In the Matter of the Welfare of the Child of: V. N. M. and C. W. N., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1986

In the Matter of the Welfare of the Child of:
V. N. M. and C. W. N., Parents.

Filed July 22, 2019
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-JV-18-1770

C.W.N., Brooklyn Park, Minnesota (pro se appellant)

Michael O. Freeman, Hennepin Coun ty Attorney, Mary M. Lynch, As sistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and
Public Health Department)

Georgina Paulick, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Reyes, Presiding Judge; Cleary, Chie f Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from the termination of his parental rights, appella nt C.W.N. (father)
argues that (1) the hearing judge exhibited bias and should hav e recused, (2) the district
court denied him due process by applying the presumption of pal pable unfitness, and
(3) the guardian ad litem acted improperly. We affirm.

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FACTS
V.N.M. (mother) gave birth to N.N. on April 7, 2018. Mother w as not married to
father when N.N. was conceived, nor when N.N. was born. Father signed a recognition of
parentage and was adjudicated the father of N.N.
Both mother and father have previous involvement with child pr otection. In 2008,
father was awarded permanent sole legal and physical custody of a non-joint child. A few
years later, Hennepin County Human Services and Public Health Department (the county)
filed a child-in-need-of-protection-or-services petition (CHIPS)
 after receiving a report that
father physically abused the child . In February 2012, the dist rict court ordered the child
into long-term foster care until he reached the age of majority . F a t h e r a g r e e d t o t h i s
disposition, admitting that he “h ad the ability to substantiall y comply with his case plan
but did not use the services offered to correct the conditions that led to the out-of-home
placement.”
In March 2016, the district court terminated mother’s parental rights to a non-joint
child and ordered the involuntary transfer of legal and physica l custody of another non-
joint child from mother to the child’s biological father. The county again became involved
with mother and father shortly after the birth of a joint child in July 2016 due to mother’s
child-protection history. The cou nty developed a case plan for father to address the
following issues: (1) his child-protection history; (2) parent ing issues; (3) his history of
domestic violence and physical abuse of a child; (4) mental-health issues; and (5) a lack of
stability.

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While the county sought to terminate both mother’s and father’ s parental rights, in
March 2017, the district court only terminated mother’s parenta l rights to the child. The
district court concluded that the statutory bases for terminati ng father’s parental rights to
the joint child had been met, but that termination was not in the child’s best interests. The
matter was reverted to a CHIPS proceeding. But, in December 20 17, the district court
terminated father’s parental rights to the child, finding that father only minimally engaged
in his case plan. The district court also determined that the county proved the statutory
bases for termination by clear and convincing evidence, and tha t termination was in the
best interests of the child.1
Shortly after the birth of N.N., in April 2018, the county fil ed a petition to terminate
mother’s and father’s parental rights to N.N. due to their previous involvement with child
protection. The county alleged three statutory bases for termi nation: (1) the parent has
substantially, continuously, or r epeatedly refused or neglected to comply with the duties
imposed upon that parent by the parent and child relationship u nder Minn. Stat. §
260C.301, subd. 1(b)(2) (2018); (2) the parent is palpably unfi t under Minn. Stat.
§ 260C.301, subd. 1(b)(4) (2018); and (3) the child is neglecte d and in foster care under
Minn. Stat. § 260C.301, subd. 1(b)(8) (2018).

1 Father appealed to this court, and this court dismissed the appeal because father failed to
timely serve the guardian ad litem. In re Welfare of Child of C.W.N. , A18-0098 (Minn.
App. Feb. 20, 2018) (order op.). Father filed a motion request ing that the supreme court
accept a late petition for review of the decision of the court of appeals. The court denied
father’s motion. In re Welfare of Child of C.W.N., A18-0098 (Minn. Mar. 20, 2018) (order
op.).

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After an emergency protective-care hearing, the district court o r d e r e d N . N . i n t o
interim custody of the county. The district court found that t he termination petition
established a prima facie case s howing the existence of a juven ile-protection matter, and
that reasonable efforts to reunify the family were not required because the rights of mother
and father to other children have been terminated or transferred involuntarily.2 Father filed
a notice to remove the assigned judge, and a new trial judge was then assigned to the case.
On the same day, father filed a motion to inspect reports, dis miss the petition, and
reestablish custody and parenting time. In his motion, father requested to examine and
review records ranging in date from 1998 to 2016. But at the motion hearing, father instead
argued that there was no basis for the county to take N.N. from the hospital after she was
born.3 Father also claimed that he was not receiving a fair trial be cause the district court
should have addressed his motion at the last court date. The h earing judge, who was
different than the trial judge, denied father’s motion, finding that because father’s previous
termination of parental rights is a valid order, it created a p resumption that he is palpably
unfit and served as a basis for the county to petition to terminate father’s parental rights to
N.N.
Prior to the start of trial, on October 8, 2018, the trial jud ge addressed mother’s
motion to bifurcate and continue the proceedings. Father supported mother’s motion for a
continuance, asserting that a continuance would give him additi onal time to address his

2 The order was signed by a referee and the same district court judge who terminated
mother’s and father’s parental rights to their other joint child in 2017.
3 The hearing judge was the trial judge in mother’s 2016 child-protection case.

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concerns that the hearing judge was biased, and to find an atto rney. After the trial judge
granted mother’s motion to bifurcate, but denied the motion to continue, mother and father
became disruptive, and father alleged that the trial judge was biased.
After a brief recess, trial proceeded with father’s portion of the case. The county
attempted to call father as a witness, but he refused to testif y. Instead, the county called
the assigned child-protection social worker, who testified that termination of father’s
parental rights would be in the best interests of the child. A fter father absented himself
from the proceeding, the guardia n ad litem also testified, reco mmending that the district
court terminate father’s parental rights, and that termination is in N.N.’s best interests.
On November 15, 2018, the trial judge terminated mother’s and father’s parental
rights to N.N. The trial judge credited the testimony of the social worker and guardian ad
litem. The trial judge found that the county proved by clear and convincing evidence each
of the statutory grounds for termination, and that termination is in the best interests of the
child. Father appeals.
D E C I S I O N
Upon review of a district court’s decision to terminate parent a l r i g h t s , w e
“determine whether the district court’s findings address the st atutory criteria and whether
the district court’s findings are supported by substantial evid ence and are not clearly
erroneous.” In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). The
district court’s ultimate decision to terminate parental rights is reviewed for an abuse of
discretion. In re Welfare of Child of R.D.L. , 853 N.W.2d 127, 136-37 (Minn. 2014). A
district court may terminate parental rights if clear and convi ncing evidence establishes

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that: (1) at least one statutory basis supports termination; (2) the county made reasonable
efforts to reunite the family, unless reasonable efforts were n ot required; and
(3) termination is in the child’s best interests. S.E.P., 744 N.W.2d at 385; Minn. Stat.
§ 260.012(a) (2018) (providing exceptions to the requirement th at a county make
reasonable reunification efforts in a termination proceeding).
I. The district court did no t exhibit bias or prejudice.
Father argues that the hearing judge was biased against him and should have
recused. Whether a judge should recuse from a case is discretionary with the district court,
and we review that decision for an abuse of discretion. Carlson v. Carlson, 390 N.W.2d
780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). The Minnesota Rules
of Juvenile Protection Procedure provide that “[n]o judge shall preside over any case if that
judge is interested in its deter mination or if that judge might be excluded for bias from
acting as a juror in the matter.” Minn. R. Juv. Prot. P. 7.07, subd. 2. The same rules provide
that a party may remove a judge upon a motion filed within ten days after receiving notice
of the presiding judge. Id., subd. 3(a), (d). But a “judge who has presided at a motion o r
other proceeding may not be removed except upon an affirmative showing of prejudice on
the part of the judge.” Id., subd. 3(b). An affirmative showing of prejudice includes a
showing that the judge might be excluded for bias from acting as a juror in the matter. Id.,
subd. 3(c).
Father did not timely request removal of the hearing judge and must therefore make
an affirmative showing of prejudice. Id., subd. 3(b); see also Uselman v. Uselman , 464
N.W.2d 130, 139 (Minn. 1990) (“[A] party who fails to remove a judge before the start of

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trial has lost its opportunity to do so unless it demonstrates prejudice or implied or actual
bias.”). Father asserts that t he hearing judge was biased beca use of his involvement in a
prior case, and he cites Williams v. Pennsylvania in support of his argument that this
involvement deprived him of due process. 136 S. Ct. 1899 (2016 ) . I n Williams, the
Supreme Court concluded that there was an impermissible risk of actual bias where a judge
earlier had significant involvement as a prosecutor in the decision to seek the death penalty
against the appellant. Id. at 1903, 1908. But unlike Williams, the hearing judge was not
involved in any of father’s prior cases. Instead, the hearing judge was the trial judge in one
of mother’s previous termination-of-parental-rights cases.
The hearing judge’s involvement in mother’s prior case is not s ufficient to
demonstrate that the judge is prejudiced against father. While the advisory committee
comment to Minn. R. Juv. Prot. P. 7.07 “recommends that courts implement the one-judge
one-family concept to the greatest extent possible,” the committee further recognized that
“a rule mandating implementation of the one-judge one-family co ncept may not be
practical or enforceable in all situations.” Minn. R. Juv. Prot. P. 7.07, 2003 comm. cmt. It
was therefore not required that the hearing judge recuse from a dditional involvement in
father’s current case because of his previous involvement with mother’s prior case. And
after mother and father filed a notice to remove the first district court judge, the trial judge
was assigned to the case, not the hearing judge.
Father’s allegations of bias a ppear to reflect his dissatisfact ion with the adverse
rulings against him—namely, the hearing judge’s denials of his motion to inspect reports,
dismiss the petition, and reestablish custody and parenting time. It is well-established that

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adverse rulings do not constitute a n affirmative showing of pre judice. See, e.g., Olson v.
Olson, 392 N.W.2d 338, 341 (Minn. App. 1986). Because father has failed to demonstrate
prejudice, the hearing judge was not required to recuse.
II. The district court did not err in applying the presumption of palpable
unfitness.

Father asserts that he was “not given a fair trial base[d] on the same petition of [his]
last parental termination of rig hts,” and that the petition in this case is barred under the
doctrine of res judicata. To the extent that father raises a c onstitutional challenge to the
petition, he cites no authority and does not engage in any constitutional analysis. Because
father has failed to brief this argument adequately, we decline to consider it. See State,
Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997)
(declining to address issue in absence of adequate briefing).
Moreover, the statutory presumption of palpable unfitness dire cts the district court
to consider a parent’s prior te rmination of parental rights. See Minn. Stat. § 260C.301,
subd. 1(b)(4) (providing that a presumption of palpable unfitne ss arises “upon a showing
t h a t t h e p a r e n t ’ s p a r e n t a l r i g h t s t o o n e o r m o r e o t h e r c h i l d r e n were involuntarily
terminated”). And the palpable -unfitness presumption is consis tent with a parent’s
constitutional rights because it is narrowly tailored to serve the compelling government
interest of protecting children. R.D.L., 853 N.W.2d at 134.
Father next appears to argue that the petition to terminate hi s parental rights to N.N.
is barred under the doctrine of res judicata as a result of the prior termination of his parental
rights to his older joint child. Res judicata may bar a claim in a subsequent action when:

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(1) a claim in an earlier action involved the same set of factual circumstances; (2) the earlier
claim involved the same parties or their privies; (3) there was a f i n a l j u d g m e n t o n t h e
merits; and (4) the estopped party had a full and fair opportun ity to litigate the matter.
Sanvick v. Sanvick , 850 N.W.2d 732, 737 (Minn. App. 2014). “Whether res judicata is
available in a particular case is a question reviewed de novo.” Id.
Here, the earlier action does no t involve the same set of fact ual circumstances.
These actions involved different children and occurred at diffe rent times. Additionally,
because of the prior termination of father’s parental rights, t he burden shifted to father in
this case to demonstrate that he was not palpably unfit to pare nt N.N. In re Welfare of
Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004). Because the issue in the current
case differs from the issue in father’s prior termination of pa rental rights and involves
different factual circumstances, the doctrine of res judicata is inapplicable.
Father further failed to rebut the presumption of palpable unf itness. The
presumption of unfitness imposes a burden of production on the parent to produce evidence
to rebut the presumption. In re Welfare of Child of J.A.K., 907 N.W.2d 241, 245-46 (Minn.
App. 2018). “If the statutory presumption has been rebutted, t he district court shall find
the existence or nonexistence of the alleged palpable unfitness upon all the evidence
exactly as if there never had been a presumption at all.” Id. at 246 (quotations omitted).
Father refused to testify at trial, presented no evidence of his ability to successfully parent
a child, and absented himself from portions of the proceeding. “[A] party cannot complain
about a district court’s failure to rule in [his] favor when one of the reasons it did not do so
is because that party failed to provide the district court with the evidence that would allow

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the district court to fully address the question.” Eisenschenk v. Eisenschenk, 668 N.W.2d
235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003). The district court did
not err in applying the presumption of palpable unfitness to father.
III. The guardian ad litem did no t improperly represent the child.
Father broadly asserts that the guardian ad litem assigned to the case was
unprofessional and represented her own interests, rather than the best interests of N.N., on
the day of trial.
A guardian ad litem is re quired to, among other things:
[C]onduct an independent investigation to determine the facts
relevant to the situation of the child and the family, which must
include, unless specifically exclu ded by the court, reviewing
relevant documents; meeting with and observing the child in
the home setting and considering the child’s wishes, as
appropriate; and interviewing p arents, caregivers, and others
with knowledge relevant to the case.

Minn. Stat. § 260C.163, subd. 5(b)(1) (2018).
In support of his argument, father cites to In re Welfare of Children of D.F.B., 412
N.W.2d 406 (Minn. App. 1987), review denied (Minn. Nov. 18, 1987). There, this court
determined that the guardian ad litem’s activity fell short of the prevalent standards where
the guardian’s testimony failed to include any reference to her qualifications, she never
saw the children, and she only met the appellant as a result of participation on a review
team. Id. at 412. However, D.F.B. is unpersuasive here given that the court concluded that
substantial evidence supported the termination of the appellant ’s parental rights, despite
any defect in the guardian’s conduct. Id.

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Here, the guardian ad litem wa s assigned in September 2018 aft er the previously-
assigned guardian, who was involved in mother’s three prior child-protection cases, chose
not to continue to work with the family due to her frustration with the parents’ failure to
correct the conditions that led to the prior terminations of th eir parental rights. In the
interim period between the two assigned guardians, coverage gua rdians attended the
proceedings. To prepare for trial, the newly-appointed guardian ad litem testified that she
spoke with the previous guardian, reviewed the case file and th e county’s proposed trial
exhibits and discovery, and met with the parents on the day of father’s trial.
The district court acknowledged the guardian’s limited investigation and found that
she was “properly situated to make a recommendation on the chil d’s best interests.” The
district court specifically found her testimony to be credible and “sincere and thoughtful.”
“Considerable deference is due to the district court’s decision because a district court is in
a superior position to assess the credibility of witnesses.” In re Welfare of L.A.F. , 554
N.W.2d 393, 396 (Minn. 1996). The guardian’s recommendation was also consistent with
the social worker’s recommendation for termination of father’s parental rights. The
conduct of the guardian ad litem does not warrant reversal.
Affirmed.