This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In the Matter of the Child of: Deedra and Timothy Haviland, Parents.
Hennepin County District Court
File No. J701068415
Leonardo Castro, Fourth District Public Defender, Barbara S. Isaacman, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants Deedra and Timothy Haviland)
Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487; and
Michael Q. Lynch, Assistant County Attorney, Health Services Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondents Hennepin County, Family and Adult Services Department)
Karim El-Ghazzawy, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for guardian ad-Litem)
Considered and decided by Hudson, Presiding Judge, Kalitowski, Judge, and Minge, Judge.
Appellants argue that the district court improperly terminated their parental rights because it: (a) based its determination that the mother was not treatable on evidence that failed to satisfy the Frye-Mack standard for scientific evidence; (b) improperly focused on the mother’s past conduct; (c) did not require a case plan for the mother; (d) erroneously found that the services offered to the father were reasonably calculated to cure the conditions leading to the out-of-home placement; (e) failed to comply with the requirement that termination of parental rights was in the child’s best interests; and (f) made evidentiary rulings that deprived the parents of a fair trial. We affirm.
Appellants Deedra and Timothy Haviland are the parents of a daughter, D.H.H., born on November 1, 2001. On November 6, 2001, the county filed a petition for termination of parental rights, alleging that appellant mother had subjected another child to egregious harm and was palpably unfit and that appellant father was also palpably unfit.
In 1996, appellant mother was convicted of second-degree assault for abusing her son, B.B., from a previous marriage. This son was born in 1994, and when he was an infant, appellant mother began bringing him to the hospital for supposed breathing problems and ear infections. After doctors suspected that B.B. was a victim of Munchausen Syndrome by Proxy, also known as Factitious Disorder by Proxy, they put him in a room with a hidden video camera. Over the course of two days in June 1995, the camera caught appellant mother engaging in abusive behavior toward B.B., the most serious of which was appellant mother laying on top of B.B. to stop him from breathing and to set off the alarm on his oxygen saturation monitor.
In the petition seeking termination of parental rights to D.H.H., the county asserted that because appellant mother had subjected B.B. to egregious harm, it did not have to show reasonable efforts for rehabilitation or reunification of appellant mother. The juvenile court found that the county had stated a prima facie case that appellant mother had subjected another child to egregious harm and that therefore the county did not have to show reasonable reunification efforts. But the juvenile court did require the county to show reasonable efforts for rehabilitation or reunification of appellant father.
As part of those rehabilitation or reunification efforts, the county created a case plan for appellant father. The plan required appellant father to complete a parenting evaluation and follow its recommendations, develop a clear understanding of Munchausen Syndrome by Proxy, and develop a safety plan by which D.H.H. may be protected from appellant mother unless and until she overcomes her disorder. The case plan also required appellant father to comply with the requirements of the child protection matter concerning his son from a previous marriage, L.H.
The plan was submitted to the juvenile court and subsequently adopted. As adopted, the plan required appellant father to establish a separate residence from appellant mother, to begin therapy regarding Munchausen Syndrome by Proxy so he could gain an understanding adequate to make informed judgments about the danger posed by appellant mother, to identify a licensed daycare provider for D.H.H., and to assure the court that he would not allow contact between appellant mother and D.H.H. unless that contact was specifically authorized.
Appellant father completed the parenting evaluation and the psychological testing and evaluation. Appellant father has also substantially complied with the child protection matter regarding L.H. Appellant father did not, and will not, establish a separate residence from appellant mother. The parenting assessment report discusses appellant father’s denial of his wife’s ability to harm a child and discusses appellant father’s willingness to leave D.H.H. in appellant mother’s care. Appellant father’s testimony at trial was consistent with the parenting assessment report.
The trial was based mostly on stipulated exhibits. The videotape of the 1995 hospital incident showing appellant mother abusing her son, B.B., was introduced into evidence over the objections of appellants. The record from the criminal prosecution of appellant mother for abusing B.B. was introduced. It included testimony that appellant has Munchausen Syndrome by Proxy and that this explained her abuse of B.B.
The district court entered detailed findings of fact and concluded with an order that appellants’ parental rights to D.H.H. be terminated. The court found that appellant mother had egregiously harmed her other child, B.B., over a sustained period of time, that she had not successfully participated in a treatment program, that for the foreseeable future she would not be able to care for her children, that reasonable efforts to rehabilitate appellant mother were not required, that there was clear and convincing evidence that it was contrary to the best interests of any child to be in her care, and that there was no reasonable likelihood that appellant mother could complete necessary therapy within the foreseeable future. The court also found that appellant father would not be able to care for D.H.H. within the reasonably foreseeable future because of his unwillingness to recognize the danger of leaving D.H.H. in appellant mother’s care, the degree to which appellant father was under appellant mother’s control, and appellant father’s refusal to live apart from appellant mother.
When a termination case is appealed, the reviewing court determines whether: (1) the district court’s termination findings address the statutory criteria; (2) the findings are supported by substantial evidence; and (3) the findings are clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). Findings are supported by substantial evidence where the evidence is clear and convincing. In re Welfare of A.H., 402 N.W.2d 598, 603 (Minn. App. 1987) (noting that the terms “substantial evidence” and “clear and convincing evidence” are used interchangeably). Although some deference is given to the district court’s findings, a reviewing court exercises great caution and closely inquires into the sufficiency of the evidence when determining whether it is clear and convincing. Id. This court reverses the district court’s findings only if such findings are clearly erroneous in light of the requirement for clear and convincing evidence. See In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995).
The legislature has established nine criteria that support termination of parental rights. Minn. Stat. § 260C.301, subd. 1(b) (Supp. 2001). The party petitioning for termination must prove one 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 “paramount consideration” in every termination case is the child’s best interests. Minn. Stat. § 260C.301, subd. 7 (2000). A district court must make “clear and specific” findings that conform to the statutory requirements. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).
Appellants argue that the juvenile court erred by allowing expert testimony on Munchausen Syndrome by Proxy. Appellants have asserted that the psychological evidence on Munchausen Syndrome by Proxy is only admissible if it meets the standards for consideration of novel scientific evidence under the Frye-Mack standard.
Minnesota courts use the two-prong Frye-Mack standard to determine the admissibility of novel scientific evidence; Minnesota has rejected the Daubert standard for determining admissibility of novel scientific evidence. Goeb v. Tharaldson, 615 N.W.2d 800, 809, 814 (Minn. 2000). The Frye-Mack standard requires first that novel scientific evidence be generally accepted within the relevant scientific community and second that the particular evidence derived from that test has a foundation that is scientifically reliable. Id. at 810. Here the district court used the Daubert standard and found that the expert psychological testimony on Munchausen Syndrome by Proxy was admissible.
Regardless of whether appellant mother had Munchausen Syndrome by Proxy, and regardless of whether the expert testimony on Munchausen Syndrome by Proxy should have been admitted, the testimony on Munchausen Syndrome by Proxy did not prejudice the appellants in this case. Even without that testimony, there is clear and convincing evidence that appellant mother subjected another child to egregious harm. See State v. Kraushaar, 470 N.W.2d 509, 513 (Minn. 1991) (stating it was not necessary to scrutinize psychiatric evidence under Frye-Mack because even if there was error, it was not prejudicial). Appellant mother assaulted and egregiously harmed another child. She was convicted of assault. There was abundant evidence that she is palpably unfit to be the parent of D.H.H. and that due to the egregious harm she had inflicted on B.B. and her failure to successfully complete a counseling program, it is contrary to the best interest of the child, D.H.H., to be in her care. This constitutes an adequate basis for terminating her parental rights. Minn. Stat. § 260C.301, subd. 1(b)(4), (6). Accordingly, we decline to reach appellants’ argument that the district court should not have admitted the testimony on Munchausen Syndrome by Proxy.
We recognize that other courts have struggled with questions of how evidence of diagnosis of Munchausen Syndrome by Proxy is to be evaluated and admitted in child custody, termination of parental rights, and criminal proceedings. Some courts have subjected this diagnosis and its admission into evidence to the rigors of the Frye-Mack test. See People v. Coulter, 697 N.Y.S.2d 498 (Dist. Ct. 1st Dist. N.Y. 1999). Others have assumed the condition does not constitute novel scientific evidence and simply admitted the diagnosis of Munchausen Syndrome by Proxy under Rule 702 of the Rules of Evidence. See State v. Hocevar, 7 P.3d 329 (Mont. 2000). Most courts have considered the condition under circumstances where no challenge was raised under Frye-Mack, Daubert, or Rule 702 or its equivalent. See Fessler v. State Dep’t of Human Res., 567 So.2d 301 (Ala. Civ. App. 1989); Tucker v. Shelby County Dep’t of Pub. Welfare, 578 N.E.2d 774 (Ind. Ct. App. 1991); In re Colin R., 493 A.2d 1083 (Md. Ct. Spec. App. 1985); In re S.R., 599 A.2d 364 (Vt. 1991).
Although it may be tempting to embark on a legal journey through the troubled waters of this tragic condition and the principles of evidence, we note that in many of the reported cases, the observed conduct is so aggravated that the parent has established a history which supports an aggressive response by officials responsible for child protection. As a result, classification, diagnosis, and prognosis by reference to the condition do not affect the outcome of the proceedings. Such is the situation in the instant case.
Next we address whether the juvenile court improperly focused on appellant mother’s abusive behavior toward B.B. in 1994 and 1995.
The termination of appellant mother’s parental rights was based on her subjecting another child to egregious harm and on her being palpably unfit, pursuant to Minn. Stat. § 260C.301, subd. 1(b)(4), (6). That statute provides that parental rights may be terminated when it is shown
(4) that a parent is palpably unfit to be a party to the parent and child relationship because of * * * specific conditions directly relating to the parent and child relationship * * * 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. It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the * * * parents’ custodial rights to another child have been involuntarily transferred to a relative * * *
* * * *
(6) that a child has experienced egregious harm in the parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent’s care.
A court may consider a parent’s past conduct in deciding whether to terminate parental rights. In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996). When deciding whether to terminate parental rights, the court relies “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.” S.Z., 547 N.W.2d at 893 (quotations omitted). We have stated that “the trial court should not give undue weight to old evidence of neglect, and should fully consider new evidence of parental rehabilitation.” In re Welfare of M.M.B., 350 N.W.2d 432, 434 (Minn. App. 1984) (citations omitted).
Though the juvenile court in this case did rely on appellant mother’s past conduct, such reliance was appropriate because it was relevant to whether a child experienced egregious harm in appellant mother’s care. In addition, the juvenile court did not “primarily” rely on appellant mother’s past conduct. Rather the juvenile court examined appellant mother’s past conduct and evaluated “the projected permanency” of her inability to care for her child. Accordingly, the juvenile court did not improperly focus on appellant mother’s past conduct.
Appellants argue that the juvenile court should have required a case plan for appellant mother as a reasonable rehabilitative service to correct the conditions that led to the out-of-home placement.
Minn. Stat. § 260C.301, subd. 8 (Supp. 2001), requires that when a court terminates parental rights,
the court shall make specific findings:
(1) that reasonable efforts to prevent the placement and to reunify the child and the parent were made including individualized and explicit findings regarding the nature and extent of efforts made by the social services agency to rehabilitate the parent and reunite the family; or
(2) that reasonable efforts at reunification are not required as provided under section 260.012.
Minn. Stat. § 260C.301, subd. 8. Section 260.012 provides:
Reasonable efforts for rehabilitation and reunification are not required upon a determination by the court that:
(1) a termination of parental rights petition has been filed stating a prima facie case that:
(i) the parent has subjected a child to egregious harm as defined in section 260C.007, subdivision 14.
Minn. Stat. § 260.012 (Supp. 2001).
Appellants argue that the above provisions can be “overridden” and cite to Minn. Stat. § 260C.301, subd. 3 (Supp. 2001). Appellants appear to be arguing that Minn. Stat. § 260C.301, subd. 3, provides that reasonable efforts at rehabilitation may be required even though Minn. Stat. § 260.012 provides that such efforts are not required. Minn. Stat. § 260C.301, subd. 3, addresses when the county attorney is required to file a petition for termination of parental rights; the sections do not override Minn. Stat. § 260.012.
In this case, the juvenile court concluded that reasonable efforts at reunification were not required. The juvenile court based this conclusion on the finding that a petition had been filed and stated a prima facie case that appellant mother had subjected a child to egregious harm. The juvenile court acted well within the bounds of its authority under Minn. Stat. § 260C.301, subd. 8, and Minn. Stat. § 260.012. The juvenile court did not err by not requiring a case plan for appellant mother.
Next we address whether the county met its burden of making reasonable efforts to rehabilitate appellant father or reunite appellant father with D.H.H.
Minnesota law provides that before parental rights are terminated, “the court shall ensure that reasonable efforts * * * are made to prevent placement or to eliminate the need for removal.” Minn. Stat. § 260.012(a) (Supp. 2001). In determining reasonable efforts, “the child’s health and safety must be of paramount concern.” Id. Reasonable efforts are defined as
the exercise of due diligence by the responsible social services agency to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent removal of the child from the child’s family; or upon removal, services to eliminate the need for removal and reunite the family.
Minn. Stat. § 260.012 (b) (Supp. 2001).
Appellants argue that the county did not meet its burden in this case because appellant father was not offered a case plan but was told to come up with his own plan. The record reflects that the county did provide appellant father with a case plan. The case plan was stated on the record on December 4, 2001, and the county asserts that it was mailed to appellant father on December 6, 2001. Part of the case plan involved appellant father devising a written safety plan by which D.H.H. could be protected from appellant mother. It was only after appellant father failed to come up with a written safety plan that the county devised one for him.
The safety plan required appellant father to establish a separate residence from appellant mother, to begin therapy regarding Munchausen Syndrome by Proxy so he could gain an understanding adequate to make informed judgments about the danger posed by appellant mother, to identify a licensed daycare provider for D.H.H., and to assure the court that he would not allow contact between appellant mother and D.H.H. unless that contact was specifically authorized.
Appellants argue that the plan was not reasonable because the plan required appellant father to choose between his wife and child. The juvenile court made specific findings detailing the danger posed by appellant mother and the danger posed by appellant father’s denial of appellant mother’s condition. The juvenile court also made specific findings on the extreme vulnerability of this child. Given those findings and given that the child’s health and safety is of paramount concern, the case plan is not unreasonable.
Next, appellants argue that the county did not provide appropriate services to appellant father to assist with reunification. Specifically, appellants argue that the county should have referred appellant father to a therapist specializing in Munchausen Syndrome by Proxy and that the county should have offered to set up, at the county’s expense, a separate household for appellant father and D.H.H.
The case plan required appellant father to complete a parenting assessment, and the county provided that service to appellant father. The case plan also required appellant father to develop a clear understanding of Munchausen Syndrome by Proxy, but appellant father admitted that rather than reading the written materials he was given on the syndrome, he allowed appellant mother to summarize those materials. The case plan also required appellant father to devise and follow a written safety plan, but he failed to devise such a plan. The safety plan prepared by the county required, inter alia, that appellant father set up a residence separate from appellant mother. But appellant father adamantly refused to separate from appellant mother, and even at trial, he continued to assert that she was not a danger to D.H.H. Appellant father’s failure to follow the written safety plan was not for lack of reasonable services. Rather, appellant father’s failure to follow the written safety plan was due to his denial about the need for such a plan. Accordingly, the juvenile court did not err by concluding that the county had demonstrated reasonable efforts at reunification but that appellant father did not cooperate with those efforts.
Next we address appellants’ argument that the juvenile court erred by determining that termination of parental rights was in the best interests of the child.
Appellants argue that Minn. Stat. § 260C.212, subd. 2(b) (Supp. 2001), required the juvenile court to consider, “inter alia, the current functioning of the child, her medical and developmental needs, relationships to caregivers and relatives, and cultural and religious interests.” Minn. Stat. § 260C.212, subd. 2(b), addresses the needs a court is to consider when determining where to place custody of a child, but the statute does not list or cover specific factors that must be considered when deciding whether to terminate parental rights.
The statute section applicable to the juvenile court’s decision is Minn. Stat. § 260C.301, subd. 7 (2000), and that statute section provides that the best interests of the child are the paramount consideration in termination of parental rights cases. Id. The juvenile court made specific findings that termination of parental rights would serve the best interests of the child in this case, and those findings are supported by the testimony from the social worker and the guardian ad litem. The juvenile court did not clearly err.
Next we consider whether the juvenile court erred by admitting several pieces of evidence. Appellants challenge the admission of: (1) the videotape of appellant mother abusing her son in 1995; (2) the testimony of the social worker; and (3) the testimony of the guardian ad litem.
Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Id. at 46 (citation omitted).
Appellants assert prejudicial error but do not back it up with any concrete examples of how the videotape prejudiced the juvenile court. Appellants’ argument that the juvenile court’s prejudice is evident from its findings is not persuasive. Appellant mother’s parental rights were being terminated because of the previous court determinations involving B.B. and the egregious harm to which she subjected B.B. The juvenile court’s findings related to appellant mother’s treatment of B.B. are appropriate in light of the statute under which appellant mother’s parental rights were terminated. And appellants make no attempt to demonstrate prejudicial error from the admission of the testimony of the social worker and guardian ad litem. Absent a demonstration of prejudicial error, we cannot conclude that the juvenile court abused its discretion by admitting the objected to evidence.
 Munchausen Syndrome by Proxy occurs when a parent or other caregiver creates factitious symptoms of a medical condition in a child so that the parent receives attention for being a concerned, attentive, and loving parent.