                         This opinion will be unpublished and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
                                    A14-1560

          In the Matter of the Welfare of the Child of: A.N.T. and J.W., Parents

                                  Filed April 20, 2015
                                       Affirmed
                                   Rodenberg, Judge

                             Olmsted County District Court
                                File No. 55-JV-14-174

Kristi A. Fox, Eagan, Minnesota (for appellant A.N.T.)

Frederick S. Suhler, Jr.., Rochester, Minnesota (for respondent J.W.)

Thomas J. Nolan, Jr., Nolan Law Offices, Minneapolis, Minnesota (for respondent Eric
Brekke)

Debra A. Groehler, Assistant County Attorney, Rochester, Minnesota (for respondent
Olmsted County)

      Considered and decided by Smith, Presiding Judge; Rodenberg, Judge; and

Chutich, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant-mother challenges the district court’s termination of her parental rights.

We affirm.
                                          FACTS

       Appellant A.N.T. (mother) has three children. Mother’s parental rights to C.L.

and L.L. (the boys) were involuntarily terminated on October 31, 2013. A little over a

month later, on December 5, 2013, mother gave birth to her third child, K.N.W.

(daughter), who is the subject of the termination of parental rights (TPR) petition

involved in this appeal. J.W. (father) was adjudicated the father of daughter on April 7,

2014, and he voluntarily terminated his parental rights to daughter on the first day of trial,

June 23, 2014. He makes no appearance on appeal.

       In the first TPR proceeding, relating to the boys, the district court found that

reasonable efforts by social services had failed to correct the conditions which led to out-

of-home placement of the boys, and it therefore terminated mother’s parental rights

pursuant to Minn. Stat. § 260C.301, subd. 1(b)(5) (2012). In re Welfare of Children of

A.N.T., No. A13-2134, 2014 WL 1408089, at *2 (Minn. App. Apr. 14, 2014) (“A.N.T. I”).

The boys had been placed out-of-home because (1) they had been left in the care of

strangers/unsafe individuals, (2) mother and other caregivers were using chemicals,

(3) mother failed to provide the boys appropriate educational and medical services, and

(4) mother failed to manage her own mental and physical health, which resulted in

neglect of the boys. Id. at *1. The district court found that these conditions leading to

out-of-home placement had persisted despite reasonable efforts by social services. Id. at

*2. Mother had failed to address her own physical and mental health needs, which the

district court found led to “repeated trips to the emergency room, missed visits with [the

boys], the loss of electricity [and] the loss of [mother’s] apartment.”         Id.   Mother


                                              2
appealed and we concluded that these findings were supported by the record. Id. We

ultimately reversed and remanded because the district court had failed to make adequate

best-interests findings. A.N.T. I, 2014 WL 1408089, at *3. We remanded to the district

court to address this narrow issue. Id.; see also In re Welfare of Children of A.N.T., No.

A14-0925, 2014 WL 5125448, at *1, *4 (Minn. App. Oct. 14, 2014) (“A.N.T. II”)

(affirming district court’s best-interests findings on appeal).

          Before mother gave birth to daughter, Olmstead County Community Services

(OCCS) had told mother how the previous involuntary TPR would affect her parental

rights to daughter. See Minn. Stat. § 260C.301, subd. 1(b)(4) (2012) (presuming parent is

palpably unfit when there is a previous involuntary termination). OCCS attempted to

find family members to provide foster care for daughter, but those efforts ultimately

failed.     One of the family options for foster care was unavailable because of an

impending move but suggested that foster parents A.S. and M.S. be allowed to adopt

daughter.1 OCCS determined that the foster parents were a viable placement option.

          Mother and father met the foster parents before daughter’s birth. At the end of the

meeting, mother hugged the foster mother. Once daughter was born, mother and father

executed a Voluntary Placement Agreement (VPA) and daughter was placed with the

foster parents on December 8, 2013. Mother requested that she be able to hand daughter

to the foster parents once daughter was born, and OCCS honored that request.




1
 There were other family options explored but the other options are not germane to this
appeal.

                                               3
       On January 2, 2014, OCCS filed a petition to terminate the parental rights of both

parents to daughter. OCCS arranged visitation for mother and father, once per week for

mother and three times per week for father. Although mother requested to have her

visitation increased, OCCS did not increase visitations with mother because of the earlier

TPR and OCCS’s belief that mother’s situation had not substantially changed.

       In mid-January, the foster mother began noticing issues with daughter, including

difficulty feeding and gaining weight. She had poor muscle tone in her neck and favored

positioning her head to the right. Daughter was diagnosed with hypotonia, which is

indicative of weak muscle tone, and was described as “a rag doll effect.” Due to

daughter’s developing significant medical needs, visitations with mother ceased in

February, although mother was allowed to attend all of daughter’s medical appointments.

       An admit/deny hearing on the TPR petition concerning daughter was held at the

end of January. The district court denied what it construed as mother’s request to

“reschedule the trial pending the decision of the appellate court on the previous TPR.”

       Daughter’s medical situation became more complicated. At the time of trial,

daughter could not sit up on her own, even though she was just over 6 months old.

Daughter was not gaining weight, would not signal that she was hungry, and would not

eat. The foster parents worked with medical providers to get daughter to consume more

calories, but her weight continued to drop. Eventually, daughter needed an NG tube, a

temporary feeding tube, placed to force feedings. Daughter continued to lose weight

even after the NG tube was placed, and required a more permanent tube, a “G-tube,”

surgically placed just before trial in May.


                                              4
        Daughter was eventually deemed to be developmentally delayed in several ways.

Her cognitive development, physical development, and communication development

were delayed, and her motor skills were far below average.

        At six months, daughter weighed only 11 pounds. Due to daughter’s medical

needs, the foster mother left her job to attend to daughter full-time. At the time of trial,

daughter was still not feeding without the G-tube. The foster father testified that he and

his wife allow daughter to attempt drinking from a bottle “roughly every four hours,”

including overnight. If daughter does not finish the bottle in 20 minutes, they must

“push” the rest of the contents of the bottle through daughter’s G-tube. The foster father

estimated that about half of the feedings needed to be “pushed” through daughter’s G-

tube.

        The foster parents were also administering physical therapy to daughter three to

five times a day. They noticed “pauses” in daughter’s breathing that required them to

purchase a Crib Alert which alerts them if daughter has not moved. Daughter is unable to

be placed in normal child care and requires constant care and supervision.

        It was during this time that we heard mother’s appeal in A.N.T. I. We affirmed the

district court’s determination that mother’s rights should be terminated pursuant to Minn.

Stat. § 260C.301, subd. 1(b)(5), but reversed and remanded for further findings

concerning the best-interests factors. A.N.T. I, 2014 WL 1408089, at *2-3. The district

court presiding at mother’s TPR trial concerning the boys made additional findings on

these factors and again determined that TPR was in the boys’ best interests and again

terminated mother’s rights.    A.N.T. II, 2014 WL 5125448, at *1.          Before the trial


                                             5
concerning daughter, mother had again appealed the district court’s decision in her first

TPR (A.N.T. II) and that appeal was pending at the time of the trial in this case.

       Mother also raised an issue to the district court in this case concerning whether the

Indian Child Welfare Act (ICWA) applied. Mother claimed Indian heritage, but is not a

member of any tribe. Ultimately, the district court held that ICWA did not apply.

       The district court applied the presumption set forth in Minn. Stat. § 260C.301,

subd. 1(b)(4) because of the earlier TPR. It found that mother did not present evidence at

trial sufficient to rebut the presumption of palpable unfitness, and that mother had not

sufficiently changed since her first TPR to provide care for daughter. The district court

terminated mother’s rights under Minn. Stat. § 260C.301, subd. 1(b)(4), concluding that

mother is palpably unfit to be a party to the parent-child relationship, and that termination

of Mother’s parental rights was in the best interest of daughter. This appeal followed.

                                     DECISION

       I.   Indian Child Welfare Act

       ICWA protects Native American children from “abusive child welfare practices

that resulted in the separation of large numbers of Indian children from their families and

tribes through adoption or foster care placement, usually in non-Indian homes.”

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1600

(1989). ICWA provides procedural safeguards and substantive requirements in cases

concerning the custody of Native American children. Id. at 36, 109 S. Ct. 1602. The

district court must apply the mandates of ICWA if the proceeding is a “child custody

proceeding,” and if the child is an “Indian child,” as those terms are defined by ICWA.


                                             6
In re Best Interests of M.R.P.-C., 794 N.W.2d 373, 378 (Minn. App. 2011). Whether the

district court erred by declining to follow ICWA procedures is a question of law that we

review de novo. See In re Welfare of S.N.R., 617 N.W.2d 77, 81 (Minn. App. 2000)

(holding that the district court’s determination that a child was an “Indian child” is a

question of law reviewed de novo).

       An action to terminate parental rights is one of the enumerated proceedings

considered a “child custody proceeding” under ICWA. 25 U.S.C. § 1903(1)(ii) (2014).

An “Indian child” is defined as “any unmarried person who is under age eighteen and is

either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe

and is the biological child of a member of an Indian tribe.” Id. (4). It is undisputed that

neither daughter, nor either of the parents are members of an Indian tribe.

       In In re M.R.P.-C., we held that “a district court has an affirmative obligation to

inquire into whether ICWA applies to a custody determination when it has reason to

believe that the child subject to the determination is an Indian child.” 794 N.W.2d at 379.

The district court in this case had some indication that daughter may be an Indian child.

The OCCS Child Protection worker had mother sign both a “traditional” VPA as well as

a VPA for an Indian Child, because “[father] had informed [the child protection worker]

that he may have some Indian heritage on his great-great-great-great grandmother’s side.”

Mother’s trial counsel also raised the issue to the district court at the admit/deny hearing

and again on the first day of trial. There was also extensive testimony given by mother’s




                                             7
mother about her Native American spiritual practices and involvement in various Native

American communities.2

         The district court properly inquired into whether ICWA applies here.        After

extensive testimony, the district court’s reopening of the ICWA issue, and dozens of

tribal notifications, including one to the United States Bureau of Indian Affairs, no

evidence was located to suggest that daughter is eligible for membership in any Indian

tribe.    Mother, through her mother, provided scant information pertaining only to

practices and purported Native American heritage, but nothing concerning tribal

membership or eligibility for membership. OCCS, despite extensive and documented

efforts, was unable to verify that daughter is an Indian Child as defined by ICWA.

         We have held that a district court does not err when it declines to apply ICWA

where “there is no evidence that the children are eligible for membership in any Indian

tribe.” In re Welfare of Children of M.L.A., 730 N.W.2d 54, 59 (Minn. App. 2007).

Further, in In re Matter of Baby Boy Doe, 849 P.2d 925, 931 (Idaho 1993), cert. denied

510 U.S. 860, 114 S. Ct. 173 (1993), the Idaho Supreme Court held that “[t]he party

asserting the applicability of ICWA has the burden of producing the necessary evidence

for the trial court to make” the determination of whether ICWA applies.

         Mother failed to meet her burden of production concerning the application of

ICWA. Therefore, the district court did not err in concluding that ICWA does not apply

here.



2
    It is undisputed that mother’s mother is not a member of an Indian tribe.

                                               8
       II.   Voluntary Placement Agreement

       Mother argues that her signing of the VPA was invalid and unconstitutionally

coerced. We see no merit to her contention. The OCCS worker had discussed the VPA

with mother before daughter’s birth. Mother had signed an earlier VPA concerning the

boys. Mother cites no authority suggesting that OCCS (which, in an abundance of

caution, obtained two separate VPAs for the placement of daughter, one compliant with

ICWA and the other appropriate for non-ICWA cases) erred concerning the VPA. And,

in any event, had mother not signed the VPA, OCCS had the authority to take emergency

protective custody of the child. See Minn. R. Juv. Prot. P. 28.02, subd. 1(b) (allowing for

emergency protective care to be assumed by social services if there is prima facie

evidence that the child’s welfare is at risk). Moreover, shortly after the VPA was signed,

the district court ordered that OCCS would have emergency protective care of daughter,

rendering the VPA insignificant thereafter. The circumstances surrounding the signing of

the VPA appear to have been lawful and, in any event, have no bearing on the disposition

of this appeal.

       III. Rebuttable Presumption of Palpable Unfitness

             a. Proceeding with a presumptive TPR when the initial TPR giving rise
                to the presumption is on appeal

       Ordinarily, the fitness of a natural parent to care for his or her own child is

presumed.    In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003).

However, parental rights may be terminated if a district court finds by clear and

convincing evidence that the parent is palpably unfit to be a party to the parent and child



                                            9
relationship. Minn. Stat. § 260C.301, subd. 1(b)(4). And a parent is presumed palpably

unfit if that parent has had parental rights involuntarily terminated in a previous

proceeding. Id.

       Mother argues that “pending appellate cases” deprive the district court of

“jurisdiction” to proceed with a newly filed TPR proceeding as a presumptive TPR.

When OCCS petitioned for the termination of parental rights to daughter in January 2014,

it did so pursuant to the presumption of palpable unfitness in subdivision 1(b)(4). At that

time, mother’s rights had been terminated and she had taken an appeal that had not been

heard or decided. By the time the district court terminated mother’s parental rights to

daughter, on August 20, 2014, we had reversed and remanded the earlier TPR for further

findings concerning best interests, the district court had made those additional findings,

and had again concluded that mother’s parental rights to the boys should be terminated.

Mother appealed again and, two months after the district court terminated mother’s

parental rights to daughter, we affirmed the district court’s decision from the first TPR in

A.N.T. II.

       “The service and filing of a notice of appeal does not stay the order of the juvenile

court. The order of the juvenile court shall stand pending the determination of the

appeal” absent the grant of a motion to stay. Minn. R. Juv. Prot. P. 47.03. Mother asked

the district court to continue the proceedings concerning daughter until the resolution of

the appeal in A.N.T. I. But she did not move the district court for a stay of the TPR

proceedings during the appeal. And we denied a request to stay on November 25, 2014.




                                            10
Therefore, under rule 47.03, the district court properly applied the presumption of

palpable unfitness.

            b. Rebutting the presumption

       Once the presumption of palpable unfitness applies, the parent has the burden to

rebut that presumption. In re D.L.R.D., 656 N.W.2d at 250. “The statutory presumption

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

presumption [but it] does not shift . . . the burden of proof in the sense of the risk of

nonpersuasion, which remains throughout the trial upon the party” petitioning to

terminate parental rights. In re Welfare of Child of J.W., 807 N.W.2d 441, 445 (Minn.

App. 2011) (quotation and citations omitted).

       In In re J.W., we reversed the district court’s determination that the parent failed to

overcome the presumption because the parent produced evidence which “if believed,

would justify a finding contrary to the assumed fact that [the parent] is palpably unfit.”

Id. at 447 (quotation omitted). And the Minnesota Supreme Court recently noted that the

presumption of palpable unfitness is “easily rebuttable.” In re Welfare of Child of R.D.L.,

853 N.W.2d 127, 137 (Minn. 2014).

       In its conclusions of law, the district court correctly identified that the statutory

presumption of parental unfitness places the burden of production on the parent. The

district court concluded that mother did not rebut this presumption. The district court

reasoned, “[mother] failed to present evidence of her current circumstances that

affirmatively and actively demonstrate her parenting ability has improved . . . [and] she

failed to demonstrate that she can affirmatively and actively successfully parent her


                                             11
child.”     The district court found that “[t]he evidence in the record overwhelmingly

supports that mother’s circumstances have not substantially improved since her first

termination of parental rights.” The district court found that, like in the first TPR, mother

still had difficulty managing her medical needs, she has been unable to obtain stable

housing, and “is incapable of maintaining consistent employment.” These findings are

similar to the findings made by the district court in the first TPR and are supported by the

record before us.

          Mother argues that the evidence presented at trial was sufficient to rebut the

presumption.3 Mother points to her own testimony that, since the first TPR, she is better

able to manage her own physical and mental health, she has stopped associating with

people who use illegal substances, she had maintained employment before her move to

Kasson, and her move to Kasson was an improvement in her housing situation. Mother

further testified that her sister, who lives near her, would be willing to care for daughter

and is trained in administering feedings through a G-tube. Mother also testified that her

own previous employment as a “home health aid[e]” gave her training on administering

feedings through a G-tube. Mother presented testimony of medical professionals who

3
  Among the other arguments discussed infra, mother argues that she met her burden
because “all parties stipulated [that mother’s] drug usage was not an issue . . . despite
being the basis for the initial TPR.” (Emphasis added.) Mother mischaracterizes the
basis upon which her parental rights to the boys were terminated. In the first TPR the
district court cited mother’s failure to provide appropriate educational and medical care to
the boys, her failure to manage her mental and physical health, repeated trips to the
emergency room, inability to find stable housing and employment, and mother’s inability
to understand the realistic needs of the boys. A.N.T. II, 2014 WL 5125448, at *2-3.
While drug use was apparently one of mother’s identified problems in the earlier case,
the essence of that case, as in all child-welfare cases, was the effect of the identified
problems on the involved children.

                                             12
testified that mother’s ability to care for her own physical and mental health needs had

improved. Mother also presented her mother’s testimony supporting her own testimony

that mother had recently moved, that the move was good, and that mother recently lost

her job.

       Even if we consider only the aspects of the medical providers’ testimony most

favorable to mother, the medical providers had no knowledge of whether mother had

continued to appropriately control her diabetes at the time of trial. None of them had

been in contact with mother for at least six months. See In re J.W., 807 N.W.2d at 446

(stating that “whether a parent has rebutted the statutory presumption depends . . . on

whether a parent has presented evidence of his or her current circumstances . . . and [a]

decision to terminate parental rights must be based on the conditions that exist at the time

of termination” (quotation omitted, emphasis added)). And the testimony of mother’s

mother did not add anything beyond confirmation of mother’s testimony, which the

district court found to be insufficient to overcome the presumption.

       Mother admitted that she was not gainfully employed as of the trial because she

left a paying job shortly before trial in order to move to Kasson. While she testified that

her roommate in Kasson would allow her to reside with him permanently, she admitted

she would still have to “get a different place” because of the lack of space in that

residence. Mother testified that she has not had stable housing for two years. She also

admitted that she had been to the emergency room between 15 and 20 times in the six

months before trial.




                                            13
       Accepting mother’s testimony as true, we see no error in the district court’s

conclusion that mother failed to overcome the presumption of unfitness.            Mother’s

testimony largely confirms that her situation remained unchanged from her first TPR.

And the district court correctly noted that daughter requires more extensive parenting

skills than did the boys. The record supports the district court’s finding that mother failed

to rebut the presumption.

       Even examining the district court’s findings and conclusions without regard to the

statutory presumption, those findings are not clearly erroneous and are sufficient to

support a conclusion that mother is palpably unfit to be party to the parent-child

relationship. See In re Welfare of Child of J.L.L., 801 N.W.2d 405, 410 (Minn. App.

2011) (stating findings are not clearly erroneous if supported by the evidence as a whole).

Parental rights may be terminated if the parent is palpably unfit to be a party to the

parent-child relationship because of “specific conditions directly relating to the parent

and child relationship . . . 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 . . . needs of the child.” Minn. Stat. § 260C.301, subd. 1(b)(4).

       The district court found that mother “has not demonstrated that she can maintain

stable, safe housing” and that mother is “incapable of maintaining consistent employment

to provide for her basic needs, much less [daughter’s] extensive special needs.” Further,

the district court found that mother “continues to experience difficulties managing her

own physical and mental health needs.” The district court found that “[t]he protection

concerns that were present in [the first TPR] are present here: lack of stability, lack of


                                             14
safe housing for [daughter], underemployment, and inability to manage medical needs on

a consistent basis.”

       These findings are supported by the record and are not clearly erroneous. The

record supports the finding, even without reference to the presumption, that mother is

unable “to care appropriately for the ongoing . . . needs of the child” and will be unable to

do so into the reasonably foreseeable future. See Minn. Stat. § 260C.301, subd. 1(b)(4);

see also In re Welfare of Child of J.K.T., 814 N.W.2d 76, 92 (Minn. App. 2012)

(concluding that the district court “properly took into account [the child’s] uniquely

demanding medical needs” when it held that the parent in that case was palpably unfit “to

meet [the child’s] extraordinary needs.”).

       IV. Best Interests of the Child

       Mother further argues that “Minnesota case[s] lack[] definitive guidelines as to

what specificity the district courts are supposed to exercise in their particularized

findings” concerning the best interests of the child. She posits that we should adopt

Michigan’s model concerning best interests.

       It is not our proper role to make new law. Tereault v. Palmer, 413 N.W.2d 283,

286 (Minn. App. 1987) (stating that “the task of extending existing law falls to the

supreme court or the legislature, but it does not fall to this court”), review denied (Minn.

Dec. 18, 1987). Mother does not appear to argue that, under existing law, the district

court’s best-interests analysis is improper. The district court made particularized findings

on why it was in daughter’s best interests for mother’s parental rights to be terminated

under established Minnesota law. The record supports those findings. Whether the best-


                                             15
interests analysis would have proceeded differently under the law of the State of

Michigan, or of any other jurisdiction, is not our proper concern.

       In sum, the district court did not err in determining that ICWA does not apply, and

mother has demonstrated neither error nor prejudice concerning the VPA she signed. The

district court properly applied the statutory presumption of palpable unfitness and did not

err in concluding that mother had failed to rebut the presumption. The record supports

the district court’s determinations that mother is palpably unfit and that termination of

mother’s parental rights is in daughter’s best interests.

       Affirmed.




                                              16
