In the Matter of the Welfare of the Children of: S. B.-H. L. and W. A. T., 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This opinion is nonprecedential except as provided by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
A21-1498

In the Matter of the Welfare of the Children of:
S. B.-H. L. and W. A. T., Parents.

Filed July 18, 2022
Affirmed
Bratvold, Judge

Brown County District Court
File No. 08-JV-21-42

Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota (for appellant
W. A. T.)

Charles W. Hanson, Brown County Attorney, Jill M. Jensen, Assistant County Attorney,
New Ulm, Minnesota (for respondent Brown County Human Services)

Shiree Oliver, New Ulm, Minnesota (guardian ad litem)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Rodenberg, Judge.
*
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
On appeal from an order terminating his parental rights to three children,
appellant-father challenges the district court’s determinations that statutory grounds
support termination and that termination is in the best interests of the children. We conclude

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
the district court did not err in determining that at least one statutory ground supported
termination of father’s parental rights and that termination is in the best interests of the
children. For the first time on appeal, father raises a claim of ineffective assistance of trial
counsel. Even if we were to consider this issue, we would conclude that father fails to make
the necessary showings. Thus, we affirm.
FACTS
The following summarizes the district court’s factual findings following a bench
trial. Respondent S.B.–H.L. (mother) and appellant W.A.T. (father) shared joint physical
and joint legal custody of two children—A.T., age 11, and E.T., age 9. Mother is the sole
custodian of D.T., age 4 . Father is presumed to be D.T.’s biological father and “has
received [D.T.] into his home and held her out as his biological child.” Mother also has
two children, P.M., age 18, and S.M., age 16, from a previous relationship. 1 The children
lived together with mother and father from December 2011 until father’s separation from
the family on February 26, 2021.
In March 2021, respondent Brown County Human Services (county) received audio
recordings of father abusing the children. On March 1, mother petitioned for an emergency
order for protection (OFP) for herself and the children, which the district court granted. On
March 4, the state charged father with offenses related to the recordings: third-degree
assault with a past pattern of child abuse, threats of violence, malicious punishment of a
child, domestic assault, and disorderly conduct. On March 12, the district court conducted

1 This opinion refers to A.T., E.T., and D.T. collectively as “the joint children.” This
opinion refers to the five children collectively as “the children.”
3
a contested hearing on the emergency OFP petition. Ten days later, the district court issued
an OFP and found father committed domestic abuse, including that father threatened
physical harm to S.M., shoved E.T.’s head into a couch, and threatened the children with
“yelling and frightening behavior.”
On April 9, the county petitioned for termination of father’s parental rights (TPR)
to the joint children, alleging the above facts and three statutory grounds: first, father is
“palpably unfit to be a party to the parent and child relationship”; second, the children
“experienced egregious harm” in father’s care “which is of a nature, duration, or chronicity
that indicates a lack of regard for the children’s well- being”; and third, father
“substantially, continuously, or repeatedly refused or neglected to comply with the duties
imposed upon [him] by the parent and child relationship.” See Minn. Stat. § 260C.301,
subd. 1(b)(2), (4), (6) (2020). The county also asked to be relieved of its duty to make
reasonable efforts to rehabilitate father and reunite him with the children, contending it
made a prima facie showing that father subjected a child to egregious harm while in his
care. See Minn. Stat. § 260.012 (2020) (providing “court shall ensure” agency makes
reasonable efforts to rehabilitate and reunite except upon court’s determination that “the
parent has subjected a child to egregious harm”).
The district court appointed a guardian ad litem (GAL). In an April 30 order
following the admit/deny hearing, the district court found the county had shown a prima
facie case for termination based on “egregious harm in the care” of father and therefore
relieved the county of the duty to rehabilitate father or reunite him with the joint children.
4
The joint children have remained in the care and custody of mother and under the protective
supervision of the county.
In a May 21 pretrial order, the district court repeated that the county was relieved of
its duty to rehabilitate father and reunite the family. In denying father’s request for a case
plan and supervised visitation, the district court found parenting time with father was not
in the joint children’s best interests “[a]t this time.” The district court also found the joint
children were working with therapists and directed the county to consult with the therapists
to “investigate whether supervised visits would be harmful to the children and whether
there are services available that could make reunification possible.” The district court
commented in a footnote that father’s request for a case plan was an issue for trial.
A bench trial on the TPR petition started on August 3, 2021. The district court heard
testimony from S.M., mother, the social worker assigned to the family, the GAL, and an
expert witness on domestic violence, Amy Russell.
The evidence at trial disclosed that the county has been in contact with this family
for many years. On July 7, 2016, the county received a report that father abused mother
and the children. Father was upset with the oldest child, P.M., for cutting the grass too
short. Mother defended P.M., and in the presence of the children, father threw a can of soda
at mother and then tackled her to the ground. Father was arrested and charged with
domestic assault. On June 28, 2016, the district court issued an emer gency ex parte OFP
after mother petitioned on behalf of herself and the children. On August 15, 2016, the
district court dismissed the OFP after mother wrote an affidavit recanting her earlier
statements. The state also dropped the criminal charge against father.
5
On August 2, 2018, the county received a report that father abused S.M. and P.M.
The report stated that father verbally abused both children and “jammed [P.M. ] into a
cement wall, causing [P.M.] to hurt his elbow. [Father] has also held [P.M.] upside down
by his underwear while [P.M.] was crying and pleading” to be put down. The report also
stated father hit S.M. in the face with the back of his hand. The county opened a family
assessment, but mother denied domestic violence, and the family refused services.
S.M. testified to other instances of father’s abuse. When S.M. was nine or ten, father
slapped her across the face after she “got water on his feet.” S.M. also testified that father
abused mother by grabbing her hair and hitting her while the family was in the car together.
And S.M. testified that, before November 2020, father slammed P.M. into the living-room
floor. S.M. also testified about her attempted suicide in 2018 and her later therapy and
diagnoses of depression, anxiety, and post-traumatic stress disorder (PTSD). S.M. testified
that when father is home, she does not feel safe, and she is afraid father will kill her and
mother. The district court found S.M.’s testimony “credible and compelling.”
Mother testified that during the 2016 domestic assault, father “took [mother] to the
ground.” Mother regrets recanting her statements about the 2016 assault. Mother described
father’s repeated abusive conduct toward the children, saying that father throws things and
yells, she “walk[s] on eggshells” when father is around, and everyone in the family fears
father. Mother testified that E.T. was diagnosed with speech apraxia, which father holds
against E.T. because, as the district court found, father “does not like handicaps.” Father
calls E.T. a “retard” to her face. Father told S.M. she “should have been successful in her
suicide attempt, but she was weak.” Mother also described an incident when A.T. wet the
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bed, and father yelled at A.T. and made her change the sheets. Mother testified that she
herself is in therapy. The district court found mother’s testimony credible.
S.M. made two audio recordings of father abusing the joint children and S.M. The
district court received both recordings into evidence during the termination trial. In the
January 2021 recording, E.T. is heard screaming and crying as father repeatedly calls her
a “retard.” E.T. also yells, “Get off me.” S.M. testified that, during this recording, father
“slammed [E.T.’s] head into the couch.” In the February 2021 recording, father is heard
verbally abusing the children. Also, D.T. tells father, “Stop beating me.” Mother says that
father “don’t need” to “whoop[]” D.T. “for everything” because she is two years old.
Throughout both recordings, father repeatedly accosts the children in profanity-laced
tirades. Father also threatens the children with physical assault: “[S]omeone” should take
S.M.’s “head” and “smash it into the f---ing floor” and “take a f--- ing fist and punch it
down her f---ing throat.” Father states that the children were slapped in the face “once
before,” and “it will happen a different way the second time.”
The social worker testified that mother’s recantation of her statements describing
the 2016 assault was not an “uncommon reaction” and “very common” among
domestic-assault victims. The social worker explained that “a majority of the time
[domestic-assault victims] go back to their abuser and they defend that individual to the
end.”
The social worker also testified that in response to the district court’s order requiring
the county to explore services for father, she suggested father meet with a mental-health
provider and complete a diagnostic assessment. The social worker provided father with
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“three different resources that he could schedule a diagnostic assessment with.” The social
worker added that father never followed up “to [her] knowledge.”2 The social worker also
testified that the joint children love father, but he cannot meet their “day-to- day mental
health needs, and he will not be able to meet those needs in the foreseeable future.” A.T.
and E.T. are in therapy for post-traumatic stress disorder, and the therapist recommends
they have no contact with father.
Russell provided expert testimony about psychological maltreatment and stated that
name-calling, belittling comments, and other verbal attacks degrade a child’s self-worth
and can cause long-term harm. Russell explained that observing domestic violence causes
psychological harm whether the violence is physical or psychological. Russell also testified
that adverse childhood experiences, such as maltreatment and trauma, can have significant
physical consequences, such as a shorter life span. A parent who engages in psychological
maltreatment is difficult to treat because it is necessary to change thought patterns, not just
behavior. Russell added that there is no known effective treatment for this type of abuser.
Based in part on the recordings, Russell testified that father’s language and threats
“went beyond poor parenting” but added that she “did not have enough information” to
offer the opinion it was psychological maltreatment.3 Russell testified that father’s conduct

2 As mentioned above, the district court’s order relieved the county of providing services
to father. Still, the social worker testified about the services provided to the family. These
services included referrals for mental-health assessments, working with domestic-violence
services to obtain new housing and assistance in paying bills, therapy for the children, and
check-ins with teachers at the children’s schools.

3 As detailed below, the district court summarized Russell’s testimony, which it found
“credible and persuasive.” The district court observed that Russell “did not hear the
8
in the recordings “fits with a pattern of psychological maltreatment.” Russell stated that
father’s belittling of suicidal ideation, demeaning comments, and harmful threats, if long
term, “can be psychological maltreatment.” Russell opined that the joint children “are not
in a positive, safe, secure environment.”
The GAL testified that, at first, she did not know whether terminating father’s
parental rights was appropriate. The GAL met with the joint children four to five times,
and based on those meetings and the evidence at trial, she concluded the joint children “are
better off with no contact with father.” The GAL acknowledged that separation from a
parent is harmful to a child but also that the benefits of separation outweigh the harm to
the joint children. The GAL testified the joint children never asked to see father during
their meetings.
The district court issued findings of fact, conclusions of law and an order, dated
September 9, 2021, determining three statutory grounds existed for terminating father’s
parental rights to the joint children. First, the district court concluded father is “palpably
unfit to be a party to the parent and child relationship because of his pattern of verbal abuse,
threats of violence, physical violence, and psychological maltreatment of [the joint]
children in his care.” The district court found father’s anger and violent conduct toward the
family led to “significant psychological harm,” the joint children and mother needed

testimony of mother or [S.M.] in which they detailed other instances of abusive conduct by
father.” The district court added that “ongoing and pervasive conduct” such as father’s
conduct in the recordings “would constitute psychological maltreatment.”
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therapy, and “[t]here is no effective treatment for father’s behavior, and even if there were,
father has shown no interest in seeking any help.”
Second, the district court determined the joint children “have experienced egregious
harm in father’s care which is of a nature, duration, and chronicity as to indicate a lack of
regard for the [joint] children’s well-being.” Based on S.M.’s testimony, the district court
found father had assaulted and maliciously punished S.M. and used “unreasonable force”
against S.M., P.M., and D.T. The district court concluded father’s behavior “constitutes
third-degree assault by a perpetrator who has engaged in past patterns of child abuse against
the minor victim.”
Third, the district court determined that termination of father’s parental rights was
appropriate “on the grounds that father has failed to comply with the duties imposed by the
parent-child relationship.” The district court relied on its factual findings showing father’s
palpable unfitness to parent and the egregious harm the joint children experienced in his
care. The district court found father lacked interest in pursuing treatment and failed to
follow up on opportunities to get services.
The district court determined that termination is in the joint children’s best interests
for three reasons: (1) “the [joint] children in this case have not expressed any further
interest in maintaining a parent-child relationship with father”; (2) “[f]ather did not present
any evidence to show he has an interest in maintaining a parent-child relationship,” and the
evidence “shows he resents the children as a financial burden”; and (3) the joint children’s
interest in maintaining a relationship with father is “substantially outweighed by the
competing interest the children have in living in a home free from physical and emotional
10
abuse.” For the reasons summarized, the district court terminated father’s parental rights
to A.T., E.T., and D.T.
Father appeals.
DECISION
Parental rights should be terminated only “for grave and weighty reasons.” In re
Welfare of H.G.B. , 306 N.W.2d 821, 825 (Minn. 1981). Appellate courts will affirm the
district court’s decision to terminate parental rights when (1) “at least one statutory ground
for termination is supported by clear and convincing evidence,” (2) “the county has made
reasonable efforts to reunite the family,” and (3) “termination is in the best interests of the
child.” In re Welfare of Child. of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). Appellate
courts “give considerable deference to the district court’s decision to terminate parental
rights.” Id. In part, this deference is based on the district court’s “superior position to assess
the credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).
For factual findings, appellate courts review whether the district court’s findings
“address the statutory criteria” for termination. In re Welfare of D.D.G., 558 N.W.2d 481,
484 (Minn. 1997); accord In re Welfare of Child. of T.R., 750 N.W.2d 656, 660-61 (Minn.
2008) (applying this standard on appeal from an involuntary TPR). Appellate courts
examine the “sufficiency of the evidence to determine whether it was clear and
convincing.” S.E.P., 744 N.W.2d at 385.
Appellate courts also review the district court’s factual findings for clear error. In
re Welfare of Child. of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), rev. denied (Minn.
Jan. 6, 2012). This means “we view the evidence in a light favorable to the findings. We
11
will not conclude that a factfinder clearly erred unless, on the entire evidence, we are left
with a definite and firm conviction that a mistake has been committed.” In re Civ.
Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (quotation and citation
omitted). We must “fully and fairly consider the evidence, but so far only as is necessary”
to determine whether the evidence reasonably tends to support the findings. Id. at 223
(quotation omitted).
Father argues (1) the record is insufficient to support the district court’s
determination that father is palpably unfit to parent; (2) the district court erred in
determining that termination of his parental rights is in the best interests of the joint
children; and (3) father’s trial counsel provided ineffective assistance that contributed to
father’s parental rights being terminated. We address each argument in turn.
I. The evidence is sufficient to support the district court ’s determination that
father is palpably unfit to parent.

A district court may terminate parental rights if it finds the parent is “palpably unfit
to be a party to the parent and child relationship.” Minn. Stat. § 260C.301, subd. 1(b)(4).
To meet its burden under this subdivision, “the county must prove a consistent pattern of
specific conduct or specific conditions existing at the time of the hearing that, it appears,
will continue for a prolonged, indefinite period and that are permanently detrimental to the
welfare of the child.” T.R., 750 N.W.2d at 661.
While the county accurately points out that father’s brief to this court directly
challenges only the statutory ground of palpable unfitness, we decline to determine that
father has forfeited his challenge to the other statutory grounds. Father’s arguments
12
implicitly challenge what he contends are insufficiencies in the evidence supporting
findings relevant to each of the three statutory grounds for termination.
Father makes three arguments. First, he contends the “evidence presented to the
District Court fails to establish that the statements made by [father] prevented the ongoing
physical, mental, or emotional needs of the child.” Second, father contends that no evidence
suggests that he caused the PTSD diagnosed for A.T. and E.T, “that [he] would be unable
to stop the statements made to the children,” or that he would fail to “continue the services
put in place.” Third, father argues that the evidence focused on the two older children and
not the joint children.
Our review of the record leads us to reject each of father’s arguments. The district
court found that “[f]ather’s inability to control his anger and his directing his anger at
children as young as two years of age has resulted in significant psychological harm to the
[joint] children.” The district court based this finding on evidence that A.T. and E.T. saw
father assaulting mother, that they saw father physically abusing P.M. and S.M, and that
father verbally and physically abused D.T., E.T., and S.M. The district court also found
that father’s “anger became worse” after his concussion in December 2020. The district
court found the recordings from January and February 2021 showed father’s pattern of
abusive behavior. A.T.’s bedwetting increased in father’s presence, which Russell testified
could result from adverse childhood experiences. Together, these findings support the
district court’s determination that father’s specific abusive behaviors harmed each of the
three joint children over a prolonged time.
13
The district court found expert Russell’s testimony credible on domestic violence.
Russell explained that children are traumatized both by experiencing abuse and by
observing abuse in their family. While the district court reasoned that Russell “did not have
enough information to say [father’s behavior] constituted psychological maltreatment,”
Russell agreed that the recordings of father’s conduct “fit into the behavioral characteristics
that [she] see[s] in a parent of psychological maltreatment.” Russell clarified that if the
behavior exhibited in the recordings happened repeatedly, then father’s behavior could be
psychological maltreatment. Based on this testimony, the district court found that father
psychologically maltreated the joint children. The same evidence supports the district
court’s finding that father’s abusive behavior led to A.T. and E.T. being treated for PTSD.
We are not persuaded by father’s argument that there is no evidence that he is unable
to “stop the statements made to the children” or that he would discontinue the services in
place. First, stopping “the statements” gravely understates father’s pattern of abusive
conduct. F ather’s behavior goes beyond verbal abuse and include s many instances of
physical abuse against the children and mother. Second, the record establishes that the
family declined services in 2018. While the county was relieved of the duty to rehabilitate
father in April 2021 based on the district court’s finding of egregious harm, the county
suggested services, with which father failed to follow through. Russell’s expert testimony
also established that treatment is, at a minimum, very difficult for a parent who engages in
psychological maltreatment. Thus, record evidence supports the district court’s
determination that father’s abusive behavior toward the joint children would continue for
a prolonged, indefinite period.
14
Lastly, father argues that the district court’s “focus seemed to be on the non-joint
minor child[ren] that lived in [father’s] home.” Father’s argument ignores Russell’s
testimony about the long-term traumatic harm caused by observing domestic violence.
Also, the district court made specific findings about each of the joint children. The
recordings show father verbally abused E.T. and D.T. in the presence of each other and of
A.T., who was diagnosed with PTSD. Russell also testified that A.T.’s increased
bedwetting in father’s presence could relate to adverse childhood experiences. The record
also contains many examples of father’s abuse toward mother, S.M., and P.M. in the
presence of the joint children. Thus, the district court made sufficient findings to establish
father’s palpable unfitness to parent the joint children.
The district court’s finding of palpable unfitness is supported by record evidence
showing a specific pattern of conduct that harms the welfare of the joint children. The
district court, therefore, did not abuse its discretion in determining that father’s palpable
unfitness warranted terminating father’s parental rights. Because we sustain one statutory
ground for terminating father’s parental rights, we need not address the remaining grounds
found by the district court. See S.E.P., 744 N.W.2d at 385.
II. The district court did not abuse its discretion by determining that termination
of father’s parental rights is in the joint children’s best interests.

A district court “must consider the child’s best interests and explain why termination
is in the best interests of the child.” In re Welfare of Child of D.L.D., 771 N.W.2d 538, 545
(Minn. App. 2009); see also Minn. Stat. § 260C.301, subds. 1(b), 7 (2020). The district
court must consider (1) the child’s interest in maintaining the relationship, (2) the parent’s
15
interest in preserving the relationship, and (3) “any competing interests of the child.” In re
Welfare of Child of J.K.T., 814 N.W.2d 76, 92 (Minn. App. 2012). But “the best interests
of the child must be the paramount consideration.” Minn. Stat § 260C.301, subd. 7.
“[D]etermination of a child’s best interests ‘is generally not susceptible to an
appellate court’s global review of a record,’ and . . . ‘an appellate court’s combing through
the record to determine best interests is inappropriate because it involves credibility
determinations.’” D.L.D., 771 N.W.2d at 546 (quoting In re Tanghe, 672 N.W.2d 623, 625
(Minn. App. 2003)). Appellate courts “apply an abuse-of-discretion standard of review to
a district court’s conclusion that termination of parental rights is in a child’s best interests.”
In re Welfare of Child of A.M.C., 920 N.W.2d 648, 657 (Minn. App. 2018).
Father argues the district court abused its discretion because the district court
“glazed over the three required factors for best interest.” The county argues that the district
court’s findings were supported by substantial evidence and that the district court did not
abuse its discretion.
The district court made specific findings about each of the three required factors.
First, the district court found that GAL and expert testimony established that the joint
children have an interest in maintaining a relationship with father and that termination of
parental rights is traumatic for a child. However, the district court found that the joint
children “have not expressed any further interest in maintaining a parent-child relationship
with father.” In making this finding, the district court relied on the GAL’s testimony that
the children “never expressed a desire to see father” during her visits with them.
16
Second, the district court found that “[f]ather did not present any evidence to show
he has an interest in maintaining a parent-child relationship.” The district court also found
that father “resents the children as a financial burden.” The record supports the district
court’s findings on this factor. Fa ther can be heard in the January and February 2021
recordings complaining about the children’s lack of appreciation for his financial support.
The social worker also testified that father “had concerns about not seeing his children”
but did not follow up on any of the services provided that may have allowed him to continue
to see his children.
Third, the district court found that the children’s competing interest “in living in a
home free from physical and emotional abuse” was substantial. This finding is supported
by Russell’s expert testimony that the children were not in “a positive, safe, secure
environment” with father. Russell also testified that father’s belittling, demeaning, and
denigrating manner of addressing the children can “negatively impact a child short term
and long term.” The GAL testified that terminating father’s parental rights was in the
children’s best interests because “the damage that could be done by continued contact with
[father] would be far worse than severing that relationship.”
In conclusion, the district court properly considered all three factors to determine
the children’s best interests and relied on record evidence when weighing those factors.
Thus, the district court did not abuse its discretion in concluding that termination of father’s
parental rights is in the children’s best interests.
17
III. Even if we consider father’s ineffective-assistance-of-counsel claim, it fails.
Parents have “the right to effective assistance of counsel in connection with a
proceeding in juvenile court.” Minn. Stat. § 260C.163, subd. 3(a) ( 2020). Father argues
that his trial counsel was “ineffective and contributed to [his] parental rights being
terminated.” The county contends that this issue is improperly raised for the first time on
appeal and that, if the issue is considered, father’s claim fails because his trial counsel was
reasonably effective, and it is not reasonably likely the result would have been different.
We recognize that father’s appeal reflects some procedural irregularities. The
district court allowed father’s trial counsel to withdraw following the termination order.
Father’s appeal was untimely because it was not filed within the 20-day appeal period, and
this court dismissed the appeal. The supreme court granted father’s petition for further
review, which claimed he did not receive notice of the district court’s termination order.
The supreme court vacated our order dismissing father’s appeal and reinstated the appeal,
allowing it to proceed in the “interest of justice.”
Still, the county is correct that father raises ineffective assistance of trial counsel for
the first time on appeal instead of in a posttrial motion. Generally, this court does not
consider issues raised for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). In particular, ineffective-assistance claims often require supplemental
evidentiary hearings. See Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016).
Even if we consider father’s claim of ineffective assistance, he fails to make the
necessary showings. To succeed on an ineffective-assistance-of- counsel claim, father
“must show that [1] trial counsel was not reasonably effective and [2] that there is a
18
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn.
App. 1987) (quotation omitted) (appeal from adjudication of delinquency). “We r eview a
claim of ineffective assistance of counsel de novo.” In re Civ. Commitment of Johnson,
931 N.W.2d 649, 657 (Minn. App. 2019) (appeal from civil commitment).
To begin, our review of the transcript shows father’s trial counsel was reasonably
effective. On cross -examination, father’s counsel challenged the county’s case by
questioning mother’s credibility because she admitted recanting her 2016 abuse
allegations; by questioning S.M., who admitted she deleted some recordings of father; and
by questioning Russell, who conceded that she could not conclude that psychological
maltreatment of the children had occurred.
Father’s brief to this court makes narrow arguments about his trial counsel’s
ineffectiveness. First, father argues that his trial counsel failed to present evidence to “rebut
the presumption of unfitness.” Father’s argument misses the mark; the district court did not
rely on a presumption of unfitness. Second, father contends that by not calling witnesses,
his trial counsel failed to “establish[] his interest in maintaining a parent- child
relationship.” Which witnesses to call at trial is a matter of trial strategy. State v. Vick,
632 N.W.2d 676, 689 (Minn. 2001). Attacks on trial strategy do not establish ineffective
assistance. Johnson, 931 N.W.2d at 657. While father was not called as a witness, the
county points out that father’s trial counsel appears to have made a strategic choice not to
call father. At the time of the termination trial, father was facing criminal charges, and his
testimony in the termination trial could have been used in criminal proceedings. Further, if
19
father testified and asserted his right to remain silent, the district court could have draw n
an adverse inference against father. In re Welfare of J.W., 391 N.W.2d 791, 793-95 (Minn.
1986).
Even if we assume father had other evidence demonstrating his commitment to the
parent-child relationship, he fails to show a reasonable probability that evidence would
have led to a different result. The district court determined the children had a competing
interest in “living in a home free from physical and emotional abuse.” Indeed, the district
court did not conclude that father had no interest in maintaining the parent-child
relationship. Rather, the district court found that “[a]ny interest the children and father have
in maintaining a parent-child relationship is substantially outweighed by the [children’s]
competing interests.”
In conclusion, father fails to show that his counsel was not reasonably effective or,
if we assume trial counsel’s ineffectiveness on the narrow grounds raised by father, that
there is a reasonable probability effective counsel would have led to a different result.
Affirmed.