In the Matter of the Welfare of the Child of: M.P., Parent.

In the Matter of the Welfare of the Child of: M.P., Parent. A05-2511, Court of Appeals Unpublished, August 15, 2006.

This opinion will be unpublished and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

A05-2511

In the Matter of the Welfare of the Child of:

M.P., Parent.

 

Filed August 15, 2006

Affirmed Ross, Judge

 

Hennepin County District Court

File Nos. JV-05-2197, 257477

 

 

Leonardo Castro, Hennepin County Chief Public Defender, Barbara S. Isaacman, Assistant Hennepin County Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for appellant)

 

Richard J. Cohen, 190 Midtown Commons, 2334 University Avenue, St. Paul, MN 55114 (for mother)

 

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0501; Mary M. Lynch, Assistant Hennepin County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County DCFS)

 

Shirley A. Reider, 842 Raymond Avenue, Suite 205, St. Paul, MN 55114 (for guardian ad litem)

 

David G. DeSmidt, 3001 Hennepin Avenue South, Suite 309B, Minneapolis, MN 55408 (for child)

 

Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge. U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Appellant M.P. challenges the district court's order terminating his parental rights to his daughter, T.P.  The district court concluded that he is a palpably unfit parent, that T.P. experienced egregious harm in his care, and that termination is in T.P.'s best interests.  M.P. argues on appeal that the district court improperly adopted the county's proposed findings of fact, that the district court abused its discretion in making various evidentiary rulings, and that the record does not support the district court's conclusions.  Finding sufficient factual support in the district court's independent and careful assessment of the evidence presented, we affirm the parental-termination decision on the ground of egregious harm.

FACTS

T.P. was born on December 30, 1991, to M.P. and C.S.  C.S. has another daughter, born December 1988.  M.P. and C.S. separated in 1993.  The girls continued to live with their mother.  M.P. broke contact with T.P. in 1995. 

T.P. then encountered substantial troubles.  Hennepin County Child Protection made a finding of maltreatment against C.S. in June 1998, after she attempted to kill herself and her daughters.  Four years later, a neighbor sexually abused T.P.  After the 2002 sex abuse, T.P. and her sisterthen ages ten and thirteen, and newly in contact with M.P.spent several nights at M.P.'s home with two cousins (the daughters of C.S.'s sister), ages eight and ten.  In December 2002, the two cousins told their stepmother that during evenings at M.P.'s house, M.P. gave the four girls alcohol, showed them a pornographic video, left available to them a videotape of himself having sex with two women, and, after declaring that he is "a sex maniac," showed them a penile simulating sexual device and allowed them to play with it.  The cousins also told their stepmother that T.P. played with and licked the device.  The cousins' stepmother reported these events to police, who contacted county social services.  A social worker interviewed T.P., who denied that M.P. engaged in inappropriate touching.  The social worker interviewed T.P.'s sister, who also denied inappropriate touching but stated that she had smoked marijuana at M.P.'s house, that she had watched a pornographic video that had been taped onto a differently named video, and that T.P. had found the sexual device and was putting it in her mouth.

            The Goodhue County district court issued an order restraining M.P. from harassing C.S., T.P., and T.P.'s sister.  The order included a finding that M.P. had "made sexually suggestive comments to [T.P.'s sister] and allowed pornographic materials to be viewed by minor children."  The order also prohibited M.P. from "expos[ing] the children to any sexual material or controlled substances or paraphernalia." 

            C.S. was evicted from her home in June 2003.  As a result, she arranged for T.P. to live with M.P. for the 2003-04 school year.  M.P. enrolled T.P. in school and obtained medical insurance for her.  Between June and October, C.S. tried twice to remove T.P. from M.P.'s care.  On October 13, C.S. removed T.P. from school with the assistance of local police after filing a police report alleging that M.P. was violating a custody order.

            On October 17, 2003, the county filed a petition to have T.P. declared a child in need of protection or services (CHIPS).  The petition alleged that C.S. has a history of mental illness, and it asserted that T.P. had been diagnosed with attention deficit hyperactivity disorder and was receiving special education services for developmental and cognitive delays.  The petition recommended that custody be transferred to the county but that T.P. continue her placement with M.P.  C.S. and M.P. both admitted the allegations in the CHIPS petition and agreed with the county's recommended disposition.  On October 31, 2003, the district court adjudicated T.P. a child in need of protection or services and implemented the county's custody and placement recommendations. 

            On April 22, 2004, the county reported to the district court that T.P. had adapted well to living with M.P. and was doing well in school.  The report recommended that T.P.'s legal and physical custody be transferred to M.P.  On May 11, 2004, the district court awarded M.P. sole legal and physical custody of T.P. and dismissed the CHIPS petition.

            In August 2004, T.P.'s cousinsthe same cousins involved in the 2002 sleepover incidentstold their therapist that T.P. had informed them that she sleeps in the same bed as M.P. and that M.P. has touched her sexually.  The cousins also reported that M.P. had forced T.P. to watch pornographic movies and that, on a recent visit, they had seen M.P. go into the bathroom while T.P. was bathing to "wash" her.  The therapist reported these allegations to the county, which investigated by interviewing both T.P. and M.P.  In T.P.'s interview, conducted in her home while M.P. was in another room, T.P. denied that M.P. touched her sexually or bathed her.  M.P. denied any sexual contact with T.P.  He stated that his wife and her family were harassing him by falsely accusing him, and he accused the cousins of lying.

            In January or February 2005, T.P. told her teachers that in December 2004, she had touched a student's penis with her hand and lips.  In March 2005, the school social worker met with M.P. to discuss T.P.'s sexually inappropriate behavior.  The social worker recommended that T.P. attend therapy "to help [her] understand boundaries and help with understanding the abuse that [she] has experienced."  The county reported that "[M.P.] was not open to the recommendation nor did he follow through." 

            On May 3, 2005, T.P. reported to the school social worker that M.P. had recently "touched her down there" and put his mouth on her "privates."  The school contacted child protection staff.  When T.P. was absent from school on May 4, child protection  staff contacted the police, who took T.P. to St. Joseph's Home for Children. 

            T.P. was interviewed the following day at CornerHouse, an interagency child-abuse evaluation and training center.  T.P. reported that M.P. came into her room while she was watching television and removed all his clothes.  T.P. also alleged the following about M.P.: he took off T.P.'s clothes; he touched her breasts with his mouth over her clothes; he licked her genitals; he touched the skin of her breast with his hand; this touching occurred more than once in their current and previous apartments; and she had told her cousin, teacher, and social worker about the touching "because she wanted [it] to stop."  The evaluator concluded that "[r]esults of the interview appear to indicate that abuse occurred." 

            Child Protection Services made a maltreatment finding concerning T.P. on May 6, 2005.  On May 9, the county filed a petition seeking to have T.P. declared a child in need of protection or services.  Because the county determined that the conduct constituted egregious harm to a child, it treated the case as a permanency matter from the time the CHIPS petition was filed, meaning that the county could file a petition to terminate M.P.'s and C.S.'s parental rights before the district court made a determination that T.P. was a child in need of protection or services.  The same day, after an emergency protective-care hearing, the district court transferred custody of T.P. to the county and ordered that she be placed out of home.  It also ordered an out-of-home placement plan for M.P. and C.S.  M.P.'s voluntary case plan included a psychological evaluation, a psychosexual assessment, a parenting program, and urinanalyses.

            M.P. did not demonstrate a great deal of cooperation.  He failed to return phone calls from his caseworker for at least two weeks and missed at least one scheduled appointment before he finally met with the caseworker on June 22, 2005.  He then denied the sexual-abuse allegations, expressed anger that the child-protection case was opened, and he blamed C.S. and her family for manipulating T.P. and encouraging her to make false allegations.  He refused to participate in a psychosexual assessment.  M.P. did not return phone calls from his case worker for one month after the June 22 meeting.  He also failed to sign authorizations to permit T.P. to receive a psychosexual evaluation, requiring the county to obtain the authorizations from the court.

            Despite M.P.'s lack of assistance, T.P. underwent a psychosexual evaluation.  In it, she reported that M.P. had touched her "private parts" many times while she was living with him and that she was "too scared of him to tell someone about it."  She indicated that she did not want to have any contact with M.P.

The county filed a petition to terminate M.P.'s and C.S.'s parental rights to T.P.  The petition alleged that M.P. is palpably unfit to be a party to the parent and child relationship and that T.P. has experienced egregious harm in his care.

            A September 1, 2005 Difficulty of Care Assessment Schedule prepared by the Hennepin County Human Services and Public Health Department summarized T.P.'s psychosexual condition:

[T.P.] has been diagnosed with ADHD, Combined Type, and Mild Mental Retardation.  She is extremely vulnerable to abuse as she has been sexually abused at least twice in the past few years.  [T.P.] has a hard time understanding and following social guidelines.  She needs extremely close supervision in order to ensure her safety as well as the safety of others.  [T.P.]'s boundaries often wander from the norm and she has perp'd on others (sexually) . . . .  Sexual boundaries are v[i]rtually non-exist[e]nt.  [T.P.] takes medication for her ADHD symptoms.

 

[T.P.] has an IQ level of 50 (full scale).  She is in a specialized/contained classroom and has several issues regarding inappropriate touch and activity hugging boys, touching boys, performing sexual acts on boys.  The schools struggle to correctly contain and monitor [T.P.], even in this small setting.  [T.P.] reads very little and does not comprehend much.

 

M.P.'s approach went substantially unchanged.  He did not complete the psychosexual evaluation or the psychological evaluation as directed by the case plan.  He did not participate in required urinalyses.  He did not use the referrals offered for parenting and sexual-perpetrators treatment.  He told his case worker that he, and not T.P., was the victim, and he characterized the referrals as "garbage."  M.P. refused to participate in sexual-perpetrators treatment.  As of the start of trial, M.P.'s compliance with the May 9 case plan was limited to initial (but undocumented) contacts with the parenting program and only beginning the psychological evaluation.

            The matter proceeded to trial only as to M.P. after the district court dismissed the termination of parental rights petition regarding C.S.  The parties stipulated to the admission of 51 exhibits.  M.P., his case worker, and the guardian ad litem (GAL) testified.  M.P. denied that he had sexually abused T.P.  He testified that T.P. frequently lies about having sex.  He claimed that he loves T.P. and would not hurt her.  He asserted that it was T.P.'s sister who had shown T.P. pornographic videos.  The GAL testified that M.P. had told her that he refused to get therapy for T.P. because "nobody should be able to force him to get therapy for his daughter."  She recommended termination of M.P.'s parental rights.

            The district court received the parties' proposed findings of fact in lieu of closing arguments.  The court announced that it was adopting the county's proposed findings "because they accurately mirror my reading of the exhibits as well as the testimony."  The court then made several additional findings from the bench, including that M.P. had sexually abused T.P., that it credited the CornerHouse video and other evidence documenting the abuse, and that it disbelieved M.P.'s testimony.  The court directed the county to incorporate these additional findings and to submit an amended proposed order, which the court signed.

In the order, the district court found that the record contradicted M.P.'s descriptions of T.P. and his assertions that he would not hurt her.  The court found that M.P. sexually abused T.P. over an extended period of time and that he had allowed her to see pornographic material.  The court determined that T.P.'s best interests will be served by terminating M.P.'s parental rights.  It concluded that clear and convincing evidence warrants terminating M.P.'s parental rights because he is palpably unfit to parent T.P. and because T.P. has suffered egregious harm in his care.  This appeal follows.

D E C I S I O N

I

M.P. first argues that the district court violated his procedural due-process rights by adopting verbatim the county's proposed findings, thereby failing to exercise independent review of the facts.  We are not so persuaded.  Although a district court's adoption of a party's proposed order calls into question whether the court independently evaluated the evidence, even a verbatim adoption of a party's proposed findings of fact and conclusions of law is not reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  This court examines the findings to determine whether they are clearly erroneous.  Minn. R. Civ. P. 52.01; In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  A proper termination order includes detailed, specific, and sufficient findings that provide an appellate court with a meaningful opportunity for review.  In re Welfare of M.J.L., 582 N.W.2d 585, 588 n.3 (Minn. App. 1998). 

Because M.P. did not object at trial to the adoption of the county's proposed findings and order, he has waived the issue on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997) (applying Thiele in a termination proceeding).  We observe that even had M.P. preserved this issue, his assertion that the district court did not independently review the record is without merit.  After the county submitted the proposed order, the court made several additional oral findings and instructed the county to resubmit the order as modified by the court.  The record demonstrates that the district court did not adopt the county's proposed findings and order verbatim.

We also disagree with M.P.'s related contention that the district court's findings are unsupported by substantial evidence in the record and with his assertion that the district court failed to independently evaluate the evidence.  M.P. specifically challenges the court's findings that T.P. had reported sexual abuse before May 2005, that he had shown pornographic materials to children, that his testimony was not credible, that he refused to comply with his case plan, and that T.P. lacks "the sophistication [and the] cognitive ability to devise and carry out a plan involving fabricated sexual abuse by [M.P.] to facilitate a placement with her mother."  He maintains that when properly evaluated, the evidence shows that T.P. concocted the allegations of abuse simply to be removed from his home, that C.S.'s family "tried for years to undermine [T.P.'s] placement with [M.P.]," and that T.P. lies and sexualizes non-sexual events.  But we will not reweigh the evidence.  Rather, we acknowledge the district court's broad discretion to evaluate testimonial and documentary evidence "precisely because [it is] in the best position to determine which witnesses are credible and to weigh the evidence."  In re Santoro, 594 N.W.2d 174, 181 n.4 (Minn. 1999).  Our review establishes that the findings that M.P. challenges have substantial support in the documentary and testimonial record, and they do not reflect the district court's failure to independently evaluate the evidence.

II

M.P. next argues that the district court based its decision on inadmissible hearsayspecifically, T.P.'s documented statements made to social workers, teachers, and the CornerHouse interviewer.  M.P. did not raise this issue at trial or in a posttrial motion, and has therefore waived it on appeal.  See Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) (holding that evidentiary rulings not challenged as erroneous in a posttrial motion are not reviewable on appeal).  We note additionally that M.P. not only failed to object to the evidence at or following trial, he affirmatively consented to its admission.  At the beginning of trial the court announced, "The attorneys and I met to discuss exhibits and how we could best use our time during this trial, and I believe that there is agreement with regard to the exhibits."  The parties then offered all the exhibits at once.  In his brief, M.P. refers to the exhibits as "stipulated."  He did not object to any of the challenged evidence during the trialdespite making other objectionsor by a posttrial motion. 

M.P. acknowledges that he did not properly preserve this issue for appeal, but he argues that he may nonetheless raise it now under the "fundamental error" rule.  That rule "provides that error not objected to at trial may nevertheless be assigned in a motion for a new trial, but only if ‘the error in the instructions [was] with respect to fundamental law or controlling principle.'"  Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 57 n.2 (Minn. 1993) (quoting Minn. R. Civ. P. 51) (emphasis added; alteration in original).  As indicated by Tyroll, the fundamental-error rule applies to jury instructions.  Id.  The rule also requires that the error be assigned in a new-trial motion.  Id.  M.P. cites no persuasive authority to support his urging for us to apply the fundamental-error rule to permit review of evidentiary rulings that were neither objected to at trial nor assigned as error in a new-trial motion.

III

M.P. argues that the record does not contain clear and convincing evidence supporting the district court's termination of his parental rights.  We cannot agree.  On appeal in a termination proceeding, "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).  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 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); see Minn. Stat. § 260C.301, subd. 1(b) (2004) (listing nine criteria).  In any termination proceeding, "the best interests of the child must be the paramount consideration."  Minn. Stat § 260C.301, subd. 7 (2004).  "[T]he evidence must address conditions that exist at the time of the hearing. . . .  When considering termination of parental rights, the court relies not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotations and citation omitted).  As already discussed, we give "considerable deference" to the district court's decision because of its superior position to assess credibility.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).

Here, the district court identified two statutory bases for terminating M.P.'s parental rights:  (1) that T.P. has experienced egregious harm in M.P.'s care, Minn. Stat. § 260C.301, subd. 1(b)(6), and (2) that M.P. is palpably unfit to be a party to the parent and child relationship, id., subd. 1(b)(4) (2004).  The court also found that termination of M.P.'s parental rights was in T.P.'s best interests.  Id., subd. 7.

A district court may terminate parental rights upon finding egregious harm.  More precisely, termination may result from a finding 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" 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).  It includes "conduct towards a child that constitutes criminal sexual conduct."  Id., subd. 14(10).

That T.P. endured egregious harm is apparent in the district court's findings.  The district court found that M.P. sexually abused T.P. over an extended period of time.  It found that M.P. refused to obtain psychological services for T.P. to address her sexually inappropriate behavior or her previous sexual assault.  It also found that T.P. has many special needs, that M.P. refused to comply with the case plan, and that he continues to deny any abuse.  With respect to M.P.'s allegations that T.P. fabricated the sexual assault, the court found that T.P. is incapable of devising and carrying out a plan to fabricate sexual abuse to facilitate a placement with her mother.  It concluded that M.P. does not understand T.P.'s special needs and will be unable to meet her needs in the future.  These and related key findings are substantiated by references to the stipulated exhibits (primarily reflecting the results of investigations and interviews conducted by police and social service agencies) and by the trial testimony.

M.P. raises various unavailing challenges to these findings.  He argues that T.P. was encouraged by C.S. and her family to fabricate stories of sexual abuse by him.  He notes that T.P. was obsessed with talk of sexual activities and invents stories about sex, and he contends that the statements T.P. made in her CornerHouse interview were the result of the CornerHouse "interrogator . . . using leading questions, which she repeated over and over until she got the responses she wanted."  He insists that the "interrogator" exploited the fact that T.P. is "easily manipulated and has an intense desire to please others."  He also claims that "the goal of the [CornerHouse] interrogation was not to get at the truth but merely to ‘get' [M.P.]."  We again refuse to reweigh the evidence and note that these arguments are consistent with the district court's finding that "[M.P.] does not have [the] insight into [T.P.'s] need for protection and services."  M.P.'s continued denial of any abuse and concomitant assertion that T.P., her mother, and the social-services apparatus are conspiring to deprive him of custody supports the district court's finding that M.P. will be unable for the reasonably foreseeable future to care appropriately for T.P.'s special needs.

We conclude that the district court's findings, which are supported by the record by clear and convincing evidence, amply sustain the termination of M.P.'s parental rights to T.P. on the statutory ground of egregious harm.

Because a child's best interests are the paramount consideration in proceedings to terminate parental rights, the district court may not terminate if the record does not also show that termination is in the child's best interests, even if one or more of the statutory prerequisites for termination exist.  Children of R.W., 678 N.W.2d at 55.  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 district court found that termination of M.P.'s parental rights is in T.P.'s best interests because M.P. sexually abused her, because he has refused offered services and is not amenable to treatment, because T.P. would be at risk of immediate harm in his care, and because T.P. should not be required to continue in a legal relationship with her abuser.  We agree, and we reject M.P.'s argument that termination is unnecessary because a no-contact order would have sufficed to separate him from T.P. or that it is against her best interest because T.P. is "not likely to be adopted" in light of her developmental disabilities.  We also reject his contention that "there was no good reason to terminate [his] parental rights, other than to punish him for sexually touching his daughter, assuming that he actually did that."  Not only does "sexually touching his daughter" in the prolonged abuse here constitute sufficient "good reason" to terminate his parental rights, the district court did not rely on that finding alone to terminate M.P.'s parental rights.  The district court properly determined that termination was in T.P.'s best interests.

Because we affirm the termination on egregious harm, we do not address the alternative ground for termination cited by the district court, palpable unfitness.

Affirmed.