This opinion will be unpublished and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
                                     A14-0946

      In the Matter of the Welfare of the Children of: S. W. N. and J. L. P., Parents.

                                  Filed October 6, 2014
                                        Reversed
                                     Schellhas, Judge

                              Winona County District Court
                                 File No. 85-JV-14-15

Samuel D. Jandt, Jandt Law Office, La Crescent, Minnesota (for appellant S.W.N.)

Michael A. Murphy, Hammell & Murphy, P.L.L.P., Caledonia, Minnesota (for
respondents D.P. and K.P.)

Bruce A. Nelson, Winona, Minnesota (for respondent J.L.P.)

Catherine Schofield, Winona, Minnesota (guardian ad litem)

       Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and

Schellhas, Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges the district court’s termination of his parental rights, arguing

that the record lacks clear and convincing evidence that he is palpably unfit to parent and

that a child suffered egregious harm in his care. We reverse.
                                         FACTS1

       Appellant-father S.W.N. and J.L.P. married on December 23, 2004.2 J.L.P.’s

parents are her legal guardians and conservators. The record reflects that S.W.N.’s

relationship with J.L.P.’s parents—his in-laws—was acrimonious before the parties’

marriage and thereafter. On September 17, 2005, J.L.P. gave birth to T.L.N. In October

2005, J.L.P. petitioned the district court for an order for protection (OFP) against S.W.N.

to protect herself and T.L.N. The district court dismissed the petition.

       On April 26, 2008, J.L.P. gave birth to D.H.N. In July 2008, J.L.P. petitioned the

district court for an OFP against S.W.N. to protect herself, T.L.N., and D.H.N. (the

children). On July 8, 2008, the district court issued an ex parte OFP. In J.L.P.’s affidavit

and petition for the OFP, J.L.P. made the following allegations:

              Slamming [T.L.N.] on potty chair so hard she has (ongoing)
              bruises on tailbone. He jerks shopping cart to make [T.L.N.]
              (6-5-08) sit down. I was looking at the shelf in the store for
              groceries when I heard [T.L.N.] crying and I looked and she
              was laying on the floor. [S.W.N.] said she was leaning over
              the side and fell.

              ....



1
 The district court took judicial notice of the following court files without objection by
the parties: 85-FA-08-2838 (marriage dissolution); 85-FA-08-1915 (domestic abuse); 85-
FA-07-498 (grandparent visitation); 85-CV-07-230 (harassment); 85-CV-08-2592
(harassment); 85-FA-05-453 (domestic abuse). Some of the facts set forth in this opinion
are taken from J.L.P.’s sworn submissions to the district court in those files. Some facts
are taken from the district court’s orders in those files.
2
  The record reveals that both parents have disabilities. S.W.N.’s disabilities appear to
relate to his mental health, and J.L.P.’s disabilities appear to relate to her intellectual
development.

                                              2
              [S.W.N.] and I have known each other since 2001. We are
              married now and have been separated several times. We have
              two children, a 2-1/2-year-old and a newborn. [S.W.N.] is
              very controlling and lies to me about my family and won’t let
              me talk to them alone. Our 2-1/2-year-old has been hit by
              him. She has unusual bruises on her face and back and she
              says “daddy naughty” and points to her bruises. She is clearly
              afraid of him. He has also pushed her down and he forcibly
              grabs her and leaves bruises on her arms. He squeezes the
              newborn and doesn’t support his head. [S.W.N.] lifts the baby
              by his clothes to move him out of the way, because he doesn’t
              want to get up. I need this [OFP] to protect my children
              because I’m very worried about their safety when they are
              with him.

       J.L.P. and S.W.N. stipulated to continue the conditions in the ex parte OFP, as

modified, and the district court issued a one-year OFP on August 22, 2008, “without a

finding of abuse.” The OFP granted S.W.N. twice-weekly supervised parenting time with

the children. In September 2008, J.L.P. petitioned the district court for marriage

dissolution, and her parents, D.P. and K.P. (the grandparents), intervened and sought sole

legal and physical custody of the children.

       In June 2009, J.L.P. applied to the district court to extend the OFP, stating that, on

May 7, 2009, she “[had] 911 called at visitation”; that “Sept. 12, 2008−[S.W.N.] drives

past our home”; and that “March 23, 2009−[S.W.N.] tried to talk to [J.L.P.] at visitation.”

On August 28, 2009, based on the parties’ agreement, the district court extended the OFP

until final disposition in the marriage-dissolution case, noting that “[i]t is agreed and

understood by the parties that the [OFP] is not being extended based upon any finding of

a violation nor any determination that a violation has not occurred.”




                                              3
      In October 2009, in a stipulated marriage-dissolution/third-party-custody

judgment, the district court granted the grandparents sole legal custody and sole physical

custody of the children. The court granted J.L.P. “liberal parenting time as deemed

appropriate by [the grandparents]” and granted S.W.N. “supervised parenting time for

two hours each week to be supervised by Family and Children’s Center of Winona”

(Family Center). The dissolution/third-party-custody judgment grants the grandparents

the right to determine the day and time of S.W.N.’s parenting time based upon the staff

availability at Family Center and S.W.N.’s part-time work schedule. The judgment also

provides that S.W.N. is “solely responsible for all costs associated with the supervised

visits” and that the grandparents are “responsible for all transportation associated with

making the children available for the supervised visits.” The judgment provides that, if

Family Center is unavailable, “[S.W.N’s] parenting time shall be exercised through a

similar professional parenting supervision service.”

      From July 2008 to November 2010, S.W.N. exercised his parenting time with the

children under the supervision of the grandparents’ neighbor or Family Center. But

Family Center discontinued its service to S.W.N. because it ceased accepting personal-

check payments. In January 2011, S.W.N. began exercising his parenting time at Coulee

Youth Center in La Crosse, Wisconsin, approximately a 40-minute drive from Winona.

Although the record is unclear as to when, at some point, S.W.N. began exercising his

parenting time every other week because of the associated expense. S.W.N. has not

visited with T.L.N. since May 2013, due to T.L.N.’s refusal.




                                            4
       The children received therapy from multiple professionals. From August 2008 to

January 2013, T.L.N. saw JoAnn Planavsky, a clinical social worker with Hiawatha

Valley Mental Health Center. The record does not reflect why T.L.N’s therapy with Ms.

Planavsky terminated. From February 2013 until trial, T.L.N. saw Betty Lacine, MS,

through Family Center. And from April 2013 until trial, T.L.N. saw LeAnne Morey, a

psychiatric physician assistant with Winona Health. D.H.N. saw Betty Lacine from

February 2013 until the time of trial.

       In January 2014, stating their desire to adopt the children, the grandparents

petitioned for termination of parental rights (TPR) on the grounds of abandonment,

refusal or neglect to comply with parental duties, palpable unfitness, and egregious

harm.3 Also in January, the district court appointed a guardian ad litem (GAL) for the

children. In February, the court ordered Steven C. Norton, PhD LP, to examine S.W.N.

and diagnose his “mental condition” and, if he found S.W.N. to be “mentally ill,” to

explain “what if any limitations . . . his mental condition have on his ability to parent his

children,” and to provide “[a] statement of the factual basis on which the diagnosis [was]

based.”

       The district court conducted a trial on April 9, 2014. Although notified of the

proceeding in February, the county social services agency did not participate. After the

trial but before the court ruled on the TPR petition, the grandparents dismissed the

petition with respect to J.L.P., although she is not named in the petition. The district court

3
  The TPR petition does not name J.L.P. or refer to her parental rights but the
grandparents served her with the petition and the district court appointed her legal
counsel.

                                              5
terminated S.W.N.’s parental rights based on its determinations that S.W.N. is palpably

unfit and that a child experienced egregious harm in his care.

       This appeal follows.

                                     DECISION

       “The U.S. Supreme Court has long recognized the fundamental nature of parental

rights.” In re Welfare of Child of R.D.L., ___ N.W.2d ___, ___, 

(Minn. Sept. 10, 2014). “[T]he Supreme Court [has] noted that the fundamental liberty

interest of natural parents in the care, custody, and management of their child does not

evaporate simply because they have not been model parents or have lost temporary

custody of their child to the State.” 

 (quotation omitted). A district court may terminate

parental rights if: (1) one or more of nine statutory grounds exist for termination under

Minn. Stat. § 260C.301, subd. 1(b); (2) either reasonable efforts have been made to

reunify the child and parent, Minn. Stat. § 260C.301, subd. 8 (2012), or such efforts are

not required, 

(a) (2012); and (3) termination of parental rights is in

the child’s best interest. Minn. Stat. § 260C.301, subd. 7 (2012); see also R.D.L., 

 (“[A]n involuntary termination of parental rights is proper only when

at least one statutory ground for termination is supported by clear and convincing

evidence and the termination is in the child’s best interest.”). “The burden of proof is

upon the petitioner and is subject to the presumption that a natural parent is a fit and

suitable person to be entrusted with the care of a child . . . .” In re Welfare of Chosa, 

 (Minn. 1980) (citation omitted). “[T]ermination of parental rights is

always discretionary with the juvenile court.” R.D.L., 

. “[T]he


                                             6
court may, but is not required to, terminate a parent’s rights when one of the nine

statutory criteria is met.” 

 (quotation omitted).

       On appeal from a TPR, this court reviews the record to determine whether the

evidence is clear and convincing. In re Welfare of Children of R.W., 

(Minn. 2004).

              “Clear and convincing” means exactly what is suggested by
              the ordinary meaning of the terms making up the phrase. The
              burden of clear and convincing evidence is less than that
              required by the “beyond a reasonable doubt” standard in
              criminal matters and is met when the truth of the fact to be
              proven is “highly probable.” In order to prove a claim by
              clear and convincing evidence, a party’s evidence should be
              unequivocal, intrinsically probable and credible, and free
              from frailties.

Gassler v. State, 

 (Minn. 2010) (citations omitted). “We . . . require

that the evidence relating to termination must address conditions that exist at the time of

the hearing, . . . and that it must appear that the present conditions of neglect will

continue for a prolonged, indeterminate period.” Chosa, 

. We review a

district court’s “findings of the underlying or basic facts for clear error, but we review its

determination of whether a particular statutory basis for involuntarily terminating

parental rights is present for an abuse of discretion.” In re Welfare of Children of J.R.B.,

 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012).

       Here, although S.W.N. does not challenge the factual findings in the district

court’s eight-page TPR order, we note that most of the court’s findings are not true

findings; they are recitations of the trial proceedings. See In re Civil Commitment of

Spicer, ___ N.W.2d ___, ___, 

 (Minn. App. Aug. 18, 2014)


                                               7
(“[A] district court’s recitation of what others have observed is not a finding of fact that

those observations are true.” (quotation omitted)). Such findings make our review more

difficult.

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

       Broken into its component parts, Minnesota Statutes section 260C.301,

subdivision 1(b)(4), requires factual findings that manifest “(1) a consistent pattern of

specific conduct before the child or specific conditions, (2) directly relating to the parent

and child relationship, (3) of a duration or nature that renders the parent unable to care

appropriately for the needs of the child, (4) for the reasonably foreseeable future.” In re

Welfare of Child of J.K.T., 

 (Minn. App. 2012).

       The district court concluded that S.W.N. is palpably unfit to be a party to the

parent-child relationship, as follows:

              There is clear and convincing evidence that [S.W.N.] is
              unable to currently care for the children. The evidence shows
              a consistent pattern of [S.W.N.]’s conduct of a nature that is
              mentally and physically harmful to the children and
              damaging to the parent and child relationship. There is no
              evidence that within a foreseeable time, [S.W.N.] will be
              able to care for the children. The provision of services or
              future services for the purposes of rehabilitation is futile
              given [S.W.N.]’s lack of insight into the effects of his
              behavior on the children and his failure to address issues.

       S.W.N. argues that clear and convincing evidence does not support this

conclusion. We agree. Almost all of the evidence in the record pertains to acts of abuse

that allegedly occurred prior to July 2008. This is troubling.




                                              8
       The district court admitted into evidence K.P.’s notes about statements allegedly

made by T.L.N. regarding acts of abuse allegedly committed by S.W.N. against T.L.N. at

unspecified times. The notes include T.L.N.’s purported statements that S.W.N. held her

upside down and hit her as hard as he could, held her out a window and told her to shut

up or he would drop her, punched her in the stomach and caused her to lose her breath,

touched her “private parts” while she was on his lap, and held her tightly so that she

could not move. We conclude that this evidence falls far short of addressing conditions

that existed at the time of the trial, as required by Chosa.

       The district court admitted into evidence excerpts from Lacine’s notes taken

during her visits with T.L.N. Lacine’s notes include statements made by T.L.N., similar

to K.P.’s notes, regarding the alleged abuse by S.W.N. Lacine testified that both children

had suffered trauma. The district court admitted into evidence a letter from Morey,

describing T.L.N.’s statements that she “remembered being abused by [S.W.N.]” And the

district court admitted into evidence the GAL’s report referencing J.L.P.’s 2008 OFP

petition and affidavit. The GAL testified that S.W.N. had a history of harming the

children, basing her testimony on statements by T.L.N., J.L.P., the grandparents, and

reports made to child protection services in cases that were closed. All of the alleged acts

of abuse occurred prior to the 2008 OFP. J.L.P. did not testify.

       S.W.N. testified that he never harmed T.L.N. and would never “even conceive of

hitting [the children] or doing those dirty things.” He testified that the grandparents were

manipulating the children into believing that he was bad. S.W.N.’s sister-in-law, C.N.,

testified that she did not notice S.W.N. act inappropriately toward her own children and


                                              9
did not notice S.W.N.’s mental illness affecting his interaction with his children.

S.W.N.’s brother, H.N., testified that S.W.N.’s interactions with H.N.’s children were

appropriate. S.W.N.’s mother, S.N., testified that S.W.N. had interacted with her other

grandchildren and that the interaction had been appropriate.4

       Based on the record, S.W.N.’s alleged acts of abuse of T.L.N. had to have

occurred prior to July 8, 2008, when the district court issued an ex parte OFP. On that

date, T.L.N. was two years old. Since that date, T.L.N. has seen S.W.N. only in

supervised settings, and she has not seen him at all since May 2013.

       The grandparents claim that S.W.N. has been uncooperative in connection with his

parenting time. According to K.P.’s notes and testimony, S.W.N. yelled at her and once

exposed his buttocks to her in front of the children and S.N., the latter of whom denies

the incident. K.P. also testified that S.W.N. refused to follow parenting-time protocols,

such as exiting the visitation facility through the proper door to avoid contact with the

grandparents. The district court admitted into evidence two recorded voicemail messages

left by S.W.N. on the grandparents’ answering machine in which S.W.N. used aggressive

language and yelled angrily about the parties’ ongoing personal and legal differences.

K.P. testified that S.W.N. said mean things about D.P. and her to the children.

       The district court admitted into evidence Dr. Norton’s March 21, 2014 report

regarding his psychological evaluation of S.W.N. Noting that his “evaluation should not

in any way be construed as a child custody evaluation or a recommendation on


4
 According to S.N.’s testimony, the grandparents’ attorney informed S.N. that she could
not participate in S.W.N.’s supervised visits with the children.

                                            10
termination of parental rights,” Dr. Norton reported that S.W.N. “is an angry, hostile,

paranoid individual” and that he meets the diagnostic criteria for dysthymia, early onset;

paranoid personality disorder; and borderline intellectual functioning. Dr. Norton also

noted that “[S.W.N.] focuses most heavily on the former in-laws and has an intense

threatening attitude toward them” and opined that “[i]t is clear, [S.W.N.] would be unable

to work effectively with the in-laws, or likely with anyone, in managing his children.” Dr.

Norton reported that S.W.N. “appears to care for his children but has very limited actual

understanding of how to provide care.” He also stated that “given [S.W.N.’s] current

level of anger and paranoid ideation, and based on his limited awareness of appropriate

parenting practices, he would have marked difficulty effectively providing for the

positive and appropriate care of his children.” Dr. Norton also testified that there is

treatment that could help S.W.N. with his mental illnesses but that S.W.N. would be

unwilling to engage in such treatment. We are troubled that the record contains no

evidence that S.W.N. has been offered treatment or that he is, in fact, resistant to

treatment.

      Regarding the children’s mental health concerns, Lacine testified that T.L.N. has

posttraumatic stress disorder; is hyper vigilant and anxious; and has sleep issues,

nightmares, and other fears and worries. Lacine also testified that T.L.N.’s visits with

S.W.N. interfered with her progress in therapy. She testified that D.H.N. showed signs of

trauma by disassociating when he was stressed and, in one of her letters, stated that

D.H.N. had intense anxiety.




                                            11
         Morey testified that she diagnosed T.L.N. with attention deficit hyperactivity

disorder (combined type), generalized anxiety disorder, and depressive disorder. She

testified and opined in a letter that T.L.N.’s mental issues were exacerbated by visits with

S.W.N., “retraumatiz[ing]” her with each visit and preventing her from healing.

         K.P. testified that T.L.N. became scared and chewed her fingernails before visits

with S.W.N. She said that T.L.N. did not act like herself and became sick on parenting-

time days, sometimes experiencing bouts of diarrhea. T.L.N. even vomited after a visit.

K.P.’s parenting-time notes indicated that T.L.N. said something was “wrong with her

head.”

         T.L.N.’s former teacher, K.K., testified about an early interaction with T.L.N. in

which she touched T.L.N.’s shoulder and T.L.N. reacted by screaming that K.K. was

hurting her and not to touch her. She testified that T.L.N. acted withdrawn from staff and

students after visits with S.W.N. K.K. also testified that T.L.N. seemed anxious and

fearful. T.L.N.’s teacher at the time of trial, T.T., testified that T.L.N. exhibited signs of

anxiety by picking at her ears and scalp, sometimes to the point of bleeding. T.L.N.’s

behavior worsened around parenting time with S.W.N. D.H.N.’s preschool teacher, L.D.,

testified that D.H.N. displayed concerning behaviors leading up to parenting time,

primarily crying for no apparent reason and not eating much.

         Notably missing from the record evidence is any input from Planavsky, T.L.N.’s

therapist from 2008 until January 2013, any input from the neutral parenting-time

supervisors, any testimony from J.L.P., and any evidence regarding any treatment offered

to S.W.N. to address his mental-health condition.


                                             12
       The witnesses’ testimony was based almost entirely on statements made by T.L.N.

about events that occurred when T.L.N. was age two or younger, J.L.P.’s allegations

made in 2008, and witnesses’ review of K.P.’s parenting-time notes. We conclude both

that this evidence falls far short of addressing conditions that existed at the time of the

trial and it does not constitute clear and convincing evidence that S.W.N. is palpably

unfit. See In re Welfare of P.R.L., 

 (Minn. 2001) (“[Evidence in

support of termination] must relate to conditions that exist at the time of termination

. . . .” (emphasis added)); see also In re Welfare of Children of B.M., 

 (Minn. App. 2014) (treating as unpersuasive county’s argument regarding father’s

past susceptibility to exploitation, which was no longer an issue at time of trial).

       The district court found that S.W.N. is an uncontrollably angry person who

struggles to cooperate with the grandparents, noting that he acted out toward the

grandparents on certain occasions, sometimes yelling and, on one occasion, revealing his

buttocks to K.P. Assuming the correctness of the court’s findings, we conclude that they

are insufficient to support a conclusion that S.W.N. is palpably unfit to be a party to the

parent-child relationship with his children. “Parental rights are terminated only for grave

and weighty reasons.” In re Welfare of M.D.O., 

 (Minn. 1990). The

grandparents cite no legal authority to support the proposition that a parent’s dislike of or

inability to cooperate with his children’s custodians, by itself, renders that parent

palpably unfit to be a party to the parent-child relationship.

       The grandparents’ palpable-unfitness argument seems to relate to S.W.N.’s alleged

abusive acts prior to the 2008 OFP and his anger-control issues. The grandparents claim


                                             13
that S.W.N.’s parenting time with the children is harmful to their mental health because

they relive the alleged abuse that they experienced and because S.W.N. is a generally

angry person. The district court agreed that S.W.N. is palpably unfit based on the

evidence, but we do not. Even if parenting time between T.L.N. and S.W.N. is presently

not in T.L.N.’s best interest, terminating S.W.N’s parental rights is not supported by clear

and convincing evidence necessary to satisfy the statutory ground of palpable unfitness.

See In re Welfare of M.H., 

, 227–29 (Minn. App. 1999) (affirming

district court’s decision not to terminate mother’s parental rights even though child

needed therapy, was hesitant to see mother, and termination would be in child’s best

interest). “[A] court may not base termination of parental rights solely on the best

interests of a child.” 

.

       Here, the record contains no evidence that S.W.N.’s conduct ever caused Family

Center or Coulee Youth Center to end S.W.N.’s parenting time early or to intervene

during S.W.N.’s parenting time. Dr. Norton testified that collateral documents suggest

that S.W.N.’s supervised parenting time was “fairly tense” and not “overly successful,”

and the GAL’s report states that S.W.N. consistently attended parenting time. But the

parenting-time supervisor for the three-year period preceding the TPR trial, L.L., reported

that S.W.N. was for the most part appropriate, with the need for redirection at times. L.L.

also reported that S.W.N.’s parenting time was neither improving nor worsening, and that

S.W.N.’s parenting time was “going all right.” We therefore conclude that clear and

convincing evidence does not support the district court’s conclusion that S.W.N. is

palpably unfit to be a party to the parent-child relationship.


                                             14
Egregious harm

      The district court also terminated S.W.N.’s parental rights based on its conclusion

that T.L.N. experienced egregious harm in S.W.N.’s care, as follows:

             There is clear and convincing evidence that [T.L.N.] has
             experienced egregious harm in [S.W.N.]’s care and that such
             harm shows [S.W.N.]’s lack of regard for the child’s well-
             being and his gross inability to provide minimally adequate
             parental care to any child.

S.W.N. argues that clear and convincing evidence does not support this conclusion. We

agree. Minnesota Statutes section 260C.301, subdivision 1(b)(6), provides that

termination of parental rights may occur when

             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 or of any child to be in the parent’s care[.]

“‘Egregious harm’ means 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 (2012).

      Without making true findings, the district court recited testimony and other

evidence, stating that S.W.N. held T.L.N. tightly such that T.L.N. could not move; held

T.L.N. outside an open window and threatened to drop her if she did not “shut up”;

touched T.L.N.’s “private parts” while she sat on his lap; punched T.L.N. in the stomach;

flipped T.L.N. upside down, held her by her ankles, and hit her as hard as he could; and

slammed T.L.N. on a potty chair and squeezed her, resulting in bruising on her tailbone

and arms. The only evidence that relates to these findings is evidence about conduct that


                                             15
allegedly occurred prior to July 2008, and most of the evidence related to statements

allegedly made by T.L.N. long after that time period.

       After careful review of the record and assuming without deciding that S.W.N.

committed the alleged acts of abuse against T.L.N., we conclude that the evidence is not

clear and convincing that a child was egregiously harmed while in S.W.N.’s care within

the meaning of Minnesota Statutes sections 260C.007, subdivision 14, .301, subdivision

1(b)(6). See In re Welfare of Children of M.A.H., 

 (Minn. App.

2013) (concluding that record supported district court’s conclusion that egregious harm

was experienced by severely malnourished child with protruding abdomen, below

average bone growth, brain atrophy, and refeeding syndrome); In re Welfare of Children

of D.M.T.-R., 

, 765–66 (Minn. App. 2011) (affirming TPR after

validating “legal[] sound[ness]” of district court’s conclusion that children experienced

egregious harm when mother “hit[] them with her hands and with a belt and . . . punch[ed

one of the children] in the mouth,” “tied [two of the children] to chairs, taped their

mouths shut, locked them in the basement, and told them that snakes and blood-sucking

animals would harm them there”); In re Welfare of A.S., 

, 192–93, 198

(Minn. App. 2005) (affirming TPR after holding that “[c]lear and convincing evidence

supports the district court’s findings that father inflicted egregious harm on another child”

whom father sexually assaulted), review denied (Minn. Sept. 20, 2005).

       Reversed.




                                             16