This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




In the Matter of the Welfare of the Children of: T.J.M. and P.M.M., Parents



Filed December 18, 2007


Minge, Judge


Scott County District Court

File No. 70-JV-06-28060


Nathalie S. Rabuse, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN 55402 (for appellant father)

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent county)

Sandy LaRoy, P.O. Box 1, Webster, MN 5088 (guardian ad litem)


            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

MINGE, Judge

Appellant challenges the termination of his parental rights pursuant to Minn. Stat.
§ 260C.301, subd. 1(b)(6) (2006), regarding egregious harm to a child occurring while in the parent’s care.  He argues that the evidence that he caused egregious harm to his child was insufficient to meet the requirements of the statutes, that his admissions were both inadequate to support termination and coerced, that the district court’s findings regarding the best interests of his children were based on insufficient evidence, and that his substantive due process rights were violated.  We affirm.


Appellant P.M.M. is the father of C.M. and K.M.  C.M. was born on February  14, 2003, and P.M.M. has been a stay-at-home dad since C.M.’s birth.  K.M. was born May 1, 2006, and experienced chronic problems with feeding and weight gain.  Because of these problems, K.M. was hospitalized at the age of nine weeks.  X-rays revealed 24 fractures of K.M.’s ribs, arms, and legs.   One of the fractures was less than 10 days old, and some of the others were 10-28 days old.  The doctors ruled out bone disease as a possible cause for his injuries.  The character of the fractures led doctors to believe that they were the result of intentional conduct.  They contacted the Prior Lake Police Department. 

            The police department conducted an investigation, which included interviews with both P.M.M. and his wife, T.J.M.  After several interviews, on July 11, 2006, P.M.M. called the investigating officer and told him he needed to talk to him.  Upon meeting the officer at the station, P.M.M. confessed to accidentally injuring K.M.  There is no evidence that C.M. has ever been harmed, and the record reflects that he has a positive relationship with his father. 

            On the basis of the trial record, the district court concluded that K.M. had suffered egregious harm while in the care of his father, P.M.M., and that it was in his best interests that P.M.M.’s parental rights be terminated.  The district court also concluded that it was in C.M.’s best interests to have P.M.M’s parental right’s terminated.  Based on its determinations, the district court terminated P.M.M.’s parental rights.  P.M.M. appeals. 


“An order terminating parental rights is reviewed ‘to determine whether the district court’s findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.’”  In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005) (quoting In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001)).  “Termination of parental rights will be affirmed as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child’s best interests.”  In re Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  If a single statutory basis for terminating parental rights is affirmable, this court need not address any other statutory basis that the district court may have found to exist.  T.A.A., 702 N.W.2d at 708 n.3.

            On review, “[c]onsiderable deference is due to the district court’s decision because a 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. App. 1996).  The reviewing 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); In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  


The first issue is the sufficiency of the evidence to terminate P.M.M.’s parental rights.  The district court found that termination was proper under Minn. Stat.
§ 260C.301, subd. 1(b)(6) (2006), which allows for termination when

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). 

A.  Egregious Harm

“Egregious harm” is defined as “the infliction of bodily harm to a child . . . which demonstrates a grossly inadequate ability to provide minimally adequate parental care.”  Minn. Stat. § 260C.007, subd. 14 (2006).  The statute provides a nonexclusive list of conduct that constitutes egregious harm, including the infliction of substantial bodily harm as defined in Minn. Stat. § 609.02, subd. 7a (2006).  Id., subd. 14(1)-(10).  Despite P.M.M’s contention that the harm suffered by K.M. is not the degree contemplated by the statute or represented in published jurisprudence, “substantial bodily harm” is statutorily defined to include fractured bones.  Minn. Stat. § 609.02, subd. 7a.  K.M.’s bones were fractured while he was in P.M.M’s care.  He therefore suffered egregious harm while he was in P.M.M’s care. 

B.  Termination of P.M.M.’s Parental Rights in Regard to Both Children

P.M.M. argues that his parental rights to C.M. should not be terminated when the only allegations of abuse concerned K.M.   Minnesota jurisprudence states that parental rights to any child can be terminated if 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).  Therefore, a finding of egregious harm with regard to K.M. allows the termination of P.M.M.’s parental rights to C.M.  Id.  Because of the egregious nature of the harm to K.M. and testimony concerning the psychological and logistical problems regarding the termination of parental rights with regard to only one of the children, the district court’s conclusion that P.M.M.’s parental rights should be terminated in reference to both K.M. and C.M. is consistent with both caselaw and this record. 

C.  Intent to Injure

P.M.M. emphasizes that there is no finding that he intended to injure K.M.[1]  Here, appellant stated that the injuries may have occurred while changing diapers and clothes.   Neither the definition of egregious harm nor the definition of “substantial bodily harm” under section 609.02, subdivision 7a require that the state show that the child suffered harm as the result of an intentional act of the parent.  It need only show that a child experienced egregious harm while in the parent’s care that demonstrates the parent’s grossly inadequate ability to provide minimally adequate care to the child.  A.L.F., 579 N.W.2d at 155-56.  Intentional or not, the district court did not clearly err in finding that “[K.M.] experienced egregious harm while in [P.M.M.’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 interests of the child or of any child to be in that parent’s care.” 

            D.  “Coerced” Confession

            P.M.M. claims that evidence that he committed egregious harm against his son, K.M., is not credible because his confession that he accidentally hurt K.M. was coerced. 

            During the first recorded meeting between the investigating officer and P.M.M., the officer stated that “. . . Human Services is telling me there’s no way that this child can be released back to his home without some sort of . . . conclusion about what happened [to cause K.M.’s injuries], without some explanation.”  When appellant denied that he hurt K.M., the officer again stated that the child would not be released into the home unless someone admitted to having hurt him.  He also stated that if human services was provided with an explanation for the injuries, “things can be done to prevent it in the future and to get everything back to some sort of normalcy.”  During this discussion, P.M.M. denied hurting his child.  The interview continued for quite a long time, during which the officer repeated that K.M. would not come home until appellant admitted what happened, and that if he did so, P.M.M. would be out of the family home for a short time before he will move back in, and social services would continue monitoring.  Appellant continually denied his involvement in K.M.’s injuries.

            The next day, the officer conveyed the same message to P.M.M.’s wife, T.J.M.  She was told that unless P.M.M. admitted his conduct, the child would not be returned to the home, and that she should have a “heart-to-heart” with P.M.M. about that.  The officer emphasized that criminal charges were not what he was interested in, but that he was concerned with getting a plan in place so that K.M. could return home. 

            Later in the day, P.M.M. met with the officer again and confessed that he must have accidentally and unknowingly injured his child.  They had the following conversation:

Officer:  . . . you had a . . . what you describe as an honest discussion with your mother . . . you were pretty up front with her about these injuries that have been caused to [K.M.] . . . by you and that you wanted to come in here . . . [w]hat’s your objective by coming in here and contacting me tonight? 


P.M.M.:  My objective is to let you know that this could’ve been done by accident unknowingly by me . . . and in no way, shape, or form would this ever be done intentionally.  For the betterment of my family and my . . . extended family and for my children first off, I need to come in and . . . talk with you. 


Officer:  Okay . . . you say could’ve been caused.  I want to ask you did you cause these injuries to [K.M.]?


P.M.M.:  This would’ve been well accidental.


Officer:  I know it’s accidental.  Did you accidentally cause these injuries to [K.M.]? 


P.M.M.:  I, I could’ve accidentally done this. 


Officer:  Okay, are you able to answer my question with a yes or no? 


P.M.M.:  I accidentally did this to my son. 


Officer:  Okay.  All Right.  And there’s no doubt in your mind about that? 


P.M.M.:  Right. 


            P.M.M. voluntarily attended each of the meetings he had with the investigating officer.  He was informed at the outset of his interaction with the officer that he could terminate the interviews at any time and that he would not be placed under arrest for doing so.  Although the statements by the officer no doubt placed pressure on P.M.M. to explain how the injuries happened, they are not so inherently coercive that the district court could not rely upon P.M.M.’s recorded statement in the termination proceeding.  Moreover, P.M.M.’s admission to having accidentally injured K.M. was corroborated by the statements he later made to other individuals.  We conclude the district court did not abuse its discretion in relying upon this evidence in making its findings. 


            The second issue is whether the termination of parental rights (TPR) was in the best interests of the children.  In addition to identifying a statutory basis for termination, the district court must make findings that termination is in the best interests of the child.  In re Welfare of Children of R.W., 678 N.W.2d 49, 54-55 (Minn. 2004);  In re Tanghe, 672 N.W.2d 623, 625-26 (Minn. App. 2003).  A child’s best interests may preclude termination of parental rights even when a statutory basis for termination is otherwise proven.  Id.  Ordinarily, it is in the best interests of a child to be in the custody of his or her natural parents.  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995).

            When considering the best interests of the child in a termination case, three factors are balanced: “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any competing interest of the child.”  In re Welfare of the Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004) (quotation omitted).  “Competing interests include such things as a stable environment, health considerations and the child’s preferences.”  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). 

            Here, the district court made findings in support of its conclusion that termination was in the children’s best interests.  Specifically, the district court found that:  (1) the guardian ad litem supported the termination of P.M.M.’s parental rights and believed that termination would serve the best interests of the children; (2) the mother had initiated divorce proceedings, supported termination of P.M.M.’s parental rights, and believed that termination would serve the best interests of the children; and (3) the best interests of the children were served by terminating P.M.M.’s parental rights. 

            The guardian ad litem testified that she visited the children monthly, that she had observed C.M. with P.M.M. twice and K.M. with P.M.M. once, that the visit caused K.M. distress, and that P.M.M. could not comfort him.  She supported ending visits between P.M.M. and his children.  She testified that she considered him a threat because of the injuries he had caused to K.M. and that she felt it was in the best interests of both children to terminate P.M.M.’s rights.   

            The child protection worker testified at length regarding her experiences with the family, her support of the termination order, and the best interests of the children.  She stated that given the young age of the children and the separation of their parents, it would not be traumatic for them to have the rights of their father terminated.  She also stated that in the case of siblings, it can be psychologically damaging to terminate the parental rights to one child and not the other, as this can create the impression that one child is “good enough” for their father and the other is not.  She testified that she considered P.M.M. to be an untreated abuser.  The child protection worker’s testimony was the properly admitted testimony of an expert.  She gave expansive testimony and had extensive experience with the family.  Although P.M.M. attacks her credibility, we defer to the credibility determinations of the district court.  L.A.F., 554 N.W.2d at 396. 

            P.M.M. also argues that the district court clearly erred in not finding that the children’s best interests were in maintaining his parental rights so that they could benefit from his child support payments.  T.J.M. testified that she did not rely on money from P.M.M.  Regardless, the district court did not err in valuing the physical well-being of the children above the financial benefit they may have experienced had P.M.M.’s parental rights been left intact. 

Based on the record, we conclude that the district court did not clearly err in determining that termination of P.M.M.’s parental rights was in the children’s best interests. 


            The next issue is whether the district court failed to make necessary findings regarding future risk of harm to the children. 

            This case concerns termination of parental rights for egregious harm under Minn. Stat. § 260C.301, subd. 1(b)(6).   The requirement of finding future harm under Minn. Stat. § 260C.301, subd. 1(b)(4), does not apply, and appellant’s argument that it does cannot be sustained. 


            The fourth issue is whether the scheduling of the TPR before any criminal proceeding was improper.  P.M.M. argues that he was prejudiced by the prosecutor’s decision to bring the TPR motion before the criminal case.  Minn. Stat. § 260C.301, subd. 3(a) (2006) explicitly grants the county attorney discretion to determine which matter should proceed to trial first, “consistent with the best interests of the child and subject to the defendant’s right to a speedy trial.”  See also Minn. R. Juv. Prot. P. 39.02, subd. 1(d).  Here, the record indicates that the TPR proceedings were pursued before the criminal matters out of consideration for the child’s best interests because of the length of time involved in criminal proceedings and also in consideration of the time deadline for the TPR decision.  In addition, P.M.M. was offered immunity for any testimony he might give in connection with the TPR proceeding.  We conclude that P.M.M. has not shown that the district court erred in denying P.M.M.’s request to schedule the TPR proceedings after completion of the criminal matters.


The final issue is whether the district court failed to adequately consider appellant’s substantive due process rights in maintaining his parental relationship.  Appellant contends that because measures short of TPR would have adequately protected his children, his liberty interests were violated by the termination decision.  The question of whether his due process rights have been violated is reviewed de novo.  In re P.T., 657 N.W.2d 577, 583 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003). 

            The Due Process Clause provides that the state may not deprive a person of life, liberty, or property without due process of law.  U.S. Const. amend. XIV, § 1; R.B. v. C.S., 536 N.W.2d 634, 637 (Minn. App. 1995).  One dimension of due process is procedural: “due process is the opportunity to be heard at a meaningful time in a meaningful manner.”  Brooks v. Comm’r of Pub. Safety, 584 N.W.2d 15, 19 (Minn. App. 1998), review denied (Minn. Nov. 24, 1998) (quotation omitted).  The other dimension of due process is substantive: liberty includes the parents’ interest in the care, custody, and control of their children.  Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); see also In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn. 1981).  In general, deprivation of this fundamental right, like most other fundamental rights, is subject to strict judicial scrutiny, meaning that such deprivation must be justified by a compelling state interest.  Soohoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 2007).

            The state’s compelling interest here is shielding children from parental abuse.  R.S. v. State, 459 N.W.2d 680, 689 (Minn. 1990).  A parent who has egregiously harmed a child may pose a greater risk of harm to other children.  See P.T., 657 N.W.2d at 588-89; A.L.F., 579 N.W.2d at 156.  The state may invoke its power to protect children “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.”  Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 1542 (1972). 

Except in situations of dramatic, wrongful conduct, a district court must undertake efforts to protect children short of terminating parental rights.  See, e.g., Minn. Stat.
§§ 260C.001, .201, subds. 5, 6, .212, subds. 2, 4, 5 and .301 (2006).  This requires the district court to consider fundamental parental rights in making the termination decision and to make reunification efforts.  Minn. Stat. § 260.012 (2006).  However, the statute does not require reunification efforts when there has been egregious harm.  Minn. Stat.
§§ 260.012(a)(1); 260C.301, subd. 1(b)(6), 8 (2006).  The statute is narrowly tailored to achieve a compelling interest of the state.  Because here the statute applies to a parent who has seriously harmed a child and because the state has a compelling interest in protecting children from egregious harm, the statute for terminating parental rights operates within the constitutional framework.  When the district court operates within this framework, it does not need to explicitly make findings regarding the constitutional dimension of a termination decision.

            We have previously concluded that the record supports termination of P.M.M.’s parental rights.  Based on this record and because the district court operated within the statutory framework, we further conclude that reunification efforts were not constitutionally required, that P.M.M. was not denied his right to substantive due process, and that explicit district court findings and conclusions addressing P.M.M.’s constitutional rights were not required. 




[1]As respondent notes, there is expert testimony concluding that accidental conduct could not have resulted in the injuries K.M. suffered.  Whether or not the injury was intended, doctors testified that the conduct that would have produced such injuries was not “consistent with routine childhood care.”