In the Matter of the Welfare of the Child of: J.M.B. and J.J.C., Parents.

In the Matter of the Welfare of the Child of: J.M.B. and J.J.C., Parents. A07-1206, Court of Appeals Unpublished Decision, December 24, 2007.

This opinion will be unpublished and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

A07-1206

 

In the Matter of the Welfare of the Child of:
J.M.B. and J.J.C.,
Parents.

 

Filed December 24, 2007

Affirmed

Lansing, Judge

Concurring specially, Ross, Judge

 

Itasca County District Court

File No. 31-JV-06-4400

 

Erica Austad, PO Box 130, Grand Rapids, MN 55744 (for appellant J.J.C.)

 

John J. Muhar, Itasca County Attorney, Michael J. Haig, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent County of Itasca)

 

Kimberly A. Wimmer, Wimmer law Office, P.A., 401 Main Street, P.O. Box 151, Littlefork, MN 56653 (for guardian at litem)

 

Gayle Lovejoy, 204 Northeast Third Street, Grand Rapids, MN 55744 (for J.M.B.)

 

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

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court terminated JJC's parental rights in April 2007, finding that clear-and-convincing evidence established two statutory criteria for termination and that termination was in the best interests of the child.  On appeal, JJC argues that the district court's decision is not supported by sufficient evidence and that it erred when it relieved the county from making reasonable efforts to reunify JJC with his child.  Because the district court's findings are supported by substantial evidence, the court's conclusions are not clearly erroneous, and the district court properly applied statutory criteria when it relieved the county from making reasonable efforts to reunify JJC with his child, we affirm.

F A C T S

            JAC was born in July 2006.  JAC's mother, JMB, was eighteen at the time and JAC's father, JJC, was twenty.  JMB and JJC, who have never been married, moved into a two-bedroom apartment with JMB's sister on November 1, 2006.  On November 5, 2006, JAC was taken to a nearby hospital to get treatment for his injured arm.  The injury led the county to investigate JJC and JMB's fitness as parents and ultimately to petition for the termination of parental rights. 

            At trial, JMB's sister and JJC both testified about the events leading up to the hospital trip.  JJC stated that he and JMB's sister were the only people other than JAC at the apartment that morning.  JJC heard JAC whining and went into the bedroom to check on him.  JJC stated that he put JAC on the bed, unwrapped JAC from a blanket, and slid JAC's arms up to take off his one-piece outfit.  JJC testified that, although he lifted JAC's arms in a gentle, careful way, JAC started to scream and that JJC then called out for JMB's sister to come and look at JAC's arm.  JMB's sister testified that she was in the kitchen when she heard JAC screaming and JJC called out to tell her that there was something wrong with the baby's arm.  When she went to the bedroom to look at JAC's arm, she observed he had stopped moving it.  When she reached out and moved the arm herself, JAC started crying again, and she felt the arm pop.  JMB's sister and JJC then drove JAC to the hospital.

            When JAC arrived at the hospital, a doctor examined him and suspected that his right arm was broken.  An x-ray confirmed that JAC's right humerus had been recently fractured and also showed that JAC had experienced two previous fractures, one in the left humerus and one in the left femur.  A report showed that the three fractures were rotational injuries, called "spiral" fractures, which are uncommon in very young infants.  The doctor believed JAC may have been abused and contacted law enforcement. 

JAC was then transferred to a different hospital.  Upon admission, the examining doctor made several observations, including a notation that the baby had a "good suck," a finding that is inconsistent with mouth injuries such as ulcerations or lacerations.  Sometime later that day, however, a doctor observed two lacerations or ulcerations in the baby's mouth that likely occurred "within a few days' time."  The doctor testified that he could not say exactly what caused the mouth injuries but that it was highly unlikely that the injuries were self-inflicted. 

Additionally, a pediatric orthopedic surgeon at the second hospital examined JAC's x-rays and observed that JAC may suffer from osteogenesis imperfecta (OI), which is sometimes referred to as brittle bone disease.  The surgeon however noted that JAC's bones were close to the normal range and did not appear to have characteristics of the bones of children with severe OI.  The surgeon testified that the right-humerus fracture JAC suffered on November 5 would have been a very painful event, a five on a scale from one to five.

            On the morning of November 6, 2006, a police officer and a social worker began investigating JAC's case.  When they returned to the police department after conducting interviews, JJC confronted them in the parking lot.  JJC began yelling obscenities at the two investigators and told them to stop interrogating his girlfriend JMB.  JJC then returned to his car, slammed the door, and left the parking lot.  JJC's employer testified that, on the morning of November 6, JJC threatened to shoot or hurt the people investigating JAC's case.  Based on these threats, JJC was discharged from his job. 

As a result of the investigators' findings, the county filed a petition to terminate the parental rights of JMB and JJC to JAC.  JAC was about three-and-a-half months old at the time the petition was filed on November 8, 2006.  Shortly thereafter, the district court held an emergency protective hearing and placed JAC in foster care where JAC remained throughout the trial.  In December 2006 the county brought a motion in district court to relieve the county from making reasonable efforts to reunify the child with JJC.  The district court granted the motion.  The county provided an out-of-home placement plan for JMB's reunification with JAC.

After genetic testing in January 2007, a doctor concluded that JAC had OI.  Expert witnesses testified that OI causes a person to be more susceptible to fractures, but does not, in itself, cause fractures.  Some people who have OI exhibit certain clinical features such as a triangular face or blue sclerae, but JAC does not exhibit these features.  The disease ranges from mild to severe, based on the amount of trauma that is necessary to cause a fracture.  OI can be so severe that a child might suffer a fracture just from being picked up.  The severity of OI cannot be determined by examining a person's clinical features or the results of genetic testing.  Rather, severity can only be measured by observing the patient over time.  The pediatric orthopedic surgeon that examined JAC's x-rays testified that an infant with a very mild case of OI would not suffer injury through normal interactions.  And another pediatrician who examined JAC testified that if JAC suffered no new fractures while in foster care, it would tend to indicate that JAC does not get fractures from routine child care.

            Since JAC was placed in foster care, he has suffered no new fractures.  JAC's foster parent testified at trial that, although she was careful with JAC's arm when it was in a cast, she did not otherwise give JAC special treatment because of his OI.  She also testified that JAC sometimes spends up to forty minutes pushing off the floor and bouncing vigorously in his jumper.  After examining JAC in March 2007 when he was eight months old, a doctor reported that the absence of fractures during the foster parent's care caused significant concern for JAC's safety in his initial environment and that child abuse remained the "primary diagnostic consideration" for the fractures.

            At trial, the county presented testimony of JJC's interaction with JAC.  Witnesses testified that JJC yelled and screamed at JAC, said that he was sick of the baby, and called the baby names that included "the ‘F' word."  JMB testified that JJC said that he never should have had the baby.  JMB's mother testified that JJC yells at the baby when he cries, feels that the baby should not cry once he has been fed, and at least once took JAC outside without dressing him in winter clothing even though JJC had dressed himself in a jacket and a hat.  She also stated that she ordered JJC to leave her house after he yelled obscenities and generally ranted and raved because, he said, "the baby just F'ing puked" on him. 

            Witnesses also testified that JJC picked JAC up with a fast jerk and did not attempt to support his head or neck.  JJC had been observed swinging and holding JAC upside down and handling JAC roughly when caring for him.  Additionally, JMB's sister testified that JJC left the baby unattended with a bottle in his mouth, thereby creating a choking hazard.  When people have expressed concern about the way JJC treated the baby, JJC has ignored their advice and at least once responded, "Don't tell me how to raise my child."

            At trial, JJC admitted that he uses marijuana, despite being on probation that requires abstention for a crime he committed when he was 15.  Other witnesses also testified that they observed JJC using marijuana and becoming intoxicated from alcohol.

            JJC testified that he loves JAC.  He stated that he was willing to do anything to have a relationship with his son, including taking anger-management classes and parenting classes.  Witnesses testified that they had observed interaction between JJC and JAC that was tender and loving.  JMB testified that she observed JJC applying parenting skills that they had learned from an in-home skills worker. 

            Based on all of the testimony, the district court determined that the county proved by clear-and-convincing evidence that JAC experienced egregious harm in JJC's care and that JJC is a palpably unfit parent.  Before trial the county and JMB resolved the proceeding as it related to JMB, and this appeal involves only the termination of JJC's parental rights. 

D E C I S I O N

            In an appeal from an order terminating parental rights, we review whether the district court has identified a statutory basis for termination; made findings supported by substantial evidence; and made conclusions that are not clearly erroneous.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  

            When determining whether to terminate parental rights, "the best interests of the child must be the paramount consideration."  Minn. Stat. § 260C.301, subd. 7 (2006).  Therefore, in a termination proceeding, the district court "must consider the best interests of the child and address that consideration in its findings of fact and conclusions of law."  In re Termination of Parental rights of Tanghe, 672 N.W.2d 623, 624 (Minn. App. 2003).  In considering the child's best interests, the district court must balance the preservation of the parent-child relationship against any competing interests of the child.  In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).  But, the absence of statements noting the importance of the parent-child relationship is not a basis for reversal if the court explains why terminating parental rights is in the child's best interests.  See Minn. Stat. § 260C.301, subd. 7 (stating only that "best interests of the child must be the paramount consideration").

            A reviewing court "will closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing."  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); see also In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (noting that supreme court has used terms "substantial evidence" and "clear-and-convincing evidence" interchangeably).  A particularly searching review is warranted when the district court adopts a party's proposed findings and conclusions verbatim.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). 

            The clear-and-convincing standard "requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt."  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).  The standard is satisfied if "the truth of the facts asserted is ‘highly probable.'"  Id.  When examining the district court's application of the clear-and-convincing standard, however, this court accords the district court's findings a great measure of deference because the district court has a superior opportunity to assess the credibility of witnesses.  L.A.F., 554 N.W.2d at 396.

            JJC argues that the district court erred when it terminated his parental rights.  Our review of the record, however, confirms that the district court's findings are supported by evidence which the district court could determine to clearly and convincingly meet the statutory criteria for termination, and we find no legal error in the district court's conclusions.  Consequently, we affirm the district court's decision to terminate JJC's parental rights under two independently sufficient statutory criteria:  under Minn. Stat. § 260C.301, subd. 1(b)(6) (2006) because JAC experienced egregious harm in JJC's care and under Minn. Stat. § 260C.301, subd. 1(b)(4) (2006) because JJC is palpably unfit as a parent.

 

I

            Under Minn. Stat. § 260C.301, subd. 1(b)(6), a court may terminate parental rights if the court finds "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 . . . ."  The term "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 (2006).  Under the plain language of Minn. Stat. § 260C.301, subd. 1(b)(6), the court need not find that the parent intentionally injured the child to terminate parental rights.  See In re Child of Widme, No. C1-99-800, 1999 WL 1140823, *2 (Minn. App. 1999) (holding that under Minn. Stat. § 260.221, subd. 1(b)(6) (1998), now Minn. Stat. § 260C.301, subd. 1(b)(6), it was unnecessary for county to prove that parent intentionally injured child); cf. In re Welfare of A.L.F., 579 N.W.2d 152, 155-56 (Minn. App. 1998) (applying plain language of Minn. Stat. § 260.221, subd. 1(b)(6), and affirming termination of parental rights to child, even though it was child's half-sister who suffered egregious harm).

            The district court made specific findings that JAC suffered egregious harm in JJC's care.  The district court found that JMB's sister was in the kitchen when she heard JAC scream; that JJC summoned her to the bedroom to look at JAC's arm; that she observed that there was something wrong with JAC's arm; that at the hospital the doctor confirmed that the arm was broken; that the doctor also discovered two previous fractures; that at least two of the fractures, including the most recent fracture, were of a spiral nature; that the injuries JAC suffered were extremely painful; that a different doctor observed lacerations in JAC's mouth that were not likely self-inflicted; that a doctor concluded that the baby has OI; that OI is a continuum disease that can range from very mild to very severe; that the best guide to determine the severity of the OI is to follow the child over time and see how much trauma causes a fracture; that the foster parent took no special precautions with JAC; that JAC has experienced no additional fractures since being placed in the foster parent's care; that JAC uses his jumper vigorously; that after JAC suffered no new fractures in the foster parent's care a doctor reported that child abuse remains the primary diagnostic consideration for the fractures; that JJC has problems with anger management; that JJC yelled at JAC and called him names including "the ‘F' word"; that JJC stated that he never should have had the baby and that he is sick of the baby; that people observed JJC handling the baby roughly; that JJC rebuked parenting advice; and that JJC's testimony included several contradictions.  A searching review of the record demonstrates that these findings are supported by clear-and-convincing evidence.

            The sum of the evidence establishes that JJC handled the baby roughly, that JJC was with the baby when he suffered his third fracture, and that the baby would not have been injured if treated with ordinary care.  The district court could reasonably infer that JJC's rough treatment caused the third fracture. 

            JJC argues that the district court could have drawn other conclusions from the evidence presented.  He argues that JAC's OI makes him more susceptible to injury and that the baby may have been injured even if JJC had provided appropriate, loving care as he claimed to do.  He also suggests that JMB's sister may be responsible.  But a treating doctor testified that it was likely, based on the account provided by JMB's sister that JAC was holding his arm still, that the baby's arm was broken before JMB's sister entered the bedroom.  Furthermore, JJC admitted that he was untruthful during the initial investigation.  He gave contradictory statements about his drug use and his whereabouts during the days leading up to the baby's third fracture.  He lied about a party he held at his house the night before JAC's third fracture was discovered and refused to name any of the six or seven people who he believed used cocaine at the party and could have gone into JAC's room and "pick[ed] him up" and "drop[ped] him."  Instead of assisting the investigation he replied, "I'd hate to put names . . . I can't know for a fact."  JJC also denied getting angry or yelling at the baby.

            On appeal, the issue is whether the findings stated by the district court are supported by the record.  The district court is in a better position to assess the credibility of witnesses and draw inferences from the circumstantial evidence presented.  L.A.F., 554 N.W.2d at 396.  The district court's findings are consistent with testimony from numerous witnesses and the district court had good reason to reject JJC's version of the events.  Thus, because the district court's findings are supported by substantial evidence and its conclusions are not clearly erroneous, we cannot reverse the district court.  See In re Welfare of M.D.O., 462 N.W.2d 370, 379 (Minn. 1990) (holding that court of appeals panel erred when it ignored district court's specific findings of fact and substituted its judgment).

            JJC also argues that the district court improperly applied a model-parent standard to JJC when evaluating whether JAC suffered egregious harm.  See id. (noting that few children would be reared by natural parents under model-parents standard).  Although the district court compared JJC's behavior to that of a reasonable person under like circumstances, the district court correctly cited and applied the governing statutory law: the court examined whether JAC experienced egregious harm in JJC's care.  Therefore, contrary to JJC's suggestion, the court did not rely on a model-parent standard in reaching its conclusion. 

            Additionally, JJC argues that the district court abused its discretion by excluding testimony from a parent with two children suffering from OI.  Evidentiary rulings rest within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Evidence is relevant and generally admissible if it has any tendency to make a fact of consequence more probable or less probable.  Minn. R. Evid. 401-02.  But relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfairly prejudicing a party, confusing the issues, or misleading the jury.  Minn. R. Evid. 403.  

            Because experts had testified that OI ranges from mild to serious and must be assessed on a case by case basis and because JAC's experience with OI might be significantly different from the experiences of the witness's children, the court determined that the witness's testimony would be confusing and misleading.  These are valid reasons for excluding evidence under Minn. R. Evid. 403.  Therefore the district court did not abuse its discretion by excluding the testimony.

            Although the court adopted, in large part, the county's proposed findings and conclusions, the court made significant deletions and additions to the county's proposal including the deletion of the county's findings 30, 32, and 33 and the redrafting evident in the court's findings 30, 36 and 38.  These revisions demonstrate that the court closely analyzed the proposed findings and that the final opinion reflects the court's independent judgment.  And, contrary to JJC's assertions, the district court did not commit reversible error when it neglected to mention JAC's interest in preserving the parent-child relationship. The district court explicitly complied with the statutory requirement that the child's best interests are the paramount consideration and noted that terminating JJC's rights would "ensure protection of [JAC's] physical, mental, and emotional well-being and development, now and in the foreseeable future."  The district court also stated that it is in JAC's "best interest that he be assured against physical, emotional and mental harm" and emphasized that JAC's best interests "require that his caregiver be capable and willing to meet Baby's needs for nurturance, love, and safety, and emotional well-being at all times, including when he cries or behaves in manners that challenge the patience and temperament of his caregivers."

            Because the court's findings are supported by substantial evidence in the record and its conclusions are not clearly erroneous, the district court did not err when it determined that JAC had suffered egregious harm in JJC's care and terminated JJC's rights under Minn. Stat. § 260C.301, subd. 1(b)(6).

 

II

            Under Minn. Stat. § 260C.301, subd. 1(b)(4), a court may terminate parental rights if the court finds that a parent is "palpably unfit to be a party to the parent and child relationship."  A parent is palpably unfit when the court finds a consistent pattern of specific conditions directly pertaining to the parent and child relationship that are "of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing . . . needs of the child."  Id.

            The district court made specific findings to support its conclusion that JJC is palpably unfit to be a party to the parent-child relationship.  The district court found that JJC yells and swears when JAC cries; that JJC has stated on various occasions that he wished he never had JAC and that he is sick of JAC; that JJC treats JAC roughly and with indifference to the baby's safety despite the admonitions of others; that JJC uses drugs; and that JJC lied to investigators and violently obstructed reasonable inquiries into JAC's injuries.  These findings are supported by clear-and-convincing evidence.  Therefore the district court did not err when it determined that JJC is palpably unfit to parent JAC now and for the reasonably foreseeable future.

            JJC emphasizes that the county did not make reasonable efforts to reunify JAC with JJC and argues that the district court therefore erroneously applied the statutory law when it determined that JJC was palpably unfit.  See Minn. Stat. § 260C.301, subd. 8(1) (2006) (requiring court, prior to terminating parental rights, to make specific findings that responsible social-services agency made reasonable efforts to reunify child and parent).  But Minn. Stat. § 260C.301, subd. 8(2) (2006), permits a court to relieve the responsible social-services agency from making reasonable efforts to reunify the child and parent if certain conditions outlined in Minn. Stat. § 260.012 (2006) are met.  Accordingly, a court may relieve an agency from making reasonable efforts to reunify the parent and child, including efforts to develop a case plan, if the agency files a petition stating a prima facie case that the parent has subjected a child to egregious harm or that the provision of services or further services for the purpose of reunification is futile and therefore unreasonable under the circumstances.  See Minn. Stat. § 260.012(a)(1), (5) (2006) (stating egregious harm and futility exceptions); In re Children of Vasquez, 658 N.W.2d 249, 252 (Minn. App. 2003) (regarding case plan requirement as one aspect of "reasonable efforts" requirement). 

            In this case, the district court determined at a pretrial certification hearing that the county had filed a petition stating a prima facie case under both the egregious harm and futility provisions.  The district court noted the county's allegations that JJC had brought JAC to the hospital with a fractured humerus of a "spiral" type; that x-rays showed the baby had two previous spiral fractures; that JJC acknowledged JAC's fractures were inflicted by someone but denied inflicting them himself; that JJC had treated the baby roughly; that JJC had demonstrated antipathy and volatility toward JAC and showed contempt towards JAC's crying and emotional needs; and that JJC's reaction to the abuse investigation indicated a deliberateness on his part to suppress an attempt to gather accurate information necessary to assure JAC's safety.  The district court also stated that, considering JJC's threatening behavior toward the child-protection workers, it was difficult to believe JJC could cooperate with the county "in a sincere effort to reunify."  The district court therefore did not err when it determined that the county had presented a prima facie case that the baby suffered egregious harm in JJC's care and that reunification is futile.  Consequently, the district court did not err when it relieved the county of making efforts to reunify JJC with his son.

            JJC also argues that the district court erred when it refused to reverse its decision on reunification after the baby was diagnosed with OI.  Under Minn. Stat. § 260.012(g) (2006), after a court initially determines that reasonable efforts are not required, a "court may only require reasonable efforts for reunification after a hearing . . . where the court finds there is not clear and convincing evidence of the facts upon which the court based its prima facie determination."  In this case, the court determined in its final decision that clear-and-convincing evidence supported the termination of JJC's parental rights on the basis that the baby suffered egregious harm in JJC's care.  The court also determined that the county established by clear-and-convincing evidence that reunification between JJC and JAC is futile and unreasonable under the circumstances because JJC's testimony about his love and concern for JAC lacked genuineness and trustworthiness and "[i]t is not realistic to believe that the provision of services such as anger treatment, psychological and counseling services, parenting education, or other services would enable [JJC] to meet [JAC's] best interests in the foreseeable future given [JJC's] lack of insight and his denial of deficits."  The court's findings with respect to both egregious harm and futility are supported by substantial evidence in the record.

            Consequently, because the evidence supports the district court's determination under Minn. Stat. § 260.012(g) that the county presented clear-and-convincing evidence on which the court based its prima facie determination, the court did not err when it refused to reverse its decision regarding reunification.

            Lastly, JJC argues that the district court erred when it terminated parental rights because the court had other options under Minn. Stat. § 260C.312(a) (2006).  Under Minn. Stat. § 260C.312(a), if the court had found that the termination of JJC's parental rights was not warranted but nonetheless found that JAC needed protection services, the court could have provided protection services for JAC without terminating JJC's parental rights.  See Minn. Stat. § 260C.201, subd. 1 (2006) (stating district court's options for providing protection services).  Because Minn. Stat. § 260C.312(a) creates options for the district court but does not require the district court to take any specific actions, the thrust of JJC's argument is that the district court erred when it terminated JJC's parental rights.  Our analysis concludes that the district court did not err when it determined that JAC suffered egregious harm in JJC's care and that JJC is palpably unfit to be a parent.  Therefore the court did not err when it decided not to exercise alternative options under Minn. Stat. § 260C.312(a). 

Affirmed.

ROSS, Judge (concurring specially)

I concur in the majority's decision to affirm the district court's order terminating JJC's parental rights.  It is clear that the district court's findings establish JJC's palpable unfitness to parent, particularly emphasized by JJC's obstruction of the investigation into the serious injury that the baby suffered while in his care.  But I write separately to note my disagreement with that part of the majority's opinion that determines that clear and convincing evidence supports the finding that the child suffered egregious harm at JJC's hands, which is premised on the notion that JJC treated the child so roughly as to demonstrate his grossly inadequate ability to provide minimally acceptable care.

To be clear, the majority appropriately holds that the district court's findings of JJC's specific actions are supported by clear and convincing evidence.  And I agree that these findings easily support the conclusion that JJC's rough treatment actually caused the child's arm fracture.  But it is undisputed that the child suffered from osteogenesis imperfecta at the time of the fracture and that JJC was unaware of this.  And although the nature and extent of the child's osteogenesis imperfecta is uncertain, it is also without dispute that the condition causes a child's bones to be brittle and significantly more susceptible to fracture than those of children with healthy osteogenic composition.

That JJC has a general tendency to treat the child roughly, along with the other facts considered by the district court, such as JJC's lack of credibility, establishes only that JJC in fact treated the child so roughly that he caused the injury.  But there does not appear to be any evidence in the record to support a finding that JJC treated the child on this occasion or at any other time in a manner that would have injured a child without the rare condition.  Counsel for Itasca County acknowledged at oral argument before this court that the facts in the record cannot discount the possibility that this is a case in which a parent's level of physical force is rough enough to break the bone of a child with OI but not so rough to injure a child of ordinary physical characteristics.  Without a finding to that effectand there is noneand facts to support it, I believe that all we can affirm as established by clear and convincing evidence is that JJC acted too roughly for a child who has a bone condition of which JJC was unaware.  This alone cannot prove egregious harm.

I do not take lightly the evidence that the child suffered no additional fractures after being placed in the care of a foster parent who testified that she treated the child just as she would any other.  But this supports only the conclusion that JJC treated the child less gently than the foster parent, while falling short of the conclusion that JJC's conduct exceeded the minimum level of parental care.  It is not much of a stretch from these facts to conclude that any foster parent would tend to treat a child with greater care than JJC would.  But this testimony does not clearly and convincingly establish egregious harm.

I appreciate the district court's difficult task of weighing JJC's conduct on one hand and the extent of the child's OI on the other.  And if the burden of proof were anything less, I would have no cause to deviate.  But there being no finding and no testimony or other evidence that the manner in which JJC treated the child would have injured a child without OI, I must disagree with the majority's holding that clear and convincing evidence supports the finding of egregious harm.  Because JJC's other conduct supports the conclusion that he is palpably unfit to parent, I would affirm termination of is parental rights on that ground.