In the Matter of the Welfare of the Child of V.D., Parent.

In the Matter of the Welfare of the Child of V.D., Parent. A06-2270, Court of Appeals Unpublished, July 3, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2270

 

In the Matter of the Welfare of the Child of V.D., Parent.

 

Filed July 3, 2007

Affirmed; motions denied

Peterson, Judge

 

Hennepin County District Court

File No. 27-JV-06-7079

 

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

 

Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1210 Health Services Building, 525 Portland Avenue South, Minneapolis, MN  55415 (for respondent Hennepin County Children, Family & Adult Services Department)

 

Krisann C. Kleibacker Lee, Bruce Jones, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402 (for respondent guardian ad litem Gary Soule)

 

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

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            This appeal is from an order terminating appellant mother's parental rights and an order denying mother's motion for a new trial.  Mother has moved to strike items submitted to this court by respondent guardian ad litem.  We affirm the order terminating mother's parental rights and deny mother's motions to strike.

FACTS

            Appellant-mother V.D. has four children; her parental rights to three of the children were terminated by an Illinois court in 1997.  Mother's fourth child, D.D., who was born on December 26, 2001, is the focus of this proceeding.  Mother was residing in an in-patient chemical-dependency treatment program when D.D. was born.  On December 28, 2001, D.D. was placed with mother's cousin. 

            Before D.D. was born, Hennepin County Children, Family & Adult Services Department (department) made a finding of maltreatment due to prenatal exposure to drugs.  Mother tested positive for illegal drugs at the time of D.D.'s birth.  D.D. was adjudicated a child in need of protection or services on February 21, 2002, based on mother's admissions that she had a lengthy chemical-dependency history and that her chemical dependency interfered with her ability to parent.  A case plan was ordered, and mother engaged in services offered to her, which included chemical-dependency treatment, supervised visitation, psychological evaluations, parenting assessments, and random urinalyses. Mother completed chemical-dependency treatment through Eden Day Women's Program on April 5, 2002, and D.D. was reunified with mother on June 13, 2002.  During aftercare, mother participated in a parenting group and support groups for chemical dependency and HIV.  In August 2002, mother reported that she had relapsed and used crack cocaine.  Because of her commitment to sobriety, mother was not discharged from the treatment program, and she completed aftercare on October 18, 2002. 

            On October 31, 2002, mother reported that she had used crack cocaine and requested permission to place D.D. back in foster care for D.D.'s own safety.  Mother then left Minnesota for approximately two months.  In January 2003, the department filed a petition to terminate mother's parental rights.  Upon her return to Minnesota, mother completed a chemical-dependency treatment program at Recovery Resource Center (RRC).  D.D. was reunified with mother on October 29, 2003.  Following reunification and a period of stability and sobriety for mother, the child-protection case was dismissed on March 8, 2004. 

            Mother maintained sobriety for approximately two and a half years.  Based on reports that D.D. was endangered because mother was using illegal drugs, neglecting D.D., and exposing D.D. to domestic abuse, the department initiated a child-protection proceeding in January 2006.  D.D. was moved to a shelter in January 2006, and into foster care in February 2006.  D.D. resided in non-relative foster care because no relatives were licensed for placement.  On March 6, 2006, mother entered RS Eden Women's Residential and Day Program for chemical-dependency treatment with a diagnosis of cocaine and cannabis dependence.  After failing to return to the program following a hospital visit, mother was discharged on March 15, 2006, with a poor prognosis. 

            Between March 7, 2006, and May 9, 2006, mother submitted to urinalysis tests.  Seven tests were positive for cocaine.  In June 2006, mother missed three urinalysis tests.  Because mother was actively using illegal drugs and was not engaged in treatment and not working toward reunification, the case was transferred to the department's permanency unit in late March 2006 and assigned to social worker Sherry Holloway. 

            On March 22, 2006, D.D. was adjudicated a child in need of protection or services based on mother's admission that she has a history of chemical dependency that has negatively interfered with her ability to safely and appropriately parent D.D.  Mother admitted that she needed services that included residential chemical-dependency treatment and that she was unable to parent at that time because she needed help to stop her dependence on cocaine. 

            The district court ordered mother to comply with the following case plan:  complete a chemical-health assessment and requested updates and follow all recommendations; successfully complete chemical-dependency treatment and aftercare and follow recommendations; maintain sobriety and submit to urinalysis as requested; obtain safe and suitable housing; complete a parenting assessment and follow recommendations; participate in parenting education; cooperate with the department and the guardian ad litem; cooperate as requested with Early Childhood Education Assessment for the child; attend all medical and dental appointments for D.D.; and maintain medication compliance for her own health. 

            On April 27, 2006, mother completed an updated chemical-health assessment, and at her request, she was referred to RRC.  Mother began the court-ordered chemical-dependency treatment on May 8, 2006, and she received positive progress reports from RRC in June and July 2006.  Mother was not scheduled to complete primary chemical-dependency treatment at RRC until September 8, 2006.  The treatment required six additional months of aftercare after September 8, 2006. 

            Mother also completed her parenting assessment on May 18 and 19, 2006.  But at the time of trial, she had not started the recommended intensive parenting program, which is estimated to last a minimum of one year, and had not completed her psychiatric evaluation.

            D.D. was evaluated for special-education services due to her developmental delays, which date back to mother's drug use while pregnant.  D.D. has delays in speech and language and in adaptive, motor, communication, and cognitive skills.  Mother failed to attend a school meeting to discuss D.D.'s special-education evaluation. 

            On May 16, 2006, the department filed a petition to terminate mother's parental rights to D.D.  The petition alleged that mother is palpably unfit to be a party to the parent-and-child relationship under Minn. Stat. § 260C.301, subd. 1(b)(4) (2006); reasonable efforts have failed to correct the conditions leading to the out-of-home placement under Minn. Stat. § 260C.301, subd. 1(b)(5) (2006); and the child is neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8) (2006).  The district court determined that clear and convincing evidence existed to terminate mother's parental rights under all three statutory criteria.  Mother moved for a new trial, and the motion was denied.  This appeal followed.

 

D E C I S I O N

1.         Evidentiary Rulings

            Mother argues that the district court erred in admitting evidence over hearsay and foundation objections.  Absent an erroneous interpretation of the law, whether to admit or exclude evidence is a question within the district court's broad discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  Mother argues that the district court abused its discretion in admitting evidence under the business-records exception to the hearsay rule and by taking judicial notice of documents. 

A.         Business Records

            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-records exception applies to

[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).  The supreme court has held that in proceedings to terminate parental rights, medical and social-worker reports, evaluations, and summaries relating to the physical and psychological health of the children are admissible as business records when they are kept in the social worker's file and it is a regular business practice to keep the reports.  In re Welfare of Brown, 296 N.W.2d 430, 432-35 (Minn. 1980).

            Mother contends that the department introduced 13 documents, to which she objected, that were incorrectly admitted as business records.  But mother has not identified and analyzed 13 documents; she has only cited page numbers for the trial-transcript pages where a number of documents were admitted.  In the absence of adequate briefing, we will not address the admissibility of documents that have not been specifically identified and analyzed.  See State, Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (order op.) (declining to reach issue in absence of adequate briefing); Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by legal analysis or citation).  Mother has identified and analyzed four documents as improperly admitted under the business-records exception to the hearsay rule, and we will address these documents.

            Mother objected to the admission of exhibits 1, 11, 17, and 33[1] on the basis that they are not within the business-records exception to the hearsay rule.  Mother argues that under In re Child of Simon, 662 N.W.2d 155 (Minn. App. 2003), the district court should not have admitted these documents.  In Simon, this court held that a social worker failed to lay the necessary foundation for documents to be admitted under the business-records exception to the hearsay rule.  662 N.W.2d at 160-61.  We do not read Simon as establishing a rule of law.  Rather, Simon reflects a determination that the decision to admit evidence is highly fact-specific and that the factors necessary to establish foundation depend on the circumstances of each case.  See Benson v. N. Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990) (stating "we reiterate that by their very nature, evidentiary rules demand a case by case analysis"). 

            Exhibits 1 and 11 are both chemical-health evaluations.  Chemical-health evaluations are within the categories of documents described in Brown as properly admitted under the business-records exception to the hearsay rule.  296 N.W.2d at 432-35.  The social worker's testimony established that she received the evaluations in the course of providing case management for mother; it was the department's practice to request such documents from service providers; she routinely kept such documents in the case file; and she relied on the documents in the course of her work.  Accordingly, the district court did not abuse its discretion by admitting the chemical-health evaluations as business records.

            Exhibit 17 is mother's discharge summary from RS Eden.  Under her case plan, mother was required to enter chemical-dependency treatment.  A social-services professional may provide foundation for business records of other agencies that were ordered by the district court to issue reports and that are part of the social-service professional's file.  See In re Welfare of R.T., 364 N.W.2d 884, 886 (Minn. App. 1985) (holding, in dependency and neglect proceeding, that reports of social workers and psychologists relating to children's emotional condition were admissible under business-records exception).  Accordingly, the district court did not abuse its discretion by admitting the discharge summary under the business-records exception to the hearsay rule. 

B.         Judicial Notice

            Mother argues that the district court erred by taking judicial notice of some documents.  "[R]ulings on the admissibility of evidence are left to the sound discretion of the trial court."  In re Conservatorship of Torres, 357 N.W.2d 332, 341 (Minn. 1984).  The Rules of Juvenile Protection Procedure state:

In addition to the judicial notice permitted under the Rules of Evidence, the court, upon its own motion or the motion of any party or the county attorney, may take judicial notice only 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 or legal custodian.

 

Minn. R. Juv. Prot. P. 3.02, subd. 3 (emphasis added). The district court granted the department's motion to take judicial notice of court-ordered reports that were filed in the district court in advance of mother's review hearings and of orders of the Hennepin County District Court related to D.D.  Mother argues that there is no authority for the district court to take judicial notice of the court-ordered reports. 

            But in In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980), the district court in a termination-of-parental-rights case took judicial notice of the files and records of the district court's juvenile and criminal divisions over the objection of the father whose parental rights were being terminated.  Citing Minn. R. Evid. 201(b), which states, "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[,]"[2] the supreme court in Clausen affirmed the decision to admit the files and records.  289 N.W.2d at 156-57.  The supreme court explained:

            The function of judicial notice is to expedite litigation by eliminating the cost or delay of proving readily verifiable facts.  Judicial notice of records from the court in which a judge sits would appear to greatly serve this function and satisfy the requirement of Rule 201(b)(2).

 

Id.at 157 (citation omitted).  Because we see no basis for distinguishing the court-ordered reports that were filed in advance of mother's review hearings from the files and records that the court took judicial notice of in Clausen, we conclude that the district court did not abuse its discretion by taking judicial notice of the court-ordered reports.

            The district court also took judicial notice of orders of a Cook County, Illinois court that indicate that mother's parental rights to three children were involuntarily terminated in default proceedings.  Mother argues that Minn. R. Juv. Prot. P. 3.02, subd. 3, does not apply to court orders issued in another state.  But the plain language of rule 3.02, subd. 3 permitted the district court to take judicial notice of "court orders . . . in any other proceeding in any other court file involving the child or the child's parent."  (Emphasis added.)  The Illinois court orders are orders in other court proceedings that involve D.D.'s parent.  The district court did not abuse its discretion by taking judicial notice of the Illinois orders.

2.         Expert Testimony

            Mother argues for the first time on appeal that the district court relied on the testimony of psychologists and social workers who were not properly qualified as experts.  Mother did not object to the qualifications of the witnesses during the trial, and her motion for a new trial did not address the witnesses' qualifications.  Because this issue was not addressed by the district court, we will not address it on appeal.  See Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) (stating that evidentiary rulings are subject to appellate review "only if" they are assigned as error in a new-trial motion); see also In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997) (noting that gravity of termination proceedings is an insufficient reason to abandon established rules of appellate practice).

3.         Sufficiency of the Evidence

Mother argues that the county failed to prove by clear and convincing evidence that her parental rights should be terminated under any of the statutory bases asserted in the petition.  On appeal in a termination proceeding, "appellate courts 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. 

The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see Minn. Stat. § 260C.301, subd. 1(b) (2006) (listing nine criteria).  We consider the conditions as they existed at the time of the termination hearing and rely "to a great extent upon the projected permanency of the parent's inability to care for his or her child."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotation omitted).  District courts must make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  "Considerable 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).

The district court determined that clear and convincing evidence existed to terminate mother's parental rights under all three statutory bases alleged in the petition.  Proof of one statutory basis is sufficient, and in any termination proceeding, the best interests of the child must be the paramount consideration.  Minn. Stat. § 260C.301, subd. 7 (2006).

            Parental rights may be terminated if the juvenile court finds

that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.  It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent's parental rights to one or more other children were involuntarily terminated. . . .   

 

Minn. Stat. § 260C.301, subd. 1(b)(4).  A parent's inability to address a child's physical, mental, and emotional needs now and in the reasonably foreseeable future justifies termination.  In re Child of P.T., 657 N.W.2d 577, 591 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).  "If a parent's behavior is likely to be detrimental to the children's physical or mental health . . ., the parent can be found palpably unfit and have his parental rights terminated."  In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn. App. 2003).  A parent's condition can provide a context for conduct that supports a determination of palpable unfitness even where the conduct alone may not compel that determination.  In re Welfare of A.V., 593 N.W.2d 720, 721-22 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).

            Mother argues that the district court erred by applying the statutory presumption of palpable unfitness based on the termination proceedings in Illinois because the Illinois terminations occurred at default hearings for which she never received actual service and at which she was not represented by counsel and, therefore, the Illinois orders are void. But we need not address this argument because we conclude that even without applying the statutory presumption the district court did not err in determining that mother is palpably unfit to be a party to the parent-and-child relationship.

            The record demonstrates that, at the time of trial, mother had substantially complied with her case plan for three months.  However, the district court found that

[m]other has not demonstrated an ability to sustain sobriety and handle the stresses of parenting in the past.  Although [mother] was sober for several months at the time of trial her history of relapsing back to using cocaine renders her unfit to parent [D.D.] and provide her with the long-term permanent stability and nurturing that [D.D.] needs. 

 

The district court also found that mother

is palpably unfit to parent the child because of a consistent pattern of chemical use which dates back to use of marijuana beginning at age 13 and use of crack cocaine since age 21.  Despite referrals to at least 12 chemical dependency treatment programs during her lifetime, [mother] has failed to sustain a significant duration of sobriety, rendering her unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, spiritual, mental, developmental and emotional needs of her child, [D.D.].

 

            "When considering termination of parental rights, the court relies not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child."  S.Z., 547 N.W.2d at 893 (quotations omitted); see also In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001) (stating evidence offered in support of termination-of-parental-rights petition must address conditions existing at time of hearing).  But this does not mean that the parent's past conduct is irrelevant.  See Minn. Stat. 260C.301, subd. 1(b)(4) (providing that in determining whether parent is palpably unfit, court considers duration and nature of pattern of conduct or conditions).  Thus, the district court properly considered mother's history of failed treatment attempts and relapses. 

            The district court's finding regarding mother's inability to maintain sobriety is supported by the record.  Mother testified about her drug use and represented that her longest period of sobriety was two and a half years, during the time she was in RRC.  The district court is in a superior position to assess witness credibility, and we find no reason why we should not defer to the district court's determination that mother's pattern of going through chemical-dependency treatment and then relapsing renders her unable, for the reasonably foreseeable future, to appropriately care for her child even though mother had substantially complied with her case plan for three months at the time of trial. 

            Mother argues that she "‘affirmatively and actively' demonstrated her ability to successfully parent [D.D.]."  Mother contends that the testimony of Kathy Clark, her RRC case manager, Holloway, her social worker, and Dr. Reena Pathak, who completed a parenting assessment, and the evidence from Reuben Lindh and RRC establish that she is not palpably unfit.  But in determining mother's ability to parent D.D., the district court needed to consider current conditions in the context of the history and patterns of mother's conduct.  See S.Z., 547 N.W.2d at 893-94 (discussing father's history of mental illness as it relates to current and future ability to parent).  The district court did so and concluded that mother's improvements at the time of trial were not sufficient to demonstrate that mother is, or in the reasonably foreseeable future will be, able to appropriately care for D.D. 

            There is clear and convincing evidence that mother's consistent pattern of illegal drug use, attempted rehabilitation, and then relapse, renders mother unable to care for D.D.'s ongoing physical needs for the reasonably foreseeable future.  The district court did not err in concluding that the department proved by clear and convincing evidence that mother is palpably unfit to be a party to the parent-and-child relationship.  Because proof of only one statutory basis for termination is required, we will not address the other statutory bases that the district court concluded were met.

4.         Best Interests

            In a termination proceeding, "the district court . . . must consider a child's best interests and explain its rationale in its findings and conclusions."  In re Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003).  When determining the best interests of a child, a district court is required to "balance three factors: (1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child."  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  "Competing interests" may include "a stable environment, health considerations and the child's preferences."  Id.   

            Mother argues that there is insufficient evidence to support the district court's finding that termination is in D.D.'s best interests.  The district court found that termination is in D.D.'s best interests because D.D. "is very young and has special needs, including the need to attach and bond with a consistent, stable, nurturing and attentive caretaker" and "mother continues to present as an ongoing risk to [D.D.] based on the mother's inability to maintain her sobriety."  The district court also found that although it  is clear that mother sincerely believes that she will be able to stay sober, her "history of relapsing on illegal drugs after extensive supports to maintain her sobriety create too great a risk for [D.D.'s] life to again be disrupted in the future if she were to be reunified with her mother."  The evidence about mother's history of relapses following treatment supports these findings.  Although mother was sober at the time of trial, she faced a significant risk of relapse, and a relapse after reunification would disrupt D.D.'s life.

            The district court also considered mother's proposed alternative of transferring legal custody to her cousin P.S. and determined that termination, rather than transferring legal custody, provides the best permanency option for D.D. because it is not clear how and when D.D.'s needs will be met if custody were transferred to P.S.  The record supports this determination.  Although P.S. testified that she wants custody of D.D. so that mother can still have some involvement in her life, P.S. admitted that she failed to follow through with the paperwork steps necessary to meet foster-care licensing requirements.  P.S. also has three children of her own and described herself as being employed full time, a full-time student, and a full-time mother. 

5.         Motions to Strike

            Mother moved to strike portions of the brief filed by respondent guardian ad litem (GAL), a letter to this court seeking to correct a portion of the GAL's brief, and the corrected page submitted with the letter.  Mother also moved to strike the GAL's response to mother's motion to strike.  Mother's motions are denied.

            Affirmed; motions denied.

[1] The district court took judicial notice of the documents in exhibit 33, which were orders of a Cook County, Illinois court.  Those documents will be addressed in the next section of this opinion.

 

 

 

[2] Minn. R. Evid. 201(b) has not been amended since the supreme court interpreted the rule in Clausen.