In the Matter of the Welfare of the Children of J.S.

This opinion will be unpublished and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

A04-79

 

In the Matter of the Welfare of the Children of J.S.

 

Filed August 25, 2004

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. FAM 220505; J5-02-57908; J1-02-66783

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Mary A. Torkildson, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant J.S.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Health Services Building, 525 Portland Avenue South, Suite 1200, Minneapolis, MN  55415 (for respondent Hennepin County Human Services Department)

 

Jonathan G. Steinberg, 1155 Grain Exchange East Building, 412 South Fourth Street, P.O. Box 15085, Minneapolis, MN  55415 (for guardian ad litem Patricia Timpane)

 

            Considered and decided by Anderson, Presiding Judge; Peterson, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

On appeal in this juvenile-protection matter, appellant-mother argues that the district court made findings inadequate to support its transfer of the children's custody.  We affirm.

FACTS

            Appellant-mother J.S. is the parent of three children, Ra.S., born in January 1990; Re.S., born in December 1990; and J.S., born in April 1995.  On May 17, 2002, respondent Hennepin County Department of Children and Family Services (DCFS) filed a petition alleging that the three children were in need of protection and services (CHIPS petition).  At that time, the children's grandmother, L.S., had custody of them under a December 13, 1999, district court order transferring legal and physical custody from mother to grandmother.  At the initial hearing on the 2002 CHIPS petition, grandmother sought to be relieved of her obligations under the December 1999 order, and DCFS filed an amended CHIPS petition naming mother as the respondent.

After the amended CHIPS petition was filed in 2002, DCFS and mother worked on a court-supervised case plan while the children remained in out-of-home placement.  The case plan focused on chemical use, domestic violence, adequate supervision, and housing.  On October 15, 2002, DCFS filed a petition seeking to terminate mother's parental rights to her three children or, alternatively, to transfer legal and physical custody of the children to relatives.  Following an evidentiary hearing, DCFS agreed to mother's request to remove the termination allegations from the petition.

By order filed December 19, 2002, the children were reunited with mother.  The district court directed mother to cooperate with DCFS, be the only adult in the home, participate in an in-home therapy program, and continue with African American Family Services' (AAFS) aftercare, anger-management, and individual-therapy programs.

            In March 2003, DCFS sought and obtained an order removing the children from mother's care based on mother's failure to comply with her case-plan requirements.  By order filed April 8, 2003, the district court returned the children to mother.  Following a review hearing, the district court found that the parties disagreed about mother's compliance with the case plan and ordered that the children attend school each day; that mother submit to urinalyses (UAs) on Mondays, Wednesdays, and Fridays, with missed tests counting as positive results; and that mother comply with other case-plan requirements.  Following a hearing in May 2003, the district court found that mother was out of compliance with the case plan and that it was in the children's best interests to be removed from her care.

The case proceeded to trial.  Richard Johnson, a social worker for DCFS who was assigned to this case in November 2002, testified that when he was assigned to this case, he reviewed all of the documents in the file.  Johnson testified that when the children were returned to mother in December 2002, the case plan required that mother submit to UAs; that the children be enrolled in school; and that in-home and chemical-dependency support programs be provided for mother.  Johnson testified that mother's compliance with the chemical-dependency part of the case plan was very sporadic:  mother submitted to only a few UAs and attended only two or three aftercare treatment sessions.  DCFS referred mother to two agencies to work with the family, AAFS and Choices.  A therapist employed by Choices was assigned to provide individual and family therapy and to address mother's chemical dependency.  Johnson stated that initially, mother complied with the services provided by the therapist, but later she became inconsistent and eventually avoided the therapist.  Johnson testified that mother's compliance with that aspect of the case plan was minimal.  Johnson maintained contact with school officials and made unannounced visits to the school.  Despite DCFS addressing with mother the importance of the children maintaining good attendance at school, the children's school attendance records showed a consistent pattern of tardiness and absences excused by mother.  Johnson testified that mother was not supportive of the school structure and failed to have the children consistently attend school.  Johnson opined that as of May 2003, mother's case-plan compliance was very poor.   He also testified that following the children's removal from mother's home in May 2003, mother did no work on the case plan.

Johnson also opined that it would be in the children's best interests for the district court to transfer (1) shared legal custody of Re.S. to E.S. and D.S. (relatives of the children); (2) physical custody of Re.S. to E.S.; and (3) sole legal and physical custody of Ra.S. and J.S. to D.S.  The guardian ad litem also opined that these custody transfers would be in the children's best interests.  She testified that the family had worked together very hard to come up with the best possible option for the children and that permanency was important for all three children.  D.S. and E.S. testified that they were prepared to assume legal and physical custody of the children.

            The district court ruled from the bench that it would grant the custody transfers, stating:

The decision seems very clear to me.  And I have looked at all of these exhibits at one time or another, so I'm not disregarding the exhibits.  I have read them by reading back through the file and by things that were offered to me.

 

            And so based on everything I see, I believe that a transfer of legal custody is, as proposed, is appropriate . . . .

 

On November 17, 2003, the district court issued two orders, one transferring custody of Ra.S. and J.S. to D.S., and another transferring joint legal custody of Re.S. to D.S. and E.S., and physical custody of Re.S. to E.S.  The district court denied mother's motion for a new trial.  This appeal followed.

D E C I S I O N

            Mother argues that the district court's findings are inadequate to support the custody transfers.  When reviewing a permanent-placement order, this court determines "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)).  "[T]he county must prove the allegations of the petition for permanent placement by clear and convincing evidence," and this court views the evidence and its reasonable inferences in the light most favorable to the prevailing party.  A.R.G.-B., 551 N.W.2d at 261; see also Minn. R. Juv. Protect. P. 39.04, subd. 1 (statutory grounds set forth in petition must be proven by clear and convincing evidence).

            Citing In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn. 1990), mother argues that the district court's findings are inadequate.  In M.M., the supreme court stated:

[T]he trial court merely recited or summarized excerpted portions of testimony of several . . . witnesses without commenting independently either upon their opinions or the foundation for their opinions or the relative credibility of the various witnesses.  It made no specific findings with regard to [mother's] past or present ability to fulfill parental responsibilities and instead only concluded, without reference to the basis therefor, that the "best interests" of the child would be advanced by a placement with the commissioner.  Standing alone, the "findings" are inadequate to facilitate effective appellate review, to provide insight into which facts or opinions were most persuasive of the ultimate decision, or to demonstrate the trial court's comprehensive consideration of the statutory criteria.

 

Id.

Finding no. 13 in the order transferring custody of Ra.S. and J.S. and finding no. 11 in the order transferring custody of Re.S. both state:

[M]other has failed to cooperate with the Hennepin County Children, Family and Adult Services Department and failed to comply with her Court-supervised case plan as follows:

                        . . . [Mother] has failed to document sobriety

                        . . . [Mother] has failed to complete chemical dependency treatment

                        . . . [Mother] has failed to successfully engage in in-home therapy

                        . . . [Mother] has failed to ensure her children's attendance in school

                        . . . [Mother] has failed to . . . maintain consistent contact with children when in placement

                        . . . [Mother] has failed to maintain contact with [d]epartment workers

 

These findings, as well as other findings by the district court, do more than merely recite or summarize the evidence.  Although the district court's findings do not cite to evidence in the record, the findings do tell this court what facts were found by the district court.  The district court is not required to cite the evidence supporting its findings because it is permissible for this court to assume that the district court found credible the evidence supporting its findings.  See A.R.G.-B., 551 N.W.2d at 261 (stating this court views the evidence and its reasonable inferences in the light most favorable to the prevailing party).  Knowing the facts that were found and assuming the credibility of the evidence supporting those facts, this court can then look to the record to determine whether the findings are supported by substantial evidence.  The district court's findings are sufficient to permit effective appellate review.

Regarding the statutory criteria, Minn. Stat. § 260C.201, subd. 2(a) (2002), states:

            Any order for a disposition authorized under this section shall contain written findings of fact to support the disposition and case plan ordered and shall also set forth in writing the following information:

            (1) Why the best interests and safety of the child are served by the disposition and case plan ordered;

            (2) What alternative dispositions or services under the case plan were considered by the court and why such dispositions or services were not appropriate in the instant case;

            (3) When legal custody of the child is transferred, the appropriateness of the particular placement made or to be made by the placing agency using the factors in section 260C.212, subdivision 2, paragraph (b); and

            (4) Whether reasonable efforts consistent with section 260.012 were made to prevent or eliminate the necessity of the child's removal and to reunify the family after removal.  The court's findings must include a brief description of what preventive and reunification efforts were made and why further efforts could not have prevented or eliminated the necessity of removal or that reasonable efforts were not required under section 260.012 or 260C.178, subdivision 1.

 

            The district court found that the children had been under court jurisdiction since May 2002 and in out-of-home placement since May 2003.  The district court found that DCFS had made reasonable efforts to reunify the children with mother.  The court specifically identified the services offered and found that they "were relevant to the safety and protection of the children, adequate to meet the needs of the children and family, culturally appropriate, available, accessible, consistent and timely, and realistic under the circumstances."  The district court found that mother failed to comply with her court-supervised case plan and specifically identified the items of noncompliance.  The district court found that D.S. and E.S. were suitable custodians, explaining that they were mentally and physically able to provide for the children's needs; had the capacity and disposition to give the children love, affection, and guidance, to continue their education, and to raise the children in their culture, religion or creed; and had cooperated with DCFS in providing for the children's needs.  Regarding Ra.S. and J.S.'s best interests, the district court found that D.S. had been the children's primary caretaker since August 2003 and had been involved in their lives before the placement; the children had developed a close, intimate relationship with D.S.; the children had made a good adjustment to D.S.'s home, school, and community; and the children would be able to maintain a relationship with their relatives.  Regarding Re.S.'s best interests, the district court found that E.S. had been Re.S.'s primary caretaker since August 2003 and E.S.'s home had provided a stable and satisfactory environment; D.S. and E.S. were involved in Re.S.'s life before the placement; D.S. and E.S. were capable of jointly providing the necessary, care, guidance, and control of Re.S.; D.S. and E.S. were committed to working together to meet Re.S.'s needs and engage in all necessary decision-making; Re.S had developed a close, intimate relationship with E.S and D.S.; Re.S. had made a good adjustment to E.S.'s home, school, and community; and Re.S. would be able to maintain a relationship with her relatives.  These findings address the relevant statutory criteria.

Given the preference for placement with relatives, the district court was not required to consider alternatives.  See Minn. Stat. § 260C.201, subd. 1(2)(ii) (2002) (directing court to give consideration for relatives in transfer of legal custody).  Although the district court did not specifically address further efforts that could have been made, the findings regarding the services offered to mother, their appropriateness, and mother's noncompliance are sufficient to satisfy Minn. Stat. § 260C.201, subd. 2(a)(4).

Mother also raised evidentiary issues in her brief.  "Error may not be predicated on a ruling which admits evidence unless a substantial right of the party is affected."  In re Welfare of J.H.D., 416 N.W.2d 194, 199 (Minn. App. 1987) (citing Minn.  R. Evid. 103(a)), review denied (Minn. Feb. 12, 1988).  The district court's comments at the end of trial show that it relied on all of the evidence in the file in reaching its decision, and mother's attorney conceded at oral argument that the evidence admitted without objection is sufficient to support the district court's findings of fact.  Our review of the record satisfies us that any error in admitting evidence was harmless.

Affirmed.