Supreme Court Justices Margaret Chutich, G. Barry Anderson and Chief Justice Lorie Gildea heard In Re the Matter of the Welfare of the Child of: K.K. and K.M.R. arguments on Aug.10. (Image courtesy Judicial Branch.)


Supreme Court: Child’s best interests govern cross-examination


A court may fashion an informal way to take a child’s testimony in a termination of parental rights case and may excuse a parent from attending, the Minnesota Supreme Court ruled Sept. 29 in a unanimous opinion.

But the court may not exclude the parent’s attorney when the testimony is given, the court continued in In Re the Matter of the Welfare of the Child of: K.K. and K.M.R.

Chief Justice Lorie Gildea also wrote for the court that the parent has a right to cross-examine, but the procedure for doing so must be guided by the child’s best interest.

But the ruling stopped short of requiring a new trial in the case, in light of the clear and convincing evidence supporting the District Court’s decision to terminate parental rights.

The Winona County District Court granted the termination and the Court of Appeals affirmed, holding it was not error to exclude the parents or attorney. But if it were, the Court of Appeals said, the error did not require a new trial in view of the overwhelming evidence supporting the petition.

Oral argument at the Supreme Court revealed the justices’ discomfort that a hearing did not include the mother’s attorney. (The father appeared pro se.) As Session/Law reported on Aug. 11, the court issued a TPR immediately after the argument, with this opinion to come later.

The justices were clearly displeased at that time when they were told that the practice of excluding attorneys was common in the state. They did not agree that the various courts had that authority.

Attorney not excused
Supreme Court Chief Justice Lorie Gildea

Supreme Court Chief Justice Lorie Gildea

The court confined its review to the facts surrounding the child’s testimony, not the factual basis for the termination. The Court of Appeals previously noted that the evidence was overwhelming.

When it came to the child’s testimony, only the judge, court reporter and guardian ad litem were present or listening. After the testimony, the parents did not request follow-up questions or a transcript. They did not question the guardian ad litem. They did not assert the violation of a specific constitutional right.

“[W]e do not endorse the suggestion that parents can stand by silently without pursing other options,” the court said in a footnote.

The parties agreed that Minn. Stat. § 260C.163 allows the court to take testimony informally. The Supreme Court said the question is how to balance the child’s best interests—the paramount consideration—with the parent’s right to participate and cross-examine witnesses.

Section 260C.163 gives a parent the right to participate in a proceeding, but also authorizes the District Court to excuse the presence of a parent from a hearing.

“By using different words, the Legislature signaled that a parent’s right to ‘participate’ in the proceedings can be narrowed when circumstances require excluding the parent’s physical presence at a particular hearing,” the court said.

The parents were involved in the hearing and the trial court was allowed by statute to authorize their absence during the child’s testimony because they had no statutory right to be present.

But the mother’s lawyer did because nothing in the statute suggests that the attorney for a party can be excused from a hearing. The Legislature only identified specific parties that could be excused but not attorneys, the court said.

Additionally, the statute does not mean that an attorney or guardian, but not both, may be present for the child’s testimony. Instead, the statute means that an attorney representing the excluded party may attend the testimony, Gildea wrote.

The court then said that the procedures used did not vindicate the parents’ statutory right to cross-examine. First, the statute clearly states that the parents have the right to cross-examine witnesses and the procedure used by the trial court imposed a limitation, Gildea wrote.

Second, nothing in the statue suggests that the statutory right can be constrained to the point of excusing the testifying witness from cross-examination, the court continued.

Third, Gildea wrote, “the guardian ad litem is not an adequate stand-in for cross-examining a child who testifies.”


Child’s best interests

The court went on to say that the procedures suggested in Section 260C.163, subd. 6, to serve the child’s best interests by allowing parents the right to cross-examine, are not an exhaustive list. Other procedures could include keeping the attorney in the courtroom, providing parents with an expedited transcript and other case-specific steps. All must be consistent with a child’s best interests.

“While we conclude that the procedure used here did not fully vindicate the parents’ statutory right to cross-examination, we have no doubt that the child’s best interests were front and center for the district court in this case,” the court noted.

But the court did not order a new trial in view of the child’s refusal to see his parents and his statement that he did not want to return to them, the parent’s lack of—or very limited—cooperation with the case plan, and the over 20 witnesses at the trial.

  Session/Law logo by Kirk Anderson