In the Matter of the Welfare of Children of: G.A.H. and M.A.K., Parents.

In the Matter of the Welfare of Children of: G.A.H. and M.A.K., Parents. A07-1387, Court of Appeals Unpublished Decision, December 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A07-1387
 
In the Matter of the Welfare of Children of: G.A.H. and M.A.K., Parents

 

 

Filed December 18, 2007

Affirmed

Minge, Judge

 

Dakota County District Court

File No. JX-06-59454

 

David A. Jaehne, 60 East Marie Avenue, Suite 109, West St. Paul, MN 55118 (for appellant mother)
 
James C. Backstrom, Dakota County Attorney, Jennifer L. Jackson, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent county)
 
Laura Miles, 1560 West Highway 55, Hastings, MN 55033 (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 G.A.H. challenges the termination of her parental rights, claiming that the county failed to provide her with services and sufficient time for reunification with her children.  Because termination was based on egregious harm and the county made a prima facie showing of egregious harm at the outset of the proceeding, the district court did not err in suspending reunification efforts.  We affirm.

FACTS

            Appellant is the mother of three children: P.K.A.K., born on May 11, 2004; Z.T.H., born on October 7, 2005; and Z.N.H., born on February 4, 2007.  In late September 2006, appellant entered an emergency shelter in Eagan with P.K.A.K. and Z.T.H.  Appellant was pregnant with Z.N.H. at the time.  A public health nurse assessed eleven-month-old Z.T.H. and determined that he could not use his arm, seemed weak and lethargic, and could not bear weight on his feet.  The nurse determined that he needed to be seen at a clinic. 

A medical examination of Z.T.H. on September 27, 2006, found that he had two fractures in his left arm.  The clinic transferred Z.T.H. to a hospital emergency room.  Hospital staff determined that Z.T.H. had multiple rib, arm, and leg fractures, as well as a bilateral subdural hematoma.[1]  Z.T.H. also had what appeared to be bite marks on his back and chest.  Dakota County Social Services (DCSS) and the Eagan Police Department were contacted after hospital staff concluded that the injuries were non-accidental. 

On September 28, 2006,aDCSS assessment worker and a police detective interviewed appellant.  Law enforcement removed the children from appellant's custody under a 72-hour health and welfare hold, and on October 3, DCSS filed a CHIPS petition (child in need of protection and services), alleging that Z.T.H. was the victim of physical abuse and that both Z.T.H. and P.K.A.K. were without proper parental care. 

During the course of an investigation, it was determined thatappellant and Marce Kendall, the father of the children, had lived together between May and September 2006.  The parents explained that, during that time, several incidents occurred involving Z.T.H.  The parents claimed that Z.T.H. fell off a stool, an air mattress, and down eight stairs onto a hardwood floor.  Kendall admitted to grabbing and pulling Z.T.H. forcefully by the wrists.  Kendall also admitted that he tossed Z.T.H. back and forth with the baby's grandfather while standing five to eight feet apart until Z.T.H. dropped to the floor.  Appellant picked up Z.T.H. after he fell.  Kendall further stated that, on more than one occasion, he shook Z.T.H. and yelled at him to "shut up."  Appellant was present while this behavior occurred.

The investigating officer and the assessment worker also determined that appellant failed to seek medical care for Z.T.H. when directed to do so by health care professionals. Appellant stated that she contacted a nurse-emergency-telephone service after Z.T.H. fell off an air mattress in June 2006.  Call center records disclosed that appellant called twice on June 27.  During the first call at 1:12 p.m., appellant stated that Z.T.H. had been running a fever and vomiting since 4:00 that morning.  She told the nurse that the baby's eyes were rolling back in his head and that Z.T.H. would shake and then seem to pass out.  The nurse line told appellant to call 911, and appellant agreed to do so.  Appellant called the nurse line again at about 10:26 p.m. that same day.  She claimed that she had taken Z.T.H. to see a doctor, but he continued to vomit, and she wanted to take him back to the hospital.  Appellant later admitted that she did not seek medical attention for Z.T.H. after the first call. 

After the second call, the emergency nurse arranged a ride for appellant.  Z.T.H. was taken to Fairview Ridges Hospital in Burnsville where he was given treatment and released.  Appellant was instructed to follow up later in the week, and she brought Z.T.H. in for a second hospital visit on June 30.  The treating physician noted that Z.T.H. was lethargic, and his eyes were rolling back in his head.  Appellant was instructed to take Z.T.H. to the emergency room for a lumbar puncture.  Appellant did not follow the physician's instruction.  Appellant later testified that she chose to go home with Z.T.H. instead of the emergency room because she thought the baby was sick as a result of drinking regular milk rather than infant formula.  Appellant was covered by insurance during this time.

The assessment worker and the police detective learned from others who knew appellant that she was protective of the father and, when faced with conflicting duties, tended to choose the father over the children.  The assessment worker also learned from a friend of appellant that she had to be prompted and motivated to do some of the caretaking of her own children.  When the detective investigated the source of the bite marks on Z.T.H.'s body, appellant initially stated that her brother might be responsible.  The detective obtained dental impressions from appellant's brother, but the impressions did not match the bite marks.  The father later admitted to biting Z.T.H.  When the assessment worker asked appellant if she understood that Kendall admitted biting Z.T.H., appellant said, "That's crazy."

On November 21, 2006, DCSS filed a petition requesting termination of parental rights (TPR) for both Z.T.H. and P.K.A.K., alleging that termination was necessary due to the egregious harm Z.T.H. experienced while in appellant's care.  The petition included the investigative report recounting the incidents previously described.  On the basis of those facts, the district court authorized the county to cease reunification efforts.  Appellant gave birth to Z.N.H. on February 7, 2007, and DCSS moved to include Z.N.H. with her siblings in the CHIPS and TPR petitions as a child in need of protection and services and a sibling of a child alleged to be the victim of egregious harm.  Following a hearing in April 2007, the district court terminated appellant's parental rights to P.K.A.K., Z.T.H., and Z.N.H.  This appeal follows.

D E C I S I O N

            The issue on appeal is whether appellant was given sufficient time and opportunity for reunification with her children.  Generally, when a CHIPS petition is filed and when a TPR proceeding is pending, the district court must ensure that social service agencies provide reasonable efforts, including culturally appropriate services, to prevent placement and reunite children with their parents at the earliest possible time.  Minn. Stat.
§ 260.012(a) (2006); Minn. Stat. § 260C.001, subd. 3 (2006).  But when there is egregious harm, the services mandate does not apply.  Minn. Stat. § 260.012(a)(1) (2006).  

"Egregious harm" is defined as "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" and includes "substantial bodily harm."  Minn. Stat. § 260C.007, subd. 14 (2006).   "Substantial bodily harm" includes bodily injury that causes a fracture.  Minn. Stat. § 609.02, subd. 7a (2006).  Egregious harm is not limited to the aggressor; it includes felony child neglect or endangerment.  Minn. Stat. § 260C.007, subd. 14(5).  A parent is guilty of neglect if the parent willfully deprives a child of necessary health care when the parent is able to make necessary provisions (and the deprivation is likely to cause substantial harm) or the parent knowingly permits the continuing physical or sexual abuse of a child.  Minn. Stat. § 609.378, subd. 1(a)(1)-(2) (2006). 

Appellant argues that because she did not inflict the injuries on Z.T.H., because there is no evidence that the oldest child P.K.A.K. suffered harm, and because Z.N.H. was born after the harm to Z.T.H., the egregious harm basis for discontinuing reunification efforts does not apply.  But the county is not required to prove that the person whose parental rights are being terminated inflicted the egregious harm, nor is the county required to show that each child subject to the TPR petition suffered egregious harm.  In re Welfare of A.L.F., 579 N.W.2d 152, 155-56 (Minn. App. 1998).  The county must show, and the district court must find, that a child suffered the egregious harm while "in the parent's care . . . 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) (2006) (emphasis added).  The county must demonstrate "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."  A.L.F., 579 N.W.2d at 156 (emphasis added).

Here, between October 3, 2006, (the date of the CHIPS petition), and November 21, (the filing date of the TPR petition alleging egregious harm), DCSS attempted to arrange visits with the children for both parents.  DCSS also arranged for appellant to return to the shelter and recommended that she stay there for at least 30 days while setting up independent housing and services.  Visits with both parents were to occur at the shelter.  However, before any visits occurred, appellant left the shelter and returned to live with Z.T.H.'s father, the person who inflicted the injuries. 

Based on the ongoing law enforcement/DCSS investigation, the November 21 termination petition, and the investigative report alleging that Z.T.H. suffered egregious harm while in appellant's care, the district court relieved the county of any further reunification efforts.  We have already set forth the nature and extent of the injuries suffered by Z.T.H. and the occasions on which appellant failed to seek medical care.  This evidence was part of the prima facie case that was of record at the time the TPR petition was filed and the order was signed dispensing with reunification. 

The evidence presented at the TPR hearing further supported the determination that Z.T.H. suffered egregious harm while in appellant's care.  In particular, law enforcement, DCSS assessment workers, and the children's guardian ad litem (GAL) testified that between May and September 2006, appellant lived primarily with the father, Marce Kendall, and this was when Z.T.H. suffered numerous and substantial injuries.  A law enforcement officer testified that following a full investigation into the cause of the injuries suffered by Z.T.H., she believed appellant's conduct rose to the level of criminal neglect, and that she referred the case to the Dakota County Attorney's Office for prosecution.  A DCSS assessment worker testified that appellant neglected Z.T.H. by failing to get him needed medical attention and that a TPR petition was appropriate because appellant failed to protect her child from harm and was present during incidents leading to Z.T.H's injuries.   

Another DCSS assessment worker explained why the county moved to terminate appellant's parental rights to P.K.A.K. and Z.N.H., even though the evidence did not show that these siblings suffered harm while in appellant's care.  The assessment worker noted that appellant tested positive for marijuana when Z.N.H. was born on February 4, 2007.  The worker further stated that P.K.A.K. and Z.N.H. were included in the CHIPS and TPR petitions because they belonged to a sibling group with a child that had experienced egregious harm. 

The GAL concluded that because the children were not kept safe in their mother's care and were not provided with needed medical attention, it was in the best interests of the children to terminate appellant's parental rights.  Finally, the GAL testified that she did not believe the mother could provide the children with a safe environment.  She also stated her concern that the mother returned to live with the father while pregnant with Z.N.H. after he admitted to physically abusing and biting Z.T.H. 

Given this record, we conclude that the district court did not err in allowing the county to discontinue reunification efforts to all the children and to include both P.K.A.K. and Z.N.H. in the TPR petition filed as a result of the egregious harm suffered by Z.T.H.  The state's compelling interest is shielding children from parental abuse.  R.S. v. State, 459 N.W.2d 680, 689 (Minn. 1990).  The state may invoke its power to protect children "if it appears that parental decisions will jeopardize the health or safety of the child."  Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 1542 (1972).  Moreover, county attorneys have an affirmative obligation to file a TPR petition within 30 days of a social service agency's finding that a child is "the sibling of another child of the parent who was subjected to egregious harm."  Minn. Stat. § 260C.301, subd. 3(a) (2006).

Appellant does not show any reason why she should have some added right to reunification efforts compared to the abusive father.  The egregious-harm standard for terminating parental rights applies to the neglectful, as well as the physically abusive parent.  Even if a parent is a passive participant in the abuse, the children's safety is at risk.  Protection of one's children from harm is a basic, instinctive quality of being a parent.  The same logic that allows for termination of appellant's parental rights for egregious harm is an adequate basis for dispensing with reunification efforts.  We conclude that the district court has the discretion to determine that, if the passive parent fails to protect her children, reunification efforts are unnecessary.

Similarly, egregious harm to one child is a basis for terminating parental rights to the siblings.  The district court may conclude that, in an abusive family setting, the futility of reunification and the risk of harm during reunification justify dispensing with such efforts for not only the previously harmed child but all of the children in the household.

Appellant's conduct in not protecting Z.T.H. and failing to obtain timely care being protective of the interests of the abusive father and continuing her relationship with him provided the district court with an adequate basis for dispensing with additional reunification services for her. 

The record further shows that appellant was present when the abuse occurred and that her conduct met the definition of felony neglect and endangerment.  See Minn. Stat. § 609.378.  We conclude that the district court did not err in determining that Z.T.H. suffered egregious harm while in appellant's care, in discontinuing the DCSS obligation to provide appellant with services and additional time for reunification, and in terminating appellant's rights to Z.T.H., P.K.A.K., and Z.N.H.

Affirmed.

 

Dated:

[1] A bilateral subdural hematoma is a localized collection of clotted blood occurring beneath one of the membranes covering the brain.  4 J.E. Schmidt, M.D., Attorneys' Dictionary of Medicine, S-238 (28th ed. 1995).