The Free Press, Mankato, MN

October 10, 2013

Attorneys argue Hauer case before the Court of Appeals

Judges quiz county attorney about whether abuse was egregious

By Dan Nienaber
dnienaber@mankatofreepress.com

---- — ST. PAUL — A boy taken from his North Mankato parents was clearly starving and in poor health when he was finally taken to a hospital just over a year ago, but three Minnesota Court of Appeals judges will now decide whether the harm done was so horrendous that the couple's three other children should be removed from their home.

Nicollet County Attorney Michelle Zehnder Fischer argued in favor of that during oral arguments Thursday before appeals court judges John P. Smith, Matthew E. Johnson and David Minge. It wasn't an easy job, as Johnson pointed out, because there is no case law (previously published opinions) that address parental rights being taken away for not adequately feeding a child.

After a trial earlier this year, Nicollet County District Court Judge Todd Westphal ruled in April that the adopted boy, who is now 9 years old, should be permanently removed from the home of Russell and Mona Hauer. His ruling also allowed the couple's three other children to stay with them under county supervision. Their oldest child is their biological child and the two other children are the younger siblings of the boy who has been removed from their home.

Fischer appealed the ruling, arguing that the harm done to the boy was so egregious that all of the children should be removed. A portion of the state statute that addresses the termination of parental rights says that if any child in the home experiences "egregious harm" and that harm shows a lack of regard for the child by a parent, no children should be allowed to live with that parent.

Fischer also said Westphal found that the other children were the victims of emotional harm, so they also should be removed from the Hauer home for that reason.

"My point is this isn't a case where one child was beaten and the other children weren't," Fischer said after the hearing. "Here, the judge made findings that the other children were emotionally harmed. If the court is troubled by the fact that he is a targeted child, I wanted to show that they did suffer emotional harm."

Johnson pointed out that Westphal's ruling said he wasn't sure if the boy's eating problem was the result of a lack of food or if it had been caused by something else. Fischer said that didn't matter because the Hauers didn't get the boy any help even though there were clear signs he was ill. He was eventually taken to the hospital because Mona Hauer thought he was coughing up blood. At that point he was so malnourished his body could no longer process food. It turned out the red on the boy's shirt was from a frozen treat, however.

Fischer told the judges that the boy's situation wasn't any different than being beaten.

"Being starved to the point that when your body is given food it shuts down, I submit that child was suffering pain every day," she said.

The attorney for the Hauers, Jason Kohlmeyer, argued against Fischer's appeal. He also filed a counter appeal arguing that the boy who was removed from the house should be returned.

There isn't any evidence of egregious harm because the Hauers did what they could once they realized there was a problem, Kohlmeyer said. He said several witnesses called to testify during the trial were mandatory reporters, meaning they are required to report child abuse if they suspect it is taking place. No one made a report. Although the Hauers didn't ever bring the child to a medical doctor, they did seek help from a chiropractor and a dentist, he said.

"The child had some eating issues and they did what they could with that," Kohlmeyer said during his oral arguments. "Nobody did anything except the parents. When it came to a point that they had to do something, they did."

Kohlmeyer also pointed out that there is no case law that addresses a child being egregiously abused through starvation. He said the evidence that suggests the Hauers went out of their way to keep the boy from eating, such as putting an alarm on his bedroom door and having the other children watch him, isn't what it appears to be. Those actions were taken because the boy had been eating garbage and raw hamburger, he said.

The three judges will consider the arguments, review the court record and issue a ruling. The Hauers are scheduled to go to trial for criminal charges that were filed by Fischer as a result of the alleged abuse. Mona Hauer's trial is scheduled to start Oct. 21 and Russell Hauer's trial is scheduled to start Nov. 14.