In the Matter of the Welfare of the Child of: E. L., Parent.

In the Matter of the Welfare of the Child of: E. L., Parent. A05-609, Court of Appeals Unpublished, November 22, 2005.

This opinion will be unpublished and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

A05-609

 

In the Matter of the Welfare of the Child of: E. L., Parent.

 

Filed November 22, 2005

Affirmed; motion granted

Stoneburner, Judge

 

Aitkin County District Court

File No. J30450181

 

Melanie R. Dotty, Box 815, Pequot Lakes, MN 56472 (for appellant, E.L.)

 

Thomas Murtha, Aitkin County Attorney, Catherine M. Miller, Assistant County Attorney, 217 Second Street NW, Aitkin, MN 56431 (for respondent Aitkin County)

 

Laurie Hollingsworth, Box 593, Ironton, MN 56455 (Guardian ad Litem)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the order terminating her parental rights, asserting that the district court's findings were incomplete and clearly erroneous.  Because we conclude that the district court made sufficient findings that are supported by the record, we affirm.

    FACTS

 

This case involves B.L., a child born on January 16, 2000, who was adopted by his maternal grandmother, E.L. (appellant), in June 2002, as a result of a prior child-protection proceeding.  In 2003, B.L. was adjudicated a child in need of protection or services of the court (CHIPS).  The CHIPS petition was based on physical abuse by appellant that was witnessed by restaurant employees.  Although appellant never admitted abusing B.L., she admitted that B.L. was in need of services because, according to appellant, he is a combative, resistant child who is fretful and difficult for her to deal with, and she was frustrated and needed professional services.  A local psychologist, Dr. Robert Beal, conducted a parenting assessment.  Based on Dr. Beal's recommendation that the county remove B.L from appellant's care, B.L. was placed in foster care in July 2003.  B.L. was returned to appellant's care in November 2003, over the county's objection.  The county was concerned that appellant had not properly dealt with the issue of abuse because she refused to admit that she had physically abused B.L.  But the district court noted that appellant had admitted that her parenting method had been inappropriate and that she needed to change.  The CHIPS file was closed in April 2004.

In August 2004, Aitkin County Sheriff's Deputies Sheryl Smith and Jeffrey Madsen were dispatched to appellant's home in response to a 911 call unrelated to B.L.  Smith and Madsen examined B.L. during that visit and found that he had multiple bruises on the front of his legs in the shin area, bruises on the back of his legs and on his arm, and a large scratch on his back.  Madsen believed that B.L. had bite marks on his hand.  Appellant's granddaughters, J.T. and T.T., reported to the officers that they had witnessed appellant physically abusing B.L.

An investigation substantiated that abuse had occurred and B.L. was again removed from appellant's home.  During the investigation, B.L.'s bruises were photographed and a plastic yellow bat that the granddaughters alleged appellant used to strike B.L. was confiscated from appellant's car.  B.L. was interviewed by Bruce Beck, a specially trained investigator at the Aitkin County Sheriff's Office.  Beck used a tool called the "people circle" during the interview, and videotaped the interview.

B.L. was again placed in foster care, an out-of-home placement plan was developed, and the county petitioned for termination of appellant's parental rights.  The TPR petition alleged that (1) appellant substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed on her by the parent-child relationship (Minn. Stat. § 260C.301, subd. 1(b)(2)); (2) appellant is palpably unfit to be a party to the parent-child relationship (Id., subd. 1(b)(4)); (3) reasonable efforts failed to correct the conditions leading to the out-of-home placement (Id., subd. 1(b)(5)); (4) B.L. has experienced egregious harm in appellant's care of a nature, duration, or chronicity that indicates a lack of regard for his well-being, such that a reasonable person would believe it contrary to his best interests to be in appellant's care (Id., subd. 1(b)(6)); and (5) B.L. is neglected and in foster care (Id., subd. 1(b)(8)).

At the TPR trial, the district court excluded B.L.'s videotaped statement as hearsay, but admitted the "people circle" tool used during the interview.  Appellant's granddaughters, J.T. and T.T., testified in detail about appellant's physical abuse of B.L. that they witnessed during their stay with appellant in the summer of 2004.  Appellant's son testified about abuse he saw appellant inflict on B.L. during the summer of 2004 and testified that appellant had also used a bat to hit him when he was a child.  Deputies Smith and Madsen testified about the bruises and scratches they observed on B.L. in August 2004.  Dr. Beal testified about the psychological/parenting assessment he completed in June 2003 and an updated assessment he performed in September 2004.  Dr. Beal described a parent/child observation of B.L. with appellant in which appellant attempted to relate to B.L. but B.L. seemed emotionally aloof from her.  Dr. Beal stressed B.L.'s need for permanency and stability. 

Dr. Robert Riedel testified about a parenting assessment he performed at appellant's request in September 2003.  In response to questions from appellant's attorney, Dr. Riedel testified about reactive attachment disorder and opined that appellant has facilitated attachment and attempted to bond with B.L., but that Dr. Beal's description of the parent/child observation portrayed a child suffering from reactive attachment disorder.  Dr. Riedel answered in the affirmative to the district court's question about whether B.L. had a better chance of bonding with appellant than with a non-relative.  Dr. James Storlie, B.L.'s primary physician, who saw B.L. approximately once every six months, testified that he had not observed any signs of physical abuse on B.L.  Jerry Berndt testified about individual therapy appellant received from him for stress and anxiety, noting that the therapy did not address allegations of appellant's abuse of B.L.  In-home family therapist Paul Janowiec, who worked with appellant on parenting skills for children with fetal-alcohol syndrome, testified that he addressed attachment issues to some extent with appellant.  He also testified that he would not advocate biting or hitting a child for discipline.  Social worker Debra Tuper testified about the county's reunification efforts and the results of risk assessments completed for the family from May 2003 through October 2004.  She testified that at the time of the TPR trial, the level of risk remained high.  Appellant's sister, daughter, significant other, and a family advocate all testified that they never observed appellant abuse B.L. 

Appellant testified that she had never thrown, hit, bit, or spanked B.L. and had never hit any of her grandchildren, but later admitted having hit J.T. on the hand in August 2004.  A public-health-care nurse testified that appellant had told her B.L. had bruises from riding his bike that were not healing and inquired if bruising could be a side-effect of B.L.'s medications.  The public-health nurse told appellant to contact a doctor if the problem persisted.

The Guardian Ad Litem testified that appellant learned some ways to change her parenting style, but slipped back into old habits of disciplining B.L. and was unlikely to change her parenting style in the foreseeable future.  The GAL testified that termination of parental rights is in B.L.'s best interests.

Based on its finding that appellant is palpably unfit to be a party to the parent-child relationship under Minn. Stat. § 260C.301, subd. 1(b)(4) (2004), the district court terminated appellant's parental rights to B.L., and this appeal followed.  By order dated August 16, 2005, this court struck the portions of appellant's brief relating to evidentiary issues raised in an untimely motion for new trial and granted the county's motion to strike portions of appellant's appendix containing the new-trial motion and supporting affidavit.

D E C I S I O N

 

I.          Findings

Appellant raises a series of challenges to the district court's findings.  An appellate court reviews termination of parental rights 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 Welfare of Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004) (quoting In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001)).  Termination of parental rights will be affirmed if there is clear and convincing evidence supporting at least one statutory ground for termination and termination is in the child's best interests.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  "Considerable 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). 

a.         Termination of appellant's parental rights

Appellant argues that the evidence presented at trial failed to establish that appellant's parental rights were terminated for grave and weighty reasons.  "Parental rights are terminated only for grave and weighty reasons."  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  The court may terminate parental rights if it finds:

that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.

 

Minn. Stat. § 260C.301, subd. 1(b)(4) (2004). 

            Appellant correctly asserts that some witnesses did not see any evidence that she physically abused B.L. and is correct that the district court did not discuss in its findings much of the testimony that was favorable to appellant.  But viewed as a whole, the evidence and testimony provide substantial support for the court's findings.  Although Dr. Riedel gave some testimony favorable to appellant, he testified that appellant does not express anger well, that she tends to bottle it up, and that the anger may blow up on occasion.  He testified that appellant is afraid to allow B.L. to demonstrate power and independence and expects B.L. to observe her authority.  He also testified that biting a child, hitting a child with a plastic bat, and throwing a child into water all would constitute child abuse in most cases.  In Dr. Riedel's opinion, continuing to deny substantiated abuse and continuing to abuse a child after completing parenting classes would be grounds for termination of parental rights.  Dr. Riedel testified that he found appellant to be passive/aggressive and highly defensive. 

            Dr. Beal testified that appellant completely denied any abusive behavior.  He described appellant as a "fundamentally angry, controlling, interpersonally manipulative, ingenuine person" who was extremely difficult to deal with.  He opined that appellant was intolerant of child behaviors and testified that if appellant failed to acknowledge her abusive behavior, B.L. should not be placed in her care.  He added that until such acknowledgement occurs, whether appellant follows recommendations or improves her parenting skills is irrelevant to B.L.'s safety.

            Witnesses saw appellant abuse B.L. in a variety of ways.  Law-enforcement officers testified that they saw evidence of physical abuse on B.L.'s body.  The county's risk assessments showed a high level of risk to B.L. of neglect and abuse that continued through the time of the trial.  Social worker Tuper strongly recommended that appellant's parental rights be terminated.  The GAL also supported termination and testified that appellant is controlling and has a problem with frustration and anger. 

            The record supports the finding that appellant physically abused B.L. consistently over a long period of time and that appellant is unwilling or unable to acknowledge the abuse and consequently is unlikely to change her parenting style in the foreseeable future.  The record clearly shows that grave and weighty reasons support termination of parental rights.

            b.         Lack of findings on testimony of appellant's witnesses        

            Appellant argues that the court erred because it failed to even acknowledge the testimony of appellant and seven of her witnesses.  Appellant does not cite any law, rule, or case for the proposition that a court must address each witness's presence and testimony in its findings, but nonetheless argues that she was deprived of a fair trial.  We disagree.

            Appellant argues that the court should have placed weight on Dr. Storlie's testimony that he did not witness suspicious bruises during physical examinations of B.L.  Dr. Storlie testified that he noticed bruises on B.L.'s legs that were typical of an active child, but he conceded that he would not necessarily have had B.L. remove his shirt and pants, and would not have seen any injuries to B.L.'s back, or buttocks, or thighs.  Additionally, Dr. Storlie stated that he could not form an opinion as to whether appellant had physically abused B.L.  The district court's failure to summarize Dr. Storlie's testimony or make specific findings based on his testimony is not error and did not deprive appellant of a fair trial.

            Appellant also contends that the court should have relied on Berndt's testimony that appellant had progressed well in individual therapy and was close to no longer needing individual therapy.  Berndt testified that child protection referred appellant to him for anger management but admitted that he did not specifically work with her on anger management.  He also testified that he had no way of knowing whether appellant would still get irritated and spontaneously react or whether she had made progress.  Because Berndt did not treat appellant for anger management and could not measure her progress in managing her anger, his testimony was not relevant to the issues to be determined by the district court, and there was no reason for the district court to make findings based on his testimony.

            Appellant argues that Janowiec's testimony shows that appellant tried to comply with her case plan and was willing to seek out services.  Janowiec's testimony was limited to describing the services he provided, and other witnesses testified directly regarding appellant's efforts to comply with her case plan and seek out services and we see no error in the district court's failure to make findings specifically based on Janowiec's testimony.

            Testimony by other witnesses that appellant lists, but does not present arguments about, appear similarly unnecessary to the findings and conclusions.  Appellant has not shown how a failure to mention witnesses in court findings equates to a failure to consider their testimony.  Nor has appellant shown that the court's decision lacked substantial support from other clear and convincing evidence.  We find appellant's argument on this issue without merit.

c.         Appellant's future ability to act as a parent

Appellant argues that the district court's finding regarding appellant's future ability to parent B.L. is not supported by substantial evidence because the district court failed to acknowledge the testimony of Dr. Storlie or Berndt.  Appellant describes the testimony of Drs. Storlie and Berndt in detail, but fails to show that the district court did not consider that testimony in reaching its decision.  Appellant cites no authority for the proposition that district court findings must refer to testimony that does not support the decision when ample evidence in the record supports the decision. 

The district court found:

That in the face of substantial and credible evidence [appellant] continues to deny that she is guilty of any abusive behaviors toward [B.L.].  That she lacks any insight whatsoever into her behavior issues in this regard.  That she has been resistant to measures offered to address her abusive behavior and that she appears highly unlikely to be willing to do so in the reasonably foreseeable future.

 

            The court made numerous specific findings related to Dr. Beal's assessments of appellant, Dr. Riedel's report and testimony regarding appellant, and the GAL's observations of appellant.  Appellant concedes that the district court found substantial and credible evidence that appellant denied abusing B.L. and that she was unlikely to address her abusive behavior in the reasonably foreseeable future.  The district court findings are supported by substantial evidence and are not clearly erroneous.

d.         Reasonable efforts to reunite the family

Appellant argues that the district court's finding that the county made reasonable efforts to reunite the family is not supported by substantial evidence.  The court must make specific findings "that reasonable efforts to prevent the placement and to reunify the child and the parent were made including individualized and explicit findings regarding the nature and extent of efforts made by the social services agency to rehabilitate the parent and reunite the family[.]"  Minn. Stat. § 260C.301, subd. 8(1) (2004).  When determining whether reasonable efforts have been made, the court must consider whether services to the child and family were: (1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances.  Minn. Stat. § 260.012(c)(1)-(6) (2004).  The services provided "must go beyond mere matters of form so as to include real, genuine assistance."  In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).  "Whether efforts are ‘reasonable' requires consideration of the length of time the county has been involved with the family as well as the quality of effort given."  Matter of Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987).

            Here, the court found that "Aitkin County Health and Human Services Agency has had three staff members involved in this case with a total of 670 hours of service provided."  The court also found that the county provided the following reasonable efforts to prevent the need for out-of-home placement:

[C]hild protective services investigations, case management services, in-home parenting, psychological/parenting assessment, protective supervision, early childhood special education, individual therapy for both mother and child, IIIEP, anger assessment, family group decision making, PCA screening, FAS assessment, occupational therapy, physical therapy, speech and language therapy, play therapy, family foster care, therapeutic foster care, respite care, medication management, visitation, and assessments for family needs and strengths, risk, reunification, functional, well-being, and mental health.

 

            The court further found that appellant declined a family-group decision-making session and that appellant had the ability to comply with the case plans but chose or failed to do so. 

Appellant concedes that the county provided many hours of case-management services, but argues that the vast majority of those hours were directly related to B.L.'s needs.  Appellant lists eight of the 27 services provided as being related to B.L.'s needs, but fails to mention the other 19 services.  And appellant does not dispute that providing services to B.L. was part of the reunification effort.

Appellant also argues that the county failed to provide reasonable services because it knew Berndt's therapy methods would not help appellant admit that she abused B.L.  But appellant was referred to Berndt for an anger-management assessment, not specifically for therapy to help her admit abuse.  Appellant accuses the county of failing to refer her to a county-approved therapist, failing to provide a list of approved therapists, and failing to maintain contact with Berndt.  But given appellant's continuing denial that abuse occurred, appellant is unable to show how such referrals would have affected the outcome of this case.  There is no evidence that Berndt would not have provided adequate individual therapy if appellant had admitted her abusive behavior.

e.         Best interests of the child

Appellant argues that the district court erred by failing to explicitly describe why B.L.'s interests are better served by termination of appellant's parental rights than by leaving her adoption of B.L. intact.  In a T.P.R. proceeding, "the best interests of the child must be the paramount consideration . . . ."  Minn. Stat. § 260C.301, subd. 7 (2004).  The district court must consider a child's best interests in making its termination decision, make findings specifically addressing the child's best interests, and must "explain its rationale in its findings and conclusions."  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 proved.  Id. at 625-26.  "[P]arental rights may not be terminated solely on the grounds that it is in the best interests of the child to do so."  In re Welfare of S.N. & M.O., 423 N.W.2d 83, 91 (Minn. App. 1988).  The district court, when considering the best interests of the child in a TPR case, must balance three factors: "(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."  W.L.P., 678 N.W.2d at 711 (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). 

The district court specifically addressed B.L.'s best interests in its findings and conclusions.  The district court recognized testimony by appellant's family and friends that a loving relationship exists between appellant and B.L.  The findings show that the district court understood appellant's efforts to improve her parenting skills and the progress that she made.  The district court considered that B.L. is a special-needs child with numerous physical and behavioral difficulties and found that B.L. needs absolute stability.  B.L. has now been removed from appellant's home twice for physical abuse, and the court noted that the level of risk to B.L. in appellant's home remained high.  Because appellant will not be capable of parenting B.L. in the reasonably foreseeable future, the district court concluded that termination of appellant's parental rights is in B.L.'s best interests.

The record supports the court's findings and conclusions.  Experts testified that appellant abused B.L. and that unless appellant can acknowledge her abusive behavior, she is likely to continue the abuse.  We conclude that the district court adequately addressed B.L.'s best interests.

II.        Motion to strike

Respondent moves to strike certain documents from appellant's appendix and the references to those documents in appellant's brief.  Specifically, appellant moves the court to strike (1) a Riverwood Healthcare Center record; (2) a court report and case plan filed in the earlier, separate CHIPS case; and (3) a Fetal Alcohol Spectrum Disorder Evaluation Report.

Under Minn. R. Civ. App. P. 110.01, "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases."  This court will "strike documents in a brief that are not part of the appellate record."  State v. Dalbec, 594 N.W.2d 530, 533 (Minn. App. 1999). 

            Because the court report, case plan, and fetal-alcohol assessment were filed in the separate CHIPS case and are not part of the district court file in this case, we grant respondent's motion to strike those documents and references to those documents.

            Affirmed; motion granted.

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