This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).








In the Matter of the Welfare of:  A.L.H., Child.


Filed August 29, 2000

Affirmed; motion denied

Schumacher, Judge


Anoka County District Court

File No. J89952422



Michael C. Hager, 529 South Seventh Street, Suite 420, Minneapolis, MN 55414 (for appellant mother)


Joann A. Anton, 2140 Fourth Avenue North, Anoka, MN 55303 (for respondent guardian ad litem)


Robert M. A. Johnson, Anoka County Attorney, Marcy S. Crain, Charles D. LeBaron, Assistant County Attorneys, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent Anoka County Social Services)


Jenny L. Walker, Chief Tenth Judicial District Public Defender, Cheryl Ann Sowada, Assistant Public Defender, 433 Jackson Street, Anoka, MN 55303 (for respondent child)


Sherri D. Hawley, 2515 White Bear Avenue, Suite 8A-189, St. Paul, MN 55109 (for respondent father)



            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Mother appeals from the district court's termination of her parental rights to A.L.H., arguing the evidence does not support the trial court's determination.  We affirm.


A.L.H. was the third infant child of mother and father to suffer from severe injuries consistent with shaken baby syndrome, apparently at the hands of father.  In November 1990, the first child, when 15 days old, was diagnosed with a bloody spinal tap, a subdural hematoma, and bruises on his face and hip.

The first child was adjudicated a child in need of protection and services (CHIPS) in January 1991 and placed in foster care for approximately five months.  In January 1992, the second child, less than two months old, was diagnosed with 10 rib fractures, a healed tibia fracture, bilateral occipital skull fractures, and a slightly depressed left linear parietal fracture.  In April 1992 both children were adjudicated CHIPS.  Over the next four years, mother and father participated in social service programs through Anoka County, including counseling and parental assessment.  On January 24, 1996, the county terminated protective supervision over the first two children.

A.L.H., mother and father's third child, was born on December 2, 1998.  On March 11, 1999, A.L.H. was diagnosed with four acute broken ribs which, within all reasonable medical certainty, were intentionally inflicted.  On May 6, 1999, all three children were adjudicated CHIPS.  On August 12, 1999, respondent, A.L.H.'s guardian ad litem, filed a petition for termination of mother and father's parental rights to A.L.H.  At trial, respondent Anoka County, A.L.H.'s legal custodian, joined the guardian ad litem in advocating termination.  After a four-day trial, the district court terminated the parental rights of mother and father based on findings of palpable unfitness and egregious harm.  Mother appeals.


The party petitioning for termination must prove one or more of the statutory grounds by clear and convincing evidence.  In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied(Minn. July 24, 1991).  The legislature has established nine criteria that support termination of parental rights.  See Minn. Stat. § 260C.301 (Supp. 1999) (previously codified at § 260.221 (1998)).  While only one criterion needs to be proven to support termination, the “paramount consideration” in every termination case is the child’s best interests.  Minn. Stat. § 260C.301, subds. 1(b), 7.  On review, we determine whether the district court’s termination findings address the statutory criteria, whether the findings are supported by substantial evidence, and whether the findings are clearly erroneous.  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). 

            1.         Mother argues that the trial court's palpable unfitness determination is unsupported and clearly erroneous.  The juvenile court may terminate all rights of a parent to a child if it finds that for the reasonably foreseeable future the parent is palpably unfit "because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship."  Minn. Stat. § 260C.301, subd. 1(b)(4).  The trial court determined that by clear and convincing evidence mother was palpably unfit because of a consistent pattern of specific conduct.

Mother asserts that the evidence supports neither a pattern of conduct before the child, or a pattern of conditions relating to the parent-child relationship.  But the record reveals a consistent pattern of injuries to the children when infants, injuries that apparently resulted from repeated physical abuse by father.  Mother has received many years of counseling, therapy, and training, but has been unable to recognize and prevent further abuse.  Her ambivalence towards father's propensity to abuse has left her unable to take effective action so as to protect A.L.H.  While she urges this court to consider her current separation from father, they have been previously separated to no avail.  The evidence is sufficient to support either a finding of a pattern of specific conduct, or a pattern of specific conditions.

Mother argues that the pattern of conduct or conditions must involve the subject child rather than the other children.  Mother is accurate in her statement as to the importance of the parent’s present ability to care for the subject child.  See In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (evidence must address conditions in existence at time of hearing); In re Welfare of J.K., 374 N.W.2d 463, 466-67 (Minn. App. 1985) (in addition to past neglect, court must find that conditions will continue for prolonged, indeterminate period.), review denied (Minn. Nov. 25, 1985).  But her suggestion that evidence of past conduct or conditions towards the other children is therefore irrelevant, such that the trial court’s consideration of it is error, has no support.  Indeed, the parent’s history is very relevant to her current capability to care for the child.  See, e.g., In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996) (addressing father’s claim that findings improperly relied primarily on history rather than conditions at time of hearing).

            2.         The juvenile court may also terminate all rights of a parent to a child if it finds that the child while in the parent's care has experienced egregious harm of a nature, duration, or chronicity indicating a lack of regard for the child's well-being.  Minn. Stat. § 260C.301, subd. 1(b)(6).  The trial court determined that by clear and convincing evidence A.L.H. had experienced egregious harm.  Mother argues that termination for egregious harm is unsupported and clearly erroneous.

"Egregious harm" means the infliction of bodily harm to a child or neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care.


Minn. Stat. § 260C.007, subd. 26 (Supp. 1999). 

Mother reasons that since she did not inflict bodily harm on A.L.H., courts must find "neglect of a child."  She points out that, far from neglecting A.L.H., she was extensively involved in obtaining medical services for A.L.H.  She further argues that any neglect was de minimis.  Mother's argument seems to misread subdivision 1(b)(6).  There can be no dispute that A.L.H. suffered bodily harm consisting of four broken ribs while in parental care.  Mother's resort to the definition of "egregious harm" ignores that the instrument of the egregious harm need not be the parent so long as it occurs while in parental care.

            Mother faults the trial court for failing to consider separately the termination of her and father's parental rights.  But the trial court's analysis was specific to mother.  In its memorandum, the court noted:

Just as important is the fact that during this care and control there was a significant failure on the part of both parents, and specifically [mother], to protect the children. [Mother] testified that her husband admitted injuring [their first child]. * * *  [Mother] was concerned about [A.L.H.] because of what had happened to the other two children.  She said her husband admitted he injured the two boys but retracted the admission because he thought he would be charged in criminal court.  Throughout this sordid history [mother] herself engaged in giving deceitful alternative explanations to investigators to the same extent her husband did.


The trial court considered mother's apparent acquiescence and deceit as separate from father's abuse.  Cf. In re Welfare of Maas, 355 N.W.2d 480, 483 (Minn. App. 1984) (trial court properly considered mother's continued defense of boyfriend's actions in physically abusing child).  The evidence supports a finding of egregious harm.

3.         Because a child's best interests are the paramount consideration in proceedings to terminate parental rights, the trial court is precluded from terminating parental rights where the record does not show that termination is in the child's best interests, even if one of the statutory prerequisites for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996); cf. Minn. Stat. § 260C.301, subd. 7.  An order for termination of parental rights must explain the district court's rationale for concluding why termination is in the child's best interest.  In re Welfare of D.T.J., 554 N.W.2d 104, 110 (Minn. App. 1996).

            Mother argues that the trial court did not make any distinct findings as to best interest or engage in the requisite balancing.  But the trial court explicitly engaged in weighing the provision of additional social services to assist in reunification against safety concerns.  The trial court found that safety concerns far outweighed the interests for reunification.  The evidence in the record supports the trial court's best interest determination.

4.         Mother argues the trial court erred in admitting medical reports concerning injuries to the first two children and objects to testimony based on review of those reports.  At the outset of trial, appellant argued that these medical reports were not relevant, but the trial court ruled otherwise.  The records were obtained by the guardian ad litem and introduced at trial.  At the time of their introduction, mother's counsel objected on the basis of foundation.  The trial court overruled, noting that the juvenile court may consider any report or recommendation made by a guardian ad litem.  See Minn. Stat. § 290C.193, subd 2.  Further, facts or data relied on by experts in forming opinions need not be admissible in evidence. Minn. R. Evid. 703(a).  The trial court's evidentiary ruling was not an abuse of discretion. See In re Welfare of D.J.N., 568 N.W.2d 170, 174 (Minn. App. 1997) (reviewing court will not disturb evidentiary ruling absent an abuse of discretion).

            We conclude that the record contains substantial evidence to support the district court's determinations of palpable unfitness, egregious harm, and the child's best interest.  We deny respondent's motion to strike portions of mother's reply brief.

            Affirmed; motion denied.