                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2016).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-1430

                In the Matter of the Welfare of the Child of: C. A. P., Parent.

                                   Filed February 6, 2017
                                          Affirmed
                                        Reilly, Judge

                               Hennepin County District Court
                                  File No. 27-JV-16-1631

Mary F. Moriarty, Fourth District Public Defender, David W. Merchant, Assistant Public
Defender, Minneapolis, Minnesota (for appellant C.A.P.)

Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and
Public Health Department)

Michael J. Biglow, Minneapolis, Minnesota (for respondent guardian ad litem)

         Considered and decided by Kirk, Presiding Judge; Reilly, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

         Appellant asks us to reverse the termination of her parental rights to her child,

arguing that the district court erred in determining that appellant failed to rebut the statutory

presumption that she is palpably unfit to parent and in finding that termination of

appellant’s parental rights is in the best interests of her child. We reject appellant’s

arguments and affirm.
                                         FACTS

      As relevant to this appeal, appellant C.A.P. has given birth to three children: A.H.,

born in 2011; K.H., born in 2013; and T.P., born in 2016. On August 8, 2013, A.H. and

K.H. were adjudicated children in need of protection or services (CHIPS) because their

“behavior, condition, or environment [wa]s such as to be injurious or dangerous to [them]

or others.” See Minn. Stat. § 260C.007, subd. 6 (2012) (defining “[c]hild in need of

protection or services).” The CHIPS order incorporated C.A.P.’s admission of “ongoing

violence” with R.H., the adjudicated father of A.H. and K.H. Specifically, C.A.P. admitted

that “[R.H.] has physically abused both [A.H. and K.H.] and choked her on at least one

occasion in the presence of [A.H. and K.H.].” The CHIPS order also set forth C.A.P.’s

case plan, which required her to, among other things,

             [p]articipate in domestic abuse programming and follow all
             recommendations; . . . [c]omplete a parenting assessment and
             follow all recommendations; . . . [m]aintain and cooperate with
             Order for Protection against [R.H.]; . . . [m]aintain safe and
             suitable housing, free of any domestic or physical violence; . . .
             [and] [c]ooperate with child protection social worker.

      To implement that case plan, respondent Hennepin County Human Services and

Public Health Department (the county) provided C.A.P. with services including a parenting

assessment and parenting education, domestic-violence programming, and individual

therapy. C.A.P. accepted and participated in the offered services; successfully completed

the parenting assessment, parenting education, and domestic-violence programming;

obtained an order for protection (OFP) against R.H. and reported having no contact with




                                             2
R.H.; and otherwise appeared to fully comply with her case plan. In actuality, C.A.P.

continued to have contact with R.H., and at some point R.H. and C.A.P. began cohabitating.

       Unaware of R.H.’s presence in C.A.P.’s home and believing C.A.P. to be in

compliance with her case plan, the county resolved the child-protection matter and returned

A.H. and K.H. to C.A.P.’s care in or around April 2014. On December 9 of the same year,

in the presence of C.A.P. and three-year-old A.H., R.H. repeatedly punched two-year-old

K.H. in the chest, killing him.1 Immediately following K.H.’s murder, A.H. was found to

have scars, “significant scabbing and bruising,” and other evidence of physical abuse,

neglect, and malnutrition. Three days after K.H.’s murder, the county petitioned for

involuntary termination of C.A.P.’s parental rights to A.H.

       On April 27, 2015, following a trial, C.A.P.’s parental rights to A.H. were

terminated on the statutory ground that A.H. and K.H. suffered egregious harm in C.A.P.’s

care. In support of its egregious-harm finding, the district court found:

              [C.A.P.] knew of the grave danger both [A.H. and K.H.] were
              in if [R.H.] was allowed access to them. . . . Though she was
              all too aware of the danger posed by [R.H.], [C.A.P.] ignored
              it and defied the OFP, choosing instead to allow [R.H.] back
              into her home to reside with her and [A.H. and K.H.].
              Subsequently, [A.H.] was abused, neglected, and maltreated,
              and [K.H.] was killed.

And in support of its finding that termination of C.A.P.’s parental rights was in A.H.’s best

interests, the court found:




1
  On January 15, 2015, R.H. was convicted of the second-degree murder of K.H. and
sentenced to 480 months’ imprisonment.

                                             3
              [C.A.P.] has been provided services to address domestic
              violence, but she ultimately could not make a good decision for
              [A.H. and K.H.], instead continuing her relationship with
              [R.H.] and allowing him access to [A.H. and K.H.] even before
              her prior child protection case closed. She has demonstrated
              that she cannot make decisions to protect her children and keep
              them even minimally safe.

We affirmed this termination of parental rights (TPR) on November 9, 2015. In re Welfare

of Child of C.A.P., No. A15-0940, 2015 WL 6830202, at *1 (Minn. App. Nov. 9, 2015).

       Meanwhile, C.A.P. had a sexual relationship with L.T., whom she had “met . . .

online to ask for prayer” in or around May of 2015, and later determined that she was

pregnant with T.P. in or around June of 2015. C.A.P. subsequently learned that L.T. was

married, had served time in prison for burglary, and had “a domestic violence past.” C.A.P.

sought and received prenatal care and, about midway through her pregnancy, moved from

a homeless shelter to an “on-site housing program” that provides social services. C.A.P.

participated in services offered by the housing program, including goal setting, safety

planning, and parenting education, and she prepared for T.P.’s birth by obtaining items

such as furniture, clothing, and baby supplies.

       When T.P. was one day old, T.P. was placed on a hospital hold due to C.A.P.’s prior

TPR. C.A.P. declined to identify T.P.’s father to a county child-protection investigator;

C.A.P. instead informed the investigator that “[T.P.]’s conception had been the result of a

fling” and that “[T.P.]’s father was not going to be involved.” The county then petitioned

for involuntary termination of C.A.P.’s parental rights to T.P., alleging the statutory

grounds that C.A.P. “has substantially, continuously, or repeatedly refused or neglected to

comply with the duties imposed upon [her] by the parent and child relationship” and that


                                             4
C.A.P. “is palpably unfit to be a party to the parent and child relationship.” See Minn. Stat.

§ 260C.301, subd. 1(b) (2016) (listing statutory grounds for involuntary TPR).               On

March 24, C.A.P. identified T.P.’s father as L.T. Thereafter, C.A.P. sought individual

therapy to address “issues of domestic violence” and related issues.

       The district court conducted a trial on the 2016 TPR petition on June 21 and 29,

2016. At trial, the county first introduced evidence including the 2013 CHIPS order; the

2015 TPR order; and the testimony of the county child-protection investigator, the county

social worker assigned to the prior child-protection matter, and the county social worker

assigned to the current child-protection matter. C.A.P. then introduced evidence including

medical records regarding her pregnancy with, and delivery and postpartum care of, T.P.;

written statements from C.A.P.’s therapy providers; C.A.P.’s own testimony; and the

testimony of two employees of the housing program, a hospital social worker, and one of

C.A.P.’s therapy providers. Finally, the court heard testimony from T.P.’s guardian ad

litem (GAL), who also had served as the GAL for A.H. and K.H. in the prior child-

protection matter.

       In July 2016, the district court filed its findings of fact, conclusions of law, and order

terminating C.A.P.’s parental rights to T.P. on the sole statutory ground of palpable

unfitness to parent. The court denied C.A.P.’s subsequent motion for a new trial and/or

amended findings. C.A.P. now appeals.

                                       DECISION

       “[A]n involuntary termination of parental rights is proper only when at least one

statutory ground for termination is supported by clear and convincing evidence and the


                                               5
termination is in the child’s best interest.” In re Welfare of Child of R.D.L., 853 N.W.2d

127, 137 (Minn. 2014). Statutory grounds for termination include:

              that 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.

Minn. Stat. § 260C.301, subd. 1(b)(4) (2016).

                                               I.

       Ordinarily, “[a] natural parent is presumed to be suitable to be entrusted with the

care of his child and it is in the best interest of a child to be in the custody of his natural

parent.” R.D.L., 853 N.W.2d at 136 (quotation omitted).

              When, however, the government has, in an initial proceeding,
              overcome that presumption of fitness through clear and
              convincing evidence that a parent cannot be entrusted to care
              for his or her children, [a] statutory presumption of unfitness
              . . . relieves the government of its burden to again overcome
              the natural parent’s presumption of fitness . . . .

Id. (citation omitted). That is, “[i]t is presumed that a parent is palpably unfit to be a party

to the parent and child relationship upon a showing that the parent’s parental rights to one

or more other children were involuntarily terminated.” Minn. Stat. § 260C.301, subd.

1(b)(4).

       “This presumption is a rebuttable presumption.” In re Welfare of Child of J.W., 807

N.W.2d 441, 445 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012). “The statutory

presumption imposes on a parent the burden of going forward with evidence to rebut or


                                               6
meet the presumption.” Id. (quotations omitted). This presumption “does not shift to a

parent the burden of proof in the sense of the risk of nonpersuasion, which remains

throughout the trial upon the party on whom it was originally cast”—here, the county. Id.

(quotation omitted). Instead, “the statutory presumption shifts to a parent a burden of

production.” Id.

       “[T]o satisfy the burden of production and thereby rebut the presumption created by

section 260C.301, subdivision 1(b)(4), a parent must introduce evidence that would justify

a finding of fact that he or she is not palpably unfit.” Id. (quotation omitted); see also

R.D.L., 853 N.W.2d at 137 (expressly endorsing this language as “the appropriate

standard”). “This standard . . . is a much lower bar than the clear and convincing standard

shouldered by the County,” because “the parent needs to produce only enough evidence to

support a finding that the parent is suitable to be entrusted with the care of the child[].”

R.D.L., 853 N.W.2d at 137 (quotations omitted).         If a parent meets this burden of

production, the statutory presumption is rebutted and has “no further role” in the TPR

proceeding; “[t]he burden of persuasion remains with the county to prove, by clear and

convincing evidence, that specific conditions existing at the time of the hearing make [the

parent] palpably unfit to be a parent.” J.W., 807 N.W.2d at 447 (quotation omitted).

       “Whether a parent’s evidence satisfies the burden of production must be determined

on a case-by-case basis.” Id. at 446; see also R.D.L., 853 N.W.2d at 137. In determining

whether a parent’s evidence would justify a finding that she is not palpably unfit, a court

should credit and consider the evidence without weighing it against any contrary evidence.

See J.W., 807 N.W.2d at 443-44, 446-47 (summarizing parent’s evidence “that she has


                                             7
changed in significant and material ways since the prior TPR proceedings,” reasoning that

“[t]his evidence, if believed, would justify a finding contrary to the assumed fact that

[parent] is palpably unfit,” and concluding that parent rebutted statutory presumption of

unfitness, notwithstanding introduction of contrary evidence by county and GAL and

cross-examination of parent’s witnesses “that tended to limit the effect of their testimony”

(quotation omitted)). Therefore, when, in a proceeding to terminate parental rights, a

district court has addressed whether a parent has introduced sufficient evidence to rebut the

statutory presumption of unfitness arising from a prior termination, appellate courts review

that ruling de novo. See id. at 446 (“We apply a de novo standard of review to a district

court’s determination as to whether a parent’s evidence is capable of justifying a finding

in his or her favor at trial.”).

       In this case, C.A.P. argues that the district court’s palpable-unfitness finding was

based on an erroneous determination that C.A.P. failed to rebut the statutory presumption

of unfitness.2 In support of her argument, C.A.P. points to statements in the 2016 TPR

order that she has “failed to meet her burden of rebutting the presumption” and “has not

rebutted the presumption of palpable unfitness.” C.A.P. then recounts the evidence that

she introduced at the trial on the 2016 TPR petition and urges us to conclude that her

evidence is sufficient to rebut the presumption. But we need not determine whether

C.A.P.’s evidence is sufficient to rebut the presumption of unfitness to parent, because our



2
  In neither her proposed findings of fact and conclusions of law nor her motion for a new
trial and/or amended findings of fact did C.A.P. ask the district court to rule that her
production of evidence at trial rebutted the statutory presumption of palpable unfitness.

                                             8
close review of the 2016 TPR order and the surrounding record leads us to conclude that,

whether or not the district court believed that C.A.P. failed to rebut the presumption that

she was a palpably unfit parent, it unambiguously determined that C.A.P. was, in fact, a

palpably unfit parent.

       Before finding that C.A.P. is palpably unfit to parent, the district court expressly

found “credible in all respects” the county’s witnesses’ testimony that C.A.P. does not hold

herself accountable for what happened to A.H. and K.H., “is able to mask issues going on

in life,” and “can complete tasks without gaining insight.” The court credited the GAL’s

testimony that “she sees no changes in [C.A.P.’s] behaviors” and that C.A.P. “enters unsafe

situations” and “can[no]t put her children’s needs above her own.” By contrast, the court

expressly found C.A.P.’s testimony that “she has internalized the lessons from the last

case,” that “her mindset is different from the past case,” and that “she is able to exercise

better judgment” not credible, noting that C.A.P.’s “demeanor on the stand was that of

someone who had not truly improved her judgment or ability to be a fit parent.”

       The district court also found that C.A.P. “did not provide full candor to service

providers, the [county,] or the [GAL] regarding [T.P.’s father].” And the court found that

C.A.P. “had a more extensive period of engagement with [L.T.]” than she had

acknowledged, expressing concern about “the manner in which [C.A.P.] began and

continued a relationship with [L.T.]” Relatedly, the court found that C.A.P.’s “judgment

regarding her own safety has not improved.”         Finally, the court found that C.A.P.

“continues to be untruthful with service providers, puts her needs above her children’s

needs, and makes statements that merely reflect what she believes others want to hear.”


                                             9
       The above credibility and fact findings are supported by record evidence and are not

relevant to a parent’s burden to produce evidence which, “if believed, would justify a

finding contrary to the assumed fact” of parental unfitness. J.W., 807 N.W.2d at 447

(emphasis added) (quotation omitted). What is more, these findings support the district

court’s conclusion that “[t]here is clear and convincing evidence that [C.A.P.’s] parental

rights should be terminated under Minn. Stat. § 260C.301, subd. 1(b)(4), as [C.A.P.] is

palpably unfit to be a [party] to the parent and child relationship.” We therefore are

confident that the district court held the county to a burden of proof by clear and convincing

evidence that C.A.P. is, in fact, palpably unfit to parent and did not rely on the statutory

presumption in making its palpable-unfitness finding, notwithstanding its two statements

that C.A.P. failed to rebut the presumption.3 Cf. id. (“Having rested its decision on the

statutory presumption, the district court did not make any findings or conclusions as to

whether the county satisfied its burden of persuasion on the issue of palpable unfitness.”).

We reject C.A.P.’s argument to the contrary and do not disturb the district court’s finding

of palpable unfitness.


3
  We reiterate that whether a parent has met her burden of production to rebut a
presumption of palpable unfitness and whether the county has met its burden of persuasion
regarding whether a parent is, in fact, a palpably unfit parent, are legally distinct questions.
J.W., 807 N.W.2d at 447. A district court answers the former question by crediting the
parent’s evidence and, without weighing it against any contrary evidence, considering
whether that evidence could show the parent to be able to parent the child. A district court
answers the latter question by evaluating the credibility and probability of all the evidence.
See id. at 443-44, 446-47. As the above analysis demonstrates, a district court need not
determine whether a parent has met her burden of production if the county has met its
burden of persuasion. But we caution against any false equation, in form or in substance,
between a parent’s failure to rebut the statutory presumption and a county’s success in
meeting its burden of persuasion.

                                              10
                                              II.

       In any TPR proceeding, “the best interests of the child must be the paramount

consideration.” Minn. Stat. § 260C.301, subd. 7 (2016). Accordingly, “termination based

solely on a statutory presumption is improper. The juvenile court also must independently

find in each case, even with a presumption of unfitness, that termination is in the child’s

best interests.” R.D.L., 853 N.W.2d at 137.

       The best-interests analysis “consists of weighing three primary factors: the child’s

interest in maintaining the parent-child relationship, the [parent’s] interest in maintaining

the parent-child relationship, and any competing interest of the child.” In re Welfare of

Children of M.A.H., 839 N.W.2d 730, 744 (Minn. App. 2013). “Determination of a child’s

best interests is generally not susceptible to an appellate court’s global review of a record,

because of the credibility determinations involved, and because of the multiple factors that

must be weighed.” Id. (quotation omitted). Thus, a district court’s findings as to a child’s

best interests are reviewed for clear error. In re Welfare of Children of S.E.P., 744 N.W.2d

381, 387 (Minn. 2008).

       A finding is not clearly erroneous unless “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).

In our review of the evidentiary support for a district court’s findings as to a child’s best

interests, we must not make our own factual findings; “[f]or the court of appeals to make

factual findings such as these is to overstep the bounds of its role as a reviewing court.”

S.E.P., 744 N.W.2d at 387.


                                              11
       In this case, the district court expressly found that “the evidence presented by

[C.A.P.] in describing how she will keep [T.P.] safe is not credible” and further found that

“[C.A.P.] continues to demonstrate a lack of awareness of the changes needed to protect

[T.P.].” The court credited the GAL’s testimony that “nothing has changed since the [prior

child-protection matter], including [C.A.P.’s] decisions with regard to relationships, her

lack of truthfulness or providing complete information to providers, and her ability to

provide the information people want to hear without really showing that she has

internalized beneficial material she received.” The court accordingly found that C.A.P.

“continues to be unable to keep her child safe from volatile relationships” and, reasoning

that “[T.P.]’s safety is absolutely vital to the determination of his best interests,” found that

TPR is in T.P.’s best interests.

       On appeal, C.A.P. argues that the district court’s best-interests findings are clearly

erroneous “because they are not reasonably supported by the evidence as a whole.”

Essentially, C.A.P. asks us to ignore the district court’s credibility findings, reweigh the

body of evidence, and make new findings of fact. We decline C.A.P.’s request, as we must.

S.E.P., 744 N.W.2d at 387. On the record before us, and particularly in light of the district

court’s express credibility findings, we conclude that the challenged best-interest findings

are not clearly erroneous.

       C.A.P. also argues that the district court “erred in its best interests analysis, as a

matter of law, because it placed undue emphasis on [C.A.P.]’s prior [TPR] and past

conduct, rather than what she had done to change since that tragic time in her life.” C.A.P.

is correct that “[a] decision to terminate parental rights must be based on the conditions


                                               12
that exist at the time of termination” and that “[w]hen considering petitions to terminate

parental rights, a district court should rely not primarily on past history, but to a great extent

upon the projected permanency of the parent’s inability to care for his or her child.” J.W.,

807 N.W.2d at 446 (quotations omitted). But C.A.P.’s argument here ignores the district

court’s findings that C.A.P. has not truly changed since she failed to protect A.H. and K.H.

from egregious harm and murder, and that she therefore continues to be unable to

adequately protect her children. Because these findings are not clearly erroneous, the

district court did not err in determining that termination of C.A.P.’s parental rights is in

T.P.’s best interests.

       Affirmed.




                                               13
