Opinion
A20-1349 A20-1351
04-12-2021
In the Matter of the Welfare of the Child of: K. K. and K. M. R., Parents.
Michael D. Schatz, Rochester, Minnesota (for appellant K.K.) Mallory K. Stoll, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota (for appellant K.M.R.) Karin L. Sonneman, Winona County Attorney, Rebecca R. Church, Assistant County Attorney, Winona, Minnesota (for respondent county) Heidi Neubauer, Holmen, Wisconsin (Guardian ad Litem) A. Michael Kuehn, Winona, Minnesota (for child, K.L.R.)
This opinion is nonprecedential except as provided by Minn . R. Civ. App. P. 136.01, subd. 1(c). Affirmed
Hooten, Judge
Concurring specially, Johnson, Judge Winona County District Court
File No. 85-JV-20-114 Michael D. Schatz, Rochester, Minnesota (for appellant K.K.) Mallory K. Stoll, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota (for appellant K.M.R.) Karin L. Sonneman, Winona County Attorney, Rebecca R. Church, Assistant County Attorney, Winona, Minnesota (for respondent county) Heidi Neubauer, Holmen, Wisconsin (Guardian ad Litem) A. Michael Kuehn, Winona, Minnesota (for child, K.L.R.) Considered and decided by Slieter, Presiding Judge; Johnson, Judge; and Hooten, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In these consolidated appeals, appellant parents challenge the district court's termination of their parental rights to their minor child. Appellant mother argues that the district court should have allowed the parties and their attorneys to be present during the child's testimony at trial. Appellant father argues that the county did not make reasonable efforts to reunify the family, the child was not neglected or in foster care, terminating father's parental rights was not in the child's best interests, and counsel should have been present during the child's testimony. We affirm.
FACTS
Appellants K.M.R. (father) and K.K. (mother) are the biological parents of a minor child born in November 2005. In the fall of 2011, the parents enrolled the child in public elementary school in Minnesota. A county investigator determined that the child struggled socially and academically in kindergarten. When the school attempted to contact the parents to discuss additional assistance for the child, the parents pulled the child out of kindergarten for homeschooling.
Throughout the child's life, the family moved often. Between 2016 and 2017, when the family was living in Texas, child protection attempted to contact the parents via email after a relative called child protection with concerns about the child. However, the parents, taking the child with them, fled to Virginia without responding to the emails. No documentation of the child's education is available from 2012 until the child was properly enrolled in homeschooling for the 2017-18 and 2018-19 school years.
In March 2019, respondent Winona County Health and Human Services (the county) became involved after receiving information about the parents' alleged educational neglect, social isolation, physical abuse, and verbal abuse of the child. A Winona County child protection investigator (the investigator) testified that, during his first meeting with father, father was hostile, sarcastic, and unwilling to let the child be interviewed. The investigator testified that he had significant concerns about the child's development after he was able to eventually interview the child and the child was unable to answer most of his questions. As a result of the interview, the investigator determined that the parents had neglected the child's educational needs and caused mental injury to the child.
The parents agreed to have the child tested by a Mayo Clinic pediatric neurologist and metabolic geneticist, who determined that the child's gross motor, fine motor, cognitive, and language skills were delayed. At the time of testing the child was thirteen but displayed the skills of a five- to six-year-old child. Due to global developmental delay concerns, the neurologist recommended neuropsychological testing of the child.
In April 2019, the county filed a child in need of protection or services (CHIPS) petition regarding the child. The county alleged that the child, who also has special medical needs due to his diagnosis with Crohn's disease, had been severely isolated and neglected and had not received appropriate education. As a result, the county claimed that the child appeared to have significant educational, developmental, and behavioral difficulties that the child's parents had been unwilling or unable to adequately evaluate. The county also noted significant concerns of domestic violence in the family's household.
Later that month, a county case manager met with the parents to create a case plan. The case plan identified the following goals for the parents: (1) refrain from engaging in physical violence in the home, both between themselves and with the child; (2) enroll the child in school; (3) support the child in learning and making friends at school; (4) enroll the child in extra-curricular activities where he has pro-social peer interactions; (5) continue to monitor the child's medical diagnosis of Crohn's disease and include him in his medical care; and (6) consider services to assist the child in developing his independent-living and social skills.
At trial, the case manager testified that, in discussing the child's education with the parents, she learned that the father did not use any specific curriculum to teach the child, purchasing books off of the internet instead. The case manager explained that she reviewed the books father mentioned and determined that they were not appropriate for the child's age or educational needs. The case manager testified that when she attempted to discuss the child's educational needs with father and pointed out the deficiencies of his homeschooling, he became increasingly antagonistic, stomping around the house, becoming verbally aggressive, and live-streaming the meeting on Facebook Live. The case manager noted that, at the end of the meeting, she gave the parents paperwork to review and complete regarding additional services for the child. However, she claimed that the parents later emailed her stating that they were not going to fill out the paperwork because the child did not need additional services.
In May 2019, the child was tested by a Mayo Clinic neuropsychologist. Based on test results showing that the child's cognitive and academic abilities were significantly below average for his age and gender, the neuropsychologist diagnosed the child with an intellectual disability. Given this diagnosis, the neuropsychologist recommended that the parents work on a transition plan for when the child becomes an adult and enroll the child in a public school that could address his special needs.
Also in May 2019, father completed a diagnostic assessment with a therapist. The therapist documented her diagnostic impression that father suffered from an adjustment disorder with anxious distress and recommended additional psychological testing with 20 sessions of individual therapy to gather more information. Father initially completed approximately eight of the recommended therapy sessions with a second therapist, but he did not complete the remaining 12 sessions until nearly a year later, following an updated assessment with a third therapist. The third therapist diagnosed him with adjustment disorder.
In June 2019, the parents entered admissions to the CHIPS petition, acknowledging that the child was in need of protection or services because his mental health and educational needs were not being properly addressed. The next month, after the parents failed to attend a hearing, the district court ordered the county to take the child into its care and custody due to the parents' non-appearance, open hostility to the case manager, and lack of cooperation. However, two days later, when law enforcement and the case manager arrived at the family's apartment to remove the child from the parents' care, it was empty. In August 2019, the family was located at the Denver, Colorado airport boarding an international flight. The child was sent back to Minneapolis and placed in foster care; father and mother were extradited to Minnesota and arrested on felony charges, which were subsequently dismissed. The case manager testified that, when she picked up the child from the airport, he said that he had gone on a long road trip with his parents. The case manager also testified that the child looked thinner than the last time she saw him. At a September 2019 appointment, the child's doctor confirmed that the child had lost nearly 20 pounds since his previous appointment in May 2019.
The county enrolled the child in public school for the 2019-20 school year. After evaluating the child, the school determined that he qualified for special education services due to a developmental cognitive disability. According to school staff, the child blossomed in public school and improved in several areas, including his social skills.
In September 2019, the county filed an out-of-home placement plan with the district court, noting the following safety concerns preventing the child from remaining at home: (1) the parents' failure to cooperate with the recommended services for the child, (2) the parents' hostility toward community services staff, (3) the parents' continued educational neglect of the child, (4) significant concerns regarding the child's social and cognitive abilities, and (5) allegations of domestic violence. The parents' out-of-home placement plan required the parents to accomplish the following tasks before the child would be allowed to return home: (1) enroll the child into public or private school; (2) participate in mental health evaluations for the child; (3) participate in their own individual mental health evaluations—including domestic violence assessments—and follow all recommendations; (5) follow provider recommendations regarding assessments and evaluations that may benefit the child, including state medical review team (SMRT) or community access for disability inclusion (CADI) services; and (6) establish residency and provide secure housing.
In October 2019, the child attended a follow-up appointment with the neurologist, who diagnosed the child with post-traumatic stress disorder (PTSD). Following this diagnosis, a clinical psychologist who specializes in infant and early mental health started treating the child in January 2020 and has met with him regularly since that time. The psychologist confirmed the child's diagnoses of PTSD, global developmental delay, and cognitive delay and has been conducting regular "caregiver" sessions with his foster parents to address the child's symptoms and needs. Although a case manager encouraged the child's parents to attend regular caregiver sessions, they have only attended two sessions, which occurred via phone several months after the child started therapy. After the second session, father indicated that he was only interested in attending caregiver sessions if the child also attended.
The district court found that the child has refused to see his parents since he returned to Minnesota in August 2019, except for one visit in April 2020. According to one of the child's case managers, that visit consisted of a supervised walk in the park. The visit lasted approximately 15 minutes due to mother whispering to the child and father yelling in front of the child. After the visit, the child expressed frustration to the case manager, stating that his dad was the same as before and just "yells and yells and yells."
The child testified that he does not want to see his parents, and various professionals testified that he had repeatedly expressed that same desire to them. The child has also expressed wanting to stay with his aunt and uncle, who are his foster parents. Between April and July 2020, the child's parents wrote him four letters. The child replied to the fourth letter, stating that he did not want to return to his parents.
Despite the child's expressed wishes not to see his parents, Family and Children's Center monitors (FCC monitors) attempted to facilitate supervised visits between the parents and the child. In order to help the child feel more comfortable with the visits, FCC monitors brought the child to an orientation. According to one FCC monitor, the child "almost curled up in a ball and was rocking back and forth" when she mentioned the topic of visiting his parents during the orientation. She also testified that while FCC monitors have encouraged the child to call his parents, leave messages for them, or color pictures for them, the child did not want to participate in any of these suggested contacts.
On June 1, 2020, the county filed a termination of parental rights petition on two statutory grounds: (1) under Minn. Stat. § 260C.301, subd. 1(b)(5) (2020), "[f]ollowing the child's placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement," and (2) under Minn. Stat. § 260C.301, subd. 1(b)(8) (2020), "[t]hat the child was neglected and in foster care."
At a three-day trial on the petition, the district court heard testimony from various service providers involved in the parents' case plan, including the case managers and the parents' therapists. These individuals described in detail the steps that the parents made to comply with their case plan, but the service providers also described the difficulties they experienced in working with the parents and the parents' lack of progress toward the various goals of the case plan. The district court also heard testimony from the child's three successive guardians ad litem, who expressed concerns over the parents' abilities to support the child's best interests. Finally, the district court heard testimony from the child, with the presence of one of his guardians ad litem but without the parties and their attorneys.
After the trial, the district court issued an order terminating both parents' parental rights, finding that clear and convincing evidence supported both grounds for termination and that termination was in the child's best interests. Father and mother filed separate appeals, and this court consolidated those appeals.
DECISION
I. The district court did not abuse its discretion by terminating father's parental rights to the child.
"We affirm the district court's termination of parental rights when 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., 744 N.W.2d 381, 385 (Minn. 2008). We give "considerable deference" to the district court's decision to terminate parental rights but must still "closely inquire into the sufficiency of the evidence to determine whether the evidence was clear and convincing." In re Welfare of K.L.W., 924 N.W.2d 649, 653 (Minn. App. 2019), review denied (Minn. Mar. 8, 2019). When reviewing a district court's decision to terminate parental rights, we review the district court's factual findings for clear error but review "its determination of whether a particular statutory basis for involuntarily terminating parental rights is present for an abuse of discretion." In re Welfare of Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), review denied (Minn. Jan. 6, 2012). "A finding is clearly erroneous if it is either manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." In re Children of T.R., 750 N.W.2d 656, 660-61 (Minn. 2008) (quotation omitted). "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., 554 N.W.2d 393, 396 (Minn. 1996).
A. The district court did not abuse its discretion by determining that the county made reasonable efforts to reunify the family.
Father challenges the district court's finding that the county made reasonable efforts to reunify his family, arguing that the services offered were inadequate, untimely, and unrealistic. Counties are required to make reasonable efforts at reunification before a district court may terminate a parent's rights. Minn. Stat. § 260.012(a) (2020). "Reasonable efforts at rehabilitation are services that go beyond mere matters of form so as to include real, genuine assistance." In re Welfare of Children of S.W., 727 N.W.2d 144, 150 (Minn. App. 2007) (quotations omitted), review denied (Minn. Mar. 28, 2007).
For efforts to be reasonable, the services the county offers must be: "(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances." Minn. Stat. § 260.012(h) (2020). The district court must make specific findings "that reasonable efforts . . . were made including individualized and explicit findings regarding the nature and extent of efforts made by the social services agency to rehabilitate the parent and reunite the family." Minn. Stat. § 260C.301, subd. 8(1) (2020). Finally, the district court must consider "the length of the time the county was involved and the quality of effort given." In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990). A district court's decision that the county made reasonable efforts to reunite the family is reviewed for an abuse of discretion. See In re Welfare of Child of D.L.D., 865 N.W.2d 315, 323 (Minn. App. 2015) (determining that the district court's "reasonable-efforts finding was not an abuse of discretion"), review denied (Minn. July 21, 2015).
Father argues that the county "failed to provide the parents with a meaningful opportunity to demonstrate their ability to meet [the child's] needs and maintain the services that were in place at the time of trial." He also contends that "the record is void of sufficient evidence that [he] was provided any meaningful opportunity . . . to demonstrate the changes made, or what he gained from the services in which he participated."
However, the district court found—and the record supports—that "reasonable efforts under the direction of the Court have utterly failed to correct the conditions leading to the child's placement." The district court made extensive findings regarding the reasonableness of the county's efforts. First, based on testimony from one case manager, the district court found that the county had "tried substantial efforts for reunification, going so far as to offer gas cards to assist father to get to Winona and to Court hearings." The district court also credited the case manager's testimony that "the parents rarely reached out to [the county]" and that "when [the county] reached out to the parents with updates about the child and asking how the parents could be assisted [the county] rarely received a response." Second, the district court found that the county had "tried to be creative and supportive of the parents, but the father and mother failed to cooperate and remained unwilling to meet the child's needs in order to be reunified with him." Third, the district court explained that while "[f]ather and mother had the opportunity to engage with the county and avail themselves of county resources" including the "medical expertise of the Mayo Clinic," they instead "actively avoided contact with the county and fled the state and exposed the child to even more trauma with police involvement." The district court concluded that the county had proven by clear and convincing evidence that "there are no other services that could be offered this family to assist them, that their cultural needs have been considered and that services have been available and realistic for the family."
Extensive evidence in the record supports the district court's findings that the county made reasonable efforts to reunify the family. The county offered a list of services to the parties, including ongoing case management, frequent attempted contact, case planning, service coordination and referrals for mental health services, enrolling the child in school, communication with the child's school, supervised visits, coordination of visits, diagnostic assessments, medical appointments, therapy for the child, and even gas cards. Further, the county encouraged the parents to reach out to the child's medical team, participate in caregiver sessions, and engage in the child's mental health services.
Because the district court's finding that the county made reasonable efforts to reunify the family is supported by clear and convincing evidence in the record, the district court did not abuse its discretion on this issue.
B. The district court did not abuse its discretion in ruling that father failed to correct conditions that led to the child's out-of-home placement.
Father challenges the district court's determination that reasonable efforts failed to correct the conditions that led to the child's out-of-home placement. Minn. Stat. § 260C.301, subd. 1(b)(5) provides that a district court may terminate a parent's rights to a child if "following the child's placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement." We presume that reasonable efforts have failed if: (1) the "child has resided out of the parental home under court order for a cumulative period of 12 months," (2) "the court has approved the out-of-home placement plan," (3) the "conditions leading to the out-of-home placement have not been corrected" as shown by the parent "substantially [complying] with the court's orders and a reasonable case plan," and (4) "reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family." Minn. Stat. § 260C.301, subd. 1(b)(5)(i)-(iv).
The district court, finding that the parents had rejected the services provided to them, concluded that the county had proved "by clear and convincing evidence that both parents failed to correct the conditions that [led] to the child being placed out of the home." The district court explained that the child had been out of the parents' home for 429 days, an amount of time it determined to be "more than enough" for the parents "to get their services in order, work with counselors and service providers to make improvements in their parenting and improve the relationship with their son." However, the district court noted that the parents had instead "used the majority of the 429 days to holler, fight with and try to manipulate the services and supports" offered to them.
Although father did attend required assessments and therapy sessions, one case manager explained that there was no observable change in father's attitudes and behavior throughout the case. Rather, father objected to the child's services, with mother passively agreeing with father's objections. The case manager also testified that the parents rarely responded when she reached out to them and that they never reached out to her to inquire about the child and his well-being.
The case manager's sentiments were echoed by father's therapists and two of the child's guardians ad litem. According to one of father's therapists, father self-reported that he had no problems and that his relationships were all good. The therapist testified that father never even mentioned that child protection was involved in his life even though he was told to attend therapy as part of the CHIPS case plan. One of the child's guardians ad litem testified that neither parent displayed a willingness to support the child's current services. Another of the child's guardians ad litem testified that the parents do not have the qualities necessary to commit to the child's care and collaborate with his service providers.
Although father has been encouraged to attend regular caregiver sessions, he has only attended two sessions. He also refused to fill out the paperwork to enroll the child in additional services based on his own conclusions that the child did not need additional services. Further, although father was given an opportunity to spend time with the child during a supervised walk in the park in April 2020, his failure to refrain from yelling led, in part, to the visit's early end.
Because there was clear and convincing evidence in the record supporting the district court's determination that father failed to correct conditions that led to the child's out-of-home placement, the district court did not abuse its discretion when it ruled that this statutory basis for terminating parental rights was present in this case. Minn. Stat. § 260C.301, subd. 1(b)(5).
Father also challenges the district court's determination that the child was neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8). However, we need not analyze the district court's ruling on that point, because we affirm the district court's ruling that father's parental rights should be terminated under subdivision 1(b)(5). In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004) (holding that appellate courts may affirm the termination of parental rights if one statutory ground is supported by clear and convincing evidence).
C. The district court did not abuse its discretion in determining that terminating father's parental rights was in the child's best interests.
Father challenges the district court's determination that termination of his parental rights was in the child's best interests. We will affirm a termination decision if "at least one statutory ground alleged in the petition is supported by clear and convincing evidence and termination of parental rights is in the child's best interests." T.R., 750 N.W.2d at 661. The child's best interests are the paramount consideration in a termination proceeding. Minn. Stat. §§ 260C.001, subd. 2(a), .301, subd. 7 (2020). A best-interests analysis for purposes of terminating parental rights requires consideration of the child's and parent's interests in preserving the parent-child relationship and of any competing interests of the child. Minn. R. Juv. Prot. P. 58.04, subd. (c)(2)(ii); see also J.R.B., 805 N.W.2d at 905 ("Competing interests [of the child] include such things as a stable environment, health considerations[,] and the child's preferences." (quotation omitted)). The interests of the child are also paramount in this analysis. In re Welfare of P.T. and A.T., 657 N.W.2d 577, 583 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003). We review the district court's finding that termination of parental rights is in the best interests of the child under an abuse of discretion standard. In re Children of D.F., 752 N.W.2d 88, 95 (Minn. App. 2008).
The district court found that involuntary termination of father's parental rights was in the child's best interests. In making this determination, the district court noted that the child has been in court-ordered foster care placement for approximately 429 days. The district court stated that father's "pattern of avoidance and deception, of running away when there is even a hint of [county] involvement demonstrates a lack of capacity to provide the safety and stability that the child needs, particularly because he has lifelong special needs." The district court further noted that when father is "confronted about issues concerning their child, instead of embracing the support services he needs, [he] avoid[s] taking steps and actively interferes with others attempting to act in the best interests of the child." The district court also stated that "[t]here is every indication that the mother and father will continue their behavior into the foreseeable future and the child will continue to suffer as a result." The district court highlighted the importance of the child having "an ongoing plan in place as he approaches adulthood as it is likely that he will need assistance for the rest of his life." The district court also found that the child "is doing extremely well in his foster home and is safe and happy and is having his needs met." The district court explained that "[t]he child was consistent with his therapist, the county, and [the district court] that he did NOT want to have contact with his parents" and that he "expressed significant anxiety at being reunited with his family." The district court concluded that, although father loves his child, the child's "interests and need to have a stable, safe and caring environment in which to thrive far outweighs his parents' interests."
The district court's findings are supported by extensive evidence in the record. One case manager testified that she had ongoing concerns regarding the parents' abilities to understand and meet the child's special needs. She also noted that the child requires caregivers who are willing and able to help him succeed emotionally, socially, and cognitively, but that his parents had not exhibited an investment in the child's education.
The guardians ad litem testified that, in order to be successful, the child would need to keep the same supports and services in place that he currently has. They also explained that the child would need adults in his life that would plan for his future. The guardians went on to testify that they did not observe these qualities in either one of his biological parents, and that neither parent displayed a willingness to support the child's current services.
Because there are sufficient facts in the record which support the district court's determination that termination of father's parental rights is in the child's best interests, the district court did not abuse its discretion on this issue or in terminating father's parental rights to the child.
II. The district court did not prejudicially err by obtaining the child's testimony without the parties and their attorneys present.
Both father and mother argue that the district court prejudicially erred by obtaining the child's testimony without the parties and their attorneys present. At the pretrial hearing, the district court, mother's attorney, and the child's attorney all expressed concern about requiring the child to testify. The district court noted that testifying "would be very hard" and "traumatizing" for the child, explaining that the child was "functioning at a first or second grade level." Mother's attorney stated that the parties, along with their attorneys, should be allowed at the very least to listen to the child's testimony by being present during the questioning, arguing that it was "fundamental to being able to confront and cross examine witnesses" in the proceedings. The child's attorney initially indicated that the child "had no interest in testifying under any circumstances." Shortly after the pretrial hearing, father filed a motion objecting to the child testifying "at the trial via Zoom and in only the presence of [the judge] and the [g]uardian [a]d [l]item." At trial, when the child's attorney stated that the child had changed his mind and did want to testify, father and mother continued to object.
Because the record demonstrates that the parents made timely objections to the manner in which the child's testimony was received, the harmless error standard controls our review. See In re Child of Simon, 662 N.W.2d 155, 159, 162 (Minn. 2003) (reviewing the district court's admission of objected-to evidence under the harmless error standard). In parental termination cases, evidentiary errors are harmless when the record contains evidence, other than the evidence that was purportedly admitted in error, "that is independently sufficient to support the district court's decision to terminate . . . parental rights." Id. at 162.
At the pretrial hearing, the district court explained that it wanted the child's attorney "to touch base" with the child before he testified "[j]ust to get a last sense of his temperament and his concerns" and to see if he was "extremely wound up about" testifying. The district court also noted that following the child's testimony, the guardian ad litem "would be subject to examination by all parties."
In a written order addressing several motions from the pretrial hearing, as well as father's written motion objecting to the child's testimony, the district court stated that it was "preferred and strongly encouraged" for the child's testimony to be taken over Zoom in the presence of the child's guardian ad litem and again noted that the guardian ad litem could be cross-examined by the attorneys if necessary. The district court stated that "[t]his [was] a procedure employed by other courts and one which best serves the juvenile's interests." The district court also reasoned that "[w]hile [the child] is a teenager in years, he is still a special needs child and accommodating him when it comes to testifying in court can and should be done in a manner that serves his best interests." Shortly before the child testified at trial, the district court explained that she wanted to talk with the child as a "meet and greet" to say hello, "talk to him a little bit about school," and to express appreciation for "all [the child's] hard work . . . meeting with all of [the attorneys], meeting with his counselor, going to therapy, and working hard in school." The district court also informed the parties that the child's guardian ad litem would "be subject to cross examination."
The child eventually testified via Zoom, with his guardian ad litem present on the Zoom screen, responding to open-ended questions from the district court. A court reporter, who made a record of the child's testimony, was also present. The district court asked the child about his friends, school, choir, TV, movies, and what he liked about living with his aunt and uncle, who were his foster parents. Near the end of the conversation, the district court asked the child if there was anything else he wanted the judge to know. The child responded, "I don't want to go back to my parents."
While the district court did not permit the parties or their attorneys to appear on the Zoom screen or to question or cross-examine the child during the Zoom proceeding, the parents' attorneys were not prevented from cross-examining the guardian ad litem following the child's testimony. There is no evidence in the record that the parties or their attorneys ever requested that they be allowed to submit questions for the child either before or after the child's testimony, or that they requested to cross-examine the guardian ad litem after the child's testimony. Additionally, there are no post-trial motions regarding the issue.
While it is a matter for the district court's discretion whether to conduct interviews of the children, the trial court must follow statutory requirements if it decides to hold such interviews. Smith v. Smith, 425 N.W.2d 854, 857 (Minn. App. 1988). Minn. Stat. § 260C.163, subd. 6 (2020), establishes certain procedures for examination of children alleged to be in need of protection. In relevant part, subdivision 6 provides that "the court may, on its own motion or the motion of any party, take the testimony of a child witness informally when it is in the child's best interests to do so." Id. "Informal procedures that may be used by the court include taking the testimony of a child witness outside the courtroom." Id. The court may also require counsel for any party to the proceeding to submit questions to the court before the child's testimony is taken, and to submit additional questions to the court for the witness after questioning has been completed. Id. In addition, subdivision 7 provides that the district court may temporarily excuse the presence of the parent or guardian of a child from the hearing when it is in the best interests of the child to do so. Minn. Stat. § 260C.163, subd. 7. "[T]he attorney or guardian ad litem, if any, has the right to continue to participate in proceedings during the absence of the minor, parent, or guardian." Id.
Father contends that the district court "failed to adhere to the trial procedures when it questioned [the child] outside the presence of all attorneys and prevented all parties from asking questions or follow up questions" of the child. Mother asserts that the district court "erred when it permitted the [c]hild to testify in private[,] outside the presence of all but the [j]udge and the [g]uardian [a]d [l]item," without "specify[ing] the reasoning for the decision to limit the testimony."
We disagree for three reasons. First, Minn. Stat. § 260C.163, subd. 6, explicitly allows the district court to take the testimony of a child informally and outside of the courtroom, on its own motion, when it is in the child's best interests to do so. The district court found that it was in the child's best interests to testify without the other parties present due to the child's special needs. The district court also noted that it "would be very hard" and "traumatizing" for the child to testify, explaining that the child was "functioning at a first or second grade level." The district court's conclusions are supported by evidence in the record. The child's neurologist concluded that the child displayed the skills of a five- to six-year-old, although he was thirteen years old. And the Mayo Clinic neuropsychologist found that the child's cognitive and academic abilities were significantly below average for his age and gender, diagnosing the child with an intellectual disability. Additionally, several witnesses testified that the child did not want visits or contact with his parents. One guardian ad litem testified that the child "physically recoiled and kind of rolled himself up into a ball" when visits were discussed. Further, the child became visibly anxious and upset when asked by FCC monitors if he wanted to visit with his parents and would also scream and hang up the phone when the FCC monitors were speaking with the parents. Because this evidence in the record supports the district court's finding that it was in the child's best interests to testify informally without the presence of the parties and their attorneys, that finding was not clearly erroneous, and the district court needed the approval of neither the child's parents nor the parties' attorneys before it informally took the testimony of the child. See Minn. Stat. § 260C.163, subd. 6.
Second, Minn. Stat. § 260C.163, subd. 7, explicitly provides that the district court may temporarily excuse the presence of a parent or guardian of a child from the hearing when it is in the best interests of the child to do so. Because the same evidence supporting the district court's finding that it was in the child's best interests to testify informally also supports the district court's conclusion that it was in the best interests of the child to testify without his parents present, the district court did not err by excluding the child's parents from Zoom during the child's testimony.
Third, while Minn. Stat. § 260C.163, subd. 7, provides that "the attorney or guardian ad litem, if any, has the right to continue to participate in proceedings during the absence of the minor, parent, or guardian," the plain language of the statute uses the disjunctive "or" to formulate two separate and distinct means to satisfy the statute. "[I]n the absence of some ambiguity surrounding the legislature's use of the word 'or,' we will read it in the disjunctive and require that only one of the possible factual situations be present in order for the statute to be satisfied." State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000). The language in subdivision 7 is clear and unambiguous. When a child's parents are absent from proceedings, either the attorney or the child's guardian ad litem has the right to participate—not both. And because the statute refers to a singular "attorney" in the same sentence as the "child's guardian," we interpret "attorney" to mean "the child's attorney," contrary to the parties' arguments that their own attorneys had a right to be present under the statute. Because the district court allowed the child's guardian ad litem to attend the Zoom hearing where the child testified, the procedure employed satisfied the requirements of subdivision 7, and the district court therefore did not err by excluding the parties' attorneys.
Because the plain language of subdivisions 6 and 7 expressly permit the district court to take the testimony of a child witness privately and informally when it is in the child's best interests, and because the record supports the district court's finding that it was in the child's best interests to testify without the other parties present, the district court did not err by prohibiting the parties and their attorneys from being present during the child's testimony.
In further support of our conclusion, we note that our interpretation of Minn. Stat. § 260C.163 does not violate the parties' due process rights under U.S. Const. amend. XIV and Minn. Const. art. I, § 7, which require "an opportunity to confront and cross-examine adverse witnesses." Goldberg v. Kelly, 397 U.S. 254, 269-70, 90 S. Ct. 1011 (1970). While the parents' attorneys were given the right to cross-examine the child's guardian ad litem and could have asked to submit questions for the child either before or after the child's testimony, they chose to do neither. And there is no indication that the judge, who was familiar with the case, would have denied either parent the opportunity to cross-examine the guardian ad litem or submit questions for the child had they been requested.
Even if one assumes that the district court committed an error, any error that occurred would not require a new trial because the record contains evidence—other than the child's testimony from the Zoom hearing—that is independently sufficient to support the district court's decision to terminate the parents' parental rights. See Simon, 662 N.W.2d at 162. As already discussed in detail in section I, subsection C, of this opinion, the county presented overwhelming evidence that the termination of parental rights was in the child's best interests. The child had previously written a letter to his parents stating that he did not want to return to them, and that letter was introduced as an exhibit. Also, various professionals, as well as one of his foster parents, testified that the child had repeatedly expressed that same desire to them. This evidence independently supports the district court's decision that terminating the parents' parental rights was in the child's best interest. Therefore, even if the district court erred by excluding the parties and their attorneys from the Zoom hearing where the child testified—which it did not—any error that was committed would not require reversal.
Affirmed. JOHNSON, Judge (concurring specially)
I concur in part I of the opinion of the court. But I respectfully disagree with the statutory analysis in part II. In my view, appellants have established that the district court committed two procedural errors in connection with the informal testimony of the child.
First, the district court erred by preventing the parents' respective attorneys from participating in the hearing during the child's informal testimony. The district court's ruling violated the third sentence of subdivision 7, which states, "The attorney or guardian ad litem, if any, has the right to continue to participate in proceedings during the absence of the minor, parent, or guardian." Minn. Stat. § 260C.163, subd. 7 (2020). That sentence ensures that, if a parent has been excused from the hearing pursuant to the fourth sentence of subdivision 6 or the second sentence of subdivision 7, an attorney representing the parent may continue to participate in the hearing, regardless of whether the guardian ad litem is participating.
Second, the district court erred by preventing the parents' attorneys from cross-examining the child. The district court's ruling violated subdivision 8, which states, "The minor and the minor's parent, guardian, or custodian are entitled to be heard, to present evidence material to the case, and to cross-examine witnesses appearing at the hearing." Minn. Stat. § 260C.163, subd. 8 (emphasis added); see also In re Zink, 119 N.W.2d 731, 735 (Minn. 1963) (holding that juvenile court violated Minn. Stat. § 260.155, subd. 6 (1962) (repealed and replaced by Minn. Stat. § 260C.163, subd. 8) by not allowing putative father to present evidence or cross-examine witnesses). Subdivision 8 ensures that a parent's attorney may cross-examine a child who testifies informally; subdivision 8 is not satisfied if a parent's attorney is allowed to cross-examine the guardian ad litem but not the child. A parent's right to cross-examine a child who testifies informally is confirmed by the third sentence of subdivision 6, which states that attorneys may be required "to submit additional questions to the court for the witness after questioning has been completed." See Minn. Stat. § 260C.163, subd. 6.
The district court justified its rulings by stating that modified procedures would serve the child's best interests and "take into consideration all of the delicacies of this unique case." To be sure, the facts and circumstances of this case would suffice if the modified procedures were authorized by statute and the district court were vested with discretion to order modifications based on a child's best interests. But neither of those conditions is present. The two statutory provisions at issue—the third sentence of subdivision 7 and subdivision 8—confer on parents unqualified rights that do not depend on best-interests determinations. Some parents may voluntarily agree to modified procedures, but the parents in this case objected. The district court could have protected the child's best interests by requiring the parents' attorneys to submit their cross-examination questions to the court for pre-approval. See Minn. Stat. § 260C.163, subd. 6 (second clause of third sentence). The district court also could have protected the child's best interests in other ways, including the discretionary exercise of "reasonable control" over the proceedings. See Minn. R. Evid. 611.
Nonetheless, I agree with my colleagues that the error was harmless for the reasons stated in the final paragraph of the opinion of the court. Thus, I join the court's decision to affirm the judgment of the district court.