In the Matter of the Welfare of the Children of L.S., E.V. and J.G.C., Parents.

In the Matter of the Welfare of the Children of L.S., E.V. and J.G.C., Parents. A05-1223, Court of Appeals Unpublished, November 29, 2005.

This opinion will be unpublished and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

A05-1223

 

In the Matter of the Welfare of the

Children of L.S., E.V. and J.G.C., Parents.

 

Filed November 29, 2005

Affirmed

Huspeni, Judge*

 

 

Nobles County District Court

File No. J5-05-50033

 

Dennis Rutgers, Attorney at Law, 305 South Elm Street, P.O. Box 39, Rushford, MN 55971 (for appellant L.S.)

 

Bruce N. Kness, 1020 5th Avenue, Worthington, MN 56187 (for respondent E.V.)

 

Francis P. Riley, 915 4th Avenue, Mick Office Plaza, Worthington, MN 56187 (for respondent J.G.C.)

 

Gordon L. Moore, Nobles County Attorney, Kathleen A. Kusz, Assistant County Attorney, 1530 Airport Road, Suite 400, P.O. Box 337, Worthington, MN 56187 (for respondent Nobles County Family Service Agency)

 

Larry C. Lucht, Lucht Law Offices, 906 Third Avenue, Worthington, MN 56187 (for guardian ad litem Carma Nordahl)

 

 

            Considered and decided by Lansing, Presiding Judge, Hudson, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant challenges the decision of the district court that termination of the parental rights of appellant is in the best interests of her children.  Because the court did not err in its decision, we affirm.

FACTS

Appellant L.S. is a single, 19-year-old mother of four whose love and devotion to her children is not questioned by the court.  In addition, she keeps her residence "neat and clean" and her children properly fed and clothed.  Appellant has a history of being involved in abusive relationships.  The father of her two younger children has been convicted of several offenses; throughout his relationship with appellant he directed his assaultive behavior toward her on a daily basis.  The man who fathered appellant's two older children is serving a prison sentence; his projected release date is in the summer of 2010. 

Appellant's youngest child, A.S., was born prematurely on July 23, 2004, and was sent home connected to an apnea monitor.  This device records and stores information regarding a child's respiration and heartbeat and is used to alert parents if the rate of either becomes dangerous.  The hospital gave appellant substantial instructions in the use of the monitor and told her to call the doctor or an 800 number if the child's respiration or heartbeat became dangerous or in the case of repeated, excessive, or false alarms involving the monitor. 

On October 28, 2004, the day that the father of A.S. was released from jail after serving a sentence for domestic violence assault against appellant, A.S. sustained severe injuries from which she later died.  The accounts of appellant and father regarding how A.S. sustained injuries on that day differ dramatically.  Appellant testified that father arrived at her apartment late in the morning of October 28, and she allowed him to enter.  According to appellant's testimony, after she took a shower, at which time A.S. was alone with father, appellant and father began to argue.  During the argument, father "pushed" appellant, causing her to lose her balance and to "drop" A.S.  Father denies being at appellant's apartment at any time on October 28.

Despite continued alarms from the apnea monitor throughout the day on October 28, appellant waited until approximately 11:18 p.m. before taking A.S. to the hospital.  Appellant testified that she was afraid to take the child into the hospital because on October 13, 2004, she had been advised by A.S.'s primary-care physician that she "would lose her children" if she did not protect them from father.[1] 

At the hospital, the medical staff observed that A.S. was gray, unresponsive, motionless, in serious respiratory distress, and suffering from intra-cranial injuries.  A CAT scan revealed subdural and sub-arachnoid hemorrhages and a "tense and bulging" fontenal (baby's soft-spot on the head).  Two medical professionals concluded that A.S. had suffered a head injury that involved "tremendous force" such as "slamming" of the child's head onto a hard surface.  The x-rays of A.S.'s brain taken on October 29, 2004, revealed "old" and "new" blood, indicating that A.S. had suffered head trauma on two different occasions.  It was not possible to determine the date of the earlier trauma.[2]  In addition to the head injuries, the autopsy revealed several broken ribs.  The autopsy report noted that because of the elasticity of an infant's bones, "the force necessary to cause symmetrical and bilateral fractures was considerable." 

Following the death of A.S., appellant's three remaining children were placed in foster care pursuant to a CHIPS petition.  While the CHIPS matter was pending, a parenting capacity assessment of appellant was conducted on January 22, 2005.  The assessment indicated that appellant "had serious problems with adjusting to life situations" and "demonstrated a history of poor impulse control and acting out behavior," as well as being "likely to react with anger" when challenged.  The assessment also noted that appellant "had problems with authority figures and was resentful toward societal and parental standards of conduct," and concluded that appellant becomes involved with abusive men "to fill an emotional need" that, with counseling, she can learn to identify early on and avoid by learning alternative means to fulfill this emotional void.

In December 2004, appellant had begun individual counseling sessions, but discontinued her involvement when she was notified that on February 3, 2005, a petition to terminate her parental rights to her three remaining children had been filed.  During the termination-of-parental-rights (TPR) proceedings, appellant revealed that she had been diagnosed with cervical cancer.  She testified that, although she is aware that if left untreated her condition could be fatal, she wanted to "wait to see what happens in this case" before deciding whether to pursue treatment, stating further that she is not likely to seek treatment if her parental rights are terminated.  The district court found this testimony  "troubling and calls into question [appellant's] emotional stability and sense of responsibility for her own wellbeing." 

The district court found that appellant possesses the skills and knowledge required for the daily care of infants and toddlers, but she lacks insight regarding the danger to which she exposes her children by becoming involved in abusive relationships.  The district court also determined that appellant's prospects of learning to avoid abusive relationships are "at best, unlikely" and that the physical abuse suffered by A.S., either by appellant or others while in appellant's sole custody and care,[3] demonstrates a lack of ability on the part of appellant to protect her children from criminal assault by others or an inability to refrain herself from causing such physical abuse. 

Based on these findings, the court determined that the "children's need for a safe, secure and stable environment far outweighs the interest of the children in preserving the parent-child relationship between themselves and their mother."  The court also determined that A.S. suffered "egregious harm," as defined by Minn. Stat. § 260C.007, subd. 14 (2004), at appellant's hand or in her exclusive custody, and ordered the termination of appellant's parental rights to her three remaining children.  This appeal followed.

D E C I S I O N

On appeal in a termination proceeding, this court must 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).  Parental rights may only be terminated for "grave and weighty reasons."  Id. This court defers to the district court's findings, but should exercise "great caution" in proceedings to terminate parental rights and should examine the evidence to determine whether it is clear and convincing.  Id.  The paramount consideration is the best interests of the child, and these interests are balanced against parental rights.  In re Welfare of M.D.O., 462 N.W.2d 370, 378 (Minn. 1990).  "To be proved at trial, the statutory grounds set forth in the petition must be proved by clear and convincing evidence."  Minn. R. Juv. Prot. P. 39.04, subd. 1.

Appellant contends that the district court abused its discretion in determining that it was in the best interests of the three remaining children to remove them from her care and terminate her parental rights because of the failure to protect A.S. from egregious harm.  While appellant concedes that A.S. suffered egregious harm, she nevertheless contends that her parental rights should not have been terminated because she did not directly cause the harm, she did not acquiesce in the harm, and her failure to act in no way changed the outcome for A.S.  Appellant also urges that it is in the best interests of her remaining children that they continue to be with her because she is a good parent.  She also contends, contrary to the district court's findings, that she was not given sufficient time to demonstrate her parenting ability and that she is amenable to treatment.

Careful review of the record compels the conclusion that the district court did not abuse its discretion in this case.  In making the difficult decision to terminate appellant's parental rights, the district court considered not only the incontrovertible evidence that A.S. suffered injuries from which she died while in appellant's care, but also the substantial evidence supporting the conclusion that the best interests of the remaining children would be served by termination of appellant's parental rights.

I.          Termination of Parental Rights

A district court may terminate the parental rights of a parent only if a two-pronged test is satisfied.  The first prong requires the establishment of statutory grounds and the second requires a showing that the best interests of the child are served by the termination.  In re Welfare of Children of R.W., 678 N.W.2d 49, 54 (Minn. 2004).  Even though the best-interests-of-the-child prong is "paramount," both prongs must be satisfied before a court may terminate parental rights.  In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995).

One statutory basis on which parental rights may be terminated is set forth in Minn. Stat. § 260C.301, subd. 1(b)(6) (2004), and requires that the district court must find that

a child has experienced egregious harm in a 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).  "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."  Minn. Stat. § 260C.007, subd. 14 (2004). 

Although the sole issue on appeal appears to be whether termination of appellant's parental rights serves the best interests of the children, appellant nonetheless stresses that the district court recognized that there is no evidence that she caused or permitted egregious harm to any of the children who are the subjects of this proceeding.  While we do not dispute that recognition, parental rights to these children may still be terminated if there is a determination that appellant caused or permitted egregious harm to a child in her care and custody.  Minn. Stat. § 260C.301, subd. 1(b)(6).  Clearly, A.S. was in the care and custody of appellant when she suffered her fatal injuries.  That finding was made by the district court, and is overwhelmingly supported.  Importantly, the egregious harm A.S. suffered does not have to have been sustained at appellant's hand, but merely while in her care and custody.  In re Welfare of A.L.F., 579 N.W.2d 152, 155-56 (Minn. App. 1998).  The requirements of Minn. Stat. § 260C.301, subd. 1(b)(6), were met.  

In addressing the second prong of the test that must be met in terminating parental rightswhether that termination is in the best interests of the childthe court must consider (a) the child's interests in preserving the parent-child relationship, (b) the parent's interests in the parent-child relationship, and (c) any competing interests, such as a stable environment, health considerations, and the child's preference, in determining the best interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  In considering all relevant factors, the evidence must relate to the conditions as they existed at the time of the hearing and that are likely to continue for a prolonged, indeterminate period.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

Appellant urges that the "best interests" prong has not been met.  We must disagree.  Athough appellant clearly loves all of her children, is able to provide for their nutritional and clothing needs, is a meticulous housekeeper, and desires deeply to maintain her parental rights, these truths are outweighed by the children's need for a safe and secure environment.  Observing the statutorily required factors, the district court considered appellant's (a) bad judgment in response to the physical distress of A.S. on October 28, 2004; (b) bad judgment regarding the relationships she builds and the inherent risks to which she exposes her children; and (c) rejection of societal norms and familial standards, which is evinced by her refusal to follow the advice of adults and professionals.  The district court determined that appellant's response to the October 28, 2004 medical emergency reveals "judgment [that] is so lacking or deficient that any other child in her care would be in extreme danger if any life-threatening incident occurred." 

II.        Amenability to Treatment

The record supports a conclusion that appellant's children are put in further danger by her involvement in abusive relationships.  Both fathers of the four children born to 19-year-old appellant have been imprisoned for violent crimes, including domestic assault against her; she was warned by the primary-care physician of A.S. to keep the children away from A.S.'s father.  Despite these circumstances and the warning, appellant continued to allow the father into her home where her children where living and even testified to having left A.S. alone with him on the day he was released from prison.  Although appellant might learn in the future to avoid abusive relationships, we agree with the determination of the district court that, based on her failure to complete an individual therapy program and her refusal to take the advice of professionals, she is not likely to complete the necessary programs.  The district court was also understandably concerned about appellant's failure to seek treatment for a potentially life-threatening medical condition recently diagnosed.

The district court made more than 80 findings in support of its decision to terminate the parental rights of appellant.  Those findings demonstrate a compassionate consideration of the difficult balance between an attempt to preserve family relationships and a child's need for stability, permanence, and nurturing.  We agree that the benefits of retaining family ties in this matter are outweighed by the inability of appellant to provide a safe and secure home for her children and that their best interests will be served by termination of parental rights. 

            Affirmed.

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

[1] Appellant obtained an order for protection against father on December 14, 2004.  The order was never served on father, however, because he had moved to Iowa.

[2] Because A.S. was born prematurely, x-rays of her chest had been taken on August 30, 2004, and an ultrasound of her brain was done on September 22, 2004.  The x-rays revealed that prior to or on August 30, 2004, the infant had not suffered any rib fractures and that her bones were of normal density and not particularly susceptible to fracture.  The ultrasound did not reveal any intracranial bleeding.  During A.S.'s last examination by her primary-care physician on October 13, 2004, appellant had expressed concerned about the child's fussiness, vomiting, and the discomfort that she seemed to experience when she coughed.  On that day, no bruising or tenderness was found.

[3]  The court found that on the day A.S. suffered the fatal brain injuries, appellant "did not know whether [father] had been released from the Nobles County Jail."  Evidence at the TPR hearing indicated that at 10:48 a.m. on October 29, one day after A.S. had been admitted to the hospital, appellant left a message for father's sister saying, "Hey Linda, it's [appellant] and I just wanted to let you know that [A.S.]'s over here in the hospital and she's not doing very well. . . . [S]he might even die so . . . I don't know if . . . been able to know if [father] got out of jail yesterday or not."