                         This opinion will be unpublished and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
                                    A14-1722

      In the Matter of the Welfare of the Children of: C. A. S. and C. L. K., Parents

                                   Filed April 6, 2015
                                        Affirmed
                                    Connolly, Judge

                              Jackson County District Court
                                  File No. 32-JV-14-31


Kenneth R. White, Law Office of Kenneth R. White, Mankato, Minnesota (for appellant
C.A.S.)

L. Douglas Storey, Storey Law Office, Windom, Minnesota (for respondent C.L.K.)

Sherry E. Haley, Jackson County Attorney, Jackson, Minnesota (for respondent
Des Moines Valley Health and Human Services)

Carma Nordahl, Sheldon, Iowa (guardian ad litem)



      Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Harten, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

CONNOLLY, Judge

      Appellant challenges the termination of her parental rights, arguing that the district

court’s conclusion that appellant is palpably unfit to be a party to the parent-child

relationship is not supported by clear-and-convincing evidence. Because we see clear-

and-convincing evidence that supports that conclusion, we affirm.

                                         FACTS

      Respondent C.L.K. is the father and appellant C.A.S. is the mother of three

daughters, B., born in May 2001; A., born in March 2005, and K., born in March 2008.1

The parents separated in November 2008. In March 2009, K.’s paternity was adjudicated

and the parents were awarded joint legal and physical custody. The children, then ages

seven, four, and one, were to spend alternate weeks with each parent.

      Child-welfare assessments were conducted in April 2007, when one of the

children went to a neighbor’s house saying that they were hungry and did not know

where appellant was, and in December 2008, because of reports that the children were

running out of their apartment without supervision, did not take baths, and did not have

beds, and that appellant had hit and pushed B., then age seven.

      In January 2009, law enforcement officers responded to reports of screaming and

banging in the apartment. They found inappropriate clothing and insufficient food for the

children. B. told them that appellant had pulled her hair and pushed her face into the


1
  Although the parental rights of both parents were terminated, and C.L.K. is listed as a
respondent, he takes no part in this appeal.

                                            2
couch. Later in 2009, reports of appellant’s inadequate supervision resulted in another

child-welfare assessment.

       Early in 2010, B., then age eight, burned A., then age four, on the back of the leg

with a light bulb. Appellant did not seek medical attention for A. In February 2010, K.,

then 23 months old, was hospitalized in a burn unit because of severe burns on her feet.

Appellant claimed that, while she was taking out the garbage, K. went from the first to

the second floor, undressed, got in the tub, ran hot water until it reached a scalding

temperature, burned her feet, got out of the tub, and went to the hall, where she stood

screaming. Medical personnel stated that the burns were not consistent with immersion

in hot water. As a result of this incident, the children were adjudicated children in need

of protection of services (CHIPS) by Martin County and placed in C.L.K.’s temporary

legal and physical custody. Because appellant’s boyfriend, J.H., hit and spanked the

children, C.L.K. obtained a harassment restraining order to prevent J.H. from having any

contact with the children for two years.

       In March 2011, while on an overnight visit with appellant, A. received first- and

second-degree burns on her face and neck. Appellant claimed this was the result of A.

bumping into a cousin while carrying hot Ramen noodles.          Appellant did not seek

medical attention for A. but treated the burned area herself. When A. returned to C.L.K.,

he obtained necessary medical attention for the burns. As a result of this incident,

appellant’s visitation was again supervised.

       The children were sent to spend the summer of 2012 with appellant. In July, A.

and K. overdosed on Klonopin, a prescription medication. The medication belonged to


                                               3
J.H., who had spent the night with appellant and the children. When law-enforcement

officers arrived, they found the apartment dirty, unsanitary, and without food. A. and K.

were on the floor shaking, crying, and unable to walk; they were taken by ambulance to a

hospital. The children were placed in emergency protective care, then released to C.L.K.

Appellant was charged with and pleaded guilty to contributing to the need for child

protection or services.

         In April 2013, A. disclosed that she had been molested by J.H. when he stayed

overnight during the children’s unsupervised weekend visit with appellant. A. said J.H.

had abused her more than once, putting his penis into her mouth and butt. A. also said

she had told appellant about this event, but appellant had not believed her.

         When B. and K. were questioned, B. disclosed that J.H. had inappropriately

touched her breasts, and K. disclosed that J.H. had put his penis in her mouth while she

was sleeping, but stopped when she woke. K. also said she had told appellant about this.

         J.H. was charged with multiple counts of first-degree criminal sexual conduct, but

A. was found not competent to testify, and the charges were dismissed due to lack of

admissible evidence. Appellant claimed that C.L.K. had coerced them to report that J.H.

abused them. In May 2013, appellant was charged with misdemeanor tampering with a

witness after she engaged in Facebook chats with B. in which she called B. a liar with

reference to B.’s allegations of J.H.’s criminal sexual conduct.2




2
    In February 2014, C.A.S. pleaded guilty to an amended charge, using mail to harass.

                                              4
      In June 2013, respondent Jackson County Department of Human Services

(JCDHS)3 filed a CHIPS petition regarding the children, alleging, among other things,

that appellant provided inadequate supervision, J.H. had sexually abused them, and

appellant had not responded to the abuse appropriately. Appellant did not attend the

hearing on the CHIPS petition. C.L.K. admitted that the children were without necessary

care because he was unwilling or unable to provide it: his car had been repossessed, and

his home was unclean with mold on the walls. The children were adjudicated CHIPS.

      At a CHIPS hearing in September 2013, appellant admitted facts showing that the

children were victims of emotional maltreatment because, after they reported that A. had

been sexually abused by J.H., appellant posted several Facebook messages calling the

children liars. The children were again adjudicated CHIPS. JCDHS filed a petition for

emergency protective care for them; the petition was granted because of a prima facie

showing that, while they were in C.L.K.’s custody, they were in surroundings or

conditions that endangered their health, safety, or welfare. The children were placed in

foster care, where they have now been for 18 months.4

      Five dispositional hearings between October 2013 and July 2014 indicated that the

conditions resulting in the children’s out-of-home placement had not been corrected and

that their parents had not made sufficient progress with the case plan. Both parents were

discharged from therapy, C.L.K. because his alcoholism interfered with his ability to be

3
  The children had moved to Jackson County. JCDHS has since merged with other
departments into respondent Des Moines Valley Health and Human Services.
4
  A county is required to file a termination-of-parental-rights petition “for all children
who have been in out-of-home care for 15 of the most recent 22 months.” Minn. Stat.
§ 260C.301, subd. 4 (2014).

                                            5
emotionally present and appellant because she would not contemplate the possibility that

J.H. could have molested the children and continued to tell the children they were liars

and should recant their statements of abuse, even whispering these comments to B.

during supervised visitation. As a result, the children did not trust appellant, and she was

unable to meet their emotional needs.

       JCDHS filed a petition for the termination of appellant’s parental rights based on

her palpable unfitness to be a party to the parent-child relationship. Following trial, the

petition was granted. Appellant challenges the termination of her parental rights.5

                                      DECISION

       Whether to terminate parental rights is discretionary with the district court. In re

Welfare of Child of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014). This court will “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)

(citations omitted). While the reviewing court “give[s] considerable deference to the

district court’s decision to terminate parental rights,” it will also “closely inquire into the

sufficiency of the evidence to determine whether it was clear and convincing.” Id. “In

terminating parental rights, the best interests of the child are the paramount consideration,

5
  The petition also asked for a termination of appellant’s parental rights on the ground
that JCDHS’s reasonable efforts had failed to correct the situation leading to the
children’s out-of-home placement. Because we conclude that appellant’s palpable
unfitness to be a party to a parent-child relationship provided an appropriate basis for
terminating her parental rights, we do not address this issue.

                                              6
and conflicts between the rights of the child and the rights of the parents are resolved in

favor of the child. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 902 (Minn. App.

2011), review denied (Minn. Jan. 6, 2012).6

       The district court concluded that appellant’s parental rights should be terminated

under Minn. Stat. § 260C.301, subd. 1(b)(4) (2014), providing that one ground for

termination is a finding that

              a parent is palpably unfit to be a party to the parent and child
              relationship because of a consistent pattern of specific
              conduct before the child or of specific conditions directly
              relating to the parent and child relationship either of which
              are determined by the court to be of a duration or nature that
              renders the parent unable, for the reasonably foreseeable
              future, to care appropriately for the ongoing physical, mental,
              or emotional needs of the child.

The district court’s findings that appellant is and for the reasonably foreseeable future

will be unable to care for her children’s physical and emotional needs are supported by

clear-and-convincing evidence.

       1.     The Children’s Physical Needs

       Appellant argues that the physical harm to the children, i.e., the burns to K.’s feet

in 2010 and to A.’s leg in 2010 and her face and neck in 2011, were isolated incidents

and “[c]hildren are going to be injured at times, regardless of the best efforts of parents.”

This is true, but the fact that the children suffered burns is not the only issue here.

Appellant’s failure to seek medical attention for A.’s burns on either occasion is another

issue, and appellant’s unconvincing explanation of how a 23-month-old child in a few

6
  Appellant does not oppose the district court’s conclusion that the termination of her
parental rights is in her children’s best interests.

                                              7
minutes managed to burn her feet with scalding water so that she required hospitalization

in a burn unit is a third issue.

       Moreover, appellant does not address the major physical harm sustained by A. and

K. in 2012 when they had to be taken to the hospital because they overdosed on a

prescription medication left within their reach. While accidents do happen to children,

appellant’s failure to supervise them (assuming that K.’s burns were a result of lack of

supervision), to get medical attention for A.’s burns, and to keep medications out of the

children’s reach so that A. and K. each suffered two significant injuries between 2010

and 2012 indicates an inability to care for their physical needs.

       2.      The Children’s Emotional Needs

       Appellant does not claim that the issues arising from the children’s allegation of

sexual abuse by J.H. have been resolved; she argues instead that “the sexual abuse issue

can be addressed in the future.” She does not dispute the district court’s findings that

“[her] recent resumption of her relationship with [J.H.,] the abuser of her children, feeds

her children’s fears that she will not protect them,” that the children “do not trust her to

care for them or believe them,” and that the children “express anger because they feel

[she] has chosen [J.H.] over them.”

       Moreover, appellant admits in her brief that: (1) she “has consistently denied that

such abuse occurred”; (2) she “has failed to acknowledge the impact the claims [of J.H.’s

sexual abuse] have had on her daughters”; (3) she “has, admittedly, made little progress

in addressing the issue”; (4) she left J.H., but began to see him again after the criminal

charges against him were dismissed; and (5) she “[failed] in therapy to acknowledge the


                                              8
possibility of the sexual abuse and to empathize with her children.” Appellant concedes

that, “if this [sexual-abuse] issue is no longer [to be] a justification for termination of

parental rights,” she must “address these issues in therapy sessions,” but she has made no

further efforts to engage in therapy and, as her previous therapist’s testimony indicates,

she was discharged because she made no progress in dealing with the issue.

       Appellant’s therapist saw her 11 times between August 2013 and March 2014

concerning the recommendations of her psychological evaluation that she deal with her

cognitive restructuring and internal cohesion, i.e., the fact that what she believes is not

consistent with reality. The therapist testified that: (1) appellant did not have insight into

changes she needed to make and did not make any progress on the therapeutic goals

during their 11 sessions; (2) she was discharged because she and the therapist could not

find any need for change that they agreed on; (3) they talked about access to other

professionals who could provide therapy if appellant wanted it and who were available on

a crisis hot line; (4) appellant had recently (i.e., before the TPR hearing) begun seeing the

therapist again, but this was not to deal with the sexual-abuse issue but rather with the

stress of the TPR process; (5) progress on issues is necessary if appellant is to parent her

daughters; (6) appellant has difficulty communicating in a nonthreatening way and needs

to address this if she is to parent her children; (7) there has been no progress toward the

original treatment goals; (8) appellant has been incapable of getting past the things that

prevented her from being able to parent; (9) there has been no movement in appellant’s

ability to create even the possibility that J.H.’s sexual abuse occurred for her children;




                                              9
and (10) “[appellant] did not believe that [sexual abuse] had happened to her children, so

there is no reason for empathy there.”7

       The district court’s finding that appellant cannot care for her children’s ongoing

physical and emotional needs and will not be able to do so for the reasonably foreseeable

future are supported by clear-and-convincing evidence.

       Affirmed.




7
  In her brief, appellant mischaracterizes her therapist’s testimony when she says he
“could not testify that [she] could not appropriately parent her children.” The therapist
was asked on cross-examination, “[Y]ou had stated that [appellant] would need to make
progress on those goals [to be] able to parent her children. Are you saying that at this
time she’s not able to parent her children?” He answered, “I’m saying we haven’t made
any progress on the goals.” He was then asked, “So, you’re not in a position to make that
statement?” and answered, “Boy, I don’t – I don’t think so. No, I don’t believe so.” The
therapist was not asserting that appellant is now able to parent her children; he was
asserting that she had made no progress toward the goals she needs to reach before she
can parent them.

                                           10
