author: CROTHERS, Justice.

text:
    2008 ND 107
    B.L.L. and G.C., a child, Plaintiffs and Appellees v. W.D.C., Defendant and Appellant.
    No. 20070324.
    Supreme Court of North Dakota.
    June 5, 2008.

      Anne E. Summers (argued) and Edwin W.F. Dyer III (on brief), Dyer & Summers, P.C., Bismarck, ND, for plaintiffs and appellees.
    Justin Jacob Vinje (argued), Bismarck, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] W.D.C. appeals from the district court’s order terminating his parental rights. He argues insufficient evidence exists showing abandonment and termination is not in the child’s best interests. The district court’s order is affirmed.

I

[¶ 2] G.C. was born in September 2005. G.C.’s mother, B.L.L., was sixteen years old when she became pregnant. The child’s parents were not married and never lived together. The father was incarcerated during the pregnancy, but was released prior to the birth. The mother continued to reside with her parents after the birth. Accounts differ about the quality of the family’s relationship after the child’s birth. The mother asserts that the father did not assist in caring for the child and that the father liked the child “just kind of to look at.” She further claims the father has not contributed to the care or support of the child. The father admits he has not provided any financial support. He claims he wants to have a relationship with his child, but the mother has denied contact. The father was incarcerated since March 2006 and, at the time of trial, had approximately five months left to serve. He contends he has tried to arrange visits with his child from prison, but the mother has ignored his requests. The mother claims she and the child visited the father in prison approximately five times at the father’s request, but the father wanted to see her rather than the child. The mother petitioned for, and received, a protection order against the father because she contends he threatened her in a phone call made from prison. Since the protection order was issued, the mother has not visited the father, and she contends he has not asked to see his child. According to the father, the protection order has made it challenging to maintain a relationship with his son.

[¶ 3] The mother petitioned for termination of the father’s parental rights because of his violent behavior, financial irresponsibility and drug use. The parental rights termination hearing was held on September 10, 2007. The district court found the father “made little effort ... to establish a relationship with the child.” The district court found the mother brought the child to visit his father in prison, but the visits ended because she felt the father was verbally abusive. The district court determined the protection order did not prevent the father from sending child support, gifts or presents to his child, but he failed to do so. The district court ascertained the father had abandoned his son and terminated the father’s parental rights.

[¶ 4] The father appeals, arguing insufficient evidence exists to support a finding of abandonment and arguing termination is not within the best interests of the child.

II

[¶ 5] Whether a child has been abandoned is a question of fact. In re S.R.F., 2004 ND 150, ¶ 10, 683 N.W.2d 913. “[Findings of fact in juvenile matters shall not be set aside on appeal unless clearly erroneous.” Id. at ¶ 7 (acknowledging an amendment to N.D.R.Civ.P. 52(a) excluding de novo review in juvenile cases). “A finding of fact is not clearly erroneous unless it has no support in the evidence or, although there may be some supporting evidence for it, this court is left with a definite and firm conviction that a mistake has been made.” Landsberger v. Landsberger, 364 N.W.2d 918, 920 (N.D.1985).

[¶ 6] Section 27-20-44(1)(a), N.D.C.C., allows termination of parental rights if the parent has abandoned the child. Non-custodial parents are deemed to have abandoned their children if they fail, without justifiable cause, “(1) [t]o communicate with the child; or (2) [t]o provide for the care and support of the child as required by law.” N.D.C.C. § 27-20-02(1)(a). See also N.D.C.C. § 14-15-01(1)(a) (indicating an identical definition of “abandon” under the Revised Uniform Adoption Act). This Court has elaborated:

“In determining whether abandonment has taken place, we look to such factors as the parent’s contact and communication with the child, the parent’s love, care and affection toward the child, and the parent’s intent. Also relevant is the parent’s acceptance of parental obligations such as providing care, protection, support, education, moral guidance, and a home for the child. A casual display of interest by a parent does not preclude a finding of abandonment, and a parent’s negligent failure to perform parental duties is significant to the issue.”

In re H.R.W., 2004 ND 216, ¶6, 689 N.W.2d 403 (citations omitted). It must be shown the parent possessed “intent to abandon [the child], which may be inferred from a parent’s conduct.” In re R.M.B., 402 N.W.2d 912, 915 (N.D.1987). “A parent’s incarceration is not alone a defense to abandonment, and abandonment may rest upon the parent’s confinement coupled with other factors such as parental neglect, absence of contact, failure to support, and disregard for the child’s general welfare.” In re C.K.H., 458 N.W.2d 303, 305-06 (N.D.1990).

[¶ 7] Here, the district court erroneously based its abandonment determination on N.D.C.C. ch. 14-15, the Revised Uniform Adoption Act. This termination was not pursued in conjunction with an adoption action, so the district court should have decided this case under the Uniform Juvenile Court Act, specifically N.D.C.C. § 27-20-44(1)(a). The definition for abandonment is identical under both Acts, save a presumption created under N.D.C.C. § 14-07-17 that failure to support a child for three months is presumptive evidence of a parent’s intention to abandon. The district court did not utilize this presumption so its reference to the Revised Uniform Adoption Act is harmless. See N.D.R.Civ.P. 61 (stating error must be disregarded if it does not affect the substantial rights of the parties).

[¶ 8] The father admits he has not contributed financially to the support of his son, stating, “I’ve been unable to but I gladly would, yes.” He also admits he rarely spent time with his son prior to his incarceration:

Q: Okay. And you saw your son [ ] for what, about six months of his life?
A: Yes.
Q: And would [the mother] bring him over to the trailer where you were living?
A: If she wasn’t upset with me, yes.
Q: And did you ever take care of him yourself when you had him?
A: Yes while she was with her — somebody would come and pick her up and try to keep her out of trouble because she’s constantly getting in trouble for assaulting her mother and other girls, so this lady would come up. I think it was called a mentor — so the lady would come and take her out to eat and whatnot and he would sit there with me, yeah.
Q: Then you would have the care of [the child] during that time?
A: Yes — well unless her mother had him. I worked 12, 13 hour days.
Q: And did you ever take [the child] to visit any of your relatives?
A: Usually if I was there, [the mother] was there because I don’t have a drivers license.
Q: So you wouldn’t take him on your own?
A: No.
Q: But the two of you would take him to visit other relatives?
A: Yes.

The mother also testified the father did not make any effort to be a part of the child’s life prior to the father’s incarceration. According to the mother, the father never changed a diaper and barely held the child. The mother claims when the father was to care for the child on his own he would pass off the responsibility to other relatives.

[¶ 9] The mother brought the child to see his father approximately five times while the father was incarcerated. The father claims he requested these visits with his child, but the mother testified that while the father expressed an interest in seeing her, bringing the child was her idea. Since the father has been the subject of a protection order preventing contact with the mother, he has not called, written or requested contact with the child. The father claims he tried to arrange a visit with the child through his mother, the child’s paternal grandmother. The mother agrees she has spoken with the child’s grandmother, but claims the grandmother was not speaking on her son’s behalf. Rather, the grandmother wanted to spend time with the child. Even if the father showed a casual interest in seeing his child, H.R.W. cautions that a finding of abandonment may be proper despite “casual display[s] of interest by a parent” and that the significant issue is the “parent’s negligent failure to perform parental duties.” 2004 ND 216, ¶6, 689 N.W.2d 403.

[¶ 10] Our case law also cautions that “imprisonment per se [is] not sufficient to constitute intentional abandonment.” In re F.H., 283 N.W.2d 202, 211 (N.D.1979). Imprisonment when combined “with other factors, such as parental neglect and withholding parental affection, lend support to a finding that the parent had relinquished all parental claims to his child and thereby abandoned him.” Id. While imprisonment would necessarily interfere with the father’s ability to care for the child, the evidence indicates the father made little effort to parent the child, both during and prior to his incarceration. The district court’s finding of abandonment is not clearly erroneous because some of the evidence supports the district court’s finding and because we are not left with a definite and firm conviction a mistake has been made. See Landsberger, 364 N.W.2d at 920.

[¶ 11] The father also argues termination of his parental rights is not in the best interests of the child. This argument fails because a “best interests of the child” analysis relates to custody determinations. See N.D.C.C. §§ 14-09-05, 14-09-06.1. The “best interests” test has not been used when terminating a parent’s rights due to abandonment under N.D.C.C. § 27-20-44.

“A court’s consideration of a child’s welfare in a termination proceeding, however, must be distinguished from the ‘best interests of the child’ test used primarily in custody proceedings. The ‘best interest of the child’ test involves the weighing of two acceptable alternatives for the rearing of the child. In a termination proceeding, however, the consideration is whether or not the alternative of letting the parent retain his parental rights is acceptable regardless of any competing alternatives. A court makes its determination upon a finding of abandonment, consent, or the parents’ continued failure to provide minimum standards of care. Where either of these three circumstances exist, the welfare of the child dictates that the parent’s rights be terminated.”

F.H., 283 N.W.2d at 213-14 (citations omitted).

III

[¶ 12] B.L.L. has requested an award of attorney’s fees under N.D.R.App.P. 38 arguing that this appeal is frivolous. “An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.” Healy v. Healy, 397 N.W.2d 71, 76 (N.D.1986). We conclude this appeal is not frivolous; thus we deny the request for attorney’s fees.

[¶ 13] B.L.L. also claims sanctions should be awarded under N.D.R.App.P. 13 because a letter W.D.C. sent to B.L.L.’s attorney was abusive. Under N.D.RApp.P. 13, “[t]he supreme court may take appropriate action against any person failing to perform an act required by rule or court order.” Rule 13 “is used as an enforcement tool to encourage compliance with the North Dakota Rules of Appellate Procedure.” Hanson v. Hanson, 2003 ND 20, ¶ 14, 656 N.W.2d 656. We deny B.L.L.’s request for sanctions because her motion does not establish how the letter has violated the court rules or any court order.

IV

[¶ 14] We conclude the district court’s finding of abandonment was not clearly erroneous; therefore we affirm the district court’s order.

[1Í15] VANDE WALLE, C.J., MAR-ING, KAPSNER, and SANDSTROM, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2008 SD 37
    FIRST NATIONAL BANK OF OMAHA, Plaintiff and Appellant, v. Allen KOLUCEK, Defendant.
    No. 24676.
    Supreme Court of South Dakota.
    Considered on Briefs May 19, 2008.
    Decided May 28, 2008.
    Lisa Lauinger of Johnson, Rodenburg & Lauinger, Bismarck, North Dakota, Attorneys for plaintiff and appellant.
    Allen Kolucek, Scotland, South Dakota, Pro se defendant.
   PER CURIAM.

[¶ 1.] First National Bank of Omaha (First National) appeals the circuit court’s denial of a motion to compel answers to post-judgment interrogatories. We reverse.

BACKGROUND

[¶ 2.] First National obtained a default judgment against Allen Kolucek for past due credit card debt. A summons and complaint were personally served upon Kolucek and he made no appearance in this matter. Judgment in the amount of $6,449.93 was entered on March 31, 2006. First National then sent Kolucek “Interrogatories Pursuant to Rule 69” seeking financial information to aid in recovering the judgment amount. No response was received. First National then served and filed a motion with the circuit court seeking an order to compel Kolucek to answer the post-judgment interrogatories.

[¶ 3.] Following a hearing, the circuit court denied the motion to compel reasoning that First National was improperly proceeding under SDCL 15-6-69 (execution)(Rule 69) and should instead be proceeding under SDCL ch 15-20 (proceedings supplementary to execution) in order to seek information in aid of execution of judgment. The circuit court also found that the Rule 69 interrogatories were not properly served because they were sent by first class mail and required any future requests be sent by certified mail with return receipt. First National appeals.

ISSUE

[¶ 4.] Whether the circuit court erred in denying First National’s motion to compel answers to post-judgment interrogatories.

A Whether First National was entitled to post-judgment discovery under SDCL 15-6-69.

[¶ 5.] First National relied upon SDCL 15-6-69 in submitting these interrogatories to aid in the execution of the judgment. That rule provides:

Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with applicable statute or rule. In aid of a judgment or execution, the judgment creditor, or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor in the manner provided in these rules.

SDCL 15-6-69 (emphasis added). Although this Court has not had occasion to address this rule, the relevant portion as highlighted above closely tracks Federal Rule of Civil Procedure 69. Fed.R.Civ.P. 69(a)(2). In addressing the federal counterpart to the rule, leading commentators have recognized that the intent of the rule is that “[t]he judgment creditor is allowed discovery to find out about assets on which execution can issue or about assets that have been fraudulently transferred or are otherwise beyond the reach of execution.” 12 Wright, Miller & Marcus, Federal Practice and Procedure, § 3014 (2nd ed. 1997). To accomplish this purpose, the judgment creditor may use any of the discovery devices provided in the civil rules to aid in the execution. Id. See also 13 James Wm. Moore et al., Moore’s Federal Practice, ch 69.04[3] (3rd ed 2007). SDCL 15-6-26(a) specifically provides for discovery by written interrogatories.

[¶ 6.] In comparison, SDCL ch 15-20 (proceedings supplementary to execution) provides for an examination of a debtor after execution has occurred, but the judgment remains unsatisfied. See SDCL 15-20-1. In addressing the interrelationship between these provisions in a similar situation, the Minnesota Court of Appeals found:

Appellant’s argument regarding the exclusivity of [the examination of debtor provisions similar to SDCL ch 15-20] is not sound. A plain reading of Rule 69 shows that the judgment creditor may obtain discovery from any person in the manner provided in the rules, “in aid of judgment or execution.” Here, respondent attempted to use discovery in aid of judgment. One need not wait until the writ of execution is returned unsatisfied to utilize discovery.

Anchor Gas, Inc. v. Border Black Top, Inc., 381 N.W.2d 96, 98 (Minn.App.1986). Therefore, the court affirmed the lower court’s decision allowing post-judgment discovery under Rule 69 to aid in execution of judgment. This same determination was reached by the North Dakota Supreme Court in Mid-Dakota Clinic, P.C. v. Kolsrud, 603 N.W.2d 475, 476-78 (N.D.1999). In that ease, the court recognized that Rule 69 provides “a practical and inexpensive means for both the judgment creditor and debtor of discovering the assets of a judgment debtor.” Id. at 478. Further, the examination of debtor provisions similar to SDCL ch 15-20 require first an unsatisfied execution, whereas Rule 69 discovery is utilized prior to execution. Id. at 477-78. The North Dakota Supreme Court also found that public policy favored “allowing judgment creditors to proceed with post-judgment discovery without first issuing an execution on a debtor’s property.” Id. at 477. The court held that an “order compelling answers was a valid exercise of the trial court’s authority under Rule 37, because Rule 69 allows post-judgment discovery prior to the issuance of an execution.” Id. at 480.

[¶ 7.] Here, the circuit court erred as a matter of law in determining First National was required to proceed exclusively under SDCL ch 15-20 rather than utilizing SDCL 15-6-69, and incorrectly determined that it had no authority to compel answers to the Rule 69 interrogatories under SDCL 15-6-37(a) (motion for order compelling discovery).

B. Whether the request for post-judgment interrogatories was properly served.

[¶ 8.] Alternatively, the circuit court found that the Rule 69 interrogatories were not properly served because they were sent by first class mail. Instead, the circuit court imposed a requirement that they be served by certified mail with return receipt. In addressing proper service of post-judgment interrogatories, the North Dakota Supreme Court recognized that the Rule 5 service requirements applied because “discovery documents do not begin a separate action, but merely aid the judgment. Thus, [judgment creditor’s] Rule 5 service by mail to [debtor’s] last known address was sufficient.” Mid-Dakota Clinic, P.C., 603 N.W.2d at 479. Similarly, SDCL 15 — 6—5(b) provides that for every pleading subsequent to the original complaint, service “shall be made by delivering a copy to him or by mailing it to him at his last known address.” In addition, “[s]erviee by mail shall be by first class mail and is complete upon mailing.” Id. Consequently, service of the Rule 69 interrogatories was properly effectuated by first class mail.

[¶ 9.] Reversed.

[¶ 10.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . Kolucek has not entered an appearance or contested the appeal.

      . SDCL 15-20-1 provides:
      When an execution upon a judgment for twenty-five dollars or more ... is returned unsatisfied in whole or in part, the judgment creditor at any time after such return is entitled to an order from a judge of the circuit court within the county to which the execution was issued, requiring such judgment debtor to appear and answer concerning his property before such judge, within such county, at a time and place specified in the order.

      . It is significant to note that the North Dakota Supreme Court also recognized that an order to show cause directing a debtor to appear and explain why he should not be held in contempt for failing to answer such interrogatories required Rule 4 service. Mid-Dakota Clinic, P.C., 603 N.W.2d at 479. This is consistent with SDCL 15 — 6—5(b) which provides that its provisions do not apply "to the service of ... any paper to bring a party into contempt.” See Matter of Gillespi, 397 N.W.2d 476, 477-78 (S.D.1986) (holding service under SDCL 15-6-4 is mandatory in order for the circuit court to acquire jurisdiction in contempt proceedings). While this is not applicable at this point, it may become so in the future.


text:
    In re The MARRIAGE OF Tanya Lynn GINSBERG and John D. Ginsberg Upon the Petition of Tanya Lynn Ginsberg, Appellee, and Concerning John D. Ginsberg, Appellant.
    No. 06-0615.
    Supreme Court of Iowa.
    May 16, 2008.
    Rehearing Denied June 10, 2008.
    Alexander R. Rhoads of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellant.

      Jeanne K. Johnson, Des Moines, for ap-pellee.
   PER CURIAM.

Tanya and John Ginsberg ended their marriage in 2004. Their dissolution decree ordered John to pay the debt the parties owed to Tanya’s father and hold Tanya harmless from any liability. Because the parties could not agree on how much was owed, the decree stated the amount of the debt was “disputed.” John did not repay Tanya’s father. Tanya eventually repaid the loan herself and brought this action seeking indemnification from John under the terms of the decree. The district court ordered John to pay Tanya $121,000. John appealed. The court of appeals held claim preclusion barred Tanya’s action and remanded the case to the district court to dismiss. On further review, we hold claim preclusion does not bar an action to enforce the decree. We vacate the decision of the court of appeals and affirm the decision of the district court.

I. Facts and Prior Proceedings.

Tanya and John Ginsberg were divorced on March 22, 2004. The district court entered a decree based upon the parties’ stipulation. See Iowa Code § 598.8(2)(a) (2003). The decree contained a provision regarding debt the parties owed to Tanya’s father, Ron Daniels: “[John] shall pay the debt, the amount of which is disputed, to Ron Daniels and hold [Tanya] harmless therefi’om.”

Daniels provided the parties substantial financial assistance during the marriage. In September 1991, Daniels loaned the parties $124,561.28 for the purchase of a home in Elkhart, Iowa. The loan was to be repaid within ninety days through a mortgage on the property. The parties chose instead to make periodic payments to Daniels. Between 1991 and 1998, the parties paid him $34,893.71. During May 1999, Daniels loaned the parties $180,000 for a down payment on a home in Des Moines. The parties repaid Daniels $180,000 five months later when they sold their Elkhart home. Additionally, the parties borrowed $70,000 from Daniels in August 2001. The parties made payments to Daniels totaling $38,398 between October 2001 and May 2003. The payments stopped after Tanya filed for divorce. In summary, Daniels loaned the parties a total of $374,561.28 and received $253,291.71 in payments for a balance of $121,269.57.

After the divorce was finalized, Daniels repeatedly asked Tanya when John was going to pay him. Tanya testified she grew tired of her father’s questioning and paid Daniels $121,000. Thereafter, she filed a “Motion to Enforce the Decree, or in the Alternative, Application for Declaratory Judgment” in order to recover from John the amount she paid.

The district court held a hearing and found the amount of the disputed debt to Daniels was $121,269.57. The court ordered John to pay Tanya $121,000 because she “is the real party in interest in as much as she paid her father.” The court also ordered John to pay Daniels $269.57. The court denied Tanya’s request for interest because Daniels testified it was not his custom to charge family members interest. The court also denied Tanya’s request for fees.

John appealed, arguing there was insufficient evidence to support the ruling. The court of appeals sua sponte raised the issue of claim preclusion in its ruling. It stated:

Either party could have insisted the district court decide the debt issue prior to the entry of the decree; but instead, they chose to go forward and allowed the issue to remain “disputed” as part of the court’s final order. As Tanya and John willingly relinquished their right to litigate a disputed issue, we conclude that subsequent litigation on the identical issue is barred.

The court of appeals also denied Tanya’s request for attorney fees on appeal.

Thereafter, Tanya applied for further review, which we granted. She argues the court of appeals erred by raising an issue not presented to or addressed by the district court. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding “we will not consider a substantive or procedural issue for the first time on appeal, even though such issue might be the only ground available to uphold a district court ruling”). For the reasons that follow, we vacate the decision of the court of appeals and affirm the district court.

II. Scope of Review.

We review cases tried in equity de novo. Iowa R.App. P. 6.4. However, we review the construction of a dissolution decree as a matter of law. In re Marriage of Goodman, 690 N.W.2d 279, 282 (Iowa 2004) (citing Sorensen v. Nelson, 342 N.W.2d 477, 479 (Iowa 1984)).

III. Merits.

A. Claim Preclusion. “[C]laim preclusion is a bar to further litigation of a claim following a final adjudication or judgment on the merits.” Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 398 (Iowa 1998). “[A] party must litigate all matters growing out of the claim, and claim preclusion will apply ‘not only to matters actually determined in an earlier action but to all relevant matters that could have been determined.’” Id. (quoting Shumaker v. Iowa Dep’t of Transp., 541 N.W.2d 850, 852 (Iowa 1995)).

We need not decide whether a court may raise claim preclusion sua sponte because we find the doctrine inapplicable in this case. The court of appeals held that by leaving the amount owed to Daniels “disputed,” the parties “relinquish[ed] the right to litigate any and all issues they had” regarding the debt. We disagree. Claim preclusion does not prevent the enforcement of the decree as it was written. Here, Tanya was not attempting to reliti-gate who should repay her father for the money he loaned the couple during their marriage. That issue had been decided. Tanya was merely asking the district court to enforce the “hold harmless” provision of the decree. Such an action is always permissible. See In re Marriage of Butterfield, 500 N.W.2d 95, 98 (Iowa Ct.App. 1993) (holding a stipulation of settlement in dissolution proceeding is a contract between the parties that becomes final and binding when it is accepted and approved by the court). Moreover, even if the decree had stated the amount the parties owed, Daniels would not be estopped from proving the loan was for a different amount because he was not a party to the decree. In a sense, Tanya stepped into Daniels’ shoes when she paid the debt and then turned to John for reimbursement.

B. Indemnification. According to the decree, John agreed to hold Tanya “harmless from any liability” stemming from the debt owed to Daniels. “Hold harmless” is synonymous with “indemnify.” Black’s Law Dictionary 749 (8th ed.2004). “In an indemnification contract, one party promises to reimburse or hold harmless another party for loss, damage, or liability.” Maxim Techs., Inc. v. City of Dubuque, 690 N.W.2d 896, 900 (Iowa 2005).

Since Tanya is seeking indemnification, she has the burden of proving she is entitled to the relief requested. Mineke v. Fox, 256 Iowa 256, 263, 126 N.W.2d 918, 921 (1964). The measure of relief “is the actual amount the person, who is secondarily liable, has been compelled to pay as a natural consequence of the [indemnitor]’s negligence or other wrong.” Howell v. River Prods. Co., 379 N.W.2d 919, 921 (Iowa 1986) (quoting 42 C.J.S. Indemnity § 24, at 602 (1944)). Tanya paid Daniels $121,000 to satisfy the amount owed to him. Certainly her payment is evidence of the amount owed. But because these loans were between family members, the amount paid is not nearly as compelling as the amount paid in an arms-length transaction. Nevertheless, we find Tanya proved the amount owed was $121,269.57 and she was entitled to $121,000 (the amount she paid).

Daniels and his office manager, who handled both his business and personal finances, testified regarding the amounts loaned and the amounts repaid. John did not dispute the dollar amounts provided. He claims the parties only owed Daniels the balance due for the $70,000 loan ($31,-602) because the $124,561.28 for the Elk-hart house in 1991 was really a gift. John did not explain what basis he had for believing the money was a gift other than he claimed the parties never made payments on that particular loan. Tanya offered evidence the parties paid Daniels $34,893.71 between 1991 and 1998. John testified this money was payment for a Lexus vehicle he bought from Daniels. The only evidence he offered in support of this claim was a check for $11,000 John made to Daniels. John wrote in the memo line “1st Lexus pymt.” However, the check was dated June 13, 2000, and the amount was not included in any of Tanya’s calculations. Thus, John did not disprove $34,893.71 was paid toward the $124,561.28 loan. Moreover, he offered no evidence to suggest the balance of the loan was transformed into a gift. Daniels testified the money was unequivocally a loan. The district court implicitly found Daniels and Tanya more credible than John. We find them more credible too.

IV. Conclusion.

The court of appeals erred by applying claim preclusion to Tanya’s indemnification action. Tanya proved she was entitled to $121,000 from John. The district court properly ordered John to pay Daniels $269.57. Tanya’s request for appellate attorney fees is denied.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


author: HECHT, Justice.

text:
    CITY OF CORALVILLE, Iowa, Appellant, v. IOWA UTILITIES BOARD (Department of Commerce), Appellee, MidAmerican Energy Company, and Consumer Advocate Division of The Department of Justice, Appellees.
    No. 07-0558.
    Supreme Court of Iowa.
    May 30, 2008.

      Ivan T. Webber, Ahlers & Cooney, P.C., Des Moines, for appellant.
    David J. Lynch, General Counsel, and Gary Stump, Assistant General Counsel, for appellee Iowa Utilities Board.
    Sheila K. Tipton of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for interested party-appellee Mi-dAmerican Energy Company.
    John R. Perkins and Ben A. Stead, Office of Consumer Advocate, for interested party-appellee Office of Consumer Advocate.
   HECHT, Justice.

In this case we examine the limits of a municipality’s home rule authority to control its right-of-way. On review of a decision of the Iowa Utilities Board, we conclude a tariff filed by a public utility does not conflict with an ordinance adopted by the City of Coralville so as to constitute a violation of the City’s home rule authority. We affirm.

I. Factual and Procedural Background.

A controversy between MidAmerican Energy Company and the City of Coral-ville arose in January 2000, when the City notified MidAmerican of a plan to widen 1st Avenue in Coralville. The plan necessitated the relocation of MidAmeriean’s overhead power lines. MidAmerican determined the lines should be placed underground, and claimed a tariff it had filed with the Iowa Utilities Board (IUB) permitted the company to charge the costs of “undergrounding” to the City. In City of Coralville v. MidAmerican Energy Co., Johnson Co. No. LACV61728 (Coralville I), the district court determined that although the tariff addressed the imposition of the costs of “undergrounding” on customers requesting a change of service, the City was not acting as a customer when it passed its undergrounding ordinance and undertook the road-widening project. The court concluded the City acted instead in its role as the owner of the right-of-way, and had authority, incident to its police power, to order the utility to move wires underground “at the utility’s expense.” MidAmerican did not appeal the judgment in Coralville I.

In 2005, the City of Coralville determined the overhead power lines in a different location along Quarry Road and 7th Street should be placed underground to facilitate another public project. The City, relying on its ordinance requiring utilities to relocate at their expense equipment located in the City’s right-of-way, directed MidAmerican to place its power lines at that location underground and refused Mi-dAmerican’s request for reimbursement of the cost. MidAmerican acquiesced to the City’s undergrounding directive, but informed the City it reserved the right to recover from its customers in the City of Coralville the costs of relocating the wires in accordance with a tariff on file with the IUB.

The relevant tariff became effective in 2003. It provides, in relevant part:

Conversion of existing overhead facilities to underground or relocation of facilities will be allowed unless an engineering, operating, construction, safety or legal reason would make such installation inadvisable.
The customer(s) requesting the conversion or relocation must pay a contribution ....
If conversion is required by a governmental unit, the conversion cost will be charged to the governmental unit or to the Company’s customers in the governmental unit.

The City filed a petition in the district court seeking a declaration that the tariff was inapplicable and enjoining MidAmeri-can from assessing the tariff against Coral-ville residents. While that action was pending in the district court, MidAmerican filed a petition before the IUB seeking a declaration that the IUB had exclusive jurisdiction over the rates and tariffs charged by public utility companies, and requesting a determination that the City could not, through its ordinance, prevent the company from charging its customers for the costs of relocating its equipment. The City intervened in the proceeding before the IUB, contending (1) the preclusive effect of the district court’s decision in Coralville I barred MidAmerican’s plan to pass through the costs of undergrounding to its Coralville customers, (2) the IUB lacked jurisdiction “over a dispute that is not about rates and services but about use of [the City’s] right of way,” (3) the tariff violated the City’s home rule authority to control its right-of-way, and (4) the tariff violated provisions of the Iowa Constitution requiring uniform application of the state’s laws.

The IUB issued a declaratory order rejecting the City’s preclusion argument on the ground the issue before the agency was different than the one addressed by the court in Coralville I. The board’s order also rejected the City’s claim that the utility’s plan to charge the costs of the undergrounding to the City’s residents would violate the City’s home rule authority to control the right-of-way. The board further concluded the interpretation of the ordinance advanced by the City would infringe on the board’s “jurisdiction related to utility tariffs, cost recovery, and cost allocation,” reasoning if the City’s position were to prevail, “[cjities across Iowa could impose all manner and types of costs on utilities, regardless of reason, and force ratepayers in other areas to pay the bill.”

The City sought judicial review of the IUB’s declaratory order, contesting the IUB’s jurisdiction to limit a municipality’s control of its right-of-way and challenging the validity and constitutionality of the tariff. The district court affirmed the board’s exercise of jurisdiction and the validity of the tariff. The court also rejected the City’s issue preclusion claim, and denied the City’s constitutional challenge.

II. Scope of Review.

On appeal from judgment entered on judicial review of agency action, we review for errors at law. Gaffney v. Dep’t of Employment Servs., 540 N.W.2d 430, 438 (Iowa 1995). Where interpretation of a statute has clearly been vested in the agency’s discretion, we generally defer to the agency’s interpretation, and may grant relief only if the agency’s interpretation is “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(Z) (2005). If interpretation of the statute has not clearly been vested in the agency’s discretion, we afford no deference to the agency’s interpretation, and may substitute our own judgment for that of the agency. Id. § 17A.19(10)(c), (H)(6); Auen v. Alcoholic Beverages Div. of the Iowa Dep’t of Commerce, 679 N.W.2d 586, 589-90 (Iowa 2004). Interpretation of a statute has been clearly vested in the agency’s discretion where

the precise language of the statute, its context, the purpose of the statute, and the practical considerations involved [indicate] that the legislature intended (or would have intended had it thought about the question) to delegate to the agency interpretive power with the binding force of law over the elaboration of the provision in question.

Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 68 (1998).

The issue before the IUB involved the intersection between Iowa Code section 476.1, which grants to the IUB authority to regulate public utility rates and services, and section 364.2(4)(e), which grants to cities the power to regulate the use of their streets and public grounds. Consequently, the agency’s resolution of this matter necessitated an interpretation of the intended scope of these provisions. The IUB has been granted “broad general powers to effect the purposes” of chapter 476, which includes the authority to regulate public utility rates. Id. § 476.2(1). The agency has clearly been vested with authority to interpret the “rates and services” provision of section 476.1, and we may therefore overturn its interpretation only if it is “irrational, illogical, or wholly unjustifiable.” Id. § 17A.19(10)(i). The agency has not, however, been vested with authority to interpret chapter 364, and we therefore review its interpretation of section 364.2(4)(e) de novo. Id. § 17A.19(10)(c); Birchansky Real Estate, L.C. v. Iowa Dep’t of Pub. Health, State Health Facilities Council, 737 N.W.2d 134, 138 (Iowa 2007).

We review de novo constitutional challenges to a statute. Wright v. Iowa Dep’t of Corr., 747 N.W.2d 213, 216 (Iowa 2008).

III. Discussion.

A. Issue Preclusion. The City contends the district court erred in concluding the holding in Coralville I did not preclude a finding in this case that Mi-dAmerican could charge the cost of under-grounding to its Coralville customers. We identified the four elements of an issue preclusion claim in Hunter v. City of Des Moines, 300 N.W.2d 121 (Iowa 1981):

(1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.

300 N.W.2d at 123 (citation omitted). The City’s issue preclusion claim fails to satisfy these elements.

The City claims the issue of who must pay for the undergrounding was raised and decided in Coralville I, and that the issue raised in this case is identical. This claim relies primarily on the district court’s statement in Coralville I that “[t]he central question in the case is whether the City of Coralville has authority to order a utility to move overhead utility service and place it underground at the utility’s expense.” (Emphasis added.) A careful reading of the court’s decision in Coralville I, however, discloses the court was not asked to decide, and did not decide, whether MidAmerican could pass the costs of undergrounding through to its Coralville customers. In fact, MidAmerican’s effort to recover the costs of undergrounding from its Coralville customers was not undertaken until after the district court determined in Coralville I that the City, as a governmental unit, should not bear the costs of the undergrounding. We conclude the district court’s determination in Coral-ville I that undergrounding be undertaken “at the utility’s expense” must be read in its proper context: viz., as between the City and the utility, which party should bear the cost of the relocation of the utility’s wires. The court was not called upon to decide whether, should MidAmerican rather than the City be required to bear the cost, the utility could pass that cost through to its Coralville customers under the prevailing tariff. Thus, the issue in Coralville I was clearly not identical to the issue decided in this case by the IUB. We therefore agree with the district court on this issue.

B. Authority of the IUB to Issue a Tariff Permitting a Utility to Recover Costs Incurred for the Relocation of Equipment. The City contends the tariff exceeded the IUB’s authority. In particular, the City asserts the tariff regulates and infringes illegally upon the City’s right to control its right-of-way. See Iowa Code § 364.2(4)(e) (granting municipalities the right to “regulate the conditions required and the manner of use of the streets and public grounds of the city”). The tariff regulation goes far afield, the City contends, from the IUB’s legitimate authority to regulate the “rates and charges for public utility service.” Id. § 476.1. We disagree. Coralville’s argument is precariously based on a perceived conflict between the City’s and the IUB’s authority to control the City’s right-of-way. We now address the question whether the conflict perceived by the City is real or imagined.

The City has exercised its right to regulate the “conditions required” of its streets by enacting an ordinance, section 141.28, which provides:

Upon written notification by the City, the registrant shall promptly and at its own expense remove and replace, relocate or otherwise adjust its equipment located in the right-of-way and restore the right-of-way to the same condition it was in prior to said removal or relocation.

(Emphasis added.) The requirement that public utilities relocate at the City’s request equipment situated in the right-of-way can be reasonably understood as a regulation of the “conditions required” of the right-of-way. The types of equipment permitted and their location in the right-of-way are essential features of the City’s statutory authority to control the condition of the right-of-way. In contrast, the italicized phrase “at its own expense” within the ordinance relates only to the means by which a utility elects to generate the funds required to pay for a relocation of its equipment. The manner in which a public utility chooses to allocate or recover such costs bears no factual or legal relationship to the City’s exercise of control over its right-of-way. We therefore conclude the conflict perceived by the City between its ordinance and the tariff is nonexistent. The absence of an actual conflict between the tariff and the City’s authority to control its right-of-way dooms the claim that the IUB’s decision contravenes the City’s home rule authority.

An ordinance is within a municipality’s home rule authority only if it is not inconsistent with a state statute. Iowa Const, art. Ill, § 38A (stating a city may exercise its home rule authority only to the extent that its actions are “not inconsistent with the laws of the general assembly”); Iowa Code § 364.1 (same). “A municipal ordinance is ‘inconsistent’ with a law of the General Assembly and, therefore, preempted by it, when the ordinance prohibits an act permitted by a statute, or permits an act prohibited by a statute.” Sioux City Police Officers’ Ass’n v. City of Sioux City, 495 N.W.2d 687, 694 (Iowa 1993) (citations omitted). Prior to 1963, the Iowa Code authorized cities to regulate utility rates. Davenport Water Co. v. Iowa State Commerce Comm’n, 190 N.W.2d 583, 590 (Iowa 1971) (superseded on other grounds by statute as stated in Interstate Power Co. v. Iowa State Commerce Comm’n, 463 N.W.2d 699, 702 (Iowa 1990)). That power is now vested exclusively in the IUB under chapter 476. Id. Iowa Code section 476.1 provides the IUB “shall regulate the rates and services of public utilities.” With the creation of the IUB, and the vesting of authority in that agency to regulate public utility rates, municipalities lost their authority to regulate such rates. Davenport Water Co., 190 N.W.2d at 590; see Sioux City Police Officers’ Ass’n, 495 N.W.2d at 694 (noting the legislature may impose limitations on municipalities’ power over local affairs). The City’s interpretation of the cost-allocation provision in section 141.28, if accepted, would have the effect of prohibiting Mi-dAmerican from reflecting its costs of doing business through the appropriate adjustment of rates charged to its customers under a valid tariff. That interpretation of the ordinance cannot be reconciled with the legislature’s abrogation of municipal authority over public utility rates and the statutory grant of broad authority to the IUB to “regulate the rates and services of public utilities.” Sioux City Police Officers’Ass’n, 495 N.W.2d at 694 (stating that “[i]f a statute and ordinance cannot be reconciled, the statute prevails”). We find no error in the board’s rejection of the City’s home rule argument.

The City also challenges the IUB’s affirmation of the validity of the tariff, contending no rule or contested case specifically authorizes utilities to recover from their customers costs incurred in equipment relocation. Iowa Code section 476.4 requires a public utility to file tariffs with the IUB “showing the rates and charges for its public utility services,” and requires the IUB to promulgate rules for the filing of tariffs. Based on this rulemaking authority, the IUB requires that “rates charged by an electric utility for providing electric service to each class of electric consumers shall be designed, to the maximum extent practicable, to reasonably reflect the costs of providing electric service to the class.” Iowa Admin. Code r. 199— 20.10(2). These authorities amply support the board’s issuance of the subject tariff. The cost of municipally mandated under-grounding is clearly a cost of providing service to MidAmerican’s customers, and may be reflected in the rates charged by MidAmerican. The tariff constituted a valid exercise of the broad authority vested in the IUB.

C. Constitutional Claims. Finally, the City contends the tariff regime under chapter 476 violates the uniformity requirements of article I, section 6 and article III, section 30 of the Iowa Constitution. Article I, section 6 provides:

All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.

Article III, section 30 contains a similar requirement that all laws be general and operate uniformly throughout the state. Iowa Const, art. Ill, § 30 (requiring that “where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state”). We have generally viewed these provisions of the Iowa Constitution as being similar in scope, import, and purpose to the equal protection provision of the Fourteenth Amendment to the federal Constitution. See Dickinson v. Porter, 240 Iowa 393, 400, 35 N.W.2d 66, 71-72 (1949). But see Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 4-5 (Iowa 2004) (noting that we may, in an appropriate case, adopt a different analytical framework under the state constitution). While we maintain our authority to adopt our own equal protection analysis under the Iowa Constitution, we see no basis for doing so in this case.

We review the City’s constitutional challenge to this economic legislation under the rational basis standard. State v. Simmons, 714 N.W.2d 264, 277 (Iowa 2006). Under this standard we will sustain a legislative classification if it is rationally related to a legitimate state interest. Id.

The City asserts the tariff system violates the Iowa uniformity clauses in two ways. First, the City contends that because MidAmerican is not the only public utility servicing Coralville, the Coralville residents who are not serviced by MidAm-erican will receive the benefit of the under-grounding without bearing its costs. Assuming this to be true, we nonetheless find no violation of equal protection.

The Iowa Constitution “requires ‘uniform operation throughout the State’, not uniformity of consequences resulting from such operation.” Cook v. Dewey, 233 Iowa 516, 519, 10 N.W.2d 8, 10 (1943). The City’s uniformity clause claim is in substance a misplaced argument for uniformity of consequences rather than uniformity of operation. Chapter 476 and the regulations implementing it provide a uniform system for filing and approval of tariffs setting rates based on costs of the individual public utility. Iowa Code § 476.4 (“Every public utility shall file with the board tariffs showing the rates and charges for its public utility services .... ”); Iowa Admin. Code r. 199— 20.10(2) (requiring that public utility rates “reasonably reflect the costs of providing electric service to the class”). All public utilities are required to file tariffs with the IUB reflecting the costs unique to their service area. Iowa Code § 476.4; Iowa Admin. Code r. 199-20.10(2); see Fleur de Lis Motor Inns, Inc. v. Bair, 301 N.W.2d 685, 689 (Iowa 1981) (holding amendments to local option hotel-motel tax statute that did not single out certain classes or entities and applied equally to all municipalities were valid under the uniformity clauses “even though when applied they incidentally affect some entities differently due to differing fact situations”). Dissimilar treatment of persons dissimilarly situated does not offend equal protection. In re Det. of Hennings, 744 N.W.2d 333, 339 (Iowa 2008). Citizens serviced by different public utilities are not similarly situated, and consequently the City cannot sustain a constitutional challenge based on the fact that customers of different utilities may pay different rates.

Finally, the City asserts the tariff system violates the uniformity clauses because other regulated, investor-owned utilities operating in the same area allegedly do not have tariffs on file permitting them to recover from their customers the costs of undergrounding. We need not engage in a constitutional analysis of this claim because the record does not support the factual contention upon which it purports to be based. The only other regulated, investor-owned utility mentioned m the record, Interstate Power and Light Company, has a similar tariff on file with the IUB in which the utility reserves the right to recover from customers the costs of equipment relocation. The district court correctly determined the tariff is not unconstitutional on its face or as applied by the IUB in this case.

IV. Conclusion.

We conclude MidAmerican is not precluded from utilizing its valid tariff to recover from its Coralville customers the costs of relocating the company’s equipment in the City’s right-of-way. We affirm the IUB’s determination that MidAm-erican’s cost-recovery tariff was a valid exercise of the board’s authority which did not illegally infringe upon the City’s home rule authority to control its right-of-way. Coralville’s constitutional claims against the tariff are without merit.

AFFIRMED.

All justices concur except BAKER, J., who takes no part.

      . The tariff relied upon by MidAmerican in Coralville I included identical language permitting the conversion costs to be "charged to the governmental unit or to the Company's customers in the governmental unit.”

      . The district court’s decision addressing the declaratory judgment action is the subject of our opinion filed today in City of Coralville v. MidAmerican Energy, No. 06-1420, 2008 WL 2222234.

      . The City urges us in this case to adopt an equal protection analysis different from the one routinely followed under the federal Equal Protection Clause. See Racing Ass’n of Cent. Iowa, 675 N.W.2d at 5. Specifically, the City urges that the uniformity provisions in the Iowa Constitution require that all Iowa laws be geographically uniform, applying to all parts of the state. The City does not explain how its proposed "geographic uniformity" standard differs from the equal protection analysis undertaken in our previous decisions in which we discussed the Iowa uniformity clauses. See Cook v. Dewey, 233 Iowa 516, 519, 10 N.W.2d 8, 10 (1943) (noting the Iowa Constitution "requires 'uniform operation throughout the State', not uniformity of consequences resulting from such operation”). We therefore decline in this case to depart from our long-standing uniformity clause jurisprudence.


author: WIGGINS, Justice.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR JOHNSON COUNTY, Defendant.
    No. 07-0252.
    Supreme Court of Iowa.
    June 13, 2008.

      Thomas J. Miller, Attorney General and Bruce Kempkes, Assistant Attorney General, for plaintiff.
    No appearance for defendant.
   WIGGINS, Justice.

The issue we must decide is whether the juvenile court can require the department of human services to pay the cost of detaining a juvenile in a detention center while waiting for placement in a group care residential treatment facility. Because the juvenile court did not have the statutory or inherent authority to do so, we sustain the writ of certiorari, and annul the parts of the juvenile court orders requiring the department to pay for the cost of detention.

I. Background Facts and Proceedings.

The State filed a delinquency petition on November 28, 2006, alleging a juvenile committed various criminal offenses. The court held a hearing on the delinquency petition on January 11, 2007. During the hearing the juvenile admitted to the charges. The court placed the juvenile in the custody of the department of human services for placement in a group care residential treatment facility. Because there was a waiting list for placement in such a facility, the juvenile was detained at the Linn County Detention Center. The court also ordered the department to pay any costs or expenses associated with the juvenile’s continued placement in the detention center or other shelter while awaiting placement in a group care residential treatment facility.

At the juvenile’s first seven-day detention review hearing on January 18, the court heard testimony from a representative of the department regarding the department’s group care residential treatment waiting list, which operates on a fírst-come-fírst-served basis without consideration of a particular child’s need for placement. In its post-hearing order the court found probable cause to believe the juvenile committed delinquent acts; thus, his detention was still warranted, and there was substantial evidence to support the continued removal of the juvenile from his home to avoid imminent risk to the child and for the protection of the community. The court also noted that ordering the juvenile’s continued detention in the center was not in the child’s best interest, but that the court was unable to exercise its discretion to bypass the waiting list. Additionally, the court found the department was not asserting reasonable efforts to place the juvenile in a proper treatment facility.

The court held another detention review hearing on January 25 during which it heard additional testimony regarding the waiting list. During that hearing a representative of the department opined the juvenile would likely be placed in a group care residential treatment facility within thirty to ninety days of the hearing. Again, the court entered an order continuing the juvenile’s detention under the same terms as its prior order.

On January 30 the court was notified the department was able to place the juvenile in the residential treatment program at Woodward Academy. The court approved the placement and ordered custody to remain with the department.

The department filed a petition for writ of certiorari with this court challenging the juvenile court’s orders requiring the department to pay any costs associated with the placement of the juvenile in the detention center prior to his placement in a group residential treatment facility. We granted the petition.

II. Issue.

The only issue we must decide is whether the juvenile court orders, requiring the department to pay the delinquent child’s detention costs while awaiting placement in a group residential treatment facility, was legal.

III. Scope of Review.

We have “constitutional powers to issue writs to, and exercise supervisory and administrative control over, other judicial tribunals.” State v. Davis, 493 N.W.2d 820, 822 (Iowa 1992). A writ of certiorari lies where an inferior tribunal exceeds its proper jurisdiction or otherwise acts illegally. Stream v. Gordy, 716 N.W.2d 187, 190 (Iowa 2006); see also Iowa R. Civ. P. 1.1401 (“A writ of certiorari shall only be granted when specifically authorized by statute; or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded proper jurisdiction or otherwise acted illegally.”). We have found illegality to exist “when the court’s ruling lacks ‘substantial evidentiary support or when the court has not applied the proper rule of law.’ ” Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 794 (Iowa 2001) (quoting Allen v. Iowa Dist. Ct., 582 N.W.2d 506, 508 (Iowa 1998)).

Our scope of review for juvenile court proceedings is de novo. In re D.L.C., 464 N.W.2d 881, 882 (Iowa 1991). However, because “[rjelief through certio-rari proceedings is strictly limited to questions of jurisdiction or illegality of the challenged acts,” our review is for correction of errors at law. French v. Iowa Dist. Ct., 546 N.W.2d 911, 913 (Iowa 1996).

IV. Analysis.

It is the responsibility of the legislature to enact laws governing the expenditure of state funds. Graham v. Worthington, 259 Iowa 845, 857, 146 N.W.2d 626, 635 (1966). The legislature has fulfilled this responsibility in regard to funding for detention centers. See Iowa Code § 232.142. According to the Code:

1. County boards of supervisors which singly or in conjunction with one or more other counties provide and maintain juvenile detention and juvenile shelter care homes are subject to this section.
2. ... Expenses for providing and maintaining a multicounty home shall be paid by the counties participating in a manner to be determined by the boards of supervisors.
3. A county or multicounty juvenile detention home approved pursuant to this section shall receive financial aid from the state in a manner approved by the director. Aid paid by the state shall be at least ten percent and not more than fifty percent of the total cost of the establishment, improvements, operation, and maintenance of the home.
6. A juvenile detention home fund is created in the state treasury under the authority of the department. The fund shall consist of moneys deposited in the fund pursuant to sections 321.218A and 321A.32A. The moneys in the fund shall be used for the costs of the establishment, improvement, operation, and maintenance of county or multicounty juvenile detention homes in accordance with annual appropriations made by the general assembly from the fund for these purposes.

Iowa Code § 232.142(1), (2), (3), (6) (2007) (emphasis added). Section 232.142 clearly places the responsibility for the costs of providing and maintaining juvenile detention centers with the counties. The juvenile court orders requiring the department to pay the cost of keeping the juvenile in the detention center contradict the legislative mandate of section 232.142.

Of course, when a court is acting within its jurisdiction it always has the inherent authority to do what is reasonably necessary for the administration of justice in a case before the court. Schwennen v. Abell, 471 N.W.2d 880, 884 (Iowa 1991). However, the use of inherent authority must be essential to the existence of the court and necessary to the orderly and efficient exercise of the court’s jurisdiction. Myers v. Emke, 476 N.W.2d 84, 85 (Iowa 1991). The juvenile court orders requiring the department to pay the cost of the juvenile’s detention were neither essential to the existence of the court, nor were they necessary to the orderly and efficient exercise of the court’s jurisdiction. See Grant v. Iowa Dist. Ct., 492 N.W.2d 683, 686 (Iowa 1992) (holding the district court lacked inherent authority to order the plaintiffs in a civil action to pay reasonable attorney fees and costs of the guardian ad litem appointed to represent the incarcerated civil defendant).

Therefore, the juvenile court did not have the statutory or inherent authority to order the department to pay the cost of the juvenile’s detention.

V. Disposition.

We find the juvenile court acted illegally when it ordered the department of human services to pay the cost of detaining a juvenile in the juvenile detention center because it had no statutory or inherent authority to do so. Accordingly, the writ of certiorari in this court is sustained. We annul the parts of the juvenile court orders requiring the department to pay for the cost of detention.

WRIT SUSTAINED.

All justices concur except BAKER, J., who takes no part.

      . In its petition for writ of certiorari the State indicated the juvenile was appealing the court’s custody order; however, this is not an issue on this petition.


author: PAGE, Justice. GILDEA, Justice

text:
    In the Matter of the Welfare of the CHILDREN OF T.R., T.M., P.P., and B.H., Parents.
    No. A07-666.
    Supreme Court of Minnesota.
    May 30, 2008.
    As Modified On Denial of Rehearing July 2, 2008.

      Samantha J. Gemberling, Gemberling Law Office, St. Paul, MN, for Appellant T.M.
    Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for Respondent.
   OPINION

PAGE, Justice.

This case involves the termination of the parental rights of a noncustodial father, T.M., to his daughter, J.M. On September 17, 2005, J.M., then nine years old, called 911 to report that her mother, T.R., was fighting with her then-boyfriend, B.H. Due to the filthy conditions of T.R.’s house, the responding police officers removed J.M., and T.R.’s other two children, from the home. The district court adjudicated all three of the children to be in need of protection and services under Minn.Stat. § 260C.007, subd. 6 (2006). The court ordered a case plan that required both T.R. and T.M. to complete psychological evaluations, abstain from use of alcohol or mood-altering chemicals, provide urinary analy-ses (UAs) before visitation with the children, and complete chemical dependency and parenting assessments. In a subsequent trial, the court found that T.M. failed to comply with his case plan. As a result, the court terminated T.M.’s parental rights to J.M., concluding that: (1) he was palpably unfit to parent; (2) appellant Anoka County Social Services (County) made reasonable efforts at reunification; and (3) termination was in the best interests of J.M. A divided court of appeals affirmed. We reverse.

T.M. and T.R. lived together intermittently after J.M.’s birth in 1996, but separated sometime in 1997. J.M. remained with T.R., but T.M. had regular visitation with J.M. two or three times a month. T.R. subsequently was involved in at least two abusive relationships, during which J.M.’s half-siblings were born. In 2004, T.M. obtained scheduled visitation rights with J.M. by court order.

On September 17, 2005, during a fight between T.R. and her then-live-in-boyfriend B.H., T.R. asked J.M. to call the police. The responding police officers discovered that T.R.’s house was filthy, the sink was full of dirty dishes, the floors were covered with cat feces, and the children had to sleep in T.R.’s room due to fleas in their bedrooms. The children were placed in foster care, and the County filed a CHIPS petition on September 21, 2005. The petition alleged that J.M. was “without necessary food, clothing, shelter, education, or other required care,” without “proper parental care,” and a child “whose behavior, condition, or environment is such as to be injurious or dangerous to the [child] or others.” None of the allegations in the CHIPS petition involved acts committed by T.M., who is named in the petition only as a participant. See Minn. R. Juv. Prot. P. 22.01 (listing participants to a juvenile protection matter).

J.M., who turned 12 years old in January 2008, has been diagnosed with Oppositional Defiant Disorder. She has also been diagnosed as under-socialized and has significant issues with authority figures. During J.M.’s out-of-home placement, her behavior has deteriorated. She has assaulted her foster parents, other foster children, and the police. J.M. was removed from her first foster home and placed in a mental health treatment program at a hospital. After her release from the hospital to a therapeutic foster home, J.M. again had to be taken to the hospital by police because her behavior “escalated out of control.” While still in elementary school, she was transferred to a level 3 elementary school, a school that “offers the highest level of care for children with special educational needs but is still considered main-stream.” As of December 2006, J.M. had been removed from her foster home and placed in residential treatment.

The County initially identified four main areas of concern that needed to be addressed for reunification: (1) the lengthy history of domestic violence to which J.M. and her half-siblings were exposed; (2) T.R.’s mental health issues, which T.R. identified as depression and anxiety; (3) the condition of T.R.’s home; and (4) determining whether T.R. or T.M. had any chemical dependency issues that needed to be addressed. After consulting with T.R., the County developed a case plan for T.M. that was adopted by the district court. In the court order approving his case plan, T.M. was required to complete chemical dependency, psychological, and parenting assessments, abstain from alcohol and chemical use, and undergo random urinary analysis testing (UAs). Later court orders required T.M. to submit to random UAs, provide UAs on demand, complete a chemical dependency evaluation using social services as a collateral source, and abstain from using mood-altering substances, including alcohol.

T.M. completed his psychological assessment in May 2006. The evaluator concluded that T.M. lacks verbal skills and has an I.Q. “in the Low Average range.” The assessment was shared with T.M.’s social worker and J.M.’s guardian ad litem, but neither appears to have accounted for T.M.’s lack of verbal skills and low average I.Q. when interacting with him about his case plan or during meetings. T.M. testified that he had difficulty understanding what was happening during his meetings with the social worker and guardian ad litem.

T.M. admits to a history of marijuana and methamphetamine abuse. His first UA, in November 2005, was positive for marijuana. T.M. did not complete any further UAs until March 2006. According to T.M., his failure to complete the required UAs was due to miscommunication, his work schedule, and transportation problems. According to the County, it was due to continued alcohol and drug use or (the County implies) lack of desire to parent J.M. Because of his failure to complete UAs, the County rescinded T.M.’s visitation rights with J.M. in February or March 2006. Between March and June 2006, T.M. provided five additional UAs, which indicated either recent marijuana use or modest alcohol use.

In order to support J.M., and in accordance with his case plan, T.M. obtained full-time employment as a welder and part-time employment in food service. He also found housing for himself and J.M. Neither the county social worker nor J.M.’s guardian ad litem visited T.M.’s new home to determine whether it was appropriate for J.M. T.M. obtained health and dental insurance that would provide coverage for J.M. as well. T.M. appeared at every court proceeding involving J.M. He also attended school meetings regarding J.M., found an appropriate level 3 school for her near his house, and confirmed that her therapist had an office near his house.

Although the social worker assigned to the matter testified that T.M. seemed confused or disconnected during meetings concerning J.M., she did not spend any time with him before or after the meeting to help him process the information, even after receiving the psychological assessment indicating his lack of verbal skills. J.M.’s guardian ad litem similarly understood that T.M. had a hard time understanding written and verbal communications, but made no effort to ensure he understood the proceedings because she assumed that T.M. would ask for an explanation if he needed one.

The district court terminated both T.M.’s and T.R.’s parental rights on January 18, 2007. A divided court of appeals affirmed the termination, concluding that: (1) there was substantial evidence of T.M.’s noncompliance with his case plan; (2) he is palpably unfit to parent J.M. for the reasonably foreseeable future; (3) the County provided T.M. with reasonable services or such services would have been futile; and (4) the termination is in J.M.’s best interests. In re Welfare of Children of T.R., T.M., P.P., & B.H., No. A07-666, 2007 WL 2472743, at *3-4 (Minn.App. Sept.4, 2007).

The dissent reasoned that there was no evidence that any alcohol or drug use on T.M.’s part occurred “before the child” or was detrimental conduct “directly relating to the parent and child relationship.” Id. at *5 (Ross, J., dissenting). The dissent further concluded that the County’s drug and alcohol testing without added services to achieve abstinence did not meet the County’s obligation of “reasonable efforts to rehabilitate” T.M. Id. at *6.

We review the district court’s findings to determine whether they address the statutory criteria for termination of parental rights and are not clearly erroneous. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001). Because termination of parental rights cannot be based on a statutory ground not included in the petition to terminate parental rights, In re Welfare of Child of: B.J.-M. and H.W., 744 N.W.2d 669, 673 (Minn.2008), we consider whether the district court’s findings address only those statutory criteria for termination of parental rights alleged in the petition for termination of parental rights. 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.” Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 726 (Minn.1985). Nevertheless, we defer to the district court’s decision to terminate parental rights. In re Welfare of J.M., J.M., & M.M., 574 N.W.2d 717, 724 (Minn.1998). Therefore, if at least one statutory ground alleged in the petition is supported by clear and convincing evidence and termination of parental rights is in the child’s best interests, we will affirm. In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn.2004).

I.

We first consider whether the district court’s findings address whether T.M. is palpably unfit to be a parent to J.M., the only statutory ground for termination of T.M.’s parental rights included in the county’s petition. According to Minnesota law, the juvenile court may terminate parental rights if it finds

that a parent is palpably unfit to be a 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.

MinmStat. § 260C.301, subd. 1(b)(4) (2006) (emphasis added).

We have described the burden under subdivision l(b)(4)’s predecessor, Minn.Stat. § 260.221, subd. 1(b)(4) (1988), as “onerous”: “The petitioning party must prove a consistent pattern of specific conduct or specific conditions existing at the time of the hearing that appear will continue for a prolonged, indefinite period and that are permanently detrimental to the welfare of the child.” In re Welfare of M.D.O., 462 N.W.2d 370, 376-77 (Minn.1990). Because current section 260C.301, subdivision 1(b)(4), incorporates the same statutory language, we consider the burden under subdivision 1(b)(4) to be the same: the county must prove a consistent pattern of specific conduct or specific conditions existing at the time of the hearing that, it appears, will continue for a prolonged, indefinite period and that are permanently detrimental to the welfare of the child.

Our previous cases addressing the termination of parental rights for palpable unfitness inform our analysis of the county’s burden here. We have held that mental illness, in and of itself, does not “permit termination of parental rights.” In re Welfare of Kidd, 261 N.W.2d 833, 835 (Minn.1978). Rather, we consider the “actual conduct of the parent” to determine fitness to parent. Id. Applying this analysis, we affirmed the termination of Kidd’s parental rights on grounds of palpable unfitness, not because she was mentally ill, but because her mental illness (she was diagnosed as a chronic schizophrenic psychotic) was likely to be detrimental to the child. Id. at 834, 836 (acknowledging Kidd’s “inability to recognize the needs and limitations of the infant, her ineptness with regard to the mechanical functions of a parent, and her bizarre and potentially dangerous conduct stemming from her mental illness”).

We similarly have held that mental retardation alone does not render a parent palpably unfit. In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn.1985). Rather, the mental retardation must directly affect the ability to parent. Id. We concluded in Welfare of P.J.K. that father’s mental retardation rendered him palpably unfit because, among other things, he “could not grasp even the most basic parenting skills.” Id.

On the other hand, we reversed the termination of a noncustodial mother’s parental rights on grounds of palpable unfitness in the absence of evidence that her conduct — consisting apparently of sporadic visitation — “has adversely influenced her child.” McDonald v. Copperud, 295 Minn. 440, 444, 206 N.W.2d 551, 554 (1973); see also In re Welfare of Solomon, 291 N.W.2d 364, 368 (Minn.1980) (“sexual misconduct” in the form of cohabitation outside of marriage should not constitute palpable unfitness if it is not likely to have an adverse effect on the welfare of the child).

These cases demonstrate what we stated in Welfare of M.D.O.: termination of parental rights for palpable unfitness requires a showing of “a consistent pattern of specific conduct or specific conditions existing at the time of the hearing that appear will continue for a prolonged, indefinite period and that are permanently detrimental to the welfare of the child.” 462 N.W.2d at 377. We therefore turn to whether the district court’s findings in this case address the statutory criteria for termination of parental rights on grounds of palpable unfitness. That is, we consider whether the district court’s findings provide clear and convincing evidence of a consistent pattern of specific conduct on T.M.’s part, or specific conditions existing at the time of trial, that appear will continue for a prolonged, indefinite period and that are permanently detrimental to the welfare of J.M. We conclude that they do not.

The district court based its conclusion of palpable unfitness, in part, on T.M.’s inability to demonstrate sobriety, as evidenced by two UAs positive for marijuana use and three positive for alcohol consumption over the course of eight months and for T.M.’s failure to comply with the court’s order subjecting him to random UAs. We have not explicitly examined whether alcohol or substance use, without more, can render a parent palpably unfit. But our case law suggests that alcohol or substance use does not render a parent palpably unfit in the absence of a causal connection between that substance use and the parent’s inability to care for the child. In In re Children of T.A.A., 702 N.W.2d 703 (Minn.2005), we concluded that there was “no causal relationship established between T.A.A.’s drug use and her inability to parent her children,” despite the fact that she tested positive for marijuana and methamphetamines more than four times during a six-month period. Id. at 706, 710. Rather, we affirmed the termination of T.A.A.’s parental rights on the alternate ground that she refused to accept responsibility for protecting her daughters from physical and sexual abuse at the hands of T.A.A.’s boyfriends, and thus was palpably unfit. Id. at 708-09. Consistent with T.A.A., and with our treatment of mental illness and other mental disabilities as outlined above, we hold that substance or alcohol use alone does not render a parent palpably unfit; rather, the county must demonstrate that the parent’s substance or alcohol use is of a nature and duration that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the child’s ongoing needs.

None of the district court’s findings in this case address whether T.M.’s substance use and alcohol consumption formed a “consistent pattern of specific conduct before the child” or were “specific conditions directly relating to the parent and child relationship.” See Minn.Stat. § 260C.307, subd. 1(b)(4). The district court made no findings whatsoever that T.M. consumed either alcohol or drugs during visitation with J.M. (which might constitute “conduct before the child”). See id. Nor did the district court find that T.M.’s substance use and alcohol consumption directly related to his relationship with J.M., or that T.M.’s substance use and alcohol consumption rendered him “unable, for the foreseeable future, to care appropriately” for J.M.’s needs, extraordinary as they are. See id. Finally, the district court made no findings suggesting that there was a causal connection between T.M.’s alcohol and drug use and his inability to care for T.M.

The County argues that T.M.’s noncompliance with the case plan requiring him to demonstrate sobriety is clear and convincing evidence of his palpable unfitness. We disagree. Failure to correct the conditions leading to the child’s removal from the home, as evidenced by noncompliance with a case plan, is a factor for termination under Minn.Stat. § 260C.301, subd. 1(b)(5), not under 1(b)(4). We presume that statutory differences in language are intentional, and we apply them consistent with that intent. Transport Leasing Corp. v. State, 294 Minn. 134, 137, 199 N.W.2d 817, 819 (1972). Furthermore, we construe a statute to give effect to all of its provisions. MinmStat. § 645.16 (2006). Consequently, we will not read subdivision 1(b)(5) factors into subdivision 1(b)(4): failure to comply with a reasonable case plan is grounds for termination of parental rights under Minn.Stat. § 260C.301, subd. 1(b)(5), but it does not necessarily render a parent palpably unfit under Minn.Stat. § 260C.301, subd. 1(b)(4). Because the district court may terminate parental rights on only those grounds set forth in the petition, and because the petition in this case alleges only palpable unfitness, the County’s argument that T.M. failed to comply with his case plan is largely irrelevant to this appeal.

The district court appears to have concluded that T.M. is palpably unfit to parent based, as well, on T.M.’s perceived lack of understanding of J.M.’s needs. Although the district court found, based on T.M.’s testimony at trial, that T.M. “has no understanding of her mental health diagnosis, special needs or the significant challenges facing [J.M.] that must be addressed before she reaches adulthood,” this stops short of a finding that T.M. is “unable, for the reasonably foreseeable future, to care appropriately” for his daughter. See Minn.Stat. § 260C.301, subd. 1(b)(4).

We therefore conclude that the record does not support by clear and convincing evidence the district court’s determination that T.M. is palpably unfit to parent J.M., now or for the foreseeable future. We therefore reverse the court of appeals and remand to the district court for reinstatement of T.M.’s parental rights.

II.

Minnesota Statutes § 260C.301, subd. 4 (2006), requires that once a child has been in out-of-home placement for 15 of the most recent 22 months, the county attorney must petition to terminate parental rights or transfer custody to a relative, unless “the responsible social services agency has not provided reasonable efforts necessary for the safe return of the child.” In the interests of judicial economy, we therefore address whether the County has made reasonable efforts thus far to rehabilitate T.M. and reunify him with J.M.

Under Minn.Stat. § 260.012(a) (2006), reasonable efforts “for rehabilitation and reunification are always required” until the district court determines that the county has filed a petition stating a prima facie case that one of five situations exists justifying cessation of such efforts. Of those five situations, only one — that “the provision of services or further services for the purpose of reunification is futile and therefore unreasonable under the circumstances” — is arguably applicable here. The juvenile court is required to make findings as to whether the county provided reasonable efforts to rehabilitate the parent and reunify the child and parent. Minn.Stat. § 260.012(h) (2006). In doing so, the court must consider whether the services are: “(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances.” Id. We have said that “[w]hen these statutory provisions are considered together with the inherent difficulty of permitting the agency seeking termination also to deny rehabilitative services, it is clear that the provision of reasonable efforts must be evaluated by the court in every case.” In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn.1996). Further, the “nature of the services which constitute ‘reasonable efforts’ depends on the problem presented.” Id.

T.M. contends that “merely testing a parent for chemical use” is not a reasonable effort toward reunification and “flies in the face of established precedent that this Court has used to define ‘reasonable efforts.’ ” He claims that he made “substantial efforts to comply with his case plan,” having had three chemical dependency assessments, but the County never required him to undergo treatment or provided him with treatment options. T.M. suggests that the lack of effort on the County’s part is because he was the noncustodial parent. The County argues that “additional assistance” would have accomplished nothing without T.M.’s completing the first step of demonstrating sobriety. The court of appeals’ dissent notes that, “[a]t a minimum, the state’s concern that chemical use constitutes parental unfitness triggers its duty to require or at least offer services, such as a treatment program, designed to end the use. All that testing does, of course, is to indicate use, not end it.” In re Welfare of Children of T.R., T.M., P.P., & B.H., 2007 WL 2472743, at *6 (Ross, J., dissenting).

In In re M.D.O., the county concluded that the mother, who had been convicted of second-degree murder of her adopted daughter, could not be sufficiently rehabilitated to care for a second child, born after the older child’s death, 462 N.W.2d at 371, because she refused to admit guilt in the death, id. at 377. We reversed the termination of the mother’s parental rights, concluding that the county failed to provide reasonable services to help the mother admit her guilt. Id. In doing so, we stated that

[t]he county’s expectations seem especially daunting considering the county’s admitted failure to provide services, counseling or assistance to aid [the mother] in coming to grips with her conduct. It never told [her] what programs at the Shakopee institution would be appropriate for her to satisfy the case plan. It never contacted the leaders of therapy programs [she] joined. The social worker observed only one visit between M.D.O. and [the mother]. * * *
The county social workers did not communicate any of [their] expectations to [the mother] because they felt [she] did not need to be told what kinds of things would satisfy the first case plan goal. * * * Notwithstanding, the county concedes [the mother] was fulfilling other case plan goals.

Id.

The County’s expectations that T.M. would abstain from drugs and alcohol, as the case plan in this case required, seem, in the words of M.D.O., “especially daunting considering the [C]ounty’s admitted failure to provide services, counseling or assistance to aid [T.M.] in coming to grips with [his] conduct.” See id. at 377. We agree with the dissent that simply testing for substance use, without more, is not realistic under the circumstances to rehabilitate a parent who, that testing shows, suffers from chemical dependency issues. See In re Welfare of Children of T.R., T.M., P.P., & B.H., 2007 WL 2472743, at *6 (Ross, J., dissenting).

The county social worker assigned to T.M. testified at trial that because T.M. never demonstrated his sobriety, he could not progress with the rest of his case plan, even though some parts of that case plan do not appear to be contingent on sobriety. We recently concluded that “a case plan that has been approved by the district court is presumptively reasonable.” In re Welfare of Children of S.E.P., 744 N.W.2d 381, 388 (Minn.2008). We further concluded that “once a case plan has been approved by the court, the appropriate action for a parent who believes some aspect of the case plan to be unreasonable is to ask the court to change it, rather than to simply ignore it.” Id. The requirement that the parties follow the case plan is a two-way street: the county may not, as it did here, decide for itself that further efforts are futile. Rather, if the county decides that further efforts to rehabilitate a parent and reunify parent and child would be futile, its remedy is to seek, as outlined in Minn.Stat. § 260.012(f) (2006), a court determination that reasonable efforts at reunification are no longer required. Until then, the statute requires the county to continue to provide services to the parent as outlined in the case plan or out-of-home placement plan. See Minn.Stat. § 260.012(a)(5) (2006) (indicating that reasonable efforts are always required until a determination by the juvenile court that the provision of services for reunification is futile).

As to whether the efforts actually made by the County in this case to reunify T.M. with his daughter were reasonable, we are struck first by the disparity in the services offered to T.R. — whose actions led to J.M.’s out-of-home placement in the first place — and those offered to T.M. — a noncustodial parent who is not alleged to have contributed in any way to J.M.’s out-of-home placement. For example, both parents were ordered to complete a chemical dependency evaluation. Mother T.R. was allowed to complete three evaluations, culminating in a determination that she did not require chemical dependency treatment despite admitting to use of a long list of prescription medications. T.M., on the other hand, according to the County, apparently never received a valid chemical dependency evaluation, despite his acknowledged drug and alcohol use. Nor, apparently, was T.M. offered chemical dependency treatment. Mother T.R. received individual therapy, a psychiatric evaluation, and counseling for domestic abuse. But the County made no effort to help T.M. understand the proceedings, despite a psychological assessment that demonstrated he lacked verbal skills and has a low average I.Q. As a third example, county social workers never visited the home T.M. rented in order to comply with his case plan’s requirement to obtain suitable housing for himself and J.M. Nevertheless, the County apparently never considered T.M. as a placement for J.M.

Even in the absence of the comparison to the services provided to T.R., the services provided to T.M. were not reasonable because no services were offered to address T.M.’s lack of verbal skills and acknowledged difficulty in understanding the proceedings. We therefore conclude that the district court erred in finding that the County made reasonable efforts to rehabilitate T.M. and to reunify him with J.M.

Reversed as to the termination of T.M.’s parental rights and remanded for further proceedings consistent with this opinion.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

GILDEA, Justice

(concurring).

I join in section I of the majority’s opinion, but I write separately to note my disagreement with the majority’s conclusion in section II that “[t]he County’s expectations that T.M. would abstain from drugs and alcohol, * ⅝ * [was] ‘especially daunting’ ” in the circumstances of this case. With respect to the no-use condition, the district court found that the social services agent “did everything possible to assist [T.M.] in proving sobriety,” and that T.M.’s “excuse for failing to provide random UAs for four months * * * was not credible.” The district court observed the witnesses and is in the best position to make these factual determinations. I do not, however, disagree with the majority’s ultimate conclusion in section II that the County, like the parent, must comply with all of the terms of the case plan, or seek to have conditions of the plan altered if those conditions become futile. As the majority suggests, the County did not avail itself of that remedy in this case. Thus, while I disagree with the majority’s analysis as noted above, I concur in the result.

      . The district court terminated mother T.R.’s parental rights to all three children, as well as T.R.’s parental rights to a fourth child bom during the pendency of these proceedings. T.R.’s appeal of the termination of her parental rights was dismissed by the court of appeals as untimely. The termination of T.R.’s parental rights is not before this court for review, and J.M. is the only child involved in this appeal. The parental rights of the fathers of the other three children were also terminated. The termination of their parental rights is not before the court in this appeal.

      . There is no indication in the record that T.M. was involved or even consulted in development of his case plan. Nor is there any indication, despite the requirement of Minn. Stat. § 260C.212, subd. 1(d) (2006), that a parent has the right to legal counsel in the preparation of the case plan, that T.M.'s court-appointed lawyer participated in formulating T.M.'s case plan.

      . Minnesota Statutes § 260.221, subd. 1(b)(4) (1988), provided for termination of parental rights upon a court finding
      [t]hat a parent is palpably unfit to be a 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.
      Current section 260C.301, subdivision 1(b)(4), includes identical language and adds a presumption, not applicable in this case, of palpable unfitness when the parent’s rights to another child have been involuntarily terminated or transferred to a relative.

      . For example, Kidd tried to feed crackers to her two-week-old infant, dressed the child in a scarf and blanket in 75-degree summer weather, and placed her mouth on the child's penis "to help the child’s breathing.” 261 N.W.2d at 834.

      . Minnesota Statutes § 260C.301, subd. 1(b)(5), gives the juvenile court authority to terminate parental rights if, “following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement.” Assuming, without deciding, that T.M.’s case plan was "reasonable” based solely on T.R.'s allegations of T.M.’s substance use, we note that it is questionable whether the parental rights of T.M., a noncustodial parent, could be terminated under section 260C.301, subdivision 1(b)(5), because neither his substance use nor his alleged inability to understand J.M.’s special needs led to J.M.'s removal from her mother’s home. Nor does it appear that T.M.’s substance use was a factor in the county’s decision to place J.M. in third-party foster care, rather than with T.M., upon her removal from her mother’s home, as permitted by Minn. Stat. § 260C.201, subd. 1(a)(1) (2006).

      . Even if we assume, without deciding, that termination of T.M.’s parental rights is in J.M.’s best interests, the child’s best interests alone are not sufficient to terminate parental rights. In re Welfare of the Children of R.W., 678 N.W.2d 49, 54-55 (Minn.2004). Because we conclude that the County has not demonstrated that T.M. is palpably unfit to parent J.M. and no other grounds for termination were alleged in the petition, we do not need to decide whether the termination is in J.M.'s best interests.

      . Minnesota Statutes § 260C. 312 (2006) outlines the district court's options when parental rights are not terminated after trial.

      . The district court’s findings of fact conclude with the observation that J.M. and her siblings
      are entitled to a safe, healthy, stable and secure environment in which to grow. Such environment must not only be free from domestic violence, but must be with a caregiver who sets appropriate boundaries, intensely supervises the children and can maintain a respectful working relationship and follow the advice of doctors, educators and therapists. [T.R. and T.M.] have not provided any of these things in the past and there is no indication that they will be able to do so at any time in the reasonably foreseeable future.
      We do not dispute the district court's characterization of the children's needs. But to the extent the court’s findings refer to T.M., they are clearly erroneous.

      . As we noted when reversing the termination of a mother’s parental rights in In re Welfare of Chosa, 290 N.W.2d 766 (Minn.1980), we "express our desire that the proper authorities carefully monitor the situation and promptly seek termination of [T.M.'s] parental rights again if [he] is unable to meet the challenge of parenthood." Id. at 769. Given J.M.’s out of home placement, we also, however, encourage the parties to consider alternatives to the outright termination of T.M.'s parental rights.