In the Matter of the Welfare of the Children of: L.T.P. and L.V.J., Parents.

• Court: Court of Appeals of Minnesota
• Decided: October 24, 2016
• Docket: A16-576
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A16-0576

In the Matter of the Welfare of the Children of: C. K. and J. K., Parents.

Filed October 24, 2016 Reversed Bjorkman, Judge

Ramsey County District Court File No. 62-JV-15-2854

Joanna Woolman, Colette Routel, Mitchell Hamline School of Law, St. Paul, Minnesota (for appellants C.K. and J.K.)

John J. Choi, Ramsey County Attorney, Kathryn Eilers, Assistant County Attorney, St. Paul, Minnesota (for respondent Ramsey County)

Jesse Sheedy, Dorsey and Whitney, Minneapolis, Minnesota (for child C.K.)

Nancy Zupfer, St. Paul, Minnesota (guardian ad litem for child C.K.)

Cheryl Toenjes, St. Paul, Minnesota (guardian ad litem for children J.K. and G.K.)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bjorkman,

Judge.

UNPUBLISHED OPINION

BJORKMAN, Judge

Appellant-parents challenge the adjudication of their three sons as children in need

of protection or services (CHIPS). Because clear and convincing evidence does not support the district court’s determination that the children need services that parents are unwilling

or unable to provide, we reverse.

FACTS

Mother and father adopted C.K., J.K., and G.K. in 2008. The children suffered years

of abuse and neglect in their biological home, and the oldest child, C.K., was the victim of

sexual abuse in a foster home. As a result, the children have a number of behavioral,

mental, and physical concerns. C.K. has extensive behavioral problems. He currently

suffers from reactive attachment disorder, posttraumatic stress disorder, anxiety disorder,

and ADHD.

On October 19, 2015, mother called respondent Ramsey County Community

Human Services Department (the county) to report that C.K. had sexually abused the

youngest child, G.K. C.K. was removed from the home and placed at Arlington House, a

group home. On October 26, the county filed a CHIPS petition alleging that the three

children are in need of protection or services based on four grounds enumerated in Minn.

Stat. § 260C.007, subd. 6 (2014). Specifically, the petition alleges the children need

protection or services because (1) they had been the victims of physical or sexual abuse or

resided with a victim of abuse; (2) were without necessary food, clothing, shelter, education

or other required care; (3) were without proper parental care; and (4) their behavior,

condition, or environment was injurious or dangerous to themselves or others. Minn. Stat.

§ 260C.007, subd. 6(2), (3), (8), (9).

2 During a three-day trial,1 the district court heard testimony from various witnesses

about the mental-health needs of and treatments received by both parents and the children.

The district court adjudicated the children CHIPS under all four statutory grounds. Parents

appeal.

DECISION

A district court has broad discretion when deciding juvenile-protection matters. In

re Welfare of Child of S.S.W., 767 N.W.2d 723, 733 (Minn. App. 2009). We review a

district court’s factual findings for clear error and its determination of a statutory basis for

a CHIPS adjudication for abuse of discretion. In re Welfare of Child of D.L.D., 865 N.W.2d

315, 321 (Minn. App. 2015), review denied (Minn. July 21, 2015). “A finding is clearly

erroneous only if there is no reasonable evidence to support the finding or when an

appellate court is left with the definite and firm conviction that a mistake occurred.” Id. at

322 (quotation omitted). And we give considerable deference to the district court’s

superior position to assess the credibility of witnesses. S.S.W., 767 N.W.2d at 733.

Nevertheless, we perform a “close review . . . into the sufficiency of the evidence to

determine whether the evidence is clear and convincing.” Id.

To sustain a CHIPS petition, the county must establish both the existence of a

statutory child-protection ground and a resulting need for protection or services. Id. at 728.

And the county must demonstrate that the children are presently at risk and in need of

services. Id. at 732. The district court determined that four child-protection grounds were

1 The CHIPS trial took place on January 25 and 27, and March 7, 2016.

3 established and required services. The finding that the children need services is premised

on the district court’s determination that, absent continued involvement by the county, the

children would not receive the necessary services.

Parents concede that two of the enumerated grounds exist—G.K. was a victim of

sexual abuse and C.K.’s presence in the home was dangerous to his siblings—and the

children require services relating to those conditions. Minn. Stat. § 260C.007, subd.

6(2)(i), (9). But the parents argue that there is not clear and convincing evidence that the

children would not receive needed services absent county involvement. Rather, parents

contend that the evidence shows they are willing and able to ensure that the children receive

the necessary services. We agree for essentially two reasons.

First, several of the key findings of fact underlying the district court’s determination

that parents are unwilling or unable to provide the appropriate services are clearly

erroneous. The district court found that mother opposed C.K.’s removal from the home.

But the record shows that mother was the one who reported the sexual abuse to the county

and knew that C.K. would be removed as a result. Sophia Thompson, the county

investigator who responded to the report, testified that when she arrived at the home,

parents had packed C.K.’s bag and prepared him to leave the home. Thompson indicated

that parents did not contest his removal from the home in any way.

The district court’s finding that parents made multiple requests to return C.K. to the

home before he received a psychosexual evaluation and treatment likewise lacks record

support. Mother and Thompson discussed the possibility of C.K. being returned to the

home during their initial safety-planning meeting. Thompson testified that they discussed

4 the possibility because “at that point in time everything was still an option,” and identified

safety measures to put in place before C.K. could be returned. Thompson testified that it

was understandable that mother would believe that there was a possibility C.K. could be

returned to the home as a result of that conversation. Thompson later learned from her

supervisor that C.K. could not return home. At that time, parents began advocating for

C.K. to be placed at Mille Lacs Academy, a treatment center for young men with mental-

health issues and harmful sexual behaviors. Mother explicitly testified that she did not

expect C.K. to return home before he received treatment.

The district court further found that mother does not believe she needs mental-health

services and that William Davis, D.O., was not providing her with psychiatric care. The

record belies these findings. Mother testified that she was under a psychiatrist’s care; Dr.

Davis confirmed that he meets with her regularly. Dr. Davis further testified that he

prescribes medication relating to mother’s mental-health issues and that he believes she

takes her medication regularly. Mother did indicate that her depression was in remission,

but stated she monitors herself for any symptoms that would indicate regression. She

acknowledged that she had not had a recent psychological assessment, but suggested she

would undergo one if her psychiatrist believes it is necessary. In short, Dr. Davis is

providing mother with psychiatric services, and mother acknowledges that she needs them.

The district court also made erroneous findings relating to Deena McMahon, a

licensed therapist who provided counseling services to parents. The district court found

that McMahon’s testimony was undermined by the fact that she did not obtain collateral

information about parents and solely relied on their self-reports. The record does not

5 support these findings. McMahon testified that she spoke at length with Yusuf Kodar, the

case manager, about the county’s concerns that parents would not continue with services

absent county involvement. She testified that she did not believe parents would discontinue

services and noted that parents sought her out before they were asked to and seemed

dedicated to obtaining appropriate services for themselves and their children. McMahon

also testified that she had reviewed various evaluations relating to the children, including

the report of C.K.’s psychosexual evaluation following the discovery of the sexual abuse.

And McMahon did not change her opinion as to how the case should proceed. During her

initial testimony, McMahon testified that she did not believe a mandatory case plan was

necessary. Following cross-examination, McMahon was asked whether any of the

information brought up by the county changed her opinion as to how the case should

proceed; she said it did not.

Second, we are persuaded that mother’s sometimes contentious behavior2 toward

the county and district court distracted from and overshadowed her demonstrated

willingness and ability to meet her children’s needs. The record reflects that parents have

been proactive in obtaining services for their children. When C.K. was initially placed in

Arlington House, which does not provide any counseling services, parents immediately

arranged for C.K. to receive therapy and rehabilitative services. And after being told that

2 The record indicates that mother exhibited aggressive and disruptive behavior on several occasions. During the emergency protective-case hearing, mother yelled at the county supervisors and sheriff’s deputies and had to be escorted from the courtroom. She then smashed her cell phone against a wall. Before the CHIPS trial, mother again became angry and used profane language while yelling at county supervisors.

6 C.K. could not return home until he received a psychosexual evaluation and treatment,

parents began advocating for him to be placed at Mille Lacs Academy. The county initially

opposed this placement. But Katherine Farrington, the licensed counselor who performed

C.K.’s psychosexual evaluation, also recommended that C.K. enter treatment at Mille Lacs

Academy. At trial, the county acknowledged that this placement was appropriate. And

the juvenile-delinquency court ordered C.K. to complete inpatient treatment at Mille Lacs

Academy as a condition of his probation.3

Parents also independently initiated counseling for J.K. and G.K. The district court

recognized that all three children had started therapy, but found they were in only the initial

treatment phase. The record does not bear this out. By the end of the trial (March 7, 2016),

G.K. had been in treatment for three months. And there was no indication that the services

he was receiving were not appropriate or adequate. While the record does not indicate

precisely when J.K. started therapy, it does establish that he participated in weekly trauma-

based cognitive behavioral therapy sessions and had daily cancer treatments. Notably, both

guardians ad litem recommended that the CHIPS petition be dismissed. C.K.’s guardian

ad litem reported that appropriate services had been set up and paid for by parents or

ordered as part of the disposition in the juvenile-delinquency case. The report also notes

that parents had arranged for continuing services upon C.K.’s discharge from Mille Lacs

Academy. The guardian ad litem for J.K. and G.K. similarly recommended that the petition

3 At trial, juvenile probation officer Ken Barber testified that C.K. would remain under the supervision of Ramsey County Probation for 180 days, with the option of extending supervision for an additional 180 days if necessary. Barber also testified that family therapy was required as part of C.K.’s probation.

7 be dismissed because parents had arranged for and the children were receiving appropriate

treatment. Indeed, the district court did not identify any necessary services in addition to

those that parents have put in place for the children.

The district court’s determination that parents are unwilling or unable to provide

necessary services is based largely on its finding that mother will not follow treatment

recommendations with which she does not agree. This concern flows from two incidents.

First, the district court found that parents did not follow the recommendations of a provider

who performed a neuropsychological evaluation of C.K. in April 2014. These

recommendations included, among other things, engaging C.K. in trauma-based therapy,

having him undergo a psychosexual evaluation, and not permitting him to have

unsupervised contact with his siblings and other younger children. Second, the district

court found that mother previously ended her children’s treatment with Anne Gearity,

Ph.D., because she suggested mother’s anxiety contributed to the children’s behavior.

While mother did terminate this treatment, the court’s finding mischaracterizes the record.

In 2012, mother asked Dr. Gearity to reevaluate J.K. because he was exhibiting strange

behaviors. Dr. Gearity refused and told mother that J.K. was reacting to her anxiety. Three

months later, doctors discovered a large tumor on J.K.’s brain stem. The tumor, which has

since been diagnosed as terminal brain cancer, causes a variety of symptoms that affect

J.K.’s behavior, including forgetfulness, slower cognitive process, and difficulties related

to gross-motor functions. Under these circumstances, mother’s questioning of

Dr. Gearity’s recommendations was not unreasonable. Moreover, mother testified that she

attempted to arrange for C.K. to undergo a psychosexual evaluation as recommended in

8 April 2014. She contacted several providers, but they were either not taking new patients

or unwilling to perform a psychosexual evaluation on an 11-year-old child without a court

order. It is undisputed that J.K.’s cancer was diagnosed as terminal approximately six

months after C.K.’s evaluation. Simply put, parents did not refuse to follow the

recommendations concerning C.K. because they disagreed with them. They did so because

their focus became J.K.’s cancer treatments.

In sum, the record does not contain clear and convincing evidence that the children

are in need of services from the county. Although we appreciate the district court’s

concerns regarding mother’s noncompliance with past treatment recommendations, the

evidence does not demonstrate a current need for protective care. See S.S.W., 767 N.W.2d

at 732 (stating that relevant consideration in determining whether a child is in need of

protection or services is whether the child is “presently at risk”); see also In re Welfare of

D.N., 523 N.W.2d 11, 13 (Minn. App. 1994) (noting the conditions at the time of trial and

improvement of the conditions that led to the CHIPS petition are analyzed), review denied

(Minn. Nov. 29, 2014). The paramount consideration in CHIPS proceedings is “the health,

safety, and best interests of the child.” Minn. Stat. § 260C.001, subd. 2(a) (2014). And

the purpose of laws relating to juvenile-protection proceedings is to ensure children receive

appropriate care and guidance and to preserve and strengthen family ties whenever

possible. Id., subd. 2(b)(1), (3) (2014). That is what was achieved here. By the time the

trial ended, parents had made substantial efforts to engage all three children in appropriate

counseling and other services. Because the record does not support the district court’s

9 determination that the county must be involved to ensure the children receive necessary

services, we reverse the CHIPS adjudication.

Reversed.