responsible social services

1
The department also removed D.D.W. from the TPR petition after it filed a petition to
transfer permanent custody of D.D.W. to the department and father agreed to the transfer.
Father voluntarily terminated his parental rights to T.D.W. The custody orders for D.D.W.
and T.D.W. are not at issue on appeal.
2
Northstar kinship assistance is a state benefits program available to children placed in
relative foster care who find permanency with the relative through a transfer of permanent
legal and physical custody. See Minn. Stat. § 256N.02, subd. 11 (2022) (defining Northstar
kinship assistance); see also Minn. Stat. § 256N.22 (2022) (addressing Northstar kinship
assistance eligibility).

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 agency’s reasonable efforts . . . to reunify the child with the
parent or guardian . . . ; (3) the parent’s or parents’ efforts and
ability to use services to correct the conditions which led to the
out-of-home placement; and (4) that the conditions which led
to the out-of-home placement have not been corrected so that
the child can safely return home.

All four statutory factors 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).

In reviewing an order transferring permanent custody, appellate courts review

factual findings for clear error and the finding of a statutory basis for the order for an abuse

of discretion. In re Welfare of Child of D.L.D., 865 N.W.2d 315, 321 (Minn. App. 2015),

rev. denied (Minn. July 21, 2015). “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). When reviewing factual findings for clear error,

appellate courts (1) view the evidence in the light most favorable to the findings, (2) do not

find their own facts, (3) do not reweigh the evidence, and (4) do not reconcile conflicting

evidence. In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22 (Minn. 2021).

Father makes three arguments challenging the district court’s order. First, he

contends that the district court’s findings are insufficient to permit appellate review

because the district court failed to make credibility determinations as to all trial witnesses.

Second, he asserts that the district court clearly erred and abused its discretion by relying

on father’s failure to complete family therapy when ruling on the third and fourth statutory

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factors regarding correction of the conditions that led to the children’s out-of-home

placement. See Minn. Stat. § 260C.517(a)(3), (4). Third, father argues that the district court

abused its discretion by not making individualized best-interests findings for each child

and by finding that transfer of custody was in the children’s best interests under the first

statutory factor. See id. (a)(1). 3 We address each argument in turn.

I. The district court made findings sufficient to permit appellate review.

Father argues that the district court’s findings of fact are insufficient to permit

appellate review “because the district court failed to make credibility determinations for all

witnesses.” A district court’s findings are deficient when they “merely recite[] or

summarize[]” testimony without commenting independently on the opinions of the

witnesses, the foundation for their opinions, or the relative credibility of the witnesses. In

re Welfare of M.M., 452 N.W.2d 236, 239 (Minn. 1990); see In re Civ. Commitment of

Spicer, 853 N.W.2d 803, 810 (Minn. App. 2014) (quoting M.M.).

3
As a preliminary matter, the department argues that the first and third arguments—about
the absence of credibility findings and the district court’s best-interests determinations—
are forfeited because they were not preserved for appeal. We appreciate father’s candor in
conceding that he did not raise these issues in the district court. Generally, a party cannot
raise a new issue on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But this
rule is not “ironclad.” Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002). Appellate courts
may address issues as justice requires. Minn. R. Civ. App. P. 103.04. Even constitutional
issues raised for the first time on appeal may be addressed when required in the interest of
justice, when the parties have had adequate briefing time, and when the issues were implied
in the lower court. Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982). Here,
as father argues, the issues involve father’s “weighty interest” in an ongoing relationship
with his children. The issues were implied in the district court because they relate to the
statutory criteria for a transfer of permanent legal and physical custody. In addition, the
parties had adequate briefing time, and the department fully briefed the issues. We
therefore choose to address father’s arguments.

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 Eight witnesses testified at the permanency trial—father, respondent mother of

father’s four children, grandfather, the child-protection investigator, the social worker, the

guardian ad litem, D.D.W., and V.D.W. The parties agree, and the record demonstrates,

that the district court did not make explicit findings regarding the credibility of three

witnesses—grandfather, D.D.W., and V.D.W. Father argues that the district court’s

findings are deficient because the court “merely recited or summarized” the testimony of

these witnesses without making findings of fact regarding their credibility. He contends

that the absence of credibility determinations regarding these three witnesses matters

because the witnesses “offered testimony on key issues such as the proposed custodian’s

suitability and how the order would serve the children’s best interests.” See Minn. Stat.

§§ 260C.515, subd. 4(1) (requiring consideration of prospective custodian’s suitability),

.517(a)(1) (requiring detailed findings on child’s best interests).

We conclude that the district court’s findings are sufficient to facilitate effective

appellate review on both statutory criteria even though the district court did not explicitly

comment on the credibility of these three witnesses. Father suggests that M.M. required the

district court here to make explicit findings of fact regarding the credibility of all the

witnesses. In M.M., after a child’s parents’ parental rights were terminated, a relative

sought legal and physical custody of the child. 452 N.W.2d at 237. Following a hearing,

the district court denied the relative’s motion. Id. at 238. The district court had heard

testimony from ten witnesses, but its findings of fact consisted primarily of a summary of

the testimony of the prevailing party’s witnesses. Id. at 238-39. The court “made no specific

findings” and provided no basis for its conclusions of law. Id. at 239. The supreme court

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held that the findings were deficient because they were “inadequate to facilitate effective

appellate review, to provide insight into which facts or opinions were most persuasive of

the ultimate decision, or to demonstrate the trial court’s comprehensive consideration of

the statutory criteria.” Id. But the supreme court did not suggest that factual findings are

adequate only if a credibility determination is made for every witness. And, here, unlike in

M.M., the district court made specific findings that demonstrate its comprehensive

consideration of the statutory criteria and explain the bases for its decisions.

First, the district court made adequate findings regarding its consideration of

grandfather’s suitability. The district court found that grandfather “is a suitable prospective

legal and physical custodian for the children.” Citing the child-protection investigation that

was completed by the department, the district court found that (1) grandfather “has an

approved background study . . . and is licensed for foster care”; (2) “[t]here is a Kinship

Placement Agreement” between the department and grandfather; (3) grandfather “is

mentally and physically able to provide for the needs of the children”; (4) grandfather “has

the capacity and disposition to give the children the love, affection and guidance required

by the children and to continue their education and raise the children in their culture,

religion, or creed”; and (5) grandfather “has cooperated with [the department] in providing

for the needs of the children.” The absence of explicit credibility findings regarding the

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testimony of grandfather and two of father’s children does not impede effective appellate

review of the district court’s determination regarding grandfather’s suitability. 4

Second, the district court made adequate findings of fact regarding the best interests

of the children. Citing witness testimony—including the testimony of grandfather and

V.D.W.—and two psychosexual evaluations of father, the district court found:

The children currently reside with [grandfather], the proposed
custodian and maternal grandfather, and their other sibling.
[Grandfather] has parented the children appropriately since
2019, addressing their physical needs and ensuring their mental
health needs are addressed by taking them to their therapy
appointments. . . . [Grandfather] has indicated he would
continue to foster the relationships between the children and
their other siblings and also with extended family. . . .
Moreover, the children have a closely bonded relationship with
[T.D.W.] whom they currently live with. Based upon the
testimony received from [father], it is almost certain this
relationship will be severed if the children are removed from
[grandfather’s] care and placed with [father]. . . . [Father] has
demonstrated impulsivity, recklessness, and retaliatory
intent. . . . Specifically, [father] expressed a desire to retaliate
against those he believes have wronged him stating if he lost
his children “someone would pay.” . . . During the child
protection investigation, [father] stated he would kill himself
and the children. . . . Additionally, without appropriate family
and individual therapy, the risk of [V.D.W. and D.A.A.-W]
being exposed to sexually abusive situations remain. . . . The
Court finds those behaviors pose a significant risk to the
children and the relationships they have with their family
members.

These findings are adequate to review the district court’s determination regarding the best

interests of the children.

4
We note that, unlike section 260C.517(a), which addresses the best interests of the child,
the text of section 260C.515, subdivision 4(1), which addresses the suitability of the
prospective custodian, does not require detailed findings.

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II. The district court did not abuse its discretion by relying on father’s failure to
complete family therapy in transferring permanent custody of the children.

Father next argues that the district court abused its discretion by relying on father’s

failure to complete family therapy for its findings regarding father’s efforts to correct the

conditions that led to the children’s out-of-home placement and regarding whether the

conditions had been corrected. See Minn. Stat. § 260C.517(a)(3), (4).

When the children were removed from the home, the department offered father a

voluntary case plan that included (1) completing a psychosexual evaluation and following

all recommendations and (2) completing a parenting assessment and following all

recommendations. Father completed a psychosexual evaluation and a parenting

assessment, both of which recommended that father participate in family therapy. Father

concedes that he did not participate in family therapy. But father argues that “the district

court’s finding that [f]ather was unwilling to participate in family therapy is clearly

erroneous” and that the district court therefore “abused its discretion when it relied on

[f]ather’s failure to complete therapy when considering [f]ather’s efforts to the conditions

and whether the conditions were actually corrected.”

Father’s argument mischaracterizes the district court’s finding. The district court

found only that father was “reluctan[t] to pursue . . . family therapy.” Even so, father

contends that the only reason he did not participate in family therapy was “because the

family was placed on a waiting list for that service.” During the social worker’s direct

examination, the social worker testified that father and the children were placed on a

waiting list for family therapy. The social worker also testified that the referral for family

9
therapy was delayed because of father’s lack of communication with the department and

his reluctance to follow through with services. On cross-examination, the social worker

testified that father claimed that insurance issues prevented him from participating in

family therapy. The social worker explained, however, that insurance was not a barrier to

receiving family therapy. The record supports the district court’s finding that father was

reluctant to pursue family therapy.

Because the record supports the district court’s finding regarding father’s failure to

complete family therapy, the district court did not clearly err or abuse its discretion by

relying on father’s failure to complete family therapy in transferring permanent custody of

the children.

III. The district court did not abuse its discretion by determining that the transfer
of custody was in the best interests of the children.

Finally, father challenges the district court’s determination that a transfer of

permanent legal and physical custody was in the best interests of the children. See Minn.

Stat. § 260C.517(a)(1).

“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).

Minnesota Statutes section 260C.511 (2022) “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. 5 In a permanency proceeding,

5
Although the J.C.L. decision discussed the 2020 version of the statute, we cite the current
2022 version because the language of the statute has not been changed.

10
“‘best interests of the child’ means all relevant factors to be considered and evaluated.”

Minn. Stat. § 260C.511(a); see Minn. R. Juv. Prot. P. 58.04(b) (addressing need for

findings on child’s best interests in permanency matter). 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 argues both that the

district court failed to make individualized best-interests findings and that the district court

abused its discretion by determining that a transfer of permanent legal and physical custody

was in the best interests of the children.

A. Individualized Findings

Father first argues that the district court erred by failing to make individualized best-

interests findings regarding each child. Father relies on our nonprecedential decision in In

re Welfare of J.B.O. in which we concluded “that the district court’s best-interests analysis

failed to differentiate between the individual interests of each child.” No. A19-1052, 2019

WL 7287100, at *5 (Minn. App. Dec. 30, 2019). Father contends that, here, “the district

court’s best interest findings do not adequately consider the individual needs of the

children” because “the district court’s findings only refer to the ‘children’ rather than to

each child individually.”

Nonprecedential opinions are not binding authority. Minn. R. Civ. App. P. 136.01,

subd. 1(c). Nevertheless, we do not disagree that a district court must consider the

individual needs of each child in its best-interests analysis. But father does not identify any

individual needs specific to V.D.W. or D.A.A.-W. that the district court failed to consider.

11
Father contends that the district court failed to consider V.D.W.’s stated preference to live

with father. As further discussed in subsection B below, the district court adequately

considered V.D.W.’s custodial preference. Father also cites testimony describing V.D.W.

and D.A.A.-W. as “[v]ery different” and “polar opposite[s].” The record, however,

demonstrates that V.D.W. and D.A.A.-W. share the same relationships with relatives and

same need for therapy and a safe home. The fact that the district court referred to V.D.W.

and D.A.A.-W. as the “children” in its findings does not mean that the district court did not

individually consider each child’s interest in having a safe and stable home and getting

their needs met.

B. Best Interests of the Children

Next, father contends that the district court abused its discretion by determining that

the transfer of custody was in the best interests of the children. He makes two arguments.

First, father argues that the district court erred by failing to take V.D.W.’s wishes

into account in its best-interests analysis. Father notes that V.D.W. testified that she thinks

father is a “good dad” and that she trusts him. Father further notes that V.D.W. expressed

a preference to live with father because she “feel[s] like [her] dad could take . . . better

care” of her and D.A.A.-W. “because [her] grandpa’s getting a little old, and . . . he can’t

do some of the stuff [her] dad can.” As the department observes, however, there is no

requirement under section 260C.511 that the district court address the child’s wishes in its

best-interests analysis—indeed, there cannot be such a requirement since not all children

have preferences or are even old enough to have preferences. And the district court did

recognize V.D.W.’s preference: it acknowledged her testimony in its order. But the district

12
court still determined that returning V.D.W. to father’s care was contrary to her best

interests.

Second, father argues that the district court erred by failing to consider the impact

that transferring permanent legal and physical custody to grandfather would have on the

relationship between the children and their father. Father mentions that in June 2021

grandfather informed the social worker that he does not “get along well” with father.

During grandfather’s direct examination, he testified as follows:

Q: Do you understand that when you accept a transfer of legal
and physical custody of these two children that both [mother]
and [father] retain the right to have contact with the children?
A: Yes.
Q: Are you willing to be responsible for making decisions for
the children that are in their best interest with respect to their
contact with both of their parents?
A: Yes.
Q: And do you understand that . . . the Department will no
longer be involved in the care and planning for the children and
that will be solely your decision?
A: Yes.
Q: You will have to evaluate whether or not contact at certain
points and time is safe and appropriate for the children as well
as whether or not the amount of contact they have is safe and
appropriate.
A: Yes.
Q: Do you feel you are capable of doing so?
A: I do.

Father acknowledges this testimony but contends that “the evidence shows the transfer of

custody is not in the children’s best interests because [grandfather] is unlikely to continue

visitation between the children and . . . [f]ather.” But an appellate court may not make

factual findings when reviewing for clear error. See Kenney, 963 N.W.2d at 221-22. On

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this record, the district court adequately considered V.D.W. and D.A.A.-W.’s relationship

with father.

In conclusion, the district court did not abuse its discretion by determining that

transferring permanent legal and physical custody was in the best interests of the children.

Affirmed.

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