This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-16

 

In the Matter of the Welfare of the Child of: T.P. and P.P., Parents

In the Matter of the Welfare of the Child of: T.P. and D.W., Parents

 

Filed July 31, 2007

Affirmed

Minge, Judge

 

Otter Tail County District Court

File No. J7-06-50331, J7-06-50332, J0-06-50252, J7-06-50328, J9-06-50251

 

 

Reid W. Brandborg, Brandborg Law Office, 315 South Mill Street, Fergus Falls, MN 56537 (for appellant T.P.)

 

David J. Hauser, Otter Tail County Attorney, Kurt A. Mortenson, Assistant County Attorney, Otter Tail County Courthouse, 121 West Junius, Fergus Falls, MN 56537 (for respondent Otter Tail County)

 

Helen Ward-McPherson, 309 South Mill Street, Suite 101, Fergus Falls, MN 56537 (for D.W.)

 

Schan Sorkness, 114 East Washington Avenue, Fergus Falls, MN 56537 (for P.P.)

 

Sharon Bjork, 29445 State Highway 78, Battle Lake, MN 56515 (guardian ad litem)

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            On appeal from the district court’s termination of her parental rights, appellant-mother argues that (1) the record lacks clear and convincing evidence that the children suffered egregious harm while in her care; (2) termination of her parental rights is not in the best interests of the children; and (3) she was denied effective assistance of counsel.  We affirm. 

FACTS

            Appellant T.P. is the mother of A.R.W., born November 2, 2003, and K.L.P., born January 23, 2006.  D.W. is A.R.W.’s father, and P.P. is K.L.P.’s father.  From shortly after K.L.P.’s birth until June 5, 2006, both A.R.W. and K.L.P. resided with appellant and P.P.  Both children were the subject of the termination proceedings in this case. 

            On May 8, 2006, P.P. brought K.L.P. to Baby Corner, the infant’s daycare provider.  The head morning teacher at Baby Corner observed bruises on K.L.P.’s face.  When she questioned P.P. about the bruises, he explained that the infant had kicked herself off of a changing table.  The teacher noted that, at the time, K.L.P. had limited mobility and that she “was not rolling over.” 

            When P.P. brought K.L.P. to Baby Corner on June 5, 2006, the head morning teacher again observed new bruises on the infant’s head.  P.P. told the teacher that the infant had fallen off of a bed and hit a dresser.  At this time, K.L.P. was able to “wiggl[e] her legs,” but could not roll over.  Baby Corner officials reported the incidents to the Otter Tail County Department of Human Services (the department).  P.P. told officials that K.L.P. had rolled off the bed and fallen onto the floor. 

            A.R.W. and K.L.P. were placed in emergency foster care.  The department filed a child-protection petition and a petition to terminate the parental rights of appellant to A.R.W. and K.L.P. and the rights of P.P. to K.L.P.  The petition alleged that parental rights should be terminated because K.L.P. “experienced egregious harm in [her] parent(s)’ care” and that neither parent “provided an explanation . . . that is consistent with the injuries sustained.”  Although the department did not allege that A.R.W. had suffered egregious harm, it sought to terminate appellant’s parental rights to her because A.R.W. resided in the home. 

            On June 5, 2006, Lawrence Eisinger, M.D. examined photographs of K.L.P.  Dr. Eisinger observed four sets of bruises in different stages of healing: three linear bruises on the left side of the infant’s forehead, a bruise under her left eye, three bruises on the right side of her forehead, and bruises near both ears.  Dr. Eisinger opined that these bruises were “unexplained by a single fall” and recommended the removal of K.L.P. from her parents’ care. 

            Pediatrician Alonna Norberg, M.D., the medical director of the Red River Children’s Advocacy Center, examined K.L.P.  Dr. Norberg noted facial bruising on the infant and testified that she would not expect to see bruising on both sides of the infant’s face if K.L.P. had merely fallen from a bed.  Dr. Norberg consulted with radiologist Nathaniel Karlins, M.D.  Examining a skeletal survey, Dr. Karlins diagnosed two fractured bones.  First, Dr. Karlins identified a corner fracture in K.L.P.’s tibia.  Dr. Karlins testified that typically, such an injury is caused by a “very vigorous twisting or torsion injury where somebody takes the foot or the one end of the limb and holds the other and gives it a hard twist or a torsion.”  In his opinion, this type of fracture would not result from a short fall.  Dr. Karlins also identified a fracture in the infant’s left wrist.  He testified that this type of fracture is usually caused by “a really hard twist or a hard bend.” 

            The district court found that the termination petitions established a prima facie case of egregious harm.  Therefore, under Minn. Stat. § 260.012(a)(1) (2006), the county was relieved of its statutory duty to make “[r]easonable efforts to prevent placement and for rehabilitation and reunification.” 

            The child-protection and termination matters were consolidated for trial.  The county called P.P. to testify, but he invoked his Fifth Amendment right against self-incrimination.  Appellant testified that she does not know how K.L.P. incurred her fractures.  She also stated that she was home during the May 8 incident, was working during the June incident, and was not concerned with her husband’s explanations for K.L.P.’s bruising. 

            The district court granted the petitions to terminate P.P.’s parental rights to K.L.P.  It also terminated appellant’s rights to both K.L.P. and A.R.W. under Minn. Stat.
§ 260C.301, subd. 1(b)(6) (2006) because the children suffered egregious harm while in appellant’s care.  This appeal is limited to appellant’s parental rights.

D E C I S I O N

            Our review of a district court’s findings supporting its decision to terminate parental rights 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).  To determine whether the district court’s findings are clearly erroneous, we give due consideration to the statutory requirement that the basis for termination of parental rights be proven by “clear and convincing evidence.”  Minn. Stat. § 260C.317, subd. 1 (2006); In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1996).  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).  “Th[e] evidence must relate to conditions that exist at the time of termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period.”  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001). 

            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. 1996).  But we “closely inquire into the sufficiency of the evidence to determine whether it [is] clear and convincing.”  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998). 

I.

            The first issue is whether the record contains clear and convincing evidence that K.L.P. experienced egregious harm while in appellant’s care.  The district court may terminate parental rights based on one or more of the nine standards listed in Minn. Stat.                 § 260C.301, subd. 1(b) (2006).  One basis for termination is 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[.]

 

Id., subd. 1(b)(6).  “‘Egregious harm’” means the “infliction of bodily harm to a child or neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care.”  Minn. Stat. § 260C.007, subd. 14 (2006) (emphasis added).  Appellant contends that under the statute a parent must be culpable for egregious harm and that she lacks culpability for the harm K.L.P. experienced.       

            Minnesota courts have addressed termination-of-parental-rights cases similar to the instant case.  See P.R.L., 622 N.W.2d 538; In re Welfare of A.L.F., 579 N.W.2d 152 (Minn. App. 1998); In re Welfare of Maas, 355 N.W.2d 480 (Minn. App. 1984).  In P.R.L., the Minnesota Supreme Court focused on the mother’s ongoing relationship with a man who had physically abused her children.  622 N.W.2d at 540.  When considering the mother’s failure to correct the conditions leading to the out-of-home placement, the court noted that the mother’s relationship with this man was “the primary basis of her unfitness to be a parent.”  Id. at 545. 

            When seeking termination of parental rights based on allegations of egregious harm, the petitioner is not required to prove that the parent whose rights are to be terminated actually inflicted the egregious harm on the child.  A.L.F., 579 N.W.2d at 156.  Rather, the petitioner must establish “that a child has experienced egregious harm in the parent’s care which demonstrates the parent’s grossly inadequate ability to provide minimally adequate care to any child.”  Id. at 156. 

            In Maas, the mother’s live-in boyfriend admitted that he had injured her child.  355 N.W.2d at 482.  In affirming the termination of the mother’s parental rights, we focused on her “continued defense of her boyfriend’s actions” and the uncertainty of her “future performance as a parent,” and concluded that she was unfit.  Id. at 483.  In A.L.F., the egregious-harm clause of the statute was the basis for the termination.  579 N.W.2d at 155-56.  Although P.R.L. and Maas based termination on other statutory grounds, neither case indicates that consideration of a parent’s failure to leave an abuser is limited to the narrow circumstances or the grounds for termination in those cases. 

            Appellant contends that there is no evidence that she either caused or allowed the harm and therefore, she is not culpable.  Appellant specifically points to the trial testimony of Dr. Norberg, during which Dr. Norberg stated that although the infant demonstrated “increased fussiness,” she would not expect appellant to know that K.L.P. was experiencing tenderness due to the fractures.  Appellant also argues that the evidence demonstrates that she was not present when the harm took place and that there was insufficient evidence that she “knew or should have known that abuse was taking place.”  Appellant contends that her “reliance upon [her husband]’s explanation for [K.L.P.]’s bruises was entirely reasonable” and that she had no indication that the infant had broken bones. 

            But according to the testimony of K.L.P.’s child-care providers, P.P.’s explanation for the bruising injuries was inconsistent with the child’s physical abilities.  Appellant acknowledged that at the time of the May 8 injury, K.L.P. was not able to roll over.  Appellant also acknowledged that at the time of the second bruising incident in early June, K.L.P. was attempting to, but still could not yet, roll over.  Testimony indicated that K.L.P. did not begin rolling over until July.  Nevertheless, appellant testified that she was “[n]ot really” concerned with P.P.’s explanations for the infant’s injuries “because [her children] ha[d] never been in any danger with him before.”  Appellant also testified that she did not seek medical attention for K.L.P. because the infant “act[ed] just like she normally does.”

            Appellant also contends that the district court’s findings are insufficient to terminate her parental rights because there was no finding that K.L.P. was in her care when she experienced egregious harm.  Specifically, appellant points to paragraph 22 of the district court’s conclusions of law:

[P.P.] admitted to numerous individuals that [K.L.P.] was in his care when the injuries observed on May 8, 2006, and on June 5, 2006, occurred.  Additionally, [appellant] acknowledged that she and [P.P.] were [A.R.W.] and [K.L.P.]’s primary caretakers before the children were removed from the home.  As such, the Court finds clear and convincing evidence to believe that the injuries to [K.L.P.]’s head occurred on June 3, 2006, and at a time when she was in the direct physical care of [P.P.].  Moreover, the Court finds clear and convincing evidence to believe that [K.L.P.]’s fractures occurred at a time when she was in the care of [P.P.] and [appellant] either jointly or individually.

 

Appellant contends that the district court’s disjunctive conclusion that K.L.P. was in mother’s or father’s care “either jointly or individually” allows the inference that she may not be culpable, and therefore does not reflect clear and convincing proof.

            The record shows that appellant and P.P. were the primary caretakers of the children.  When abuse occurs in a home setting, gathering evidence to determine which parent inflicted the harm and what the other parent witnessed or knew is a difficult task.  But in this case, the circumstantial evidence is significant.  K.L.P. was not able to roll over at the time she suffered her injuries and P.P.’s explanations for her injuries are inconsistent with the infant’s mobility.  The district court could infer that P.P.’s explanations were fanciful, that because child-care providers noticed bruising, appellant must have noticed the bruising, and that appellant’s failure to challenge P.P. and to address the injuries was a strong indication that she was incapable of protecting or unwilling to protect K.L.P.  The district court’s decision was not fatally speculative or inadequate because one of its conclusions was that the harm occurred while the children were in their care “either jointly or individually.” 

            Appellant contends that her relationship with P.P. was irrelevant to the termination decision.  As the seriousness of K.L.P.’s injuries became apparent and the child-protection proceeding continued, child-protection workers and the guardian ad litem recommended that appellant separate from P.P.  And the guardian ad litem informed appellant of resources to assist her in leaving the relationship.  The guardian ad litem also testified that she believed that the recommendation was reasonable and related to the children’s safety.  Due in part to appellant’s failure to separate from P.P., the district court found “clear and convincing evidence that [appellant], in the reasonable foreseeable future, would not demonstrate an ability to protect” her children.  We conclude that the district court could consider appellant’s refusal to separate from P.P relevant in a termination proceeding based on egregious harm. 

            Appellant argues that she can be a good parent and that there is a strong factual basis for not terminating her parental rights.  We acknowledge that this is not a one-sided case.  Clear and convincing evidence does not mean there may be no evidence to the contrary.  District courts often have a difficult task in deciding termination cases.  Based on this record, we conclude that the district court in this proceeding did not clearly err in finding that clear and convincing evidence exists to show that K.L.P. suffered egregious harm while in appellant’s care.   

II.

            The next issue is whether the district court’s best-interests findings support termination of appellant’s parental rights.  Appellant contends that the record indicates that she took good care of her children, that there was no evidence that she failed to protect her children, and that her inability to protect the children from P.P. is only speculative. 

            In any termination proceeding, “the best interests of the child must be the paramount consideration.”  Minn. Stat. § 260C.301, subd. 7 (2006).  The district court may not terminate parental rights unless termination is in the child’s best interests, even if other statutory criteria for termination exist.  In re Welfare of D.J.N., 568 N.W.2d 170, 177 (Minn. App. 1997).  Evaluating a child’s best interests requires the district court to balance the child’s interest in preserving the parent-child relationship, the parent’s interest in preserving that relationship, and any competing interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  A child’s competing interests include health needs and interest in a stable environment.  Id.  “Ordinarily, it is in the best interest 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). 

            Here, the district court determined that termination was in the children’s best interests based on the finding that “a return of the children to the care of [P.P.] and/or [appellant] would immediately expose the children to risk of physical harm.”  The district court also found that “[t]he benefit of [A.R.W.] and [K.L.P.] for a safe and healthy environment” outweighs appellant’s interest in preserving the parent-child relationship. 

            The evidence adduced at trial indicates that, despite P.P.’s explanations for K.L.P.’s injuries, which appellant knew or should have known, were inconsistent with the infant’s mobility, appellant continued to maintain contact with him.  The parties stipulated that appellant has not commenced dissolution proceedings.  And even appellant herself admitted that she continues to have contact with P.P. despite the recommendations that she separate from P.P. 

            We conclude that the district court did not clearly err in ruling that there is clear and convincing evidence that termination is in the best interests of the children. 

III.

            Finally, appellant requests a new trial because she claims that she received ineffective assistance of counsel.  Appellant makes this argument for the first time on appeal.  Generally, a reviewing court may consider only those matters that were presented and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  “The gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument . . . .”  D.D.G., 558 N.W.2d at 485.  But we may still consider appellant’s claim of ineffective assistance of counsel in the interests of justice.  Minn. R. Civ. App. P. 103.04. 

            To prevail on an ineffective-assistance-of-counsel claim, appellant must demonstrate that her trial counsel was not reasonably effective and that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2068 (1984)). 

            Appellant contends that her trial counsel was ineffective for failing to submit a closing argument or proposed findings of fact and conclusions of law to the district court.  At the close of trial testimony, the district court requested the parties to submit “written arguments, together with any proposed findings of fact, conclusions of law[,] or order for judgment” so that the parties would “have an opportunity to effectively communicate their positions and arguments.”  November 22, 2006, was the agreed-on deadline for submissions. 

            But on November 22, appellant’s trial counsel submitted a request to the district court for an extension of the deadline.  The district court extended the deadline until November 27, but appellant’s attorney failed to submit the documents to the district court.  Appellant contends that “[t]here is a reasonable probability that, had the court been provided an argument pointing out that there was no evidence that the child was in [appellant]’s care when the harm took place, the result would have been different.” 

            It is regrettable that appellant’s attorney did not take every opportunity to make arguments on behalf of his client.  But here, there is no showing that the district court was unaware of the arguments supporting mother’s position.  The arguments were otherwise brought to the district court’s attention.  For example, during opening statements, appellant’s trial counsel stated, “the facts of this case show that [appellant] was not present at any time any of these injuries occurred.” 

            We conclude that appellant has failed to meet the second prong of the ineffective-assistance-of-counsel test.  The district court’s findings and conclusions recognize that appellant was not the individual who caused harm to K.L.P., but that appellant has demonstrated both a “lack of regard for her children’s well-being” by continuing her relationship with P.P. and an inability to protect her children.  Appellant fails to show that there is a reasonable probability that the outcome would have been different had her attorney submitted the requested documents.  

            Affirmed.

 

Dated: