In the Matter of the Welfare of the Child of: B. J.-M. and H.W., Parents.

In the Matter of the Welfare of the Child of: B. J.-M. and H.W., Parents. A07-272, Court of Appeals Unpublished, September 4, 2007

This opinion will be unpublished and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

A07-272

 

In the Matter of the

Welfare of the Child of:

B. J.-M. and H.W., Parents.

 

Filed September 4, 2007

Affirmed Hudson, Judge

 

Hennepin County District Court

File No. 27-JV-06-1379

 

Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, Minnesota 55415 (for respondent county)

 

Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, Minnesota 55401 (for appellant father)

 

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

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            In this termination-of-parental-rights appeal, appellant-father argues that (a) the district court erroneously terminated his parental rights on a basis that was not pleaded; (b) the district court erroneously considered certain evidence; (c) the record does not support the termination of his parental rights; (d) the county failed to adequately investigate transferring legal custody of his child; and (e) the record does not show that termination was in the child's best interests.  We affirm.

FACTS

            This termination proceeding, like all others, involves sad and disturbing facts.  But this case is also disturbing because of apparent procedural irregularities.  Specifically, the district court file contains a petition to terminate mother's parental rights, but there is no petition to terminate father's rights.  In addition, the file lacks any indication that father was served with a petition to terminate his parental rights, nor is there a copy of father's case plan.

            On the initially scheduled first day of trial, counsel was appointed for father and the start of trial was re-set for three-and-a-half months later.  Until the originally scheduled first day of trial, the focus of the proceeding had been mother.  On the re-set trial date, however, there was an off-the-record discussion at the bench.  Upon coming back on the record, the county attorney stated that "[t]he record should reflect that we have just had a conversation in chambers, and the result of that was that we will be going forward today on that part of the trial pertaining to [father].  However, we did pick another trial date . . . with regard to [mother]."  Apparently, what started out as a bench conference became a chambers conference culminating in father, while represented by counsel, agreeing to a trial on the termination of his parental rights, and hence waiving any procedural argument he may have had regarding the proceedings up to that point.

            After trial, the district court terminated father's parental rights, and father made a late posttrial motion.  Without waiting for the district court to address his late posttrial motion, father appealed.  The district court later dismissed father's posttrial motion as untimely.  This appeal follows.

DECISION

I

            The district court terminated father's parental rights on the bases pleaded in the petition to terminate mother's parental rights.  It also terminated father's parental rights on a basis not pleaded in that petition.  On appeal, father argues that the district court improperly terminated his parental rights on a statutory basis that was not pleaded in the petition.  To affirm termination of parental rights, only one statutory basis for termination need be present.  In re Children of T.A.A., 702 N.W.2d 703, 708 n.3 (Minn. 2005).  Here, because we affirm the termination of father's parental rights on both of the pleaded bases to terminate, we need not address father's argument regarding the unpleaded basis.  But we implore all involved in juvenile-protection proceedingscounsel, court staff, district courts, and othersto make sure that each case is addressed fairly and promptly, and to create a record showing this to be the case.

II

            Father challenges the district court's admission of documents regarding his criminal history.  Absent an incorrect interpretation of the law, whether to admit evidence is discretionary with the district court, and a new trial will not be ordered unless the complaining party shows prejudice.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997); In re Child of Simon, 662 N.W.2d 155, 160 (Minn. App. 2003).

            Father's criminal history includes convictions for child-endangerment; property-, traffic-, and chemical-related crimes; and domestic assault.  As court records, these convictions can be judicially noticed.  See Minn. R. Juv. Prot. P. 3.02, subd. 1 (stating, generally, that evidence admissible in civil proceedings under rules of evidence is admissible in juvenile-protection proceedings); Minn. R. Evid. 201(b)(2) (allowing judicial notice of facts contained in sources the accuracy of which are not open to reasonable question).  The district court recognized father's relevancy- and staleness-based objections to the use of this evidence, stating that to the extent it found merit to the objections, it would "disregard" and give the evidence "less weight."  During these proceedings, however, father committed domestic-abuse and chemical-related offenses.  These acts show that father's prior, similar convictions were relevant, and he has not shown that the district court abused its discretion in its treatment of the evidence.  See In re Welfare of Children of J.B., 698 N.W.2d 160, 17273 (Minn. App. 2005) (affirming admission of criminal history when parent's recent conduct involved similar offenses).

            Father also challenges the district court's admission of certain testimony.  He admits there was no objection to the testimony and that the lack of an objection generally precludes appellate review of evidentiary questions.  Minn. R. Evid. 103(a)(1); Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986).  We appreciate father's candor on this point.  Father argues, however, that this court can address his argument on appeal under In re Welfare of S.R.A., 527 N.W.2d 835, 837 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995), and under the fundamental-error rule.  For reasons detailed in several other opinions, father's analysis of S.R.A. and the "fundamental-error" rule is simply wrong.  Indeed, when this court previously invoked S.R.A. to address otherwise unpreserved evidentiary issues, this court was reversed.  In re Welfare of D.D.G., 553 N.W.2d 86, 89 (Minn. App. 1996), rev'd, 558 N.W.2d 481 (Minn. 1997).  And even if this court had discretion to address unpreserved evidentiary issues, we would not exercise that discretion here because father admits that the opinion testimony in question "rested almost exclusively on reports prepared at the [county's] request."  In a termination-of-parental-rights proceeding, a district court may consider "any report [by the responsible social-services agency] . . . or any other information deemed material by the court" before making a disposition.  Minn. Stat. § 260C.193, subd. 2 (2006).[1]

III

            Father argues that the record lacks clear-and-convincing evidence showing that termination of his parental rights is in the child's best interests.  When addressing whether termination is in a child's best interests, the district court balances the child's interest in preserving the parent-child relationship, the parent's interest in preserving that relationship, and any competing interest of the child, where competing interests may include "a stable environment, health considerations and the child's preferences."  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).

            A natural parent is presumptively fit to care for his child, and courts presume that it is in a child's best interests to remain in a parent's care.  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).  Here, it is undisputed that father established a warm relationship with the child, that reports addressing his interaction with the child were "glowing," and that the case worker suggested that at least some of father's failure to complete his case plan was not father's fault.  Thus, both father and the child have an interest in maintaining their relationship.

            The child, born in January 2006, is too young to express a preference regarding whether to terminate father's parental rights.  The finding that the child needs a stable caregiving arrangement, however, is consistent with the testimony of the case worker, the guardian ad litem (GAL), and the social worker that termination of father's parental rights and adoption are in the child's best interests, especially where the social worker and the case worker recited stability-based reasons for their opinions.  See In re Welfare of M.G., 407 N.W.2d 118, 12223 (Minn. App. 1987) (noting children have a significant interest in a stable home and in their health).

            Regarding mental and physical health, the record shows (a) father completed anger-management therapy in December 2005, the child was born in January 2006, and father pleaded guilty to domestic assault of mother in August 2006; (b) the child was born with life-threatening pneumonia and sepsis, and spent two months in the hospital after birth; (c) since being placed in foster care, the child's medical problems have included hyper-sensitivity to tactile stimuli, hypotonicity, and developmental delays, as well as possible Marfan syndrome and problems with her breathing, central nervous system, and eyes; (d) father has back problems for which he receives SSI benefits; (e) father is blind in one eye and has cataract and glaucoma problems with the other, has HIV and a history of Hepatitis C, is not medication-compliant, and carries an increased "viral load," putting both himself and the child at risk of infection; (f) the infection risk to the child posed by father is of greater concern to the county than is his history of domestic abuse; (g) despite having previously completed chemical-dependency counseling, father tested positive for cocaine three days after testifying against the termination of his parental rights, which, when combined with his post-anger-therapy assault of mother, shows that father's therapy lacked effect; and (h) father's reduced physical capacity creates doubt about his current and future physical ability to care for the child, especially given her current and expected future special needs.  The district court did not clearly err in finding that R.T.B.'s health-related "competing interests" favor termination.  And because the record shows that two of R.T.B.'s three competing-interest factors support a determination that termination is in the child's best interests, we will not alter the district court's best-interests determination.

IV

            Father argues that the record does not support the determination that certain statutory bases for terminating his parental rights were satisfied.  The standard for reviewing terminations of parental rights is set out in T.A.A., 702 N.W.2d at 708, and In re Welfare of Children of S.W., 727 N.W.2d 144, 14849 (Minn. App. 2007), review denied (Minn. Mar. 28, 2007).

            The district court found that the county made reasonable efforts to assist father to become a viable parent, that father's case plan[2] required him to avoid chemicals and participate in parenting and anger-management programs, and that the county referred father to parenting and anger-management programs.  The focus of father's challenge to these findings is that the proffered services were unnecessary.  But despite completing anger-management therapy in December 2005, father pleaded guilty to a domestic assault of mother in August 2006.  And despite previously completing chemical-dependency therapy, three days after testifying that his parental rights should not be terminated, he tested positive for cocaine, and he was later diagnosed as chemically dependent.

            Father also argues that he was not given adequate time to complete the required programs and that he did not need to improve his parenting.  The county contacted father in April 2006, but he was not interested in participating in a case plan until June or July, when it appeared that mother might not retain custody of the child.  Thus, the county tried to work with father for at least two months before he made any significant effort to work with the county.  As for father's allegation that he did not need to improve his parenting, it is undisputed that the child has significant special needs, and that father, who has serious physical problems of his own, used cocaine during these proceedings and was later diagnosed as chemically dependent.

            Father also challenges the district court's findings that he failed to abide by the duties of the parent-child relationship, as detailed in Minn. Stat. § 260C.301, subd. 1(b)(2) (2006).  He argues that he was never given an opportunity to parent the child.  But he refused to participate in his case plan for at least two months, and he did not show any interest in doing so until it appeared mother would lose custody of the child.  Also, father's argument that because he has "successfully" completed therapy "there is no reason to believe that he would not have completed [the programs in his case plan] . . . were he given more time[,]" is not supported by the record.  As noted, after completing anger-management and chemical-dependency therapies, he assaulted mother, tested positive for cocaine during trial, and was later diagnosed as chemically dependent.

            We also reject father's allegation that the record does not support the finding that he fails to care for himself and is not compliant with his medication regime.  While his medical reports for February through August 2006 show that he was medication-compliant, his more recent reports cast doubt on his continued compliance.  The report for September 6 states that he was then having side-effects from his medications, that he missed medications for a week while incarcerated, that he had "missed several doses since then[,]" and that he "has had a ‘blip' in his viral load again."  Reports for September 2122 show that, regarding some prescriptions, father was unsure which medication he was taking and that the doctor had to stress to him the need for a "high level of adherence" to, and the "correct timing" of, medications.  Thus, even ignoring the fact that father tested positive for cocaine during trial, there is substantial evidence in the record supporting the finding that father fails to care for himself and is not medication compliant.  See Simon, 662 N.W.2d at 163 (ruling that a failure to comply with a case plan can support a finding that a parent failed to satisfy the duties of the parent-child relationship).

            Parental rights may also be terminated if a person engages in a specific pattern of conduct before a child, or has a condition affecting the parent-child relationship, that renders the person palpably unfit to be a party to the parent-child relationship.  Minn. Stat. § 260C.301, subd. 1(b)(4) (2006).  Father challenges the determination that he is a palpably unfit parent, arguing that the district court failed to specify whether he engaged in a pattern of conduct before the child or had a condition rendering him a palpably unfit parent.  Any error on this point is harmless.  Both father and the child have significant physical-health concerns and father's doubtful physical health may endanger the child's health.  Father also has chemical-health concerns and a history of not implementing the chemical- and anger-related therapies he has completed.  Thus, regardless of whether father exhibited a course of conduct before the child showing him to be a palpably unfit parent, the fact that he is unwilling or unable to change patterns of conduct that could result in his incarceration limits his ability to care for a special-needs child.  In our view, this demonstrates a condition that, when combined with his own physical-health concerns and those of the child, show that substantial evidence supports the district court's determination that father is a palpably unfit parent.

            Next, father correctly notes that termination is improper if, in the foreseeable future, the parent may be able to resolve the problems that, at the time of trial, preclude the parent from caring for the child.  In that regard, father argues that the district court overemphasized his past failures and failed to adequately acknowledge his progress in the six weeks between the first and second days of trial.  But the district court, in accepting the exhibits regarding father's criminal history, stated that depending on the age and relevancy of the information, she would "disregard [the exhibits or] give them less weight."  Also, at the second day of trial, the case worker detailed father's progress since the first day of trial, including his starting of programs for parenting and domestic-abuse education and completing a chemical-health evaluation.  The case worker further testified that despite this progress, it was still not in the child's best interests to be in father's care because the child has "lots of special needs[,]" the county wanted "any person" caring for the child to complete "additional education specific to [the child's] special needs[,]" and that he did not expect the requirements for reunifying father and the child to be satisfied in the foreseeable future.  Similarly, the GAL and the social worker both recommended terminating father's parental rights.

            Father asserts that the district court clearly erred in finding that he will not start an anger-management program until January 2007.  However, we note that father testified: "I am already signed up for anger management . . . It starts in January [2007]."  The district court also mentioned what it referred to as father's lack of a support structure.  Father challenges this finding, stating that his adult children provide a support structure.  But given father's significant long-term problems with chemicals and abuse, father's claim is unpersuasive.  And there is nothing in the record to suggest that father's adult children will be able to provide him with sufficient assistance to enable father to both cope with his long-term problems and act as a parent for a special-needs child.

V

            Noting the preference recited in Minn. Stat. § 260C.212, subd. 2(a) (2006), for placing children with relatives, father argues that the county failed to adequately and timely investigate placing the child with one of his daughters.  We disagree.  If a county seeks to terminate parental rights, it "may" also seek "alternative permanent placement relief," and "any other party" "may" seek "transfer of permanent legal and physical custody to a relative as the alternative to termination of parental rights."  Minn. R. Juv. Prot. P. 33.02, subd. 3(c).  While at least two of father's adult daughters expressed interest in parenting the child, father did not seek a transfer of legal custody instead of termination.  Thus, on appeal, father is seeking relief that he did not seek from the district court and for which adequate information was neither provided nor gathered.  Also, the county's determination not to seek a transfer of legal custody and father's failure to do so are consistent with the facts that one of the father's daughters apparently had an open child-protection case against her and that a case worker testified that the county contacted another daughter but got no response.

            In his closing argument, father asked the district court to keep the record open to receive evidence about the propriety of placing the child with the daughter who did not respond to the county's inquiries.  By terminating father's parental rights without mentioning this request, the district court implicitly denied father's request.  On appeal, father challenges this implicit denial.  To do so, he combines the preference for relative placement with his allegations that the county failed to investigate the daughter in a timely fashion.  But father's argument that the county was untimely and inadequate in investigating the daughter is not persuasive when the record indicates that the daughter failed to respond to the inquiry that was made.  On this record, it appears the daughter's interest in custody was at best de minimis, certainly not the level of interest needed if she were to assume long-term responsibility for a special-needs, infant half-sister.

            Affirmed.

 

[1] Father makes a conclusory assertion that the district court's reliance on inadmissible evidence deprived him of due process of law.  But because father's evidentiary arguments are not persuasive, we do not address his constitutional argument.

[2] To the extent father argues that his case plan was not entered as an exhibit at trial, we note that the case worker testified to the case plan.  See In re Welfare of R.M.M., 316 N.W.2d 538, 542 (Minn. 1982) (holding failure to provide written case plan was not a basis for reversal whencase-planning services was an ongoing concern of the county and parents' failure to cooperate was responsible for county's failure to construct a plan).