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In re Welfare of Child of E. D.

Court of Appeals of Minnesota

June 3, 2013

In the Matter of the Welfare of the Child of: E. D., Parent.


Hennepin County District Court File No. 27-JV-12-5128.

Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Assistant County Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and Public Health Department)

William M. Ward, Hennepin County Chief Public Defender, Kellie M. Charles, Assistant Public Defender, Minneapolis, Minnesota (for appellant mother)

Jonathan G. Steinberg, Minneapolis, Minnesota (for guardian ad litem Patricia Timpane).

Considered and decided by Stoneburner, Presiding Judge; Johnson, Chief Judge; and Willis, Judge.

WILLIS, Judge. [*]

Appellant challenges the district court's termination of her parental rights, arguing that respondent county failed to prove by clear-and-convincing evidence that any statutory ground for termination exists and that termination of her parental rights is in the best interests of the child. Appellant also argues that the district court's evidentiary ruling to admit stale evidence deprived her of the right to a fair trial. We affirm.


Appellant E.D. is the biological mother of E.M., currently age 13. E.D. also has four adult sons. In 2006, E.M. began receiving special-education services due to concerns regarding her academic and behavioral functioning. She was later diagnosed with autism and speech and language impairments, and began attending the Minneapolis Public Schools Citywide Autism Program in 2007. At times, E.M. exhibited temper outbursts and physical aggression toward adults and peers, which led to temporary suspension from school.

History of abuse and 911 calls

In October 2009, Hennepin County Child Protection Services (the county) received a child-protection report that appellant, while intoxicated, had threatened her son's girlfriend with a knife. Appellant denied the allegations, and the matter was closed after appellant was referred to family services and support.

In January 2010, the county opened an investigation into E.M.'s claims that her brother Christopher had sexually abused her. E.M. was interviewed by school staff, the police, and a child-protection investigator. She described sexual abuse by Christopher and also reported abuse by her brothers Weldon and Seville. But her statements were deemed inconsistent. Appellant claimed that E.M.'s teacher had invented the allegations, and Christopher refused to cooperate with the investigation. E.M. returned to appellant's care, and the county closed the case without further action.

In July 2010, E.M. underwent a psychological assessment due to academic concerns and for differential diagnosis of an autism spectrum disorder. The psychologist affirmed the diagnosis of autism and mental retardation, and found that E.M.'s "overall adaptive functioning, based on maternal report, was comparable to that of a child 6 years, 10 months of age, " her cognitive functioning appeared to be similar to that of a five-year-old child, and her social and communication skills were that of a child of an age of 5 years, 8 months, to 7 years, 5 months. The psychologist encouraged close cooperation between appellant and E.M.'s school to provide E.M. with a "predictable routine, structure, and consistent limits/expectations."

In January 2011, E.M. began taking antipsychotic medications and receiving in-home services through Fraser, a service provider that specializes in working with autistic children and their families. On January 28, appellant and a county social worker took E.M. to the emergency room to seek an adjustment in her medication. The hospital record indicates that appellant had not been administering E.M.'s medication consistently. Appellant reported that since E.M. began taking her medication, she had been exhibiting "new" aggressive behavior toward appellant, such as hitting and throwing objects at her. The examining physician noted that appellant "appear[ed] to feel overwhelmed" but that she was aware of the services of the Hennepin County Mobile Crisis unit.

On April 15, 2011, appellant called 911 because of E.M.'s increasingly aggressive behavior. E.M. was taken to the emergency room, where she was verbally and physically aggressive toward appellant and the nursing staff. Appellant "appear[ed] overwhelmed [and] unable to cope with parenting [E.M.]" and exhibited signs of a panic attack. Appellant initially refused to take E.M. home upon discharge, saying, "Send her to residential I can't take it anymore." E.M. had to be restrained, and the social worker recommended that she be admitted into the hospital for medical stabilization while an appropriate environment for her discharge was secured. Appellant left E.M. in the hospital without notifying hospital staff.

On April 25, 2011, appellant again called 911 and had E.M. sent to the emergency room. Appellant did not accompany E.M. and was not available to talk to medical staff. Staff noticed two abrasions on E.M.'s forehead, and E.M. reported that appellant had hit her with a broom. The county opened a child-protection case. Appellant claimed that E.M. had banged her head on a wall and told the social worker that she did not want E.M. to return home. E.M. remained hospitalized for the next month, and the child-protection case was closed without further action.

On April 28, 2011, appellant met with E.M.'s psychiatrist, Dr. Carrie Borchardt, for a therapy session while E.M. was in treatment at a group home. Dr. Borchardt's records indicate that appellant was a "poor historian" who was "contradictory of information that she [had provided] at other times." Appellant "look[ed] anxious and ha[d] trouble understanding the information" regarding E.M.'s treatment and medication.

On August 2, 2011, E.M. reported that appellant had "whooped" her on the back with a belt. Appellant denied the abuse and claimed that the marks on E.M.'s back, found to be consistent with belt marks, were caused by a fall during a tantrum. A child-protection case ...

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