This opinion will be unpublished and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
                                   A16-1037

            In the Matter of the Welfare of the Children of: D. K. P., Parent

                              Filed November 28, 2016
                                     Affirmed
                                  Connolly, Judge

                             Steele County District Court
                                File No. 74-JV-16-542


Joel E. Eaton, Eaton Law Office, Owatonna, Minnesota (for appellant father)

Daniel A. McIntosh, Steele County Attorney, Sasha J. Zekoff, Assistant County Attorney,
Owatonna, Minnesota (for respondent-petitioner Minnesota Prairie County Alliance)

Karie M. Anderson, Patton, Hoversten & Berg, P.A., Waseca, Minnesota (for respondent
mother)

Julie A. Nelson, Owatonna, Minnesota (guardian ad litem)



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

Toussaint, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges the involuntary termination of his parental rights to his two

children, arguing that: (1) the district court erred in concluding that the termination petition

made a prima facie showing that appellant caused the children egregious harm, so that

efforts toward reunification of him and his children would be futile; and (2) the record did

not support the findings that appellant cannot provide emotionally for his children and is

palpably unfit to be a parent and that termination of appellant’s parental rights is in his

children’s best interests. Because the termination petition does make a prima facie showing

that appellant caused the children egregious harm and because the record supports the

district court’s findings, we affirm.

                                           FACTS

       Appellant D.K.P. (father) and M.M. (mother) had a son, K., in November 2003 and

a daughter, Z., in September 2005. Both children lived with M.M. in Oklahoma until

December 2007, when K. was taken to Minnesota to live with appellant.

       In October 2008, a child-protection report was filed stating that K., then four, was

observed with a large bruise on his stomach that he said resulted from appellant hitting him

with a belt. Appellant told the assessment worker that he hit K. eight times with the belt

because his behavior was “out of control” and he “needed to be whooped” and appellant

was angry with him. Appellant promised not to use corporal punishment again and to

engage in parenting services, and K. was released to appellant’s home. But in November

2008, appellant told a social worker that he would not accept parenting services because


                                               2
he was “comfortable” with his parenting; he denied ever striking a child in anger; he

disagreed with the view that the only acceptable physical discipline is striking a child with

an open hand in a manner that does not leave a mark; and he said he would continue his

disciplinary practice of striking K. with an object, telling him how many times he would

be struck, and counting the blows to help K. learn to count. Appellant also said the bruise

on K.’s stomach resulted from a fall at school, although he had previously said it resulted

from appellant hitting K. with a belt. In December 2008, K. returned to live with M.M.

and had no further contact with appellant for two and a half years.

       In October 2009, appellant married K.M.P., a special-education case manager. They

had a daughter, N., in September 2010. In 2011, an Oklahoma custody order gave appellant

and M.M. joint legal custody of both their children, gave M.M. sole physical custody of

Z., and gave appellant sole physical custody of K. By the end of 2011, both K. then eight,

and Z., then six, were in Minnesota living with appellant, K.M.P., and N.

       In June 2012, Z.’s summer-school teacher reported seeing bruises on Z.’s arm that

Z. said resulted from appellant hitting her with a belt. Appellant later testified that he had

bruised Z.’s arm while whipping her with a belt because she put her arm in the way.

       In July 2012, a social worker, after talking to Z., met with appellant. Z. was present

at the meeting in their home. Although Z. had said at school that she did not want to go

home and clung to her teacher’s leg when it was time to go home, she said at the meeting

that she hated school and liked to be at home. Appellant had Z. demonstrate how exercise

was used as a form of discipline; he said he spanked but did not abuse the children and

again declined parenting-education services.


                                              3
       In December 2012, Z. reported during a bathroom break at school that her bottom

hurt because appellant had injured her. The school nurse discovered a bloody gauze patch

over a quarter-sized open wound on Z.’s buttock. Another child-protection report was

submitted. A week later, Z. reported that a scabbed area on her shin resulted from appellant

hitting her with his new paddle. She also reported being very hungry and not being allowed

to eat the food sent home in the school backpack program. Z. said she did not want to go

home because she was afraid of being punished with the new paddle with holes in it.

Appellant later testified that this paddle existed and was one of several he used on the

children.

       In January 2013, the file was closed by the county worker who met with appellant

and Z. and, in the district court’s words, “decided this was a child behavioral problem and

that [appellant] was ‘a member of a disparaged population’”; “based [closing the file]

largely on [appellant’s] seemingly sincere representation he had changed his practices as a

result of this report”; and apparently did not “ever attempt to verify whether there was any

follow through by [appellant].” The district court also found that, although appellant

claimed he and the children had begun therapy that was to “fix” the children so he would

not “need” to use physical punishment on them, no records of any therapy were produced.

       In February 2013, after approximately 14 months with appellant, K. and Z. went to

Oklahoma to live with M.M. and their grandmother. In August 2013, a second daughter,

C., was born to appellant and K.M.P. In April 2014, K.M.P. obtained an order for

protection against appellant after he reacted to service of a dissolution petition by grabbing

and spraining her wrist, blocking her retreat, and punching a wall.


                                              4
       In August 2014, after being away from appellant for 18 months, K. and Z. returned

to Minnesota to live with him again. He told them there would be no more spankings but,

during the next year and a half, appellant continued to spank both children with paddles or

a belt, Z. more than K. After particularly severe spankings, Z. was required to sit in an ice

bath that K. was required to prepare for her. K. later testified that he also had been required

to sit in ice baths after beatings when he lived with appellant in 2012-2013.

       On February 24, 2016, Z. was observed to be walking strangely and to be unable to

sit comfortably in school. When asked about this, Z. first said that she could not talk about

it or she and K. would not have a place to live and that she got in more trouble the last time

she talked about it. Ultimately, Z. said that appellant had spanked her with a paddle the

previous night and would spank her with the paddle again that night. A social worker

photographed Z.’s injuries.

       The next day, a social worker and the police chief met with Z., who said she had

been hit more than 22 times two days earlier (February 23) and ten times the previous day.

They spoke to K., who corroborated what Z. had said but was reluctant to give any

information for fear that appellant would find out K. had talked. The police also visited

appellant that day. He turned over to them the wooden cutting board he had used as a

paddle to spank Z., on which he had made both children sign their names.

       Appellant was arrested and arraigned on charges of malicious punishment and

domestic assault, to which a charge of third degree assault—past pattern of child abuse was

added. A Domestic Abuse No Contact Order (DANCO) was issued, and CHIPS petitions

were filed on K. and Z.


                                              5
       In March 2016, respondent-petitioner Minnesota Prairie County Alliance filed a

petition for the termination of appellant’s parental rights to K. and Z. At a hearing on the

petition, appellant’s attorney made an oral motion challenging the “egregious harm”

allegations in the petition. The motion was denied.

       A trial was held in April 2016. It included testimony from the psychologist who

had done a Parenting Capacity Assessment of appellant, which was admitted as an exhibit;

the child protection case manager; and the guardian ad litem.

       The Parenting Capacity Assessment was based on the psychologist’s interviews of

appellant and the children and on seven psychological tests of appellant. The report

concludes that

              [appellant] does not appear to have the ability to parent the
              children to capacity and the risk for continued abuse would be
              high. In addition, there does not appear to be any bonding and
              attachment between the children and [appellant.] . . . The
              children have verbalized to numerous sources they do not wish
              to return to live with [appellant] and are extremely afraid that
              if they do have to return they will incur more abuse.

       The psychologist recommended that “permanency for [K. and Z.] be established

outside the custody of [appellant].”

       The child protection case manager testified that she had not reviewed with the

children a plan that involved their reunification with appellant because, when she talked

about reunification, “they became uncomfortable and I did not want to continue making

them uncomfortable.” When asked if she had heard from other service providers, including

those who provided foster care, that the children did not want to return to appellant and if

she believed the children were sincere in stating that they did not want to return, she


                                             6
answered, “Yes.” When asked if it was in the children’s best interest to wait and see if

appellant could refrain from physical discipline for more than two or three months, as he

said he had done before, she answered, “No.”

         The children’s guardian ad litem testified, “I do not feel [the children] would be safe

in [appellant’s] home and given the testimony that I have heard throughout this proceeding,

I do not think in the foreseeable future that they would be safe in the care of [appellant]”

and said, “I do believe, given the testimony that I have heard here that a termination of

parental rights is [in] the children’s best interest with regard to [appellant.]” The guardian

ad litem also testified that the children “have expressed a desire to not return to

[appellant’s] care” because “They’re afraid. They don’t trust him. . . . [T]hey’ve been

promised before that things are going to change and they didn’t. Their dislike for him [is]

. . . strong dislike.” When asked if she thought it was in the children’s best interest to “wait

and see if [appellant] can work on services and change”, she answered, “I do not . . .

[because t]hey have been doing that for years, waiting to see. . . . [R]ebuilding that

relationship, I don’t see that happening in anywhere near the foreseeable future.”

         In June 2016, the district court issued an order for termination of appellant’s parental

rights. The order included, among other things:

                                    FINDINGS OF FACT1

                ....
                57.    [Appellant] testified at length. He holds certain
                immutable precepts: corporal punishment is the only way to
                keep his children out of prison. It is better to spank a child with
                an object so as to avoid the temptation to ball his fists. . . . In

1
    The district court refers to K. as KP and to Z. as ZP.

                                                7
his view, the prohibition on corporal punishment is a
Minnesota cultural difference with which he does not agree.
He does not want anyone telling him what to do. Spankings
“make for understanding.”
58.      The extent of the paddling was such that [appellant] had
gotten blisters from paddling the children. He then resorted to
wearing gloves so the paddle would not slip, and also to protect
his hand from splinters. [Appellant] was often oblivious to the
children’s pain and injuries, but took care to protect himself.
59.      . . . [Appellant] admitted breaking one [paddle] on each
of the two children. Nonetheless, he claimed the children were
“oblivious” to the spankings. He attributed any crying the
children did during the beatings as due to “hurt feelings or
whatever,” and pointed out that sometimes they cried even
before he began paddling them. The spankings were not
excessive in his view because they failed to correct the
behaviors he sought to punish.
60.      This testimony undermines the credibility of his later
testimony that his February 23, 2016 “whoopin” of ZP was
excessive, “very much so.” The Court views the later
statement as [appellant] saying not what he believes to be true
but what he believes the Court wants to hear. While [appellant]
testified that he had never hit ZP that hard before [February 23,
2016], he also testified that he “had control” during the beating.
Even though he saw that [ZP] was limping after the beating and
in his words “was greatly concerned”, [appellant] still followed
through the next night on his threat to spank her ten times every
day because he “wanted her to fear that.”
....
63.      [Appellant’s] lack of insight into what is required of a
parent was evident by the fact [that] he was untroubled by his
lack of contact with the children for three years from 2009-
2011. . . .
....
65.      [Appellant] denied his need for services [to improve his
parenting] in 2008, twice in 2012, and now in 2016. . . .
....
67.      The Court is convinced [appellant] loves [h]is children
but is also convinced he will not [accept] services except on his
own terms, in his own time, if ever.
68.      The evidence [and] testimony adduced at trial . . .
demonstrate that the children have been seriously traumatized.
. . . [T]heir recovery will take months at the very least. Neither


                                8
              child wishes to see [appellant,] and their wishes are based on
              concrete evidence. Abiding by their wishes in this regard will
              assist the children in their recovery.

                               CONCLUSIONS OF LAW
              ....
              12.     . . . [Appellant] was given ample opportunities to
              address his parenting issues and declined services. While he
              was intermittently contrite during trial, he has professed to
              want to change his parenting style before, and that did not last.
              He still asserts that corporal punishment was the only thing that
              kept him out of prison, and the Court is not convinced that he
              would not apply this belief to KP and ZP again if given the
              opportunity. [Appellant] is an intelligent man, who . . . may
              well be able to learn sufficient parenting skills to be a safe
              parent [but expert] testimony . . . clearly indicated that would
              likely take more than a year, and the children cannot fairly be
              required to wait in limbo to see if [appellant] follows through
              on his own treatment needs, particularly in view of his lack of
              commitment to his own treatment needs up until the time of
              trial.
              13.     Additional or future services will not likely bring about
              lasting parental adjustment enabling [appellant] to care for KP
              and ZP within a reasonable period of time. There is clear and
              convincing evidence that [appellant] cannot safely parent the
              children now or in the foreseeable future.2

       Appellant challenges both the district court’s conclusion that the petition to

terminate his parental rights made a prima facie showing that egregious harm had occurred

to his children, so the county was not required to make reasonable efforts for reunification,3



2
  Appellant does not really refute the district court’s findings and conclusions, other than
by expressing the views that the harm suffered by the children was not egregious and that,
regardless of the statute to the contrary, parents who hit children with objects and cause
them egregious harm are entitled to the county’s efforts to reunite their families.
3
  Although the Notice of Appeal referred only to the June 2016 order terminating
appellant’s parental rights, appellant’s brief also addresses the April 2016 order denying
his motion for an order concluding that the petition did not make a prima facie case of
egregious harm and that petitioner was therefore obliged to make reasonable efforts to

                                              9
and its ultimate determination that termination of appellant’s parental rights is in his

children’s best interests.

                                     DECISION

1.     Did the district court err in concluding that appellant’s children suffered
       egregious harm while in his care?

       “Reasonable efforts to prevent [out-of-home] placement and for rehabilitation and

reunification are always required except upon a determination by the court that a petition

has been filed stating a prima facie case that: (1) the parent has subjected the child to

egregious harm as defined in section 260C.007, subdivision 14.” 

(a) (2014) (emphasis added). “Egregious harm includes, but is not limited to: . . . . (2) the

infliction of ‘substantial bodily harm’ to a child, as defined in section 609.02, subdivision

7a; . . . [and] (6) conduct towards a child that constitutes assault under section 609.221,

609.222, or 609.223.” Minn. Stat. § 260C.007, subd. 14 (2) (2014). The district court

found that the petition established a prima facie case that appellant’s children were

subjected to egregious harm both by his inflicting substantial bodily harm on them and by

his committing acts that constituted second-degree assault. We agree.

       A.     Substantial Bodily Harm

       “‘Substantial bodily harm’ means bodily injury which involves a temporary but

substantial disfigurement, or which causes a temporary but substantial loss or impairment

of the function of any bodily member or organ . . . .” 

, subd. 7a (2014).




prevent out of home placement and to encourage rehabilitation and reunification under

 (2014). In the interests of completeness, we address this argument.

                                             10
The petition stated that, on February 24 and 25, a reporting party had seen Z. walk strangely

and have difficulty sitting down and getting up. When asked, Z. had said (1) she was not

supposed to talk about it and when she talked about a previous incident, appellant hit her

more; (2) on February 23, he hit her with a wood paddle at least 22 times, then stopped

counting; (3) he told her she would be hit with the paddle ten times every day for a year;

(4) on February 24, he hit her ten times with the paddle; and (5) appellant sometimes used

a belt instead of a paddle. After seeing the photographs of the injuries inflicted on Z. on

February 23 and 24, the district court found that her injuries “would have made sitting and

movement markedly painful.”

         K. was interviewed and said that: (1) he had seen appellant sit on Z. while hitting

her with a paddle, or place his knee on her back;4 (2) appellant sometimes tied the children

to tables and hung Z. over a coat rack to prevent them from moving while he spanked them;

(3) K. had sometimes been bleeding and bruised after appellant spanked him; (4) on

November 28, 2014, K. received the worst beating of his life, being hit about 30 times with

a paddle and “bruised up pretty badly”; (5) K. had been required to make ice baths for Z.

to sit in; (6) once, when appellant was beating him with a belt, K. looked around to see if

he was finished and was hit on the face by the belt; (7) on that occasion, appellant told K.

to say he had been hit by a baseball bat; and (8) appellant also told both children to say

they had just fallen if anyone commented that they seemed to be in pain.




4
    Appellant testified that he weighs 354 pounds and Z. weighs 78 pounds.

                                             11
       Appellant was interviewed about the events of February 23-24 and showed the

officers the paddle he used, a cutting board. He said he thought he hit Z. about 20 times

because the children are usually hit five times for lying or stealing and Z. had four instances

of stealing candy or sweets; he also said that, after the children were severely beaten, he

required them to sit in an ice bath for healing for no longer than 15 minutes.

       The district court did not err in finding that the petition set out a primary case of

egregious harm through the infliction of substantial bodily harm.

       B.     Assault

       Second-degree assault occurs when one person assaults another with a dangerous

weapon, 

, subd. 1 (2014) (providing a penalty of not more than seven

years imprisonment, a fine of not more than $14,000, or both), or assaults another with a

dangerous weapon and inflicts substantial bodily harm, 

 subd. 2

(2014) (providing a penalty of not more than ten years imprisonment, a fine of not more

than $20,000, or both). The district court concluded that “[t]he [] paddles [appellant] struck

KP and ZP [with] were dangerous weapons in the way they were used. The evidence of

harm, especially ZP’s injuries to her posterior, shows that [appellant] inflicted substantial

bodily harm to the children.” A dangerous weapon is “any . . . device or instrumentality

that, in the manner it is used . . . is calculated or likely to produce death or great bodily

harm.” 

, subd. 6 (2014). “It would be impossible to specify any and

all objects capable of producing death or great bodily harm when used to inflict injury on

another. Thus, by necessity, the definition of dangerous weapon in subdivision 6 must be

expressed in flexible terms and be broad and inclusive.” State v. Graham, 

335, 337 (Minn. App. 1985). Items determined to have been dangerous weapons when

used to beat children include a wooden chair rung, see State v. Elkins, 

 (Minn. 1984), and a board measuring three feet by two inches by 3/4 of an inch. See

State v. Trott, 

 (Minn. 1983); see also In re Welfare of Children

of D.M.T.-R., 

 (holding that children struck with hands and a belt

had suffered third-degree assault and experienced egregious harm).

       The various paddles appellant used caused great bodily harm, including bruising,

bleeding, and the inability to move or sit without pain. “Great bodily harm” includes

“bodily injury . . . which causes a . . . protracted loss or impairment of the function of any

bodily member . . . or other serious bodily harm.” 

, subd. 8 (2014). In

the hands of a 354-pound man, the paddles were dangerous weapons when used to

repeatedly strike children weighing 78 pounds (Z.) and 112 pounds (K.).

       The district court did not err in determining that the petition made a prima facie case

that appellant inflicted second-degree assault on his children.

       Because the substantial bodily harm and second-degree assault inflicted on the

children constituted egregious harm, the district court also did not err in denying

appellant’s motion for an order stating that the petition failed to make a prima facie case of

egregious harm inflicted on appellant’s children and concluding that the petitioner had no

obligation to attempt the reunification of appellant with his children.

2.     The Termination of Appellant’s Parental Rights

       “We review a district court’s ultimate determination that termination is in a child’s

best interest for an abuse of discretion.” In re Welfare of Children of J.R.B., 

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

is due to the district court’s decision because a district court is in a superior position to

assess the credibility of witnesses.” In re Welfare of L.A.F., 

 (Minn.

1996).

         This court will affirm a termination of parental rights “if at least one statutory

ground for termination is supported by clear and convincing evidence and termination is in

the best interests of the child, provided that the county has made reasonable efforts to

reunite the family.” In re Welfare of Children of S.E.P., 

 (Minn.

2008) (citation omitted).5 Submitting children to egregious harm is one ground for

termination. Minn. Stat. § 260C.301, subd. 1(b)(6) (2014). In a thoughtful and detailed

opinion, the district court concluded that appellant submitted his children to egregious

harm. We agree.

         We also agree with the district court’s conclusion that there are three other statutory

grounds for terminating appellant’s parental rights: (A) appellant refused or neglected to

comply with the duties imposed by the parent-child relationship, specifically not providing

his children with what was necessary for their emotional health and development (Minn.

Stat. § 260C.301, subd. 1(b)(2) (2014)); (B) appellant demonstrated his palpable unfitness

to be a party to the parent-child relationship because of a consistent pattern of specific

conduct toward his children, namely hitting them repeatedly with paddles or belts, that


5
  Therefore, although the termination of appellant’s parental rights could be affirmed
without addressing the district court’s other grounds for termination, we address them in
the interests of completeness.


                                               14
renders him unable for the reasonably foreseeable future to care appropriately for their

physical, mental, and emotional needs (Minn. Stat. § 260C.301, subd. 1(b)(4) (2014)); and

(C) termination is in the best interests of appellant’s children (Minn. Stat. § 260C.301,

subd. 1(b)(7) (2014)).

       A.     Neglect of Parental Duties

       The district court concluded that:

              8. . . . [Appellant’s in]ability to empathize with his children
              and to nurture them emotionally is amply demonstrated by his
              unwillingness to change his punishment regimen, even in the
              face of multiple injuries, multiple investigations, and multiple
              professionals explaining that physical punishment is not the
              answer. Therefore, the Court finds petitioner has shown by
              clear and convincing evidence that [appellant] has been unable
              to provide emotionally for the children. . . .

       The district court’s findings as to appellant’s testimony are supported by the record

and support its conclusions. Appellant concedes that he has “much to learn about how the

physical abuse he has inflicted on the children has emotionally affected them,” but claims

that “he has never otherwise refused or neglected his parental duties.” Based on appellant’s

testimony, the district court noted that he has “done well in providing food and shelter to

his children.” But nothing in appellant’s testimony refuted the district court’s conclusion

that appellant is unable to provide emotionally for his children because of his repeated and

consistent use of severe physical punishment, his ongoing belief that such punishment is

necessary and beneficial to his children, and his refusals to accept parenting education that

opposes that belief.




                                             15
       B.     Palpable Unfitness to be a Party to the Parent-Child Relationship

       The district court concluded that, “Petitioner has established by clear and

convincing evidence that [appellant] is palpably unfit to parent due to a consistent pattern

of specific conduct, child abuse[,] and assault, which cannot be remedied in the reasonably

foreseeable future.” Appellant does not dispute the conclusion that he is palpably unfit to

parent because there is a consistent pattern of his abusing and assaulting his children. He

argues that “[t]he sole basis for any determination that [he] has been or will be an unfit

parent is the abuse he has inflicted on the children” and his palpable unfitness cannot be a

basis for termination because it has not been proved “by clear and convincing evidence that

[appellant’s] detrimental conduct will continue for a prolonged and indefinite period.” But

despite appellant’s repeated promises, to his children and to several professionals, that he

would stop using corporal punishment, his practice of spanking his children with a belt or

a paddle that led to the first child-protection report on K., then age four, in October 2008

continued until the children, then 10 and 12, were removed from his care in February 2016.

That conduct has already continued for a prolonged and indefinite period, and we agree

with the district court’s conclusion that it renders appellant palpably unfit to be a party to

the parent-child relationship.

       C.     The Children’s Best Interests

       The district court concluded:

              11.    [Appellant’s] interests and those of KP and ZP clearly
              conflict. [Appellant’s] regime of excessive punishment for
              mostly minor offenses has traumatized the children.
              [Appellant’s] zealous ideological commitment to harsh
              corporal punishment has blinded him to the real harm he has


                                             16
              inflicted and would likely continue to inflict without
              intervention. KP and ZP have an interest in a safe, nurturing
              home where they do not live in fear of beatings so harsh that
              they require ice baths for infractions as minor as taking a piece
              of candy. These interests vastly outweigh [appellant’s] interest
              in retaining the children . . . .

In termination proceedings, “[w]here the interests of the parent and child[ren] conflict, the

interests of the child[ren] are paramount.” Minn. Stat. § 260C.301, subd. 7.

       Appellant argues that notwithstanding “the testimony at trial about the children not

wanting to see their father,” the children “have an interest in maintaining a relationship

with a parent who loves them and can provide for them.” But appellant offers no evidence

that either of the children wants to maintain a relationship with him, and both K.’s

testimony and Z.’s conduct when she saw appellant during the trial (she dived to the floor

to be out of his sight) indicate that they do not want such a relationship. Moreover, the

trauma evaluator, the guardian ad litem, and the parenting evaluator all testified that the

children do not want to be and should not be reunited with appellant; appellant does not

address these professionals’ opinions.

       It is in the best interests of K. and Z. that appellant’s parental rights to them be

terminated. We affirm the termination.

       Affirmed.




                                             17