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

Minnesota Court of Appeals November 3, 2014

Opinion

This opinion will be unpublished and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UNPUBLISHED OPINION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.

4
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




                                              6
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



                                             9
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



                                              11
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

12
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.

Reference

Status: Unpublished