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PUBLISHED (PRECEDENTIAL) CASES

IN THE MATTER OF

WELFARE OF CHILD OF

H.G.D. AND J.R.Q.

Supreme Court decision

Issued August 4, 2021

Default Testimony case

Default TestimonyIn re Welfare of the Child of H.G.D. and J.R.Q, --- N.W.2d ---, A20-1182, Minn. | August 4, 2021

Facts:

A CHIPS petition was filed in district court alleging that the child of H.G.D. was in need of protection or services. Two days later, an EPC hearing was held, at which the district court found that the petition stated a prima facie case that a child protection matter existed and that the child would be endangered if she were returned to H.G.D.’s care.

At a continued EPC hearing and A/D hearing ten days later, H.G.D. entered a denial to the CHIPS petition. Shortly after this hearing, the child was returned to the care of H.G.D. after meeting conditions set by the court.

Respondent mother H.G.D. was properly served with a CHIPS petition and received notice of the pretrial hearing scheduled for approximately a month after the A/D hearing. The notice stated that the H.G.D. was expected to appear at the hearing, and if she did not, the district court could conduct the hearing without her, find that the factual allegations and statutory grounds in the petition had been proven, and grant the relief requested in the petition. H.G.D. ailed to appear at the pretrial hearing.


Facts (continued):

When H.G.D. failed to appear at the pretrial hearing, the Rice County Social Services agency requested to proceed by default pursuant to MRJPP 18, and the court granted the request over H.G.D.’s attorney’s objection. The GAL agreed with the request to proceed by default.

The social services agency called two witnesses to testify. The first witness was a county social services worker who had participated in a previous family assessment and investigation regarding H.G.D. and the child, during which he had numerous contacts with H.G.D. and the child. He testified that he had prepared and signed the petition and that everything in the petition was true and correct. He also stated that based on all the information in the petition he believed the child was in need of protection or services.

The second witness, H.G.D. and the child’s social service agency case manager, testified that the child had been returned to the mother’s care after the home was deemed safe and the mother had provided a negative UA. The case manager stated that after the child’s return to H.G.D.’s care, H.G.D. had been difficult to contact, unwilling to meet with the worker, and inconsistent in the information she provided to the worker. The case manager stated that H.G.D. would not agree to a date and time for a meeting for the worker to see the child and H.G.D. had missed two appointments with her P.O. for UAs.


District Court Decision

No exhibits were offered into evidence by the social services agency and no other party offered any evidence.

After hearing the testimony of the social services agency witnesses and closing arguments by the parties, the district court found that the social services agency had proven the CHIPS petition by clear and convincing evidence and concluded that the child was in need of protection or services.

District court based its decision on the testimony of the witnesses and the information contained in the CHIPS petition.

H.G.D. appealed the district court’s decision to the Court of Appeals.

On appeal, H.G.D. did not challenge the district court’s decision to proceed by default. Instead, she asserted that the testimony of the agency’s witnesses was insufficient to prove by clear and convincing evidence that the child was in need of protection or services.


Court of Appeals Decision (953 N.W.2d 735)

H.G.D. asserted that district court could not consider the allegations in the petition as evidence because the petition was not entered into evidence as an exhibit.

The social services agency argued that because H.G.D. failed to appear for the pretrial hearing, the allegations in the petition were effectively admitted and that the evidence before the court included the facts alleged in the petition.

The COA held that MRJPP 18 does not allow for relief in a default proceeding based solely on the pleadings, that the effect of a default is to allow the proceeding to continue without the responding party, and that the agency must prove the allegations of a petition by the applicable standard of proof.

The COA found that because the petition was not offered into evidence and no witness testified about the specific allegations contained in the petition, the district court could not consider the allegations in the petition in determining whether the petition had been proven. The Court found that without the facts alleged in the petition, the evidence presented to the district court was insufficient to support a CHIPS adjudication.

The Court of Appeals reversed the district court’s decision.


Supreme Court Decision

Two issues were addressed: 1) whether a district court may consider the allegations in a petition to be deemed admitted if a parent fails to appear at a hearing on the petition; and 2) whether a petition must be entered into evidence to be considered in a district court’s determination that a child is in need of protection or services.

H.G.D. argued: 1) the allegations in the petition couldn’t be considered; and 2) without the information contained in the petition, the evidence was insufficient to establish that the child was in need of protection or services.

The social services agency argued that when a district court proceeds by default, the defaulting party is deemed to have admitted the facts in the petition by virtue of their default, as is the case in other civil proceedings.

The SC found that MRJPP 18 does not permit entry of judgment based solely on a party’s failure to appear. The circumstances of this case were different from a civil proceeding where the requested relief is granted when a responding party fails to plead or otherwise defend against a civil lawsuit because, in this case, the parent was defaulted at the pretrial hearing, after appearing at the A/D hearing and denying the allegations in the petition.

The SC found that Rule 18 requires the petitioning party to prove the allegations in the petition by the appropriate standard of proof, even when a responding party fails to appear.


Supreme Court Decision (continued)

Regarding the issue of whether the district court could consider the allegations in the petition as evidence in support of the petition, the social services agency argued that it could because a witness testified that the allegations of the petition were true.

H.G.D. argued that the allegations in the petition could not be considered because MRJPP 18 provides that the evidence presentedmust be “in support of the petition,” meaning that the evidence must be independent of the petition.

The Court stated that “to be clear, the petition was not evidence because it was not offered or admitted into evidence.” However, given the unrefuted testimony in the case was that the allegations in the petition were true and correct and the additional testimony provided by the social services agency was consistent with the allegations in the petition, the district court was “not precluded” from considering the allegations in the petition in making its decision.

The Court noted that the petition was filed with the district court and was therefore part of the case record before the court and that the district court could consider the allegations in the petition in making a disposition on the petition. However, the Court also stated that If the County had offered no evidence in support of the petition, then the allegations in the petition would have been unproven and there would not have been a basis for a CHIPS adjudication.

The Supreme Court held that the district court can consider the allegations of a petition if evidence establishes the reliability of those allegations.

The Court concluded that in this case, the district court properly considered the allegations in the petition as evidence and that the petition was proven by clear and convincing evidence. The Supreme Court reversed the decision of the Court of Appeals.


Takeaways and Practice Tips

When proceeding by default, the petitioning party must present evidence to the court that is sufficient to prove the allegations of the petition by the relevant legal standard (most often clear and convincing evidence).

A petition need not be entered into evidence for the district court to consider the allegations of the petition in making its decision, as long as the evidence submitted to the court establishes the reliability of the allegations in the petition.

While this case relates to a CHIPS matter, the Court’s holdings and instructions are also applicable to permanency matters.

When providing evidence to the court to support a default adjudication:

Have a witness testify to the truth and accuracy of the factual allegations in the petition; and

Provide additional testimony or exhibits that support the allegations in the petition and/or are consistent with the allegations in the petition.


Interesting Footnotes

The Supreme Court noted that the record on appeal includes not only the testimony at the pretrial hearing, but also the petition and reports filed with the district court. See Minn. R. Civ. App. P. 110.01 (stating the record on appeal includes the documents filed in the trial court).

The Court noted that other than for the admit/deny hearing, when a denial may be entered by counsel, (See Minn. R. Juv. Prot. P. 47.02, subd. 1; Minn. R. Juv. Prot. P. 56.02, subd. 1), parents are required to personally appear at child protection hearings, even if represented by counsel. See Minn. R. Juv. Prot. P. 18.01; see also In re Welfare of Children of Coats, 633 N.W.2d 505, 509 n.2 (Minn. 2001).

Relying on Minn. Stat. § 260C.193, subd. 2, amicus curiae Minnesota County Attorneys Association argues that the district court can consider a petition because it is a “report.” Having determined that the allegations in the petition are supported by the unrebutted witness testimony, we do not need to decide whether the petition is also a “report” under this statute.


Interesting Footnotes (continued)

The Supreme Court noted that the Court of Appeals interpreted Minn. R. Juv. Prot. P. 3.02, subd. 3. too narrowly when it stated that the district court could not take judicial notice of the petition simply because it was in the court file. While it didn’t state that the district court could take judicial notice of the petition, the Supreme Court noted that the plain language of the rule permits the district court to take judicial notice as allowed under the Rules of Evidence in addition to taking notice of “findings of fact and court orders in the juvenile protection court file.” Minn. R. Juv. Prot. P. 3.02, subd. 3. The Court stated that under the Rules of Evidence, the district court can take notice of facts that are not subject to reasonable dispute based on, among other things, “sources whose accuracy cannot reasonably be disputed.” Minn. R. Evid. 201(b).

This footnote indicates that the district court could take judicial notice of documents in the court file or other facts that are not subject to reasonable dispute.

MATTER OF WELFARE OF

CHILD OF M.L.S.

Court of Appeals decision

Issued February 22, 2021

Post-permanency case

MATTER OF WELFARE OF CHILD OF M.L.S. (CONT.)

District Court Facts/Procedure:

• Appellant is paternal aunt of one of three children (“X”)

• Appellant filed a motion for permissive intervention after the agency requested the District Court “to rule out” Appellant as a permanency option

• District Court denied Appellant’s motion for permissive intervention


Appellate Court Procedure:

• Appellate Court questioned whether the appeal was from a non-appealable order

• Parties filed informal memos

• Considered at a Special Term of the Court of Appeals

• Court of Appeals accepted jurisdiction of the appeal


Decision:

• Court of Appeals rejected Appellant’s argument that her motion was for intervention as a matter of right

• Court of Appeals reasoned the District Court’s Order barred Appellant from being considered as an adoptive placement; and thus a “final order” affecting a “substantial right”

• Limited ruling as to appealability in juvenile protection matters

• Special Term Opinion: Appeal to proceed

• Matter of Welfare of Child of M.L.S., 956 N.W.2d 257 (Minn. Ct. App. 2021)

TAKE TWO:


CHILD OF M.L.S.


Issued June 28, 2021Focused on whether intervention was in the best interest of the child

TAKE TWO: MATTER OF WELFARE OF CHILD OF M.L.S. (CONT.)


• Placements: All three children (D, K, and X) had several different placements:• Together-

• Bio father of D and K and his mother• Foster home

• Separate-• X had a total of five different foster care placements before being placed in current foster

home in October 2019• X met current foster family in 2017 through volunteer crisis organization



• Relative Search: Agency sent letters to “three maternal and eight paternal relatives”

• FGDM held; a family option was identified

• TPR Order relieved the agency of further RS efforts “as relatives were not and should not be with the children”



• In September 2020, the Agency informed the court that:• X’s paternal aunt expressed an interest in adopting X • The social worker, GAL, and adoption social worker met with aunt• The adoption worker opined that based on X’s “high level of needs”, moving her

would be detrimental• The adoption worker indicated “we” are concerned the aunt may not understand

the implications of her brother being a sex offender and how to monitor the situation• X considers her current foster family her “forever family”



• Aunt sent a letter to the agency dated October 19, 2020, asking for reconsideration of X’s adoption stating that:

• In October 2019, the agency contacted her about X• Aunt replied she wanted to foster X, and if it did not work, adopt X• At the FGDM, aunt indicated if there was a TPR, she wanted to adopt X• Aunt asked to visit X, but the agency did not respond to her request• In December 2019, the agency contacted aunt to see if she was still interested in

adopting X; aunt replied she was • When next contacted, aunt’s husband was not ready and wanted to ask more

questions. Soon after (within the same month), aunt and her husband confirmed they wanted to adopt X



• Aunt’s letter also stated:• Aunt and agency met on March 13, 2020; aunt wanted to visit and adopt X• Agency told aunt in April 2020 things were on hold due to COVID• Aunt learned in July 2020 her brother was TPR’ed• Aunt later learned the agency preferred X be adopted by her foster family



• October 28, 2020: Agency requested a “rule out” of aunt

• November 2, 2020: Agency filed aunt’s October 19, 2020 letter with the court

• November 6, 2020: Aunt moved for permissive intervention

• November 9, 2020: Court issued a notice of judicial determination that X remain in her placement, and this shall be the permanency option, not aunt

• December 15, 2020: Motion for permissive intervention was heard and denied• Court found X has developed a healthy attachment with the foster parents• Court found agency was not unreasonable in declining to consider aunt for permanency• Court ordered no contact with X by her parents or family members (including aunt)


Analysis:• Court of Appeals highlighted considering relatives first as placement options per

Minn. Stat. §260C.212, subd. 2(a)

• Court of Appeals highlighted that a relative who informs the court of their willingness to adopt is considered a party unless ruled out, contrasted with permissive intervention which can be brought by any person

When these rules are read together, if a relative has been ruled out, they may regain party status if the court grants the ruled-out relatives’ permissive intervention motion.


Denial of permissive intervention motionFirst Argument: Best Interests of the Child

• Analysis approached with view that permissive intervention should be granted liberally

• District Court should consider whether the movant is a relative, among other relevant circumstances

• Eleven placement factors in Minn. Stat. §260C.212, subd. 2(b) do not fully illuminate the relevant best interest considerations for three reasons:

1. Not required in Rule 34.02;2. These factors focus on placement; the intervention motion focuses on who should participate in the case (i.e., adoption proceedings); and 3. These factors may put the movant at an unfair disadvantage (i.e., may lack access to and information about the child)


Denial of permissive intervention motionSecond Argument: Timeliness of Aunt’s Motion

• Neither Rule 34.02 nor caselaw addresses how to evaluate the timeliness of a motion for permissive intervention

• Record did not support court’s determination aunt’s motion was untimely:1. Aunt’s letter detailed her contact with the agency since October 2019;2. Aunt’s letter and motion was filed promptly after she learned the agency preferred the foster parents and wanted to rule her out


Denial of permissive intervention motionThird Argument: Aunt’s equivocation about adoption

• Aunt and her husband contacted the agency within days of expressing uncertainty

• District Court did not determine this brief hesitation affected X’s best interests in the motion to intervene

HOLDING: District Court’s three reasons for denying Aunt’s motion for permissive intervention were not supported by the record; District Court abused it discretion


HOLDING: District Court further abused its discretion by:

• ruling out the aunt as a placement option

• finding the agency was not unreasonable in failing to place X with aunt

• relieving the agency of relative search efforts


Decision:

• “The legislature has directed that permanent placement of a protected child under the guardianship of the commissioner in adoption proceedings shall prioritize consideration of relative placement options.”

• Court of Appeals Opinion: Reversed and remanded

• Matter of Welfare of Child of M.L.S., No. A20-1644, 2021 WL 2640559 (Minn. Ct. App. June 28, 2021), -- N.W.2d --


CHILD OF J.C.L. AND

J.H.L.


Issued April 12, 2021

Best Interests Findings and Analysis in Non-TPR Permanency Cases

Best Interest Findings In Permanency CasesMatter of Welfare of Children of J.C.L. and J.H.L., No. A20--1521, --- N.W.2d ---Minn. Ct. App. | April 12, 2021 | Review denied May 12, 2021

Facts:

J.C.L. and J.H.L. are the parents of four children. The children were adjudicated CHIPS based on concerns about an unstable home environment and the parents' chemical dependency, domestic violence, and mental-health issues in 2017 and again in 2019. The children were placed in foster care in January 2019.

The parents were provided case plans, and in September 2019, the children were returned to the parents’ care on a trial home visit. In November 2019, the children were returned to foster care, and placed with J.C.L.’s step-father.

In January 2020, the agency petitioned to transfer permanent legal and physical custody of the children to J.C.L.’s step-father. J.H.L. admitted the petition. J.C.L. denied the petition and a trial was held in June 2020.

The district court received exhibits and heard the testimony of five witnesses (J.C.L., her chemical-dependency counselor, her step-father, the county social worker, and the guardian ad !item). In July 2020, the district court issued an order transferring permanent legal and physical custody of the children to J.C.L.'s step-father.

J.C.L. appealed this order.


Analysis:

On appeal, J.C.L. asserted that the district court’s order failed to make the findings required by Minn. Stat. Sec. 260C.517(a) to support a TPLPC order.

To support an order for TPLPC, the district court "must include the following detailed findings":

(1) how the child's best interests are served by the order;

(2) the nature and extent of the responsible social services agency's reasonable efforts or, in the case of an Indian child, active efforts to reunify the child with the parent or guardian where reasonable efforts are required;

(3) the parent's or parents' efforts and ability to use services to correct the conditions which led to the out-of-home placement; and

(4) that the conditions which led to the out-of-home placement have not been corrected so that the child can safely return home. Minn. Stat. § 260C.517(a) (2020); see also Minn. R. Juv. Prot. P. 58.04(b).

Each of these four statutory requirements must be proven by clear and convincing evidence.


Analysis (continued):

J.C.L. argues that the district court’s findings fail to meet the requirement that the order describe "how the child's best interests are served by the order,” because the court failed to analyze the appropriate best-interests factors, which she asserts must include consideration of her interest and the children's interests in maintaining the parent-child relationship.

J.C.L. contends that the district court should have applied the three-part analysis that considers the child's interest in maintaining the parent-child relationship, the parent's interest in maintaining the parent-child relationship, and any competing interests, which must be completed by district courts in TPR cases.

The Court of Appeals disagreed. The Court found that the three-part best interests test is not mentioned in the statutes governing a permanency order that is not a TPR order. See Minn. Stat. §§ 260C.511, 260C.515, 260C.517(a). The COA stated it was unaware of any Supreme Court cases in which the three-part best interests test was applied in any type of permanency proceeding other than a TPR proceeding.

In a footnote, the COA noted J.C.L.’s assertion that "this area of law requires clarification" because the COA has issued unpublished, non-precedential opinions that are not uniform in identifying the best-interests criteria that apply to TPLPC orders. The Court stated it appreciated J.C.L.’s suggestion and is taking this opportunity to clarify the applicable criteria.


Analysis (continued): The COA stated that “the limited applicability of the three-part best interests test is confirmed by the

rules of juvenile protection procedure, which prescribe it in termination cases but not in other permanency cases.” Compare MRJPP58.04(c)(2)(ii) with MRJPP 58.04(b).

The COA concluded that district courts are not required to apply the three-part best interests test used for TPR cases in TPLPC cases.

The COA stated that in making findings pursuant to Minn. Stat. Sec. 260C.517(a), to support a permanency disposition other than TPR, a district court must consider the best interests of the child as defined by Minn. Stat. Sec. 260C.511, which governs and specifies the best-interests criteria that must be considered before ordering a permanency disposition other than TPR.

Minn. Stat. Sec. 260C.511 provides that “the best interest of the child” means “all relevant factors to be considered and evaluated,” including a review of the relationship between the child and relatives and the child and other important people with whom the child has resided or had significant contact.

Minn. Stat. Sec. 260C.511 provides that in the case of an Indian child, best interests of the child includes the best interests of an Indian child, as defined in Minn. Stat. Sec. 260.755, subd. 2a. (definition under MIFPA)


Analysis (continued):

In this case the district court evaluated whether the TPLPC was in the children’s best interest by assessing the eleven factors listed in Minn. Stat. Sec. 260C.212, subdivision 2(b), which are the factors that must be considered by the social-services agency in evaluating how a placement will serve the needs and best interests of a child.

The COA found that an analysis of the factors listed in section 260C.212, subdivision 2(b), is not required in determining whether a TPLPC is in a child’s best interests because a review of these factors is not required by Minn. Stat. Sec. 260C.511. The Court did note that the 260C.212, subdivision 2(b) factors are aligned with the best interests of a child in a permanency proceeding.

Based on the findings made by the district court in its review of the 260C.212, subd. 2(b) factors, the Court of Appeals concluded that the district court did not fail to consider “all relevant factors” related to the best interests of the children, including their relationships with relatives and other important persons with whom they have resided or had significant contact, as required by section 260C.511.


Conclusions:

The COA found that the district court’s order contained detailed findings regarding each of the four requirements in Minn. Stats. Sec. 260C.517(a), and that the district court’s findings were not clearly erroneous.

The COA concluded:

The district court did not fail to consider all relevant factors related to the best interests of the children, as required by section 260C.511.

The district court did not clearly err in its findings of fact concerning the agency’s reasonable efforts to reunify the family, thereby meeting the second requirement of Minn. Stat. Sec. 260C.517(a).

The district court did not clearly err in its findings of fact concerning J.C.L.’s efforts and ability to correct the conditions that led to the children’s out of home placement and satisfied the third statutory requirement.

The district court did not clearly err in its findings of fact concerning whether the conditions that led to the out of home placement had been correct so that the child could safely return home.


Takeaways and Practice Tips:

The three-prong test balancing the interests of the parent and child in maintaining the parent and child relationship against competing interests only applies to TPR permanency cases.

In other permanency cases, the district court must consider and evaluate “all relevant factors,” and must include a review of the relationship between the child and relatives and the child and other important people with whom the child has resided or had significant contact.

The phrase “all relevant factors” is not defined.

Some of the factors to be considered could include:

In whose care are the child’s various needs being met, including their physical, psychological, behavioral, educational, medical, emotional, religious, cultural, developmental, and special needs;

Where will the child achieve safety, security, and stability;

In whose care will the child be able to maintain contact with relatives, including siblings, and other people/communities whoare important to the child;

In what setting will the child heal from any trauma they have suffered and/or be less likely to sustain further trauma; and

The child’s preference.


Takeaways and Practice Tips (continued): When you are drafting a permanency petition, include allegations regarding why the requested permanency

disposition is in the child(ren)’s best interests.

When defaulting a party in permanency cases, provide the court with testimony or other evidence why the petitioned permanency disposition is in the child(ren)’s best interests.

When preparing for trial, identify all the reasons why the requested permanency disposition is in the child(ren)’s best interests. During trial, elicit testimony from as many witnesses as possible to support the reasons you have identified.

In default proceedings and trials, present evidence regarding the best interests of each of the children individually.

In any proposed TPLPC order you submit to the court, include as many findings as possible regarding how the transfer of custody and being in the care of the proposed custodian is in the child(ren)’s best interests.

Similarly, in all other proposed orders you submit to the court in non-TPR permanency cases, include as many findings as possible regarding why the permanency option you have requested is in the best interests of the child(ren).

TRENDS

REMOTE TRIALS DUE TO COVID-19

All unpublished cases

Argued by a parent as a due process violation

Court consistently held that due process does not require their physical presence

REMOTE TRIALS (CONT.)

Matter of Welfare of A.L.C., 2021 WL 1344012 (Minn. Ct. App., Apr. 12, 2021)

• Five-day TLC trial; mother appeared by Zoom on third and fourth day because she had COVID symptoms

• Mother objected, arguing that appearing remotely violated her due process rights

Matter of Welfare of K.H., 2021 WL 1605147 (Minn. Ct. App., Apr. 26, 2021)

• Two-day TPR Trial for father held all remotely due to COVID exposure

• Father appeared remotely from jail; father did not request a continuance

REMOTE TRIALS (CONT.)

Matter of Welfare of A.M.S., 2021 WL 3852243 (Minn. Ct. App., August 30, 2021)

• TPR trial for mother held remotely; all parties agreed prior to the trial

• Mother subsequently filed an objection one week prior to trial requesting an in-person trial or a continuance

Matter of Welfare of C.A.H., 2021 WL ******* (Minn. Ct. App., Sept. 7, 2021)

• Three-day TPR Trial for mother held remotely

• Mother filed motion for a new trial based on remote trial denying her a fair trial

THIRD PARTY CUSTODY CONFUSION

Unpublished cases

Increase in issues in Transfer of Permanent Legal and Physical Custody (TPLPC) cases

Creates more questions than answers

THIRD PARTY CUSTODY (CONT.)

Matter of Welfare of D.O., 2021 WL 1245019 (Minn. Ct. App., Apr. 5, 2021)

• Father appealed the termination of his parental rights; one basis being a misstatement of law that the court could not consider a TPLPC because there was no TPLPC Petition before the court

• Court of Appeals held District Court may order a TPLPC absent a TPLPC Petition if in the child’s best interests under Minn. Stat. §260C.513(a)

Matter of Welfare of J.M.B., 2021 WL 3716640 (Minn. Ct. App., August 23, 2021)

• Parents’ rights were terminated; District Court also terminated grandmother’s custodial rights

• Court of Appeals held District Court did not have authority to terminate third party custodial rights under Minn. Stat. §260C.325

CASES PENDING BEFORE THE SUPREME COURT

IN THE MATTER OF

WELFARE OF CHILD OF K.K. AND

K.M.R.

Supreme Court decision

Order Issued August 10, 2021; Opinion Pending

Child Testimony case

Child Testimony Matter of Welfare of Child of K.K. and K.M.R., No. A20-1349 & A20-1351,Minn. Ct. App. | April 12, 2021 | Review granted May 21, 2021

Facts:

After an investigation, social services determined parents had severely neglected the child’s needs and caused mental injury to the child. Testing determined that the thirteen-year-old child had global developmental delay and functioned like a five- to six-year-old, and the child was adjudicated CHIPS.

Parents fled with the child to Colorado, but were later located at the Denver airport attempting to board an international flight. The child was returned to the state of MN. After returning to MN, the child expressed that he did not want to see his parents. The child was encouraged to visit with his parents, but reacted adversely when encouraged to do so.

The social services agency provided case plans and services to the parent and child. While the parents participated in some services, they failed to make progress toward many of the goals in their case plans.

A TPR petition was filed by the social services agency, asserting that reasonable efforts under the direction of the court had failed to correct the conditions that led to the child’s out of home placement and that the child was neglected and in foster care.

Child TestimonyMatter of Welfare of Child of K.K. and K.M.R., No. A20-1349 & A20-1351,Minn. Ct. App. | April 12, 2021 | Review granted May 21, 2021

Facts (continued):

At the pretrial on the TPR petition, the district court, mother’s attorney, and child’s attorney expressed concern about requiring the child to testify. The district court noted that testifying would be traumatizing for the child.

The mother’s attorney stated that the parties and their attorneys should be present during questioning of the child to listen, arguing that it was a fundamental right to be able to confront and cross-examine witnesses. The father, who was pro se, objected to the child testifying via Zoom and only in the presence of the judge and the GAL.

The child testified informally during the trial via Zoom in the presence of the court and the child’s GAL, but without any other parties or their attorneys present. The court informed the parties that after the child testified, they could question the GAL about the child’s testimony.


Facts (continued):

The district court asked the child open-ended questions about a variety of things, including friends, school, TV, and what he liked about living with his relative foster parents. When the court asked the child if there was anything else he wanted the judge to know, the child stated, “I don’t want to go back to my parents.”

The district court did not allow the parents or their attorneys to appear on the Zoom screen or question or cross-examine the child. There was no evidence in the record that the parties or their attorneys ever requested that they be allowed to submit questions to the judge to be asked to the child, either before or after the child’s testimony. Nor did any of the parties ask to cross-examine the GAL after the child’s testimony.

After the trial, the district court terminated both parents’ parental rights, after determining the agency had proven both statutory grounds and that TPR was in the child’s best interests. There were no post-trial motions regarding the child’s testimony.

Both parents appealed the TPR order, and their appeals were consolidated. Among other things, bothparents challenged the way in which the child’s testimony was taken, asserting that parents and/or their counsel should have been present during the child’s testimony.


Analysis: Minn. Stat. Sec. 260C163, sbud. 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. Informal procedures can include taking the child’s testimony outside the courtroom.

The court may require counsel for any party to submit questions to the court before the child’s testimony or after questioning of the child has been completed.

Minn. Stat. Sec. 260C163, subd. 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, and “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 Court of Appeals found that in this case, the district court decided on its own motion to take the child’s testimony informally, without the presence of the parties or their attorneys, after finding it was in the child’s best interests to do so, and that the evidence in the record supports the district court’s finding that this form of informal testimony was in the child’s best interests.


Analysis (continued): The Court of Appeals found that while Minn. Stat. Sec. 260C.163, subd. 7 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,” the word “or” to means that either the attorney OR the GAL has the right to continue to participate in the proceedings.

The COA found that when a child’s parents are absent from proceedings, either the attorney OR the child’s GAL has the right to participate, not both. The Court also interpreted the term attorney to mean the child’s attorney, not the parents’ attorneys.

The COA determined that the district court complied with Minn. Stat. Sec. 260C.163 when it took the child’s testimony informally with the presence of the GAL, but no other parties or attorneys.

The COA also stated that excluding the parents and their attorneys did not violate the parents’ right to due process because they were given the opportunity to cross-examine the GAL and could have asked to submit questions for the court to ask the child prior to or after the child’s testimony and chose to do neither.

The COA also stated that even if the district court erred, a new trial would not be required because the record contains sufficient evidence, even without the testimony of the child, to support the TPR.


Concurring Opinion

While agreeing that the district court’s decision should not be reversed, Judge Johnson disagreed with the conclusion that the district court did not err when it excluded counsel for the parents from being present while the child testified.

Judge Johnson stated that the district court violated Minn. Stat. Sec. 260C.163 when it didn’t allow the attorneys for the parents to be present when the child testified. Judge Johnson reads Minn. Stat. Sec. 260C.163, subd. 7 to require that if a parent has been excused from a hearing, an attorney representing the parent has the right to participate in the hearing, regardless of whether the GAL is participating.

Judge Johnson also stated that the district court erred in not allowing the parents’ attorneys to cross-examine the child, noting that Minn. Stat. Sec. 260C.163, subd. 8 provides that the minor’s parents (and others) are entitled to be heard, to present evidence material to the case, and to cross-examine witnesses appearing at the hearing.

Judge Johnson states, “the two statutory provisions at issue . . . confer on parents unqualified rights that do not depend on best interest determinations,” and asserts that the district court could have adequately protected the child’s best interests by requiring the parents’ attorneys to submit their cross-examination questions to the court for pre-approval and by the court exercising “reasonable control” over the proceedings.

Judge Johnson agreed that these errors were harmless and that the district court decision should be affirmed.


Supreme Court: Issues before the Supreme Court are: 1) what rights do parents and their attorneys have under Minn. Stat.

260C.163 subds. 6, 7, and 8 to cross-examine a child who is testifying; 2) did the process used by the trial court violate Minn. Stat. 260C.163 or the parents’ right to due process; and 3) if the court erred, was the error harmless.

Case was briefed and the oral argument was held on August 10, 2021. Later that day, the Supreme Court issued an order stating: 1) K.K.’s motion to proceed in forma pauperis was granted; and 2) the decision of the COA filed April 12, 2021, which affirmed the district court’s decision terminating parental rights, is affirmed, and an opinion will be issued later. To date, this opinion hasn’t been issued.

It appears the Supreme Court wants to clarify procedures for child testimony that protect the best interests of the child, while satisfying the requirements of Minn. Stat. Sec. 260C.163 and a parent’s right to due process.

This is a complicated question because circumstances from case to case vary greatly. In this case, it appears that the child wanted to speak to the judge (rather than being called by another party as a witness). Further, the father was pro se, and had no attorney to observe the child’s testimony or ask the child questions, and the child did not want to see his parents and had reacted adversely when he was encouraged to have contact with his parents.


Takeaways:

The district court may take the testimony of a child witness informally when it is in the child’s best interests to do so. Minn. Stat. Sec. 260C.163, subd.6.

Testimony of the child may be taken outside the courtroom. Minn. Stat. Sec. 260C.163, subd.6.

The court MAY excuse the presence of the child’s parent, guardian, or custodian from the room where the child is questioned when it is in the child’s best interests to do so. Minn. Stat. Sec. 260C.163, subds.6 and 7.

“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. Sec. 260C.163, subd.7.

Question: will the Supreme Court determine that “this attorney” means the attorney for the child or for all parties?

Question: what if a party is pro se and doesn’t have an attorney?


Takeaways:

The child and the child’s parents are entitled to cross-examine witnesses appearing at a hearing. Minn. Stat. Sec. 260C.163, subd.8.

The court MAY require counsel for any party to submit questions to the court before the child’s testimony and/or after the child has been questioned. Minn. Stat. Sec. 260C.163, subd.6.

Question: Is submitting questions to the court to pose to the child sufficient to meet the parent’s right under Minn. Stat. Sec. 260C.163, subd.8. to cross-examine the child?

If the child’s testimony is taken informally, how will the court let the parties know what the child has said, so the parents (or other parties) can pose cross-examination questions?


Practice Tips (until the Supreme Court issues its decision):

When you want to take the testimony of a child informally, make a clear record of why doing so is in the child’s best interests.

Be specific in your request regarding where you would like the testimony to occur, who you would like to question the child, who should be present for the testimony, and why the method you are requesting is in the child’s best interests.

Provide the parents and other parties an opportunity to submit questions to the court in advance of the testimony for review and approval by the parties and the court. Make a record of any questions to which you object and ask the court to rule on these objections prior to the child’s testimony, if possible.

Provide the parents and other parties an opportunity to ask follow-up questions after the child has testified.

IN THE MATTER OF

WELFARE OF CHILD OF

K.E.S., M.W.C.,

AND T.J.S.

Supreme Court case pending

PFR Granted & Stayed May 21, 2021

Child Testimony case

Child Testimony Matter of Welfare of Children of K.E.S., M.W.C., and T.J.S., No. A20-1390,Minn. Ct. App. | April 19, 2021 | Review granted/stayed May 21, 2021

Facts:

Mother had received child protection services on and off for more than a decade and a half.

Social Services agency filed a petition to terminate parental rights to seven children. Prior to trial, counsel for the parties asserted differing positions about the circumstances under which the children should testify.

During the trial, four of the children testified. Prior to trial, therapists for the children submitted letters stating that permitting the children to testify in open court would be detrimental to their wellbeing and that the children would benefit from shielded testimony without direct interaction with caregivers or other witnesses in the courtroom. The therapists stated that if the children must testify, the children should testify privately before the judge in chambers.

At the time of the trial, mother was pro se and the court determined that it would be in the children’s best interests to testify informally with only the judge and the GAL present. The mother did not object.

Mother’s parental rights were terminated to all children, except the oldest who expressed a strong and consistent desire to be reunified and not be adopted.

Child Testimony Matter of Welfare of Children of K.E.S., M.W.C., and T.J.S., No. A20-1390,Minn. Ct. App. | April 19, 2021 | Review granted/stayed May 21, 2021

Analysis and Conclusions: In addition to failing to object to the orders issued by the court regarding the court’s decision to take the

children’s testimony informally, the COA also noted that the mother did not make a motion for a new trial.

Despite these deficiencies, the COA decided to address the mother’s assertion that the district court erred when it heard the children’s testimony informally with only the judge and the GAL present.

The COA reviewed the requirements of Minn. Stat. Sec. 260C.163, while noting that the paramount consideration in all TPR proceedings must be the best interests of the child and that the purpose of the laws relating to juvenile protection procedures include providing judicial procedure that protection the welfare of the child, citing Minn. Stat. Secs. 260C.001 subd. 3 and subd. 2(b)(2).

The COA concluded that the district court did not abuse its discretion by ruling it was in the children’s best interests to take their testimony informally because the record is clear that it was contrary to the best interests of the children to testify in open court with their mother present.

In response to the mother’s assertion that she should have been given the opportunity to present questions or cross-examine the children, the COA disagreed because mother did not argue it was not in the children’s best interests to testify outside her presence and when the rights of a child and parent conflict, the rights of the parent must yield. (citing In re Booth, 91 N.W.2d 921, 924 (Minn. 1958).

The COA determined the district court did not abuse its discretion by taking the children’s testimony outside open court in the manner that was most consistent with their best interests. The court also concluded that if the district court did err, the error was harmless because the record contained overwhelming evidence, aside from the children’s testimony, to support the TPR. The COA affirmed the district court’s decision. The mother filed a PFR, which was granted and stayed.

RESOURCES

MCAA BRIEF BANKTo view briefs from other MN counties or upload briefs to the bank:

Contact Kim at MCAA for access: 651-289-8456 or [email protected]

THANK YOURamsey County Attorney’s Office law clerks who prepared the caselaw summary:

Erin AbramovitzRachel GeradsElizabeth Ogunkanbi

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