In the Matter of the Welfare of the Children of: C. A. H., C. B. P., Jr., and J. L. S. C., Parents.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. l(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0290
In the Matter of the Welfare of the Children of:
C. A. H., C. B. P., Jr., and J. L. S. C., Parents.
Filed September 7, 2021
Affirmed
Johnson, Judge
Clay County District Court
File No. 14-JV-20-1424
Brian P. Toay, Wold Johnson P.C., Fargo, North Dakota (for appellant C.A.H.)
Brian J. Melton, Clay County Attorney, Kathleen M. Stock, Assistant County Attorney,
Moorhead, Minnesota (for respondent Clay County Social Services)
Shawn Schmidt, Moorhead, Minnesota (for respondent father C.B.P. Jr.)
Michael Minard, Moorhead, Minnesota (for respondent child)
Turtle Mountain Band of Chippewa, Belcourt, North Dakota (respondent)
Rosebud Sioux, Mission, South Dakota (respondent)
Emily Shaffer, Moorhead, Minnesota (guardian ad !item)
Considered and decided by Johnson, Presiding Judge; Bryan, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
The district court terminated a woman's parental rights to three children. We
conclude that the district court did not err in its findings of fact and did not err by denying
appellant's motion for a new trial. Therefore, we affinn.
FACTS
C.A.H. is the birth mother of three children, who now are 12, 9, and 4 years old. On
July 2, 2019, the children were placed in the custody of Clay County. The next day, the
county petitioned the district court for an adjudication that the children are in need of
protection or services (CHIPS). The district court granted the CHIPS petition and ordered
that the children be placed in foster care.
C.A.H.' s case plan required her to, among other things, submit to a parental-capacity
evaluation and follow its recommendations, follow the recommendations of her mental­
health providers, submit to a chemical-health assessment and follow its recommendations,
and submit to random drug tests. But C.A.H. did not promptly take the actions required
by her case plan and did not maintain consistent contact with the county. In September
2019, C.A.H. became unemployed and homeless. The assigned county child-protection
worker was unable to locate C.A.H. between September 2019 and December 2019.
In April 2020, the county petitioned for the termination of the parental rights of three
adults: C.A.H.; C.B.P. Jr., to whom C.A.H. was married when her first two children were
born; and J.L.S.C., the putative father of C.A.H.'s third child. The county amended the
petition in June 2020. In the amended petition, the county alleged five grounds for
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tennination with respect to C.A.H. See Minn. Stat.§ 260C.301, subd. l( b)(l) , (2), (4), (5),
(8) (2020).
The county again could not locate C.A.H. between April 2020 and September 2020.
C.A.H. was arrested in September 2020. Between September 2020 and December 2020,
C.A.H. subm itted to two chemical-dependency assessments. In the first assessment in
October 2020, C.A.H. reported that she had been using methamp hetamine on a daily basis
for the past 14 months. C.A.H. was offered a bed in an in-patient treatment program, but
she declined it, stating that she had other obligations and case-plan requirements to
complete and could not focus on treatment.
In November 2020, C.A.H. contracted the COVID-19 coronavirus and was ill for
approximately three weeks. The TPR trial was continued and later was rescheduled for
January 2021.
C.A.H. participated in a parental-capacity evaluation in December 2020. The
evaluating psychologist diagnosed her with post-traumatic stress disorder, stimulant-user
disorder, and borderline personality traits. The psychologist's report noted that she had
"relatively severe mental and chemical health conditions." The psychologist concluded
that her "functional impairments ... resulted in [a] failure to provide basic needs to her
children," including stability, putting the children's needs first, providing stable emotional
wannth, and ensuring that her children are supervised and safe. Finally, the psychologist
concluded that C.A.H. likely will "continue to experience mental health difficulties,
particularly anxiety, throughout her life, and be prone to relapse for substance abuse " but
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that her prognosis could be favorable if she were to maintain her mental and chemical
health.
The case was tried on three days in January 2021 using a commercially available
interactive video-conferencing appli cation. The district court heard testimony from 11
witnesses and received 30 exhibits into evidence. In February 2021, the district court filed
a 42-page order in which it granted the county's TPR petition with respect to C.A.H. based
on findings that the county had proved four of the five grounds alleged against her. The
district court denied the county's TPR petition with respect to C.B.P. Jr. and tenninated all
parental rights as to the "known and unknown fathers to Child 3." In February 2021,
C.A.H. moved for a new trial. The district court denied the motion. C.A.H. appeals.
DECISION
I. Findings of Fact
C.A.H. first argues that the district court erred in its findings of fact for two reasons.
She argues that the findings do not adequately consider the impact of the COVID-19
pandemic and that they are not based on the circumstances as they existed at the time of
trial.
A. Impact of Pandemic
C.A.H. argues that the district court's findings of fact do not appropriately recognize
that the pandemic made it more difficult for her to receive services and to complete the
requirements of her case plan. Specifically, C.A.H. argues that her progress on her case
plan was interrupted when she contracted the virus and that the pandemic impeded her
ability to receive chemical-dependency treatment. This court applies a clear-error standard
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of review to the district court's findings of fact. In re Welfare of A.D., 535 N.W.2d 643,
648 (Minn. 1995).
Contrary to C.A.H.'s argument, the district court's order appropriately
acknowledges the existence of the pandemic. The district court noted that the trial had
been continued because of the pandemic and because C.A.H. was, for a time, ill with the
virus. The district court noted the testimony of one witness, a representative of the Rosebud
Sioux Tribe, of which C.A.H. is a member, who testified that the pandemic affected
C .A.H.' s ability to complete her case plan. But the district court was not persuaded by that
evidence, as indicated by the following finding:
While there is no doubt that the COVID-19 pandemic
did have some impact on this case, the undeniable evidence
before the Court is that the children were removed from
[C.A.H.'s] care on July 2, 2019, over seven months before the
first COVID-19 case was even reported in the United States,
and that during those seven months, [C.A.H.] did nothing to
work on her case plan. The primary reason that [C.A.H.] did
not complete the requirements of her case plan was because of
her failure to maintain contact with [Clay County Social
Services] and her lack of follow through with services. While
[C.A.H.] has made progress on her mental health, she has, by
her own testimony, admitted to not engaging in services for 14
months, instead choosing drugs and living on the streets, to
reunification with her children. Pennanency timelines have
well past. Therefore, even though the Rosebud Sioux Tribe
does not support termination of [C.A.H.'s] parental rights, the
evidence presented to the Court proves, beyond a reasonable
doubt, that the statutory grounds for termination have been
met.
To reiterate, a clear-error standard of review applies. In re Welfare of A.D., 535 N.W.2d
at 648. "A finding is clearly erroneous only if there is no reasonable evidence to support
the finding or when an appellate court is left with the definite and firm conviction that a
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mistake occurred." In re Welfare of JH, 844 N.W.2d 28, 35 (Minn. 2014) (quotation
omitted).
There is evidence in the record to support the district court's finding that the
pandemic had a limited impact on the ultimate disposition of the case. It is apparent that
the absence of any progress by C.A.H. on her case plan from July 2019 (before the
pandemic began) to September 2020 was the predominant reason why C.A.H. was
unsuccessful in defending against the county's tennination petition. The evidence shows
that the treatment center that assessed C.A.H. remained open for business throughout the
pandemic but that C.A.H. did not take advantage of those services, which were
recommended following her assessment. The evidence also shows that C.A.H.'s illness
did not unavoidably prevent her from completing her case plan. C.A.H. was ill for
approximately three weeks in November 2019, but the trial was continued for
approximately eight weeks, which suggests that the continuance may have provided her
with additional time to make progress on her case plan. In essence, C.A.H. simply
disagrees with the district court's findings. But this court may not reverse findings of fact
if they are supported by evidence in the record. See In re Welfare of JH, 844 N.W.2d at
35. Thus, the district court did not clearly err in its findings of fact concerning the impact
of the pandemic.
B. Circumstances at Time of Trial
C.A.H. argues that the district court's findings of fact do not appropriately recognize
that she had made progress on her case plan between September 2020 and January 2021
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and that, at the time of trial, the circumstances that led to the children's out-of-home
placement would soon end.
The decision to terminate parental rights should be based on evidence concerning
the "conditions that exist at the time of the hearing." In re Welfare of Chosa, 290 N.W.2d
766, 769 (Minn. 1980); see also In re Welfare of Child of JL.L., 801 N.W.2d 405, 409
(Minn. App. 2011), review denied (Minn. July 28, 2011). In addition, to order the
termination of parental rights, the evidence must show "that the conditions giving rise to
the termination will continue for a prolonged, indetenninate period." In re Welfare of
P.R.L., 622 N.W.2d 538, 543 (Minn. 2001). A district court may consider "past history"
but should focus on "the projected pennanency of the parent's inability to care for his or
her child." In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotations omitted).
We apply a clear-error standard of review. In re Welfare of A.D., 535 N.W.2d at 648.
In this case, the district court's findings of fact are appropriately focused on the
circumstances that existed at the time of trial. For example, the distric� court made the
following finding: "At this time, [C.A.H.] is wholly unable to meet her own basic needs,
let alone parent Child 1, Child 2 or Child 3. Her expectations and beliefs that she can
parent the children are not realistic." The district court also found, "Because [C.A.H.] has
not adequately addressed her chemical or mental health sufficiently, this pattern is likely
to continue and the children would be placed at great risk of hann if they were returned to
[C.A.H.'s] custody." The district court further found that C.A.H. "is unlikely to adequately
correct the conditions and will not complete the requirements of her case plans in the
reasonably foreseeable future." The district court also found that C.A.H.'s children had
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been in out-of-home placement for 568 days and were "in need of a pennanency
determination."
These findings are supported by evidence presented at trial. The evidence shows
that C.A.H. had submitted to multiple chemical-dependency assessments but had not
followed through on any of the recommendations arising from the assessments. The
evidence also shows that, at the time of trial, C.A.H. continued to struggle in managing her
mental health. C.A.H. had not followed through on opportunities to visit the children,
having done so only once after September 2020. Again, it appears that C.A.H. simply
disagrees with the district court's findings of fact, which does not present this court with a
reason to reverse the findings. See In re Welfare of J.H, 844 N.W.2d at 35. Thus, the
district court's findings of fact are based on the circumstances that existed at the time of
trial.
In sum, the district court did not clearly err in its findings of fact.
II. Motion for New Trial
C.A.H. also argues that the district court erred by denying her motion for a new trial
on the ground that the use of interactive video-conferencing denied her a fair trial.
C.A.H. relies on rule 21.04 of the rules of juvenile protection procedure, which
provides as follows:
A new trial may be granted on all or some of the issues
for any of the following reasons:
(a) irregularity in the proceedings of the court,
referee, or prevailing party, or any order or abuse of discretion
whereby the moving party was deprived of a fair trial;
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(b) misconduct of counsel;
( c) fraud, misrepresentation, or other misconduct of
the county attorney, any party, their counsel, or their guardian
ad litem;
( d) accident or surprise that could not have been
prevented by ordinary prudence;
( e) material evidence, newly discovered, which with
reasonable diligence could not have been found and produced
at the trial;
(f) errors of law occurring at the trial and objected
to at the time, or if no objection need have been made, then
plainly assigned in the motion;
(g) a finding that the statutory grounds set forth in
the petition are proved is not justified by the evidence or is
contrary to law; or
(h) if required in the interests of justice.
Minn. R. Juv. Prot. P. 21.04. C.A.H. relies specifically on paragraphs (a) and (h).
We begin our analysis with paragraph (a), which may justify a new trial if there was
an "irregularity in the proceedings" or "any order or abuse of discretion whereby the
moving party was deprived of a fair trial." Minn. R. Juv. Prot. P. 21.04(a). The use of
interactive video-conferencing for purposes of trial is expressly authorized by the rules,
which provide: "By agreement of the parties, or in exceptional circumstances upon motion
of a party or the county attorney or on the court's own initiative, the court may hold
hearings and take testimony by telephone or interactive video." Minn. R. Juv. Prot.
P. I 1.02. This rule, by itself, indicates that the use of interactive video-conferencing for
purposes of trial is not irregular.
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Furthennore, there is additional authority for the use of interactive video­
conferencing during the COVID-19 pandemic. On March 13, 2020, the governor issued
an executive order declaring a peacetime emergency. Emerg. Exec. Order No. 20-01,
Declaring a Peacetime Emergency & Coordinating Minnesota's Strategy to Protect
lvfinnesotansfrom COVID-19 (Mar. 13, 2020). Thereafter the chief justice issued a series
of standing orders governing proceedings in the district courts, including an order
providing that "all proceedings in all case types shall be held by ... remote technology that
pennits the parties and attorneys to appear without being in the courtroom," unless the
chief judge of the district court grants an exception to allow an in-person proceeding.
Order Governing the Continuing Operations of the Minnesota Judicial Branch Under
Emergency Executive Order No. 20-33, No. ADM20-8001, at 3-4 (Minn. Apr. 9, 2020). In
its order denying C.A.H.'s motion for a new trial, the district court stated that C.A.H. had
received notice that the trial would be conducted by interactive video-conferencing but did
not object or request an exception. C.A.H. does not challenge that statement on appeal.
C.A.H. also contends that the use of interactive video-conferencing disadvantaged
her on the ground that "there were several instances during the trial where [she] was ...
disconnected from the trial." C.A.H. identifies with specificity two instances in which she
became disconnected, both of which were noted by the district court on the record. In each
instance, C.A.H. 's absence was very brief. On the second day of trial, before recessing for
lunch, the district court noted that C.A.H. had become disconnected during the re-direct
examination of a witness, which was brief enough to be printed on fewer than two pages
of the trial transcript. On the third day of trial, the district court noted that C.A.H. had
become disconnected "at some point in the last couple minutes." The district court noted
on the uext page of the transcript that C.A.H. was reconnecting. In its order denying
C.A.H.'s motion for a new trial, the district court stated that C.A.H. "never requested to
continue the proceedings or take a break." C.A.H. does not challenge that statement on
appeal. C.A.H. does not identify any particular reason why she was prejudiced by being
disconnected briefly while her attorney remained connected.
C.A.H. contends further that the use of interactive video-conferencing
disadvantaged her on the ground that, on the third day of trial, she "was in an area that did
not provide a quiet or safe location for [her] to view the trial." The transcript indicates that,
on the third day of trial, C.A.H. was com1ected to interactive video-conferencing while in
an apartment but "was uncomfortable there," so she moved to another apartment. The
district court resumed trial proceedings after C.A.H. stated that she was ready to proceed.
Later that day, the district court noted that C.A.H. had been "moving around." The district
court asked C.A.H. whether she could "stay in one place," and C.A.H. agreed to do so.
C.A.H. contends on appeal that the district court erred because "[ n ]o
accommodations were made to ensure [C.A.H.] could attend trial." In its order denying
C.A.H.'s motion for a new trial, the district court stated that "the Court has devices for
parties to utilize at the courthouse to participate in remote hearings and those devices and
a conference room were always available to" C.A.H. but she did not "utilize the devices at
the courthouse." C.A.H. does not challenge that statement on appeal. In addition, C.A.H. 's
contention fails to acknowledge that, in any trial, a party's attorney is responsible for
ensuring that his or her client is prepared for trial and able to participate in the trial. In the
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context of the pandemic, C.A.H.' s attorney could have taken steps to ensure that C.A.H.
was in an appropriate location and had the appropriate equipment and arrangements.
C.A.H. contends further that the use of interactive video-conferencing prevented her
from receiving the benefits of her right to counsel. Specifically, C.A.H. contends that her
attorney was unable to prevent her from interrupting the proceedings on a few occasions
and was unable to ensure that she understood the proceedings. The trial transcript reflects
that, on at least four occasions, the district court muted C.A.H. so that she would not
interrupt the testimony of other witnesses. In its order denying C.A.H.'s motion for a new
trial, the district court stated that "the Court allowed [C.A.H.] to speak with her attorney in
breakout rooms during trial and her attorney indicated that some matters could be addressed
with his client during regular breaks in the proceedings." C.A.H. does not challenge that
statement on appeal, and she does not identify any particular occasion when she wanted to
consult with her attorney but was not allowed to do so. The trial transcript reveals that
C.A.H. sometimes asked the district court for a break to consult with her attorney and that
the district court granted her requests. Accordingly, the record does not reflect that the use
of interactive video-conferencing infringed on C.A.H. 's right to counsel.
Thus, the district court's use of interactive video-conferencing for purposes of.trial
was neither "irregular" nor an abuse of discretion by the district court. Similarly, C.A.H.
has not presented any reasons for this court to conclude that the use of interactive video­
conferencing requires a new trial in the interests of justice.
Before concluding, we note that the county also argues that the district court should
be affirmed on the ground that C.A.H. did not properly serve her new-trial motion on the
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Indian tribes that are parties to the case. The district court denied C.A.H.'s motion for that
reason as well. On appeal, C.A.H. does not challenge the district court's detennination
that she did not properly serve all parties. Accordingly, C.A.H. 's failure to serve all parties
is an additional reason to affinn the district court's denial of C.A.H. 's motion for new trial.
See Hunter v. Anchor Bank, NA., 842 N.W.2d 10, 17 (Minn. App. 2013), review denied
(Minn. Mar. 18, 2014).
In sum, the district court did not err by denying C.A.H. 's motion for a new trial.
Affirmed.
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