This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1035

 

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

 

Filed December 6, 2005

Affirmed in part and remanded

Wright, Judge

 

Watonwan County District Court

File No. J1-05-50019

 

 

Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chartered, 115 East Hickory Street, Suite 200, Mankato, MN  56002-1056 (for appellants R.T. and J.T.)

 

LaMar Piper, Wantonwan County Attorney, Melanie Boes, Assistant County Attorney, Watonwan County Courthouse, 710 Second Avenue South, St. James, MN  56081 (for respondent State of Minnesota)

 

Shiree Oliver, Watonwan County Courthouse, 710 Second Avenue South, St. James, MN  56081 (Guardian ad Litem)

 

 

            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from an order terminating their parental rights, appellant-parents argue that (1) the district court erred by concluding that father’s parental rights should be terminated based solely on its finding of egregious harm to Y.T.; (2) the order lacks the requisite determination of whether reasonable efforts for rehabilitation and reunification were made; (3) the district court erred in finding that parents are palpably unfit to parent both children, and their failure to admit culpability did not absolve the county of making reasonable efforts to rehabilitate and reunite the family; (4)the district court erred as a matter of law in applying the presumption of palpable unfitness in terminating parental rights to A.T.; (5) the district court abused its discretion by failing to delay the proceedings to allow the Mexican government to intervene; and (6) the district court applied the wrong standard when analyzing the best interests of the children.  We affirm in part and remand for findings regarding the best interests of the children.

FACTS

 

            Y.T.was born May 3, 2004, to appellants R.T. (mother) and J.T. (father) (collectively parents).  Parents also have a son, A.T., born September 4, 2001.  Both children were born in the United States.  Mother and father, who are 22 years old and 25 years old respectively, are from Mexico.  On October 14, 2004, Y.T. was admitted to St. Mary’s Hospital in Rochester, Minnesota, with symptoms of head trauma, including crossed eyes, cranial swelling, subdural fluid collection, and vomiting.  A physical examination also revealed a four-inch abrasion on her right thigh.  Parents claimed that the injuries occurred when Y.T. fell from a mattress onto a concrete floor and got her leg stuck in the crib slats.  Doctors were not satisfied with this explanation for the cause of the injuries and reported to Watonwan County Human Services (the county) that the injuries were possibly caused by child abuse.

            Following its investigation, the county petitioned the district court to declare the children in need of protection or services (CHIPS).  The district court ordered a temporary foster-care placement for the children and appointed a guardian ad litem.  A trial on the CHIPS petition was held in December 2004.  Dr. Mannenbach, a staff pediatric-emergency-medicine physician and head of the pediatrics division, treated Y.T. at the hospital on October 14.  He testified that Y.T. was stable when admitted to the hospital, but a CT scan showed evidence of fluid accumulation, enlargement of the spaces between the coverings of her brain and the brain itself, and wide sutures between the bones of her skull due to pressure from the swelling of her brain.  Y.T. underwent surgery to place a shunt from her brain to her abdomen to drain the fluid and relieve the pressure on her brain. 

            Dr. Mannenbach also testified that, because he ruled out all possible underlying causes, such as clotting problems or anemia, and because the parents offered little explanation for the injuries, he concluded that the injuries had been inflicted by someone.  In support of this conclusion, Dr. Mannenbach opined that, if Y.T. had fallen or been in a car accident, she would have had a skull fracture.  Moreover, crossed eyes, as well as the retinal hemorrhages that an ophthalmologist found, are commonly associated with a brain injury. 

Finally, Dr. Mannenbach expressed his disbelief that the abrasion on Y.T.’s leg was caused by being stuck between the crib slats.  Because there was no report of Y.T. being in a car accident or falling from a significant height, and because she did not have a skull fracture, the medical evidence led him to conclude that Y.T. suffered from abusive head trauma.  Dr. Mannenbach confirmed that children with injuries of this type often suffer permanent neurological deficits, along with speech and hearing problems.

            Father exercised his Fifth Amendment right to remain silent and did not testify.  Mother testified that father was primarily responsible for Y.T.’s care during the months at issue, while mother worked outside the home.  Mother noticed that Y.T.’s eyes were crossed and, based on folklore, believed the condition resulted from Y.T. catching a chill after a bath.  According to mother, she and father noticed Y.T.’s head was swollen and talked about taking her to the doctor.  But approximately two weeks passed before Y.T. was seen by a doctor.

In January 2005, the district court issued an order adjudicating Y.T. and A.T. children in need of protection or services, under Minn. Stat. § 260C.007, subd. 6(2) (2004).  The county then filed a petition to terminate the parental rights of mother and father on the ground of egregious harm.  Minn. Stat. § 260C.301, subd. 1(b)(6) (2004).  The district court held a trial on the petition to terminate parental rights in March 2005.  At trial, the guardian ad litem testified that it was apparent from the information that she had received that Y.T. had been injured by one of her parents.  The guardian ad litem testified that, without an admission of what happened to Y.T., it was impossible to work with parents to improve their parenting skills and that termination of their parental rights was necessary to ensure the children’s safety.  The guardian ad litem expressed her opinion that mother would reunite with father if the children were returned to her.  And although the guardian ad litem did not believe that mother harmed Y.T., the guardian ad litem noted that mother waited two weeks before seeking medical attention for Y.T. 

            Father waived his Fifth Amendment rights and testified that he did not hurt Y.T.  He attributed the injuries to Y.T.’s fall off the mattresses and an incident when Y.T.’s leg got stuck between the crib slats.  Mother testified that she would do whatever it took to regain custody of her children, including training, home visits, and staying away from father if ordered to do so.   

In its order dated April 28, 2005, the district court terminated the parental rights of father and mother.  The district court relied heavily on the testimony of Dr. Mannenbach, which was incorporated in the record from the CHIPS hearing, and on the testimony of the guardian ad litem.  The district court held that (1) father had inflicted egregious harm on Y.T., and (2) parents were palpably unfit to be part of the parent-child relationship.  Based on this determination, the district court found that parents were presumptively palpably unfit to parent their other child, A.T.  The district court also found that termination of the parental rights of father and mother as to each child was in each child’s best interests.  This appeal followed.

D E C I S I O N

 

In an appeal from an order terminating parental rights, our scope of review is “limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.”  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).  Because the district court is in a superior position to observe the witnesses during trial, its assessment of witness credibility is accorded deference.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  But we “closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing.”  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998). 

Parental rights may be terminated only for “grave and weighty reasons.”  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  A reviewing court “exercises great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result.”  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  We will affirm the decision to terminate parental rights if  “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 Welfare of the Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); seeMinn. Stat. § 260C.301, subd. 1(b) (2004); Minn. R. Juv. Prot. P. 39.04.  Child-protection statutes are liberally construed to carry out their stated purpose.  Minn. Stat. § 260C.001, subd. 4 (2004). 

I.

Parents argue that the district court erred for two reasons by concluding that father’s parental rights should be terminated based solely on the egregious harm inflicted on Y.T.  First, parents maintain that the district court’s focus should be on a parent’s ability to care for the child, which father has shown he is capable of doing.  Second, parents contend that, because there is no evidence of injury to A.T., egregious harm cannot serve as a statutory ground for terminating parental rights to A.T.  Because Minn. Stat. § 260C.301, subd. 1(b)(6), does not require the county to prove that each parent caused egregious harm to each child, and the record demonstrates that the county proved by clear and convincing evidence that Y.T. suffered egregious harm in her parents’ care, a proper application of the facts to the law supports termination of the parental rights of both parents as to both children. 

Under Minnesota law, parental rights may be terminated based on findings 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. 

 

Minn. Stat. § 260C.301, subd. 1(b)(6) (2004) (emphasis added).  Accordingly, when the petitioner seeks to terminate parental rights based on allegations of egregious harm, the petitioner need not prove that each parent whose rights are to be terminated inflicted egregious harm on a child, nor that each child that is the subject of the proceedings has suffered egregious harm.  In re Welfare of A.L.F., 579 N.W.2d 152, 155-56 (Minn. App. 1998).  Rather, the county is required to prove “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.”  Id. at 156.  In A.L.F., a case factually similar to the instant case, we affirmed the termination of a father’s parental rights to his daughter, even though it was her half-sister who suffered egregious harm, in the form of severe head trauma, while in his care.  Id. at 153-54.  Thus, contrary to parents’ assertion, the county need not prove that father inflicted egregious harm on both children, nor that mother inflicted egregious harm on either child.  Id. at 156.

In the TPR order, the district court found: 

The injuries to Y.T. involved temporary but substantial disfigurement . . . . Y.T. suffered significant loss of brain function due to her injuries, and may have suffered significant developmental delays.  Most children with head injuries similar to those suffered by Y.T. have some permanent loss of brain function . . . . No person other than [mother and father] had significant responsibility for the care or supervision of [Y.T.], and no other person had the opportunity to inflict the injuries suffered by the child. . . . [Father] was primarily responsible for the care of Y.T. at the time she received her injuries. . . . [Mother] did not seek immediate medical attention when she observed the obvious swelling in Y.T.’s head [and] that [Y.T.’s] eyes were crossed. . . . [Mother] admitted that she made no effort to obtain medical care for Y.T., and that she left that responsibility to [father].  [Mother] was either oblivious or indifferent to the severity of [Y.T.’s] injuries. . . . At the time of the physical abuse against Y.T., her brother [A.T.] was living in the same household with [mother] and [father].

 

The district court then found “clear and convincing evidence that Y.T.’s massive head injuries were not accidental, but were caused by another individual who either shook or struck her intentionally.”  The district court also determined that the presence of an unexplained abrasion on Y.T.’s leg established additional evidence of physical abuse.  Finding that Y.T.’s injuries involved “significant disfigurement of Y.T.’s head and eyes, as well as significant impairment of the function of her eyes and brain,” the district court concluded that Y.T.’s injuries constitute “egregious harm” as defined by Minn. Stat. § 260C.007, subd. 14(2) (2004).[1] The record contains ample evidence to support the findings.

            Specifically as to father, the district court concluded that there is clear and convincing evidence that father caused egregious harm to Y.T. by shaking or striking her, demonstrating “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 [father’s] care.”  The district court then concluded that, even if father did not cause Y.T.’s injuries, “the evidence has established beyond a reasonable doubt that [father] failed to seek immediate medical attention for Y.T. when it became apparent that she was suffering from egregious harm.” 

As to mother, the district court concluded that “[mother] knew or should have known that Y.T. was suffering from substantial and debilitating injuries.”  Mother failed to seek medical care for Y.T. “after Y.T.’s injuries manifested in the form of cranial swelling and crossed eyes.”  And she failed to remove Y.T. from father’s custody after she knew or should have known that Y.T. had suffered egregious harm while in his care.  These findings also satisfy the egregious-harmcriterion set forthMinn. Stat. § 260C.301, subd. 1(b)(6).

            Accordingly, the district court’s findings, which are supported by the record, are sufficient to sustain terminating the parental rights of both father and mother to both Y.T. and A.T. on the statutory ground of egregious harm.

II.

            Parents argue that a remand is required because the district court failed to make a specific finding as to any reasonable efforts made by the county to rehabilitate the parents and reunite them with the children.  This argument is unavailing.  Although the district court ordinarily is required to make specific findings as to the efforts of the county in this regard, Minn. Stat. § 260C.301, subd. 8 (2004), reasonable efforts for rehabilitation and reunification are not required if the district court determines that the termination-of-parental-rights (TPR) petition states a prima facie case that “the parent has subjected a child to egregious harm . . . .”  Minn. Stat. § 260.012(a)(1)(i) (2004). 

            In its CHIPS order, the district court found: “Because [Y.T.] suffered egregious harm under the care and supervision of her parents, the agency may, but is not required to make reasonable efforts to avoid out of home placement.”  Relying on the same facts set forth in the CHIPS petition, the county’s TPR petition alleged egregious harm as the sole basis for termination.  And, in its TPR order, the district court concluded that Y.T. suffered egregious harm as defined by statute.  The district court is required to make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  The district court’s holding that Y.T. suffered egregious harm and its express endorsement of the guardian ad litem’s opinion regarding the futility of reunification efforts satisfy the district court’s statutory obligation to determine whether reasonable efforts to reunite the family are required. See Minn. Stat. § 260.012, subd. (c) (2004) (“[T]he court may determine that provision of services . . . for the purpose of rehabilitation is futile and therefore unreasonable.”); see also Children of R.W., 678 N.W.2d at 56 (“‘[R]easonable efforts,’ by definition, does not include efforts that would be futile.”).  Reasonable efforts to reunite the family, therefore, were not required. 

Citing In re Welfare of J.W. and A.W., 415 N.W.2d 879 (Minn. 1987), parents also argue that the county’s failure to make reasonable efforts to rehabilitate father and reunite the family solely because father would not admit responsibility implicates their Fifth Amendment rights.  J.W. held that a district court order requiring parents to divulge the details of a nephew’s death or face a termination-of-parental-rights proceeding violated their Fifth Amendment rights.  Id. at 883.  Here, however, both father and mother waived their Fifth Amendment rights on the record before testifying at the TPR trial.  Because they waived these rights with the advice of counsel and the district court did not order them to incriminate themselves, their reliance on J.W. is misplaced.  Furthermore, the J.W. court acknowledged the limits of Fifth Amendment protection in TPR proceedings when it recognized that the state may not compel parents to incriminate themselves in therapy, but therapy that does not include incriminating disclosures may be ineffective and reduce the parents’ chances of regaining their children.  Id.  “These consequences lie outside the protective ambit of the Fifth Amendment.”  Id.  Indeed, the J.W. court noted that “it would seem a difficult task to engage in any effective therapy without confronting honestly one’s own inadequacies in discussions with the psychologist.”  Id. at 884.  This proposition is consistent with the district court’s conclusion that, without an admission of culpability, it was futile to undertake reasonable efforts to rehabilitate and reunite this family.

III.

            Parents next argue that the district court erred in holding that they are palpably unfit to parent both children.  Because the county filed its TPR petition solely on the ground of egregious harm and proved that statutory ground by clear and convincing evidence, we agree that a ruling on palpable unfitness is erroneous.  In doing so, we note that a party must have notice of an adverse claim and an opportunity to oppose it before a court may render a binding adverse judgment.  See Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983) (stating that district court must base relief on issues raised either by pleadings or litigated by consent).  In a juvenile-protection proceeding, “the court shall make a finding that the statutory grounds set forth in the petition have or have not been proved . . . . If the court finds that the statutory grounds set forth in the petition are proved, the court may terminate parental rights.”  Minn. R. Juv. Prot. P. 39.05, subd. 3(a) (emphasis added).  Here, the only statutory ground on which the TPR petition was based is egregious harm.  Thus, the district court was not authorized to terminate parental rights on another ground without an amendment of the petition to give parents notice and an opportunity to oppose it.

Similarly, we need not address parents’ argument that the district court erred in applying the presumption that they are palpably unfit to parent A.T.  But we note that this rebuttable presumption applies only when a parent’s rights to one or more other children were involuntarily terminated in a previous adjudication, not in an earlier portion of the same TPR order.  See In Re Welfare of the Child of P.T. and A.T., 657 N.W.2d 577, 587-89 (Minn. App. 2003) (deciding constitutionality of the presumption and noting “the presumption is not created without the parent first being afforded . . . procedural protections in a previous proceeding” and that the presumption applies only to parents who “have been adjudicated to pose a continuing threat to the safety of their children”), review denied (Minn. Apr. 15, 2003).  Any reading of Minn. Stat. § 260C.301, subd. 1(b)(4), that would allow the district court to apply the presumption as to a second child in the same order terminating parental rights as to the first child would deny the parents the opportunity to rebut the presumption.  Accordingly, the rebuttable presumption of palpable unfitness applies only to a parent whose parental rights have been involuntarily terminated in a prior proceeding. 

IV.

Next, parents argue that the district court abused its discretion when it declined to continue the proceedings to allow the Mexican Consulate to intervene.  The decision to grant a continuance rests within the district court’s discretion, and we will not reverse the district court’s ruling absent a clear abuse of this discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  

  In advancing their argument, parents fail to articulate what the Mexican Consulate would seek to accomplish if allowed to intervene, the legal authority for permitting such intervention, and what, if any, prejudice the denial of the continuance caused.  See Weise v. State, Comm’r of Pub. Safety, 370 N.W.2d 676, 678 (Minn. App. 1985) (“The test is whether a denial prejudices the outcome of the trial.”).  The TPR trial transcript establishes that, although the district court proceeded with the trial, it welcomed the intervention of the Mexican Consulate at anytime prior to rendering a decision.  From the record, it appears that such intervention never occurred. 

The juvenile-protection rules caution against unnecessary continuances.  See Minn. R. Juv. Prot. P. 39.02, subd. 2 (“In…termination of parental rights matters, a trial may not be continued or adjourned for more than one (1) week unless the court makes specific findings that the continuance or adjournment is in the best interests of the child.  In any event, the trial shall be commenced and completed within ninety (90) days of the denial of the statutory grounds.”).  It is imperative that a district court render its decision regarding termination of parental rights without unnecessary delay.  On this record, parents fail to establish that the district court’s decision to deny the continuance was an abuse of discretion. 

V.

Parents also argue that the district court applied the wrong standard when analyzing the best interests of the children.  In any TPR proceeding, the paramount consideration is the best interests of the child, and these interests are balanced against parental rights.  Minn. Stat. § 260C.301, subd. 7 (2004); M.D.O., 462 N.W.2d at 378.  A TPR order “must explain the district court’s rationale for concluding why the termination is in the best interest of the children.”  In re Tanghe, 672 N.W.2d 623, 625 (Minn. App. 2003).

The district court must consider the following three factors when determining whether termination of parental rights is in the best interests of the child:  “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interests in preserving the parent-child relationship; and (3) any competing interest of the child.”  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  Competing interests include health considerations, a stable environment, and the child’s preferences.  Id. 

It is unclear whether the district court considered the R.T.B. factors when it determined that termination of parental rights was in the best interests of the children.  The TPR order does not articulate the district court’s findings as to Y.T.’s and A.T.’s interests in preserving the parent-child relationship, the parents’ interests in preserving the parent-child relationship, and any competing interests of either child.  The determination of a child’s best interests “is generally not susceptible to an appellate court’s global review of a record.”  Tanghe, 672 N.W.2d at 625.  And the best-interests analysis is especially important in TPR cases because the child’s best interests may actually preclude the termination of parental rights even if the statutory grounds for termination exist.  Id. at 625-26.

We exercise great caution in termination proceedings because termination of parental rights is proper only when the evidence clearly mandates this result.  S.Z., 547 N.W.2d at 893.  Here, the record clearly establishes that termination of parental rights on the grounds of egregious harm would be appropriate for both parents if it is in the best interests of the children.  See Children of R.W., 678 N.W.2d at 55.  But the district court’s findings as to the best interests of each child are inadequate to facilitate effective appellate review to ascertain which facts or opinions were most persuasive of the ultimate decision.  See In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn. 1990).

Because the statutory grounds for termination of each parent’s parental rights based on egregious harm have been proved by clear and convincing evidence as to each child, termination of both parents’ rights is permissible if it is in the best interests of each child.  We, therefore, remand for a thorough analysis of the best interests of Y.T. as to mother and as to father, and the best interests of A.T. as to mother and as to father.

Affirmed in part and remanded.