In the Matter of the Welfare of the Children of C.T., Parent.

In the Matter of the Welfare of the Children of C.T., Parent. A05-1653, Court of Appeals Unpublished, March 21, 2006.

This opinion will be unpublished and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

A05-1653

 

In the Matter of the Welfare of the Children of C.T., Parent.

 

Filed March 21, 2006

Affirmed; motion granted

Wright, Judge

 

Hennepin County District Court

File No. 27-J1-04-057005

 

 

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant mother)

 

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)

 

Raymond A. Wood, 378 Grain Exchange, 301 Fourth Avenue South, Minneapolis, MN  55415 (for father)

 

James J. Hartnett, Katherine A. Golden, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402-3901 (for Guardian ad Litem)

 

 

            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this juvenile-protection matter, appellant mother argues that the record lacked clear and convincing evidence to support the transfer of legal custody of her children.  Appellant also argues that the district court erred when it (1) did not order a second parenting assessment; (2) improperly created a presumption that appellant was using controlled substances when she failed to appear for urinalysis appointments; (3) improperly weighed evidence of trace elements of controlled substances found in certain urinalysis results; and (4) disregarded the children's placement preferences and divided the siblings.  Appellant also argues that judicial bias deprived her of a fair trial, and she moves to strike references to matters outside the record contained in the guardian ad litem's brief.  We affirm, and we grant the motion.

FACTS

 

On May 18, 2004, Hennepin County Human Services Department filed a Children in Need of Protection or Services (CHIPS) petition for the children of appellant mother C.T.  At the time of the petition, C.T. had four children: K.L., who was nine years old; K.D., who was seven years old; J.L., who was five years old; and K.W., who was almost two months old.  Prior to the CHIPS petition, K.W. resided with C.T. and the baby's father, Y.W.  Under the terms of an earlier delegation of powers by C.T., K.L, J.L., and K.D. resided with their maternal grandmother, L.T.  When the CHIPS petition was filed, the district court granted interim legal custody of the four children to Hennepin County Human Services and placed the children in the care of L.T.  Between the CHIPS petition and the CHIPS hearing, K.D.'s placement was changed from L.T. to K.D.'s father, D.D.

            The initial report that led to the May 2004 CHIPS petition alleged an incident of domestic violence between C.T. and Y.W.[1]  The incident occurred while C.T. was holding K.W. and in the presence of the three other children.  An investigation of the incident, including interviews with the three older children, disclosed that Y.W. had assaulted C.T. in the presence of the children on several other occasions.  The three older children reported that Y.W. had punched holes in the wall of the home and in K.W.'s crib while K.W. was in the crib.  The older children also reported that Y.W. had punched them in the past.  And they described their efforts to protect their mother, using a knife on one occasion, during altercations with Y.W.  The investigation also revealed that C.T. and Y.W. smoked marijuana in the presence of the children, and Y.W. was reportedly selling crack cocaine from the home. 

            A CHIPS hearing was held in the instant matter on September 21, 2004.  The district court determined that the children were in need of protection or services, under Minn. Stat. § 260C.007, subd. 6(9) (2004), and temporarily transferred legal custody of K.L., J.L., and K.W. to the county.  The district court continued their placement with L.T., granted temporary legal custody of K.D. to his father, and continued K.D.'s placement with D.D.  The district court permitted C.T. to have supervised visits with her children and ordered her to work on a child-protection case plan to correct the conditions that led to the out-of-home placements.

            On November 29, 2004, African American Family Services (AAFS) filed a parenting assessment of C.T., which concluded that her overall parenting prognosis was "guarded to poor."  The assessment noted that C.T. had failed to follow through with her current child-protection case plan, including her participation in chemical-dependency outpatient treatment and a women's domestic-abuse group.  The assessment recommended that C.T. continue with her current case plan in order to "address her chemical dependency and domestic abuse issues."  The assessment also concluded that it was in the children's best interests to remain in their out-of-home placements. 

            A permanency trial, originally scheduled for February 28, 2005, was held over four days in May 2005.  The district court received testimony from C.T., her mother, K.L., C.T.'s oldest child, fathers J.L. and D.D., along with caseworkers from Hennepin County Human Services, Ruben Lindh Family Services, and AAFS.

            Based on its findings of clear and convincing evidence as to each child's best interests, the district court awarded permanent legal and physical custody of K.D. to his father, D.D., and awarded permanent legal and physical custody of K.L. and J.L. to their maternal grandparents, L.T. and S.B.  Finding that there was not clear and convincing evidence that transfer of legal custody was in K.W.'s best interests, the district court ordered reunification of K.W. and C.T. under protective supervision.

            C.T. moved for a new trial, alleging evidentiary and procedural errors by the district court.  The district court denied the motion, and this appeal followed.

D E C I S I O N

 

I.

C.T. challenges the district court's transfer of legal custody of K.L., J.L., and K.D.  When reviewing a permanent-placement order, we determine "whether the [district] court's 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) (quoting In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990)).  We will not disturb the district court's findings of fact unless they are clearly erroneous.  In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn. 1985); In re Welfare of Solomon, 291 N.W.2d 364, 367 (Minn. 1980).  In order to successfully challenge a district court's findings of fact, the party challenging the findings "must show that despite viewing that evidence in the light most favorable to the trial court's findings . . . the record still requires the definite and firm conviction that a mistake was made."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  "The paramount consideration in all proceedings concerning a child alleged or found to be in need of protection or services is the health, safety, and best interests of the child."  Minn. Stat. § 260C.001, subd. 2 (2004).

An order permanently placing a child out of the home of the parent must include the following detailed findings:

(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 . . . ;

(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) (2004).  The district court addressed each of the statutory criteria, and our review of the record demonstrates that clear and convincing evidence supports the district court's conclusions. 

First, in support of its finding that transfer of legal custody of K.D. was in the child's best interest, the district court relied on evidence that K.D. had been in the care of his father, D.D., who was successfully parenting K.D.  D.D. testified that he would provide for K.D.'s educational and emotional needs, including fostering contact between K.D. and his siblings.  D.D. testified that he had been in close contact with K.D.'s school to ensure that K.D. was making academic progress.  The district court noted that D.D. had impressed Hennepin County social workers and teachers at K.D.'s school with his parenting of K.D.  From our review of the record, we conclude that there is substantial evidentiary support for the district court's determination that D.D. could safely and appropriately care for K.D.

In the case of K.L. and J.L., the district court concluded that a transfer of legal custody to their maternal grandmother, L.T., served the best interests of the children.  The district court considered and rejected alternate placements with the children's mother and father.   In the case of K.L. and J.L.'s father, the district court determined, based on the evidence, that their father had not made spending time with his children and meeting their needs a priority.  And their father's history of violence toward C.T. weighed against permanent placement with him.  In contrast, the district court determined that L.T. had been caring for K.L. and J.L. since May 2003. 

In concluding that remaining in C.T.'s legal and physical custody was not in K.D.'s, K.L.'s, and J.L.'s best interests, the district court relied on evidence of their exposure to domestic violence and controlled-substance dealing and abuse while living with C.T.  This evidence included testimony that C.T. had not protected K.L. from physical abuse by Y.W., who resided with C.T.  For example, K.L. testified that Y.W. had punched him, resulting in two black eyes.  K.L. also testified that, although he has some desire to live with his mother, "Living with my grandma is really my first choice, because my mom if I go live with my mom she [is] probably going to get another bad boyfriend."  Thus, the district court's detailed findings in support of the determination that transfer of legal custody to L.T. is in the best interests of K.L. and J.L. and transfer of legal custody to D.D. is in the best interests of K.D. are supported by substantial evidence in the record.

Next, the district court made findings that reasonable efforts had been made to assist C.T. in correcting the conditions that led to the out-of-home placement.  The record establishes, and the district court found, that those efforts included providing C.T. with the following services: (1) housing support; (2) a parenting assessment; (3) a psychological assessment; (4) domestic-abuse and anger-management counseling; (5) random urinalysis testing; (6) chemical-dependency treatment; (7) parenting services; and (8) case-management services.  The district court did not clearly err in finding that these efforts to assist C.T. were reasonable.

Finally, the district court found that C.T. had not substantially complied with her case plan, which resulted in C.T.'s failure to correct the conditions that led to the out-of-home placement.  The district court's findings as to this criterion also are supported by substantial evidence in the record.  C.T. testified that, after the October 2004 CHIPS order, she stopped working on her case plan and did not resume working on it until March 2005.  C.T. had missed most of her urinalysis tests between October 2004 and February 2005.  The district court noted that, for the samples that C.T. submitted for testing, test results indicated the presence of trace elements of methamphetamine, THC, cocaine, and opiates.  C.T. had not completed chemical-dependency treatment, nor had she completed the court-ordered Rule 25 chemical-dependency assessment.  Although C.T. completed the domestic-abuse program, her domestic-abuse counselor testified that, because C.T. had taken over nine months to complete the twelve-week program, the program's effectiveness was diminished.  Based on the evidence presented, the district court found that C.T. had not made reasonable efforts to correct the conditions that led to the out-of-home placement and that those conditions still existed.  The district court's findings as to this statutory criterion also are not clearly erroneous.

C.T. contends that the record does not support the district court's child-custody transfer because, at the time of trial, she had recently reengaged in her case plan.  C.T. maintains that the district court erred by not giving greater weight to the evidence relating to her participation in the case plan during the approximately-three-month period before trial. 

Indeed, the district court is required to make findings that "address conditions that exist at the time of the hearing."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  But, as in a termination-of-parental-rights case, the district court also must consider evidence relating to the projected permanency of the parent's inability to care for the child.  Id. Issues of evidentiary weight and witness credibility are the exclusive province of the fact-finder.  Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996). 

In support of its findings, the district court considered and weighed evidence relating to C.T.'s entire record, including the efforts she made during the months immediately preceding the trial.  Although there is evidence to support C.T.'s engagement during the period between March and May 2005, the district court declined to ignore the period between October 2004 and March 2005 when C.T. made no progress on her case plan.  This consideration of C.T.'s efforts during the entire period does not constitute an abuse of discretion.

The district court acknowledged that C.T. had begun to address the conditions leading to the out-of-home placement of her children, including her domestic-abuse and chemical-dependency issues.  At the time of the trial, C.T. had an apartment, but she was unemployed and behind on her rent.  Although C.T. had begun making progress on her case plan, she continued to face significant parenting challenges. Moreover, the district court noted that C.T. had never successfully parented all of the children at the same time.

The district court's findings address each of the statutory requirements for transfer of legal custody.  Those findings are supported by clear and convincing evidence.  The district court based its conclusions on the entire record before it, without overemphasizing any portion of C.T.'s past record.  The district court could reasonably conclude, based on substantial evidentiary support in the record, that C.T. would face a continuing inability to care for the three children who are the subjects of this appeal.  Accordingly, notwithstanding C.T.'s progress immediately preceding the trial, the district court did not err by transferring legal custody of K.L., K.D., and J.L. 

II.

C.T. next argues that the district court erred in denying her pretrial motion for a new parenting assessment, which she made after the close of discovery.  In support of the motion, C.T. argued that a new parenting assessment would effectively demonstrate the improvements in her living situation and parenting abilities.  The district court has broad discretion to issue and enforce its discovery orders.  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Absent a clear abuse of that discretion, the district court's enforcement of its discovery order will not be disturbed on appeal.  Id.; see also Minn. Twins P'ship v. Hatch, 592 N.W.2d 847, 850 (Minn. 1999) (citing Shetka). 

From our review of the record, we conclude that the district court's denial of the motion was not an abuse of discretion.  A parenting assessment is conducted to determine what services are needed at the beginning of the CHIPS case to correct the conditions leading to an out-of-home placement.  C.T. does not challenge the recommendations of the parenting assessment conducted in November 2004, which emphasized that dedicated follow-through on the case plan was C.T.'s most effective means to address her chemical-dependency and domestic-abuse issues.  Because discovery was closed and the trial date was approaching, granting the motion would have resulted in another continuance of the trial and an additional delay in establishing permanency for the children. 

The district court may continue a trial for more than one week in a permanency proceeding only if the "court makes specific findings that the continuance or adjournment is in the best interests of the child."  Minn. Stat. § 260C.163, subd. 1(b) (2004).  The trial already had been continued from its originally scheduled date of February 2005.  C.T. failed to demonstrate that a continuance while conducting the new parenting assessment would be in the best interests of the children.  The district court received ample evidence from which it could assess the degree to which C.T. had corrected the conditions leading to the children's out-of-home placements.  Accordingly, given the district court's consideration of the entire record, including C.T.'s recent progress, the district court did not abuse its discretion by finding that an additional delay to permit a second parenting assessment would not meet the child-protection goals and would be contrary to the best interests of the children.

III.

            C.T. next argues that the district court erred by applying a binding, irrebuttable presumption of alcohol and controlled-substances use based on C.T.'s failure on several occasions to comply with the district court's order to submit to urinalysis tests.  C.T.'s argument mischaracterizes the record, which does not support C.T.'s claimed denial of the constitutional right to a fair hearing on this ground.  The record demonstrates that the presumption of alcohol and controlled-substances use based on the missed urinalysis tests was neither binding nor irrebuttable.[2] 

The district court considered C.T.'s testimony that she had refrained from using alcohol and controlled substances and made a credibility determination to which we defer on appeal.  Vangsness, 607 N.W.2d at 472.  That the record might support findings other than those made by the district court does not establish that such findings are defective.  Id. at 474. 

In its order dated October 18, 2004, the district court directed C.T. to submit to random urinalysis.  The order provided: "Failure to comply with requests for urinalysis testing shall be presumptive evidence of use of alcohol and non-prescribed controlled substances."  A pretrial report indicates that C.T. missed urinalysis tests on February 5, 7, 10, 15, 18, and 21.  Thus, those missed tests were presumed positive for controlled substances.

The record demonstrates that C.T. was given the opportunity to rebut the presumption.  C.T. testified that, although she had missed the urinalysis appointments, she was not using drugs during this period.  When asked why she had missed the urinalysis tests, C.T. did not offer a specific reason.  Rather, C.T. testified that housing and transportation issues, along with illness caused by her fifth pregnancy, prevented her from participating in her case plan, including the court-ordered urinalysis tests.  C.T. expressed general remorse for not taking the tests. 

In weighing C.T.'s credibility, the district court found C.T.'s testimony regarding a cessation of drug use to be arguably true, stating that her pregnancy was "at least equally as likely an explanation as case plan compliance for her cessation of drug use."  Because the district court considered C.T.'s testimony in conjunction with the presumption of drug use from the missed urinalysis tests, the district court did not apply a binding, irrebuttable presumption of alcohol and controlled-substances use based on C.T.'s failure on several occasions to submit to urinalysis tests.

IV.

C.T. next challenges two evidentiary rulings regarding an exhibit containing 15 urinalysis reports from September 2004 through May 2005. Rulings as to materiality, foundation, remoteness, relevancy, or the cumulative nature of evidence rest within the district court's sound discretion and will be reversed only when that discretion has been clearly abused.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).

C.T. maintains that the district court's characterization of testimony regarding trace elements of controlled substances in the urinalysis reports as "very relevant" was erroneous because the evidentiary ruling was based on evidence outside the record.  C.T. argues the district court improperly took judicial notice of a disputed fact. 

Our review of the record finds no support for this argument.  On cross-examination, C.T. objected to a caseworker's testimony about urinalysis-test results that were classified as negative but showed trace elements of methamphetamine, cocaine, and opiates.   The district court overruled the objection, stating that the testimony was "very relevant."  During the examination that followed, the caseworker testified that five of the negative urinalysis reports contained evidence of trace elements of controlled substances.  When asked about the significance of the trace elements, the caseworker testified that they were monitored to ensure that the amount of trace elements was declining. 

            The district court's words "very relevant" do not constitute taking judicial notice of the scientific content of the caseworker's testimony, as C.T. argues.  Rather, the district court stated the basis for its evidentiary ruling on the objection.  The statement has no legal significance beyond the district court's acknowledgement of the relevance of the testimony to C.T.'s ability to parent her children, which is well within the scope of the district court's discretion.

            C.T. also challenges the weight the district court gave to the testimony of a case-management intern's explanation of possible alternative reasons for the presence of the trace elements of controlled substances in C.T.'s urine samples.  We defer to the district court's assessment of witness credibility and the evidentiary weight afforded a witness's testimony.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

The case-management intern testified that C.T.'s prenatal iron supplements and Ibuprofen could cause trace elements of controlled substances to appear in urinalysis results.  The intern testified that her opinion was based on discussions with other caseworkers and her past clinical experience.    

            In its order, the district court rejected these explanations.  C.T. argues that the district court did not explain what information outside the record could lead it to a conclusion that the testimony lacked credibility.  This argument assumes, without any factual basis, that the district court relied on evidence outside the record.  To the contrary, the record includes ample evidence that the witness's testimony lacked adequate foundation to be credible.  Cf. Varner v Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating that district court need not accept even uncontradicted testimony if there are reasonable grounds to doubt its credibility).  Moreover, in light of the deference we afford the district court's determination of witness credibility and evidentiary weight, C.T.'s arguments are unavailing.

V.

C.T. also contends that the district court committed reversible error by disregarding the preference of the children to live with C.T.  "The preference of a child as to future custody is entitled to considerable weight if [the child] is of sufficient age to exercise discretion in the matter."  In re Welfare of M.M.B., 350 N.W.2d 432, 435 (Minn. App. 1984).  But when the child is too young, the child's preference should be given "little or no weight."  In re Klugman, 256 Minn. 113, 122, 97 N.W.2d 425, 431 (Minn. 1959) (quotation omitted).  Regardless of the child's age, the child's best interests are of greater import to a custody determination than the child's expressed preference.  Id. 

At the time of trial, K.L. was ten, K.D. was eight, and J.L. was six.  Although each child expressed a preference for living with his mother, there is no evidence to support the claim that the district court did not give the appropriate consideration to their stated preferences.  See Klugman, 256 Minn. at 122, 97 N.W.2d at 431 (considering but not following preference of a nine-year-old). 

Indeed, K.L. offered contradictory testimony regarding his living preference.  Initially he testified that, although he liked living with his grandmother, living with his mother would be his first choice, and living with his grandmother would be his second choice.  Later in the examination, K.L. testified that he preferred living with his grandmother because C.T. would likely make choices that would jeopardize his safety.  Although K.L. expressed a preference for returning to his mother's care, such a preference cannot be given great weight because of his age and his acknowledged concerns for his own safety.  The district court made a placement decision for each child that was in the child's best interests and explained the rationale for its placement decisions. 

C.T. also challenges the district court's decision to split up the three children, transferring legal custody of K.D. to his father, D.D., and transferring legal custody of K.L. and J.L. to their grandparents, L.T. and S.B.  C.T. is correct that the law favors placing siblings together, "unless it is determined not to be in the best interests of a sibling."  Minn. Stat. § 260C.193, subd. 3(c) (2004).   Child-protection procedures seek to "preserve and strengthen the child's family ties whenever possible and in the child's best interests, removing the child from the custody of parents only when the child's welfare or safety cannot be adequately safeguarded without removal."  Minn. Stat. § 260C.001, subd. 2.

The district court made detailed and explicit findings supported by substantial evidence in the record and sought to protect the children's best interests while maintaining the family ties.  As such, the district court did not err when it determined that it was in the best interests of K.D. to be placed with his father, who agreed to maintain contact between K.D. and his siblings, and in the best interests of K.L. and J.L. to be placed with their grandparents. 

VI.

            During oral argument, C.T. raised for the first time the claim that she was denied a fair trial because of judicial bias.  We ordinarily will not consider matters that were not presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  A party's failure to raise a claim of judicial bias during the trial makes the timeliness of the issue "questionable."  Gummow v. Gummow, 375 N.W.2d 30, 34 (Minn. App. 1985).  Although the issue is not properly before us, our review of the record pertaining to each of the incidents cited during C.T.'s oral argument demonstrates that C.T.'s contention is without merit. 

            C.T. argues that the district court judge improperly interjected herself into the proceedings in a manner that established judicial bias.  A party may remove a judge by filing a notice to remove within ten days after receiving notice of which judge will preside at the hearing.  Minn. R. Juv. Prot. Proc. 7.07, subd. 3(a).  If a party who has notice of the assignment of the presiding judge fails to file a removal notice prior to the hearing, the issue is waived unless the party presents "an affirmative showing of prejudice." Id., subd. 3(b).  C.T. neither raised an objection during the trial alleging judicial bias, nor did she seek removal of the district court judge.  Moreover, our review establishes that the allegations of judicial bias lack support in the record.  Because C.T.'s claim of judicial bias is both procedurally defective and not supported by the record, C.T. is not entitled to reversal or a new trial on this ground.

VII.

Finally, C.T. moves to strike references in the guardian ad litem's brief addressing C.T.'s progress on her case plan following the close of proceedings in district court.  The record on appeal consists of the "papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any."  Minn. R. Civ. App. P. 110.01.  Ordinarily, we may not consider matters outside the record on appeal and must strike references to such matters from the parties' briefs.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App.1992), aff'd, 504 N.W.2d 758 (Minn. 1993).  Because this evidence was not part of the district court file, we grant C.T.'s motion to strike the references in the guardian ad litem's brief that are outside the record on appeal.

Affirmed; motion granted.

[1] C.T.'s history includes two prior child-protection reports.  The first report, from April 2003, alleged educational neglect of the older children.  The incident was resolved to the satisfaction of Hennepin County Child Protection when, in May 2003, C.T. agreed to grant her mother temporary physical custody of the three older children, and the Alternative Response program of African American Family Services began providing C.T. with parenting support.  The second report, from August 2003, alleged that, during a weekend visit with their mother, K.L and K.D. found a gun wrapped in a blanket inside a stereo speaker.  After both children handled the gun, they gave it to C.T. and Y.W.  The children also reported finding bullets in the front yard of the home.  This investigation also revealed that C.T. smoked marijuana when the children were present.  Hennepin County Child Protection found maltreatment by C.T., and the case was closed on August 27, 2003.

[2]A legal presumption

is not evidence, but is rather a rule of law dictating decision on unopposed facts and shifting the burden of going forward with the evidence.  The presumption obtains until substantial proof to the contrary is introduced.  Then it ceases and vanishes from the case.  The case is then to be decided by the trier of fact the same as if the presumption had never existed.

Ogren v. City of Duluth, 219 Minn. 555, 564, 18 N.W.2d 535, 540 (1945) (citation omitted).