In the Matter of the Welfare of the Child of J.P. and M.G., Parents.

In the Matter of the Welfare of the Child of J.P. and M.G., Parents. A06-585, Court of Appeals Unpublished, November 14, 2006.

This opinion will be unpublished and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

A06-585

 

In the Matter of the Welfare of the Child of

J.P. and M.G., Parents

 

Filed November 14, 2006

Reversed and Remanded

Ross, Judge

 

Hennepin County District Court

File No. J3-03-71753

 

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant M.G.)

 

Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent J.P.)

 

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487; and

 

Julie K. Harris, Assistant County Attorney, 525 Portland Avenue South, Suite 1200, Minneapolis, MN 55415 (for respondent Hennepin County Department of Children and Family Services)

 

Michael Biglow, 401 Second Avenue South, Suite 839, Minneapolis, MN 55402 (for guardian ad litem James Gray)

 

Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

M.G., the father of 11-year-old T.P., appeals from the district court's order permanently transferring the physical and legal custody of T.P. to J.P., the child's mother, for M.G.'s failure to comply with his case plan after T.P. was adjudicated a child in need of protection or services (CHIPS).  M.G. argues that the evidence does not support the district court's factual findings and that those findings do not satisfy the statutory requirements authorizing the transfer of legal custody.  Because the district court erred by focusing on M.G.'s denial of the allegation that gave rise to the CHIPS petition as clear and convincing evidence that he failed to substantially comply with his case plan and failed to use the services offered to correct the condition that led to T.P.'s out-of-home placement, we reverse and remand for further proceedings.

F A C T S

CHIPS Petition and Disposition

The Hennepin County Department of Children and Family Services filed a petition in December 2003 to have then-eight-year-old T.P. adjudicated a child in need of protection or services, alleging that T.P. was in a dangerous environment.  The petition followed a criminal investigation of T.P.'s father, M.G., concerning allegations that he had inappropriate sexual contact with an 11-year-old friend of T.P. by touching her buttocks under her clothing during a sleepover at M.G.'s apartment.  The state filed no criminal charges against M.G. for the alleged contact, and M.G. has consistently denied touching the girl.

M.G. and J.P., T.P.'s mother, never married, but they had joint legal custody of T.P.  M.G. originally had sole physical custody, but, based on the alleged improper touching of the other child, J.P. obtained an order granting her temporary custody of T.P.  The district court later issued an order placing T.P. in J.P.'s care under the county's supervision.

The district court considered the county's petition, disbelieved M.G.'s account, and, in May 2004, adjudicated T.P. as a child in need of protection or services based on the finding that M.G. inappropriately touched T.P.'s friend.  In June 2004, the court found that out-of-home placement is in T.P.'s best interests and ordered M.G. to fully comply with and successfully complete a case plan.  The court provided that T.P. "shall be returned to her father's care in the event the parent has substantially complied with the case plan and the conditions which led to the placement have been corrected."

M.G.'s court-ordered case plan required him to successfully complete a psychosexual assessment, a psychological evaluation with projective testing, random urinalyses to test for drugs and alcohol, and a chemical-health assessment including compliance with any resulting recommendations.  The plan allowed M.G. regular supervised visits with T.P. and required that he participate in joint therapy with T.P. to address their relational boundary issues after M.G. completed the psychosexual and psychological evaluations.  Whether the record necessarily leads to the conclusion that M.G. substantially complied with that case plan is the central issue of this appeal.

M.G.'s Efforts to Comply with Case Plan

From May 2004 through June 2005, M.G.'s actions were consistent with the terms of his case plan.  In May 2004, a social worker with the Center for Child Abuse Prevention and Treatment completed a parenting assessment of M.G. based on interviews with M.G. and T.P., observations of interaction between them, and a review of collateral documents.  The social worker concluded that M.G. is very involved with T.P.'s care and is consistently concerned about her welfare.  She also found that M.G. and T.P. are affectionate with and attached to each other and that T.P. showed positive physical, emotional, and academic growth and development while in his care.  The report noted concerns about M.G.'s boundaries and physical contact with T.P., which were described as "role confusion," and it recommended joint and individual corrective therapy.

M.G. next completed the chemical-health assessment required by the case plan.  The evaluator recommended that M.G. continue attending alcoholic-support-group meetings, but did not believe M.G. abused or was dependent on chemicals.  The evaluator considered M.G. to have a risk of chemical involvement, citing situational stress from the proceedings as contributing to the risk.

M.G. also completed a psychosexual evaluation in June and July with a psychologist.  The psychologist recommended that M.G. also take a polygraph examination regarding the specific allegation of inappropriate sexual contact that led to the custody change and a plethysmograph exam to determine whether M.G. is sexually aroused by juvenile females.  The psychologist anticipated that the test results would indicate what, if any, sex-offender treatment is warranted.  Although M.G.'s case plan did not require him to follow the recommendations of his psychosexual evaluation, M.G. submitted to both the polygraph and plethysmograph examinations.

The polygraph results indicated no deception by M.G., and the test administrator opined that M.G. responded truthfully when he denied the alleged inappropriate sexual contact.  The plethysmograph examination supported the polygraph results; it indicated M.G.'s possible arousal by teen females but at a nondeviant level consistent with heterosexual males whose primary sexual interest is in adult females.  The plethysmograph administrator found that the results were "inconclusive as to their significance."  He also noted that M.G. was cooperative and forthright in the evaluation, indicating no attempt to produce misleading results.  The administrator concluded that these results and the circumstances rendered unclear whether any sex-offender therapy is warranted for M.G.

M.G. participated in a psychological evaluation in June, July, and August 2004.  The psychologist observed that M.G. cares deeply about T.P.  She perceived M.G. as defensive and anxious, and she preliminarily diagnosed him with an unspecified personality disorder.  But she recommended that M.G. seek a confirmatory opinion about this diagnosis.  She also recommended therapy to help M.G. address communication and boundaries in his relationship with T.P.

Although M.G.'s case plan did not require him to follow the recommendations of his psychological evaluation, M.G. submitted to a psychiatric evaluation in September 2004.  The evaluating psychiatrist observed that M.G. showed appropriate emotion when discussing his forced separation from T.P. and the allegations against him.  He concluded that, although some of M.G.'s evaluators observed that he appeared defensive, this behavior was a normal reaction to M.G.'s circumstances.  The psychiatrist diagnosed M.G. with adjustment disorder, anxiety, and depression, but he attributed these diagnoses to the stress related to the custody challenge and sexual misconduct allegations.  The psychiatrist ruled out the psychologist's diagnosis of personality disorder, and he found no evidence of any psychopathology that would prevent M.G. from being a responsible parent with custody of T.P.

In addition to the evaluations and examinations, M.G. met other aspects of his case plan.  He never missed weekly visits with T.P.  M.G. first progressed from supervised to unsupervised visits and then to overnight, weekend visits.  None of the random urinalyses indicated that M.G. had ingested any drugs or alcohol.  M.G. attended alcoholic-support-group meetings, although inconsistently.  In June 2005, M.G. and T.P. successfully completed a 13-session psycho-educational program designed to teach appropriate boundaries between parent and child.  At M.G.'s request, the court ordered the program incorporated into M.G.'s case plan.  Throughout this entire period, M.G. maintained his innocence regarding the alleged touching of T.P.'s friend.

Permanency Petition and Trial

In July 2004, less than one month after the court established M.G.'s case plan, the county filed a petition to permanently transfer the physical and legal custody of T.P. to J.P.  The county alleged that the transfer was in T.P.'s best interests, that despite the county's reasonable efforts to facilitate reunification, M.G. had failed to correct the conditions that led to the adjudication that T.P. needed protection or services, and that M.G. had failed to complete the court-ordered case plan.

At trial, the county claimed that it filed the permanency petition so soon after the initial adjudication because of an internal policy to file permanency petitions within four-and-one-half months after the initial petition.  The child-protection case worker opined that M.G. failed to complete his case plan and cooperate with the services offered because M.G. never admitted that he had inappropriately touched his accuser, so that M.G. only completed the case plan "evaluatively" but not "substantively."

The district court ordered that legal and physical custody of T.P. be permanently transferred to J.P.  The court found that despite M.G.'s participation in and completion of the various components of the case plan with its evaluations and assessments, M.G. "failed to substantially comply with the Court-ordered case plan," that M.G. "did not sufficiently utilize the services offered to correct the conditions which led to the out-of-home placement," that M.G. had "not adequately addressed his own boundary, emotional, and personality issues," and that M.G. has "refused to accept any form of responsibility for past behavior and actions."  The court therefore found that clear and convincing evidence supported transferring legal and physical custody of T.P. to J.P.  This appeal follows.

D E C I S I O N

M.G. challenges the district court's decision to transfer legal and physical custody of T.P. to J.P.  Because transferring legal and physical custody constitutes permanent placement, the county is required to prove the allegations in its petition for transfer of custody by clear and convincing evidence.    In re Welfare of A.R.G.€‘B., 551 N.W.2d 256, 261 (Minn. App. 1996).  Clear and convincing evidence is unequivocal and uncontradicted, and it is intrinsically probable and credible.  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  The district court must assess the evidence within the framework of the statutory criteria regarding a permanent-placement order.  The statutory criteria are

(1)       how the child's best interests are served by the order;

(2)       the nature and extent of the responsible social service agency's reasonable efforts . . . to reunify the child with the parent or parents;

(3)       the parent's . . . efforts and ability to use services to correct the conditions which led to the out-of-home placement; and

(4)       whether the conditions which led to the out-of-home placement have been corrected so that the child can return home.

 

Minn. Stat. § 260C.201, subd. 11(h) (2004).

M.G. contends that clear and convincing evidence does not establish that he failed to use the services offered by the county to correct the conditions that led to T.P.'s out-of-home placement and that the district court therefore erroneously transferred custody of T.P. to J.P.  We review a permanent-placement order to determine whether the district court's findings address the statutory criteria and are supported by substantial evidence and are not clearly erroneous.  A.R.G.€‘B., 551 N.W.2d at 261.  A finding is clearly erroneous if we are "left with the definite and firm conviction that a mistake has been made."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).

The district court found that M.G. failed to substantially comply with the court-ordered case plan and failed to sufficiently utilize the county's offered services.  M.G. argues that the district court based its findings essentially on his refusal to admit to the alleged sexual misconduct.  Our careful review of the record convinces us that this finding rests on M.G.'s refusal to admit to the alleged inappropriate sexual contact with T.P.'s friend.  We agree that although the district court addressed each of the statutory criteria, the court relied upon improper evidence in concluding that M.G. failed to substantially comply with the court-ordered case plan.

There are two problems with transferring custody based on M.G.'s refusal to admit that he improperly touched T.P.'s friend.  First, the court-ordered case plan did not require M.G. to admit that sexual contact occurred.  The district court ordered M.G. to complete a psychosexual assessment.  He did.  It required him to complete a psychological evaluation.  Again, he did.  The court required M.G. to provide urinalyses at the unscheduled request of child-protection officials.  Although the state's petition for transferring custody alleges that two of M.G.'s urine specimens in May 2004 had low creatinine levels, which it notes is "suggestive of" dilution, the court never made a finding of intentional or actual dilution.  Additionally, none of M.G.'s specimens during the period tested positive for drugs or alcohol.  The district court ordered M.G. to complete a chemical-health assessment and follow its recommendations for services.  M.G. completed this assessment, which recommended that he regularly attend Alcoholics Anonymous meetings.  Although M.G. only irregularly attended meetings, he did participate in the program, and, as noted, he never tested positive for drugs or alcohol.  The court ordered M.G. to regularly visit with T.P. in a supervised setting.  The record demonstrates that M.G.'s visits were regular, positive, and eventually unsupervised.  The district court ordered M.G. to participate in therapy with T.P. to address "their relationship issues."  Again, M.G. complied.

Bob Hyland, the child-protection case worker, testified that M.G. successfully completed each of the case plan's components.  Hyland testified that M.G. participated in and successfully completed a psychosexual assessment, participated and successfully completed a psychological evaluation, provided urinalyses, completed a chemical-dependency assessment, visited T.P. regularly, and participated in therapy to address their relationship issues.  Although Hyland also asserted that M.G. did not comply with the recommendations of individual therapy made by the psychologist, following recommendations of the psychological evaluation was not a stated condition of the case plan.  Hyland opined that the "whole purpose of the evaluation was to come to a point to acknowledge what happened and then to acknowledge the factors that led up to the sexual abuse."  Based on this observation, Hyland concluded that because M.G. did not admit that he touched T.P.'s friend, M.G. completed the case plan only "evaluatively" but not "substantively."  In other words, despite M.G.'s cooperation and participation in each element of the case plan, according to Hyland, M.G.'s refusal to admit that he inappropriately touched T.P.'s friend made it impossible for him to complete the plan "substantively."

We are unpersuaded by the attempted distinction between an "evaluative" and a "substantive" completion of the case plan.  The court-ordered case plan directed that certain "evaluations" and "assessments" occur, and, except for not admitting the act that formed the basis of the initial removal, the record suggests that M.G. cooperated with and completed each of them.  In this case, completing the evaluations "evaluatively" also "substantively" complied with the court's order.

The second concern with focusing on M.G.'s failure to admit to the touching as a condition of custody is more fundamental.  Affirming the district court would require this court to condone the implicit requirement that M.G. either admit to a criminal offense or permanently lose custody of his child.  But "the state may not compel therapy treatment that would require [an] appellant[] to incriminate [himself]."  In re Welfare of J.W., 415 N.W.2d 879, 883 (Minn. 1987) (holding that noncompliance with order requiring appellant-parents to divulge details of nephew's death to psychologists cannot be used as grounds to terminate parental rights).  In our view, the district court placed undue emphasis on M.G.'s denial that the alleged sexual contact occurred, by highlighting that "[i]n spite of the CHIPS Finding [M.G.] continues to deny inappropriate sexual behavior," that M.G. "does not admit responsibility regarding the sleepover in late 2003," and that "[i]nstead of taking advantage of the services provided [M.G.] continues to disagree with the [c]ourt's [f]indings" regarding the alleged sexual contact.  Although the district court acted well within its discretion to believe the child's accusation rather than M.G.'s denial, it seems to have inadvertently conditioned custody on an admission, and this unmet condition led to the court's determination that M.G. failed to substantially comply with the case plan.  This imposition of an unstated and improper condition, and the court's reliance on it, was error.  See J.W., 415 N.W.2d at 883 (finding imposition of condition requiring parents to potentially incriminate themselves improper); see also In re Welfare of J.G.W., 433 N.W.2d 885, 886 (Minn. 1989) (holding that district court violated father's privilege against self-incrimination by finding no substantial compliance with case plan because father refused to explain sexual abuse of children).

We recognize that the "privilege [against self-incrimination] does not protect the parent from the consequences of any failure to succeed in a court-ordered treatment plan."  J.G.W., 433 N.W.2d at 886.  But the record does not indicate that M.G. did not otherwise successfully complete and substantially comply with his court-ordered case plan.  And it is especially troubling to focus on M.G.'s denial in this case in light of the information the state gained during the course of M.G.'s evaluations.  M.G. participated in a psychosexual evaluation and followed with a polygraph and a plethysmograph examination, though not required to do so by his case plan.  If these examinations had determined that M.G. had deviant sexual tendencies, then, as noted in the psychosexual evaluation, completing specific sex-offender treatment may have been one of the ways that adhering to the case plan would correct the condition that led to the out-of-home placement.  But the polygraph results revealed no indication of deception when M.G. denied that any inappropriate sexual contact occurred,[1] and the plethysmograph results did not substantiate M.G.'s alleged aberrant sexual arousal.  As a result, the state could fashion no suitable treatment.  That M.G. was cooperative, forthright in his responses, and willingly participated in these evaluations adds to our determination that his denial cannot form the basis that he failed to substantively complete the plan.

The district court's June 2004 order demanded that M.G. "comply with the case plan" and promised that "[t]he child shall be returned to her father's care in the event the parent has substantially complied with the case plan and the conditions which led to the placement have been corrected."  The district court later ordered the permanent transfer of custody, not because it found that M.G. had improperly touched T.P.'s friend, but primarily because of M.G.'s continued denial.  Whether the touching itself could support transfer is therefore not an issue in this appeal.  Because M.G.'s denial is not a permissible basis to determine noncompliance, the denial should not have been treated as clear and convincing evidence that M.G. failed to substantially comply with his case plan and that he failed to utilize the services offered to correct the condition that led to the out-of-home placement.  Because the district court significantly relied on M.G.'s denial in support of its decision, we reverse the permanency order and remand for further proceedings to determine permanent custody of T.P. without reliance on the denial.

Reversed and remanded.

[1]  We do not suggest that the polygraph results are evidence regarding whether contact occurred.  Polygraph results are inadmissible at trial in Minnesota.  State v. Opsahl, 513 N.W.2d 249, 253 (Minn. 1994).  And despite M.G.'s consistent denial, his appeal does not specifically challenge the district court's original finding that he touched T.P.'s friend as alleged.  But the polygraph examination was fashioned and recommended by the county following M.G.'s psychosexual evaluation, and we must conclude that the county considered the results relevant to whether M.G. would be suitable for sex-offender treatment.