This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-03-125

C1-03-205

 

In the Matter of the Child of:

Mandy (Miller) Green, and

Brad Green, Parents.

 

Filed July 15, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Clay County District Court

File No. J10250573

 

 

Beverley L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, ND  58108-6017 (for appellant Mandy Green)

 

John I. Allen, Weerts Allen, LLC, 606 First Avenue North, Suite 203, P.O. Box 2310, Fargo, ND  58108-2310 (for appellant Brad Green)

 

Lisa N. Borgen, Clay County Attorney, Michelle C. Winkis, Brian J. Melton, Assistant County Attorneys, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN  56561 (for respondent)

 

Theresa Quam, P.O. Box 967, Detroit Lakes, MN  56502 (guardian ad litem)

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

In this proceeding for the termination of parental rights, appellants contend that the district court’s findings are not supported by substantial evidence or are clearly erroneous, and that the court erred by admitting shaken-baby-syndrome evidence, excluding character evidence, and failing to adopt the guardian ad litem’s recommendation.  Because the substantial evidence supports the court’s order and because we find no evidentiary error, we affirm.

FACTS

T.G., born April 30, 2002, is the son of appellant-father Brad E. Green and appellant-mother Mandy M. Green.  On May 18, 2002, Sheri Fuller was babysitting T.G. when she noticed he was extremely fussy, had difficulty with bowel movements, and screamed in pain when she changed his diaper.  The next day, the parents picked up T.G. from Fuller’s home.  On May 20, T.G. repeatedly vomited, and on May 21 the child started to “twitch.”  Appellants took T.G. to the hospital where he was diagnosed as suffering from a brain injury and a broken leg, secondary to shaken-baby syndrome.  The county filed a CHIPS petition on behalf of T.G., who was placed in the custody of Clay County Social Services until early June 2002.  He was then returned to appellants’ care because an investigation by the Moorhead Police Department and Clay County Social Services was inconclusive as to who caused T.G.’s injuries

            At 11:30 a.m. on July 25, 2002, T.G. had an appointment with Dr. Hope Yongsmith, an ophthalmologist who had been treating him for retinal hemorrhages associated with shaken-baby syndrome.  At the appointment, T.G. was “healthy, content, and was cooing.”  At around noon, T.G. returned home, and appellants decided to feed him.  The mother left the room for approximately 30-45 seconds to retrieve a “burp” rag, and on her return she saw the father holding T.G., who was limp and barely breathing.  The father stated that T.G. had been making “bicycling” motions with his legs and suffered a seizure.  Appellants brought T.G. to the emergency room where on arrival he was blue, limp, and barely breathing.  Dr. Rosaleah Bernardo, a pediatric critical-care doctor who treated T.G., initially diagnosed him as suffering from a spontaneous bleed, but she later changed the diagnosis to non-accidental trauma, seizure disorder, and multiple rib fractures. 

Dr. Nathaniel Karlins, a radiologist, examined CT scans taken of T.G.’s brain on May 21 and compared them against CT scans taken on July 25, 2002.  Dr. Karlins testified that T.G.’s injuries were suggestive of shaken-baby syndrome, and that T.G.’s hospitalization in July was related to new brain trauma and was not related to T.G.’s injuries of May 2002.  Dr. Karlins also testified that T.G.’s broken leg is a type of fracture that is probably caused by grasping and twisting a child’s legs during a shaken-baby incident.  Dr. Karlins also noted that the child’s ribs had been broken.  He testified that the rib fractures occurred three weeks before July 25, 2002, and that fractures of that nature are associated with an adult’s hands squeezing the chest of an infant and shaking it.

Dr. James Reggin, a board-certified neurologist, testified that T.G.’s brain and leg injuries were non-accidental.  Dr. Reggain also testified that T.G.’s (1) injuries were not caused by seizures, (2) injuries of July 25, 2002, were inflicted at some time between T.G.’s appointment with Dr. Yongsmith and prior to arriving at the emergency room, and (3) injuries were consistent with shaken-baby syndrome.

Dr. Ron Miller, a board-certified pediatrician, testified that (1) T.G. was shaken severely in late May 2002, (2) T.G.’s rib fractures were most likely caused by shaking that occurred sometime between May 2002 and July 25, 2002, and (3) T.G. was severely shaken on July 25, 2002, at sometime between his visit with Dr. Yongsmith and T.G.’s arrival at the emergency room.  Dr. Miller also testified that resuscitation efforts performed on T.G. would not cause the types of injuries that he suffered on July 25, 2002.

Dr. Ross Pettit, a board-certified neurologist, reviewed T.G.’s medical records but did not examine T.G.  Dr. Petit testified in May 2002 that T.G. suffered neurological injuries consistent with shaken-baby syndrome, but that there was a possibility that T.G.’s injuries of July 25, 2002, were caused by a seizure, efforts to resuscitate, or a spontaneous re-bleed of the May 2002 injuries. 

Dr. John Plunkett, a board-certified pathologist, testified that T.G.’s injuries must have been caused by an “impact” injury, and that he does not agree with the current medical literature’s association of injuries with shaken-baby syndrome.  He also testified that the symptoms that T.G. exhibited on July 25, 2002, were the natural consequences of a seizure.

            The mother testified that she does not believe that the father was the cause of T.G.’s injuries in either May or July 2002.  The mother speculated that Sheri Fuller harmed the child in May 2002, and that the subsequent medical issues in July were caused by seizures, immunizations, or sequelae from T.G.’s injuries in May.

          The court made extensive findings of fact, which include that (1) Fuller did not abuse the child; (2) while in the care of appellants during May 16 through 18, 2002, T.G. was violently shaken and thereby suffered a brain injury and broken right lower leg and (3) the child was subject to abuse by appellants in early to mid-July, during which T.G.’s ribs were fractured, and on July 25, when T.G.’s brain was severely injured.  The court concluded that it is in the best interests of T.G. for the mother’s parental rights to be terminated, because she is unable to protect T.G. from abuse, and that it is in the best interests of T.G. for the father’s parental rights to be terminated, because of T.G.’s need to have a safe, healthy, and stable environment.  This appeal followed.

D E C I S I O N

The legislature has established nine criteria that support termination of parental rights.  Minn. Stat. § 260C.301, subd. 1(b) (2002).  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 (2002).

I.

            Appellants argue that the district court made numerous findings that are not supported by substantial evidence or that are clearly erroneous.  When reviewing a district court’s findings in a termination of parental rights action, this court

 

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.

 

In re M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn. 1984).  A finding is defined as clearly erroneous when the reviewing court is “left with the definite and firm conviction that a mistake has been made.”  In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. Aug. 16, 1993)).

a.         T.G.’s injuries of May 2002

The father argues that there

is substantial evidence that clearly supports that T.G. did not suffer from shaken-baby syndrome at all, but rather that he sustained an impact injury. * * * The impact injury occurred on or about May 18, 2002.

 

The district court found that in May of 2002 T.G. suffered “neurological and visual trauma” and a “buckle” fracture to one of his distal tibias as a result of a shaken-baby incident.  The district court based its findings on the testimony of (1) Dr. Hope Yongsmith, (2) Dr. Nathaniel Karlins, (3) Dr. James Reggin, and (4) Dr. Ron Miller.  All four physicians agreed that T.G. suffered non-accidental trauma in May of 2002 that resulted in the child suffering from shaken-baby syndrome.  Furthermore, the district court found that Dr. Ross Petit, who testified on behalf of appellants, agreed that T.G. sustained neurological injuries consistent with shaken-baby syndrome because of a May 2002 incident.

Although one of appellants’ witnesses, Dr. John Plunkett, testified that the child’s injuries were the result an impact injury instead of shaken-baby syndrome, the district court found his testimony to be not credible because Dr. Plunkett (1) is not a qualified neurologist, (2) has opinions that are based on tests performed on primates or adult human cadavers, not children, and (3) has a theory regarding sudden-impact injuries that “is not generally accepted in the relevant medical/scientific community * * * .”  See Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (holding that for novel scientific evidence to be admissible it must generally be accepted within relevant scientific community and that particular evidence derived from test has a foundation that is scientifically reliable).

Because the evidence relied on by the district court is adequate to support its conclusion that T.G. suffered from shaken-baby syndrome in May of 2002, its finding is supported by substantial evidence and is not clearly erroneous.

b.         T.G.’s injuries of July 2002

The father argues that there is not clear and convincing evidence that the injuries suffered by T.G. in July 2002 were the result of shaken-baby syndrome.  The district court concluded

there can be absolutely no other explanation for the occurrence of Child’s injuries and symptoms which he exhibited to the ER at Meritcare at 1:30 p.m. on July 25, 2002, other than the that that he was violently shaken [on that day].

The court’s finding is supported by the testimony of Dr. Reggin, who testified that T.G.’s injuries of July 2002 were to a reasonable degree of medical certainty non-accidental and caused by violent shaking.  Dr. Miller testified that T.G.’s injuries of July 2002 were the result of T.G. being violently shaken on July 25, 2002, and Dr. Karlins testified that T.G.’s injuries of July 25, 2002, are suggestive of injuries caused by shaken-baby syndrome.  Furthermore, Dr. Yongsmith testified that the injuries T.G. suffered in July of 2002 could only have been caused by his having been shaken sometime between 12:15 p.m. and 1:30 p.m. on that date.  Although Dr. Petit testified that T.G.’s injuries of July 2002 could have been caused by a seizure or by resuscitation attempts, both Dr. Reggin and Dr. Miller testified that T.G.’s injuries of July 2002 were not caused by seizures or resuscitation attempts.

The district court’s finding that the injuries suffered by T.G. in July of 2002 were the result of his being violently shaken is supported by substantial evidence and is not clearly erroneous.

c.         Is the district court’s finding supported by substantial evidence that T.G.’s parents inflicted the injuries he suffered in May of 2002?

 

Appellants argue that the district court’s finding that they were the cause of injuries suffered by T.G. in May of 2002 is clearly erroneous.  The mother argues that the district court cannot make a determination

about when the child suffered abuse in May of 2002, because there is no medical testimony or lay testimony to prove by clear and convincing evidence that [T.G.] was harmed on any specific date.

 

 

The district court found that

[T.G.] experienced an incident of child abuse by being violently shaken, which resulted in brain injury and a broken right lower leg, while Child was in the care of Mother and Father sometime in the period of May 16, 2002, to May 18, 2002.  The Court is unable to make any specific finding based upon clear and convincing evidence, as to which parent perpetrated said act of child abuse.

 

The district court’s found that the testimony of Sheri Fuller, T.G.’s maternal aunt, showed that T.G. appeared normal on May 16, 2002, but that on May 18 the child was “extremely fussy, had difficulty with bowel movements, and screamed in pain when she would bring his legs up to put the diaper underneath him.”  The district court found that the child was only in the care of appellants and Ms. Fuller between May 16 and 18 and that Ms. Fuller did not cause the harm to the child; therefore, it concluded that the parents were the perpetrators of the abuse against T.G.

            In a civil case,

[i]f the circumstantial evidence furnishes a reasonable basis for inferences by the jury of the ultimate fact that the alleged acts of the defendant caused the injury complained of, it is sufficient proof of causal connection to sustain a verdict.

 

Erickson v. Strickler, 252 Minn. 351, 355, 90 N.W.2d 232, 236 (1958).  Although there is no direct evidence that appellants abused the child in May of 2002, the circumstantial evidence that the parents abused T.G., in conjunction with the child’s subsequent injuries to his ribs and his brain, constitutes a pattern by which a finder of fact could reasonably conclude that appellants committed an act of abuse against T.G. in May of 2002.  Therefore, the district court’s finding is supported by substantial evidence and is not clearly erroneous.

II.

            The mother argues that the county failed to prove by clear and convincing evidence that the testimony by T.G.’s treating physicians regarding shaken-baby syndrome was admissible because the county failed to show that it met the Frye-Mack standard for novel scientific evidence.  The district court determined that the evidence regarding shaken-baby syndrome was properly admitted because

[t]he medical concept and/or theory that an infant can sustain severe brain injury if violently shaken, even in the absence of outward evidence of trauma, is generally accepted in the medical community by physicians who regularly examine, diagnose, or treat infants who have sustained brain injuries or suffer from brain disease.

 

            A district court’s evidentiary ruling on the admissibility of an expert opinion rests within its sound discretion and will not be reversed unless the court’s decision is based on an erroneous view of the law or it is an abuse of discretion.  Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445-46 (Minn. 1990).  The district court has “considerable discretion in determining the sufficiency of foundation laid for expert opinion.”  Reinhardt v. Colton, 337 N.W.2d 88, 92 n.1 (Minn. 1983).  Expert opinion is admissible “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” and if the “witness [is] qualified as an expert by knowledge, skill, experience, training, or education.”  Minn. R. Evid. 702. 

            Under the Frye-Mack standard, a novel scientific technique that produces evidence to be admitted at trial must be generally accepted within the relevant scientific community, and the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable.  State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002).  Scientific evidence is considered “novel” if an appellate court has not considered it before and if it is sufficiently different from a previously accepted standard.  Id. at 821 (stating that “[b]ecause the PCR-STR method is a new scientific technique that this court has never before considered, and because it is sufficiently different from the RFLP method, the evidence obtained from the technique is novel scientific evidence”).

            Although an expert’s methodologies for making a medical diagnosis can constitute novel scientific evidence, see Goeb, 615 N.W.2d at 816, shaken-baby syndrome does not constitute “novel” scientific evidence because it has been considered several times by appellate courts previously and is not a “new” scientific standard.  See, e.g., State v. Orfi, 511 N.W.2d 464, 471-72 (Minn. App. 1994) (concluding evidence sufficient to find toddler’s death caused by violent shaking), review denied (Minn. Mar. 15, 1994); State v. Olson, 459 N.W.2d 711, 715 (Minn. App. 1990) (concluding evidence sufficient to find infant’s fatal brain injury caused by shaking), review denied (Minn. Oct. 25, 1990).  Therefore, the district court did not abuse its discretion by not first determining whether evidence of shaken-baby syndrome meets the Frye-Mack standard, and the evidence is admissible under Minn. R. Evid. 702 because the witnesses testifying about the diagnosis were recognized as experts by the district court and their opinions could help the district court understand the evidence.

III.

            The father argues that the district court abused its discretion by determining that evidence of appellants’ good character “is not admissible for the purpose of proving that said person acted in conformity with said character on a particular occasion.”  The father acknowledges that character evidence is generally “not admissible in a civil trial unless a person’s character is an element of the charge, claim or defense,” but he claims that “the nature of the allegations that [he] inflicted T.G. with egregious harm * * * makes [his] character a central element of the allegations.”

Generally, character evidence is inadmissible to show the person acted in conformity with a character trait on a particular occasion.  Minn. R. Evid. 404(a); State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994).  The district court “has the discretion to refuse to receive inadmissible evidence offered without objection.”  St. Croix Eng’g Corp. v. McLay, 304 N.W.2d 912, 914 (Minn. 1981) (citation omitted).

The father’s parental rights were terminated pursuant to Minn. Stat. § 260C.301, subd. 1(b)(6), which allows the court to terminate parental rights if the “child has experienced egregious harm in the parent’s care.”  Because the character of the person alleged to have abused a child is not a material element of the statutory ground in question, and because the father seeks to have the disputed evidence admitted in order to show that he acted in conformity with his alleged character traits on the occasions when T.G. was harmed, the district court did not abuse its discretion by excluding the evidence.

IV.

Appellants allege that the district court was clearly erroneous in not following the recommendations of the guardian ad litem.  The guardian ad litem, Theresa Quam, testified that it was not in the best interest of the child for appellants’ parental rights to be terminated because she did not believe that T.G. suffered egregious harm while in their care.  The court did not adopt Quam’s opinions because

they are inconsistent with the Court’s Finding of Fact that [T.G.] did incur egregious harm while in the physical custody of [appellants] on July 25, 2002, on two occasions prior thereto.

 

The supreme court recently stated, “The importance of the guardian ad litem in the child protection system must be underscored.”  In re Welfare of J.R., Jr., 655 N.W.2d 1, 5 (Minn. 2003).  A guardian ad litem is a party to a termination of parental rights action, Minn. R. Juv. P. 57.01, subd. 1, and is appointed by the court “to protect the interests of the minor” and advocate for the child.  Minn. Stat. § 260C.163, subd. 5 (2002).

While the opinion of the guardian ad litem is admissible as evidence, In re Welfare of R.T., 364 N.W.2d 884, 887 (Minn. App. 1985), and the guardian shall “present written reports on the child’s best interests,” Minn. Stat. § 260C.163, subd. 5(b)(5), neither caselaw nor statutory law mandates that the district court adopt the guardian’s opinion.  Because the guardian ad litem has no greater authority before the court than does any other party, and because a party’s opinion is not controlling on a district court’s findings or determinations, the district court did not err by rejecting the guardian’s opinion.

V.

            The mother argues that her parental rights cannot be terminated because there was neither testimony nor evidence to support the finding that she inflicted bodily harm on T.G.  The district court found that T.G. had been subjected to egregious harm on at least three occasions while in the care of appellants: (1) May 2002, from which T.G. suffered severe brain injury and a fracture to his right leg; (2) mid-July 2002, in which T.G. had three of his ribs broken; and (3) July 2002, in which T.G. suffered severe brain injury.  The court found that either the mother or the father perpetrated the abuse against T.G. in the May and mid-July of 2002 incidents, and that

Mother has no insight into the fact that the Child requires protection from abuse by Father.  Her inability to recognize the past risk of injury that her Child has been subjected to, and may continue to be subject to in the future should he be returned to her care, renders her unfit to care for him.

 

Mandy Green’s parental rights were terminated pursuant to the following statutory provision:

[T]hat 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[.]

 

Minn. Stat. § 260C.301, subd. 1(b)(6).  “Egregious harm” does not require that

the parent has inflicted egregious harm on his or her own child but, rather, that a child has experienced egregious harm in the parent’s care which demonstrates the parent’s grossly inadequate ability to provide minimally adequate parental care to any child.

 

 

In re Welfare of A.L.F., 579 N.W.2d 152, 155-56 (Minn. App. 1998) (affirming termination of parental rights of child when parent inflicted egregious harm on a child to whom he was not related).  The district court found that appellants were caring for T.G. when he suffered three incidents of egregious harm, and Dr. Miller testified that because of the injuries T.G. suffered that he is “likely to have a life-long seizures, learning and behavior problems, mild motor handicaps, * * * possible visual and hearing loss, possible severe mental retardation.” 

Because the egregious-harm requirement does not necessarily require that the parent inflict egregious harm on his or her own child but that the child suffered egregious harm while under the parent’s care, and because T.G. was in the mother’s care when he suffered egregious harm on at least three occasions, the district court did not err by determining that the requirements of Minn. Stat. § 260C.301, subd. 1(b)(6), were satisfied so as to justify terminating her parental rights.  See In re Welfare of Maas, 355 N.W.2d 480, 483 (Minn. App. 1984) (supporting that trial court properly considered mother’s continued defense of boyfriend’s actions when terminating mother’s parental rights).

VI.

            The mother argues that it is not in the child’s best interests for her parental rights to be terminated because there is no evidence that she caused him egregious harm.  The district 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 exists, because a child’s best interests are the paramount consideration in proceedings to terminate parental rights.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 722-24 (Minn. 1998).  Three factors guide this court in reviewing the district court’s conclusion that termination is in the best interests of the child: (1) the child’s interests in maintaining the parent-child relationship; (2) the parent’s interests in maintaining the parent-child relationship; and (3) any competing interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).

The district court rejected Mandy Green’s argument stating that

termination of parental rights of the non-abusive parent is warranted if the evidence establishes that the non-abusive parent is unable to protect the Child due to a psychological inability to perceive the risk the abusive parent poses to the Child.

 

The court also found that appellants neglected T.G. when he was a newborn, allowed him to be cared for by a woman whose parental rights had been terminated, ignored calls from the child-care provider who informed them that T.G. was in distress, and that egregious harm would likely continue for an indeterminate period in the future if T.G. was returned.

            Because the district court considered the factors relevant to a child’s best interests, and because the district court need not determine that the parent whose rights are terminated directly harmed the child but that the harm occurred while the child was in that parent’s care, the district court’s determination that it is in T.G.’s best interests for the mother’s parental rights to be terminated is supported by substantial evidence and is not clearly erroneous.

VII.

            The father argues that there is no substantial evidence supporting the district court’s determination that it is in T.G.’s best interests for the father’s parental rights to be terminated.  The district court found that the father neglected T.G. during his first three weeks of life by allowing him to be cared for by an individual whose parental rights had been terminated, ignored calls from a care provider informing him that T.G. was in distress, had harmed the child on at least one occasion, and that the child would likely suffer harm in the future if he was returned to his father’s care.  The district court’s determination is supported by substantial evidence, is not clearly erroneous, and considers all of the relevant factors associated with the child’s best interests.

            Affirmed.