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In re J. L. G.

STATE OF MINNESOTA IN COURT OF APPEALS
Mar 5, 2018
A17-1323 (Minn. Ct. App. Mar. 5, 2018)

Opinion

A17-1323 A17-1336

03-05-2018

In the Matter of the Welfare of the Children of: J. L. G., D. M. and J. T. B., Parents (A17-1323), In the Matter of the Welfare of the Children of: J. L. G., D. M. and J. T. B., Parents (A17-1336)

Gretchen R. Severin, Munstenteiger & Severin, P.A., Anoka, Minnesota (for appellant father J.T.B.) Christian R. Peterson, Clarice R. Scarnecchia, Christian R. Peterson Law Office, Anoka, Minnesota (for appellant mother J.L.G.) Anthony C. Palumbo, Anoka County Attorney, Kathryn M. Timm, Assistant County Attorney, Anoka, Minnesota (for respondent Anoka County Social Services) Virginia Murphrey, Tenth District Public Defender, Kenneth Dee, Assistant Public Defender, Anoka, Minnesota (for respondent child G.G.) Susan Drabek, Circle Pines, Minnesota (for respondent father D.M.) Sara McKlugell, Ramsey, Minnesota (guardian ad litem)


This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2016). Affirmed
Larkin, Judge Anoka County District Court
File Nos. 02-JV-16-1008, 02-JV-16-1007 Gretchen R. Severin, Munstenteiger & Severin, P.A., Anoka, Minnesota (for appellant father J.T.B.) Christian R. Peterson, Clarice R. Scarnecchia, Christian R. Peterson Law Office, Anoka, Minnesota (for appellant mother J.L.G.) Anthony C. Palumbo, Anoka County Attorney, Kathryn M. Timm, Assistant County Attorney, Anoka, Minnesota (for respondent Anoka County Social Services) Virginia Murphrey, Tenth District Public Defender, Kenneth Dee, Assistant Public Defender, Anoka, Minnesota (for respondent child G.G.) Susan Drabek, Circle Pines, Minnesota (for respondent father D.M.) Sara McKlugell, Ramsey, Minnesota (guardian ad litem) Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Florey, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

In this consolidated appeal, appellant-mother challenges the district court's order terminating her parental rights to her three youngest children and transferring permanent legal and physical custody of her oldest child to the child's father. Appellant-father challenges the district court's order terminating his parental rights to the three children he has in common with mother. We affirm.

FACTS

This appeal stems from the termination of appellant-mother, J.L.G.'s, and appellant-father, J.T.B.'s, parental rights to their three children, M.B. (born in 2012), C.B. (born in 2013), and F.B. (born in 2014), as well as the involuntary transfer of legal and physical custody of mother's oldest child, G.G. (born in 2007), to G.G.'s father, D.M.

On August 13, 2015, police officers conducted a welfare check at mother and father's home after receiving reports that two naked toddlers, M.B. and C.B., were unsupervised and fighting in the neighborhood. The officers located father in the home; he was passed out due to a suspected methamphetamine high. The officers also found an unsupervised infant, F.B., inside the home. Mother was not home. She did not return until later that night because she was out using illegal narcotics.

Respondent Anoka County Social Services (county) placed M.B., C.B., and F.B. in emergency protective care. Mother's oldest child, G.G., had been residing in the home with father and mother, but was visiting her biological father, D.M., at the time of the welfare check. The county temporarily placed G.G. with D.M. The county filed a petition alleging that the children were children in need of protection or services (CHIPS). The district court held an emergency-protective-care hearing and continued the three youngest children in nonrelative foster care, as well as G.G.'s placement with D.M.

More than a year after the children were placed out of home, the county petitioned to terminate mother's and father's parental rights to M.B., C.B., and F.B., alleging the following statutory grounds in support of termination: (1) the parents had failed to substantially comply with the duties of the parent-child relationship; (2) reasonable efforts had failed to correct the conditions leading to the children's out-of-home placement; and (3) the children were neglected and in foster care. Minn. Stat. § 260C.301, subd. 1 (b)(2), (b)(5), (b)(8) (2016). The county also filed a permanency petition seeking to transfer permanent legal and physical custody of G.G. from mother to D.M. Father and mother denied the termination of parental rights (TPR) petition, and mother denied the transfer of legal custody (TLC) petition.

The TPR and TLC petitions were tried over six days in the spring and summer of 2017. The county presented testimony from 12 witnesses and introduced over 250 exhibits. Mother called two witnesses and introduced one exhibit. Father testified on his own behalf and introduced several exhibits, but he did not call any witnesses. The district court granted the county's petitions and made extensive factual findings in support of its order for TPR and TLC. The relevant circumstances follow.

As to the children, M.B. and C.B. were placed together in the same foster home. After their placement, school-district evaluators determined that M.B. and C.B. qualified for special-educational services because they both had developmental and communication delays. The evaluators also determined that M.B. qualified for special-educational services based on an Autism Spectrum Disorder diagnosis. Because of M.B.'s developmental delays, he needs a high level of adult supervision to perform tasks and activities normally expected of children his age.

Initially, M.B. and C.B. exhibited aggressive behavior such as hitting their heads against the floor, hitting each other, and hitting and kicking their foster parent. M.B.'s and C.B.'s behavior improved dramatically during their foster-care placement, and the attendant structure, routine, and nonphysical discipline caused them to be less aggressive and to follow the rules in the foster home. However, M.B.'s and C.B.'s foster parent reported they often reverted to negative behavior for a few days after visits with mother.

When F.B. entered foster care, she was completely nonverbal and typically stayed awake late into the night. She also screamed frequently to get her needs met. After several months in foster care, she screamed less and had improved sleep. She also began to develop verbal and motor skills. However, F.B.'s foster parent testified that F.B. reverted to negative behaviors such as aggression and combativeness after visits with mother.

After G.G. was placed with D.M., she developed a strong and loving bond with him. G.G. also bonded with D.M.'s fiancée and her younger half-siblings in D.M.'s home. G.G. experienced routine and consistency in D.M.'s home and began to excel in school. A county social worker testified that when she visited G.G., G.G. was very excited to tell her about all of the good things in G.G.'s life. The social worker also testified that she believed G.G. was in a healthier environment because G.G. does not have to worry about her caregiver's mood or whether her caregiver will be attentive to her needs.

As to mother and father, the district court found that they had been addicted to various drugs since they were teenagers and that their drug use continued during the underlying child-protection case. Although mother had demonstrated recent sobriety at the time of trial, her longest period of sobriety was for two years, before the CHIPS case opened. Although father had documented seven months of sobriety at the time of trial, father's longest period of sobriety was for a year and a half and occurred more than a decade before the start of the trial. Mother and father each had mental-health issues and each had been diagnosed with post-traumatic stress disorder. Mother suffered from severe mood dysregulation, which, according to witnesses at the trial, makes safe parenting impossible without successful completion of treatment.

Mother and father have an extensive history of domestic violence, and the children were exposed to it on a regular basis. Domestic violence had destabilized the family, but mother and father had not adequately invested themselves in therapy to address their volatile relationship, the violence that had occurred, and the trauma that the violence had created for the children. The district court credited the testimony of the children's guardian ad litem (GAL) who opined that the children would not be protected from exposure to domestic violence if they were returned to either mother's or father's care.

Mother and father did not immediately engage in caseplan services that had been ordered in the child-protection case. Father acknowledged that he did not follow through with any of the services for at least 15 months after the children were placed out of home and that he continued to use drugs during that time. Mother intermittently engaged in caseplan services, including a restorative-parenting class and a domestic-violence survivors group. She also started dialectical behavior therapy (DBT) near the time of trial and had participated in DBT earlier in the case.

Mother tested positive for drug use while the case was pending and missed several drug tests. Moreover, the district court found that mother "ha[d] been deceitful to medical professionals, service providers, the county, the GAL, and [the district court] about her use of substances, [and] her progress in programming." Multiple doctors expressed concern about mother's drug-seeking behavior, and the district court noted that as recently as a month before trial, mother had continued to use prescribed opiates. Although those drugs were prescribed, the district court found that given mother's extensive history of drug abuse, her extensive number of emergency room visits, and the cancellation of prior prescriptions by multiple doctors based on their concerns regarding mother's past drug addictions and abuse, mother's continued use of legally prescribed opiates was both suspicious and dangerous.

The district court found that mother coerced G.G. into making false allegations of sexual abuse against her father and consistently subjected G.G. to negative and demeaning comments about her father and his family. The district court also found that several witnesses credibly testified that the children often reverted to negative behaviors after visits with mother and that mother's comfort level during her supervised visits had not significantly improved.

At the time of trial, neither parent had safe and independent housing that would have allowed them to protect and provide for the children. Father lived at a sober-living facility that did not allow children, and he did not have a scheduled release date from that facility. Father did not have a job or driver's license, and he previously had a difficult time assimilating to life on his own without the use of chemicals. Mother lived with her own mother, who had been unable to prevent the children from being exposed to domestic abuse and drug abuse in the past.

The district court found that the county had made reasonable efforts to reunify the family by providing numerous services reasonably aimed at correcting mother's and father's mental-health, chemical-dependency, and domestic-abuse issues. The following services were offered to mother: a chemical-dependency evaluation, chemical-dependency treatment, a neuropsychological evaluation, eye movement desensitization and reprocessing (EMDR) trauma therapy, DBT, a domestic-violence survivor group, and a restorative-parenting class. The following services were offered to father: a chemical-dependency evaluation, chemical-dependency treatment, domestic-violence classes, and EMDR trauma therapy. In addition, the parents were encouraged to participate in the children's services.

As to D.M., the district court found that he had developed a strong and loving bond with G.G., and had become a stabilizing force in her life. The district court also found that D.M. had followed the county's caseplan and the court's orders for nearly two years, had acted responsibly when disciplinary issues came up, and had been an attentive caretaker to his daughter.

The district court credited the testimony of a county social worker and the children's GAL that it was in the children's best interests to terminate mother's and father's parental rights to M.B., C.B., and F.B. and that it was in G.G.'s best interests to permanently transfer her physical and legal custody from mother to D.M. It also credited the GAL's testimony that neither mother nor father would be able to protect the children from exposure to domestic violence and that the children's behaviors and development drastically improved after they were removed from their mother's and father's care. The district court noted that all of the children had positively bonded with their new caregivers, which had led to much needed stability in their lives.

The district court determined that the county had proved its petitions for TPR and TLC. It provided multiple conclusions in support of its determination. Examples follow.

8. MB, CB and FB were consistently emotionally dysregulated while in the primary care of [mother] and [father]. Additionally, MB and CB have special needs which were neglected while they were in the care of [mother] and [father].

9. During the pendency of these cases, neither [mother] nor [father] have demonstrated the development of skills necessary to provide MB, CB, or FB with the care and control necessary for their health and success. [Mother] has continued to demonstrate the emotional dysregulation that began this case, and led her to leave her children without proper care for substantial periods of time. During visits with her children, she has pulled away from them emotionally and has shown that she is unable to control their violent behaviors towards each other and towards herself. This has caused the children emotional distress. [Mother] has not engaged with her children's special services.

10. Nearly 17 months after the children were placed outside the home, [mother] suffered a mental health crisis that caused her to stay in bed for three weeks. The Court recognizes that [mother] has had a difficult life and experienced many traumatic events. While it is understandable that she would have significant mental health issues stemming from these traumas, she is not able to effectively parent when she is in crisis, and she has demonstrated that she is not able to
effectively utilize support services to work through these crises.

11. The expert testimony presented at trial establishes that [mother] has not been able to develop the appropriate skills and coping mechanisms necessary to effectively provide for the mental and emotional health and the development of her children. Because [mother] was not successful in completing DBT, she will have to begin that process again, which will take approximately a year. She will not be able to begin to directly address the trauma in her past until that course of treatment is completed.

12. [Mother's] work on her sobriety is commendable. However, she remains at significant risk to use chemicals as a coping mechanism for her trauma until that trauma is sufficiently addressed and treated.

13. [Mother's] children have been exposed to serious domestic violence in her home in the past. [Mother] has not shown a sufficient commitment to ensuring that her children never experience such traumatic abuse again. She has repeatedly demonstrated that she is still stuck in a cycle of abuse, as she has continued to pursue a relationship with [father] despite the toxic nature of their relationship and the rampant abuse present, as well as the existence of a Harassment Restraining Order and other impediments. [Mother's] participation in domestic abuse-related services has not yielded much progress.

14. [Father] is also to be commended for his efforts at sobriety, as well as his recent participation in other services. However, [father] is only at the beginning of a very long journey to understand and treat his issues with trauma, chemical dependency, anger and domestic abuse. [Father's] continued sobriety will hinge on the success of his mental health treatment.

15. [Father] has only recently begun to resume contact and maintain a presence in his children's lives. For the majority of time during these cases, [father] was not present in the lives of his children. Since the resumption of visits with his children this year, [father] has had difficulty engaging with
the children. This has led to anger on the part of [father], and aggressive behaviors and emotional dysregulation on the part of his children. [Father] has also not engaged in his children's special services.

....

30. The Court does not discount the interest of the parents in preserving a relationship with MB, CB, and FB. [Mother] and [father] have both made commendable strides in sobriety and in working towards stabilizing their mental and emotional health. However, neither parent is yet in a position to be able to effectively parent their children, and will not be in such a position for a very long time. Both [mother] and [father] have a lot of work to do, and need to continue to focus on accessing the services they need to process their trauma and maintain sobriety. They have not yet demonstrated the ability to provide the stability that their children need.

31. MB, CB, and FB have developed strong, healthy bonds with their caretakers. It would not be in their best interests to return them to parents who still have much work to do in processing their own childhood traumas.

32. Both parents involved have significant work to do in achieving mental and chemical health. The Court does not believe it would be in the best interests of the children to terminate the parental rights of solely [mother] or [father]. Both parents should continue to seek therapy, domestic abuse programming and other services to help achieve health and stability.

Mother and father separately appealed the district court's order, and this court consolidated their appeals.

DECISION

Before we address the parents' assignments of error, we note the principles that govern our review. As an appellate court, our purpose is to correct errors, and not to retry the case. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 68 n.2 (Minn. 1979). Accordingly, we do not reweigh evidence or determine witness credibility. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that it is not the appellate court's function to reweigh evidence, find facts, or assess credibility); see also In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (giving the district court's credibility determinations deference in the juvenile protection context). Because a district court is in a far superior position to determine the credibility of witnesses, we give such determinations considerable deference. L.A.F., 554 N.W.2d at 396.

Many of mother's and father's arguments fail to recognize one or more of these principles. We therefore do not address those arguments. Instead, we focus our review on the arguments that raise issues that are appropriate for appellate review.

I.

Minnesota courts presume that "a natural parent is a fit and suitable person to be entrusted with the care of his or her child." In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995). Generally, "it is in the best interest of a child to be in the custody of his or her natural parents." Id. Thus, Minnesota courts will only terminate parental rights for "grave and weighty reasons." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). Petitioners bear "the burden of producing clear and convincing evidence that [a] statutory termination ground[] exists" in a TPR proceeding. In re Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988). A district court's decision in a TPR proceeding must be based on evidence concerning the conditions that exist at the time of the trial. In re Welfare of Child of T.D., 731 N.W.2d 548, 554 (Minn. App. 2007), review denied (Minn. July 17, 2007). Termination of parental rights is intended for those situations in which it appears "that the present conditions of neglect will continue for a prolonged, indeterminate period." In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

There are nine statutory grounds for terminating parental rights. See Minn. Stat. § 260C.301, subd. 1(b) (2016). In a TPR appeal, an appellate court examines the record to determine whether the district court applied the appropriate statutory criteria and made findings that were not clearly erroneous. In re Welfare of D.L.R.D., 656 N.W.2d 247, 249 (Minn. App. 2003). We give the district court's credibility determinations and factual findings considerable deference. See In re Welfare of Children of T.R., 750 N.W.2d 656, 660-61 (Minn. 2008) (stating that appellate courts will defer to the district court's factual findings so long as they address the statutory criteria and are not clearly erroneous); L.A.F., 554 N.W.2d at 396. An appellate court reviews the district court's ultimate decision to terminate parental rights for an abuse of discretion. In re Welfare of Child of R.D.L., 853 N.W.2d 127, 136-37 (Minn. 2014). We will affirm the district court's decision to terminate parental rights if at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the best interests of the child, In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004), so long as the county has made reasonable efforts to reunite the family, In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005).

Regarding a district court's assessment of a child's best interests, this court has stated that

the best interests of the child must be the paramount consideration in deciding whether to actually terminate parental rights, and, if there is a conflict between the interests
of a parent and a child, the interests of the child are paramount. In analyzing a child's best interests, the court must balance three factors: (1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child. Competing interests include such things as a stable environment, health considerations and the child's preferences.
In re Welfare of Children of J.R.B., 805 N.W.2d 895, 905 (Minn. App. 2011) (quotations omitted), review denied (Minn. Jan. 6, 2012).

In determining whether the county made reasonable efforts, the court must consider whether it offered services that were "(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances." Minn. Stat. § 260.012(h) (2016). It must also consider "the length of the time the county was involved and the quality of effort given." In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990). The county's efforts must be aimed at alleviating the conditions that predicated the out-of-home placement, and the efforts must conform to the problems presented. In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996); H.K., 455 N.W.2d at 532.

We now turn to the parents' arguments in support of reversal.

Mother

Mother's arguments address the district court's factual findings and legal conclusions, the statutory grounds on which the district court relied, the county's reasonable efforts, and the children's best interests. The majority of her arguments invite us to assess witness credibility, reweigh evidence, and disregard supported factual findings. For example, mother argues: "[the district court's] conclusions were based off the testimony of witnesses with limited personal knowledge"; "being emotionally withdrawn . . . should not be weighed against her"; the testimony of the GAL and other witnesses' testimony that the children acted out was not sufficient to show mother had trouble controlling the children's behavior; although testimony establishes that mother had little to no involvement in the children's therapy sessions, it did not support a conclusion that she could not provide for her children's mental and emotional health; even though mother failed and missed drug tests throughout the case, the district court was wrong in concluding that chemical use provided a statutory ground for termination; and the district court erred in finding that the children were in danger because of mother's cycle of abuse, even though several experts testified to the contrary.

Although we evaluate the sufficiency of the evidence sustaining the termination order with the clear-and-convincing proof requirement in mind, our purpose is not to retry this case. We therefore do not consider arguments that invite us to do so, like those in the preceding paragraph. Instead, we focus on the following three arguments, which do more than simply challenge witness credibility and the district court's weighing of the evidence.

First, mother argues that the district court ignored evidence regarding the positive progress that she had made on her caseplan services and goals at the time of trial. Specifically, mother complains that the district court's findings are "completely void of ... testimony provided by [her therapist,] C.L.[,] stating that [she] was in DBT therapy and trauma therapy at the time of trial." Mother claims that she saw C.L. twice a week for DBT and trauma therapy and that C.L. testified that mother was progressing well in therapy. Mother argues that because she was making progress in DBT and trauma therapy, the district court improperly concluded that she was not in a position to be able to effectively parent her children and "will not be in such a position for a very long time."

C.L.'s testimony shows that mother restarted DBT the month the trial began and that it typically takes approximately one year to complete DBT. Multiple therapists testified that individuals typically complete DBT before trauma therapy. During direct-examination, C.L. testified that mother had started both DBT and EMDR trauma therapy. But on cross-examination, C.L. clarified that mother had only started DBT and that mother had not started EMDR trauma therapy. C.L. also testified that there was no projected completion date for mother's DBT and EMDR trauma therapy. Indeed, the evidence showed that it would likely take mother at least a year to complete treatment.

Although the district court's findings do not highlight mother's participation in therapy at the time of trial, the record refutes mother's assertion that she was successfully engaged in both DBT and EMDR trauma therapy. Instead, the record clearly and convincingly supports the district court's findings regarding the time it would take mother to complete treatment and her resulting inability to safely parent her children for a very long time.

Second, mother argues that the district court erred by focusing on factors other than her chemical use as grounds for termination because chemical use was the underlying reason for the children's out-of-home placement. Mother complains that the district court's termination decision heavily focused on her mental-health issues and that her mental-health issues were not the basis for the children's out-of-home placement. Mother asserts that "the direct reason why the children were taken into protective custody was because [she] left the home in order to use methamphetamines, not because she was emotionally unavailable or because of a domestic abuse incident" and that the district court's focus "should have been on whether [she] had accomplished a state of sobriety, to correct the situation of [her] leaving her children in order to use drugs."

Termination was based, in part, on Minn. Stat. § 260C.301, subd. 1(b)(2), which provides for termination when: "the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship . . . [and] reasonable efforts by the social services agency have failed to correct the conditions that formed the basis for the petition." (Emphasis added.) Termination was also based on Minn. Stat. § 260C.301, subd. 1(b)(5), which provides for termination when: "following the child's placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement." (Emphasis added.) Mother argues that this statutory language "suggests the focus is on the reason why the children were placed into foster care to begin with."

But this court has held, in an analogous context, that "[a district] court may find that a child cannot safely return home even though the factual bases for the conditions preventing the child's return home are not identical to the factual bases for the conditions that led to the child's out-of-home placement." In re Welfare of Child of D.L.D., 865 N.W.2d 315, 316-17 (Minn. App. 2015) (affirming child-protection permanency disposition transferring legal and physical custody of a child from a mother to a father), review denied (Minn. July 20, 2015); see Minn. Stat. § 260C.517(a)(4) (2016) (providing that an order permanently placing a child out of the home of the parent must include detailed findings that "the conditions which led to the out-of-home placement have not been corrected so that the child can safely return home").

Although the children's out-of-home placement was initially and primarily attributed to the parents' drug use, mother's mental-health and domestic-abuse issues were identified as factors compromising mother's ability to properly care for the children, and they were a focus of her caseplan. And although mother was newly sober at the time of trial, she still had unaddressed mental-health issues that contributed to her inability to care for her children. Because mental-health and domestic-violence issues were part of the constellation of issues that led to the children's placement, the district court did not err by considering those issues when determining that the statutory grounds for termination of parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2) and (b)(5), were established.

Third, mother argues that the county's reunification efforts were unreasonable because the county "refused to allow [her] more parenting time prior to trial" despite her progress on the caseplan. Although mother complains that the county did not increase her visitation, mother does not assert that she asked for increased visitation. We have previously rejected a parent's challenge to a reasonable-efforts determination based on denial of visitation where the parent did not contest the denial of visitation in district court. H.K., 455 N.W.2d at 533. Similarly, we are not persuaded that reunification efforts were unreasonable simply because the county did not offer to increase visitation on its own initiative prior to the start of the TPR trial.

Father

Father's arguments address the district court's factual findings and legal conclusions, the statutory grounds for termination, the county's reasonable efforts, and the best interests of the children. Many of these arguments invite us to reweigh evidence. Again, that is not our role. We therefore focus on the following two arguments, which raise appropriate appellate issues.

Father asserts that the county petitioned for termination under Minn. Stat. § 260C.301, subd. 1(b)(4) (2016), alleging that he is palpably unfit to be a party to the parent-child relationship. Neither the county's petition nor the district court's termination order was based on this statutory ground. We therefore do not address father's arguments regarding palpable unfitness. --------

First, father argues that the district court erred in concluding that he, like mother, needed to complete DBT before beginning trauma therapy. Specifically, the district court found, "Based on the testimony of the experts working with [mother], it would seem necessary for [father] to do so before he can successfully complete therapy with a counselor specially trained to deal with his history of trauma." Witnesses testified that it is common to recommend completion of DBT therapy before trauma therapy because DBT is a skill-based therapy that can commonly aid a participant in trauma therapy. Although the record supports an inference that father could benefit from DBT therapy, father correctly notes that there is no direct evidence that he needed to complete DBT to be successful in trauma therapy.

Even if a complaining party shows error, reversal is not automatic; the complaining party must also show that the error was prejudicial. See In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997) (noting that the complaining party did not show prejudice regarding alleged error). We review a district court's erroneous finding of fact under the harmless-error standard. See In re Welfare of Children of D.F., 752 N.W.2d 88, 98 (Minn. App. 2008) (applying harmless-error test to TPR cases). An error is harmless, and therefore not a basis for reversal, if "the [decision] is surely unattributable to the error." In re Welfare of T.J.C., 670 N.W.2d 629, 632 (Minn. App. 2003) (quotation omitted), review denied (Minn. Jan. 20, 2004).

Father acknowledges that for approximately the first year and a half of the child-protection case, he did not engage in caseplan services offered to reunify the family. He also acknowledges that he did not start having regular visits with his children until approximately one month before the TPR trial began and that he had problems managing the children's behavior during visits. Although father eventually engaged in caseplan services, at the time of trial, he did not have a discharge date from his sober-living facility, a job, or a driver's license; he had not participated in the children's programming since they were removed from his care; and he had not developed the skills necessary to provide for the special needs of the children. When the challenged DBT finding is considered in the context of the entire record and the multiple findings supporting the district court's TPR order, it is clear that the termination order does not significantly depend on the challenged DBT finding. Because the termination order is surely unattributable to the assigned error, the error is harmless.

Second, father argues that the county's reunification efforts were not reasonable because the county "failed to offer appropriate services . . . to assist him in learning the appropriate parenting skills he would need to parent [the] three children with their special needs." Father argues that the services provided only addressed his issues such as chemical dependency, mental health, and domestic abuse.

However, father concedes that from August 13, 2015 to March 2017, he "shouldn't have been around [his] children," because of his continuing drug abuse and frequent incidents of domestic violence. The record clearly shows that before father could spend quality time with his children, he needed to work through his chemical-addiction and mental-health issues. Initiation of that process was delayed by father, and not the county.

Once father made some progress on his caseplan services and began visiting his children, the county recognized that a parenting-skills worker would be helpful. But the county did not make a referral for that service until three months after visits had started, and as the trial was ending. The district court noted that father "expressed frustration that [the county] was not able to arrange several services for him in 2017." But the district court reasoned, "Context is again important in assessing reasonableness. [Father] wanted the services he identified when he wanted them, although he had failed to take advantage of reasonable services throughout the pendency of the CHIPS case."

As to context, although the three-month delay in the referral is unfortunate, we cannot overlook father's preceding 18-month delay in starting his caseplan services. We are hard pressed to find error in the district court's reasonable-efforts determination based on the three-month service-referral delay when father did not participate in any services for the first 18 months of the caseplan and thereby failed to bring about the changes necessary to progress to the point of utilizing the services of a parenting-skills worker.

In sum, we recognize that each parent argues that the evidence does not support the statutory grounds on which termination was based. However, the majority of their arguments regarding the statutory grounds are not properly before this court because they invite us to assess witness credibility and reweigh the evidence. That is not our role. But we have reviewed the record with these arguments in mind, and with the exception of father's challenge to the district court's finding regarding his need for DBT treatment, the evidence provides clear and convincing support for the district court's thorough, thoughtful findings. And those findings clearly and convincingly establish all of the statutory termination grounds on which the district court relied. In addition, the findings show that reasonable efforts were made to reunify the family and that termination of parental rights is in the best interests of the three youngest children. The district court therefore did not abuse its discretion by terminating mother's and father's parental rights to M.B., C.B., and F.B.

II.

Mother challenges the district court's order transferring permanent legal and physical custody of G.G. to D.M. The district court has the authority to order a transfer of permanent legal and physical custody "to a fit and willing relative in the best interests of the child." Minn. Stat. § 260C.515, subd. 4 (2016).

Except for an order terminating parental rights, an order permanently placing a child out of the home of the parent or guardian must include the following detailed findings:
(1) how the child's best interests are served by the order;
(2) the nature and extent of the responsible social services agency's reasonable efforts or, in the case of an Indian
child, active efforts to reunify the child with the parent or guardian where reasonable efforts are required;
(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.
Minn. Stat. § 260C.517(a) (2016); accord Minn. R. Juv. Prot. P. 42.05, subd. 1. Each of these four findings must be proven by clear and convincing evidence. See Minn. R. Juv. Prot. P. 39.04, subd. 2(a) ("[I]n a termination of parental rights or other permanency matter involving a non-Indian child, the standard of proof is clear and convincing evidence.").

In challenging the TLC order regarding G.G., mother repeats many of the same arguments on which she relied in asserting that the district court erred in terminating her parental rights to her three youngest children. She again wants this court to reweigh evidence, which we cannot do. Moreover, she wants this court to discount the district court's finding that both G.G.'s social worker and GAL credibly testified that it was in G.G.'s best interest to transfer her legal and physical custody to her father because she had developed a strong bond with her father, her father's fiancée, and her younger half-siblings, and because her father was attentive to her needs and development.

Based on our review of the record and deference to the district court's weighing of the evidence, we do not discern error justifying reversal of the district court's transfer of legal and physical custody of G.G. to D.M.

Affirmed.


Summaries of

In re J. L. G.

STATE OF MINNESOTA IN COURT OF APPEALS
Mar 5, 2018
A17-1323 (Minn. Ct. App. Mar. 5, 2018)
Case details for

In re J. L. G.

Case Details

Full title:In the Matter of the Welfare of the Children of: J. L. G., D. M. and J. T…

Court:STATE OF MINNESOTA IN COURT OF APPEALS

Date published: Mar 5, 2018

Citations

A17-1323 (Minn. Ct. App. Mar. 5, 2018)