In re Matter of Welfare of Children of A.D.B.

• Decision Date: 14 February 2022
• Docket Number: A21-0978
• Citation: 970 N.W.2d 725
• Parties: In the MATTER OF the WELFARE OF the CHILDREN OF: A.D.B. f/k/a A.D.H. (Mother) and D.M.D. (Father), Parents.
• Court: Minnesota Court of Appeals

970 N.W.2d 725

In the MATTER OF the WELFARE OF the CHILDREN OF: A.D.B. f/k/a A.D.H. (Mother) and D.M.D. (Father), Parents.

A21-0978

Court of Appeals of Minnesota.

Filed February 14, 2022

Jennifer L. Thompson, JLT Law & Mediation, Litchfield, Minnesota (for appellant father)

Janelle P. Kendall, Stearns County Attorney, Patrick M. Moen, Assistant Stearns County Attorney, St. Cloud, Minnesota (for respondent county)

Kimberly Stommes, Stommes Law Office, LLC, St. Cloud, Minnesota (for respondent mother)

Stephanie Schwegel, Sauk Rapids, Minnesota (guardian ad litem)

Considered and decided by Jesson, Presiding Judge; Bryan, Judge; and John Smith, Judge.^*

BRYAN, Judge

Appellant appeals from a termination of his parental rights, challenging the district court's after-the-fact determination that future reunification efforts would be futile. We conclude that, given the uncontested facts of this case, the district court abused its discretion when it made a determination of futility after trial.¹ Accordingly, we reverse and remand.

FACTS

Appellant, D.D. (father), and respondent, A.B. (mother), are the parents of one child, T.M.D., born in May 2015 (the child). In March 2020, respondent Stearns County Human Services (the agency) began child protection proceedings against mother after she gave birth to the child's half-sibling, who tested positive for three controlled substances and for alcohol. The child and three of his half-siblings were placed into emergency relative foster care, where they remained throughout the proceedings. Father was a participant in those child protection proceedings but was never made a party to those proceedings and no case plan was developed for him.

In January 2021, the agency began termination proceedings against both mother and father. The termination petition does not distinguish between father and mother, requesting termination of "[a]ll rights of the parents to the children" on each of the following three statutory bases: (1) palpable unfitness, pursuant to Minnesota Statutes section 260C.301, subdivision 1(b)(4) (2020) ; (2) failure to correct the conditions leading to placement, pursuant to section 260C.301, subdivision 1(b)(5) (2020) ; and (3) neglect, pursuant to section 260C.301, subdivision 1(b)(8) (2020). The affidavit accompanying the petition focuses overwhelmingly on mother's conduct. The affidavit does include some allegations regarding father, such as a description of his criminal history and a statement that father is currently incarcerated for a felony stalking conviction involving mother,² that he will be released on October 24, 2022, and that an ex parte protective order prohibits father from contacting mother and the child until its expiration in November 2021. The affidavit contains no statements about any efforts to reunite the child with father and instead describes efforts and services related to the child and to mother. This description of the agency's efforts to reunite mother and the child occupies more than 10 pages and 90 paragraphs of the affidavit accompanying the agency's petition. The affidavit closes with a conclusory statement regarding the futility of provided services to the parents, but it does not distinguish between mother and father and does not request that the district court determine whether the facts in the affidavit establish a prima facie case of futility.

The case proceeded to trial in June 2021. At no point prior to trial did the agency request that the district court issue an order relieving the agency of its statutory obligation to develop a case plan for father or its statutory obligation to make reasonable efforts to reunite father and the child. In addition, prior to trial, the district court did not make any determination regarding whether the termination petition or the affidavit accompanying it stated a prima facie case that reunification efforts would be futile.

As it relates to father, the evidence presented at trial indicates that the agency did not contact father, did not engage with him, did not provide any services to him, did not conduct any type of assessments, and did not develop a case plan for him. One social worker testified to "[n]ot really" working with father over the course of the case. The other social worker testified that she had "not been able to make contact with him" prior to trial. This social worker explained that she called the prison one week before trial but had not yet made any direct contact with father's case manager. The guardian ad litem testified that she had not had any contact with father. There is no evidence regarding what services might be available to father while incarcerated.

At the conclusion of the trial, the agency made written closing arguments and proposed findings of fact and conclusions of law. The overwhelming majority of arguments and proposed findings and conclusions relate to mother, not father. Importantly, the agency's posttrial submissions contain no argument that efforts to reunite the father and the child would have been futile. Nor do they include any proposed findings of fact or conclusions of law regarding the futility of reunification efforts. Instead, the agency argued that clear and convincing evidence presented at trial established that it made actual reunification efforts, and that those efforts were reasonable.

After trial, the district court terminated the parental rights of both mother and father. Regarding mother, the district court determined that the agency presented clear and convincing evidence that reasonable efforts failed to correct the conditions leading to the child's placement out of the home pursuant to section 260C.301, subdivision 1(b)(5). Regarding father, the district court concluded that the agency presented clear and convincing evidence that the child was neglected and in foster care pursuant to section 260C.301, subdivision 1(b)(8).

The district court made extensive findings regarding mother but only devoted a few paragraphs to addressing father. Among other findings, the district court determined that father "is interested in parenting the child when he is released [from prison]" and that father "believes that he could be a loving, supportive father to the child." The district court also analyzed the seven statutory factors regarding neglect, including the factors relating to "the use of rehabilitative services offered to the parent," "the appropriateness and adequacy of services provided or offered to the parent to facilitate a reunion," the likelihood that additional services could enable "a return of the child to the parent within an ascertainable period of time," whether these additional services "have been offered to the parent, or if services were not offered, the reasons they were not offered," and "the nature of the efforts made by [the agency] ... and whether the efforts were reasonable." Minn. Stat. § 260C.163, subds. 9(2), (5), (6), (7) (2020). In its analysis of these factors, the district court concluded that the agency made no reunification efforts and provided no services to father but determined that the agency's failure to do so was reasonable, given the existence of a protective order³ and due to father's incarceration:

The lack of services provided to [father] to facilitate reunification were appropriate given that [father] is currently incarcerated, where services are limited, and is ordered not to have contact with the child for the child's safety. [Father] is incarcerated until 2024 and while that cannot be the basis for termination, it does make the services offered to [father] reasonable.

The district court also concluded that because of father's "history of violating the protective orders protecting the child and the child's mother ... additional services would not be likely to bring about lasting parental adjustment enabling the child's return." Father appeals.

ISSUE

Did the district court abuse its discretion when it made a posttrial determination that making reasonable efforts to reunite the father and the child would be futile?

ANALYSIS

Father challenges the district court's posttrial determination of futility, arguing that the district court abused its discretion.⁴ We agree that the decision is against logic and amounts to an abuse of discretion for the following three reasons: (1) father had an ascertainable date of release that was to occur in the near future; (2) the agency failed to identify potential services that might be suitable and available to father while incarcerated; and (3) the futility determination was not requested by the agency, was not limited to the facts in the agency's termination petition, and occurred after the agency had decided on its own to cease reunification efforts.

Generally, to terminate a person's parental rights, the district court must determine that clear and convincing evidence establishes each of the following three elements: (1) the existence of at least one statutory basis for termination; (2) termination is in the child's best interests; and (3) the social services agency made reasonable efforts to reunite the family. In re Welfare of Children of T.A.A. , 702 N.W.2d 703, 708 (Minn. 2005) ; see also , In re Welfare of Child of A.M.C. , 920 N.W.2d 648, 655 (Minn. App. 2018) (stating that, in the context of children who are not Indigenous Americans, "the petitioner must show clear and convincing evidence that reasonable efforts were made to reunite the parent with the child."). "Reasonable efforts are made upon the exercise of due diligence by the responsible social services agency to use culturally appropriate and available services to meet the needs of the child and the child's family." Minn. Stat. § 260.012(f) (2020). A determination of reasonable efforts also requires the district court to consider whether services to the child and the family were relevant to the safety and protection of the child, available and accessible, consistent and timely, and realistic under the circumstances. In re...