                         This opinion will be unpublished and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
                                    A15-0499

                      In the Matter of the Welfare of the Child of:
                           A. N. L., a/k/a A. N. N. L., Parent.

                                Filed October 26, 2015
                                       Affirmed
                                     Reyes, Judge

                            Hennepin County District Court
                                File No. 27JV138863

Mary F. Moriarty, Chief Hennepin County Public Defender, Paul J. Maravigli, Assistant
Public Defender, Minneapolis, Minnesota (for appellant A.N.L.)

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

Jody M. Alholinna, El-Ghazzawy Law Offices, Minneapolis, Minnesota (for guardian ad
litem)

      Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

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

We affirm.
                                          FACTS

         Appellant gave birth to daughter A.J.N. on November 18, 2013, in a shelter that

she was living in at the time. A.J.N. is the subject of the termination of parental rights

(TPR) underlying this appeal.

         A.J.N. was placed in foster care on November 21, 2013, and the Hennepin County

Human Services and Public Health Department (the department) filed a TPR petition.

The department had many concerns regarding appellant’s previous child-protection

involvement, including the involuntary termination of parental rights to her other three

children, as well as her propensity toward anger. On December 4, 2013, the district court

placed A.J.N. with appellant’s aunt and uncle, B.P. and J.P., on an emergency basis,

pursuant to Minn. Stat. § 245A.035 subd. 1 (2014). After A.J.N.’s placement with B.P.

and J.P., appellant began visiting her daughter twice weekly. Appellant was working

with an individual therapist, completed a psychological assessment and a parenting

assessment, and worked with an in-home parenting worker for three weeks. In January

2014, appellant tested positive for tetrahydrocannabinol.1 This was appellant’s only urine

analysis on record. She did not complete a chemical-health or psychiatric assessment.

On February 14, 2014, the parties stipulated to a transfer of legal custody (transfer) of

A.J.N. to B.P. and J.P. rather than terminating appellant’s parental rights.

         During the summer of 2014, both the department and guardian ad litem (GAL)

supported the transfer as being in the best interests of A.J.N.         But soon after, the

department foster-care-licensing social worker informed the court via court notification

1
    Tetrahydrocannabinol is commonly known as an indicator of marijuana in the system.

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that Anoka County was unable to license B.P. due to criminal charges. Consequently, the

court ordered that A.J.N. be removed from B.P.’s and J.P.’s home.

       On November 14, 2014, the matter proceeded to trial on the TPR petition. The

department and the GAL testified that it was in the child’s best interests to be in a

“permanent, stable, safe living environment. . .” and that “reunification would not be in

the best interests of [A.J.N.] at this time.” Appellant did not testify, did not call any

witnesses on her behalf, and made no arguments demonstrating her fitness as a parent

presently or in the foreseeable future. Appellant also failed to offer B.P. or J.P. as

prospective custodians for a transfer of A.J.N.

       The district court found that appellant did not present evidence at trial to rebut the

presumption of palpable unfitness.         In addition, the district court found that

(1) reasonable efforts were made to place the child with a relative foster parent who was

ultimately not able to be licensed for foster care; (2) appellant is palpably unfit to be a

party to the parent-child relationship; and (3) termination of appellant’s parental rights

was in the best interests of the child. The district court determined that appellant’s rights

should be terminated pursuant to Minn. Stat. § 260C.301, subd. 1(b)(4) (2014). This

appeal follows.

                                     DECISION

I.     Standard of review

       Parental rights may only be terminated for “grave and weighty reasons.” In re

Welfare of Child of J.K.T., 814 N.W.2d 76, 87 (Minn. App. 2012) (quotation omitted).

We will affirm if a statutory ground for termination is supported by clear and convincing


                                             3
evidence and termination of parental rights is in the minor child’s best interests. In re

Children of T.R., 750 N.W.2d 656, 661 (Minn. 2008) (citation omitted).

              [Appellate courts] review the termination of parental rights to
              determine whether the district court’s findings address the
              statutory criteria and whether the district court’s findings are
              supported by substantial evidence and are not clearly
              erroneous. We give considerable deference to the district
              court’s decision to terminate parental rights. But we closely
              inquire into the sufficiency of the evidence to determine
              whether it was clear and convincing. We affirm the district
              court’s termination of parental rights when at least one
              statutory ground for termination is supported by clear and
              convincing evidence and termination is in the best interests of
              the child, provided that the county has made reasonable
              efforts to reunite the family.

In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008) (citations

omitted). However, a district court may involuntarily terminate parental rights when the

parent is palpably unfit. Minn. Stat. § 260C.301, subd. 1(b)(4) (2014).

II.    The district court did not err in finding that appellant is palpably unfit.

       In general, the natural parent is presumed to be fit and suitable to be entrusted with

the care of his or her child. In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App.

2003). However, parental rights may be terminated under Minn. Stat. § 260C.301, subd.

1(b)(4), 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 relationship. In re Children of T.A.A.,

702 N.W.2d 703, 708 (Minn. 2005). A parent is presumed palpably unfit if that parent

had his or her parental rights involuntarily terminated in a previous proceeding under

Minnesota law or a similar law of another jurisdiction. Id.




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          Here, appellant’s parental rights to her two oldest children were involuntarily

terminated in Texas in 2009. Her parental rights to a third child were involuntarily

terminated in Minnesota in 2012.          As such, the district court properly applied the

presumption of palpable unfitness to appellant.

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

rebut that presumption. D.L.R.D., 656 N.W.2d at 250. “[T]he district court need not

establish independent reasons for termination.”         Id.   The Minnesota Supreme Court

recently noted that the presumption of palpable unfitness is “easily rebuttable,” and the

parent can satisfy this burden by demonstrating an improvement in his or her parenting

skills. In re Welfare of Child of R.D.L., 853 N.W.2d 127, 137 (Minn. 2014); In re

Welfare of Child of D.L.D., 771 N.W.2d 538, 545 (Minn. App. 2009).

          Appellant argues that, while there was no evidence or testimony presented at trial

to rebut the presumption of palpable unfitness, she no longer needed to comply with the

case plan because she agreed to a transfer. The district court found that the department

offered appellant a voluntary case plan, but she failed to substantially comply with the

recommendations, including addressing mental-health and anger-management issues.

The record reflects that appellant continued seeing a therapist, but she was unwilling to

continue with any of the other services offered.

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

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

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

stated:


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              Respondent mother failed to testify at trial, failed to call any
              witnesses on her behalf, failed to introduce any exhibits, and
              presented no evidence at trial demonstrating that she is able to
              successfully and safely parent the minor child [A.J.N] at the
              present or reasonably foreseeable future. There was no
              evidence presented that the conditions that led to the previous
              terminations, and the incidents that led to the opening of this
              case, have been rectified.

The district court found that the “[r]espondent [m]other’s belief that she transferred

custody may be an explanation for why she stopped working her case plan but it is not a

rebuttal to the presumption that she is palpably unfit.” The district court’s finding that

appellant failed to overcome the presumption of unfitness is supported by the record and

is not clearly erroneous.

III.   The district court did not err in finding that termination of appellant’s
       parental rights was in the best interests of the child.

       In determining the best interests of a child, the court considers and evaluates all

relevant factors including the “relationship between the child and relatives. . .with whom

the child has resided.” Minn. Stat. § 260C.511(a), (b) (Supp. 2015). Similarly, under

Minn. Stat. § 260C.212, subd. 2(a), (1) (2014), a child taken out of his or her home by the

department shall preferably be placed with a relative related by blood based on “the needs

of the child,” including the “child’s relationship to current caretakers.” However, in

determining placement for a child, Minnesota law requires that a foster parent be

licensed. Minn. Stat. § 245A.03 subd. 1(2) (Supp. 2015). A child cannot be placed in a

home that is not licensed, and a child who is living in a home that is later found to be

unlicensable must be removed from the unlicensed home. Id. A foster parent is not

licensable when there has been a conviction or admission to a disqualifying crime under


                                             6
Minn. Stat. § 245C.15 (2014), or when the department commissioner determines, by a

preponderance of the evidence, that the foster parent has committed a disqualifying crime

pursuant to Minn. Stat. §245C.14, subd. 1(a)(2) (2014).

       Here, the department determined that B.P. was not licensable because B.P. was

charged with malicious punishment of a child and assault in the fifth degree. Therefore,

based on this determination, B.P. was precluded from being a foster mother and from

caring for A.J.N. Based on the department’s determination, the district court ordered the

removal of A.J.N. from B.P.’s home. Appellant argues, however, that, because B.P. was

never convicted of these crimes and the related order of protection was also rescinded,

the district court should have determined that it was in the child’s best interests to remain

with B.P. We disagree. Appellant failed to come forward with evidence that the

commissioner and district court erred in determining by a preponderance of the evidence

that B.P. engaged in a disqualifying crime that made her unlicensable.

       Appellant further challenges the sufficiency of the evidence relating to the best

interests of the child. Appellant did not make any arguments at trial regarding B.P. as a

suitable custodian nor did she propose any other suitable family members as a potential

custodian for A.J.N. A “reviewing court must generally consider ‘only those issues that

the record shows were presented and considered by the trial court in deciding the matter

before it.’” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citation omitted). But

under Minn. R. Juv. P. Proc. 45.03 “[t]he question of sufficiency of the evidence to

support the findings may be raised whether or not the party raising the question has made

in the district court an objection to such findings or has made a motion to amend the


                                              7
order.” Appellant must prove that the best interests of the child were not served by

termination of parental rights as opposed to transfer of legal custody by leaving the child

in B.P.’s care and that the district court’s determination based on the evidence was not

clear and convincing. S.E.P., 744 N.W.2d 381, 385 (Minn. 2008) (citations omitted).

       Here, appellant argues that the TPR was an inappropriate step to take given that

there was insufficient evidence to support the best-interests-of-the-child determinations,

and that taking the child from B.P’s home was inappropriate. Appellant cites to Zahler v.

Minn. Dept. of Human Serv., 624 N.W.2d 297 (Minn. App. 2001) for support.           But that

case is inapposite. There, the issue was review of a maltreatment determination by the

commissioner of the department of human services, not a TPR or a best-interests

analysis. Id. at 301-303.

       Finally, appellant argues that one of the factors in determining the best interests of

the child is the preference for keeping the child with a family member and that this fact-

based determination trumps the legal basis that the district court and the department used

in determining whether a foster parent is licensable. Id. But the court found that the

department made reasonable efforts to finalize a permanency plan for the child. This

included conducting a diligent search for relatives and placing the child with a relative as

a foster parent on an emergency basis, but that relative was not licensable. Under Minn.

Stat. § 245A.03, a foster parent must be licensable in order to foster a child and may no

longer qualify once determined to be unlicensable. Id.

       In sum, the district court properly applied the statutory presumption of palpable

unfitness and did not err in finding that appellant failed to rebut the presumption. The


                                             8
record supports the district court’s determinations that appellant is palpably unfit and that

termination of appellant’s parental rights is in the best interests of the child.

       Affirmed.




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