                            This opinion will be unpublished and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
                                       A16-0911

          In the Matter of the Welfare of the Child of: K. C. T. and L. L. T., Parents

                                   Filed November 7, 2016
                                          Affirmed
                                        Larkin, Judge

                                McLeod County District Court
                                   File No. 43-JV-16-22


Scott L. Nokes, Glencoe Law Office, Glencoe, Minnesota (for appellant mother)

Michael Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney,
Glencoe, Minnesota (for respondent McLeod County)

Dawn Mitchell, Hutchinson, Minnesota (guardian ad litem)



         Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Kirk,

Judge.



                           UNPUBLISHED OPINION

LARKIN, Judge

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

(TPR), arguing that she rebutted the statutory presumption that she is palpably unfit and
that the district court had a duty to provide her a meaningful opportunity to demonstrate

that she could parent her infant child. We affirm.

                                          FACTS

       This appeal stems from the district court’s order terminating the parental rights of

appellant K.C.T. (mother) and L.L.T. (father) to their biological child, T.T., in May 2016.

The district court previously involuntarily terminated the parents’ parental rights to seven

other children in February 2015.

       In the prior TPR proceeding, the district court held a three-day trial and made

multiple findings in support of its TPR order. For example, the district court found that

mother and father did not provide adequate shelter for the children. Raw sewage had

backed up in the basement of the parents’ home in Glencoe, where the children resided. In

the basement, standing water containing feces and clothing stood four to six inches deep.

In other areas of the home, electrical wiring was exposed, and space heaters were plugged

in next to beds and clothing. The home did not contain smoke detectors, and the door of

the oven was broken and detached from the appliance. Feces, mold, and cockroaches were

present throughout the parent’s home in Glencoe. After the children were placed in foster

care, an arthropod nymph (most likely a cockroach) was found in one of the children’s

ears. A doctor had to remove the insect from the child’s ear.

       The district court also found that mother and father did not provide adequate

clothing for the children, as evidenced by one of the children’s frostbitten feet. Mother and

father did not address and obtain appropriate medical care for six of the children’s growth

issues, one child’s frostbite, and another child’s abscessed tooth. Mother and father did


                                             2
not provide the children with necessary food or nutrition. One of the children told a social

worker that he liked foster care because he did not have to worry when he ate, explaining

that “[a]t home, cockroaches would fly in, and mom and dad could eat the food, but I

couldn’t. And if I couldn’t find like, a granola bar or a bag of chips, I just waited till the

next day and ate at school.”

       The district court found that when the children were removed from their parents’

care, six of the children had growth delays, five of the children had microcephaly (an

abnormally small head), and four of the children had dental issues. Initial genetic testing

indicated that the children’s growth issues did not have a genetic origin. The youngest

child initially had growth delays but quickly rebounded in foster placement. The district

court found that the oldest child was diagnosed with adjustment disorder with anxiety, the

second oldest child was diagnosed with adjustment disorder with mixed anxiety and

depressed mood, the third oldest child was diagnosed with mixed anxiety and depressed

mood, the fourth oldest child was diagnosed with adjustment disorder with anxiety and

attention deficit hyperactivity disorder (ADHD), and the fifth oldest child was diagnosed

with reactive attachment disorder. The district court found that four of the children had

cognitive or developmental delays.

       The district court found that McLeod County Social Services (the county) provided

numerous financial, medical, educational, and other services to mother, father, and the

children during a 12-month period. These services included over 95 hours of parenting

education and home-management services to address nutrition, hygiene, and finances; over

nine months of tutoring and skills-worker services provided both at home and at school;


                                              3
supervised visitation in three different settings; family assessment and case management;

speech services for the children; early childhood special education; family group decision-

making; medical and dental care; gas cards; payments for meals and food assistance; and

referrals to community organizations. The district court determined that the scope, nature,

and extent of the county’s exhaustive rehabilitative and reunification efforts were

reasonably calculated to address the many child-protection issues.

       The district court found that despite those services, mother and father failed to

improve their parenting abilities. Specifically, the parenting educator credibly testified that

the parents were unable to learn and implement new parenting skills even though they had

received 95 hours of parenting education. The children’s behavior, manners, and respect

for others all regressed when the children visited their parents on weekends. In addition,

mother and father did not demonstrate that they could budget their income to meet the

needs of a family of nine, that they could keep their home clean and organized, or that they

could ensure appropriate supervision for the children.

       Approximately two months after the district court involuntarily terminated mother’s

and father’s parental right to their seven children, mother and father conceived T.T., who

was born on February 9, 2016. T.T. was placed on a 72 hour health-and-welfare hold after

his birth. On February 10, the county filed a petition seeking to terminate mother’s and

father’s parental rights to T.T. on the grounds that mother and father “are palpably unfit,

as presumed by a previous involuntary termination of their parental rights.” The district

court placed T.T. in out-of-home placement pending an emergency-protective-care

hearing. The district court held an initial emergency-protective-care hearing on February


                                              4
11 and a contested emergency-protective-care hearing on February 16. After the hearings,

the district court ordered that T.T. remain in out-of-home placement and granted mother

and father one supervised visit up to two hours per week with T.T. at a Visitation Exchange

Center (VEC).

       Mother and father denied the allegations in the TPR petition. Following the

admit/deny hearing, the district court found that the county was relieved of its legal

obligation to provide reasonable reunification efforts based on the prior involuntary TPR.

       On May 5 and 6, the district court held a trial on the TPR petition regarding T.T. At

trial, the county’s counsel asked mother what she “failed to do right the first time with the

seven kids.” Mother testified that “[w]e didn’t have the cleanest house on the block,” there

“were cockroaches in the house,” there were structural problems with their home because

it was an older home, and there were issues with boundaries or discipline. The county’s

counsel provided mother with pictures of the house in Glencoe and asked mother how she

thought living in the house affected her children. Mother responded, “I don’t know because

we don’t get to speak to them.” When the county’s counsel questioned mother further,

mother testified that the children “were doing good in school, and they did eat.” She

testified that they “had food in the cupboards and provided food” and that the children “had

shelter.” Mother testified that the city was responsible for the sewage in the basement of

the Glencoe home.

       The guardian ad litem asked mother why several of her children had been labeled

“failure to thrive.” Mother testified, “I guess they said—well, we asked that once, Well,

what does this mean, you know? Because we—we did feed them.” Counsel for the county


                                             5
asked mother if it was her “belief that [her] previous children’s failure to grow issues were

not caused by either lack of food or their home environment.” Mother testified, “Well, I

don’t—I mean—I mean, yes, the house was messy. I mean, when you have kids, it’s going

to be messy. I mean, we did clean up, but—.” The county’s counsel asked mother if she

believed she caused her children’s failure to grow. Mother replied, “I think—I don’t think

so. I mean, part of it has to do with the genetics. And we didn’t get any updates on those

appointments or anything.”

       The district court terminated mother’s and father’s parental rights to T.T. The

district court determined that “[t]he evidence at trial showed clearly and convincingly that

[mother and father] are palpably unfit to parent [T.T.].” The district court also determined

that “[t]he evidence at trial overwhelmingly supports a finding that it is in [T.T.’s] best

interests” to enjoy “a permanent, stable, safe, loving and nurturing family and home with

his seven bio siblings, [his foster parents’ children] and [his foster parents].” Mother

appeals.

                                     DECISION

       “Parental rights are terminated only for grave and weighty reasons.” In re Welfare

of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). A district court’s decision in a termination

proceeding must be based on evidence concerning the conditions that exist at the time of

trial. In re Welfare of Child of T.D., 731 N.W.2d 548, 554 (Minn. App. 2007), review

denied (Minn. July 17, 2007). An appellate court “exercises great caution in termination

proceedings, finding such action proper only when the evidence clearly mandates such a

result.” In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).


                                             6
         On appeal, this court examines the record to determine whether the district court

applied the appropriate statutory criteria and made findings that are not clearly erroneous.

In re Welfare of D.L.R.D., 656 N.W.2d 247, 249 (Minn. App. 2003). “A finding is clearly

erroneous if 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). “[A] district court’s findings in support of any

TPR order must address the best-interests criterion.”1 In re Welfare of the Child of D.L.D.,

771 N.W.2d 538, 546 (Minn. App. 2009); see Minn. Stat. § 260C.301, subd. 7 (2014)

(“[T]he best interests of the child must be the paramount consideration . . . .”). This court

gives the district court’s decision to terminate parental rights considerable deference but

“closely inquire[s] into the sufficiency of the evidence to determine whether it was clear

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

                                                 I.

         A district court may terminate parental rights to a child if the district court finds that

the parent

                 is palpably unfit to be 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) (2014).



1
    Mother does not assign error to the district court’s best-interest finding.

                                                 7
       “It 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 . . . .” Id. Where a parent’s parental rights to one or more

other children were involuntarily terminated, the parent has the burden of rebutting the

presumption of palpable unfitness. T.D., 731 N.W.2d at 554. “[A] parent rebuts the

presumption by introducing evidence that would justify a finding of fact that the parent is

not palpably unfit, and whether the evidence satisfies the burden of production is

determined on a case-by-case basis.” In re Welfare of Child of R.D.L., 853 N.W.2d 127,

137 (Minn. 2014) (quotations omitted). This court reviews a district court’s determination

that a parent has failed to rebut the palpable-unfitness presumption to determine whether it

is supported by substantial evidence and is not clearly erroneous. D.L.D., 771 N.W.2d at

544.

       A social-services agency need not make reasonable efforts to prevent the out-of-

home placement of a child, rehabilitate the child’s parent, or reunify the parent and child

where the district court determines that the agency has made a prima facie case that “the

parental rights of the parent to another child have been terminated involuntarily.” Minn.

Stat. § 260.012(a)(2) (2014). In such cases, “the parent, with the assistance of counsel, is

inevitably required to marshal any available community resources to develop a plan and

accomplish results that demonstrate the parent’s fitness.” D.L.R.D., 656 N.W.2d at 251.

       Mother argues that she “reasonably rebutted the presumption of palpable unfitness,

as demonstrated by objective documentation of attending parenting classes.”




                                             8
       The district court found that “[h]aving conceived a child a mere two months after

their rights to seven children were terminated, there has not been sufficient time for [mother

and father] to rehabilitate or change, evidenced by their refusal to acknowledge the neglect

they showed their children.” The district court noted that “[p]rior to the first TPR, [mother

and father] received over 90 hours of in-home parenting education plus countless other

services, yet [father] testified that the County never offered to help them and what was

offered was worthless.” Although the district court did not expressly find that mother and

father failed to rebut the presumption of palpable unfitness, that finding is implied in its

discussion of the palpable-unfitness presumption and finding that “[t]he evidence at trial

showed clearly and convincingly that [mother and father] are palpably unfit to parent

[T.T.].”

       Caselaw recognizes that a parent is in a difficult position where the parent must

rebut the presumption of palpable unfitness and the county is not obligated to make

reasonable efforts to reunite the parent and child. Id. But caselaw also recognizes that

there are ways for such a parent to demonstrate parental fitness and thereby rebut the

presumption. For example, in In re Welfare of the Child of J.W., 807 N.W.2d 441, 446-47

(Minn. App. 2011), review denied (Minn. Jan. 6, 2012), this court found that a parent

rebutted the statutory presumption of palpable unfitness where the parent testified and

introduced the testimony of 14 witnesses that the parent had changed “in significant and

material ways since the prior TPR proceedings.”

       In J.W., the rehabilitation evidence included testimony that the parent had made

significant progress in her parenting skills through parenting classes and dialectical


                                              9
behavioral therapy, was “involved and active” in a parenting class, had conducted herself

appropriately during supervised visits with her biological children, and had a more stable

living environment than she had in the past. J.W., 807 N.W.2d at 446-47. This court noted

that the evidence the parent presented “was appropriately focused on her skills and

behavioral tendencies at the time of the trial” and that the evidence “tends to prove that

[the parent] has done more than merely engage in services provided by the county or a

private social-service agency, and it tends to prove that her parenting skills actually have

improved.” Id.

       In this case, mother presented evidence that she attended four parenting classes

offered by four different providers for a total of 15.5 hours after T.T. was born. Mother

testified that she learned appropriate discipline techniques, how to set clear boundaries for

a child, and how to be a more assertive and supportive parent. Mother also testified that

she and father had a two-bedroom apartment and that it was in good condition. She testified

that they had a car seat, a changing table, and possibly a highchair, and that they had money

to purchase other items for T.T. Mother also testified that she and father had changed, they

had participated in marriage counseling, they had been learning how to make more

nutritious meals, and they had identified potential daycare providers for T.T. Mother

testified that she loves T.T. and her “heart’s desire is to bring him home with [them].”

       Mother’s co-worker, H.W., testified in support of mother, stating that mother had

significantly improved her attitude, mother had attended marriage counseling, mother




                                             10
deserved a second chance to prove that she can be a good mother to T.T., and that it is

“really unfair to take [mother and father’s] son away when they haven’t done anything.”2

         Mother presented significantly less evidence of improvement than the parent in J.W.

Although mother attended parenting classes for three months after T.T. was removed from

her care, she did not present testimony from her instructors regarding whether she was

active and engaged in those classes or testimony from anyone other than father regarding

improvements in her parenting abilities. And mother does not explain how 15.5 hours of

parenting classes with four different providers could improve her parenting skills where

her skills did not improve after 95 hours of parenting education in the last TPR proceeding.

         Mother’s evidence suggests that she may have been somewhat better equipped to

provide T.T. with physical necessities at the time of trial in this case. But given the

relatively short time period between the prior TPR and the current TPR, the neglect that

mother’s children previously experienced in her care, and mother’s failure to accept

responsibility for that neglect, mother’s evidence was insufficient to show that she had

changed in significant and material ways since the last TPR.

         Most importantly, mother did not meaningfully accept responsibility for the neglect

of her children. Instead, she minimized the harm that her children had experienced and

generally defended her actions and father’s actions. Mother downplayed the condition of

the Glencoe home, admitting only that they “didn’t have the cleanest house on the block,”

there “were cockroaches in the house,” and the home had structural problems because it



2
    The district court noted that H.W.’s parental rights to her child were terminated.

                                               11
was an older home. Mother blamed the city for the sewage backup in the home’s basement.

When the county’s counsel asked mother how she thought living in the house affected her

children, mother testified that she did not know “because we don’t get to speak to them.”

       In addition, mother denied that she contributed to her children’s failure to thrive,

claiming that she and father fed the children and that “part of [their failure to grow] has to

do with the genetics.” Mother’s position is inconsistent with the district court’s finding in

the prior TPR proceeding that the children were not provided with necessary food or

nutrition and that one of the children told a social worker that he had difficulty eating at

home because “cockroaches would fly in.” Mother’s position is also inconsistent with the

district court’s finding that initial genetic testing indicated that the children’s growth issues

did not have a genetic origin and that there was clear-and-convincing evidence that at least

the youngest child’s health issues were the result of inadequate nutrition and medical care.

       On this record, substantial evidence supports the district court’s findings that there

had not been sufficient time for mother to rehabilitate or change and that mother refused to

acknowledge her neglect of the other children. Moreover, mother did not acknowledge the

harmful effect that the neglect had on the children. Under the circumstances, there is little

reason to believe that mother will prevent T.T. from experiencing the type of neglect that

the other children experienced. The district court therefore did not err by terminating

mother’s parental rights based on a determination that mother is palpably unfit.

                                               II.

       Mother argues that “the district court erred by not allowing [her] an opportunity to

demonstrate if she can parent overnight or without supervision,” or in a supervised setting


                                               12
outside of the artificially controlled environment of a VEC. Mother contends that “when

a court relieves a county of providing reasonable efforts at rehabilitation, the court still has

a duty to ensure that a parent is given an opportunity to demonstrate if they can parent

overnight or without supervision.”

       As noted above, a social-services agency need not make reasonable efforts to

reunify a parent and child where the agency establishes a prima facie case that “the parental

rights of the parent to another child have been terminated involuntarily.” Minn. Stat. §

260.012(a)(2), see also D.L.R.D., 656 N.W.2d at 251 (“[T]he termination statutes clearly

provide that when a parent has had parental rights to one or more children involuntarily

terminated, the agency is not required to make reasonable efforts to develop a case plan

and reunite the parent and child.”).

       The prior TPR order is part of the record in this case, and mother does not dispute

that the county established a prima facie case that her parental rights to her other children

were involuntarily terminated. The county therefore was not obligated to make reasonable

efforts to reunite mother with T.T. or otherwise give mother a “meaningful opportunity” to

parent. Mother does not cite authority indicating that she was entitled to additional

supervised visitation, unsupervised visitation, or overnight visitation with T.T. to prove

that she could parent him. Mother’s reliance on In re Welfare of the Children of B.M. is

unavailing because unlike the circumstances here, in B.M., the county was statutorily

required to make reasonable efforts to reunify. See 845 N.W.2d 558, 560-62, 565-66

(Minn. App. 2014) (reversing a TPR order where the county was statutorily required to

make reasonable efforts to reunify parent with child and “[t]he district court made no


                                              13
finding that reasonable efforts were undertaken by the county or that such efforts were

unnecessary”).

       In sum, mother does not establish that the district court had a “duty” to ensure that

she was given an opportunity to demonstrate her parenting abilities. In fact, that purported

“duty” is inherently inconsistent with the statutory presumption of palpable unfitness and

the lack of a reasonable-efforts requirement. And because the district court did not clearly

err by finding that mother did not rebut the presumption of palpable unfitness, we affirm.

       Affirmed.




                                            14
