This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of M. A.
Filed August 7, 2001
Hennepin County District Court
File No. J8-00-58644
Leonardo Castro, Fourth District Chief Public Defender, Renee Bergeron, Jennifer Mrachek, Assistant Public Defenders, 317 Second Avenue South, #200, Minneapolis, MN 55401 (for appellant-parents)
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County Department of Children and Family Services)
Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
R. A. RANDALL, Judge
In this termination of parental rights appeal, appellant-parents allege (a) the district court's requirement that appellants admit harming the child before allowing the child to be returned to their care violated their privilege not to incriminate themselves; (b) the evidence supporting termination was stale by the time of trial and did not address appellants' future ability to care for the child; (c) the county failed to provide culturally appropriate rehabilitative services; and (d) the district court deprived appellants of due process of law by adopting the county's proposed findings without independently reviewing the record. We affirm.
Appellants Houssein Ahmed and Lina Baharta immigrated to the United States from Ethiopia where they were part of the Oromo culture and Muslim faith. Appellants are married and had a son, E.A., on June 30, 1997, and a daughter, M.A., on June 17, 1998.
M.A. was born two weeks early as a healthy baby by a normal delivery but had a "dusky episode" seven-and-a-half hours after birth at which time a nurse revived her. Her head size was in the 25th percentile in circumference. Follow-up tests on M.A. showed no intracranial hemorrhaging, a normal cranial ultrasound, and no blood in the spinal fluid or on the surface of the brain. M.A. was discharged in good condition to appellants on July 2, 1998.
All check-ups between M.A.'s discharge and October 7, 1998, showed her head size in the 25th percentile with normal development. On the same day, October 7, 1998, a doctor noted bruises around M.A.'s face, and on October 13, Mary Zarembo, a public health nurse, visited appellants' home and noted M.A. had bruises on her cheeks, forehead, leg, abdomen, and arms, totaling 10-15 bruises in all. Some of the bruises had teeth marks. Ahmed stated that E.A. was biting M.A. and that "he's (E.A.'s) going to kill her." Zarembo reported M.A.'s injuries to the county.
During one of the home visits, Baharta told Zarembo that she had a bump on her (Baharta's) head because Ahmed hit her with a phone. There was another incident of domestic assault in which Ahmed was arrested but pleaded guilty to disorderly conduct.
On October 20, 1998, Nancy Erickson, a child protection worker, visited the family and noticed four bruises on M.A. on the top of her right hand, right shin, left shin, and upper arm. No teeth marks were evident. Roughly one week later, M.A. was seen by a doctor and nurse practitioner with reported vomiting, irritability, and sleeplessness. On November 25, 1998, Zarembo visited the family again and noticed bruises on M.A.'s cheeks, and Baharta again indicated that M.A. was vomiting and irritable. These are symptoms of sublethal shaking.
When M.A. was brought in for her six-month check-up on December 12, 1998, her head measured in the 90th percentile. Dr. Hyden Kahn ordered a CAT scan, which indicated bilateral subdural hematomas. M.A. was admitted to the hospital on December 21, 1998, with bilateral subdural hematomas, retinal hemorrhages, and bruises on her face and other parts of her body. Dr. Marjorie Hogan and Dr. Mitchell Morey ultimately diagnosed her with "shaken baby syndrome."
M.A.'s brother, E.A., was removed from appellants' home one week later at which time the county filed a children in need of protection and services (CHIPS) petition. Both children entered out-of-home placement on December 31, 1998.
After the CHIPS trial in March and April 1999, the district court found that M.A. "sustained injuries on numerous occasions and that there was at least one nonaccidental assault by one of her parents that caused her significant brain injury." The court found that the injuries were not caused by E.A. and did not occur during the birthing process or when the nurse revived M.A. from the "dusky episode." The court also found that it was in the best interests of both children to remain in out-of-home placement until appellants had substantially complied with the case plan ordered by the court. The court transferred legal custody of M.A. to the county.
E.A. was returned to appellants under protective supervision in January 2000. The county petitioned to terminate appellants' parental rights. The court found at the termination of parental rights (TPR) trial in August and September 2000, that while E.A. and M.A. were together in foster care, M.A. cried inconsolably for many hours during the day and slept very little at night. When E.A. returned to appellants, however, M.A. slept "more regularly, cried less frequently, and made dramatic gains in her physical and cognitive development." Also, at the TPR trial, Baharta was offered an interpreter from English to Oromo, however, Baharta said she did not want or require interpretative services.
At the TPR trial, the county established that appellants completed all the tasks of their case plans except attend individual therapy and follow recommendations of their therapists. The court found that appellants failed to follow through with their court-ordered individual therapy and "have not demonstrated insight or understanding of how their actions harmed their daughter or what conditions or circumstances led to the extensive abuse of [M.A.]."
Bob Hyland, a county social worker who worked with the family, did not recommend reuniting M.A. with appellants because there had "not been a substantial change in circumstances in the home." Dr. Sandra K. Hewitt, an expert in the area of attachment, conducted a bonding assessment between M.A. and appellants and said that the family fell in the lower quartile of dysfunctional attachment. Dr. Hewitt testified that she observed better attachment between M.A. and her foster mother than with appellants. She also said that she would not recommend returning M.A. to her home.
Kathleen Gorman, a family therapist, testified that she thought reunification was in M.A.'s best interests, but that it should be a transitioned process with various support services in place. She noted that M.A. was insecurely attached to appellants, although she did see some nurturing behaviors. She did not do an attachment assessment, but rather a family assessment. Part of the time that Gorman spent with M.A. and appellants was after the day Hyland and Dr. Hewitt testified at the TPR trial; appellants were present for Hyland's and Dr. Hewitt's testimony discussing a lack of attachment. Gorman also stated in her report that
[w]ithout admitting to the abuse it will be very difficult for them to forgive themselves, move forward and heal. It also leaves the chance for abuse to re-occur.
Heather McEnerney, a county social worker, testified that appellants repeatedly did not follow directives from doctors and social workers about M.A.'s diet and feeding, which had a negative effect on M.A. (i.e., diarrhea, vomiting, etc.). She raised the point that while some things with the family may be better, appellant-mother is still isolated, has low self-esteem, suffers from depression, and has difficulty with the English language, and the family lacks a support system. McEnerney commented that if M.A. were to be reunited with her family, the family could return to the same stress level and kinds of behaviors that led to M.A. being taken away. She stated that "the environment and the circumstances that opened this case, have not been corrected." Baharta would still be the primary caretaker and face the same issues that she did before. Additionally, appellants never initiated services from the county throughout the proceedings. McEnerney testified that returning M.A. to appellants was not in her best interests.
Linda Carvel, the assigned guardian ad litem (GAL), was appointed to the case on June 1, 2000, which was two months before trial. She spent approximately 150 hours on the case, 30 to 40 of which were spent with the family. She testified that there is intimacy between M.A. and appellant, although she would defer to Dr. Hewitt for a determination of attachment. She did not recommend terminating parental rights, but stated that a three to six-month transition offering various services to support the transition would be necessary. She stated that terminating M.A.'s contact with the family or putting her in a new home would further victimize her. Carvel, however, did not offer any suggestions of measuring or monitoring the family's progress in order to determine when would be the best time to return M.A. to appellants.
The court determined that it was in M.A.'s best interests to terminate appellants' parental rights. Appellants moved for a new trial, and the court denied the motion. This appeal follows.
D E C I S I O N
We give considerable deference to the district court's decision to terminate parental rights because the district court "is in a superior position to assess the credibility of witnesses." In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citation omitted). This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).
We start with the notification that "parental rights are terminated only for grave and weighty reasons." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citation omitted). On review of a termination order, we
must determine whether the [district] court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.
Id. (citation omitted).
The statutory criteria for termination of parental rights are found in Minn. Stat. § 260C.301 (2000). There is a presumption that the "natural parent is a fit and suitable person to be entrusted with the care of his child" and that it is in the child's best interests to be in the natural parent's custody. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980) (citation omitted). The child's best interests are "the paramount consideration in every termination case." M.D.O., 462 N.W.2d at 375 (citations omitted); see also Minn. Stat. § 260C.301, subd. 7 (stating child's best interests are the paramount consideration in termination of parental rights proceedings).
Appellants argue that the district court required them to admit that they harmed M.A. as a precondition to reunifying M.A. with the family. They claim that such a requirement is clearly erroneous and a violation of their constitutional privilege under the Fifth Amendment of the United States Constitution and under Article 1, Section 7 of the Minnesota Constitution. They assert that refusal to admit guilt can support termination of parental rights only where the county proves that without such an admission, rehabilitation is not possible. Appellants fear that an admission would subject them, or one of them, to criminal prosecution, possible incarceration, or deportation.
We understand appellants' argument. The Fifth Amendment provides protection against self-incrimination, even in termination of parental rights cases. See In re Welfare of J.W., 415 N.W.2d 879, 882-83 (Minn. 1987) (stating that when state compels witness testimony by threatening to terminate parental rights for failing to incriminate absent a waiver of that right violates Fifth-Amendment privilege). The mantle of that protection, however, has limitations. Id. at 883-84. The supreme court stated
[w]hile the state may not compel therapy treatment that would require appellants to incriminate themselves, it may require the parents to otherwise undergo treatment. Therapy, however, which does not include incriminating disclosures, may be ineffective; and ineffective therapy may hurt the parents' chances of regaining their children. These consequences lie outside the protective ambit of the Fifth Amendment.
Id. at 883. The court went on to say that
the risk of losing the children for failure to undergo meaningful therapy is neither a "threat" nor a "penalty" imposed by the state [but is] * * * simply a consequence of the reality that it is unsafe for children to be with parents who are abusive and violent.
Id. at 884.
The district court did not decide to terminate appellants' parental rights because neither of them admitted to causing M.A.'s injuries. It is important to note that the court did not require appellants to admit to the harm. Instead, the court required appellants to participate in individual therapy. Admitting responsibility was not a primary requirement for returning M.A. home. The court based its decision to terminate parental rights not on the fact that appellants did not admit to harming M.A., but rather, on evidence that (1) M.A. suffered egregious harm while in appellants' care, resulting in brain injury, an implanted shunt, and many delays in development; (2) expert testimony showed that M.A. is not securely attached to either parent; (3) appellants are not attentive to M.A.'s cues, they minimize her injuries, and they do not take responsibility for the infliction of those injuries; and (4) they continue to pose a risk to M.A.'s health and secure emotional development. The court concluded that, based on those findings, it is not in M.A.'s best interests to be returned to appellants.
The court noted that M.A. was in out-of-home placement for 22 months and that even with all the services the county provided the family, M.A. would not continue to receive the necessary services and nurturing she needs in appellants' care. The court also found that there "[had] not been substantial compliance with the case plan such that appellants have corrected the conditions, which led to the placement." The court weighed the importance of the individual therapy. Additionally, the court found that "there are few demonstrable changes with respect to [appellants'] ability to provide for the long term health, safety and nurturence of [M.A.]."
The field of therapy, while subjective, uniformly teaches that a part of therapy is the issue of taking responsibility and admitting that there is a problem so that steps can be taken to learn from that mistake and the individual and family can begin to heal. This is a point that several witnesses made during testimony. The county's witnesses, Dr. Phipps-Yonas, Hyland, and Dr. Hewitt, and appellants' witnesses, Gorman and Carvel, all stated concern about appellants not accepting responsibility for their actions and/or the importance of accepting responsibility for M.A.'s injuries in order to make meaningful progress to support returning M.A. home. The county's burden of proving the importance of addressing personal responsibility was met. Appellants declined to follow through on the court-ordered individual therapy. Baharta stopped going to her therapist after several visits, and Ahmed quickly said, after several visits, that he did not believe he could benefit from individual therapy.
Based on the court's findings and testimony to support those findings, we conclude the district court did not state, simplistically, that all appellants had to do to have M.A. returned to their home was to admit to injuring her. Rather, the record indicates that the serious nature of M.A.'s injuries, testimony that one of the appellants was likely involved in the harm, and the fact that the parents did not make substantial improvements and changes and did not abide by the case plan by attending individual therapy formed the basis of the court's decision that M.A. would be subject to continued risk of harm if returned home. The court did not order appellants to incriminate themselves as a prerequisite to being allowed the return of their child. Appellants' Fifth-Amendment privilege, although this was a close call, was not put in jeopardy.
Appellants argue that the evidence offered by the county was stale and did not focus on appellants' present and future ability to parent M.A. They emphasize the fact that Dr. Hewitt's attachment evaluation report was filed with the county two to three months before the first part of the TPR trial, whereas, Gorman's family assessment was done in July and August as the trial commenced and Carvel, the GAL, had contact with the family June through September 2000. Appellants claim that the "more recent observations and reports received very little consideration by the [district] court." They conclude that because the testimony supporting the court's decision was stale under their analysis, there was not clear and convincing evidence to support a termination of their parental rights.
The supreme court stated that
evidence relating to termination must address conditions that exist at the time of the hearing, * * * and that it must appear that the present conditions of neglect will continue for a prolonged, indeterminate period.
In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (citation omitted). Further, the evidence must be forward looking and the court's decision should rely "not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child." In re Welfare of S.Z.,547 N.W.2d 886, 893 (Minn. 1996) (emphasis added) (quotation and citation omitted). "[C]redibility of witness testimony and the weight given to the evidence are issues for the trier of fact." In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (citing State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988)). In this case, the district court was the trier of fact.
The district court noted that it gave less weight to Gorman's and Carvel's testimony when it stated:
The Court finds that Ms. Gorman observed some nurturing and positive interactions between the parents and [M.A.]. However, the Court does not give Ms. Gorman's report the weight that the Court gives to Dr. Hewitt's report. Ms. Gorman testified that she has taken child development courses, but no classes that specifically deal with attachment issues. * * * She testified that she uses a family centered and ecological approach for her Family Assessments. With this background, it is significant that [appellants'] own witness, Katie Gorman, testified that [M.A.] was insecurely attached to both parents.
The court, in addressing Carvel's testimony, noted that Carvel began her assignment with the family on the eve of the trial and that the majority of the contacts she had with the family occurred after the beginning of the trial, after appellants heard testimony from Hyland and Dr. Hewitt, who both addressed appellant' lack of attachment with M.A. Further, the court noted that Carvel "recognized Dr. Hewitt's expertise on attachment and her experience as a psychologist for abused children, and deferred to Dr. Hewitt's expert opinion on those issues." More importantly, Carvel testified that she had some concerns about returning M.A. to appellants due to the risk of domestic abuse and low tolerance for M.A.'s special needs.
The district court weighed the credibility of the various witnesses and determined, based on the stated reasoning, that it gave greater weight to Dr. Hewitt's testimony and report than appellants' two witnesses. While appellants' witnesses stated that they did not support a termination of parental rights, but rather a gradual transition or delayed transition with extra services, they both expressed concerns about appellants' lack of acknowledging M.A.'s injuries or accepting responsibility for them. Further, the court cast some doubt on the credibility of Carvel's observations because appellants may have been influenced by the negative testimony in August to show more attachment with M.A. when meeting with Carvel. They understood what factors were considered in determining attachment (i.e., eye contact, laughing, hugging, etc.) based on the early testimony and therefore, may have tailored their behaviors to support the appearance of intimacy and attachment, thereby leading Carvel to conclude that there was intimacy between M.A. and appellants.
The district court did not abuse its discretion in giving greater weight to Dr. Hewitt's testimony. Dr. Hewitt's testimony was not stale; her report was filed within two to three months before the trial. We find that the court did not rely on "stale testimony" to support its decision to terminate appellants' parental rights.
III. Culturally Appropriate Services
Appellants argue that the district court erred in determining that appellants were provided "culturally appropriate services" designed to reunify the family and therefore, the court's decision to terminate parental rights was not supported by the evidence.
A social services agency is required to make reasonable efforts to rehabilitate the parents and reunite the family in a case of termination of parental rights. Minn. Stat. §§ 260C.301, subd. 1(b)(5)(iv), 260.012(a) (2000). These efforts must be "culturally appropriate." Minn. Stat. § 260.012(a). In a TPR proceeding, the court
shall make findings and conclusions as to the provision of reasonable efforts. When determining whether reasonable efforts have been made, the court shall consider whether the services to the child and family were: * * *
(3) culturally appropriate.
Minn. Stat. § 260.012(c). This is one of six factors the court shall consider in determining reasonable efforts. Id.
Appellants were offered interpreters for each of the services offered or provided to them. The interpreters were from the Oromo culture. Baharta terminated the interpreter services on her own. Dr. Hewitt discussed the Oromo culture with an Oromo interpreter before meeting with appellants. While Dr. Hewitt admitted that she did not have a strong background about the Oromo culture, she did have some limited contact and offered fairly extensive testimony about her knowledge of the Oromo society and cultural norms.
Testimony and exhibits showed that appellants were offered extensive services designed to rehabilitate this family, such as: a parenting program, which included in-home instruction; a domestic abuse program; individual therapy; an anger management program; and regular visits with M.A. in addition to the county scheduling many of M.A.'s appointments. It should be noted that the county states that Dr. Kahn, the pediatrician who discovered and reported M.A.'s injuries, was from the Oromo culture and continued to work with M.A. and the family throughout the termination trial. The county also states a family and social services worker, who is also a member of the Oromo culture, worked with the family until appellants asked that he be removed from the case. The district court found that "the case plan provided to the family was reasonable and culturally appropriate."
Appellants claim that the county imposed the "white Anglo-Saxon Christian" parenting skills on them. Appellant offered no facts or examples to support this assertion. Nothing in the record indicates that the Oromo culture allows systematic infant abuse. Appellants do not attempt to argue this theory. We can only observe that protecting and taking care of one's small children is not a characteristic that any one race or ethnic group claims for its own. Rather, taking care of one's children is the universal culture of all parents.
We conclude that the district court correctly determined the county made reasonable efforts to reunite the family and that those efforts included attention to appellants' culture.
IV. Due Process
Lastly, appellants claim that they were denied due process because the court adopted the county's proposed findings verbatim, without a neutral and unbiased review of the evidence. They believe that by issuing findings similar to the county's proposed findings, the court "adopted the [county's] bias in favor of termination." Appellants specifically point to the fact that the
"court's failure to address the guardian's contemporaneous evidence of rehabilitation in this case is persuasive confirmation that the court did not independently evaluate each party's evidence."
While it is not a widely approved practice, a verbatim adoption of a party's proposed findings is reviewed under the clearly erroneous standard. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). "Such adoption by itself is not improper if the record supports the findings and shows the [district] court conscientiously considered all the issues." Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988) (citation omitted).
Careful review of the county's proposed findings and the court's actual findings show that there are substantial portions of verbatim adoption of the county's proposed findings. There are, however, numerous additions and deletions from the proposed findings. This supports the conclusion that the district court conscientiously considered all the issues and weighed the evidence to reach its conclusion. The court's decision not to adopt the GAL's proposed findings does not mean that the court's entire findings are invalid. As discussed above, the court gives reasons for giving more weight to Dr. Hewitt's testimony rather than the GAL's. Further, a careful reading of the record and transcript supports the court's findings.
We conclude, borrowing language from a case addressing the same issue, that
a careful comparison of the proposed findings of fact and the actual findings of fact demonstrates that the district court did not adopt the county's proposed findings verbatim but rather deleted some, altered some, added its own, and, in sum, created findings of fact that were detailed, specific and sufficient enough to enable meaningful review by this court.
In re Welfare of M.J.L.,582 N.W.2d 585, 588, n.3 (Minn. App. 1998) (quotation omitted).
 Testimony shows that a "dusky episode" is when the vital signs drop and there is a chance of losing the patient.