In the Matter of the Welfare of the Children of: A. T. and F. T., Parents.

In the Matter of the Welfare of the Children of: A. T. and F. T., Parents. A04-1614, Court of Appeals Unpublished, June 7, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1614

 

In the Matter of the Welfare of the Children of:

A. T. and F. T., Parents.

 

Filed June 7, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File Nos. J6-03-055367, J3-03-066715, FAM ID No. 244661

 

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants A. T. and F. T.)

 

Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue, Minneapolis, MN 55415 (for respondent Hennepin County Human Services Department)

 

Amy R. Freestone, Faegre & Benson, PLLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for guardian ad litem)

 

Christa J. Groshek, Assistant Hennepin County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondents C. T., B.T., and D.E.T.)

 

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellants A.T. and F.T. appeal from an order terminating their parental rights as to their three adopted children.  They argue that there was insufficient evidence to terminate their parental rights and that the juvenile court abused its discretion in the admission of evidence.  Finally, A.T. and F.T. argue that the verbatim adoption of respondent-HSD's proposed findings of fact was error.  Because the evidentiary issues have been waived and the evidence was sufficient to terminate their parental rights, we affirm.

FACTS

A.T. and F.T. are the adoptive parents of three girls, B.T., C.T., and D.E.T.  B.T. and C.T. are biological sisters and D.E.T. is appellants' biological granddaughter.  Respondent Hennepin County Human Services Department (HSD) began an investigation concerning alleged abuse in appellants' home and filed a CHIPS petition on April 3, 2003, for C.T., B.T., and D.E.T.  On September 30, 2003, HSD filed a petition to terminate appellants' parental rights with respect to all three children.  Following an eight-day trial, the juvenile court ordered the termination of appellants' parental rights and appointed HSD as guardian and legal custodian. 

At the time of trial C.T. was 15, B.T. was 12, and D.E.T. was 7.  C.T. and B.T. were adopted by appellants in December 2000 and D.E.T. was adopted in May 1999.  After receiving reports of alleged abuse occurring in the home, Sigrid Finke, a social worker with HSD, began an investigation.  Ms. Finke interviewed C.T., who complained of physical abuse by T. (appellants' granddaughter), unwanted sexual contact by appellants' adult sons (Donnie and Archie), as well as beatings by F.T.  The investigation resulted in the first CHIPS petition in which HSD found evidence of physical and sexual abuse with respect to C.T. and B.T.  A second petition was filed in July 2003 to include D.E.T.  In response, appellants agreed to participate in a voluntary court-supervised case plan and began working with HSD social worker Leif Wisti in an effort to unify the family.  The case plan included a parenting assessment, parent programming, anger-management programming, visitation with the children, and cooperation with HSD. 

Despite initially agreeing to comply with a case plan, appellants refused to sign any plan or participate in any parenting assessment.  Appellants did meet with an in-home worker from Reuben Lindh, David Benson.  By the summer of 2003, appellants were no longer communicating with Mr. Wisti and had failed to comply with the case plan.  As a result, HSD recommended termination of parental rights and moved the case to a different social worker, Lucius Luther.  Luther met with appellants on several occasions and offered to allow appellants to work with a therapist of their choice, with HSD approval.  But appellants continued to refuse to engage in any family therapy. 

HSD filed for termination of parental rights and a trial was held for eight days between October 2003 and June 2004.  C.T. and B.T. testified that F.T. frequently beat them, using belts, extension cords, and switches.  C.T. testified that F.T. hit her with a hunting gun.  Many of these beatings left visible marks.  C.T. and B.T. both testified that they received beatings by T., appellants' granddaughter.  C.T. and B.T. both testified to sexual abuse committed by appellants' adult children (Archie and Donnie).  C.T. testified that Archie and Donnie touched her in inappropriate ways when no one else was present.  Although she was unable to recall the dates, C.T. stated that Archie had kissed her on the mouth, using his tongue, and placed his hands on her vagina.  B.T. testified that Donnie touched her inside her panties and moved his hand on the outside of her vagina.  In the presence of C.T., B.T. told F.T. about the sexual abuse, and F.T. said she would call the police if it continued to occur. 

D.E.T. testified that she wanted to return to appellants' home.  She denied reporting F.T. to the authorities for abuse but told an intake nurse at St. Joseph's in April 2003 that F.T. beat the children with brooms, extension cords, sticks, belts, and her hands. 

The juvenile court determined that there was clear and convincing evidence that appellants' parental rights should be terminated.  The juvenile court issued an order, stamped July 19, 2004, terminating appellants' parental rights.  But this court later determined that the effective filing date was actually July 30, 2004.  Appellants did not file a motion for a new trial. 

D E C I S I O N

1.         Sufficiency of the evidence

On appeal from an order terminating parental rights, "appellate courts are 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) (citation omitted).  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) (citation omitted).  The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); Minn. Stat. § 260C.301, subd. 1(b) (2002) (listing nine criteria).  One criterion is sufficient, although the primary consideration in all TPR determinations is the best interests of the child.  Minn. Stat. § 260C.301, subd. 7 (2002).  Courts are 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 juvenile court terminated appellants' parental rights under Minn. Stat. § 260C.301, subds. 1(b)(2), 1(b)(4), 1(b)(6), and 1(b)(8) (2002).  Appellants argue that the juvenile court lacked clear and convincing evidence and that there was substantial evidence before the court that the children "fabricated the allegations of physical and sexual abuse . . . ."  Minn. Stat. § 260C.301, subd. 1(b)(2), allows the juvenile court to terminate parental rights based on findings that "the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship . . . ."  To support its conclusions, the court found that the children were physically abused by F.T. and that A.T. was aware of the physical abuse and did nothing to prevent it.  C.T. testified to being hit with sticks and extension cords by both F.T. and T.  She also testified that F.T. threatened to harm her if she ever told anyone about the abuse.  B.T. testified to receiving frequent "whoopings" in front of A.T., who did not intervene.  The court further found that the children received infrequent medical care.  After her adoption by appellants, C.T. did not have a physical examination between October 4, 2000, and April 29, 2003, despite concerns regarding her fine motor development and a diagnosis of cerebral palsy.  After her adoption in December 2000, B.T. was not seen by a doctor between August 30, 2001, and August 7, 2003.  D.E.T. was not seen between August 30, 2001, and January 28, 2003.  Additionally, the court found that the county had attempted to provide numerous services to the family to correct the conditions within the home; however appellants consistently refused to participate in any services, arguing that to do so would be an admission of guilt. 

Minn. Stat. § 260C.301, subd. 1(b)(4), allows the juvenile court to terminate parental rights based on findings that a parent is "palpably unfit to be a party to the parent and child relationship . . . ."  The juvenile court made extensive findings regarding the physical and sexual abuse that occurred in the home based on the testimony of C.T. and B.T.  C.T. testified to being hit by F.T. with a gun and with an extension cord that left a mark on her arm.  She further testified that F.T. choked her, leaving scratch marks on her neck, and threatened to throw her down the stairs of the home.  Both B.T. and C.T. testified regarding sexual abuse committed by the appellants' adult sons.  B.T. testified that Donnie put his hands on the outside of her vagina and attempted to force her to touch his penis.  C.T. testified that Donnie touched her breast and Archie kissed her on the mouth.  Finally, the court found that F.T.'s anger-management issues, the special needs of the children at issue, and appellants' refusal to participate in the court-ordered case plan provided sufficient evidence to terminate their parental rights.  Specifically, the juvenile court stated that "[they] do not have the parenting skills and necessary insights to meet the children's needs." 

Appellants argue that the juvenile court's decision with respect to D.E.T. should be reversed.  They emphasize the fact that D.E.T. testified that she wanted to remain with appellants and denied any physical abuse.  But this evidence supports the juvenile court's finding that appellants are palpably unfit parents.  The testimony of B.T. and C.T. establishes a consistent pattern of physical and sexual abuse within the home, providing the court with ample evidence to terminate appellants' parental rights as to all three children.

Minn. Stat. § 260C.301, subd. 1(b)(6), allows the juvenile court to terminate parental rights 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 . . . ."  This ground for termination requires that a child has experienced egregious harm in the parent's care which demonstrates the parent's grossly inadequate ability to provide minimally sufficient care to any child.  Matter of Welfare of A.L.F., 579 N.W.2d 152, 155 (Minn. App. 1998).  To support its conclusion, the juvenile court found evidence of physical and sexual abuse occurring within the home.  C.T. and B.T. testified about the sexual abuse and that F.T. was aware of the abuse and failed to take any preventive measures.  The girls also testified regarding the physical abuse within the home, and each had witnessed the other being beaten.  Finally, B.T. testified to witnessing physical abuse of D.E.T. by A.T.  The court found the testimony of B.T. and C.T. to be credible, and the credibility determinations of the court are due considerable deference.  L.A.F., 554 N.W.2d at 396.

Minn. Stat. § 260C.301, subd. 1(b)(8), allows the juvenile court to terminate parental rights based on findings that the children are neglected and in foster care.  Here, the evidence demonstrated that C.T. and D.E.T. have been in continuous out-of-home placement since April 2003 and B.T. has been in continuous out-of-home placement since March 2003.  The juvenile court further found that appellants refused to participate in any court-ordered services in an attempt to correct the conditions leading to the out-of-home placements.  The court found that, although appellants have regularly visited with D.E.T., they have requested no visitation with C.T. and that B.T. refused visitation.  Mr. Luther testified that appellants let him know in "vague terms that they were less interested in  [C.T. and B.T.] at that point in time but were primarily interested in regaining custody of [D.E.T.]."  The court stated that appellants had essentially "abandoned" B.T. and C.T.

Finally, because a child's best interests are the paramount consideration in proceedings to terminate parental rights, the district court may not terminate parental rights if the record does not show that termination is in the child's best interests, even if one or more of the statutory prerequisites for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996).  The best-interests analysis requires the court to balance the child's interest in preserving the parent-child relationship, the parent's interest in preserving the parent-child relationship, and any competing interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  The juvenile court made nine detailed findings regarding the best interests of the children.  The court determined that the girls had been in continuous out-of-home placements since April 2003.  Given the physical and sexual abuse witnessed and experienced by the girls, the court determined that they would be at continued risk in appellants' care and custody.  The court further considered the fact that appellants have consistently refused services to remedy the abusive conditions within the home and have failed to address their issues with anger management.  Finally, the court carefully considered the impact on the children of terminating parental rights and determined that termination would allow them to "obtain [permanency] and stability in their lives" and this "outweighs any detriment resulting from severing the parental relationships."  There is sufficient evidence in the record to support the findings of the juvenile court regarding the best interests of the children.

2.         Evidentiary rulings

Appellants did not make a posttrial motion regarding evidentiary errors.  Generally, objections to evidentiary rulings not assigned as error in a posttrial motion are not reviewable by this court.  Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).  Citing In re Welfare of S.R.A., 527 N.W.2d 835, 837 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995), appellants argue that this court has discretion to hear these evidentiary issues, although they were not preserved in a posttrial motion.  But the Minnesota Supreme Court has stated that "[t]he gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument."  In re Welfare of D.D.G., 558 N.W.2d at 485.

Appellants argue that the reason for their failure make a posttrial motion was that the termination order was mailed to the wrong address and was not received until more than a week after the time for a posttrial motion had expired.  They assert that because of the improper service of the termination order and because the evidence is "evenly divided," this court must hear these claims in the interests of justice.  Minn. R. Juv. Protect. P. 45.01, however, states that "[a]ll non-dispositional post-trial motions shall be filed within fifteen (15) days of the filing of the court's order . . . ." (emphasis added).  Appellants' reliance on the fact that the termination order was not served in a timely fashion is misplaced.  Therefore, appellants' evidentiary claims have been waived and are not properly before this court.

3.         Verbatim adoption of HSD's proposed findings

            Appellants argue that it was improper for the juvenile court to have adopted verbatim the proposed findings offered by respondent-HSD, thereby denying them a fair adjudicatory process.  "The ‘clearly erroneous' standard remains the proper standard of review" when considering the propriety of a district court's verbatim adoption of a party's proposed findings and conclusions.  Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).  This court has "strongly caution[ed] that wholesale adoption of one party's findings and conclusions raises the question of whether the trial court independently evaluated each party's testimony and evidence."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied Minn. Feb. 12, 1993) (citing Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988)).  But verbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se.  Id. (citing Sigurdson, 408 N.W.2d at 657).  Because the juvenile court's findings of fact are sufficiently detailed and address the statutory criteria as well as the best-interests analysis, the adoption of respondent-HSD's proposed findings is not grounds for reversal.

      Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.