This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-990

A05-1011

 

 

In the Matter of the Welfare of the

Children of:

N.B. and M.P., Sr., Parents.

 

 

Filed November 29, 2005

Affirmed; motion granted in part, denied in part

Lansing, Judge

 

Hennepin County District Court

File No. J0-04-060459, Family No. 247893

 

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant N.B.)

 

Mark D. Nyvold, 332 Minnesota St., Suite W-1610, St. Paul, MN 55101 (for appellant M.P., Sr.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County Human Services Department)

 

Jessica L. Kramer, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402 (for respondent Guardian ad Litem)

 

 

††††††††††† Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.


U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† In these consolidated appeals from an order terminating their parental rights, NB and MP Sr. argue that the evidence does not support the district courtís findings and that the court erred by adopting verbatim the countyís proposed findings of fact.† Because clear-and-convincing evidence supports the district courtís findings on more than one statutory ground of termination and because the courtís findings establish that the district court independently reviewed and analyzed the evidence, we affirm.

F A C T S

††††††††††† NB and MP Sr. (MP) are the parents of two minor children, AP and MP Jr.† In July 2003 MP took AP, who was then about sixteen months old, to the hospital because she was vomiting blood. †X-rays and a CT scan revealed that AP had a lacerated liver and bruised kidneys.† Following an evaluation, doctors determined that the injury was not accidental and concluded that it likely resulted from blunt-force trauma.† The Hennepin County Children, Family, and Adult Services Department (department) conducted an investigation and attributed responsibility for the injury to MP.

††††††††††† As a result of APís injury, the department filed a children-in-need-of-protection-or-services (CHIPS) petition, and the district court placed AP in out-of-home care.† When MP Jr. was born in October 2003, the department amended its CHIPS petition to include both children, and the court placed MP Jr. in out-of-home care.† In December 2003 the district court adjudicated AP and MP Jr. as CHIPS.† The parents, who were living separately, were both complying with their case plans, and the district court accepted the departmentís recommendation to reunify the children by placing MP Jr. in NBís custody and AP in MPís custody.

In February 2004 MP delivered AP to NB for parenting time.† At a parenting class the following morning, a program worker insisted that NB take AP to the hospital because AP was crying in pain.† Doctors discovered that APís collarbone was broken in two places. †X-rays later revealed two additional bone fractures that were healing; the origin of these wounds is unknown, but the doctors concluded that the fractures likely occurred at the same time.† Following an investigation, the department determined that NB was responsible for the injuries.† As a result of these injuries, the district court returned AP and MP Jr. to out-of-home care.

In July 2004 the department filed a petition to terminate NB and MPís parental rights.† Following a trial, the district court granted the petition on four separate statutory grounds.† The court determined that clear-and-convincing evidence established that NB and MP had not complied with the duties imposed on them by the parent-child relationship, that NB and MP are palpably unfit to be parents, that NB and MP failed to correct the conditions leading to the CHIPS determination, and that the harm suffered by the children in NBís and MPís care was so egregious that their continued parental rights were not in the childrenís best interests.† The court denied NBís motion for a new trial.†

NB and MP both appeal from the order terminating their parental rights, arguing that the record does not support the courtís findings of fact, that the findings do not satisfy the statutory grounds for terminating parental rights, and that the courtís verbatim adoption of the departmentís findings of fact demonstrates a lack of independent review and analysis.† MP also contends that NBís brief contains material that is outside the appellate record and moves to strike those materials.

D E C I S I O N

I

The record on appeal consists of ď[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.Ē† Minn. R. Civ. App. P. 110.01.† An appellate court generally ďmay not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence [in the district court].Ē† Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).† Evidence not included in the appellate record may be considered for the purpose of sustaining a judgment if that evidence is conclusive and incontrovertible.† Mattfeld v. Nester, 226 Minn. 106, 123, 32 N.W.2d 291, 303-04 (1948); Chahla v. City of St. Paul, 507 N.W.2d 29, 33 (Minn. App. 1993), review denied (Minn. Jan. 20, 1994).

††††††††††† MP has moved to strike both a statement in NBís brief that she is cooperating with the prosecuting attorneyís office in a case against MP and part of a case-history summary that states that MP was charged with first-degree attempted burglary, terroristic threats, interference with an emergency call, and violation of an order for protection for a domestic-assault incident on February 7, 2005.† The incident occurred before the termination trial, and the district court admitted into evidence the police report describing the incident, but the charges were not issued until after the trial.†

NBís statement in her brief that she is cooperating in the prosecution of the charges does not come within the exception for conclusive and incontrovertible documentary evidence, and we grant the motion to strike.† The case-history summary, however, relies on the information in the police report and the subsequent formal charge, which is conclusive and incontrovertible documentary evidence.† Because this evidence supports the district courtís decision on MPís inability to correct the conditions leading to the termination of parental rights, we deny the motion to strike the reference in the case-history summary.

II

 

††††††††††† Acourt may involuntarily terminate parental rights upon clear-and-convincing evidence that a statutory basis for termination is present.† Minn. R. Juv. Prot. P. 39.04, subd. 1; see also Minn. Stat. ß 260C.301, subd. 1(b) (2004) (listing grounds for terminating parental rights). †The childís best interests are the central consideration, and we generally presume that remaining with the parent best serves those interests.† Minn. Stat. ß 260C.301, subd. 7 (2004) (stating best interests of child are paramount); In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995) (stating presumption that remaining with parent serves best interests of child).† Before a court may terminate parental rights, it must also find that social-service agencies made reasonable efforts to reunite the parent and child. †Minn. Stat. ß 260C.301, subd. 8 (2004). †Overall, the ďevidence must relate to the conditions that exist at the time of the termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period.Ē† In re the Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).

Although courts must exercise caution in terminating parental rights, they must also take into account any projected permanency of a parentís inability to care for his or her child.† Id.; A.D., 535 N.W.2d at 649.† Appellate courts, in reviewing proceedings to terminate parental rights, should defer to the district courtís superior position to assess credibility of witnesses, especially when that testimony is crucial to accurately evaluate what is best for the child. †A.D., 535 N.W.2d at 648. †On appeal, we will affirm the district courtís termination decision if one of the statutory bases for terminating parental rights is proved by clear-and-convincing evidence and the termination is in the childís best interests.† In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).

The district court determined that clear-and-convincing evidence exists to terminate NBís and MPís parental rights on four statutory grounds: †NB and MP have not complied with duties imposed on them by the parent-child relationship; they are palpably unfit to be parents; they have not corrected the conditions leading to the CHIPS determination despite reasonable efforts by the county; and AP suffered egregious harm in NBís and MPís care that demonstrates that continued parental rights are not in the best interests of AP and MP Jr.† See Minn. Stat. ß 260C.301, subd. 1(b)(2), (4), (5), (6) (detailing four criteria for termination of rights).

Underlying the decision to terminate NBís and MPís parental rights is the life-threatening harm that occurred to AP while she was in their care and following the reunification.† The cause of these injuries has not been completely resolved and the district court concluded that, when coupled with NBís and MPís failure to successfully establish that they could provide adequate safety for the children or exercise parenting skills that would keep the children free from harm, termination of parental rights was proper.† To support termination on this ground, the record must establish that egregious harm to the child occurred in the parentís care and must also establish evidence of a parentís ďgrossly inadequate ability to provide minimally adequate parental care to any child.Ē† In re Welfare of A.L.F., 579 N.W.2d 152, 155 (Minn. App. 1998).

AP suffered two serious injuries while in her parentsí care.† The department assigned responsibility to MP for the first incident and to NB for the second.† NB and MP each testified that the other caused the harm and also testified to additional dangerous actions and inaction that would gravely affect the childrenís welfare.† NB was at work at the time the first injury was discovered, and, while MP had primary custody of AP when the second set of injuries occurred, the injuries came to light the morning after AP had stayed with NB.† The district court found that AP is a battered child who suffered two significant injuries while in NBís and MPís care and that the mutual violence in the parentsí ongoing relationship makes the children vulnerable to future life-threatening danger.

Although the countyís administrative finding that MP inflicted the first injuries on AP more clearly places responsibility on MP for direct injury to AP, the countyís files attribute responsibility for APís second injuries to NB.† Whether one or the other parent directly harmed AP, the record starkly demonstrates the inability of each parent to keep AP safe from harm and demonstrates a similar inability to develop a plan to keep her safe.† Even if NB did not inflict the injury on AP in February 2004, AP was in her exclusive care for almost twenty-four hours before NB obtained medical care for APís severe injuries.† When a program worker at NBís parenting class insisted that NB take AP to a doctor, NB expressed a desire to withhold information from APís social worker about the injuries.† Similarly, in an earlier incident to which NB testified, when MP tripped AP, NBís concerns were directed at telling MPís mother of his behavior and engaging in a shouting contest rather than attending to AP and attempting to remove her from future danger.

Clear-and-convincing evidence of one statutory basis is sufficient to sustain a termination of parental rights.† Minn. Stat. ß 260C.301, subd. 1(b). †We observe, however, that the record also provides clear-and-convincing evidence of the three remaining grounds.† NB and MP created a dangerous environment for their children, as evidenced by the pattern of abuse in their relationship and the harm to AP.† The department offered both parents multiple services to address these problems, but by the time of trial neither NB nor MP had made the necessary progress that would allow the children to be safely released to her or his care.† The record supports the district courtís conclusions that NB and MP neglected their duties as parents, that they are palpably unfit to parent at this time or in the reasonably near future, and that they failed to correct the conditions that led the court to place AP and MP Jr. in protective custody.

We now turn to whether the record supports the district courtís findings on the best interests of AP and MP Jr. and its determination that the department made reasonable efforts toward reunification.† The record supports the district courtís determination that, at the time of trial in February 2005, despite reasonable efforts by the department, neither NB nor MP had adequately resolved the significant and protracted parenting issues that precluded a finding that reunification with either parent would be in APís or MP Jr.ís best interests.† At the time of trial, NB was complying with her case plan and was actively involved in a broad range of classes at Genesis II.† Genesis IIís parenting assessments were positive, and NB made substantial and courageous efforts to develop her ability to parent.† But the record also shows that she was struggling to cope with the issues of childhood violence and violence in her adult relationship with MP and with the children.† Although NB obtained an order for protection against MP and testified that she no longer had voluntary contact with him, the social worker and guardian ad litem both expressed concerns that she had not severed the relationship, and the district court made specific findings on the pattern of violence in her life.† Both the social worker and the guardian ad litem stated that they did not believe NB could become a fit parent within the foreseeable future.† We defer to the district courtís acceptance of the social workerís and guardian ad litemís testimony as more credible than NBís assertions.† See In re Welfare of Children of J.B., 698 N.W.2d 160, 170 (Minn. App. 2005) (deferring to district court on issues of credibility). †

On appeal we are limited to the evidence presented at the time of trial and may not rely on evidence introduced after termination of parental rights.† See Minn. R. Civ. App. P. 110.01 (limiting scope of record on appeal).† At the time of trial, AP had been in out-of-home care for seventeen of her thirty-five months, and MP Jr. had been in out-of-home care for fourteen of his sixteen months.† Despite some positive progress by NB, the record supports the district courtís determination that, after reasonable efforts by the department to reunite NB with her children, termination of her parental rights is in the best interests of AP and MP Jr.†

MP has made substantially less progress than NB.† Although MP initially complied with his case plan and the department recommended reunification in December 2003, MPís conduct throughout 2004 exhibited only minimal compliance with his case plan and a minimal effort to address his deficiencies as a parent.† He consistently visited with his children, but he did not complete ordered anger-management services or individual therapy.† He testified that ďwhat they want me to participate in, I donít want to participate in.Ē† MP refuses to acknowledge the domestic abuse he has inflicted on his family, as evidenced by APís injuries while in his care and numerous police reports detailing incidents of violence against NB, one of which occurred within a few weeks of trial. MP testified that he did not participate in services addressing domestic abuse because, ďIím not a domestic abuser.† I just defend myself, thatís all.Ē At the time of trial, police were investigating MP for violation of an order for protection. †When NB initiated coupleís counseling to more effectively communicate with MP about their children, MP refused to attend, and, consequently, the counselor discontinued services.† MP has made few efforts to become a better parent, and the district courtís decision to terminate MPís parental rights is supported by clear-and-convincing evidence.

The parents argue that because there is no record of injury to MP Jr., the court erred in terminating their parental rights with respect to him.† But a court may terminate rights to any child based on egregious harm to another child if a person would reasonably believe that being in the parentsí care is not in the childís best interests.† Minn. Stat. ß 260C.301, subd. 1(b)(6).† AP suffered two serious injuries while in her parentsí care that provide a basis for a reasonable person to believe that it is contrary to MP Jr.ís best interests to be in NB or MPís care.The lack of an injury to MP Jr. is not compelling evidence of either NBís or MPís parenting skills when MP Jr. had been in out-of-home care for approximately fourteen of his sixteen months by the time of trial, and visits by NB and MP were supervised by social services.

III

 

NB and MP allege error in the form of the district courtís findings, arguing that the district court retyped the departmentís proposed findings and signed them without conducting an independent review and analysis of the evidence.† This argument is without a factual basis.† The courtís findings differ significantly from the proposed findings.† Although a few of the findings parallel those that were proposed, these findings generally either state undisputed facts, cite testimony, or state relevant legal standards.† As a whole, the district courtís findings reflect that the court undertook an independent analysis of the evidence and reached its own conclusions.† See, e.g., In re Children of T.A.A., 702 N.W.2d 703, 707 n.2 (Minn. 2005) (noting that nothing prohibits adoption of proposed findings but stating preference for independently developed findings).

††††††††††† Affirmed; motion granted in part, denied in part.