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In re Welfare of Children of D.E.T.

Court of Appeals of Minnesota

November 27, 2013

In the Matter of the Welfare of the Children of: D.E.T., G.B.-W.T., and B.R.M., Parents

UNPUBLISHED OPINION

Beltrami County District Court File No. 04-JV-13-667

Arlen Larson, Bagley, Minnesota (for appellant D.E.T.)

George L. Duranske III, Bemidji, Minnesota (for appellant G.B.-W.T.)

Kristy L. Cariveau, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and Klaphake, Judge. [*]

RODENBERG, Judge.

Appellant-parents appeal from the district court's termination of parental rights (TPR) to three children and its transfer of permanent custody of three other children to a relative. We conclude that the district court did not abuse its discretion in its evidentiary rulings at trial. Because appellant-parents agree on appeal that the TPR is proper as to the eldest two children, and because the transfer of legal custody to a relative is in the best interests of the three involved children and should not be disturbed, we affirm that portion of the district court's order. But because the county failed to use reasonable efforts to reunify parents with the youngest child, we reverse that portion of the district court order terminating the parental rights to the youngest child.

FACTS

This case involves six children. Mother and father (collectively parents) married in 2008. J.M.T. was born to the marriage on August 27, 2009. Parents are still married.[1]

D.J.T. and A.J.T. are the adopted children of G.B.-W.T., to whom we refer herein as father (despite his not being the father of three of the other children, as discussed further below). D.J.T. and A.J.T. are members of the Leech Lake Band of Ojibwe. Before being adopted by father on December 9, 2004, both had been removed from the care of their biological parents and had experienced multiple out-of-home placements.

T.P.M., R.K.M., and A.S.M. are the adopted children of D.E.T., to whom we refer herein as mother, and B.R.M., to whom mother was married at the time of adoption. Mother and B.R.M. also have four now-adult children. When mother's marriage to B.R.M. was dissolved, mother was granted custody of T.P.M., R.K.M., and A.S.M. After the dissolution of her marriage to B.R.M., and being a single mother raising seven children, mother was close with her brother and sister-in-law, who had frequent contact with the seven children. Mother home-schooled her four oldest children, who are adults and not involved in this proceeding, as well as T.P.M., R.K.M., and A.S.M.

Before parents married, father had a number of problems in caring for children, particularly D.J.T. and A.J.T, both of whom had several episodes of sexual misconduct, which father reported to professionals. Both A.J.T. and D.J.T. were in individual therapy before their formal adoption by father on December 9, 2004. The assigned social worker consistently advised father to keep a close eye on the boys, keep them in therapy, and report concerning incidents.

On December 12, 2006, father was charged with fifth-degree assault for spanking a foster child. He significantly bruised a young child's buttocks after striking the child with a ruler. He pleaded guilty to fifth-degree assault and his foster-care license was revoked.

Before the 2008 marriage of mother and father, several of the children opposed the marriage and displayed behavioral problems. Before the marriage, and at a family reunion, A.J.T. and D.J.T. had approached an adult relative and stated that they had asked T.P.M. to have sexual intercourse.[2] The relative told father who, without conversation, began hitting and beating A.J.T.

Mother was aware of this incident, father's criminal conviction, and the history of sexual issues of D.J.T. and A.J.T. before she married father. There were problems in the blended family almost immediately.

On November 18, 2008, Beltrami County received a report by the family therapist that D.J.T. had touched T.P.M.'s breast. T.P.M. and D.J.T. were both 13 years old. Mother was aware of the incident and told the social worker assigned to the case that they were dealing with the situation within the home. Through discussions, it was revealed that A.J.T. had dared D.J.T. to touch T.P.M. Investigator Scott Hinners and a social worker spoke with both boys and told them that such behaviors were inappropriate. No finding of maltreatment was made at that time. Parents were advised that the children should continue with therapy. T.P.M. began meeting with the wife of the family's pastor to assist her in dealing with the sexual allegations. Their meetings stopped after about a year because the pastor's wife became too busy. The record shows no indication that mother and father reentered T.P.M. or the other children into individual therapy.

J.M.T. was born to the marriage on August 27, 2009. Both parents were protective of J.M.T., both publicly and privately. They instituted a safety plan for J.M.T. to ensure that J.M.T. was never left alone with any of the older children. J.M.T. would sleep in parents' bedroom with the door locked each night and was with one or both of the parents nearly constantly. By all accounts at trial, J.M.T. received special—and better—treatment and attention than any of the other children.

At some time prior to 2010, T.P.M. and A.S.M. told father that A.J.T. had been masturbating in front of them. Father responded by removing the bathroom door. There were additional reports of exhibitionist masturbation by A.J.T. and parents then separated the children by gender for home-schooling. Despite several additional instances of A.J.T.'s nonprivate masturbation during this period, testimony indicated that neither parent informed the social worker of the problem(s).

Mother testified that late one evening in 2010, T.P.M. went to the bedroom of parents and reported that she had been raped in the bathroom by a stranger. Father checked the house and found that all of the doors were locked. Father concluded that the allegation was a dream. He did not pursue it further, and mother did not independently address her daughter's report. Again in 2010, T.P.M. and S.M. (one of mother's now-adult daughters) reported to father that D.J.T. had either tried to or did have sex with T.P.M. Parents concluded that this was a false allegation because T.P.M. had a history of seeing strangers in or around the house. Mother deferred to father in responding to the allegation and did not discuss the report further with her daughters. R.K.M. was aware of his sister's claims of sexual abuse and attempted to protect his sisters by following them around the home. Parents continued to sleep in a locked bedroom with J.M.T., claiming at trial that R.K.M. had a history of violence with knives and matches, which items were kept in the bedroom.

On March 25, 2012, T.P.M. approached a long-time church friend of mother after a regular church service and asked if she could speak with her privately. T.P.M. revealed that A.J.T. and D.J.T. had had sexual contact with her. T.P.M. told the church friend that she was worried someone would see T.P.M. talking to her and that she was not allowed to talk about the sexual contact. Mother's church friend reported the conversation to child protective services.

County Intervention

Beltrami County filed a petition alleging the children to be in need of protection or services (CHIPS) on April 4, 2012. The district court held an emergency protective care (EPC) hearing, Minn. R. Juv. Prot. P. 30, and granted temporary custody of all six children to Beltrami County. Parents were ordered to have no contact with D.J.T., A.J.T., T.P.M., R.K.M., or A.S.M., but they were granted supervised contact with J.M.T. The visits with J.M.T. were for half days, two to three times each week and typically occurred at J.M.T.'s grandparents' home. The children's aunt and uncle (mother's brother) took immediate temporary custody of J.M.T. Two weeks later, they also took custody of T.P.M., R.K.M., and A.S.M., who were then 14, 15, and 16 years of age. D.J.T. was initially placed at Evergreen Shelter and A.J.T. was placed at Northwest Minnesota Juvenile Center. The order required the county to file a case plan within 30 days of the filing of the petition as required by Minn. Stat. §§ 260C.178, subd. 7, .212, subd. 1 (2012). The case plan was not timely filed.

On July 19, 2012, parents were each charged with two counts of child neglect for knowingly permitting sexual abuse under Minn. Stat. § 609.378, subd. 1(a)(2) (2010).

On July 20, 2012, A.J.T. was charged by delinquency petition with fifth-degree criminal sexual conduct for his sexual abuse of T.P.M. The petition stated that T.P.M. reported A.J.T. "is obsessed with sex and [is] trying to rape [T.P.M.] and her sister, " and alleged that T.P.M. had reported that she had confided in father "many times." In an interview with investigators, A.J.T. admitted asking T.P.M. and A.S.M. for sex, sucking on T.P.M.'s breasts, and having sexual intercourse with T.P.M. two times. A.J.T. pleaded guilty and was given a juvenile delinquency disposition in August 2012, including placement at KidsPeace Mesabi Academy. Since his placement, A.J.T. has continued to struggle with sexually deviant behavior, but he has made some progress.

On August 16, 2012, D.J.T. was charged by delinquency petition with fifth-degree criminal sexual conduct against T.P.M. The probable cause portion of the petition recited that D.J.T. "is obsessed with sex and [is] trying to rape [T.P.M.] and her sister." The petition alleged that T.P.M. and S.M. had confided in father together about T.P.M. having sexual relations with D.J.T. Father then allegedly directed T.P.M. and S.M. not to tell their pastor, who was a mandatory reporter. D.J.T. admitted to investigators that he had sexual relations with T.P.M., but "could not remember" what type of relations. He pleaded guilty to fifth-degree criminal sexual conduct and was adjudicated on October 18, 2012. D.J.T. was placed in a foster home and ordered to complete an outpatient sex offender program, as one of several conditions of probation.

Parents denied the CHIPS petition at the admit/deny hearing. Minn. R. Juv. Prot. P. 34. By order of July 9, 2012, the district court stayed the CHIPS proceeding until resolution of parents' respective criminal charges. Mother made several requests for J.M.T. to be returned to her custody between the April removal and resolution of her criminal charge, but her requests were denied. Although the district court's several orders denying mother's requests recite that reasonable/active efforts had been made to prevent the placement, what those efforts were or what efforts at reunification were being attempted is unstated. And careful review of the record reveals no actual efforts at reunification between removal and resolution of mother's criminal charge.

Mother eventually pleaded guilty to one count of child neglect, by way of an Alford plea, on October 16, 2012. Father was tried and found guilty of two counts of child neglect by jury verdict on February 20, 2013.

After pleading guilty, mother admitted in the CHIPS file that the children were in need of protection or services. The case worker and guardian ad litem finally developed a case plan for each child, and the plans were filed with the district court on November 20, 2012. This was more than seven months after removal of the children and six months after the case plans were due. See Minn. Stat. §§ 260C.178, subd. 7, .212, subd. 1. Mother signed each case plan, including D.J.T. and A.J.T.'s case plans, on November 16, 2012. Father neither formally admitted the CHIPS petition nor signed any of the children's case plans.

The case plans' only requirement of parents was that they complete a parental capacity assessment to determine needs and strengths and that they follow the recommendations resulting from that evaluation. Deena McMahon, a private mental health professional, was engaged to complete the parenting assessment for mother. McMahon completed the assessment, which indicated that mother believed two of the adopted children were attempting to sabotage her marriage through their acts and allegations. McMahon recommended that mother not be reunified with J.M.T. because of mother's disbelief of the reports of sexual abuse by T.P.M. and A.S.M., her inability to acknowledge any wrongdoing, her disinterest in reunifying with certain of the children, and her inability to make decisions independent of father. McMahon determined that mother failed to protect the children against A.J.T. and D.J.T. and would be unlikely to be able to protect her children in the future.

Petition for Permanency

On March 1, 2013, Beltrami County petitioned the district court to terminate the parental rights of both parents to J.M.T., grant permanent physical and legal custody of T.P.M., R.K.M., and A.S.M. to their maternal aunt and uncle, and terminate father's parental rights to D.J.T. and A.J.T.[3] The county alleged three statutory bases for termination of the parental rights of both parents to J.M.T. and for the termination of father's parental rights to D.J.T. and A.J.T.: that parents are palpably unfit, that the children suffered egregious harm in parents' care, and that reasonable efforts had failed to correct the conditions leading to out-of-home placement. Minn. Stat. § 260C.301 subd. 1(b)(4)-(6) (2012). The request for permanent transfer of the custody of T.P.M., R.K.M., and A.S.M. alleged that T.P.M., R.K.M., and A.S.M. suffered egregious harm and that mother was palpably unfit to parent the children. Minn. Stat. § 260C.515, subd. 4 (2012).

The three-day TPR/permanency trial commenced on April 11, 2013. D.J.T., through his attorney, expressed that he was not opposed to the termination of father's parental rights. A.J.T., through his attorney, stated that A.J.T. was "slightly leaning" toward termination at the inception of proceedings. T.P.M., R.K.M., A.S.M., through their attorney, indicated that they were also not opposed to having permanent custody transferred to their maternal aunt and uncle. B.R.M., the adoptive father of T.P.M., R.K.M., and A.S.M., was satisfied with and agreed to the plan for transfer of permanent custody of his three children to a relative, but he wanted to remain in contact with his children. At the time of trial, J.M.T. was three-and-a-half years old.

The record reflects some initial confusion about mother's position regarding the proposed transfer of permanent custody of T.P.M., R.K.M., and A.S.M. Mother expressed doubt of the possibility of reunification with T.P.M., R.K.M., and A.S.M. because of the time that had elapsed since their removal from the home over a year earlier and the age of the children. Through her attorney, mother explained that, although she was satisfied with the placement of T.P.M., R.K.M. and A.S.M., she did not agree to permanent transfer of custody because it would affect the TPR case concerning J.M.T.

At trial, mother's long-time church friend testified to the difference between the children's social abilities and behaviors before parents married, during the marriage, and after placement of the children out of the parental home. At the time of trial, she had known mother for ten years and had frequent contact with all of mother's older children until approximately five years earlier (around the time of mother's marriage to father). She testified about her recollection of T.P.M. reporting the sexual abuse to her and that the children "really seemed like ...


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