In the Matter of the Welfare of: R.J.A., K.L.S., and M.E.M., Minor Children.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

In the Matter of the Welfare of:

R.J.A., K.L.S., and M.E.M.,

Minor Children.

Filed March 7, 2000

Chisago County District Court

File No. J79850871

Allen P. Eskens, 3 Civic Center Plaza, Suite 207, P.O. Box 3412, Mankato, MN 56002-3412 (for appellant mother)

James Reuter, Chisago County Attorney, Alfred S. Alliegro, Assistant County Attorney, 313 North Main Street, Room 373, Center City, MN 55012 (for respondent State of Minnesota, County of Chisago)

Peter J. Grundhoefer, P.O. Box 217, Center City, MN 55012 (for children)

            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

ANDERSON, Judge

            Appellant mother appeals from the trial court's order terminating parental rights to three of her four children.  On appeal, she contends the trial court erred in refusing to exclude evidence secured by respondent county's violation of the Minnesota Governmental Data Practices Act. Because appellant was not prejudiced by the court's refusal to exclude the evidence, we affirm.

FACTS

            Appellant is the mother of four children: N.A.M. (DOB 6/3/84), M.E.M. (DOB 2/21/89), K.L.S. (DOB 1/26/90), and R.J.A. (DOB 11/14/91).  In 1996, appellant contacted respondent Chisago County requesting social services for her oldest son, N.A.M.  Over the next year, the county had numerous contacts with appellant.  Those contacts related not only to N.A.M.'s behavior but also to the overall environment in the household.  During that period, the county made assessments and the record reflects that appellant was given a Tennessen warning setting forth her rights with respect to information she provided on three different occasions.[1]  The county did not take any further action during this period.

            Early in 1997, appellant moved to Ramsey County, where she had lived from at least 1989 through 1995.  During the early 1990's, Ramsey County Human Services had extensive contact with the family.  Ramsey County was concerned with N.A.M.'s behavior and appellant's abilities as a parent.  In 1997, Ramsey County again became involved with the family.  Again, the concerns were N.A.M.'s behavior and appellant's care of the children.

Late in 1997, appellant returned to Chisago County.  After receiving reports that appellant's children had been sent home from school for head lice, Chisago County resumed contact with the family.  Lynn Hansen, a child protection assessment worker, made visits to the residence on December 3, 4, and 8, 1997.  During those visits, Hansen spoke with appellant and her children, but never gave a Tennessen warning.  Hansen also made a number of visual observations.  During the December 8 visit, appellant was angry, agitated, and eventually became hysterical.  Accordingly, she was taken to jail and placed on a mental health hold.  M.E.M., K.L.S., and R.J.A. were removed from the home and a child in need of protection or services petition was filed.[2]

Over the next year, Chisago County made efforts to reunify the family, but those efforts were generally unsuccessful, largely due to appellant's lack of cooperation.  Eventually, Chisago County filed a petition to terminate appellant's parental rights to M.E.M., K.L.S., and R.J.A.

Appellant moved to dismiss the termination petition or to exclude evidence, based on Hansen's failure to administer Tennessen warnings.  The trial court denied the motion to dismiss.  As for the motion to exclude evidence, the court did not exclude any trial testimony on the grounds that a Tennessen warning had not been given, but indicated that it would not consider any evidence discovered in violation of the warning requirement.

At trial, numerous witnesses testified, including Hansen, psychologist Gail Welling, Ramsey County child protection worker Donna Hernandez, Sergeant Todd Rivard of the Chisago County Sheriff's Office, Chisago County child protection social worker Sandra Houston, psychologist Robert Kipley, guardian ad litem Shellene Johnson, and appellant.  The trial court concluded that appellant's parental rights to R.J.A., K.L.S. and M.E.M. should be terminated under Minn. Stat. § 260.221, subd. 1 , clauses (2), (5), and (8) (1998). 

D E C I S I O N

Under the Minnesota Governmental Data Practices Act, when a state agency asks an individual to supply private or confidential facts, the agency must disclose certain information.  Minn. Stat. § 13.04, subd. 2 (1998).  Specifically, in what is referred to as a Tennessen warning, the individual must be informed of

(a) the purpose and intended use of the requested data * * *; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data. 

Id.  There is no dispute that Lynn Hansen failed to provide the Tennessen warning on the occasions she interviewed appellant and her children in December 1997.  Appellant contends that the trial court's failure to exclude the evidence from those interviews was reversible error.

            The Minnesota Governmental Data Practices Act provides civil remedies for violations of the Act.  Minn. Stat. § 13.08 (1996).  A person aggrieved by a violation of the act may seek damages.  Id., subd. 1.  Furthermore,

[a] political subdivision, responsible authority, statewide system or state agency which violates or proposes to violate this chapter may be enjoined by the district court.

Id., subd. 2. 

This case raises the previously undecided question of whether the preceding language in particular, or the Act in general, contains an exclusionary rule for data collected in violation of the Tennessen warning requirements; and, if the statute provides for the exclusion of evidence, whether and to what extent the trial court has discretion in admitting wrongfully obtained evidence.  We decline to decide those issues today, however, because any error committed by the trial court in failing to exclude evidence was harmless.

            The trial court's failure to exclude the evidence was an evidentiary ruling and appellant is not entitled to a new trial unless she can demonstrate she was prejudiced by the error.  See In re Welfare of D.J.N., 568 N.W.2d 170, 174 (Minn. App. 1997).  Appellant has failed to show that any error by the trial court was prejudicial.  The trial court's decision to terminate appellant's parental rights is supported by 52 findings of fact.  Appellant does not identify one finding of fact that is premised on private or confidential information provided by appellant on any of the three occasions in which the Tennessen warning was not given.  In fact, a careful comparison of Hansen's testimony, her report, all of the other evidence, and the factual findings reveals that not one of the factual findings is based on evidence elicited by Hansen in violation of the Tennessen warning requirements.  Moreover, we are convinced the unchallenged evidence is sufficient to support the trial court's decision to terminate appellant's parental rights.  Accordingly, any error in admitting the evidence was not prejudicial in the context of the decision to terminate appellant's parental rights.

Affirmed.

            [1]  The term "Tennessen warning" is used to describe the Minnesota Governmental Data Practices Act procedure, Minn. Stat. § 13.04, which requires government officials seeking private or confidential data from private citizens to warn those individuals of their rights and responsibilities with respect to providing the requested information.  See Edina Educ. Ass'n v. Board of Educ. of Indep. Sch. Dist. No. 273, 562 N.W.2d 306, 311 (Minn. App. 1997), review denied (Minn. June 11, 1997).

            [2]   By this time, N.A.M. had been placed in foster care in Ramsey County.