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

In the Matter of the Welfare of the Child of S.M., Parent. A05-182, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and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

A05-182

 

 

In the Matter of the Welfare of the

Child of S.M., Parent.

 

 

Filed September 9, 2005

Affirmed; motion denied Willis, Judge

 

Hennepin County District Court

File No. J6-04-053998

 

 

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

 

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

 

John M. Jerabek, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN  55402 (for respondent guardian ad litem of F.M.)

 

Kimary Knutson, Knutson Law Office, 1900 Hennepin Avenue, Minneapolis, MN  55403 (for respondent guardian ad litem of S.M.)

 

            Considered and decided by Klaphake, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

On appeal from the termination of her parental rights, appellant mother argues (1) that the record lacks clear and convincing evidence that at the time of trial she was unable to parent her child and (2) that the district court abused its discretion by admitting certain documents under the business-record exception to the hearsay rule and by taking judicial notice of certain other documents.  Because the district court's findings are supported by clear and convincing evidence and because appellant has not shown any prejudice resulting from the district court's evidentiary rulings, we affirm.

FACTS

            Appellant S.M. (mother) was 13 years old in January 2002 when she gave birth to her son, F.M.  Mother's involvement with child-protection services began on July 8, 2002, after a neighbor called the police because mother had left F.M. sleeping and unattended while she went to meet a friend.  At that time, mother was living with her grandmother, but the next day grandmother told mother that she could no longer live with her.  Mother and F.M. were placed briefly in separate shelters until they were placed together in a foster home in St. Cloud in August 2002. 

            On July 12, 2002, Hennepin County Children and Family Services Department (the county) filed a CHIPS petition, alleging that F.M. was a child in need of protection and services because, inter alia, mother regularly left him unattended.  In December 2002, waiving her right to a trial, mother admitted that F.M. was a child in need of protection and services because she was unable to care for F.M. due to her age and F.M.'s needs; mother also agreed that she needed further services and that her compliance with the county's case plan was in F.M.'s best interests. 

The district court transferred legal custody of F.M. to the county and ordered mother to complete a case plan that required her to (1) cooperate with her placement and meet all expectations of the placement; (2) participate either in individual therapy or in a mentoring program while in her placement; (3) complete an updated medical evaluation and follow through with recommendations, including medications; (4) attend school and successfully meet all expectations; (5) meet all of F.M.'s needs, including his medical needs; (6) comply with UAs as requested by child-protection workers; and (7) cooperate with child-protection workers.  Both mother and F.M. were to remain together in their foster-home placement.

            While mother and F.M. were in foster care together, mother received generally positive reports from her child-protection worker.  But in her early reports, the foster mother told the county that mother failed to consistently give F.M. the medication prescribed for his eczema and needed to be told to respond to F.M.'s needs.

On October 12, 2003, mother was arrested and was charged with assaulting two police officers.  Both mother and F.M. were removed from their foster-home placement.  Mother was detained in law-enforcement custody, and F.M. has been in placement without mother continuously since that time. 

While F.M. and mother were in foster care together, F.M. had problems with allergies and a persistent eczema condition.  But F.M.'s doctor noted a significant improvement in F.M.'s eczema condition in the week or so following his removal from the St. Cloud foster-care home.  The doctor stated his belief that F.M. had not been given the recommended medical treatment while with mother at the foster home.

            On October 22, 2003, mother was placed at Agape Group Home, where F.M. could have eventually joined her.  But mother absconded from Agape about one month later.  The juvenile court then ordered mother to St. Croix Camp.  Mother was discharged from the camp after one month because she vandalized staff property and then refused to follow staff direction regarding the consequences.  She was then transferred to the Hennepin County Juvenile Detention Center. 

            In February 2004, mother was placed at Bar-None Residential Treatment Services, where she was given a complete evaluation and was eventually placed in the stabilization unit.  While she was at Bar-None, mother assaulted a staff member by punching him in the back.  The next day mother, along with other residents, assaulted several staff members.  A petition was filed in Anoka County Juvenile Court charging mother with third-degree riot and fifth-degree assault for this incident, and mother admitted the assault.  Eventually, mother made improvements in her behavior while at the stabilization unit, and Bar-None staff noted that she had the ability to "straighten her life out." 

On March 22, 2004, the county filed a petition to terminate mother's parental rights.

            In May 2004, mother was placed by the court at Bishop McNairy Recovery Center.  While at Bishop McNairy, mother pleaded guilty to a citation for fifth-degree assault, but she also made significant progress on her anger and chemical-dependency issues.

             At the termination hearing in July 2004, the district court admitted certain documents over mother's objection and took judicial notice of certain other documents, again over mother's objection.

            On September 7, 2004, the district court terminated mother's parental rights.  Mother moved for a new trial, and the district court denied her motion on January 6, 2005.  This appeal followed.  On appeal, mother filed a motion seeking permission to refer to an August 27, 2004 letter from Bishop McNairy in her brief and to include it in her appendix.  We address this motion below.

D E C I S I O N

I.

When reviewing a termination of parental rights, we determine whether the district court's findings "address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous."  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).  A district court's findings must be clear and specific.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  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).  But we "closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing."  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

District courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b) (2004).  Although the petitioner need only prove one criterion, the primary consideration in any termination proceeding is the best interests of the child.  Id., subd. 7 (2004).  The district court terminated all parental rights to F.M. under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (7),[1] and (8).  Mother argues that the termination of her parental rights was not supported by the evidence "in light of the conditions existing at the time of the hearing" and that her accomplishments in 2004 "demonstrate that she can safely and properly raise her son." 

A.

A district court may terminate parental rights if it finds that "following the child's placement out of the home, [the county's] reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement."  Minn. Stat. § 260C.301, subd. 1(b)(5).  Subdivision 1(b)(2) also requires a finding that the county's reasonable efforts have failed to correct the conditions leading to the child's placement.  Therefore, we review this element first.

Whether the services a county provides constitute "reasonable efforts" depends on the nature of the problem presented, the duration of the county's involvement, and the quality of the county's effort.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996); In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).  These efforts must assist in correcting the conditions underlying the CHIPS adjudication.  Welfare of H.K., 455 N.W.2d at 532.

Mother does not challenge the efforts made by the county, but she argues that "[s]he had completed enough of the original CHIPS order and protective services plan to ensure her son's safety, particularly if she was to be released to a group home."  The district court determined that mother did not correct the conditions that led to the out-of-home placement.  "It is presumed that conditions leading to a child's out-of-home placement have not been corrected upon a showing that the parent . . . [has] not substantially complied with the court's orders and a reasonable case plan."  Minn. Stat. § 260C.301, subd. 1(b)(5)(iii).

Mother's case plan required her to cooperate with her placement and successfully meet all expectations of that placement.  Mother's failure to remain law-abiding and her uncontrolled behavior led to the disruption of her placement with her foster-care home, with Agape, and with St. Croix Camp.  Mother also displayed uncontrolled or violent behavior at Bar-None and at Bishop McNairy.  Although mother appears to have made progress at Bishop McNairy, the record supports the district court's determination that she has displayed a pattern of behavior that "strongly indicates that [she] will have difficulty maintaining a stable placement." 

Mother's case plan also required her to meet all of F.M.'s needs, including his medical needs.  The district court found that F.M.'s needs were not met while he was in mother's care.  This finding is supported by the December 2003 prehearing report, which states that F.M.'s doctor noted a significant improvement in F.M.'s eczema condition in the week or so following his removal from the St. Cloud foster-care home and that the doctor believed that F.M. had not been given the recommended medical treatment while with mother at the foster home.  Further, mother's behavior has resulted in her placement at facilities where she is unable to live with F.M. and is, therefore, unable to meet his needs.

Mother's case plan required her to participate in individual therapy or a mentoring program.  Although the record demonstrates that mother is participating in therapy at Bishop McNairy, the record supports the district court's finding that mother failed to utilize services from a therapist on a long-term basis even though the county made a therapist available to her.  The record also shows that, although the county also provided mother with a referral to the mentoring program, mother worked with a mentoring program for only a short time.

Mother's case plan required her to attend school and successfully meet all requirements.  The district court found that mother did not effectively utilize school services while she lived in St. Cloud.  This finding is supported by the county's October 20, 2003 prehearing report, which states that mother had problems completing her work, had erased another student's name from a required homework assignment and put her name in its place, and had received detention for bringing a knife to school.

Although the district court's findings do not address every element of mother's case plan, its findings support the conclusion that mother did not substantially comply with the district court's orders or with her case plan.  The district court's conclusion that reasonable efforts have failed to correct the conditions leading to the child's need for protection or services is supported by the district court's findings that mother failed to cooperate with her placements and failed to meet F.M.'s needs, the two conditions that appear from the record to have most influenced the decision to remove F.M. from mother's care.  Further, the record supports the district court's finding that mother will not be able to maintain stable placement or meet F.M.'s needs in the reasonably foreseeable future. 

Subdivision 1(b)(5) lists elements that create a presumption that reasonable efforts have failed, but the district court's findings do not address each element of the presumption.  While the presumption therefore does not apply here, we conclude that the district court's findings address the necessary statutory criteria, are supported by substantial evidence in the record, and are not clearly erroneous.  Therefore, we also conclude that clear and convincing evidence supports the district court's decision to terminate mother's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5).

B.

            A district court may also terminate parental rights if it finds "that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship" and that "either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable."  Minn. Stat. § 260C.301, subd. 1(b)(2).  A parent's failure to complete key elements of the court-ordered case plan "provides ample evidence of [the parent's] lack of compliance with the duties and responsibilities of the parent-child relationship."  In re Child of Simon, 662 N.W.2d 155, 163 (Minn. App. 2003); see also In re Welfare of J.S., 470 N.W.2d 697, 701-02 (Minn. App. 1991) (noting that parents' failure to obtain suitable housing, to maintain visitation with their children, and to regularly attend social-service appointments and therapy sessions demonstrated a lack of compliance with parental duties, as required by subdivision 1(b)(2)), review denied (Minn. July 24, 1991). 

The district court found that "[h]ad [mother] successfully completed the programming and services offered to her, she could have continued to care for [F.M.]"  As noted above, the district court's findings support the conclusion that mother did not substantially comply with her case plan, and the record supports these findings.  Further, mother's failure to comply with her case plan, particularly her failure to comply with the elements requiring cooperation with her placement and meeting F.M.'s needs, directly affected mother's ability to comply with her parental duties.

The district court noted that despite mother's relative success at Bishop McNairy and her sincere testimony at trial, "[t]he record . . . establishes that the failure to comply with parental duties will endure into the reasonably foreseeable future."  Mother argues that this conclusion is not supported by clear and convincing evidence in light of mother's progress in treatment programs in 2004. 

To terminate a parent's parental rights, a district court must determine whether the parent is presently able to assume her responsibility as a parent, not whether from time to time the parent has been "derelict" in her duties.  In re Linehan, 280 N.W.2d 29, 31 (Minn. 1979).  But a parent's improvement immediately before the termination hearing does not necessarily make clearly erroneous a district court's conclusion that the parent's poor parenting would likely continue.  In re Welfare of J.K., 374 N.W.2d 463, 466 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985).

            The district court noted that mother was placed in a highly structured environment at Bishop McNairy and that her success over the two months preceding the termination hearing is not "sufficient to demonstrate a substantial probability that she will succeed in a less restrictive environment in the reasonably foreseeable future."  In light of mother's behavioral incidents at Bar-None and at Bishop McNairy and the overall pattern of her behavior reflected in the record, the district court's finding is not clearly erroneous.

            To terminate parental rights under subdivision 1(b)(2), the district court must also find that "reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable."  Minn. Stat. § 260C.301, subd. 1(b)(2).  As discussed above, we conclude that the record supports the district court's finding that the county made reasonable efforts and that those efforts failed to correct the conditions that formed the basis of the petition to remove F.M. from mother's care.  Because the district court's findings address the statutory criteria, are supported by substantial evidence in the record, and are not clearly erroneous, we conclude that clear and convincing evidence also supports the district court's decision to terminate mother's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2).

C.

            A district court may terminate all rights of a parent to a child if the district court finds that "the child is neglected and in foster care."  Minn. Stat. § 260C.301, subd. 1(b)(8).  A child is neglected and in foster care if (1) the child has been placed in foster care by court order; (2) the parent's circumstances, condition, or conduct is of a type that makes it impossible to return the child to the parental home; and (3) the child's parent has "failed to make reasonable efforts to adjust their circumstances, condition or conduct."  Minn. Stat. § 260C.007, subd. 24 (2004).

            A district court must consider seven factors when determining whether a child is neglected and in foster care:  (1) the length of time the child has been in foster care; (2) the parent's efforts to adjust the circumstances, conduct, or conditions that led to the child's removal from the home; (3) whether the parent has visited the child within the three months preceding the filing of the petition to terminate parental rights; (4) whether the parent has maintained regular communication with the agency or person temporarily responsible for the child; (5) the adequacy of services provided to the parent to facilitate a reunion; (6) whether additional services would likely bring about lasting parental adjustment, such that the child could be returned to the parent; and (7) the nature of the efforts made by the social-services agency to reunite the family.  Minn. Stat. § 260C.163, subd. 9(1)-(7) (2004).

            Here, the district court found F.M. to be neglected and in foster care.  But the district court made no findings regarding (1) whether mother visited F.M. within the three months before the petition to terminate her parental rights was filed, (2) whether mother maintained regular communication with the county, and (3) whether additional services would likely bring about lasting parental adjustment so that F.M. could be returned to mother.  Because the district court failed to address each of the factors required by section 260C.163, subd. 9(1)-(7), we conclude that the district court's findings do not support by clear and convincing evidence the conclusion that F.M. was neglected and in foster care. 

But the county need only prove one statutory criterion to terminate parental rights.  Minn. Stat. § 260C.301, subd. 1(b).  We acknowledge the efforts mother made during the two months preceding the termination hearing, but substantial evidence in the record supports the district court's finding that it would serve F.M.'s best interests for him to live in a stable environment and a permanent home and that mother is not capable of providing this in the reasonably foreseeable future.  Because the termination of mother's parental rights is supported under Minn. Stat. § 260C.301, subd. 1(b)(2) and (5), and is in F.M.'s best interests, we affirm the district court's termination of mother's parental rights.

II.

Mother argues that the juvenile court abused its discretion by admitting into evidence certain documents without proper foundation.  Evidentiary rulings concerning foundation are within the district court's sound discretion, and we will only reverse when that discretion has been clearly abused.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).  A party is not entitled to a new trial because of improper evidentiary rulings unless the complaining party demonstrates prejudicial error.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).

Here, mother argues that the district court admitted into evidence certain documents even though the county attorney failed to lay the foundation for those documents required by Child of Simon.  In Child of Simon, this court determined that the district court abused its discretion by admitting a letter from a therapist when the social worker introducing the letter did not and could not lay an adequate foundation for the letter's admission under the business-records exception to the hearsay rule, when the letter was prepared in anticipation of litigation and contained an opinion on the ultimate issue of the case.  662 N.W.2d at 160-61. 

Here, mother does not address what foundation was laid, why it was improper, or what prejudice resulted from the admission of the evidence.  Further, mother relies on all but two of the objected-to documents in the statement of facts in her appellate brief and refers to some of the documents in her argument.  Even if appropriate foundation was not laid, mother fails to show that she was prejudiced by the admission of the documents at issue.

Mother also argues that the district court abused its discretion by taking judicial notice of documents relating to mother's delinquency and long-term foster-care statuses.  Although mother objected prehearing to the proposed taking of judicial notice, she waived her objection when the documents at issue were actually offered.

"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).  In juvenile-protection cases, a district court may also take judicial notice of "findings of fact and court orders in the juvenile protection court file and in any other proceeding in any other court file involving the child or the child's parent."  Minn. R. Juv. Prot. P. 3.02, subd. 3.  "Court records and files from prior adjudicative proceedings are an appropriate subject for judicial notice by the court."  In re Welfare of D.J.N., 568 N.W.2d 170, 174 (Minn. App. 1997). 

Here, it appears that the majority of documents of which the district court took judicial notice are court records and orders from mother's Hennepin County juvenile-delinquency file; many are orders signed by the same district court judge who presided at the termination hearing.  We conclude that the district court did not abuse its discretion by taking judicial notice of the documents in mother's juvenile-delinquency file.

As to the balance of the documents of which the district court took judicial notice, to justify the granting of a new trial, mother must demonstrate prejudice resulting from the district court's alleged abuse of discretion.  See Kroning, 567 N.W.2d at 46.  But mother fails even to claim prejudice resulting from the judicial notice taken of these documents. 

Because mother fails to argue that she was prejudiced by the district court's admission of objected-to documents or by the judicial notice taken of other documents, we conclude that mother has not demonstrated prejudice from any alleged abuse of discretion by the district court's evidentiary rulings, and therefore, she is not entitled to a new trial.

III.

On appeal, mother moved under Minn. R. Civ. App. P. 110.05 for permission to refer to an August 2004 letter from Bishop McNairy in her brief and to include it in her appendix.

"This court may not base its decision on matters outside of the record on appeal."  Stephens v. Bd. of Regents of Univ. of Minn., 614 N.W.2d 764, 769 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  But rule 110.05 allows the correction or modification of the record in some circumstances:

If anything material to either party is omitted from the record by error or accident or is misstated in it, . . . the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be approved and transmitted.  All other questions as to the form and content of the record shall be presented to the appellate court.

 

Minn. R. Civ. App. P. 110.05.  Corrections to the record under rule 110.05 are not appropriate when the documents sought to be introduced were not before the district court.  See Stephens, 614 N.W.2d at 769-70. 

Here, mother does not argue that the letter was omitted by error or by accident.  Further, she does not indicate that the letter was filed or provided to the district court; she only indicates that the district court may have had it before it made its decision.  And we note that while the August 2004 letter is not in the district court file, there is an even more current letter from Bishop McNairy, dated in October 2004, that is in the file.

Mother, relying on In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980), also argues that Minnesota courts have made decisions regarding termination of parental rights based on information that was made available after the termination hearing.  The Chosa court stated that its decision was "influenced" by facts made available at oral argument but that the record also supported its decision.  290 N.W.2d at 769.  Chosa did not address supplementing the record before the appellate court.  Id. 

We deny mother's motion to include the August 2004 letter in the record and have not considered it in our deliberations.

Affirmed; motion denied.

[1] Although the district court's order terminated parental rights to F.M. under subdivision 1(b)(7), this subdivision terminates the parental rights of F.M.'s father, is not applicable to mother, and will not be reviewed here.