In the Matter of the Welfare of the Children of: A. R. H. and G. J. B., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1441

In the Matter of the Welfare of the Children of:
A. R. H. and G. J. B., Parents.

Filed March 7, 2016
Affirmed
Stauber, Judge

Clay County District Court
File No. 14-JV-15-351

Brian P. Toay, Wold Johnson, P.C., Fargo, North Dakota (for appellant G.J.B.)

Shawn Schmidt, Schmidt Law Office, Moorhead, Minnesota (for respondent A.R.H.)

Brian J. Melton, Clay County Attorney, Cheryl R. Duysen, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Laurie Christianson, Moorhead, Minnesota (guardian ad litem)

Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,

Judge.

UNPUBLISHED OPINION

STAUBER, Judge

On appeal from the termination of his parental rights (TPR), appellant-father

argues that the district court made (1) several findings of fact that are not supported by

the record and (2) abused its discretion by concluding that statutory bases existed to

terminate his parental rights. He also argues that the district court abused its discretion
by refusing to allow him to call one of his minor children as a witness at trial without first

conducting a hearing to determine if she was competent to testify. We affirm.

FACTS

Appellant G.J.B. is the biological father, primary caretaker, and full custodian of

H.J.B., born May 23, 2011, and L.M.B., born March 4, 2010.1 In May 2012, a neighbor

called 911 after the neighbor noticed that appellant was too intoxicated to care for the

children. Appellant was observed stumbling through the hallway of his apartment

building while holding H.J.B. and running into a doorframe causing, H.J.B. to hit his

head. H.J.B. needed medical attention as a result of the accident and was taken to the

emergency room. H.J.B. and L.M.B. were subsequently placed in foster care and

appellant was charged with child endangerment, child neglect, obstructing legal process,

and disorderly conduct.

After the children were adjudicated children in need of protection or services

(CHIPS), appellant successfully completed the case plan, which included inpatient

chemical-dependency treatment. The children were returned to appellant in January

2013, and the CHIPS proceeding was dismissed. But in August 2014, the children were

again removed from appellant’s home and placed in foster care following appellant’s

arrest for felony domestic assault. The incident involved appellant’s girlfriend with

whom appellant and the children were living. When the investigating deputy arrived at

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A.R.H. is the biological mother of the children. Shortly after these termination
proceedings were initiated, A.R.H. voluntarily terminated her parental rights, and she did
not proceed further in these TPR proceedings.

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the scene, appellant appeared to be very intoxicated, and the girlfriend stated that

appellant had been drinking. Although appellant told the investigating deputy that he had

consumed a pint of vodka or whiskey, he later denied drinking any alcohol.

H.J.B. and L.M.B. were initially placed in a relative foster home where appellant

exercised regular supervised visitation. But in October 2014, the children were moved to

a non-relative foster home. At about the same time, a case plan was initiated with the

primary goal of reunification. The case plan was designed to address chronic issues

related to appellant’s chemical dependency and anger management, as well as meeting

the children’s needs. Although appellant experienced periods where he appeared to be

making progress on the case plan, the children were eventually adjudicated CHIPS on

October 21, 2014.

After the children were moved to a non-relative foster home, appellant’s

supervised visitation was changed to Rainbow Bridge, a supervised visitation center.

During his visits with the children at Rainbow Bridge, appellant consistently complained

about the children’s hygiene, specifically the feces stains he would find on the children’s

underwear. At about the same time, Robin Christianson, an employee at Rainbow

Bridge, became concerned about the frequent and lengthy bathroom breaks appellant

would take with the children, particularly L.M.B. This conduct concerned Debra Nagle,

the assigned social worker who observed appellant wiping L.M.B. in a “very odd”

manner. Nagle’s concern about the bathroom visits was exacerbated by seemingly sexual

comments L.M.B. would make while she was being wiped.

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 On November 24, 2014, Carissa Cowley of the Red River Children’s Advocacy

Center conducted a forensic interview of L.M.B. The interview was conducted after a

mandated reporter informed Nagle that L.M.B. had disclosed sexual abuse. During the

interview, L.M.B. indicated that she had been sexually abused by appellant. As a result

of these allegations, contact between appellant and the children ceased.

In January 2015, respondent Clay County Social Services filed a petition to

terminate appellant’s parental rights. At trial, the district court declined to allow

appellant to call L.M.B. as a witness, but did not conduct a competency hearing prior to

making its decision. The district court subsequently filed an order concluding that under

Minn. Stat. § 260C.301, subd. 1(b)(4) (2014), appellant is palpably unfit to be a party to

the parent and child relationship because of conditions directly relating to the parent and

child relationship, specifically appellant’s “chronic and severe chemical dependency

contributing to [his] inability to properly care for and manage himself independently,”

which renders him unable to appropriately care for L.M.B. and H.J.B. The district court

also concluded that under Minn. Stat. § 260C.301, subd. 1(b)(5) (2014), “reasonable

efforts, under the direction of the Court, have failed to correct the conditions” leading to

the children’s placement outside of the home, “specifically [appellant’s] chronic and

severe chemical dependency.” The district court further concluded that under Minn. Stat.

§ 260C.301, subd. 1(b)(6) (2014), the children have “experienced egregious harm” in

appellant’s care. The district court found that this harm included appellant’s “repeated

acts of sexual abuse against L.M.B.” Thus, the district court concluded that grounds for

termination of appellant’s rights to H.J.B. and L.M.B. were proven by clear and

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convincing evidence under Minn. Stat. § 260C.301, subd. 1(b)(4)-(6), and that under

Minn. Stat. § 260C.301, subd. 7 (2014), it is in the best interests of the children to

terminate appellant’s parental rights. This appeal followed.

DECISION

Courts presume that natural parents are fit to care for their children, and

“[p]arental rights may be terminated only for grave and weighty reasons.” In re Welfare

of Child of J.K.T., 814 N.W.2d 76, 87 (Minn. App. 2012) (quotation omitted). The

petitioning county bears the burden of proving statutory grounds for termination by clear

and convincing evidence. Id. Whether to terminate parental rights is discretionary with

the district court. In re Welfare of Child of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014).

“[O]n appeal from a district court’s decision to terminate parental rights, we review the

district court’s findings of the underlying facts for clear error, but the determination of

whether a particular statutory basis for involuntarily terminating parental rights is present

is reviewed for an abuse of discretion.” In re Welfare of Children of J.R.B., 805 N.W.2d

895, 901 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012); see Minn. Stat.

§ 260C.301, subd. 1(b) (2014) (listing bases for terminating parental rights). We will

affirm the district court’s decision if any of the statutory grounds for termination are

supported by clear and convincing evidence and termination of parental rights is in the

children’s best interests. In re Welfare of Children of T.R., 750 N.W.2d 656, 661 (Minn.

2008).

Appellant argues that (1) the district court made numerous clearly erroneous

findings of fact to justify the termination of his parental rights and (2) the conclusions of

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law issued by the district court are not supported by clear and convincing evidence.

Thus, appellant argues that the district court abused its discretion by terminating his

parental rights.

I. Findings of fact

A district court’s finding of fact is clearly erroneous “if it is manifestly contrary to

the weight of the evidence or not reasonably supported by the evidence as a whole.”

J.K.T., 814 N.W.2d at 87 (quotation omitted). We grant considerable deference to a

district court’s decision to terminate parental rights because it “is in a superior position to

assess the credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn.

1996).

Appellant challenges several of the district court’s findings of fact, arguing that

“[g]iven the great volume of factual errors present in the court’s findings, this court

should be left with no choice but to reverse the district court and dismiss the permanency

petition at this time.” The county concedes that the district court’s findings “contain

some errors.” But the county argues that the errors are generally minor and do not affect

the decision as a whole.

We agree that the errors contained in the district court’s findings of fact are not so

significant as to warrant reversal. For example, in finding 38 the district court confused

the names of two witnesses who testified about statements made by L.M.B. regarding the

alleged sexual abuse by appellant. But this error is essentially a typographic error; when

credited to the proper witness, the testimony is supported by the record. Moreover, some

of the alleged errors in the findings stem from appellant’s misreading of the findings,

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such as his claim that in finding 47, the district court mistakenly refers to the incident

when appellant fell down the stairs while holding H.J.B. as occurring in 2014. A close

review of the finding, however, indicates that nowhere in the finding does the district

court state that the incident occurred in 2014. Finally, despite appellant’s claims to the

contrary, some of the challenged findings, such as appellant’s contention that the district

court’s finding that the children had “considerable behavior” issues when they entered

foster care, are supported by the record. The district court made extensive findings of

fact, most of which are fully supported by the record. And to the extent that a few of the

findings do contain errors, the errors are minor and surely do not affect the decision as a

whole. See In re Welfare of Children of D.F., 752 N.W.2d 88, 98 (Minn. App. 1998)

(stating that this court will not reverse for harmless error).

II. Conclusions of law

The district court found clear and convincing evidence supporting the findings of

fact underlying three statutory grounds for terminating appellant’s parental rights. See

Minn. Stat. § 260C.301, subd. 1(b)(4), (5), (6). Appellant contends that none of these

three grounds were sufficiently supported by clear and convincing evidence. We

disagree.

A. Palpable unfitness

A TPR may be supported by a finding that a parent is palpably unfit to be a party

to the parent and child relationship

because of a consistent pattern of specific conduct before the
child or of specific conditions directly relating to the parent and
child relationship either of which are determined by the court

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 to be 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.

Minn. Stat. § 260C.301, subd. 1(b)(4).

Here, in terminating appellant’s parental rights under section 260C.301,

subdivision 1(b)(4), the district court found that appellant’s “chronic and severe chemical

dependency contributing to [his] inability to properly care for and manage himself

independently” renders him unable, for the foreseeable future, to care appropriately for

L.M.B. and H.J.B.’s ongoing needs. Appellant argues that the district court’s decision to

terminate his parental rights under Minn. Stat. § 260C.301, subd. 1(b)(4), is based on an

incorrect interpretation the statute and is not supported by clear and convincing evidence.

Appellant’s argument is without merit. The supreme court has held that substance

abuse alone does not render a parent palpably unfit, and reversed a TPR based on

palpable unfitness when there were no findings “directly relating” the parent’s substance

use and alcohol consumption to his relationship with the child. T.R., 750 N.W.2d at 663.

Here, there is clear and convincing evidence demonstrating that appellant’s alcohol

consumption directly relates to his ability to adequately care for his children. The district

court found that in 2012, H.J.B. needed medical attention after H.J.B. hit his head on a

doorframe while he was being held by appellant, who was stumbling around his

apartment while intoxicated. The district court also found that in 2014, appellant was

charged with domestic assault stemming from an incident between appellant and his live-

in girlfriend, who were both intoxicated. The district court found that when law

enforcement arrived at the scene, the children were in appellant’s care, but he was passed

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out in his bedroom. Moreover, the district court found that although evidence presented

at trial demonstrates that appellant continues to drink heavily, he consistently tells county

employees that he has not consumed alcohol since May 2012. In fact, the district court

found that, according to the manager of a local liquor store, appellant “would come into

the store at least two to three times each week and buy” a 12-pack of beer and a liter of

whiskey. Appellant’s dishonesty about his chemical use makes it impossible to

participate and complete chemical-dependency treatment. The district court’s findings

are supported by the record. Accordingly, the district court did not abuse its discretion by

concluding that appellant is palpably unfit to be a party to the parent and child

relationship due to his alcohol dependency.

B. Reasonable efforts

Under Minn. Stat. § 260C.301, subd. 1(b)(5), parental rights may be terminated if

“following the child’s placement out of the home, reasonable efforts, under the direction

of the court, have failed to correct the conditions leading to the child’s placement.” In

any TPR proceeding, the district court must make “specific findings” that the county

made reasonable efforts to reunify the child and the parent. Minn. Stat. § 260C.301,

subd. 8 (2014). To determine whether reasonable efforts were made, the district court

must consider “whether [the] services [offered] to the child and family 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) (2014).

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 Appellant argues that the district court’s conclusion that the county made

reasonable efforts to reunify him with the children is not supported by the record because

the county “did virtually nothing to assist in reunifying [him] with his children.” But, as

the district court found, the children were placed outside of the home due to appellant’s

problems with alcohol dependency. Following the out-of-home placement, a case plan

was developed that required appellant to participate in a chemical-dependency program.

The district court specifically found that the treatment programs offered to appellant were

“culturally, linguistically, and clinically appropriate,” but that appellant failed to follow

through with the case plan, particularly by failing to admit his alcohol dependency. The

district court’s findings refute appellant’s argument that the county did nothing to assist

appellant in reunifying him with his children. Instead, the district court’s findings

demonstrate that by failing to comply with the case plan, appellant refused to accept the

county’s assistance. The district court’s findings are supported by the record. Thus, the

district court did not abuse its discretion by concluding that the grounds for terminating

appellant’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5), were proven by

clear and convincing evidence.

C. Egregious harm

A district court may terminate all rights of a parent to a child if it finds that a child

has experienced egregious harm in the parent’s care. Minn. Stat. § 260C.301, subd.

1(b)(6). Egregious harm includes “conduct toward a child that constitutes criminal

sexual conduct.” Minn. Stat. § 260C.007, subd. 14(10) (2014). Here, the district court

found that the children have experienced egregious harm while in appellant’s care,

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including, but not limited to, appellant’s “sexual abuse against” L.M.B. But because we

have already determined that the district court did not abuse its discretion by terminating

appellant’s parental rights based on palpable unfitness and reasonable efforts, we need

not address appellant’s challenge to the district court’s conclusion that the children have

experienced egregious harm in his care.

Finally, appellant argues that the district court “abused its discretion when it

refused to allow [him] to call [L.M.B.] as a witness at trial without first conducting a

competency hearing.” Appellant claims that the refusal to conduct a competency hearing

“had a profound impact on [his] ability to defend against the allegations of sexual abuse.”

Thus, appellant contends that he is entitled to a new trial so that the proper procedure can

be followed.

Appellant’s argument with respect to the competency hearing pertains specifically

to the allegations of sexual abuse and the termination of his parental rights on that

ground. However, as set forth above, on this record we need not address this basis for

terminating appellant’s parental rights. And even if even if we were to address

appellant’s argument that the district court was required to conduct a competency hearing

before deciding whether L.M.B. was not competent to testify, we would conclude that the

argument lacks merit.

Affirmed.

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