In the Matter of the Welfare of the Child of: K. A.-P. and D. P., Parents. ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0797
In the Matter of the Welfare of the Child of:
K. A.-P. and D. P., Parents.
Filed November 3, 2014
Affirmed
Bjorkman, Judge
Yellow Medicine County District Court
File No. 87-JV-14-13
Matthew B. Gross, Quarnstrom & Doering, P.A., Marshall, Minnesota (for appellant
K.A.-P.)
D.P., Clarkfield, Minnesota (pro se respondent)
Keith R. Helgeson, Yellow Medicine County Attorney, Amanda C. Sieling, Assistant
County Attorney, Granite Falls, Minnesota (for respondent Yellow Medicine County
Family Service Center)
Sue Peterson-Bones, Willmar, Minnesota (guardian ad litem)
Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the termination of her parental rights to her youngest
daughter, arguing that the district court abused its discretion by (1) determining that the
county made reasonable efforts to reunite the family, (2) determining that appellant is a
palpably unfit parent, and (3) admitting expert testimony on matters not disclosed before
trial. We affirm.
FACTS
Appellant K.A.-P. (mother) gave birth to her first daughter, Z.A., in July 2006,
during the pendency of her divorce from Z.A.’s father. Mother obtained prenatal care
during her pregnancy with Z.A., including treatment for gestational diabetes.
After the divorce, mother struggled with depression, anxiety, and panic attacks but
did not seek mental-health treatment. On the weekends when Z.A. was with her father,
mother engaged in binge drinking and “random hookups” with strangers. In mid-2009,
mother discovered that she was pregnant. She carried the baby to term but did not obtain
prenatal care and concealed the pregnancy from her family. Z.A. was at childcare when
mother went into labor. Mother did not call anyone for assistance and gave birth in the
bathtub. She did nothing to help the baby breathe. She cleaned the bathtub, put the
baby’s body into a plastic garbage bag, and put the garbage bag into a chest freezer in the
basement.
Mother became pregnant again in late 2010. She carried the baby to term but did
not obtain prenatal care and concealed the pregnancy from her family. Z.A. was asleep in
another room when mother went into labor, and mother repeated the bathtub birth,
subsequently wrapping the baby’s body in a garbage bag and placing it in the freezer with
the body of the other baby.
Mother started dating respondent D.P. (father) in September 2011. Mother
discovered that she was pregnant the following spring, and she and father were married in
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late June 2012. Mother obtained prenatal care throughout the pregnancy, though she did
not disclose the 2009 and 2011 pregnancies, and gave birth to Z.P. in late November.
Around that same time, law enforcement became aware of the dead babies. In
anticipation of moving in with father, mother had removed the babies from her freezer,
placed them in a cooler, and left the cooler in a wooded area of her aunt’s farm in South
Dakota. One of her brothers discovered the cooler and the babies’ remains on November
2 and contacted authorities. Law enforcement first questioned mother about the babies in
December, but she denied having been pregnant or having anything to do with the babies.
After DNA testing suggested a biological link between mother and the babies, law
enforcement contacted mother again. Mother agreed to an interview at her home on
August 13, 2013, when Z.A. would be with her father.
Before law enforcement arrived for the interview, mother hid a loaded gun under
the cushions of her couch. She sat on the couch throughout the interview, with nine-
month-old Z.P. on her lap. Mother acknowledged that the babies found in the cooler
were hers. She explained that she knew she was pregnant each time but was
overwhelmed at the prospect of having another child and intentionally hid the
pregnancies. After talking with law enforcement for approximately 45 minutes, mother
removed the gun from under the couch cushion and placed it to the right side of her head,
in the direction of Z.P. As law enforcement sought to retrieve the gun, one shot was fired
into the ceiling but nobody was injured.
Law enforcement took Z.P. into protective custody, and Yellow Medicine County
Family Services (the county) filed a petition alleging that Z.P. is in need of protection or
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services. Mother and father admitted the petition, the district court adjudicated Z.P. in
need of protection or services, and Z.P. was returned to father’s care.
The county also took steps to address mother’s mental health. Immediately
following the suicide attempt, mother was hospitalized for psychological evaluation.
When her suicidal thoughts persisted after several days, the county successfully
petitioned to have mother civilly committed for mental-health treatment. Her treatment
diagnoses included anxiety, depression, and panic attacks, and rule-out diagnoses of
major depression, bipolar disorder, drug and alcohol abuse, and “antisocial traits.”
Mother remained in inpatient treatment until the end of September, when she was
provisionally discharged to a flex-lock mental-health facility. She was provisionally
discharged to her home on November 15, with diagnoses of dysthymic disorder and a
severe single episode of major depressive disorder.
But the commitment order remained in place, and mother continued to meet with
county mental-health worker Kim Douglass and to follow her commitment case plan,
including managing her medication and following treatment recommendations. Mother
began therapy with licensed social worker Brian Boersma in mid-November. Boersma
indicated initial diagnoses of major depressive disorder and personality disorder, not
otherwise specified. In December, mother began treating with psychiatrist Clay Pavlis,
M.D. After his initial consultation and document review, Dr. Pavlis diagnosed mother
with major depressive disorder; anxiety disorder, not otherwise specified; dysthymic
disorder; alcohol abuse; and personality disorder, not otherwise specified. He also noted
a number of inconsistencies in mother’s reporting of her past conduct.
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Throughout this time, Amanda Pauling, the county child-protection worker
assigned to the family, monitored mother’s treatment progress and coordinated case
planning with Douglass, father, and mother’s family. At Pauling’s request, mother met
with licensed social worker Deena McMahon for a parenting assessment. Based on
multiple interviews with mother, collateral contacts, and review of numerous records,
McMahon opined that mother “has serious mental health diagnoses,” including
personality disorders. She expressed concern that mother is capable of violent acts, does
not respond rationally when under stress, does not honestly report her past conduct, and
lacks the ability to see how her choices affect her children. And McMahon observed that
mother has repeatedly been unable to use the family support system available to her and
likely would be “difficult to hold accountable in therapy.”
Pauling also asked mother to undergo a forensic psychological evaluation to
determine whether Z.P. could safely be returned to mother’s care. Mother declined to
submit to the evaluation because of potential criminal charges related to the deaths of her
babies. Pauling advised mother that the county would need to move to terminate her
parental rights if it could not ensure that she could safely parent Z.P. Mother continued
to refuse the evaluation.
On January 8, 2014, the county petitioned to terminate mother’s parental rights to
Z.P., alleging that mother is palpably unfit to parent. Mother continued to experience
anxiety and suicidal thoughts throughout early 2014 but reported no specific plans to
harm herself. Her commitment expired on February 16, but she continued therapy with
Boersma and treatment with Dr. Pavlis through February and March.
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At the five-day trial in March and April 2014, the district court heard extensive
testimony about the criminal investigation into the deaths of mother’s babies, mother’s
civil commitment, and mother’s ongoing mental-health treatment and diagnoses,
including expert testimony from McMahon, Dr. Pavlis, and psychologist Richard Ascano,
Ph.D., whom mother retained in February 2014 for a parental-capacity assessment. The
district court ordered termination of mother’s parental rights to Z.P., finding clear and
convincing evidence that (1) the county made reasonable efforts to reunite mother with
Z.P., (2) mother is palpably unfit to parent, and (3) termination is in Z.P.’s best interests.
Mother moved for amended findings or a new trial, which the district court denied.
Mother appeals.
DECISION
Parental rights may be terminated “only for grave and weighty reasons.” In re
Welfare of Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004). Termination
requires clear and convincing evidence that (1) the county has made reasonable efforts to
reunite the family, (2) there is a statutory ground for termination, and (3) termination is in
the child’s best interests. In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385
(Minn. 2008). On appeal, we review the district court’s factual findings “to determine
whether they address the statutory criteria for termination and are not clearly erroneous,
in light of the clear-and-convincing standard of proof.” In re Welfare of Children of
K.S.F., 823 N.W.2d 656, 665 (Minn. App. 2012) (citation omitted). We review for abuse
of discretion a district court’s conclusion that the statutory requirements for termination
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have been established. See In re Welfare of Children of J.R.B., 805 N.W.2d 895, 900
(Minn. App. 2011), review denied (Minn. Jan. 6, 2012).
I. The district court did not abuse its discretion by determining that the county
made reasonable efforts to reunite the family.
Before parental rights may be terminated, the county must make reasonable efforts
to reunite the child with the parent. Minn. Stat. § 260C.301, subd. 8(1) (2012); In re
Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996). “Reasonable efforts” means “the
exercise of due diligence by the [county] to use culturally appropriate and available
services to meet the needs of the child and the child’s family.” Minn. Stat. § 260.012(f)
(2012). In determining whether reasonable efforts have been made, the district court
must consider whether the services were “(1) relevant to the safety and protection of the
child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate;
(4) available and accessible; (5) consistent and timely; and (6) realistic under the
circumstances.” Minn. Stat. § 260.012(h) (2012). “[T]he nature of the services which
constitute reasonable efforts depends on the problem presented.” In re Welfare of
Children of T.R., 750 N.W.2d 656, 664 (Minn. 2008) (quotation omitted).
It is undisputed that the problem presented is mother’s mental illness. The district
court made extensive findings detailing the county’s efforts to address the problem, from
mother’s mental-health commitment to her ongoing treatment, and found these efforts
reasonable. Mother does not dispute the appropriateness of the services but argues that
the county unreasonably truncated them by seeking to terminate her parental rights before
giving her “sufficient time to rehabilitate.” We are not persuaded.
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First, the record amply supports the district court’s determination that the county
reasonably pursued termination after mother declined to participate in the forensic
psychological evaluation. Both the hospital where mother was treated during her
commitment and McMahon recommended a forensic psychological evaluation. Pauling
considered those recommendations and mother’s treatment progress, and agreed that an
evaluation was necessary to identify specific steps to address the barriers that mother’s
mental health present to her parenting ability. Pauling testified that a forensic
psychological evaluation is a child-focused assessment and that mother’s refusal to
participate creates an insurmountable barrier to progress in the child-protection case. The
district court carefully considered this evidence, declining to draw an adverse inference
from mother’s refusal to participate in the evaluation, but crediting Pauling’s testimony
that mother’s refusal makes reunification impossible.
Second, the record amply supports the district court’s finding that additional
efforts would be futile in light of the timeline necessary to address mother’s mental
health. The evidence overwhelmingly indicates that at the time of trial, mother continued
to experience severe anxiety and depression and regularly had suicidal thoughts. The
district court had the opportunity to observe the impact of these conditions on mother
first-hand. None of the testifying experts opined that mother’s mental-health problems
will be sufficiently addressed in the reasonably foreseeable future to permit her to parent
appropriately. To the contrary, various experts testified that it will take at least an
additional year of treatment to fully address mother’s anxiety and depression and multiple
years to treat her personality disorder. Without treatment of the personality disorder,
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which she was not undergoing as of the time of trial, “the risk of major depressive
disorder relapse will become enhanced.” In short, additional treatment is unlikely to
ameliorate mother’s condition enough to enable her to parent appropriately in the
foreseeable future.
On this record, we conclude that the district court did not abuse its discretion by
determining that the county made reasonable efforts to address mother’s mental-health
needs and reunite her with Z.P.
II. The district court did not abuse its discretion by determining that mother is
palpably unfit to parent Z.P.
A district court may terminate the rights of a parent who is “palpably unfit to be a
party to the parent and child relationship.” Minn. Stat. § 260C.301, subd. 1(b)(4) (2012).
A parent is palpably unfit when the evidence shows either “a consistent pattern of
specific conduct before the child” or “specific conditions directly relating to the parent
and child relationship,” which the district court determines are “of a duration or nature
that renders the parent unable, for the reasonably foreseeable future, to care appropriately
for the ongoing physical, mental, or emotional needs of the child.” Id. A parent’s
inability to meet the child’s needs at the time of the trial or in the reasonably foreseeable
future justifies termination. In re Child of P.T., 657 N.W.2d 577, 591 (Minn. App. 2003),
review denied (Minn. Apr. 15, 2003).
The district court determined that mother is palpably unfit to parent because her
severe mental illness interferes with her ability to appropriately perceive and address her
own or a child’s mental and emotional needs and has led her to endanger Z.P. And the
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court further determined that mother is unlikely to be able to meet Z.P.’s needs in the
reasonably foreseeable future.
Mother challenges these determinations, asserting that the evidence shows that she
“was a good mother” and that aside from her suicide attempt in Z.P.’s presence, her
conduct did not harm her children. This argument is unavailing. The fact that the district
court could have determined, based on evidence that Z.P. was a healthy, normal nine-
month-old when removed from mother’s care and that mother is generally able to care
appropriately for children despite her mental illness, is not dispositive. The mere
possibility that the record could support that interpretation of the evidence does not mean
that the district court abused its discretion by finding otherwise. See Vangsness v.
Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating that the possibility that the
record could support an alternative finding does not mean that the district court erred).
The district court did note the evidence on which mother relies but carefully
analyzed the extensive evidence indicating that mother’s ability to parent is compromised
by her lack of empathy, persistent emotional disconnectedness, deceptiveness,
impulsivity, and continued risk of self-harm. The district court found that when faced
with the extreme stress of criminal investigation (which itself was the result of mother’s
mental illness), mother not only could not care for Z.P. appropriately but actively
endangered Z.P., and remains incapable of appreciating the long-term effects of her
conduct on her daughter. The record contains clear and convincing evidence that
mother’s mental illness makes her unable to care appropriately for Z.P.
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Mother also challenges the district court’s determination that her mental illness
will continue to present a barrier to her ability to parent, arguing that this determination is
contrary to evidence indicating that she has been participating in treatment and her
mental health is expected to improve in a “definite period of time.” The district court
expressly rejected this argument, finding that mother’s ability to go through the motions
of attending therapy and taking medications does not mean that she is capable of
appropriately caring for herself or her child. As we discussed above, mother continued to
struggle with severe mental-health problems as of the time of trial, and substantial
evidence shows that she needs many years of rigorous therapy. The district court found
that mother is not likely to make any significant progress in the foreseeable future
because of her demonstrated “ability to block her emotions for years,” failure to take
advantage of support structures available to her, and poor progress as of the time of trial.
On this record, we conclude that the district court did not abuse its discretion by
determining that mother is palpably unfit to parent Z.P.
III. The district court did not abuse its discretion by permitting mother’s
psychiatrist to testify about his current diagnosis.
Whether to admit or exclude evidence is discretionary with the district court. See
In re Welfare of Children of J.B., 698 N.W.2d 160, 172 (Minn. App. 2005), review
dismissed (Minn. May 3, 2005). A district court abuses its discretion if it improperly
applies the law. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).
A new trial is warranted based on an improper evidentiary ruling only if the appellant
demonstrates both error and resulting prejudice. Id.; see also In re Welfare of Child of
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J.K.T., 814 N.W.2d 76, 93 (Minn. App. 2012) (stating that “evidentiary error is not
prejudicial if the record contains other evidence that is sufficient to support the
findings”).
Mother contends that the district court abused its discretion by permitting
Dr. Pavlis to testify about mother’s appointment with him the week before trial and his
undisclosed updated diagnosis. She points to the Minnesota Rules of Juvenile Protection
Procedure, which require each party to disclose (1) the names and addresses of all
persons intended to be called as expert witnesses at trial; (2) the subject matter about
which each expert is expected to testify; and (3) a summary of the grounds for each
opinion to be offered. Minn. R. Juv. Prot. P. 17.02(c). Parties also must disclose
“additional material, information, or witnesses subject to disclosure” as it is discovered.
Minn. R. Juv. Prot. P. 17.06, subd. 1. Our careful review of the record does not reveal a
violation of these requirements.
First, the county duly notified mother that it would call Dr. Pavlis, her treating
psychiatrist, as a witness and provided a copy of his initial diagnostic assessment.
Mother was aware of her ongoing treatment with Dr. Pavlis and could have asked him, at
any point before trial, for details about his treatment plan and current diagnosis. Second,
nothing about Dr. Pavlis’s testimony unfairly surprised mother. In his initial assessment,
Dr. Pavlis diagnosed mother with a personality disorder, highlighted “antisocial and/or
Borderline Personality Disorder” as rule-out diagnoses, and noted mother possibly has
narcissistic traits. At trial, Dr. Pavlis testified that his “new” diagnosis for mother was
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mixed personality disorder with dependent, antisocial, and borderline personality
features.
Moreover, any error in admitting the challenged testimony was harmless because
the district court expressly did not rely on it. Rather, the district court noted that it is
thoroughly established and undisputed that mother “suffers from severe mental illness,”
and that while the parties “belabored” the personality-disorder diagnosis at trial, it did
“not need to resolve the disagreement among the professionals because [mother]’s actual
conduct speaks for itself and is sufficient to find her palpably unfit.” On this record, we
discern no abuse of discretion and no prejudice.
Affirmed.
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