In the Matter of the Welfare of the Child of: Q. S. M. and T. R. S., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0662

In the Matter of the Welfare of the Child of:
Q. S. M. and T. R. S., Parents.

Filed November 13, 2018
Reversed and remanded
Smith, Tracy M., Judge
Concurring specially, Ross, Judge
Concurring specially, Johnson, Judge

Olmsted County District Court
File No. 55-JV-17-4326

Michael D. Schatz, Rochester, Minnesota (for appellant-mother Q.S.M.)

Mark A. Ostrem, Olmsted County A ttorney, Debra A. Groehler, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent county)

David Haugen, Rochester, Minnesota (for respondent-child J.S.M.)

Vicki Duncan, Rochester, Minnesota (guardian ad litem)

Considered and decided by Ross, Presiding Judge; Johnson, Judg e ; a n d S m i t h ,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Q.S.M. (mother) had her parental rights to her child (J.S.M.) terminated
following a trial. During the trial, the district court precluded J.S.M. from testifying in any

2
manner, even informally. Mother appeals, arguing that it was er ror to exclude the child’s
testimony. We reverse and remand.
FACTS
On June 28, 2017, Olmsted County Community Services (the county) petitioned for
termination of Q.S.M.’s parental rights to J.S.M. It based its petition on the following facts,
to which mother stipulated.
J.S.M. was born in 2003, to mother and T.R.S. (father). The county began providing
services to J.S.M. in April 2013 , following a report that J.S.M .’s brother had been
masturbating over J.S.M. while J.S.M. was sleeping. In November 2013, the county
received a report that mother’s partner had committed domestic violence against mother
on two occasions and that J.S.M. was present on one of those occasions. In January 2014,
the county received another repor t that mother’s partner had as saulted her; J.S.M. was in
the home but did not see the assault. In February 2015, the Third Judicial District Court in
Olmsted County awarded father permanent sole physical custody o f J.S.M.; the order
required that the county receive notice of any request to modif y custody, and that no
transfer of custody be made without the approval of the ordering court.
Nonetheless, in July 2015, the Th ird Judicial District Court in Winona County
awarded mother temporary custody of J.S.M. for 90 days. No noti ce was provided to the
county, nor was a hearing held i n the original Olmsted County c ourt file. Despite the 90-
day limit in the Winona County court’s order, J.S.M. lived with mother until March 2017.
The county also alleged, and mother did not stipulate to, these additional facts:

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In September 2016, J.S.M. and mother were living in an apartmen t with mother’s
sister, J.R.M., and J.R.M.’s boyfriend, B.C. The Rochester Pol ice Department received a
report from another person who had been staying in the apartmen t that J.S.M. had been
sexually assaulted by B.C.1 J.S.M. initially denied the report, but once J.S.M. and mother
had moved out of the apartment, J.S.M. confirmed it.
In March 2017, mother asked a case manager at the transitional housing where she
and J.S.M. were living if the case manager believed it to be okay for J.S.M.—then 13 years
old—to be having sex in their apartment with a 17-year-old.
Throughout her time in mother’s care—from July 2015 until March 2017—J.S.M.
rarely attended school and frequently missed appointments for various services.
Based on these allegations, the county argued that mother was e ither indifferent to
J.S.M.’s sexual activity or knowingly allowed it to occur and t hat this constituted
“egregious harm” justifying termination of parental rights. See Minn. Stat. § 260C.301,
subd. 1(b)(6) (2016). It also argue d that mother was palpably u nfit to parent because she
was incapable of ensuring that J.S.M. received education, mental health services, and social
services. See id., subd. 1(b)(4) (2016).
At trial, mother made two main arguments: first, that she was u naware of J.S.M.’s
sexual activity until after it had occurred and that she stoppe d it when she learned of it;
and, second, that J.S.M.’s nona ttendance at school and failure to receive services were

1 A witness for the county testified, and mother’s attorney stat ed, that B.C. had been
convicted of sexual assault base d on these incidents. However, that conviction was not
made part of the record in this case.

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because of J.S.M.’s intransigence and not because mother was unfit. Mother testified that
she asked the case manager about the propriety of J.S.M.’s sexu al activity because she
found J.S.M. and the 17-year-old with their legs intertwined on e time and not because of
any ongoing pattern of behavior. J.S.M.’s guardian ad litem testified that she had been told
by J.S.M. that the 17-year-old would stay overnight and that mother knew about it—a claim
that mother disputed. Mother also testified that there was no w ay to get J.S.M. out of bed
in order to compel her to attend school or appointments.
In order to support these two arguments, mother attempted to in troduce testimony
from J.S.M. Mother argued that such testimony would support her arguments that she was
unaware of any sexual contact until after it happened and that J.S.M.’s own unwillingness
was the reason she did not attend school or her appointments. The county moved to exclude
J.S.M. from testifying in any way. J.S.M.’s guardian ad litem a greed with the county that
the child should not provide spoken testimony, but offered to d eliver a letter from J.S.M.
to the court. J.S.M., through her attorney, indicated that “[s] he was willing to talk to the
court, but it would have to be in chambers.” After asking about the general topics on which
mother sought to inquire, the district court granted the county’s motion to exclude J.S.M.
from providing any testimony.
Following trial, the district court found that J.S.M. had atten ded 12 days of school
between November 2016 and March 2017. It found that J.S.M.’s truancy was one instance
of a larger pattern in which mother is unable to exert any influence over J.S.M. Further, the
district court found that mother often enables some of J.S.M.’s negative behaviors, such as
staying up until early in the mo rning and sleeping through soci al services appointments

5
and school. Because of this, the district court concluded that J.S.M. “control[s] the parent-
child relationship,” leaving mother unable to ensure that J.S.M . receives the therapy and
education that she needs.
The district court found that t he county had proved, by clear a nd convincing
evidence, two statutory grounds for termination of parental rig hts. First, it found that
mother was “palpably unfit to be a party to the parent and chil d relationship.” Id.,
subd. 1(b)(4). Second, it found that J.S.M. had suffered egregious harm while in mother’s
care, and that the nature, duration, or chronicity of the harm indicated “a lack of regard for
[J.S.M.’s] well-being.” Id., subd. 1(b)(6). Finally, the district court found that terminating
mother’s parental rights was in J.S.M.’s best interests. It the refore terminated mother’s
parental rights; father’s parental rights were terminated voluntarily, based on his affidavit.
See id., subd. 1(a) (2016).
Mother appeals from the judgment of termination.
D E C I S I O N
Mother asserts two main errors. First, she argues that the dis trict court erred in
excluding J.S.M.’s testimony. Second, she contends that the dis trict court’s findings of
palpable unfitness and egregious harm were unsupported by the e vidence. Because we
conclude that the district court abused its discretion in precl uding J.S.M. from testifying,
we do not reach mother’s arguments against the sufficiency of the evidence.

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I. District courts may, in appro priate circumstances, prevent a c h i l d f r o m
testifying in any manner, even if that child’s testimony could be relevant.

Parents have fundamental rights to the custody and companionship of their children;
these rights “should not be taken away except for grave and weighty reasons.” In re Welfare
of A.Y.-J., 558 N.W.2d 757, 759 (Minn. App. 1997). Parents must receive due pr oc e s s
before being deprived of their parental rights. Santosky v. Kramer, 455 U.S. 745, 753-54,
102 S. Ct. 1388, 1394-95 (1982); see also Minn. R. Juv. Prot. P. 1.02(f) (stating that one
purpose of the Rules of Juvenile Protection Procedure is to “en sure due process for all
persons involved”). In juvenile p rotection matters, parents are statutorily entitled “to be
heard, to present evidence material to the case, and to cross-e xamine witnesses appearing
at the hearing.” Minn. Stat. § 260C.163, subd. 8 (2016).
Regarding admission of evidence in juvenile protection cases, t he rules state that
“[e]xcept as otherwise provide d by statute or these rules . . . the court shall only admit
evidence that would b e admissible in a civil trial pursuant to the Minnesota Rules of
Evidence.” Minn. R. Juv. Prot. P. 3.02, subd. 1; see id., subds. 2-3 (creating exceptions to
generally applicable rules regar ding hearsay and judicial notic e). Under the Minnesota
Rules of Evidence, relevant evid ence is admissible “except as o therwise provided by the
United States Constitution, the State Constitution, statute, by these rules, or by other rules
applicable in the courts of this state.” Minn. R. Evid. 402; see also Minn. R. Evid. 403
(allowing district courts to excl ude otherwise relevant evidenc e “if its probative value is
substantially outweighed by the d anger of,” among other reasons for exclusion, “unfair

7
prejudice”). Thus, parties to juvenile protection cases can pre sent relevant evidence, and
that evidence is admissible unless a constitution, statute, or rule allows its exclusion.
By statute, “[t]he paramount consideration in all juvenile protection proceedings is
the health, safety, and best int erests of the child.” Minn. Sta t. § 260C.001, subd. 2(a)
(2016).2 Consistent with the “paramount” weight to be given a child’s h ealth, safety, and
best interests, the juvenile pro tection statutes also state tha t “[t]he purpose[s] of the laws
relating to juvenile protection proceedings” include “provid[ing] judicial procedures that
protect the welfare of the child.” Id., subd. 2(b)(2) (2016). This obligation to provide
procedures that protect the welfare of a child requires a distr ict court to give a child’s
health, safety and best interests “paramount” weight not just in its ultimate disposition of a
case, but also at each step of the litigation leading to that u ltimate disposition. See In re
Welfare of R.D.L., 853 N.W.2d 127, 132 (Minn. 2014) (invoking the “paramount” na ture
of a child’s health, safety, and best interests, as well as the idea that one purpose of juvenile
protection proceedings is to pro tect the welfare of the child, when addressing whether

2 There are numerous other recitations of the “paramount” nature of a child’s best interests.
See, e.g., Minn. Stat. § 260C.301, subd. 7 (2016) (stating that, in a proceeding to terminate
parental rights, “the best interests of the child must be the p aramount consideration,
provided that [a basis to terminate parental rights exists]”); Minn. Stat. § 260C.001, subd. 3
(2016) (stating that “[t]he paramount consideration in all proc eedings for permanent
placement of the child . . . is the best interests of the child ”); id., subd. 4 (2016) (stating
that “[t]he laws relating to the juvenile protection proceedings shall be liberally construed
to carry out these purposes”); see also Minn. R. Juv. Prot. P. 1.02 & 1999 advisory comm.
cmt. (reciting the purpose of the rules of juvenile protection procedure and quoting the
reference in Minn. Stat. § 260C. 001, subd. 2(a), to the “paramo unt” weight of the best
interests of the child, respectively); In re Welfare of Children of N.F. , 749 N.W.2d 802,
808 (Minn. 2008) (citing Minn. Stat. § 260C.001, subd. 2); In re Welfare of J.M. , 574
N.W.2d 717, 722 (Minn. 1998) (citing the predecessor to Minn. Stat. § 260C.001, subd. 2).

8
certain types of parents were similarly situated for purposes o f that step in an equal
protection analysis) (citing Minn. Stat.§ 260C.001, subd. 2(a), (b)(2)); see also Valentine
v. Lutz, 512 N.W.2d 868, 871 (Minn. 1994) (holding that a district cou rt must be guided
by the principle that the best interests of the child are paramount when considering whether
to permit the intervention of foster parents).
One step in the litigation of a juvenile protection case is the pretrial hearing. See
Minn. R. Juv. Prot. P. 36.01 (requiring a pretrial hearing “at least ten (10) days prior to
trial”). The “purposes of a pretrial hearing” include “determin[ing] whether the child shall
be present and testify at trial and, if so, under what circumstances.” Minn. R. Juv. Prot. P.
36.02(d) (emphasis added). The comment to rule 36.02(d) is unam biguous; it states that
the rule “addresses the need to determine whether the child will testify ” and that “[t]he
intent of the rule is to provide that an order protecting the child from testifying or placing
conditions on the child’s testimony can only be made after notice of motion and a hearing.”
Minn. R. Juv. Prot. P. 36.02(d) 1999 advisory comm. cmt. (empha sis added). Thus, a
district court’s decisions at a pretrial hearing regarding “whe ther” a child will be present
and testify at trial must be made in light of the paramount con sideration of the child’s
health, safety, and best interests. Consistent with the possibility, under the rules, of a child
not testifying at trial, the district court, by statute, may “waive the presence of the minor in
court at any stage of the proceedings when it is in the best interests of the minor to do so.”
Minn. Stat. § 260C.163, subd. 7 (2016). Accordingly, exclusion of a child’s testimony is
consistent with the principle tha t, in juvenile protection case s, relevant evidence is
admissible absent a basis in rule, statute, or a constitution f or excluding it. Statute allows

9
the exclusion when the testimony would be inconsistent with the child’s best interests, and
the rules contemplate a district court’s exclusion of a child’s testimony when the exclusion
is necessary to protect the child.
Such exclusion may create conflict between the rights of a pare nt and the rights of
a child. The supreme court has stated, in the context of an app eal from an adjudication of
children as neglected and dependent, that “[t]he paramount and primary consideration [in
child-related matters] is the welfare of the child and to that welfare the rights of the parents
must yield. The natural rights of the parents should be carefully safeguarded but not at the
expense of their children.” In re Booth, 91 N.W.2d 921, 924 (Minn. 1958) (quoting Molto
v. Molto, 64 N.W.2d 154, 156 (Minn. 1954)); see In re Welfare of S.S.W., 767 N.W.2d 723,
730 (Minn. App. 2009) (citing this aspect of Booth in a child-in-need-of-protection-or-
services appeal); In re P.T. , 657 N.W.2d 577, 583 (Minn. App. 2003) (noting, in a
termination appeal, that “parental rights are not absolute and should not be ‘unduly exalted
and enforced to the detriment of the child’s welfare and happiness. The right of parentage
is in the nature of a trust and is subject to parents’ correlat ive duty to protect and care for
the child.’” (quoting In re Adoption of Anderson, 50 N.W.2d 278, 284 (Minn. 1951)); see
also Minn. Stat. § 260C.301, subd. 7 (2016) (noting that, in proceed ings to terminate a
parent’s parental rights, “[w]hen the interests of the parent and child conflict, the interests
of the child are paramount[,]” provided that a basis to termina te parental rights exists);
Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(5) (stating, regarding terminations of parental
rights, that “[w]here the interests of parent and child conflict, the interests of the child are
paramount”).

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Because relevant evidence is gen erally admissible in juvenile p rotection cases
absent a basis to exclude it, and because the relevant statutes and rules provide bases to
exclude a child’s otherwise relevant testimony, a district cour t can, under appropriate
circumstances, excuse a child fro m testifying. It should be not ed, however, that a district
court has options to protect a child’s health, safety, and best interests short of completely
excluding that child’s testimony. 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. § 260C.163,
subd. 6 (2016). While subdivision 6 provides examples of some informal procedures—for
instance, the court “may . . . tak [e] the testimony of a child witness outside the
courtroom”—it does not mention any informal procedures that wou ld be impermissible.
Id. The resulting broad discretion of the district court, if “libe rally construed” in favor of
protecting the health, safety, and best interests of the child—the “paramount consideration”
of all termination proceedings—gives the court the power to put limits on the manner of a
child’s testimony that are consistent with the child’s health, safety, and best interests. See
Minn. Stat. § 260C.001, subds. 3-4.
However a district court resolves the questions of whether a ch ild will testify and,
if so, under what circumstances, the district court must make f indings explaining its
exercise of its discretion on these matters. See Rosenfeld v. Rosenfeld , 249 N.W.2d 168,
171-72 (Minn. 1976) (holding tha t findings explaining a distric t court’s exercise of its
discretion are necessary to assure that the relevant factors have been addressed, to provide
appellate courts with an adequate basis to review the exercise of that discretion, and to
assure the parties that the relev ant factors have been consider ed); In re Welfare of C.

11
Children, 348 N.W.2d 94, 97 (Minn. App. 1984) (applying Rosenfeld in a juvenile
protection case).
II. The district court erred in precluding J.S.M. from testifying in any way.
We turn to the district court’s decision in this case. The ques tions that we must
answer are, first, whether the district court abused its discre tion by excluding the child’s
testimony without making findings of fact as to why it did so and, second, whether its basis
for the exclusion is contrary to the evidence. The district cou rt here granted the county’s
motion to preclude J.S.M. from testifying without making written or oral findings. Instead,
based on the county’s motion a nd a relatively brief on-the-reco r d a r g u m e n t , t h e c o u r t
stated, “I am inclined to agree with the county. I have reviewed this file in its entirety. The
motion to exclude the child from testifying is granted.” Given the arguments made by the
county and the guardian ad litem, it appears that this decision was made because the district
court believed it to be in the child’s best interests, but no finding actually states that as the
reason. Even if we assume that the decision was based on the child’s best interests, we are
left without knowledge of what interests are protected or how a llowing or requiring the
child to testify would be contrary to those interests. The findings are therefore “inadequate
to facilitate effective appellate review.” In re Welfare of M.M. , 452 N.W.2d 236, 239
(Minn. 1990); cf. Rosenfeld, 249 N.W.2d at 171-72 (affirming where the findings, as a
whole, were adequate to determine what the court considered).
Where a district court’s findings are inadequate, this court ma y undertake “an
independent review of the record” in order to effectively review the district court’s ruling.
See M.M. , 452 N.W.2d at 239. We conclude that, even if the district cou rt had made

12
findings of fact in support of its conclusion that the best interests of the child required total
preclusion of her testimony, this record would not support those findings.
The county’s motion was supported by a letter from J.S.M.’s cas e manager,
asserting that the child could be harmed if she was required “t o testify in court in front
of . . . mother as well as many othe r people.” The letter also expressed concern that, if
J.S.M. returned to the community to testify, she might run away . Additionally, the case
manager noted that J.S.M. prefer s phone conversations over face -to-face interactions and
sometimes struggles to answer eve n yes-or-no questions. J.S.M.’ s guardian ad litem also
favored the exclusion of J.S.M.’s testimony. She testified that J.S.M. can become anxious
in “settings” but did not specify what sort of “settings” cause anxiety. The guardian ad
litem also testified that J.S.M. should not be put in the position of being forced to determine
“if [her] actions were sexually appropriate or not.”
However, counsel for mother stated that the intent was never to have the child testify
in open court, but rather in chambers, via written questions. J.S.M.’s own attorney indicated
that J.S.M. was “willing to talk with the court, but it would h ave to be in chambers.”
Additionally, when mother’s attorn ey identified the topics on w hich he wanted J.S.M. to
testify, he never expressed an intent to ask her whether her ac tions were sexually
appropriate. Rather, the line of questioning he briefly describ ed would have addressed
whether mother knew of the sexual assaults against J.S.M or of J.S.M.’s conduct with the
17-year-old.
Thus, the objections raised by the county and the guardian ad litem did not address
the way mother actually proposed to take J.S.M.’s testimony. Mo ther did not intend to

13
question the child in open court , to engage in real-time cross examination, or to ask her
about the propriety of her con duct. Further, it is undisputed b oth that the court was
authorized to take J.S.M.’s tes timony informally and that nothi ng would have prevented
the court from taking J.S.M.’s testimony by telephone, just as the child’s case manager
indicated would be best for the child. Indeed, this would also have prevented the child from
needing to return to the community, thus eliminating any risk of running away.
The district court’s ruling precluding all testimony from J.S.M. is therefore not only
unsupported by adequate explanatory findings of fact but also unsupported by this record.
Thus, the district court abused its discretion in precluding the testimony.
III. The district court’s error was prejudicial.
Even if a district court errs in a proceeding to terminate parental rights, we will not
reverse unless the party asserting the error shows that it had prejudicial effect. In re Welfare
of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997). The erroneous exclusion of evidence
is prejudicial if “the evidence ‘might reasonably have changed the result of the trial if it
had been admitted.’” Becker v. Mayo Found., 737 N.W.2d 200, 214 (Minn. 2007) (quoting
Poppenhagen v. Sornsin Constr. Co., 220 N.W.2d 281, 285 (Minn. 1974)). Mother argues
that she was prejudiced by the exclusion of J.S.M.’s testimony because the precluded
testimony was material to the que stions of whether mother was ( 1) palpably unfit, and
(2) aware of any egregious harm suffered by J.S.M. until after the harm had occurred.
The district court found mother to be palpably unfit. A finding of palpable unfitness
must be based on either a parent’s “specific conduct before the child” or “specific
conditions directly relating to t he parent and child relationsh ip.” Minn. Stat. § 260C.301,

14
subd. 1(b)(4). The district court’s finding of palpable unfitne ss was largely based on its
finding that mother did not ensure that J.S.M. attended school and did not ensure that J.S.M.
received mental health or emotional support services. Mother ar gues that J.S.M.’s
testimony would have been that J. S.M. resisted attending both s chool and appointments.
She argues that this testimony w ould have shown that J.S.M.’s n onattendance at school
and appointments for services was a result of J.S.M.’s exercise of her own will. If J.S.M.
testified that her truancy and missed appointments were not cau sed by mother’s conduct
but rather by J.S.M.’s own intent and the district court found her testimony credible, that
testimony could have undermined the finding of palpable unfitness.
The district court also found tha t J.S.M. had suffered “egregio us harm” within the
meaning of Minn. Stat. § 260C.301, subd. 1(b)(6). To terminate parental rights based on
“egregious harm” where the parent has not personally inflicted the egregious harm, “a court
must find that the parent either knew or should have known that the child had experienced
egregious harm.” In re Welfare of Child of T.P., 747 N.W.2d 356, 362 (Minn. 2008). Here,
the district court found mother had allowed the 17-year-old to stay overnight and concluded
that she therefore knew of the harm. However, the only evidence of that fact was the
guardian ad litem’s testimony as to what she had been told by J .S.M. Mother asserts
J.S.M.’s testimony would have cont radicted that of the guardian ad litem. J.S.M.’s
testimony thus could have provided a basis for the court to fin d that mother neither knew
nor had reason to know that J.S.M. was engaging in sexual condu ct with the 17-year-old.
The district court did not make any findings with regard to whether mother knew or should
have known of B.C.’s assaults on J.S.M. If the district court h ad found that mother was

15
unaware of and had no reason to s uspect the sexual contact betw een J.S.M. and the 17-
year-old, then there would have been no findings that mother knew or should have known
that J.S.M. was suffering egregi ous harm; termination on that b asis would therefore not
have been warranted.
J.S.M.’s testimony, if accepted and found credible by the district court, could have
undercut the existence of both relevant statutory bases for ter mination. Because “parental
rights cannot be terminated in the absence of at least one statutory ground for termination,”
In re Welfare of Children of R.W. , 678 N.W.2d 49, 54 (Minn. 2004), introduction of
J.S.M.’s testimony “might reasonably have changed the result of the trial,” Becker, 737
N.W.2d at 214. The erroneous exclusion of that testimony was therefore prejudicial error.
We reverse the district court’s judgment and remand to the dist rict court to take
J.S.M.’s testimony, which it may do informally consistent with Minn. Stat. § 260C.163,
subdivision 6. The district court may, in its discretion, reope n the record for rebuttal
evidence.
Because we reverse based on the exclusion of J.S.M.’s testimony, we do not address
mother’s arguments that the district court’s findings regarding t h e s t a t u t o r y b a s e s f o r
termination were unsupported by the evidence.
Reversed and remanded.

CS-1

ROSS, Judge (concurring specially)
I agree with the court’s holding today that, even if the distri ct court had made
findings of fact to support its conclusion that the best intere sts of the child required total
preclusion of her testimony, the r ecord would not support those findings. In light of this
agreement, I need not wade into t he contest between the court’s opinion and Judge
Johnson’s special concurrence about whether the statute’s overa rching “best interests of
the child” standard in Minnesota Statutes, section 260C.001, subdivision 2(a) (2016), gives
the district court the statutory authority to categorically exc lude a child from testifying. I
write separately to express my strong view that, assuming the s tatute purports to give the
district court that authority, the district court may never app ly that authority in a manner
that fails to give full account of a person’s fundamental, constitutionally protected right to
present relevant evidence in a case that threatens to terminate that person’s parental rights
to her children.
The Supreme Court has been “unanimously of the view that the in terest of parents
in their relationship with their children is sufficiently fundamental to come within the finite
class of liberty interests protected by the Fourteenth Amendmen t.” M.L.B. v. S.L.J. , 519
U.S. 102, 119, 117 S. Ct. 555, 565 (1996) (quotation omitted); and cf. Johnson v. Hunter,
447 N.W.2d 871, 876 (Minn. 1989) (“Establishment of the parent-child relationship is the
most fundamental right a child possesses to be equated in importance with personal liberty
and the most basic constitutiona l rights.”) (quotation omitted). Applying this due process
protection in the parental-rights realm, the Supreme Court has, for example, required at
least a clear-and-convincing-evidence standard of proof before any state can terminate a

CS-2

person’s parental rights. Santosky v. Kramer , 455 U.S. 745, 769, 102 S. Ct. 1388, 1403
(1982). As to where that evidence comes from, I believe that, j ust as the Fourteenth
Amendment protects a person’s due process right to present relevant evidence when she is
fighting for her own personal liberty in criminal trials, see United States v. Scheffer , 523
U.S. 303, 308, 118 S. Ct. 1261, 1264 (1998) (discussing the rig ht with reasonable
limitations), she has at least the same right when she is fight ing to retain her fundamental
and constitutionally protected parental relationship with her c hildren. In other words, just
as the Supreme Court has found the exclusion of relevant eviden ce to be unconstitutional
whenever the restriction infringes “upon a weighty interest of the accused,” id., the district
court may never categorically prevent a parent from calling a w itness to present relevant
evidence in a termination-of-parental-rights case unless it first considers whether, and finds
that, the purported risks resulting from the witness testifying at trial are weightier than the
perpetually significant interest of the parent and child in ret aining the parent-child
relationship.
Put succinctly, even if the statute does empower the district c ourt with the
overarching authority to restrict evidence based on “the best i nterests of the child,” it can
apply that authority only with in the more overarching constitut ional limits on the state’s
authority to terminate parental rights. I therefore believe tha t the district court could not
properly consider categorically preventing Q.S.M. from calling her teenage daughter to
testify without first analyzing whether, and finding that, the purported risk of allowing the
teenager to testify outweighed th e teenager’s interest and Q.S. M.’s interest in retaining
their parent-child relationship. Neither occurred here. And my view of the record suggests

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that allowing the child to testify presented only highly specul ative and easily avoidable
risks. There is, by contrast, no need to speculate about what r ests on the counterbalance,
because we know that “parental status termination is irretrieva bly destructive of the most
fundamental family relationship,” and “few consequences of judicial action are so grave as
the severance of natural family ties.” M.L.B., 519 U.S. at 119, 121, 117 S. Ct. at 565–66
(quotation and alteration omitted ). Assuming the general “best interests of the child”
provision affords the district court the statutory authority to prohibit a parent from calling
a witness to present evidence relevant to whether to terminate parental rights, I believe the
district court failed to construe and apply that authority as constitutionally limited.
Despite my different approach to the legal issue, I agree with our court’s well-
reasoned analysis of the facts and its reversing the district court’s judgment to remand the
case so the district court may receive the teenager’s testimony.

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JOHNSON, Judge (concurring specially)
I concur in the opinion of the court insofar as it concludes that the district court erred
by ruling that Q.S.M. was not permitted to call the 14-year-old child as a witness at trial.
But I reach that conclusion for a different reason. In my view , there is no authority in
chapter 260C by which a district court may completely prevent a parent from introducing
any testimony of a child who is the subject of a termination petition.
In this case, the county’s motion was based on a statutory pro vision that permits a
district court to “take the testimony of a child witness inform ally when it is in the child’s
best interests to do so.” Minn. S tat. § 260C.163, subd. 6 (201 6). Specifically, that
provision allows a district court to “tak[e] the testimony of a child witness outside the
courtroom” or to “require counsel for any party . . . to submit questions to the court before
the child’s testimony.” Id. The provision also authorizes a district court to “excuse the
presence of the child’s parent, guardian, or custodian from the room where the child is
questioned.” Id. But the provision does not allow a district court to completely prohibit a
parent from introducing the child’s testimony. The absence of such a prohibition means
that a district court may depart from the usual procedures only in the specified ways and
only to that extent.
On appeal, the county argues that the district court’s ruling i s justified by the next
subdivision of the statute, which states that a district court “may waive the presence of the
minor in court at any stage of the proceedings when it is in th e best interests of the minor
to do so.” Id., subd. 7. That provision should not apply when the child is called as a witness
because such a scenario is governed by the previous provision, subdivision 6, which is the

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more-specific provision with respect to the testimony of a chil d who is the subject of a
termination petition. See Connexus Energy v. Commissioner of Revenue, 868 N.W.2d 234,
242-43 (Minn. 2015) (applying “principle of construction that specific terms covering the
given subject matter will prevail over general language of the same or another statute which
might otherwise prove controlling” (quotation omitted)).
Furthermore, both subdivision 6 and subdivision 7 must be inter preted in light of
the next provision, subdivision 8, which states, without qualif ication, “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 he aring.” Minn. Stat.
§ 260C.163, subd. 8 (emphasis added). The right to present mat erial evidence should
include the right to introduce the testimony of a child who is the subject of a termination
petition, so long as the proffered testimony is relevant and otherwise admissible.
The opinion of the court reasons that the district court’s rul ing is justified by general
statutory expressions of the ove rarching policy that “[t]he par amount consideration in all
juvenile protection proceedings is the health, safety, and best interests of the child.” See
Minn. Stat. § 260C.001, subd. 2( a) (2016). I respectfully disa gree. The statutory best-
interests policy guides a district court in its determination o f the substantive merits of a
petition. This meaning is demonstrated by context. For exampl e, one such best-interests
provision states, “In any proceeding under this section, the best interests of the child must
be the paramount consideration, provided that the conditions in subdivision 1, clause (a),
or at least one condition in subdivision 1, clause (b), are fou nd by the court.” Minn. Stat.
§ 260C.301, subd. 7 (2016) (empha sis added). By its plain lang uage and its cross-

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references, the statute makes a child’s best interests paramoun t only if a parent has
voluntarily consented to the termination of his or her parental rights, see id., subd. 1(a), or
if the district court has found that a statutory ground for ter mination has been proved by
the petitioner by clear and convincing evidence, see id., subd. 1(b). If the statutory best-
interests policy were interpreted more broadly, the policy woul d unjustifiably limit or
negate procedural rights that are reflected in numerous statuto ry provisions and rules of
court.
Even if such an expansive interp retation of the statutory best-interests policy were
a reasonable interpretation, the canon of constitutional avoida nce should cause us to
“interpret a statute to preserve its constitutionality.” Hutchinson Tech., Inc. v.
Commissioner of Revenue , 698 N.W.2d 1, 18 (Minn. 2005). As Judge Ross observes, a
person whose parental rights are at risk of termination has a c onstitutional right to due
process, which includes a right to “fundamentally fair procedur es.” See Santosky v.
Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-95 (1982). As a matter of statutory
interpretation, it would be prudent for this court to interpret the above-described statutory
provisions in a manner that would avoid any infringement on a p arent’s constitutional
rights.
Thus, I conclude that the distri ct court erred because it did n ot have statutory
authority to prevent Q.S.M. fro m calling the child as a witness , with or without a finding
concerning the best interests of the child. In addition, I concur in the opinion of the court
insofar as it concludes that the district court’s error is not harmless. Furthermore, I concur

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in the penultimate paragraph of the opinion of the court, which directs further proceedings
in the district court on remand.