This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A16-1170
In the Matter of the Welfare of the Child of: V. R. E., Parent
Filed December 27, 2016 Affirmed Smith, John, Judge *
Hennepin County District Court File No. 27-JV-15-6979
Mary F. Moriarty, Chief Public Defender, David W. Merchant, Assistant Public Defender, Minneapolis, Minnesota (for appellant V.R.E.)
Michael O. Freeman, Hennepin County Attorney, Kacy Wothe, Assistant County Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and Public Health Department)
Petra E. Dieperink, Assistant Public Defender, Minneapolis, Minnesota (for respondent B.A.B.)
Jody M. Alholinna, El-Ghazzawy Law Offices, Minneapolis, Minnesota (for guardian ad litem)
Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Smith,
John, Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
SMITH, JOHN, Judge
We affirm the district court’s termination of appellant-mother’s parental rights
because the district court did not abuse its discretion in finding that there was clear and
convincing evidence that appellant-mother is palpably unfit to be a parent to the parent-
and-child relationship and termination is in the child’s best interests.
FACTS
Appellant-mother V.R.E. is the biological mother of L.R.B., born April 16, 2015.
Mother also has two other biological children, A.E., born May 2005, and J.E., born July
2009. In 2005, respondent Hennepin County Human Services and Public Health
Department (county) filed a child in need of protection or services (CHIPS) petition for
A.E. Mother complied with the case plan for that case and A.E. was reunited with her. In
2006, the county filed another CHIPS petition for A.E. In 2007, the district court
transferred physical and legal custody of A.E. to a relative of mother because mother failed
to comply with her case plan and did not use the services offered to correct the conditions
which led to the out-of-home placement. In 2010, the district court transferred custody of
A.E. back to mother finding that mother had “been sober slightly over one year and [was]
highly motivated to parent [A.E.] and maintain a sober lifestyle.”
In 2013, Ramsey County filed a CHIPS petition regarding A.E. and J.E., alleging
that mother had run outside with J.E. in single digit temperatures when J.E. was “only
wearing socks” and that she had been intoxicated when doing so. The district court found
mother in default on the CHIPS petition after she failed to appear or contact the court or
2 any of the parties, deemed its allegations true, and adjudicated A.E. and J.E. CHIPS.
Ramsey County filed separate petitions to transfer legal and physical custody of the
children and the district court transferred legal and physical custody of A.E. and J.E. to
relatives of mother.
Because of mother’s prior child-protection history, the county provided mother
voluntary services after L.R.B. was born, including parenting, housing assistance, and
mental health services. The county provided these services with the goal of keeping the
child safe from abuse and neglect. The county considered ending case management early,
but decided to keep mother’s case open longer after mother indicated that she needed
additional assistance. Case management closed for mother in October 2015. At the time
that the case closed, mother’s assigned social worker had identified no safety risks
associated with her parenting and gave mother credit for her engagement in services during
the six months that the case was open. Mother was accepted into the Perspectives
Supportive Housing Program in September 2015 and moved into a furnished apartment in
early October 2015. Perspectives provides many programs to its residents, including
weekly parenting education programs, AA sessions, and mental health programs including
therapy.
On December 10, 2015, the county filed a termination of parental rights (TPR)
petition regarding L.R.B. The petition alleged that on December 3, 2015, mother had left
her apartment at Perspectives from 12:30 p.m. to 2:30 p.m., to attend therapy, leaving
3 L.R.B. in the care of her boyfriend, Miguel Neumiller. 1 When mother returned home,
Neumiller was giving L.R.B. a bath. Mother reported that she observed bruising on
L.R.B.’s face, asked Neumiller if L.R.B. had fallen, and Neumiller did not answer. The
petition alleged that later that afternoon, mother left her apartment a second time to go to a
grocery store, again leaving L.R.B. in Neumiller’s care. When mother returned from the
grocery store, mother reported that she observed a red mark on the side of L.R.B.’s neck
“like something had been wrapped around her neck,” little marks and dried blood on
L.R.B., and saliva and blood on L.R.B.’s crib sheets. The petition alleged that mother
again asked Neumiller about the marks and he began to cry. Mother asked him why he
was crying and Neumiller said it was because mother thought he did something to L.R.B.
The petition alleged that mother decided not to take L.R.B. to daycare the next day because
she was afraid that a child protection report would be made and that L.R.B. had not received
medical care for over 24 hours after the injury.
The district court held an emergency protective care hearing regarding the petition.
Following the hearing, the district court ordered L.R.B. into out-of-home placement and
relieved the county of its obligation to provide reasonable efforts to reunify mother and
L.R.B. because the TPR petition stated a prima facie case that “[t]he parent has subjected
the child to egregious harm.” Although the county was relieved of its obligation to provide
reasonable efforts, the county established a voluntary case plan for mother.
1 Mother had previously known Neumiller as Michael Fairbanks. On December 2, 2015, mother learned that “Michael Fairbanks” was an alias.
4 In April and May 2016, the district court held a trial on the TPR petition. Following
the trial, the district court concluded that five of the alleged statutory grounds for
termination were supported by clear and convincing evidence. 2 The district court
concluded that termination of parental rights was in L.R.B.’s best interest and terminated
mother’s parental rights to the child.
Mother filed a “Motion for New Trial and/or Amended Findings and Order,”
requesting that she continue to have supervised visitation during post-trial proceedings and
alleging that the district court erred in “signing the [county’s] proposed findings verbatim,”
“admitting expert testimony from the Guardian [ad litem] and from the child protection
social worker,” terminating mother’s parental rights where there “was not sufficient
admissible evidence to support” that determination, denying mother’s motion to remove
the guardian ad litem, and admitting inadmissible evidence. The district court denied
mother’s motion.
DECISION
“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). A district court’s decision in a termination
proceeding must be based on evidence concerning the conditions that exist at the time of
trial. In re Welfare of Child of T.D., 731 N.W.2d 548, 554 (Minn. App. 2007), review
denied (Minn. July 17, 2007). An appellate court “exercises great caution in termination
2 The county agreed to dismiss the abandonment statutory ground pled in the petition under Minn. Stat. § 260C.301, subd. 1(b)(1) (2014).
5 proceedings, finding such action proper only when the evidence clearly mandates such a
result.” In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).
On appeal, this court examines the record to determine whether the district court
applied the appropriate statutory criteria and made findings that are not clearly erroneous.
In re Welfare of D.L.R.D., 656 N.W.2d 247, 249 (Minn. App. 2003). In doing so, this court
defers to the district court’s credibility determinations. See In re Welfare of L.A.F., 554
N.W.2d 393, 396 (Minn. 1996) (“Considerable deference is due to the district court’s
[TPR] decision because a district court is in a superior position to assess the credibility of
witnesses.”). “A finding is clearly erroneous if it is either manifestly contrary to the weight
of the evidence or not reasonably supported by the evidence as a whole.” In re Welfare of
Children of T.R., 750 N.W.2d 656, 660-61 (Minn. 2008) (quotation omitted). “[A] district
court’s findings in support of any TPR order must address the best-interests criterion.” In
re Welfare of the Child of D.L.D., 771 N.W.2d 538, 546 (Minn. App. 2009); see Minn.
Stat. § 260C.301, subd. 7 (2014) (“[T]he best interests of the child must be the paramount
consideration . . . .”). This court gives the district court’s decision to terminate parental
rights considerable deference but “closely inquire[s] into the sufficiency of the evidence to
determine whether it was clear and convincing.” In re Welfare of Children of S.E.P., 744
N.W.2d 381, 385 (Minn. 2008).
6 I.
The district court terminated mother’s parental rights based in part on Minn.
Stat. § 260C.301, subd. 1(b)(4) (2014). 3 Minn. Stat. § 260C.301, subd. 1(b)(4), allows
termination when a parent
is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.
Mother argues that “there was clear and convincing evidence at trial that [she] complied
with her case plan and was able to parent L.R.B.” She contends that the district court
erroneously relied on her purported failure to show “meaningful change” as the basis for
termination under Minn. Stat. § 260C.301, subd. 1(b)(4).
The district court found that “mother’s child protection history and repeated poor
parenting decisions are a consistent pattern of specific conduct that is of a duration that
renders [mother] unable for the foreseeable future to care appropriately for the ongoing
physical, mental, and emotional needs of [L.R.B.] or any other child.” The district court
noted that “[t]he circumstances that led to this case are not the first time that [mother] has
3 The district court also relied on four other statutory grounds to terminate mother’s parental rights: Minn. Stat. § 260C.301, subd. 1(b)(2) (parent has failed to comply with parental duties), (b)(5) (reasonable efforts have failed to correct conditions leading to child placement), (b)(6) (child has experienced egregious harm in parent’s care), (b)(8) (child is neglected and in foster care) (2014).
7 demonstrated poor parenting judgment, put a child in an unsafe situation or had a
concerning intimate relationship,” that “[t]hese are the same concerns identified in her prior
child protection cases,” and that “mother has a long history of neglecting children and
exposing them to unsafe situations dating back eleven years.”
The district court also found that mother’s mental health and chemical dependency
issues demonstrate that mother “lacks the capacity to adequately care for children.” 4 The
district court noted that “mother has serious mental health diagnoses and long-term trauma
that she has been unable to satisfactorily address during the case” and that “[d]espite
repeated and consistent interventions including five treatment programs and ongoing
supports, [mother] has continued to relapse.” The district court took “into consideration
how well [mother] complied with the [county],” but found that “neither her case plan
compliance nor the more than a decade of treatment have ensured her ability to maintain
sobriety and meet the needs of her child.” The district court found that “[e]ven with all the
supports of the Perspectives sober housing program, [mother] continues to demonstrate her
lack of insight and meaningful change, as well as her inability to appropriately protect and
care for her child.” These findings are supported by the record.
4 Following mother’s psychological evaluation in July 2015, mother was diagnosed with Posttraumatic Stress Disorder, Major Depressive Disorder, Borderline Intellectual Functioning, learning disorders, and Alcohol and Cannabis Use Disorder. Mother also completed a diagnostic assessment with her individual therapist in January 2016 which indicated that mother no longer met the diagnostic criteria for Posttraumatic Stress disorder, but continued to meet the diagnostic criteria for Major Depressive disorder.
8 Child-Protection History
Mother’s first involvement with child protection was in 2005, when the county filed
a CHIPS petition for A.E. shortly after his birth based on maltreatment. Mother complied
with her case plan and A.E. was reunited with her. One year later, the county filed another
CHIPS petition for A.E. based on maltreatment. Mother failed to use the services offered
to correct the conditions which led to the out-of-home placement. Mother voluntarily
agreed to transfer physical and legal custody of A.E. to a relative. In 2010, the district
court transferred custody of A.E. back to mother, noting that although mother “has had past
chemical dependency issues, she has been sober slightly over one year and is highly
motivated to parent [A.E.] and maintain a sober lifestyle.” The district court also noted
that mother was then “engaged in a supportive environment, which include[d] therapy and
counseling.”
In 2013, Ramsey County filed a CHIPS petition regarding both A.E. and J.E. The
CHIPS petition alleged that while mother was “very intoxicated” she struck two people,
hitting one of them in the face and breaking his nose. The CHIPS petition alleged that
mother then ran outside with J.E. even though J.E. “was only wearing socks and the
temperature was in the single digits.” The CHIPS petition also alleged that mother did not
have a permanent residence and that mother had “put [J.E.] in danger by allowing him to
stay with her in different homes with acquaintances she is not familiar with.” The district
court found mother to be in default on the CHIPS petition after she failed to appear or
contact the court or any of the parties, deemed its allegations true, and adjudicated A.E.
and J.E. CHIPS. Ramsey County filed petitions to transfer legal and physical custody of
9 the children, alleging that mother failed to make case plan progress, lacked necessary
parenting skills, and had a history of limited judgment and decision-making ability which
negatively affected her choices, behaviors, and relationships and interfered with her care
of A.E. and J.E. In 2014, mother voluntarily agreed to transfer legal and physical custody
of A.E. and J.E. to relatives.
The record establishes that before this case, mother was involved in three different
CHIPS cases regarding her other biological children. On two occasions, mother made
enough progress to be reunited with a child, only to be involved in another CHIPS case
because she again failed to adequately care for her children and keep them safe. When
physical and legal custody of A.E. was transferred back to mother in 2010, the district court
noted that mother was highly motivated to parent him and maintain a sober lifestyle and
was engaged in a supportive environment, which included therapy and counseling.
According to allegations in the 2013 CHIPS petition, which the district court deemed true,
mother left A.E. in the care of a relative approximately two years later because she relapsed
and was drinking heavily again. Approximately three years after physical and legal
custody of A.E. was transferred back to mother, mother exposed J.E. to an unsafe situation
while she was intoxicated and failed to provide J.E. a safe and stable home. Moreover,
the circumstances described in the records from the prior CHIPS proceedings suggest that
mother has not learned how to develop an appropriate protective capacity and keep her
children safe. For example, the 2013 CHIPS petition stated that mother allowed J.E. to
“stay with her in different homes with acquaintances she is not familiar with.” Likewise,
10 L.R.B. was injured after mother left her in Neumiller’s care, despite mother only having
dated Neumiller for two weeks at the time.
Mother’s child-protection history demonstrates a pattern of making some progress
and engaging in services in the short-term, and then once again exposing her children to
dangerous situations. This history, combined with the recent abuse that L.R.B. suffered
and mother’s relapse shortly before the TPR trial, supports the district court’s finding that
mother will not be able to care appropriately for L.R.B.’s needs long-term.
Impact of Services Provided to Mother
Mother’s voluntary case plan in this case included completing an updated parenting
assessment, working with a parenting skills worker, continuing to attend AA/NA meetings,
continuing to submit UAs, addressing domestic violence and how it impacts mother’s
ability to make safe decisions for herself, continuing to work with her therapist, engaging
in trauma-informed therapy, continuing to take psychotropic medications to manage her
mental wellness, and continuing to stay in safe and supportive housing. Mother’s social
worker testified that all of the services identified in the voluntary case plan, aside from the
updated parenting assessment and parenting skills worker, were services that mother had
received in the past or was currently receiving. This testimony is supported by a January
2016 letter from a representative from Perspectives, which indicates that mother was
participating in chemical health treatment, individual therapy, Structured Relapse
Prevention group, and a parenting class at Perspectives. Mother has also participated in
five different chemical treatment programs and currently takes medications prescribed by
her primary care provider to manage her mental health symptoms.
11 Mother argues that she complied with her voluntary case plan in this case and points
out that the district court acknowledged her case plan compliance. Mother notes that her
previous social worker gave her a very positive report when her first case plan regarding
L.R.B. ended in October 2015, contends that she made “tremendous progress” with her
previous social worker, and argues that the December 3 incident did not “transform,
overnight, [the previous social worker’s] studied assessment of [her] ability to parent.”
Mother is correct that the district court found that “the majority of provider reports
have been positive” and that mother is “utilizing services to the best of her ability.”
However, the district court also found that the “services [mother] has participated in are
likely beneficial to her but were mostly previously in place when the child was injured,”
and that although “mother has completed a number of services,” she “has not ultimately
been successful in their completion” because she has failed to demonstrate change and
continues to make decisions that put her child in unsafe situations. These findings are
supported by the record.
Despite all of the services that mother had received prior to December 2015, she
still decided to allow Neumiller to supervise L.R.B., a vulnerable seven-month-old child,
alone on December 3, when she had only been dating Neumiller for two weeks at that point,
knew he was going by an alias, and was aware that he had been charged with a crime that
could result in him being imprisoned for 15 years. Mother also knew at the time that
Neumiller supervising L.R.B. alone at her apartment amounted to two lease violations
because he was not on the approved visiting list and was present at the apartment when she
was not present there and that such lease violations could jeopardize her housing. Mother
12 once again left the child in Neumiller’s care while she went to the grocery store, even
though she noticed that the child’s face was red and saw “marks on her” from a distance,
observed that Neumiller seemed “overly protective of [L.R.B.],” and found it “kind of
awkward” that Neumiller was giving L.R.B. a bath.
Mother told the child-protection investigator that when she returned to the
apartment, she did not immediately inspect the marks again. When mother did inspect
L.R.B.’s injuries, she saw that they were significant: something red on her neck that “kind
of looked like something [had been] wrapped around her neck,” “little marks” and “dried
up blood,” five marks on her head, including a “really dark mark” on the side of her face,
and a bruise by her eye that “look[ed] like somebody hit her.” Mother did not seek medical
attention for these significant injuries to L.R.B. until a day later after her friend A.G. and
her Perspectives case manager repeatedly urged her to take L.R.B. to the hospital. Mother
also told the child-protection investigator that she decided not to bring L.R.B. to daycare
the day after the incident because she was concerned that they were “going to call Child
Protection.” Mother’s Perspectives case manager testified that mother repeatedly
expressed her concern that she would lose her housing when her case manager encouraged
her to take L.R.B. to the hospital. Mother’s case manager at Perspectives further testified
that mother continued to have unauthorized visitors in her apartment following the
December 3 incident and brought unauthorized guests into her apartment during non-
visiting hours even though at the time mother was not authorized to have any visitors as a
13 result of the December 3 incidents. 5 These violations and the lease violations mentioned
above are especially concerning because mother’s failure to maintain stable housing was
an issue in her previous child-protection cases.
Finally, the child-protection investigator who interviewed mother following the
incident testified that it appeared that mother was protecting Neumiller because it seemed
like she knew his whereabouts, did not give them any information, and was not proactive
in the investigation. The investigator testified that this concerned her because she would
expect a mother to do her best to try to find the perpetrator who abused her child.
In sum, the record indicates that mother continues to make decisions which evidence
an inability to keep her child safe and provide for her needs, despite the many services she
has received during years of child-protection involvement.
Mother argues that the opinion of her social worker during the current child-
protection case is “suspect and dubious because of her inexperience and indisputable
confusion about her role in child protection proceedings.” Mother also contends that her
social worker was unable to work with her “in a professional manner” and otherwise lacked
the skill and capacity to assess parenting ability. However, the district court found
mother’s current social worker’s testimony credible. And this court gives that credibility
determination deference. See L.A.F., 554 N.W.2d at 396 (“Considerable deference is due
to the district court’s [TPR] decision because a district court is in a superior position to
assess the credibility of witnesses.”). Moreover, as noted above, there is evidence in the
5 Although mother was permitted to have her sisters visit her, her case manager testified that one of the authorized visitors was male.
14 record that mother has failed to demonstrate an ability to consistently provide for L.R.B.’s
needs, despite the many services she has received.
Clear and convincing evidence supports the district court’s findings regarding
mother’s child-protection history and failure to demonstrate insight, meaningful change,
and an inability to protect and care for L.R.B. despite the years of comprehensive services
she has received. Based on these findings, the district court’s determination that mother is
palpably unfit to be a party to the parent and child relationship is not an abuse of discretion.
Because the record clearly and convincingly establishes palpable unfitness as a ground for
termination under Minn. Stat. § 260C.301, subd. 1(b)(4), this court need not review the
four other statutory grounds on which the district court relied. See In re Children of T.A.A.,
702 N.W.2d 703, 708 (Minn. 2005) (“Only one ground must be proven for termination to
be ordered.”).
II.
A child’s best interests can preclude termination of a parent’s parental rights, even
if the district court rules that one or more of the statutory bases for terminating that parent’s
parental rights is present. D.L.D., 771 N.W.2d at 545. In making a finding regarding the
best interests of a child, courts must analyze (1) “the child’s interests in preserving the
parent-child relationship,” (2) “the parent’s interests in preserving the parent-child
relationship,” and (3) “any competing interests of the child.” Minn. R. Juv. Prot. P. 39.05,
subd. 3(b)(3). “Competing interests include such things as a stable environment, health
considerations and the child’s preferences.” In re Welfare of R.T.B., 492 N.W.2d 1, 4
(Minn. App. 1992). “Where the interests of parent and child conflict, the interests of the
15 child are paramount.” Minn. Stat. § 260C.301, subd. 7. This court reviews a district court’s
determination that termination is in a child’s best interest for an abuse of discretion. In re
Welfare of Children of J.R.B., 805 N.W.2d 895, 905 (Minn. App. 2011), review denied
(Minn. Jan. 17, 2012).
Mother argues that the district court “erred in determining termination was in the
best interests of L.R.B.” because mother “was not a lost cause as the court concluded, and
because of the presumption that a child is best parented by her natural parent.” Mother
contends that a less severe measure, such as continuing CHIPS jurisdiction, was more
appropriate than termination of parental rights.
The district court found that mother “truly loves her child” but “she has not
demonstrated during the case that she is willing or able to put her child’s interests above
her own in order to put herself in a position to keep her child and meet the child’s needs
within the foreseeable future.” The district court found that mother “continues to minimize
what happened to her child and her role in the child’s injuries” and that although mother
“has consistently stated that she is motivated to change throughout the case, that motivation
has not produced the necessary results.” The district court also found that “mother has
demonstrated minimal insight into the issues of the case and continues to make poor
decisions that jeopardize her housing and her long-term stability.”
The district court found that the “evidence is clear and convincing that [mother’s]
behaviors have negatively impacted her child and exposed her to harm” and that “the child
has a strong interest in a caregiver that can provide her with stability, keep her safe and
16 meet her needs.” The district court noted that L.R.B. is also young enough to attach to a
new long-term caregiver.
The district court expressly found that a continued CHIPS jurisdiction disposition
would not be in the best interests of the child. The district court reasoned that mother “has
been given every opportunity to show through services why it is in the child’s best interests
to maintain the relationship despite [the] harm” caused to the child and that mother “has
not given the Court a reason to believe that she is likely to adequately follow through with
addressing the issues of the case with more time.” The district court also noted that mother
has longstanding chemical dependency issues, has a “long track record of participating in
treatment programs and having some success only to subsequently relapse and fall back
into instability,” and that mother’s “reported period of sobriety remains quite short and she
continues to relapse.” The district court noted that mother has attended five different
treatment centers and that her most recent relapse was in the spring of 2016. The district
court found that mother has completed years of services from multiple providers, but
“[d]espite all the services she has received, she continues to ask for more making it unclear
if there are enough services to ever adequately address her issues that prevent her from
safely parenting.”
The district court reasoned that L.R.B. “deserves a caregiver that can provide her
with stability and consistent care for the rest of her childhood and into adulthood, and
allowing . . . mother more time will simply result in more instability for the child and
unnecessarily delay permanency.” The district court therefore concluded that it was in the
best interests of L.R.B. to terminate mother’s parental rights.
17 The district court’s best-interests findings are supported by the record, and its best-
interests analysis is thorough. L.R.B. needs a parent who can provide her with stability,
keep her safe, and ensure that her needs are met. It is clear that mother loves L.R.B. But
the record indicates that at the time of trial, mother had not demonstrated an ability to
protect L.R.B., provide L.R.B. a safe environment, and put L.R.B.’s interests above her
own. And the record demonstrates that mother is unlikely to make the change necessary
to ensure that she can consistently protect L.R.B., provide L.R.B. a safe environment, and
put L.R.B.’s interests above her own in the reasonably foreseeable future. The district
court did not abuse its discretion in determining that terminating mother’s parental rights
to L.R.B., rather than continuing CHIPS jurisdiction, is in the best interest of the child.
Affirmed.