In the Matter of the Child of: T.M.L. and T.L.W. a/k/a T.W., Parents.

In the Matter of the Child of: T.M.L. and T.L.W. a/k/a T.W., Parents. A04-1681, Court of Appeals Unpublished, March 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1681

 

 

In the Matter of the Child of:

T.M.L. and T.L.W. a/k/a T.W.,

Parents.

 

Filed March 8, 2005

Affirmed

Lansing, Judge

 

Scott County District Court

File No. 2003-06960

 

 

David B. Boyce, Ramsted, Kennedy & Boyce, Chartered, 525 First Avenue East, Shakopee, MN 55379; and

 

Jane Sklenicka, First Judicial Public Defender, Scott County Government Center, 200 Fourth Avenue, Shakopee, MN 55379 (for appellant T.L.W.)

 

Patrick J. Ciliberto, Scott County Attorney, Susan K. McNellis, First Assistant County Attorney, Peggy Flaig Hellier, Assistant County Attorney, Scott County Government Center, 200 Fourth Avenue, Shakopee, MN 55379 (for respondent Scott County)

 

Amy Schutte, Guardian Ad Litem, 921 Meadow Place, Belle Plaine, MN 56011

 

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            TLW appeals the termination of his parental rights, arguing that the district court violated his due-process rights by denying his motion for a continuance, that the court erred by admitting uncertified copies of his criminal record, and that the evidence does not support a finding of egregious harm to a child.  Because we discern no error in the district court's determinations, we affirm.

F A C T S

            KL is twelve years old at the time of this appeal and has been in foster care for almost three years.  Social services became involved in the child's life in 2001 when she was eight-years old, and the agency removed the child from her mother's home in March of 2002 because of safety considerations and the need for both a more structured environment and psychological aid.  Since her initial removal from her mother's home, she has remained in out-of-home care, primarily in foster homes.  Nothing in the record suggests any possibility of returning the child to her mother's home.

            The child has never lived with her father, TLW, and has had no contact with him since she was an infant.  In 2001, TLW was convicted and sentenced to an Illinois correctional facility for sexually abusing a child under the age of thirteen.  He was still incarcerated for this offense when he was served with the petition to terminate his parental rights.  After appointing a public defender to represent TLW, the court granted two continuances for the pretrial hearing so the attorney could contact TLW.  The attorney repeatedly indicated he was unable to make contact, and the court ordered all of the parties to cooperate in facilitating this communication. 

At a June 2004 motion hearing, TLW's attorney requested a three-month continuance for the hearing on the petition.  The district court denied the continuance and set a trial date for July 2004.  In its order denying the continuance, the district court noted the extended period that the child had spent in out-of-home placement and the number of placements the child has had.  It then determined that "the child's interests in obtaining permanent placement as soon as possible prevail over [TLW's] right to have this matter continued so that he may personally appear at the hearing."  The district court also noted the available options for TLW to participate in the trial, including the submission of a videotaped or transcribed deposition or by telephone.

            At trial, the social worker in charge of the child's case testified that she corresponded with TLW to determine his position on the possible termination of his parental rights, to acquire information on any services he might have received while incarcerated, and to obtain a release of information so she could acquire records on his criminal background.  TLW responded to two of her letters and indicated that he would not authorize the release of information because he did not feel it was relevant to his parental rights and that he objected to the termination of his rights.  His first letter also included a reference to his conviction.  He stated, "[M]y charge was criminal sexual abuse, not assault, assault means penetration, and I did not."  Despite the social worker's repeated attempts to obtain TLW's cooperation in the case and her explanation that she must evaluate his suitability as a placement option for the child because she had been in foster care more than a year, TLW did not respond to her subsequent letters. 

            The social worker also testified that she had requested information from the Illinois Department of Corrections about TLW's record in prison and his criminal history.  The department responded by letter and enclosed five additional sheets of information.  The letter contains the seal of the Illinois Department of Corrections and the signature of Karen Davis in her capacity as Office Administrator III and explains that the packet includes all the information that the department could provide absent a signed release of information.  Among the additional sheets is an "Order of Commitment and Sentence" for aggravated criminal-sexual abuse of a victim younger than thirteen that was signed and dated by the judge who entered the order.  The second relevant document is the "Official Statement of Facts," which describes the facts underlying TLW's conviction.  It indicates that he "rub[bed] his penis against the buttocks of the eight year old victim until he ejaculated" and that the semen discovered on the child's underwear matched TLW's DNA profile.  TLW's attorney objected to the omission of the packet of documents because the enclosures were uncertified copies.  The district court reserved ruling on the objection until issuance of the decision and received the exhibit.

            The only other witness at trial was the child's guardian ad litem.  She testified that the child's behavior was extremely erratic, often out of control, and suggestive of depression.  The witness explained that the child had suicidal tendencies and repeated outbursts of violence, including an incident in which she threw a chair at her teacher.  Although the child's history is unclear, the guardian testified that the child likely saw rape in the home and that she may have been sexually assaulted.  The guardian expressed her opinion that termination of the father's parental rights was in the child's best interests.  She explained that, in her current placement, the child is the happiest and most stable she has ever been and that, in her opinion, the best option for the child is to remain in this home.

            The district court determined that the packet of documents from the Illinois Department of Corrections was admissible and granted the county's petition to terminate TLW's parental rights.  TLW now appeals the termination of his parental rights.

D E C I S I O N

I

            TLW asserts that the district court denied him procedural due process by rejecting his attorney's request to continue the trial to a date following his parole, thereby depriving him of the opportunity to participate in the trial.  This argument lacks merit.

The district court has discretion in determining whether to grant a continuance, and we will not reverse its ruling absent a clear abuse of this discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  We review de novo issues of procedural due process.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).  Due process does not require the physical attendance of a parent at a termination proceeding.  In re Welfare of A.Y.-J., 558 N.W.2d 757, 759 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).  Because the nature of due process is flexibility, "the form of procedural protection varies according to the particular situation."  Humenansky v. Minn. Bd. of Med. Exam'rs, 525 N.W.2d 559, 566 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  When a parent is represented by counsel and has an opportunity to submit a deposition, "[a]ny right to appear personally [has] to rest on convincing reasons and [will] ultimately be left to the sound discretion of the trial court."  In re Welfare of HGB, MAB, & DJB, 306 N.W.2d 821, 826 (Minn. 1981) (quotation omitted) (affirming district court's refusal to grant continuance in termination-of-parental-rights proceeding when mother was incarcerated out of state, was represented by counsel, and had opportunity to present depositions).  Due process requires the court to balance the interests of both the child and the parent and to consider the particular circumstances of the case to determine which interests should predominate.  Id. 

The district court properly balanced the interests of TLW and his child when it denied the continuance, and the court explicitly addressed these considerations in its order.  The district court expressed concern that the child had been in out-of-home placement for approximately two years, which exceeded the duration permitted under the statute.  It also noted that she had lived in six different placements and referred to the significant difficulties with which the child struggles.  The guardian ad litem's opinion that the current placement is the best option for the child adds weight to the district court's concern for a speedy resolution of the child's circumstances. 

Furthermore, the district court observed that TLW had several options for participating in the trial; he could submit a videotaped or transcribed deposition or he could participate by telephone.  These options significantly reduced the need for a continuance to preserve TLW's rights, and the district court had discretion to conclude that the child's interests outweighed those of the father.  This decision appears particularly sound in light of the district court's grant of two previous continuances and the possibility that TLW's anticipated date of parole might change.  And TLW has failed to articulate how his presence could have altered the district court's legal conclusion that his conviction qualifies as egregious harm, and thus the final outcome of the proceeding.  The district court therefore did not violate TLW's due-process rights by proceeding with the trial in his absence.

II

TLW challenges the admissibility of the documents from the Illinois Department of Corrections because he believes they were not certified documents.  Although TLW did object to the documents at trial, he did not move for a new trial.  Evidentiary rulings are subject to appellate review only when the appealing party has moved for a new trial based on the alleged errors.  Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986); see also In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997) ("The gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument. . . .").  Although we consequently have no obligation to examine this evidentiary issue, we note that a review of the evidentiary items in the admitted packet of documents demonstrates that the relevant items were properly certified and that the district court did not err in admitting the documents.

The copy of the "Order of Commitment and Sentence," which shows that TLW was convicted for sexually abusing a child less than thirteen years of age, is certified.  The order contains a stamp of the judge's seal and includes his signature.  See Minn. R. Evid. 902(1) (providing that "document bearing a seal purporting to be that of . . . any State . . . or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution" is self authenticating and needs no extrinsic evidence).  The seal itself bears the signature of the certifying official, who also included her name on the line "Certified By."  See Minn. R. Evid. 902(4) (specifying that document is self-authenticating if "certified as correct by the custodian or other person authorized to make the certification").  Therefore, the district court had sufficient evidence to support a finding that TLW was convicted for sexually abusing a child under thirteen.  This conviction, even without the explicit description of the nature of the abuse, is clear and convincing evidence that TLW egregiously harmed a child.

Furthermore, the "Official Statement of Facts," which provides the details of the abuse, was also properly certified.  First, the letter from Davis included the seal of the Illinois Department of Corrections and her signature.  See Minn. R. Evid. 902(1) (requiring seal of department and signature of attestation or execution).  This letter refers to the enclosures, which Davis obtained in her capacity as Office Administrator III, and the social worker testified that the documents were all included with the letter.  Therefore, the letter certifies the entirety of the exhibit.  Second, the social worker exercised reasonable diligence to obtain officially certified copies of all of TLW's records, but could not, in part due to TLW's refusal to sign a release.  Consequently, her testimony and the certified copies provided were admissible as other evidence of the record's contents.  See Minn. R. Evid. 1005 (permitting use of other evidence when reasonable diligence was exercised).  The district court therefore did not err by admitting the packet as a whole, and we may consider its contents.

III

Termination of parental rights is proper "as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child's best interests."  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  Thus, on appeal in a termination proceeding, we are "limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous."  D.D.G., 558 N.W.2d at 484.  On review, "[c]onsiderable deference is due to the district court's decision because a district court is in a superior position to assess the credibility of witnesses."  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  We closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998). 

            In a termination-of-parental-rights proceeding, the best interests of the child must be the chief consideration.  Minn. Stat. § 260C.301, subd. 7 (2002).  Nonetheless, the best interests of the child is insufficient, standing alone, to support the involuntary termination of a parent's rights, and at least one of the statutory criteria must also be present.  Children of R.W., 678 N.W.2d at 54.  The statute indicates that a district court may terminate a parent's rights when it finds that "a child has experienced egregious harm in the parent's care."  Minn. Stat. § 260C.301, subd. 1(b)(6).  The statute explicitly defines egregious harm as "the infliction of bodily harm to a child or neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care."  Minn. Stat. § 260C.007, subd. 14 (2002).  It goes on to enumerate conduct that qualifies as "egregious harm," including "conduct towards a child that constitutes criminal sexual conduct under sections 609.342 to 609.345."  Minn. Stat. § 260C.007, subd. 14(10).  Section 609.343 provides that a person is guilty of criminal sexual conduct in the second degree when the adult engages in sexual contact with a victim under thirteen-years old.  Minn. Stat. § 609.343, subd. 1(a) (2002).  The definition of sexual contact includes the touching of the child's intimate parts or the clothing covering those parts.  Minn. Stat. § 609.341, subd. 11(a)(i), (iv) (2002).  Unlike Minn. Stat. § 609.342 (2002), Minn. Stat. § 343 (2002) does not require that the abuse involve penetration. 

            TLW asserts that his Illinois conviction for sexually abusing a child less than thirteen years of age does not qualify as egregious harm.  But the record contains clear and convincing evidence that he sexually abused an eight-year-old child.  The district court compared the Illinois sexual-abuse statute with two sections of the Minnesota Statutes to conclude his conduct constituted criminal sexual conduct.  Although TLW is correct that his conduct does not constitute criminal sexual conduct under section 609.342 because it did not involve penetration, his conduct qualifies under section 609.343, which the district court also cited.  His conviction alone demonstrates that he engaged in some form of sexual contact with a child.  And the record contains the additional evidence that he rubbed his penis against the child's buttocks until he ejaculated.  Because TLW engaged in sexual contact with a child, his conduct constitutes criminal sexual conduct and clearly and convincingly establishes that TLW egregiously harmed a child.

TLW fails to challenge the district court's conclusion that termination of his rights was in the child's best interests because of her severe need for stability and the beneficial nature of her current placement.  Therefore, the district court properly concluded that one of the statutory criteria was present in this case and that termination of TLW's parental rights was in the best interests of the child.

            Affirmed.