Welfare of M.D.O., Matter of, C3-89-1218

• Citation: 462 N.W.2d 370
• Decision Date: 02 November 1990
• Docket Number: No. C3-89-1218,C3-89-1218
• Parties: In the Matter of the WELFARE OF M.D.O.
• Court: Supreme Court of Minnesota (US)

Page 370

462 N.W.2d 370

In the Matter of the WELFARE OF M.D.O.

No. C3-89-1218.

Supreme Court of Minnesota.

Nov. 2, 1990.

Rehearing Denied Nov. 28, 1990.

Syllabus by the Court

1. The trial court's findings of fact and conclusions of law were fully supported by the evidence. The court of appeals panel exceeded the appropriate standard of review when it reversed the trial court's decision and ordered termination under Minn.Stat. § 260.221(b)(4) (1986).

2. The failure of the court of appeals judge to recuse himself sua sponte did not constitute error.

William R. Kennedy, Hennepin County Public Defender, Barbara Isaacman, Asst. Hennepin County Public Defender, Minneapolis, for appellant.

Thomas L. Johnson, Hennepin County Atty., Christine R. Curtiss, Asst. County Atty., Minneapolis, for respondent.

John Fitzgerald, Kuduk, Shoaps & Day, Minneapolis, for guardian ad litem.

Heard, considered, and decided by the court en banc.

OPINION

POPOVICH, Chief Justice.

After Janet Ostlund was convicted of the second-degree murder of her adopted daughter, Maria, the Hennepin County Bureau of Social Services petitioned to terminate parental rights between Janet Ostlund and M.D.O., Ostlund's biological child born after the death of the adopted daughter. The trial court dismissed the petition, concluding the county had failed to establish by clear and convincing evidence that Ostlund was palpably unfit to be a party to the parent-child relationship or that Ostlund had refused or neglected to comply with the duties imposed by that relationship. The court of appeals panel reversed, finding Janet Ostlund palpably unfit to be a party to the parent and child relationship because of "a consistent pattern of abuse" of her adopted daughter and Janet Ostlund's refusal to make a rehabilitative admission of her culpability for that death. In re Welfare of M.D.O., 450 N.W.2d 655, 658 (Minn.App.1990), rev. granted (Minn. Mar. 22, 1990). We reverse.

I.

David and Janet Ostlund were married in January of 1983. After experiencing fertility problems, the Ostlunds adopted Maria, a 15-month-old child from El Salvador. When Maria arrived in the United States in early September of 1985, she suffered from a host of medical problems. She was underweight and malnourished. She had infected ears, mild anemia, a small head size, a heart murmur and scabies. Doctors diagnosed Maria as developmentally delayed and possibly mentally retarded. Due to these medical conditions, Janet Ostlund took Maria to Dr. Mace Goldfarb, a pediatrician, who attended Maria's medical needs.

Dr. Goldfarb noticed unexplained fluctuations in Maria's weight and asked Ostlund to monitor Maria's food intake. Maria's weight decreased after arriving in the United States, but increased when she was cared for by her godmother while Ostlund was hospitalized in October of 1985. Maria's weight then decreased again, but did not decrease after January of 1986. In late October of 1985, Janet Ostlund brought Maria to Dr. Goldfarb because Maria was having difficulty crawling and raising herself up. Dr. Goldfarb discovered that one of Maria's arms had a slight fracture. Janet Ostlund thought the fracture was caused by some furniture falling on Maria or by rough treatment by one of the other children in the home. The exact cause of the fracture, however, was never determined. Although he noticed improvement over the course of visits, Dr. Goldfarb became concerned about Maria's failure to thrive and Ostlund's attachment with Maria. Eventually, Dr. Goldfarb's concern prompted him to contact the county in June of 1986 regarding possible abuse or neglect.

On the evening of July 14, 1986, Janet Ostlund took Maria to North Memorial Hospital. When she arrived, Maria was comatose and not moving. Doctors diagnosed Maria as suffering from a severe brain injury and transferred her to Minneapolis Children's Hospital. Maria died the following day from closed head trauma due to swelling of the brain and subdural bleeding. Ostlund said the child fell while climbing on the living room couch and hit her head on the floor. The county social workers, who had been in contact with Janet Ostlund before Maria's death, felt Ostlund's explanation was not consistent with the cause of death. Believing Ostlund caused Maria's injuries by shaking the child, the state charged Ostlund with unintentional second-degree murder. On September 11, 1986, two months after Maria's death, Janet Ostlund gave birth to M.D.O., the subject of this matter and the only natural offspring of Janet and David Ostlund.

At the criminal trial, the state introduced evidence Ostlund abused and mistreated Maria and other children in Ostlund's unlicensed day care home to cast doubt on Ostlund's explanation of Maria's injuries. This evidence included the testimony of family and friends describing various occurrences between Ostlund and Maria. Ostlund was said to have once fed Maria a hot potato, and at a different time she tossed a foam ball into Maria's face several times. Witnesses testified about Ostlund spanking Maria for playing with her food, slapping her face, and carrying her by one arm. Other incidents described Ostlund as being reluctant to hold or show affection toward Maria unless others were around. One witness testified to having seen Maria drooling blood and on another time seeing the child with a black eye. Ostlund's husband, however, never saw a black eye. Lynn and Anna Ostlund, Ostlund's stepchildren, testified Ostlund would drop children into their cribs and would not feed the younger day care children who could not talk. They also said Ostlund would shake Maria, not hard, when the child misbehaved.

The jury convicted Ostlund of the unintentional second-degree murder of Maria Ostlund in January of 1987, and the trial court sentenced Ostlund to 105 months at the Minnesota Correctional Facility at Shakopee, Minnesota. Ostlund appealed her conviction to the court of appeals, raising several issues including whether the trial court erred in admitting evidence of Ostlund's past treatment of Maria and other children. See State v. Ostlund, 416 N.W.2d 755, 757-58 (Minn.App.1987), pet. for rev. denied (Minn. Feb. 24, 1988). The court of appeals panel held there was no abuse of discretion in admitting evidence where it was relevant, more probative than prejudicial and Ostlund's participation in those acts was clear and convincing. Id. at 764.

Immediately after the birth of M.D.O., the county took custody of the child and filed a Petition for Dependency and Neglect. The county presented the Ostlunds with a case plan drafted pursuant to Minn.Stat. § 257.071, subd. 1 (1986). The first goal of the case plan required the Ostlunds to "provide a reasonable explanation of the death of Marie [sic] consistent with the medical findings." All subsequent case plans included this goal, which had to be completed before other goals, as the starting point for Janet Ostlund's rehabilitation. ¹ On the advice of counsel, Ostlund refused to sign the case plan because of the pending criminal trial. Once convicted, Ostlund informed the county she intended to appeal and would not comply with the case plan. By that point, however, the county had already decided to seek termination of Ostlund's parental rights.

On July 16, 1987, the county petitioned for termination of Ostlund's parental rights, alleging (1) Ostlund had repeatedly refused or neglected to comply with the duties imposed by the parent-child relationship and (2) Ostlund was palpably unfit to be a party to that relationship because of a consistent pattern of specific conduct and specific conditions permanently detrimental to the child's health. See Minn.Stat. § 260.221, subd. (b)(2), (4) (1986). ² Although the trial court precluded relitigation of whether Ostlund killed Maria by shaking, transcripts from Ostlund's criminal trial were introduced at the termination trial to prove Ostlund had repeatedly abused and mistreated Maria and other children in her care. David Ostlund and his daughters testified about Ostlund's care and treatment of Maria and the family dog. The county also offered the testimony of Steve Heckler and Jeanne Podvin, social workers assigned to Ostlund's case, who each testified an acknowledgement of one's destructive behavior is necessary for rehabilitation. The county's rebuttal witness, Dr. Sylvia Ashley-Cameron, offered opinions on Ostlund's potential for abuse of M.D.O. and Ostlund's responsibility for Maria's failure to thrive. She testified Ostlund was a habitual abusive parent, responsible for Maria's fractured arm, her failure to thrive, and her death. She also testified therapy is not likely to be effective if the parent cannot admit a problem with parenting and abuse. She explained that without an acknowledgement of one's problems, the therapist is unable to intervene with issues that initially led to the abuse. None of the six witnesses testifying at the termination proceedings on behalf of the county had any first-hand knowledge of Ostlund's behavior since her incarceration in February of 1987.

Ostlund presented evidence that an admission of culpability was not a precondition to effective therapy. This evidence came from the testimony of several psychologists and psychiatrists who had either worked with Ostlund or had spent time evaluating her. Dr. Candace Beaulieu, a licensed consulting psychologist who practiced at the Shakopee Correctional Facility, disagreed that psychological progress required an initial admission of guilt. Moreover, Dr. Beaulieu felt an admission would be inappropriate in Ostlund's case. Dr. Helga Midelfort, a certified psychiatrist, testified Ostlund's admitted responsibility for not properly supervising Maria was a starting point. Dr. Robert ten Bensel, a professor of Pediatrics at the University of Minnesota and recognized expert on child abuse, testified the admission of culpability should come in tandem with a psychiatric...