Minnesota Lawyer
Cynthia Brown and Jason Brown
On Dec. 30, 2019, the Minnesota Court of Appeals issued a “no-holds-barred” reversal in a termination of parental rights case venued in Hennepin County. The decision in In re the Children of J.B.O. reveals multiple layers of mismanagement in a case that shouldn’t have been tried in the first place.
Father and Mother are the parents of a female child, E.O., born in 2002, and a male child, J.O., born in 2004. In October 2017, child protection received a report alleging that E.O. had been sexually abused for approximately seven years by Father.
Subsequent investigation revealed that Father had, in fact, perpetrated upon E.O. Father was charged with first-degree criminal sexual conduct. He remains incarcerated until 2026.
In November 2017 Hennepin County filed a petition to terminate Father’s parental rights of E.O. and J.O. The county alleged that Father was palpably unfit to parent in light of the egregious harm he caused to E.O.
At the initial hearing, the District Court determined that the county’s petition established a primae facie showing that a juvenile protection matter existed. An order for protective care was issued. Despite the fact that Mother was not complicit, the children were placed with a foster family.
The District Court did not relieve the county of reasonable efforts to reunify. However, the District Court failed to complete the portion of a form order relating to reasonable efforts. Moreover, the county did not request to be relieved of an obligation to make reasonable efforts to reunify.
Still, in anticipation of a January 2019 pre-trial conference, a social worker’s report provided that the county “continues to be relieved of reasonable efforts” with regard to Father. A report with similar language was prepared by the social worker in anticipation of an April 5, 2019 pre-trial hearing.
No pre-trial order of the District Court addressed the issue of whether the county should be relieved of reasonable efforts to reunify.
A trial was held on April 10, 2019. The social worker testified that Father was originally “included in the case plan,” but that the county was “relieved of efforts [to reunify]…due to the nature of the [underlying] incident.”
Father’s attorneys did not challenge the erroneous position of the social worker, but instead argued that termination of Father’s parental rights was not in the best interests of E.O. and J.O.
J.O., 15 years of age at trial, testified that his relationship with Father was “strong” and that terminating Father’s parental rights would make him “heartbroken.” He noted that termination “wouldn’t benefit [him] in any way.”
E.O., 17 years of age at trial, did not testify. However, her attorney made a statement on her behalf, to which there was no response or challenge by the county.
Despite being a junior in high school, E.O. was a full-time college student at the University of Minnesota, found to be “mature beyond her years.” E.O.’s attorney said she was “where she needed to be” in treatment and that she “never supported” a termination and “does not want termination.”
Mother’s attorney made similar statements on Mother’s behalf, suggesting that “her children are…intelligent…and [the court] should give great weight and credibility to [the children’s] wants in this case.”
The guardian ad litem recommended that Father’s parental rights be terminated, but also testified that the children are “old enough to make their own decisions regarding the type and frequency of contact that they have with their Father, both now and in the future.”
The District Court terminated Father’s parental rights, finding that the county was relieved of the need to make reunification efforts and that termination served the best interests of the children.
Father, Mother, and children appealed. The Court of Appeals reversed.
Father and E.O. argued that the District Court erred when it found that it had relieved the county of the obligation to make reunification efforts. The county argued that challenge was forfeited because it wasn’t raised with the District Court and no party requested reunification efforts.
Judge John Rodenberg suggested that such efforts are “required,” and “go beyond mere matters of form so as to indicate real, genuine assistance.” He also noted that reasonable efforts may be bypassed “upon a determination by the court” under the appropriate circumstances. Here, however, “[t]here [was] no record support for the finding that the County was relieved of the reasonable efforts obligation by the district court.” (Emphasis in original).
The Court of Appeals also rejected the county’s argument that no party requested reunification effort, suggesting that “[n]othing…obligates a parent to request reunification efforts.”
Father, Mother, E.O. and J.O also argued that the best interest factors weigh against termination of Father’s parental rights.
Rodenberg opined that a “proper best interest analysis” in a termination proceeding requires the District Court to balance: (1) the child’s interest in preserving the relationship; (2) the parent’s interest in preserving the relationship; and (3) any competing interest of a child, including “a stable environment, health considerations, and the child’s preferences.”
The Court of Appeals took significant issue with the deference the District Court gave to the opinions of the social worker and guardian ad litem in light of the totality of the record evidence.
Judge Rodenberg noted that “[this] case is extraordinary. The children are, by all accounts, doing well. They are bright and accomplished…both have received the appropriate therapy for what has happened to them…[and] each clearly expressed a reasoned desire to maintain a legal relationship with Father.”
Moreover, he suggested that“[b]ecause Father is in prison [until 2026] he poses no safety threat to either child,” as both will be over age 18 at the time of Father’s release.
Judge Rodenberg forcefully opined that “[t]he government doesn’t always know what is best for families.”
The Court of Appeals ultimately concluded “[t]he power of the state should not be used to break up an otherwise-viable family. This family is united in a preference that safeguards and protects each child. The wishes of a mature and responsible child that a parent’s rights not be terminated must be honored in a case where that child’s needs are fully met by the other parent.”
The J.B.O. decision begs the question of why the county was interested in pursuing a termination in the first place? These kids were 17 and 15, with Father heading to prison.
Is it a matter of the county taking a hyper-diligent approach? There is no shortage of press about the limited resources that once existed in juvenile protection cases. J.B.O. seems to represent overcompensation.
Or, are guardians and social workers now so plentiful that they simply have a policy of pursuing every case — even if common sense suggests otherwise? After all, the J.B.O. matter could simply have trailed Father’s criminal proceeding and, once he was committed to the commissioner of corrections, dismissed.
In the context of family court, don’t forget that the guardians once readily available to children experiencing tough issues in custody disputes were reassigned to juvenile protection in large numbers a few years back. Perhaps if cases like J.O./E.O are handled more practically going forward, a few of those guardians can reclaim their office space in the Family Justice Center — and focus on cases that are truly consequential.
