This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In the Matter of the Welfare of the Child of:

J.A.C. and L.H.S., II, Parents


Filed March 6, 2007

Reversed and remanded

Randall, Judge


Stearns County District Court

File No. J1-03-50106


Janelle P. Kendall, Stearns County Attorney, Gayle A. Borchert, Assistant County Attorney, 705 Courthouse Square, Room 448, St. Cloud, MN  56303 (for appellant county)


Cynthia J. Vermeulen, Vermeulen Law Office, P.A., 26 North Seventh Avenue, St. Cloud, MN  56303 (for guardian ad litem)


Andrew R. Pearson, 1505 Division Street, Waite Park, MN  56387 (for respondent mother)


L.H.S., II, 228 Sixth Avenue North, Waite Park, MN  56387 (pro se father)


            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the district court’s denial of appellant-county’s petition to transfer legal custody of the child to the child’s father, appellant-county argues that (a) the district court erred in holding that under Minn. Stat. § 260C.201, subd. 11 (Supp. 2005), it must determine, as a threshold matter, whether the conditions that led to the child’s out-of-home placement have been corrected; and (b) the district court’s findings that respondent-mother corrected the conditions that led to the child’s out-of-home placement are clearly erroneous.  We conclude that the evidence does not support the district court’s findings that respondent-mother corrected the conditions that led to the child’s out-of-home placement.  We reverse and remand.


            L.H.S. (father) and respondent J.A.C. (mother) are the biological parents of K.M.F., born October 21, 1992.  Respondent and L.H.S. were never married, and K.M.F. is the second of J.A.C.’s four children.  K.M.F. has an older half-sister, a younger half-sister, and a younger half-brother, born January 2006.

            In January 2003, J.A.C. was assaulted by her husband Antonio Nunez, a/k/a Jose Antonio Chavez Hernandez.  Following the assault, K.M.F. and her sisters and brother (half) were involuntarily placed in foster care and a petition was filed alleging that K.M.F. was a child in need of protection or services.  On February 24, 2003, K.M.F. was adjudged to be in need of protection or services because the child was “without proper parental care because of the emotional, mental, or physical disability, or state of immaturity of the child’s parent, guardian, or other custodian,” and because the child was “one whose condition, or environment is such as to be injurious or dangerous to the child.”  Under the terms of the February 24, 2003 order, respondent was required to (a) make efforts to obtain and maintain separate and appropriate housing from her husband for herself and her children, and to ensure that her children have no direct or indirect contact with her husband; (b) complete a diagnostic assessment; and (c) attend the Facilitated Support Group for women affected by domestic violence offered by Anna Marie’s Shelter.  The order further mandated that J.A.C. obtain individual counseling for the children. 

            Respondent’s children were returned to her home in April 2003, after Nunez moved back to Mexico.  K.M.F. remained in respondent’s custody under protective supervision of the appellant Stearns County Human Services until July 8, 2005.  At that time, temporary custody of K.M.F. was granted to appellant for placement with the maternal grandmother, because respondent (1) was not in compliance with her case plan; (2) was not getting K.M.F. to individual counseling; (3) was keeping K.M.F. home to baby-sit her younger brother while respondent was at work or away from home; (4) had moved to Long Prairie to live with her husband without approval of the county; and (5) had a relationship with a suspected gang member.

            On September 11, 2005, K.M.F. was placed in temporary care in L.H.S.’s home.  A petition to transfer permanent legal and physical custody was subsequently filed on May 23, 2006, requesting that the permanent physical and legal custody of K.M.F. be transferred to L.H.S. because the conditions that led to out-of-home placement had not been corrected and
would not be corrected in the reasonably foreseeable future.  Shortly thereafter, a trial on the custody issue was conducted. 

            At trial, Stearns County Child Protection Worker Kathi Durkee testified that in her opinion, it was in K.M.F.’s best interests that respondent’s parental rights be transferred permanently and legally to L.H.S.  According to Durkee, her conclusion was based on concerns that respondent’s two-bedroom apartment would not allow much privacy for the children and that a return to respondent’s custody would force K.M.F. to attend daycare.  The guardian ad litem (GAL), Dannielle Bunting, also testified at trial and echoed many of Durkee’s concerns.  Bunting testified that the transfer of custody would be in K.M.F.’s best interests based on the small size of respondent’s apartment and concerns that K.M.F. would be put in a role where she would have to provide daycare to her younger siblings.  Bunting also testified that respondent originally did not make any effort to work on her case plan and that respondent’s more recent changes are only “surface changes.”

            K.M.F. testified that she would like to continue living with her father and his fiancée.  K.M.F.’s preference was reiterated by Pam Jacobsen of Greater Minnesota Family Services (GMFS).  Jacobsen, who is a mental-health practitioner, testified that she has been working with the family since 2003, and that K.M.F. has blossomed while living with her father.  According to Jacobsen, K.M.F. repeatedly stated that she wants to continue living with her father and that if she had to go and live with her mom, she would need a lot of therapy.   

            On August 11, 2006, the district court denied appellant’s request to transfer custody of K.M.F. to L.H.S.  The district court held that under permanency placement petitions, the key factor in deciding whether to grant or deny a petition for change of custody is “whether the conditions which led to the out-of-home placement have been corrected.”  The court stated that it “may not consider best interests if the prior conditions have been corrected.”  The court even acknowledged that there “is a strong argument that it would be in [K.M.F.’s] best interest to live in St. Cloud with her father.”  The court then denied the petition because appellant “failed to prove . . . that the conditions leading to [K.M.F.’s] out-of-home placement continue[d] to exist.” 

            After the district court released its order, appellant moved to stay the proceedings.  The district court granted the motion and stayed its order.  This appeal followed.


            Under Minnesota law, the district court must conduct a hearing to determine a child’s permanent status no later than 12 months after the child is placed out of the parent’s home.  Minn. Stat. § 260C.201, subd. 11(a) (Supp. 2005).  If a county does not recommend reunification, it must petition the court to order permanent placement of the child.  Minn. Stat. § 260C.201, subd. 11(b) (Supp. 2005).  If the court decides not to return the child home, it must order one of the dispositions listed in the governing statute, which includes permanently placing the child in the custody of a relative if that decision is in the child’s best interests.  Minn. Stat. § 260C.201, subd. 11(d)(1) (Supp. 2005).  The allegations of the petition for permanent placement must be proved by clear and convincing evidence.  In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996).  

            On appeal, this court must determine whether the district court’s permanency findings “address the statutory criteria and are supported by substantial evidence, or whether they are clearly erroneous.”  Id. (quotation omitted).  Whether the district court correctly applied the law is a legal question this court reviews de novo.  In re A.R.M., 611 N.W.2d 43, 47 (Minn. App. 2000). 

            When it places a child outside of the home, the district court must include the following detailed findings:

(1)  how the child’s best interests are served by the order;

(2)  the nature and extent of the responsible social service agency’s reasonable efforts . . . to reunify the child with the parent . . .;

(3)  the parent’s . . . efforts and ability to use services to correct the conditions which led to the out-of-home placement; and

(4)  that the conditions which led to the out-of-home placement have not been corrected so that the child can safely return home.


Minn. Stat. § 260C.201, subd. 11(i) (Supp. 2005).

            Appellant argues that in denying its motion to transfer custody of the child to her father, the district court used the wrong legal standard by determining, as a threshold matter, whether the conditions that led to the out-of-home placement had been corrected.  Appellant argues that under section 260C.201, subd. 11(i), all of the factors, including the child’s best interests, must be weighed equally.  Thus, appellant claims that the district court erred by deciding not to consider whether placement with the child’s father was in her best interests. 

            The district court’s order strongly indicates that placement of K.M.F. with her father is in the child’s best interests.  This is reflected by the following findings made by the district court:

            The GAL and social worker support [L.H.S.] being a permanent placement for [K.M.F.].


            By all accounts, [K.M.F.] has flourished while living [in] her father’s home.  She has started making progress in school, after a rocky start.  She has made friends in the area and is improving her social skills.  She has household rules to follow and adequate supervision.  [K.M.F.] also has her own bedroom and privacy when needed.


            [K.M.F.] is doing well both academically and socially in [L.H.S.’s] care.  She is also participating or has plans to participate in various church and school programs during the next year.


            [K.M.F.] has expressed a desire to remain with her father and to have visitation with her mother.


            . . . .


            The court notes that if this matter had come before it as a custody dispute under Minn. Stat. 257 or 518 rather than a permanency petition under Minn. Stat. 260C.201, subd. 11, a different outcome may have resulted, because a different legal standard is applicable.  There is a strong argument that it would be in [K.M.F.’s] best interest to live in St. Cloud with her father and to be near her grandmother and [older half- sister], and that living in St. Cloud with her father would provide her with more opportunities for activities and school. 


            But despite what appears to be overwhelming evidence that a transfer of K.M.F.’s custody to her father is in the child’s best interests, the district court concluded that it could not consider the best interests under Minn. Stat. § 260C.201, subd. 11(i), because respondent had corrected the conditions that led to the out-of-home placement.  Respondent contends that the district court correctly interpreted the statute because the statutory language mandates that at a placement hearing, the initial determination is whether the conditions that led to the out-of-home placement have been corrected.  Respondent argues that under the statute, the factors contained in section 260C.201, subd. 11(i), which include best interests, are only considered if the conditions that led to the out-of-home placement have not been corrected.  Respondent argues that because the district court found that she corrected the conditions that led to K.M.F.’s out-of-home placement, the district court properly determined that a best-interests analysis is not allowed.  Respondent’s argument on this narrow issue is persuasive.  By implication, based on the statutory language, if the county gives the parent a case management plan to better parenting, and the parent complies with the plan, custodial return to that parent is logical. 

            However, having said that, the conclusion that respondent complied with the case management plan has to be re-examined in light of the facts.  The record reflects that the conditions that led to K.M.F.’s out-of-home placement were:

(1) [respondent] was not in compliance with her case plan; (2) [respondent] was not getting the child to individual counseling; (3) [respondent] was using the child to baby sit her younger brother while [respondent] was at work and away from home; (4) [respondent] moved to Long Prairie to live with Mr. Chavez without approval of the agency; (5) [respondent] had a relationship with Raul Lopez, a suspected gang member; (6) [respondent] was reportedly still seeing Antonio Chavez.


            Appellant argues that the district court erred in returning K.M.F. to the custody of respondent because the evidence presented demonstrates that respondent failed to correct all of the conditions leading to the out-of-home placement.  We agree.  The district court found that “Ms. Bunting, the GAL, believes that [respondent’s] compliance is a surface level attempt to have [K.M.F.] returned to her home.  Ms. Bunting does not believe [respondent’s] commitment to the changes she has made during the last year is genuine.”  This testimony indicates that respondent is not in compliance with her case plan, the first condition that led to K.M.F.’s out-of-home placement. 

            The district court also expressed concern that respondent will use K.M.F. as a babysitter.  Specifically, the district court found that:

            The third condition – using [K.M.F.] as daycare and placing inappropriate responsibilities on her shoulders – is more concerning.  [Respondent] works a night shift.  The time of her job shifts will require the children to be in daycare during the night, as well as requiring [K.M.F.] and her siblings to awaken at odd hours to travel to and from daycare.  This situation is not dissimilar to the one that existed when the CHIPS action began.  Adding to the stress is the birth of [respondent’s] last child, who is approximately six months old at this time.  The court has concerns that [respondent] will again use [K.M.F.] as childcare for her younger children.  Babysitting on an occasional basis is appropriate for a child of [K.M.F.’s] age.  Providing child care as a substitute parent is not.


            The district court then found that despite the concern, there was no evidence that respondent would be called upon to care for her siblings.  We conclude that the record reflects otherwise.  Respondent has a history of using K.M.F. as a means of childcare for the younger children.  Respondent’s job situation and the age of the children indicate that respondent will continue to use K.M.F. as daycare if her custody is returned to respondent.  This is supported by testimony that respondent’s daycare provider will not charge respondent for K.M.F. if the child helps out with the younger children at daycare.

            There is evidence that respondent has not been forthright with the county about her living situation.  The district court found that:

            [Respondent] moved to Long Prairie in Late May 2005 without agency approval.  She then moved back to St. Cloud and then recently moved to Melrose.  [Respondent] was not candid or forthcoming about her move to Long Prairie during her testimony at trial, which leads the court to question her credibility.



There are allegations that respondent has not only been in contact with her husband, but also that she recently had a relationship with a known gang member.  Although we acknowledge the district court’s rejection of these allegations on the basis that evidence supporting the allegations was lacking, we conclude that in light of all the evidence presented at the hearing, it was error to find that respondent substantially corrected the conditions that led to K.M.F.’s out-of-home placement. 

            We reverse and remand for another hearing on case management plan compliance.  On remand, the district court is free to consider the need for more and new evidence and to reopen the record if necessary.  In the meantime, we continue the stay, as did the district court, leaving K.M.F. with her father.  As the district court pointed out to L.H.S., we reiterate that it is appropriate now for L.H.S. and Stearns County to consider a formal motion to change custody.  

            Reversed and remanded.