In the Matter of the Welfare of the Children of: K. E. L. and J. L. W., Parents.

This opinion will be unpublished and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
A14-0642
In the Matter of the Welfare of the Children of: K. E. L. and J. L. W., Parents
Filed October 27, 2014
Affirmed
Rodenberg, Judge
McLeod County District Court
File Nos. 43-JV-13-163, 43-JV-12-108
Scott L. Nokes, Glencoe, Minnesota (for appellant)
Tiffany R. Doherty-Schooler, Glencoe, Minnesota (for respondent J.L.W.)
Michael Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney,
Glencoe, Minnesota (for respondent McLeod County Social Services)
Thomas J. Nolan, Jr., Minneapolis, Minnesota (for respondent guardian ad litem)
Considered and decided by Peterson, Presiding Judge; Rodenberg, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant-mother K.E.L. challenges the district court’s termination of her parental
rights, arguing that (1) a second petition for termination of parental rights, filed after the
district court’s denial of an earlier such petition, should have been dismissed based on
collateral estoppel principles, and (2) respondent McLeod County failed to make
reasonable efforts to reunify her with her children. We affirm.
FACTS
On May 2, 2012, appellant mother K.E.L. was video recorded suffocating her
infant child, C.A.W., at Children’s Hospital in St. Paul. Mother pinched the child’s nose
and forcibly held his mouth shut. The child struggled until he eventually went limp.
Mother then calmly called a nurse for assistance. On May 8, 2012, respondent McLeod
County filed a petition, alleging that C.A.W. was a child in need of protection or services
(CHIPS). At the CHIPS Admit/Deny Hearing, respondent father J.L.W., who until then
had been residing with mother and the couple’s two children, was awarded temporary
physical and legal custody of C.A.W. and C.M.W. (age 3). Both children have resided
with J. L.W. since.1
A petition for termination of mother’s parental rights (TPR petition) was filed on
June 25, 2012. Testimony at the trial on that petition revealed that mother has factitious
disorder and the district court found that the disorder was likely treatable. Despite the
district court’s finding that mother had inflicted egregious harm on C.A.W., the district
court concluded that, because mother could successfully complete treatment for the
disorder in the reasonably foreseeable future, termination was not in the best interests of
the children. The district court concluded that both children were in need of protection
and services. Services were ordered, including a psychological evaluation of mother to
1
Mother was charged with three criminal counts in Ramsey County, resulting from the
May 2 incident, and was convicted of felony domestic assault by strangulation in
violation of Minn. Stat. § 609.2247, subd. 2 (2012). She served a jail sentence of 120
days.
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determine the appropriate next steps for her treatment and for a case plan in the best
interests of the children.
Thereafter, Dr. Jane McNaught evaluated mother. Her report questioned the
likelihood that mother could be treated, how successful treatment would be, and how
long treatment might take. Following the receipt of Dr. McNaught’s report, respondent-
county filed a second TPR petition. Mother moved to dismiss the petition, arguing that
collateral estoppel precluded relitigating the issue of terminating her parental rights. The
district court denied the motion, concluding that, although the factors identified by
Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613 (Minn. 1988), might
support the application of collateral estoppel, the doctrine should not be applied where
doing so would be inconsistent with the health, safety, and best interests of the children,
which are of paramount importance.
At the second TPR trial, all parties stipulated that mother had been found by the
district court in the first trial to have inflicted egregious harm on C.A.W. The sole issue
for trial was identified as the best interests of the children. After trial, the district court
granted the TPR petition as to both children. This appeal followed.
DECISION
Mother argues that the district court erred in declining to apply collateral estoppel
to dismiss the second TPR petition and, alternatively, that respondent-county failed to
provide reasonable efforts to reunify her with her children.
Whether collateral estoppel applies in a case presents a mixed question of law and
fact, which we review de novo. Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn.
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2004). “Once the reviewing court determines that collateral estoppel is available, the
decision to apply collateral estoppel is left to the district court’s discretion,” which
decision we review for an abuse of discretion. In re Estate of Perrin, 796 N.W.2d 175,
179 (Minn. App. 2011) (quotation omitted). “The district court is vested with broad
discretionary powers when deciding juvenile-protection matters.” In re Welfare of Child
of S.S.W., 767 N.W.2d 723, 733 (Minn. App. 2009) (quotation omitted).
Four requirements have been identified by Minnesota courts as preconditions for
the application of collateral estoppel: “(1) the issue [is] identical to one in a prior
adjudication; (2) there was [in the earlier adjudication] a final judgment on the merits;
(3) the estopped party was a party or in privity with a party to the prior adjudication; and
(4) the estopped party was given a full and fair opportunity to be heard on the adjudicated
issue.” Johnson, 420 N.W.2d at 613. Those conditions are necessary, but not sufficient
to support application of the doctrine. Collateral estoppel is not to be rigidly applied
when “application would work an injustice on the party against whom estoppel is urged.”
Id. at 613-14. Courts will not apply collateral estoppel when doing so would contravene
public policy. AFSCME Council 96 v. Arrowhead Reg’l Corr. Bd., 356 N.W.2d 295, 299
(Minn. 1984); see also Barth v. Stenwick, 761 N.W.2d 502, 508 (Minn. App. 2009)
(stating in addition to the four-factor test that “a court applying collateral estoppel must
be convinced that its application is fair”); Maschoff v. Leiding, 696 N.W.2d 834, 838
(Minn. App. 2005) (holding that res judicata and collateral estoppel have limited
application to family law matters). And “[t]he paramount consideration in all juvenile
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protection proceedings is the health, safety, and best interests of the child.” Minn. Stat.
§ 260C.001, subd. 2(a) (2012).
In its order denying mother’s motion to dismiss, the district court stated that,
“although the necessary elements for collateral estoppel may be present, in this particular
situation the doctrine should not be applied” and that “[m]echanically applying the
doctrine of collateral estoppel to [the issue of the best interests of the children] would
unfairly mean that the parties and children would always be subject to an established fact
that the mother’s illness is treatable, that such treatment has a reasonable chance of
success and that it can be completed within the reasonably foreseeable future.” The
report and testimony of Dr. McNaught, not available at the first trial, contradicted
testimony from the first trial concerning mother’s condition and whether it was amenable
to treatment within the reasonably foreseeable future. In light of this new information,
the district court concluded that application of collateral estoppel was not in the best
interests of the children, stating:
Child protection matters are oftentimes ongoing dynamic
proceedings in which knowledge of the facts and
circumstances may change such that the parties and court
must continually reexamine what actions are in the best
interests of the child. Application of the collateral estoppel
doctrine is particularly problematic where, as here, it involves
fact issues of what will happen in the future.
At the intersection of collateral estoppel and the best interests of the child, which
is the paramount consideration here, the district court is uniquely situated to make the
necessary determination concerning whether to apply collateral estoppel. And, on this
record, the district court acted within the scope of the discretion entrusted to it in
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declining to apply collateral estoppel. We see no error in the district court’s denial of
mother’s motion to dismiss the second TPR petition.
Mother argues for a rule of law that collateral estoppel must be applied in child
welfare cases when all four Johnson factors are met, unless something attributable to the
parent has changed since the earlier determination. Mother is arguing that we create a
new rule of law. “This court, as an error correcting court, is without authority to change
the law.” Lake George Park, L.L.C. v. IBM Mid-Am. Emps. Fed. Credit Union, 576 N.
W.2d 463, 466 (Minn. App. 1998), review denied (Minn. June 17, 1998). “[T]he task of
extending existing law falls to the supreme court or the legislature, but it does not fall to
this court.” Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied
(Minn. Dec. 18, 1987). We apply existing law, which as discussed above, entrusts to the
district court’s discretion whether to apply collateral estoppel. And on these facts, the
district court acted within the discretion afforded it under existing law.
Moreover, and even if we were to enunciate the proposed new rule of law, doing
so would not likely change the outcome. We note that mother had eight months after the
first trial and before the filing of the second TPR petition to seek treatment, and she failed
to remediate or treat her underlying factitious disorder. The record reveals no requests by
mother to the district court that her condition be treated or that the county should locate
or pay for such treatment. She apparently failed to do anything about her condition from
the end of the first trial to the filing of the second petition. And her inaction in light of
the disturbing facts of this case, is attributable to mother.
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Mother also argues that respondent-county’s second TPR petition should have
been dismissed because reasonable efforts were not made to reunite mother with her
children after the first TPR trial. As a general rule, and after a child is found to be in
need of protection or services, the district court “shall ensure that reasonable efforts . . .
by the social services agency are made to prevent placement or to eliminate the need for
removal and to reunite the child with the child’s family at the earliest possible time.”
Minn. Stat. § 260.012(a) (2012). But reasonable efforts are not required “upon a
determination by the [district] court that a petition has been filed stating a prima facie
case that . . . the parent has subjected a child to egregious harm.” Minn. Stat.
§ 260.012(a)(1) (2012). Egregious harm is in turn defined by statute as an “infliction of
bodily harm to a child . . . which demonstrates a grossly inadequate ability to provide
minimally adequate parental care.” Minn. Stat. § 260C.007, subd. 14 (2012).
It is undisputed that, at the first TPR trial, the district court found that mother
inflicted egregious harm on C.A.W. That finding was not appealed. The parties
stipulated before the second trial that egregious harm had been determined and that the
best interests of the children was identified as the only issue in dispute. Mother claims
she raised the issue of whether the county provided reasonable efforts to reunify in a
posttrial letter to the district court. But the reasonable efforts question was not presented
to the district court for a decision based on the pretrial stipulation that best interests was
the only disputed issue. Generally, an appellate court considers only “those issues that
the record shows were presented and considered by the [district] court in deciding the
matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation
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omitted). Having tried the case to the district court on only the issue of best interests,
mother may not now ask, for the first time on appeal, that we address the reasonable-
efforts issue.
Moreover, and even if the reasonable efforts issue were to have been preserved,
the district court found at the first trial that mother had inflicted egregious harm on
C.A.W. That finding was not appealed and the children were found to be in need of
protection or services. Because it was proved at the first trial that mother inflicted
egregious harm upon C.A.W., reasonable efforts to reunify were no longer required, and
respondent-county was relieved of the obligation to reasonably attempt to reunify.
In sum, because mother was filmed suffocating her child, which the district court
previously found to constitute the infliction of egregious harm on the child, the district
court acted within its discretion in declining to apply collateral estoppel where applying
the doctrine would be inconsistent with the health, safety and welfare of children.
Mother also failed to preserve the issue of whether respondent-county was required to
make reasonable efforts to reunify her with the children, and the county was, in any
event, relieved of that obligation by the previous and unappealed judicial determination
of egregious harm.
Affirmed.
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