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In re Child of Green

July 15, 2003

IN THE MATTER OF THE CHILD OF: MANDY (MILLER) GREEN, AND BRAD GREEN, PARENTS.


Affirmed Gordon W. Shumaker, Judge Clay County District Court File No. J10250573

Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

The opinion of the court was delivered by: Gordon W. Shumaker, Judge

UNPUBLISHED OPINION

In this proceeding for the termination of parental rights, appellants contend that the district court's findings are not supported by substantial evidence or are clearly erroneous, and that the court erred by admitting shaken-baby-syndrome evidence, excluding character evidence, and failing to adopt the guardian ad litem's recommendation. Because the substantial evidence supports the court's order and because we find no evidentiary error, we affirm.

FACTS

T.G., born April 30, 2002, is the son of appellant-father Brad E. Green and appellant-mother Mandy M. Green. On May 18, 2002, Sheri Fuller was baby-sitting T.G. when she noticed he was extremely fussy, had difficulty with bowel movements, and screamed in pain when she changed his diaper. The next day, the parents picked up T.G. from Fuller's home. On May 20, T.G. repeatedly vomited, and on May 21 the child started to "twitch." Appellants took T.G. to the hospital where he was diagnosed as suffering from a brain injury and a broken leg, secondary to shaken-baby syndrome. The county filed a CHIPS petition on behalf of T.G., who was placed in the custody of Clay County Social Services until early June 2002. He was then returned to appellants' care because an investigation by the Moorhead Police Department and Clay County Social Services was inconclusive as to who caused T.G.'s injuries

At 11:30 a.m. on July 25, 2002, T.G. had an appointment with Dr. Hope Yongsmith, an ophthalmologist who had been treating him for retinal hemorrhages associated with shaken-baby syndrome. At the appointment, T.G. was "healthy, content, and was cooing." At around noon, T.G. returned home, and appellants decided to feed him. The mother left the room for approximately 30-45 seconds to retrieve a "burp" rag, and on her return she saw the father holding T.G., who was limp and barely breathing. The father stated that T.G. had been making "bicycling" motions with his legs and suffered a seizure. Appellants brought T.G. to the emergency room where on arrival he was blue, limp, and barely breathing. Dr. Rosaleah Bernardo, a pediatric critical-care doctor who treated T.G., initially diagnosed him as suffering from a spontaneous bleed, but she later changed the diagnosis to non-accidental trauma, seizure disorder, and multiple rib fractures.

Dr. Nathaniel Karlins, a radiologist, examined CT scans taken of T.G.'s brain on May 21 and compared them against CT scans taken on July 25, 2002. Dr. Karlins testified that T.G.'s injuries were suggestive of shaken-baby syndrome, and that T.G.'s hospitalization in July was related to new brain trauma and was not related to T.G.'s injuries of May 2002. Dr. Karlins also testified that T.G.'s broken leg is a type of fracture that is probably caused by grasping and twisting a child's legs during a shaken-baby incident. Dr. Karlins also noted that the child's ribs had been broken. He testified that the rib fractures occurred three weeks before July 25, 2002, and that fractures of that nature are associated with an adult's hands squeezing the chest of an infant and shaking it.

Dr. James Reggin, a board-certified neurologist, testified that T.G.'s brain and leg injuries were non-accidental. Dr. Reggain also testified that T.G.'s (1) injuries were not caused by seizures, (2) injuries of July 25, 2002, were inflicted at some time between T.G.'s appointment with Dr. Yongsmith and prior to arriving at the emergency room, and (3) injuries were consistent with shaken-baby syndrome.

Dr. Ron Miller, a board-certified pediatrician, testified that (1) T.G. was shaken severely in late May 2002, (2) T.G.'s rib fractures were most likely caused by shaking that occurred sometime between May 2002 and July 25, 2002, and (3) T.G. was severely shaken on July 25, 2002, at sometime between his visit with Dr. Yongsmith and T.G.'s arrival at the emergency room. Dr. Miller also testified that resuscitation efforts performed on T.G. would not cause the types of injuries that he suffered on July 25, 2002.

Dr. Ross Pettit, a board-certified neurologist, reviewed T.G.'s medical records but did not examine T.G. Dr. Petit testified in May 2002 that T.G. suffered neurological injuries consistent with shaken-baby syndrome, but that there was a possibility that T.G.'s injuries of July 25, 2002, were caused by a seizure, efforts to resuscitate, or a spontaneous re-bleed of the May 2002 injuries.

Dr. John Plunkett, a board-certified pathologist, testified that T.G.'s injuries must have been caused by an "impact" injury, and that he does not agree with the current medical literature's association of injuries with shaken-baby syndrome. He also testified that the symptoms that T.G. exhibited on July 25, 2002, were the natural consequences of a seizure.

The mother testified that she does not believe that the father was the cause of T.G.'s injuries in either May or July 2002. The mother speculated that Sheri Fuller harmed the child in May 2002, and that the subsequent medical issues in July were caused by seizures, immunizations, or sequelae from T.G.'s injuries in May.

The court made extensive findings of fact, which include that (1) Fuller did not abuse the child; (2) while in the care of appellants during May 16 through 18, 2002, T.G. was violently shaken and thereby suffered a brain injury and broken right lower leg and (3) the child was subject to abuse by appellants in early to mid-July, during which T.G.'s ribs were fractured, and on July 25, when T.G.'s brain was severely injured. The court concluded that it is in the best interests of T.G. for the mother's parental rights to be terminated, because she is unable to protect T.G. from abuse, and that it is in the best interests of T.G. for the father's parental rights to be terminated, because of T.G.'s need to have a safe, healthy, and stable environment. This appeal followed.

DECISION

The legislature has established nine criteria that support termination of parental rights.á Minn. Stat. § 260C.301, subd. 1(b) (2002).á The party petitioning for termination must prove one of the statutory grounds by clear and convincing evidence.á In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991).á The "paramount consideration" in every termination case is the child's best interests.á Minn. Stat. § 260C.301, subd. 7 (2002).

I.

Appellants argue that the district court made numerous findings that are not supported by substantial evidence or that are clearly erroneous. When reviewing a district court's findings in a termination of parental rights action, this court must determine whether the [district] court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.

In re M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cable Communications Bd. v. Nor-West Cable Communications P'ship, 356 N.W.2d 658, 668 (Minn. 1984). A finding is defined as clearly erroneous when the reviewing court is "left with the definite and firm conviction that a mistake has been made." In re Guardianship of Dawson, 502 N.W.2d 65, ...


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