In the Matter of the Child of: Charlesetta Jackson, Parent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-524

 

In the Matter of the Child of:

 

Charlesetta Jackson,

Parent.

 

Filed November 18, 2003

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. J0-02-062465, FAM ID No. 226369

 

 

Leonardo Castro, Hennepin County Public Defender, Melissa Haley, Assistant County Public Defender, Suite 200, 317 - 2nd Avenue South, Minneapolis, MN 55401 (for appellant Charlesetta Jackson)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent Hennepin County Children, Family and Adult Services Department)

 

Jonathan G. Steinberg, 1155 Grain Exchange East Building, 412 South 4th Street, P.O. Box 15085, Minneapolis, MN 55415-0085 (for Guardian Ad Litem Judith Cook)

 

            Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from the termination of her parental rights, Charlesetta Jackson challenges the admission of documents and reports under the business-records exception to the hearsay rule, Minn. R. Evid. 803(6), and the sufficiency of the evidence to meet the statutory requirements for termination.  The seven admissible documents, together with testimony from a social worker, therapist, and guardian ad litem, support the district court's holding that the county clearly and convincingly demonstrated that three separate statutory grounds exist for terminating Jackson's parental rights to Z.A.

F A C T S

           

The district court twice adjudicated Charlesetta Jackson's child Z.A. and Jackson's older child J.J. as children in need of protection or services (CHIPS).  The first adjudication in February 2000 was based on stipulated evidence that Jackson physically abused the older child.  The second adjudication in April 2002 was based on Jackson's chemical-dependency issues interfering with her ability to parent, her mental-health issues that required evaluation and possible treatment, and her failure to comply with the case plan established in the first CHIPS proceeding.

As part of the second CHIPS adjudication, the court ordered Jackson to comply with a case plan that included random urinalysis (with a missed urinalysis counting as positive), a Rule 25 chemical dependency assessment and compliance with recommendations, a mental health evaluation and compliance with recommendations, a parenting assessment and compliance with recommendations, compliance with probation, cooperation with the Child, Family and Adult Services Department, and a developmental assessment of Z.A.

The second adjudication also transferred Z.A.'s legal custody to the Hennepin County Children, Family, and Adult Services Department.  At the time of this transfer, Z.A. had been in out-of-home foster placement for two months.

Approximately three months after the second adjudication, the county filed a petition to terminate Jackson's parental rights to Z.A.  Jackson contested the petition.  The county presented testimony from three witnesses to support the petition:  the Hennepin County child protection social worker assigned to Jackson's case, a therapist from Recovery Resource Center, and the guardian ad litem.  Jackson testified on her own behalf.

As part of its case the county offered eight documents from the child-protection file into evidence:  two Hennepin County chemical-health assessments, a Park Avenue Center Women's Residential Program discharge summary, a Hennepin County chemical-health-services interview, an African American Family Services outpatient-treatment-program discharge summary, a Ramsey County Adult Corrections psychological evaluation from a probation-violation proceeding, and two urinalysis results.

Jackson's counsel specifically objected to the county's introduction of the outpatient-treatment discharge, the psychological evaluation from the Ramsey County probation violation, one of the Hennepin County health assessments, and the urinalysis results.  The objection was based on hearsay and lack of foundation because the documents had not been personally prepared by the social worker who testified.  The court admitted all eight documents into evidence.  At the close of trial, Jackson's counsel made a blanket hearsay objection to all of the documents because the individuals who prepared the documents had not been present to testify.

Following the hearing, the district court ordered the termination of Jackson's parental rights to Z.A.  The court found that the evidence clearly and convincingly established that Jackson had substantial chemical-dependency and mental-health issues, that she had failed substantially to complete the requirements of her case plan, and that she had not addressed these issues in a manner that would permit her to parent Z.A. in the foreseeable future.  The court, without objection from Jackson, transferred permanent legal custody of the older child to that child's father. 

Citing evidentiary error, Jackson moved for a new trial.  The district court denied the motion, noting that Jackson's counsel had not objected to the admissibility of three of the documents during the hearing and concluding that the documents were properly admitted under the business-records exception to the hearsay rule.  The court also held that Jackson's due process rights were not violated by the admission of the documents and that the interests of justice did not require a new trial.  This appeal followed. 

D E C I S I O N I

Evidentiary rulings, including rulings on foundation, are within the district court's discretion and will only be reversed if the ruling is based on an error of law or an abuse of discretion.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).  "In the absence of some indication that the trial court exercised its discretion arbitrarily, capriciously, or contrary to legal usage, the appellate court is bound by the result."  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).

Jackson argues that the eight documents contained in the Hennepin County child-protection file were improperly admitted because the county social worker who provided the foundation for the documents did not personally prepare them and, therefore, the documents are not within the business-records exception to the hearsay rule, Minn. R. Evid. 803(6).  Although Jackson did not initially object to all of the reports she now challenges on appeal, we conclude that her right to appeal the admissibility of the documents was adequately preserved by her blanket objection at the conclusion of the proceedings and her posthearing motions.  Gruenhagen v. Larson, 310 Minn. 454, 457-58, 246 N.W.2d 565, 568 (Minn. 1976) (limiting appellate review of evidentiary challenges to those presented to district court).

The type of documents admitted during Jackson's hearing are recognized by statute as proper documents for the court to consider in termination-of-parental-rights cases.  Minn. Stat. § 260C.193, subd. 2 (2002), provides that before making a disposition of a case terminating parental rights, "the court may consider any report or recommendation made by the responsible social services agency, probation officer, licensed child-placing agency, foster parent, guardian ad litem, . . . or other authorized advocate for the child or child's family . . . or any other information deemed material by the court."

The Minnesota Rules of Evidence provide an exception to the hearsay rule for records "kept in the course of a regularly conducted business activity . . . if it was the regular practice of that business activity to make the . . . record . . . as shown by the testimony of the custodian or other qualified witness . . . ."  Minn. R. Evid. 803(6).  The common law basis for the business-records exception to the hearsay rule grew out of an accepted belief that business records are generally accurate and therefore form trustworthy evidence.  Chillstrom v. Trojan Seed Co., 242 Minn. 471, 484, 65 N.W.2d 888, 897 (1954).  The Minnesota Supreme Court provided guidance on the foundational standards for applying the business-records exception in National Tea Co. v. Tyler Refrigeration Co.,339 N.W.2d 59, 62 (Minn. 1983).  The courtheld that an engineer employed by defendant refrigeration company could be a qualified witness within the meaning of rule 803(6) and thus provide foundation for a report from an independent product-certification organization.  The court specifically stated that "one business entity may submit the records of another business entity to establish a proposition at trial."  Id. at 61-62(citing Swedish-Am. Nat'l Bank v. Chicago B. & Q. Ry., 96 Minn. 436, 105 N.W. 69 (1905)); see also A & L Coating Specialties Corp. v. Meyers Printing Co., 374 N.W.2d 202, 204 (Minn. App. 1985) (citing National Tea for the proposition that "the phrase ‘other qualified witness' should be interpreted broadly and the witness need only understand the system involved").

Jackson relies on In re Child of Simon, 662 N.W.2d 155 (Minn. App. 2003), to support her argument that the documents were inadmissible as business records because they were not personally prepared by the social worker who testified in court.  We do not read Simon as imposing a requirement that only the person who prepared a document is qualified to provide foundation for its introduction into evidence.  See Simon at 160 ("[r]ule 803(6) does not require the custodian of the record to testify").  Instead, Simon reflects a fundamental principle inherent in evidentiary decisionmaking:  that the decision whether or not to admit evidence is highly fact-specific and the factors necessary to establish foundation depend on the individual circumstances of each case.  See Benson v. N. Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990) (stating "we reiterate that by their very nature, evidentiary rules demand a case by case analysis . . .").

It is significant that under the standards of National Tea, the primary focus of the inquiry in deciding whether to admit documentary evidence is the fundamental trustworthiness of the document itself.  In this case, the only objection raised was that the social worker was not personally qualified to lay foundation for the exhibits.  Parallel to National Tea's recognition that one business may introduce reports made by another business, a social-services professional may be properly qualified to introduce business records of other agencies that were ordered by the district court to issue reports, and which were part of the file that he received when he took over the case.  See In re Welfare of Brown, 296 N.W.2d 430, 435 (Minn. 1980) (holding that medical and social workers' reports were properly received as business records insofar as they related to children's physical and emotional problems); see also Murray v. Antell, 361 N.W.2d 466, 469 (Minn. App. 1985) (holding that district court improperly excluded psychological reports prepared by individuals who were not present in court, when reports were prepared in regular course of business by qualified personnel who were conducting a team evaluation); In re Welfare of R.T., 364 N.W.2d 884, 886 (Minn. App. 1985) (holding, in dependency and neglect proceeding, that reports of social workers and psychologists relating to children's emotional condition were admissible under business records exception).

Allowing foundation to be established in this way does not violate standards of due process and fundamental fairness.  The rights to be heard, present evidence, and cross-examine witnesses form part of the general guarantees of due process.  In re the Welfare of J.W., 391 N.W.2d 791, 794 (Minn. 1986) (citing Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970)).  These rights are available in proceedings to terminate parental rights.  See Minn. Stat. § 260C.163, subd. 8 (2002); Minn. R. Juv. P. 57.02.  Nonetheless, we have noted that 

[i]t is an established element of trial court discretion in personal welfare cases to admit written materials as hearsay evidence, provided that the affected parties have an opportunity to dispute the material, either by calling the authors of those reports as witnesses or otherwise responding. 

 

In re the Welfare of D.J.N., 568 N.W.2d 170, 175 (Minn. App. 1997) (citing Stanford v. Stanford, 266 Minn. 250, 258, 123 N.W.2d 187, 192-93 (1963)).

From a due process perspective, Jackson has failed to establish that she was denied prior access to these reports, or the opportunity to subpoena and cross-examine the authors about their contents.  Cf. In re the Matter of J.K., 374 N.W.2d 463, 467 (Minn. App. 1985) (holding that when county knew that deposition of child psychiatrists, who testified to reports prepared by other persons, would be used at parental-rights-termination hearing, county should have provided reports to parents within a reasonable time before deposition so that appellants could question deponent psychiatrist fully), review denied (Minn. Nov. 25, 1985).  The record does not support a claim that the district court denied Jackson due process by admitting the records.

            Recognizing that the social worker can be a qualified person to provide foundation for the introduction of documentary evidence does not, however, eliminate the necessity of providing proper foundation.  The testimony provided by the Hennepin County social worker constituted adequate foundation for the Hennepin County records, the Park Avenue Center discharge summary, and the African American Family Services outpatient discharge.  But the psychological evaluation ordered by Ramsey County Adult Corrections as a result of Jackson's probation violation does not have adequate foundation.  The nature and genesis of the report is too far outside the scope of the professional competence of the social worker.  The record does not provide a basis for finding that the social worker was familiar with the purposes and procedures of this type of report, issued in a different county, and relating to a criminal proceeding.  This report was not ordered by the district court in the CHIPS or termination proceeding and was not generated by a member of the team working on or supervising Jackson's CHIPS case.  We conclude that as a matter of law the foundation to admit this report was insufficient.  Nonetheless, this error was harmless because the record contained ample evidence independently sufficient to terminate Jackson's parental rights.  See In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (concluding that admission of evidence in termination-of-parental-rights proceeding was harmless error), review denied (Minn. Mar. 29, 1995). 

II

Parental rights are terminated only for grave and weighty reasons.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  The district court may not terminate parental rights unless the party seeking termination presents clear and convincing evidence that at least one of the statutory bases for termination exists.  In re Welfare of Rosenbloom, 266 N.W.2d 888, 889-90 (Minn. 1978).  Minn. Stat. § 260C.301 (2002) requires that the district court make specific findings on the nature and extent of efforts to rehabilitate the parent and reunite the family.  This court on appeal determines whether the district court's findings address the statutory criteria, are supported by substantial evidence, and are not clearly erroneous.  M.D.O., 462 N.W.2d at 375. 

The district court concluded that three statutory grounds existed for terminating Jackson's parental rights:  substantial, continuous, or repeated refusal or neglect to comply with duties of the parent-child relationship; the failure of reasonable efforts to correct conditions that led to an out-of-home placement for the child; and the child's status as a neglected child in foster care.  See Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (8) (2002) (enumerating statutory grounds for terminating parental rights).  The district court also concluded that there was clear and convincing evidence that it was in the best interests of the child that parental rights be terminated.  See Minn. Stat. § 260C.301, subd. 7 (2002) (stating that in termination-of-parental-rights proceeding, "the best interests of the child must be the paramount consideration").

We reject Jackson's argument that the district court failed to make the required findings and that the record does not establish, by clear and convincing evidence, the requisite statutory criteria.  In its order terminating Jackson's parental rights, the district court took judicial notice of its previous orders, in which it had made specific findings that Jackson continued to abuse chemicals, failed to obtain needed mental-health services, and failed to comply with her court-ordered case plan.  The court found clear and convincing evidence that Z.A.'s need for permanency and the chronic conditions suffered by Jackson made the termination of parental rights in Z.A.'s best interests.

The record amply supports this determination.  The county made efforts to assist Jackson by referring her to a mental-health professional, whom she saw sporadically, and helping her return to chemical-dependency treatment.  But Jackson failed to complete two chemical-dependency treatments.  Her case manager in a third, combined mental-health/chemical-dependency treatment program testified that based on positive urinalyses, Jackson's prognosis for continued abstinence from drug use was guarded; the guardian ad litem also testified that Jackson's chemical use was not under control.  Although Jackson stated her willingness to complete the current treatment program, she acknowledged that she had not completed her case plan and admitted her relapse while in treatment.  The social worker also testified that Jackson missed urinalyses, and that Jackson had visited Z.A. only three times during the nine months that the proceedings were pending.  The record contains clear and convincing evidence to support the district court's conclusion that the required statutory criteria were met to terminate Jackson's parental rights.

Affirmed.