In the Matter of the Welfare of the Child of: K. B. and T. B., Parents.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0931

In the Matter of the Welfare of the Child of: K. B. and T. B., Parents.

Filed January 25, 2021
Affirmed
Larkin, Judge

St. Louis County District Court
File No. 69DU-JV-19-858

K.B., Duluth, Minnesota (self-represented appellant)

Natasha M. VanLieshout, Duluth, Minnesota (for child M.B.)

Mark S. Rubin, St. Louis County Attorney, Korey W. Horn, Assistant County Attorney,
Duluth, Minnesota (for respondent St. Louis County Public Health and Human Services
Department)

Joan Mahle, Duluth, Minnesota (guardian ad litem)

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant-mother challenges the district court’s adjudication of her child as a child
in need of protection or services (CHIPS), arguing that the district court erred by denying
her pretrial notice to remove the assigned district court judge for actual bias and by denying

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her petition for a writ of habeas corpus . She also argues that she was denied procedu ral
and substantive due process. We affirm.
FACTS
Appellant K.B. is the mother of M.B. (child), born in 2006. On November 27, 2019,
respondent St. Louis County Public Health and Human Services Department (county) filed
a petition alleging that the child was in need of protection or services. The petition alleged
four statutory grounds for a CHIPS finding, including that mother had physically abused
the child . The district court held a n emergency -protective-care hearing and awarded
temporary custody of the child to the county . The child was placed with his ma ternal
grandmother.
Mother was represented by private counsel at the initial district court hearings in
this case. In January 2020, the district court granted private counsel’s motion to withdraw
after mother decided to discharge him. The district court later granted mother’s request for
court-appointed counsel. In April, the district court granted court -appointed counsel’s
request to withdraw and appointed new counsel for mother. In May, the newly appointed
attorney and mother each filed a written request to discharge counsel, which the district
court granted. As support, the attorney informed the district court that she had
communicated with mother “numerous times each working day” but that mother was “not
willing or able to take [her] legal adv ice.” At a pretrial hearing on May 20 , mother
indicated that her attorney withdrew because mother “wouldn’t do what [counsel] wanted
[her] to do.” Mother requested another court-appointed attorney, but the district court
denied that request.

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On May 27, 2020, mother filed a notice to remove the district court judge who had
presided at the admit-deny hearing and pretrial hearings in the case and who was scheduled
to preside at trial. Mother alleged that the judge was biased. The district court denied the
request for removal as untimely. Mother also filed a document titled, “Petition for writ of
Habeas Corpus and Emergency Motion to return my Child.” She claimed that the
allegations against her were fabricated, accused the county and the attorneys of conspiring
against her, and demanded the immediate return of the child.
A court trial was held remotely through Zoom on June 4, 2020. 1 At the beginning
of the trial, the district court acknowledged mother’s habeas corpus petition and declined
to consider it, explaining that the petition was procedurally and substantively improper.
At trial, the county introduced testimony from two social workers, a
psychotherapist, a forensic interviewer, and the child’s guardian ad litem. Mother indicated
that she would call the child as a witness, and the parties agreed that the child would testify
during the county’s case -in-chief to accommodate the child’s schedule. The child was
scheduled to testify after a one-hour lunch break during the trial. When the trial resumed
after that break, mother did not appear, even though her video connection appeared to be
working properly. After attempts to contact mother were unsuccessful, the district court
excused the child from testify ing. The co unty moved to proceed by default, the district
court granted that request, and the county continued its presentation of evidence.

1 Zoom is a video-conferencing service that enables individuals to meet and communicate
remotely. Due to the COVID-19 pandemic, the Minnesota Supreme Court has ordered that
all district court proceedings be held using remote technology if possible.

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During the next witness’s testimony, mother reappeared on the video, more than 20
minutes after the trial was scheduled to resume. According to the district court’s posttrial
findings, mother “appeared on screen with music playing in the background and did not
seem to understand the severity of her absence.” Instea d, mother “made comments about
her ‘biceps being sore’ and began stretching on video.” The district court informed mother
that it had released the child as her witness, and the county effectively withdrew its default
motion and did not object to mother’s participation in the proceeding.
The county entered numerous exhibits into evidence, including audio and video
recordings of interviews with the child and his younger half -sister, M.C., born in 2010.
The recordings were not played at trial . Instead, the county asked the district court to
review them after submission of the case, and mother agreed with that proposal . The
county also submitted transcripts of interviews and reports summarizing those interviews.
The evidence showed that in an April 2019 interview with the county, M.C. claimed
that mother had beaten up the child and banged his head on a dresser. M.C. stated that the
child had bruises, bite marks, and a bloody nose as a result of mother’s actions. According
to M.C., mother committed those acts often and for minor reasons. In a November 2019
forensic interview, M.C. described instances in which she observed or was told by the child
about mother and the child fighting with each other. During one of those fights, which the
child told M.C. about, mother repeatedly hit the child in the face with her forearm, giving
the child a bloody nose. During other fights, which M.C. observed, mother bit the child’s
ear and struck his head against a dresser.

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In a September 2019 interview with the county, the child described a physical
altercation that occu rred when he was arguing with mother about having games on his
phone. The child said that mother “used to be a fighter” and “did some sort of take down”
on him by grabbing his legs and knocking him to the ground, before punching him twice
in the face. Photographs of the child’s injuries, taken during the interview, showed that the
child had a broken blood vessel in one eye and a bruise around the other. The child
indicated that mother had punched him on other occasions and that her blows had caused
bruises on his arms.
In a September 2019 interview with the county, mother admitted that she had argued
with the child about games on his phone. She also admitted that she knocked the child to
the ground and struck him, but she claimed to have done so becaus e the child was angry,
had a knife, and had threatened to kill himself. At trial, mother testified and denied the
physical-abuse allegations. She insisted that M.C.’s statements were lies and that the child
was coerced into making the allegations against her.
On June 9, 2020, the district court issued an order adjudicating the child in need of
protection or services under Minn. Stat. § 260C.007, subd. 6(2) (2018). The district court
concluded that the county had established, by clear and convincing evidence, that the child
was a victim of physical abuse. Mother appeals.2

2 Before filing this appeal, mother moved for a new trial and requested a new judge and a
court-appointed attorney. The district court denied mother’s requests on August 14, 2020,
after mother filed the appeal. Mother does not challenge the denial of her posttrial motions
on appeal.

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DECISION
We begin with the principles that govern this appeal. Although some
accommodations may be made for self-represented litigants like mother, they are generally
held to the same standards as attorneys. Fitzgerald v. Fitzgerald , 629 N.W.2d 115, 119
(Minn. App. 2001). “[O]n appeal error is never presumed. It must be made to appear
affirmatively before there can be reversal. . . . [T]he burden of showing error rests upon the
one who relies upon it.” Loth v. Loth , 35 N.W.2d 542, 546 (Minn. 1949) (quotation
omitted). Mere assertions of error without supporting legal authority or argument are
waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling,
Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). In addition, “issues not adequately briefed
are waived.” Brooks v. State , 897 N.W.2d 811, 819 (Minn. App. 2017), review denied
(Minn. Aug. 8, 2017).
With those principles in mind, we turn to the issues raised in this appeal.
I.
Mother contends that the district court erred by denying her “[n]otice to remove ”
the trial judge, which was based on “ an affirmative showing of actual bias, thus violating
Minnesota [R]ules of C ivil Procedure, and depriving [her] of substantive and procedural
due process rights to a fair trial in front of an impartial judge.” “Due process requires . . .
the right to an impartial decision -maker . . . .” In re Welfare of Children of D.F. , 752
N.W.2d 88, 97 (Minn. App. 2008). We review the denial of a notice to remove a district
court judge for an abuse of discretion. Matson v. Matson , 638 N.W.2d 462, 469 (Minn.
App. 2002).

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A judge who has already presided at a proceeding may be removed only “upon an
affirmative showing that the judge or judicial officer is disqualified under the Code of
Judicial Conduct.” Minn. R. Civ. P. 63.03. Under the Minnesota Code of Judicial Conduct,
a judge must disqualify herself “in any proceeding in which the judge’s impartiality might
reasonably be questioned,” including when the judge “has a personal bias or prejudice
concerning a party.” Minn. Code Jud. Conduct Rule 2.11(A)(1).
One week before trial, mother filed a notice to remove the district court judge for
bias, which the district court deni ed as untimely. In arguing that the district court judge
was biased, mother relies on statements that the judge made during the proceedings. For
example, mother points to the following statement , which the judge made at a pretrial
hearing when denying mother’s request for unsupervised visitation: “I guess, in a nutshell,
you don’t end up in Child Protection Court because it’s just a few things going wrong.
There’s very serious concerns, there’s very serious reasons this matter came before the
Court.”
Mother’s reliance on such statements is unavailing because
[o]pinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep -seated favoritism
or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the
parties, or t heir cases, ordinarily do not support a bias or
partiality challenge.
Byers v. Comm’r of Revenue, 735 N.W.2d 671, 673 (Minn. 2007) (quoting Liteky v. United
States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). Our review of the record does

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not reveal statements indicating a deep-seated favoritism or antagonism that made fair
judgment impossible.
Mother also argues that the district court judge “assumed” that she had “committed
child abuse, even without ever viewing the evidence in this case.” The district court’s order
belies that contention. The county alleged four statutory grounds for a CHIPS finding. The
district court concluded that the county did not prove three of those statutory grounds by
clear and convincing evidence. The district court’s order explained its evaluation of each
statutory ground, and its explanations were based on the evidence submitted at trial .
Moreover, in concluding that the child was a victim of physical abuse, the district court
noted that there were conflicting stor ies regarding how the child obtained the injuries
around his eyes, and it therefore did not rely on that evidence.
In sum, we are satisfied that the district court’s CHIPS determination was based on
the evidence presented at trial, and was not the resu lt of deep -seated favoritism or
antagonism that deprived mother of the right to a fair trial before an impartial tribunal. 3
The district court judge was not biased and did not err by denying mother’s request for
removal.

3 Mother also argues that “[w]hat held the most weight in [the judge’s] decision seemed to
be, not the evidence or the testimony, but the negative emotions that were triggered when
she looks at [mother], who is at least 20 years younger than [the judge].” Mother continues,
“Girl on girl ageism is the new trend in discrimination.” Mother’s assertion is completely
unsubstantiated and does not merit discussion.

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II.
Mother contends that the district court erred by denying her petition for a writ of
habeas corpus. “A person imprisoned or otherwise restrained of liberty . . . may apply for
a writ of habeas corpus to obtain relief from imprisonment or restraint.” Minn. Stat.
§ 589.01 (2018). But neither mother nor the child was imprisoned or restrained of liberty.
Mother does not cite, and we are not aware of, legal authority permitting a writ of habeas
corpus to be used as a means of modifying a child -custody determination in a juvenile-
protection case. Indeed, mother’s argument is based on the following policy argument:
“[A] Habeas Corpus is an appropriate remedy for alienated mothers who have been beat
up in court and are desperate for an extraordinary writ option for review of the conditions
that oppress them.” Mother’s argument is unavail ing because we are not a policymaking
court, and we are obligated to follow the law. See LaChapelle v. Mitten, 607 N.W.2d 151,
159 (Minn. App. 2000) (“Because this court is limited in its function to correcting errors it
cannot create public policy.”) , review denied (Minn. May 16, 2000) . In sum, mother’s
request for a writ of habeas corpus was unsupported, and the district court properly denied
it.
III.
Mother contends that the district court violated her rights to procedural and
substantive due process in many ways . “The parent -child relationship is among the
fundamental rights protected by the constitutional guarantees of due process.” D.F., 752
N.W.2d at 97. “Due process requires reasonable notice, a timely opportunity for a hearing,

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the right to counsel, the opportunity to present evidence, the right to an impartial decision-
maker, and the right to a reasonable decision based solely on the record.” Id.
Mother asserts that she was denied the following procedural -due-process rights:
(1) to be heard, (2) to present reasons why the proposed action should not be taken , (3) to
present evidence and call witnesses, (4) to a decision based exclusi vely on the evidence
presented, (5) to know opposing evidence, (6) to cross-examine opposing witnesses, (7) to
be represented by counsel, and (8) to a public trial.
The record refutes mother’s assertion. As discussed in section I of this opinion, the
district court’s decision was based on the evidence presented at trial. Moreover, the record
indicates that the county disclosed its exhibits and witnesses to mother through counsel
before trial. At trial, mother was not prevented from testifying, presenting evidence, calling
witnesses, cross -examining opposing witnesses , or making arguments in support of her
defense. Indeed, arrangements were made to facilitate the child’s appearance as mother’s
witness. But mother did not appear for trial when the child was scheduled to testify as her
witness, and the district court excused the child from testifying based on mother’s
nonappearance.
Although the district court frequently limited mother’s attempts to speak during the
trial, those limitations were in response to mother’s improper cross-examination questions
and inappropriate remarks. For example , when cross -examining the psychotherapist,
mother asked, “Do you think that [the county’s actions] might have f ---ing ruined [the
child’s] life?” And when testifying herself, mother suggested that one of the social workers
was “sexually excited” by the “drama” and was suffering from a “mental illness.” The

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district court appropriately limited such questions and comments , and the court did not
violate mother’s right to procedural due process in doing so. See Minn. R. Evid. 611(a)
(“The court shall exercise reasonable control over the mode . . . of interrogating witnesses
and presenting evidence so as to . . . protect witnesses from harassment or und ue
embarrassment.”).
As to mother’s assertion that she was denied the right to counsel , i n juvenile -
protection proceedings, there is no federal constitutional right to counsel. In re Welfare of
Child of A.M.C., 920 N.W.2d 648, 659 (Minn. App. 2018). When a parent desires counsel
but cannot obtain it, the district court must appoint counsel “in any case in which it feels
that such an appointment is appropriate.” Minn. Stat. § 260C.163, subd. 3(c) (2018). We
review the district court’s decision whether to appoint counsel for an abuse of discretion.
A.M.C., 920 N.W.2d at 660 . A district court abuses its discretion when its decision is
“against logic and the facts of record.” Id.
Here, mother initially retained pr ivate counsel, but she eventually dis charged him.
Subsequently, the district court appointed two different attorneys to represent mother, but
the court discharged both of them after they asked to withdraw as counsel. The second
court-appointed attorney asked to withdraw because mother was unwilling to take her legal
advice, and mother herself requested discharge of that attorney. At the final pretrial hearing
on May 20, 2020, mother appeared as a self -represented litigant and requested another
court-appointed attorney. The district court denied that request. Given the circumstances,
the district court ’s refusal to appoint another attorney on the eve of trial was not against
logic or the facts of record.

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As to mother’s assertion that she was denied her rig ht to a public trial, mother has
not provided adequate support for this assertion of error. We discern no obvious prejudicial
error and therefore deem that assertion waived. See Modern Recycling, Inc., 558 N.W.2d
at 772 (stating that unsupported assertio ns of error are waived unless prejudicial error is
obvious on mere inspection).
Lastly, mother asserts that she was denied substantive due process. Mother
acknowledges that she is not familiar with the relevant constitutional law or standards, and
she does not apply them. Instead, she makes general arguments about corruption, ageism,
and parental alienation. Mother’s arguments do not provide a basis for relief. See id.
Affirmed.