In the Matter of the Welfare of the Child of M.S., Parent.

In the Matter of the Welfare of the Child of M.S., Parent. A04-1014, Court of Appeals Unpublished, January 11, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1014

 

 

In the Matter of the Welfare of the Child

of M.S., Parent.

 

 

Filed January 11, 2005

Affirmed Willis, Judge

 

Hennepin County District Court

File No. J0-02-067097

 

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant M.S.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue S., Suite 1210, Minneapolis, MN  55415 (for respondent Hennepin County Human Services Department)

 

David DeSmidt, 3001 Hennepin Avenue South, Suite 309B, Minneapolis, MN  55408 (for respondent E.S.)

 

Howard S. Kleyman, 2445 Park Avenue South, Minneapolis, MN  55404 (for guardian ad litem)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the juvenile court's order that transfers the legal and physical custody of her son to the child's father.  Because the juvenile court did not clearly err, we affirm.

FACTS

On October 23, 2002, the Hennepin County Human Services Department (the county) filed a petition alleging that C.S., the child of appellant M.S. (mother), was in need of protection or services because of neglect and because of mother's chemical-dependency issues.  The CHIPS petition was filed after Brooklyn Park police responded to a call from a person who saw two-year old C.S. alone in a park, wearing only a diaper and socks, and standing in water.  C.S. had wandered away from his house while mother was cleaning.  Earlier in 2002, C.S. also was found by Brooklyn Park police after he wandered away from home.

            The child was returned to mother under the protective supervision of the county, and the juvenile court ordered that she comply with conditions set forth by the county, including providing weekly urinalysis samples (U.A.s) as directed by the county social worker assigned to her case.  Mother provided one negative U.A. on November 8, 2002, but she failed to complete U.A.s on October 31, November 4, and November 6.  Mother and C.S. moved from Hennepin County to Wisconsin in early November 2002.

            The county removed C.S. from mother's care because of her failure to provide evidence of her sobriety and because the county's affidavit alleged that mother's chemical-dependency issues placed C.S. in immediate danger.  C.S. was placed in foster care with his daycare provider, but shortly thereafter, at the county's recommendation, the court granted C.S.'s adjudicated father, E.S. (father), temporary custody of the child.  At the end of March 2003, the county filed a permanency petition, seeking the transfer of C.S.'s legal and physical custody to father.  The CHIPS trial was based on stipulated facts and was not held until the end of April.  On May 5, 2003, the juvenile court filed an order determining that C.S. was a child in need of protection or services. 

            As a result of the CHIPS adjudication, mother was required to complete a court-ordered case plan to regain custody.  The case plan required that she (1) abstain from consuming alcohol or mood-altering drugs; (2) provide U.A.s twice weekly; (3) complete a valid Rule 25 chemical-dependency evaluation and comply with all of its recommendations; (4) complete a valid parenting assessment and comply with all of its recommendations; (5) obtain and maintain safe, stable, and suitable housing for herself and C.S.; (6) maintain regular visitation with C.S.; and (7) cooperate with the assigned social worker, keeping him informed of her current address and telephone number. 

Mother had completed a Rule 25 evaluation at Chrysalis in November 2002.  In April 2003, she completed another chemical-dependency evaluation at Conceptual Counseling, which does not have a contract with Hennepin County, and she enrolled in its outpatient treatment program.  Her chemical-dependency counselor, Rhonda Smieja, testified that mother completed the outpatient program at Conceptual Counseling and six of eight aftercare sessions.  Mother testified that her driver's license had been suspended as a result of a DWI conviction and that after she completed treatment she would have 30 days to pay to have her license reinstated.  She testified that she was waiting to finish the final two aftercare sessions until she could afford the payment.  Mother admitted having two positive U.A.s in 2003, one showing cocaine use and one showing opiate use.  But she denied using cocaine or opiates, and she provided evidence that she was taking medication for back pain at the time of the U.A.s.  Mother testified that in September 2003 she quit providing U.A.s after deciding that they were futile because she believed that she was not going be reunited with C.S. 

Mother maintained regular visitation with C.S. except for lapses in February 2003 and April 2003 when the county suspended visitation because of her failure to comply with her case plan and because of her failure to attend scheduled visitations.  At first, father did not make C.S. available for visitation.  But eventually, a suitable visitation schedule was agreed on, and mother and C.S. visited weekly under supervision. 

As part of her case plan, mother met with Mary McGuire, a social worker from the Adler Center, to complete a parenting assessment.  Mother and McGuire had difficulty connecting due to an inability to contact one another by phone.  McGuire was unable to observe mother and C.S. together, and, therefore, the parenting assessment was only partially completed.

From November 2002 through the time of the hearing, mother stayed with friends in Wisconsin and in Minnesota.  During this time she often failed to keep her county social worker, Leif Wisti, appraised of her current addresses, and he often was unable to contact her.

At the permanency trial on November 6, 2003, the county offered a number of reports and documents as exhibits.  The court accepted the exhibits under the business-record exception to the hearsay rule and under In re Welfare of Brown, 296 N.W.2d 430 (Minn. 1980), but no foundation for the exhibits was laid.  On November 14, 2003, the juvenile court filed an order accepting the exhibits conditionally, pending foundational testimony. 

On February 5, 2004, the county called Wisti to lay foundation for the admission of ten of these records under the business-record exception.  Mother objected to five of the exhibits for lack of foundation: two lab reports of mother's U.A.s; a parenting assessment of mother; a report regarding C.S. from a pediatric neuropsychologist; and a Rule 25 chemical-dependency assessment of mother.  Rather than providing a separate foundation for each exhibit, Wisti testified that he received all of the documents as case manager for mother, that persons who were involved in the case and were providing services to mother prepared the documents, and that he used these documents for the purpose of providing case-management services.  He testified that he kept the documents in his file in the normal course of his business.  The juvenile court found that Wisti provided adequate foundation for these exhibits.  It also took judicial notice of various court orders, findings, and conclusions, as well as attachments, pleadings, and exhibits in the permanency matter and in the child-protection matter.

In March 2004, the juvenile court ordered a transfer of legal and physical custody of C.S. to father, with mother receiving visitation rights.  Mother filed a motion seeking a new trial based on several grounds, including evidence that C.S. may have been physically abused by father's wife.  The juvenile court denied mother's motion, and this appeal follows.

D E C I S I O N

I.

Mother argues that the juvenile court committed reversible error by admitting into evidence reports containing inadmissible hearsay statements and by taking judicial notice of the entire juvenile court file.  Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the juvenile court's discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  "Evidentiary rulings concerning . . . foundation . . . are within the trial court's sound discretion and will only be reversed when that discretion has been clearly abused."  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).  A party is not entitled to a new trial because of improper evidentiary rulings unless the complaining party demonstrates prejudicial error.  Kroning, 567 N.W.2d at 46.

            While hearsay evidence is generally inadmissible at trial, records of regularly conducted business activities are not excluded by the hearsay rule.  Minn. R. Evid. 802, 803(6).  The business-record exception includes

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. . . .  A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.

 

Minn. R. Evid. 803(6).  There are three primary requirements for application of the business-record exception:  (1) "that the evidence was kept in the course of a regularly conducted business activity"; (2) that making the record was a regular practice of that business activity; and (3) that a foundation for the evidence is provided by the custodian or another qualified witness.  Nat'l Tea Co. v. Tyler Refrigeration Co., 339 N.W.2d 59, 61 (Minn. 1983).  The custodian of the record is an employee of the business that made the record.  See id.  But a "qualified witness" need not be an employee of the business.  Id. at 60, 62.

            Reports from social workers and psychologists often have been admitted as business records in juvenile-protection cases.  See Welfare of Brown, 296 N.W.2d 430, 435 (Minn. 1980); In re Welfare of J.K., 374 N.W.2d 463, 467 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985); In re Welfare of R.T., 364 N.W.2d 884, 886 (Minn. App. 1985).  In fact, the statute governing child-protection cases provides that "[b]efore making a disposition in a case, . . . the court may consider any report or recommendation made by the responsible social services agency, probation officer, . . . or other authorized advocate for the child or child's family, . . . or any other information deemed material by the court."  Minn. Stat. § 260C.193, subd. 2 (2002).

In deciding whether a person other than the author or custodian of a business record has established the foundation for its admissibility, a district court should determine whether the person is a qualified witness who can testify regarding (1) the purpose for which the record was prepared; (2) the independence of the author in forming the record; (3) the time that the record was made; and (4) whether the organization preparing the record was established to do the kind of work involved in such preparation.  Nat'l Tea Co., 339 N.W.2d at 62.  And a district court should then consider these factors before admitting the business record into evidence.  Id.

Here, the disputed records are two lab reports of mother's U.A.s; a court-ordered parenting assessment completed by a social worker; a letter from a pediatric neuropsychologist stating that he had diagnosed C.S. as having Asperger's Disorder; and a Rule 25 chemical-dependency assessment of mother prepared by a licensed alcohol-and-drug counselor.  Wisti provided a generic foundation for all of the documents and did not address any of the documents individually.  There is no evidence that the juvenile court considered any of the four Nat'l Tea Co. factors in finding the foundation to be adequate. 

We therefore conclude that inadequate foundation was laid for admission of the U.A. results, the parenting assessment, and the Rule 25 chemical-dependency evaluation and that the juvenile court abused its discretion by admitting them into evidence when Wisti provided no information about them other than the fact that they were part of his file and he used them to provide services to mother and C.S.  See In re Child of Simon, 662 N.W.2d 155, 160-61 (Minn. App. 2003) (noting that social worker was not appropriate person to lay foundation for therapist's records and that his testimony fell short of providing required foundational requirements of Rule 803(6)).

We note an exception for the admission of the neuropsychologist's report.  Although Wisti did not provide a specific foundation for that report, this court has noted that a psychologist's report concerning a child's emotional condition is admissible as a business record under Minn. R. Evid. 803(6).  Welfare of R.T., 364 N.W.2d at 886; see also Welfare of Brown, 296 N.W.2d at 433, 435-36 (noting that the admission of a psychological report and evaluation summary made by a psychologist focusing on the child's problems and needs was admissible as a business record when it was kept in the social worker's file of the child and was the regular business practice to keep such reports); but see Child of Simon, 662 N.W.2d at 161 (noting that therapist's letter was inappropriately admitted under the business-record exception; the therapist's letter was prepared for litigation and also contained an opinion regarding the best interests of the child, an ultimate issue in that case).  Here, as in Brown, the neuropsychologist's report regarding C.S. was kept in the social worker's file as part of his regular business practice, it deals with C.S.'s diagnosis and details his special needs, and it does not address any of the ultimate issues in this case.  Therefore, we conclude that the juvenile court did not abuse its discretion by admitting the neuropsychologist's report as a business record. 

Finally, mother argues that the juvenile court abused its discretion by taking judicial notice of its entire file which included progress reports and other attachments.  "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."  Minn. R. Evid. 201(b).  Judicial notice of records of the court in which a judge sits is appropriate.  In re Welfare of Clausen, 289 N.W.2d 153,157 (Minn. 1980).  But a court may not take judicial notice of an entire file or the records in a file without first clarifying what parts it will consider because disputed facts in a court record or file are not suitable for judicial notice.  In re Welfare of D.J.N., 568 N.W.2d 170, 175 (Minn. App. 1997); In re Zemple, 489 N.W.2d 818, 820 (Minn. App. 1992).

Here, the court took judicial notice of its various findings, orders, and conclusions as well as exhibits, attachments, and pleadings in the court file.  We conclude that it was not error for the juvenile court to take judicial notice of its prior orders and findings.  But we conclude that the juvenile court abused its discretion by taking judicial notice of the exhibits, pleadings, and attachments, which include progress reports and other documents that contain disputed facts. 

Although the juvenile court abused its discretion by accepting the foundation laid for the U.A. results, the parenting assessment, and the chemical-dependency evaluation and by taking judicial notice of exhibits, pleadings, and attachments in the court file, we will not reverse unless mother was prejudiced by the evidence.  See Kroning, 567 N.W.2d at 46; Welfare of D.J.N., 568 N.W.2d at 176.  If the admissible testimony and evidence is sufficient to support the juvenile court's findings and conclusions, there is no prejudicial error.  Child of Simon, 662 N.W.2d at 162.  Here, mother cannot show that she was prejudiced by the admission of these documents, because substantial admissible testimony and exhibits, discussed below, support the juvenile court's findings and conclusion that a transfer of legal custody of C.S. to father was warranted.[1] 

II.

Mother argues that the juvenile court's order transferring the legal and physical custody of C.S. to father was not supported by clear and convincing evidence.  This court must determine whether the juvenile court's permanency findings "address the statutory criteria and are supported by substantial evidence, or whether they are clearly erroneous."  In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (quotation omitted).  "In juvenile protection proceedings, this court determines whether the record contains substantial evidence to support the district court's decision, taking into account that the burden of proof in the district court is clear and convincing evidence."  In re Welfare of B.A.B., 572 N.W.2d 776, 778 (Minn. App. 1998) (quotation omitted). 

In an order for the permanent placement of a child a juvenile court must identify and include:

(1) how the child's best interests are served by the order; (2) the nature and extent of the responsible social service agency's reasonable efforts, . . . to reunify the child with the parent . . . ; (3) the parent's . . . efforts and ability to use services to correct the conditions which led to the out-of-home placement; and (4) whether the conditions which led to the out-of-home placement have been corrected so that the child can return home.

 

Minn. Stat. § 260C.201, subd. 11(h) (2002).

First, mother argues that the juvenile court erred by determining that it was in C.S.'s best interests to transfer sole legal and physical custody to father.  Currently, the law "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  The factors to be considered in determining placement based on the best interests of the child include:

(1) the child's current functioning and behaviors; (2) the medical, educational, and developmental needs of the child; (3) the child's history and past experience; (4) the child's religious and cultural needs; (5) the child's connection with a community, school, and church; (6) the child's interests and talents; (7) the child's relationship to current caretakers, parents, siblings, and relatives; and (8) the reasonable preference of the child, if the court . . . deems the child to be of sufficient age to express preferences.

 

Minn. Stat. §§ 260C.212, subd. 2(b), .201, subd. 2(a)(3) (2002).

The record supports the juvenile court's reasons for determining that C.S.'s best interests are served by being placed in the permanent care, custody, and control of father.  The juvenile court considered the fact that C.S. had Asperger's Disorder and its effect on his functioning and behaviors.  It also considered C.S.'s adjustment to father's home, C.S.'s special medical and developmental needs related to his disorder, and C.S.'s relationships with father and mother.  The court also considered each parent's ability to provide for C.S.'s special needs.  In making its determination of C.S.'s best interests, the juvenile court considered testimony from Wisti and from the guardian ad litem, who both testified that a transfer of legal custody to father would be in C.S.'s best interests.  The court also considered testimony from mother and from others who testified on her behalf.  It considered testimony from father.  And it considered the reports of the doctor who diagnosed C.S. with Asperger's Disorder.  The record contains substantial evidence that the county provided clear and convincing evidence that C.S.'s best interests would be served by a transfer of legal custody to father.

Second, mother argues that the county failed to use reasonable efforts to reunify her with C.S.  "Reasonable efforts" are the "exercise of due diligence by the agency to use appropriate and available services to meet the needs of the child and the child's family."  Welfare of A.R.G.-B., 551 N.W.2d at 263 (quotation omitted). 

Factors to be considered when determining whether an agency used reasonable efforts include "whether the services to the child and family were (1) relevant to the safety and protection of the child, (2) adequate to meet the needs of the child and family, (3) culturally appropriate, (4) available and accessible, (5) consistent and timely, and (6) realistic under the circumstances."  Id.   The length of time the county was involved and the quality of the county's effort must be considered.  Id.  Adequate services require genuine help to ensure that "all things are done that might conceivably improve the circumstances of the parent."  In re Welfare of M.A., 408 N.W.2d 227, 236 (Minn. App. 1987) (quotation omitted), review denied (Minn. Sept. 18, 1987).

            The record establishes that the county used reasonable efforts to reunify mother and C.S.  It connected mother with agencies and resources that could have provided her with the support she needed for reunification with C.S. had she utilized them.  Especially in light of the difficulty that the county had in contacting mother, the juvenile court's decision that the county made reasonable efforts was not clearly erroneous.

Third, the juvenile court found that mother "failed to make a concerted effort to complete [her case plan], that she blamed others for her failures, and refused to take any personal responsibility."  The juvenile court found that mother demonstrated "a lack of effort to make positive changes."  The juvenile court's findings are supported by (1) mother's testimony that she stopped seeking services and submitting urinalyses in September 2003; (2) the juvenile court's observation that although mother testified that completing her case plan was difficult after she moved to Wisconsin, she worked in Minnesota and completed requirements for probation in Hennepin County during the same time period; (3) mother's testimony that she did not complete the aftercare sessions; (4) mother's testimony that she provided a U.A. in May 2003 that tested positive for cocaine and a U.A. in August 2003 that tested positive for opiates; (5) the suspension of mother's visitation in February 2003 for failing to comply with the case plan and in April 2003 for failing to attend scheduled visits and failing to inform either father, the county, or the visitation facilitator that she was on vacation; (6) mother's testimony and Wisti's testimony that mother did not complete her parenting assessment; and (7) mother's failure to keep her social worker informed of her current address and telephone number.  The juvenile court's determination that mother failed to make a concerted effort to complete her case plan is not clearly erroneous.

            Fourth, mother argues that the juvenile court erred by finding that she had failed to correct the conditions leading to the out-of-home placement and that she would be unable to do so in the foreseeable future.  A parent's unwillingness to complete any of the goals of the placement plan can provide "clear and convincing evidence that the present conditions of neglect will continue for a prolonged and indeterminate time."  In re Welfare of H.K., 455 N.W.2d 529, 533 (Minn. App. 1990), review denied (Minn. July 6, 1990).  Because mother failed to substantially complete her case plan and the evidence supports the finding that she did not resolve her chemical-dependency issues, we conclude that the juvenile court's determination that mother had failed to correct the conditions that led to C.S.'s placement out of the home and would be unable to do so in the foreseeable future was not clearly erroneous.

Because the juvenile court considered the statutory requirements in making its permanent-placement decision and because substantial admissible evidence supports its determination that the county had shown clearly and convincingly that the legal and physical custody of C.S. should be transferred to father, we conclude that the district court's decision was not clearly erroneous.

III.

Mother also argues that the county violated her equal-protection and due-process rights when it held her to a standard different from the standard applied to father.  Essential to both the federal Equal Protection Clause (U.S. Const. Amend. XIV, § 1) and Minnesota's similar constitutional requirement (Minn. Const. art. 1, § 2) is the principle that "all similarly situated individuals shall be treated alike, but only ‘invidious discrimination' is deemed constitutionally offensive."  Scott v. Minneapolis Police Relief Ass'n, 615 N.W.2d 66, 74 (Minn. 2000).  Mother appears to argue that the state's seemingly preferential treatment of father deprived her of her due-process rights to an impartial decision-maker and a reasonable decision based solely on the record. 

The core of mother's argument is that she and father were similarly situated and that they were treated differently by the state.  But father and mother were not similarly situated.  Although they are both the natural parents of C.S., mother was subject to a CHIPS proceeding because the county found that C.S. was endangered in her care.  Father was not subject to such a proceeding.  Because mother and father were not similarly situated, any disparate treatment is not invidious discrimination.  Here, there is no indication that the county or the juvenile court's actions violated either mother's equal-protection or due-process constitutional rights.

IV.

Finally, mother argues that the juvenile court "erred" by not granting her a new trial when there was evidence after the permanency trial that father's wife may have physically abused C.S.  Because the juvenile court has the discretion whether to grant a new trial, we will not disturb its decision to grant or deny a new trial absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  "On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict."  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

            Generally, to be "newly discovered evidence," evidence must be in existence at the time of the trial, but unknown to the party at the time.  Swanson v. Williams, 303 Minn. 433, 436, 228 N.W.2d 860, 862 (1975).  The juvenile court refused to grant a new trial here because the "newly discovered evidence" was not in existence at the time of trial.  The juvenile court determined that it was not in the child's best interests to reopen this case and that there was no indication that another court had found maltreatment of C.S. by father or  father's wife.  The juvenile court also found that father and his wife were receiving services  in Wisconsin through St. Croix County child protection for help with C.S.'s special needs.  The juvenile court's decision not to grant a new trial is supported by the law and by the facts, and we conclude that there was no abuse of discretion.

            Affirmed.

[1] Mother's argument that her due-process rights were violated by the admission of this evidence because she was unable to cross-examine the witnesses is inapposite considering the considerable precedent that inadmissible hearsay evidence warrants a new trial only if the party was prejudiced.