Opinion
No. C3-02-1281.
Filed February 18, 2003.
Appeal from the Hennepin County District Court, File No. J300065565.
Leonardo Castro, Chief Hennepin County Public Defender, Melissa A. Haley, David P. Murrin, Assistant Public Defenders, (for appellant L.R., A.H., and T.R.)
Polly Krause, (for appellant W.R.)
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, (for respondent Hennepin County Children, Family, and Adult Services Department)
Kimary S. Knutson, (for guardian ad litem)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Linda Raino had children with Archie Hayes and William Roland. In consolidated proceedings, the district court terminated the parental rights of mother and Hayes, placed W.R., one of mother's children with Roland, in long- term foster care and placed T.R., another child mother had with Roland, in the custody of the child's paternal grandmother. Mother and Hayes challenge the termination of their parental rights. Mother also alleges that the county failed to make reasonable efforts to reunite the family. Roland argues that he should have been awarded custody of W.R. and T.R. and that the district court should not have received certain exhibits. Roland also moves to strike part of mother's brief to this court. We affirm the district court's termination orders and deny Roland's motion to strike.
FACTS
While mother was growing up, her parents had psychological disorders, abused alcohol, and abused mother. Also, mother's mother was incarcerated for the murder of her second husband. Mother dropped out of school because she was chemically dependant and expecting a child, and was incarcerated for theft and aggravated assault. Mother later had children with Hayes and Roland, both of whom have had chemical-dependency problems and extensive contact with the law-enforcement and criminal-justice systems.
In consolidated proceedings, the district court heard evidence on the county's petition to terminate the parental rights of mother and Hayes to their two children and on the county's petition to place T.R. and W.R. with Roland. After trial, Roland was convicted of alcohol-related abuse of his current girlfriend. Also, W.R. told staff at the facility where he was then residing that Roland had been intoxicated and hit W.R. during his last visit with Roland. The staff made reports regarding W.R.'s statements. The district court then reopened the record and allowed the county to introduce the conviction and the reports and to change its proposed placement of T.R. and W.R. Ultimately, the district court terminated the parental rights of mother and Hayes, placed W.R. in long-term foster care, and placed T.R. with Roland's mother (grandmother). Mother and Hayes appeal the termination of their parental rights. Roland appeals the admission of the reports and the placements of T.R. and W.R. Mother and T.R. oppose Roland's challenges to the district court's placement decision.
DECISION
1. Mother's brief states that T.R. wants to remain in grandmother's custody. Roland moves to strike that statement as beyond the record on appeal. Appellate courts cannot base a decision on matters outside the record on appeal. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988); see Minn.R.Civ.App.P. 110.01 (defining record on appeal as papers filed in district court, exhibits, and any transcript of the proceedings). The county's second petition to terminate Roland's parental rights was verified, signed by the child-protection worker, and states both that T.R. is mature enough to express a custodial preference and that his preference is to be permanently placed with grandmother. Also, grandmother testified that T.R. considers grandmother's house to be his home and that T.R. is integrated into grandmother's home. Because the record supports the disputed statement, we deny Roland's motion to strike it.
2. To involuntarily terminate parental rights, a district court must find the existence of one or more of the statutory bases for doing so. Minn. Stat. § 260C.301, subd. 1(b) (Supp. 2001). To find the existence of a statutory basis for terminating parental rights, the evidence must be "clear and convincing." Minn. Stat. § 260C.317, subd. 1 (2000). The district court terminated the parental rights of mother and Hayes to their children because (a) they refused to abide by the duties imposed by the parent-child relationship; (b) they failed to correct the conditions leading to the children's out-of-home placements; and (c) the children are neglected and in foster care. See Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (8) (Supp. 2001). Mother challenges the determination that the children were neglected and in foster care as well as the adequacy of the county's efforts to reunite the family. Terminating parental rights for a failure to abide by the duties imposed by the parent-child relationship or for a failure to correct conditions leading to an out-of-home placement requires the district court to address the efforts made to reunite the family. Minn. Stat. § 260C.301, subd. 1(b)(2), (5). Thus, mother essentially challenges all three bases for the termination of her parental rights. While Hayes challenges the determination that the children are neglected and in foster care, he does not argue that the services offered to him were inadequate. Nor does he challenge the other bases for terminating his parental rights.
Mother and Hayes also allege that they are not palpably unfit parents under Minn. Stat. § 260C.301, subd. 1(b)(4) (Supp. 2001). But the county did not allege, nor did the district court invoke, this basis to terminate the parental rights.
On appeal of a decision to terminate parental rights, appellate courts review whether the district court (a) addressed "the applicable statutory criteria[;]" (b) made findings "supported by substantial evidence[;]" and (c) reached "clearly erroneous" conclusions. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). Also, "[c]onsiderable deference" is due the district court's decision because it is "in a superior position to assess the credibility of the witnesses." Id. (citation omitted).
3. In relevant part, a child is "neglected and in foster care" if the child (a) is in court-ordered foster care; (b) cannot be returned to his parents; and (c) has parents who, despite the availability of adequate services, have failed to make reasonable efforts to adjust their circumstances to allow the child to be returned. Minn. Stat. § 260C.007, subd. 24 (Supp. 2001). When deciding whether a child is neglected and in foster care, the district court "shall consider" a list of statutory factors. See Minn. Stat. § 260C.163, subd. 9 (2000) (listing factors).
Mother alleges that the record does not support the determination that her children with Hayes are neglected and in foster care. Those children are in court-ordered foster care, mother does not allege that the children can be returned to her, and the district court found that mother failed to make adequate efforts to allow return of the children, despite the availability of adequate services. The district court did not, however, make findings on each factor listed in Minn. Stat. § 260C.163, subd. 9. This defect is not fatal if the findings that were made are detailed and show the existence of "many" of the statutory factors. See In re Welfare of A.D., 535 N.W.2d 643, 648-49 (Minn. 1995) (stating this proposition regarding predecessor to Minn. Stat. § 260C.163, subd. 9).
The district court's findings explicitly address five of the seven statutory factors and indicate that each of those five factors weighs against mother. Of these five findings, the first (duration of the foster care) and the last (list of services provided) are not questioned on appeal and the third and fourth (the adequacy of the services provided and likelihood additional services would allow return of the children) go to whether the county made reasonable efforts to reunify the family, which is discussed below. See Minn. Stat. § 260C.163, subd. 9(1), (5)-(7).
The two statutory considerations the district court did not address involve whether the parent visited the child in the three months before the filing of the petition to terminate parental rights and the regularity of the parent's contact with the agency responsible for the children. Minn. Stat. § 260C.163, subd. 9(3), (4). The district court did not meaningfully address mother's visitation with her children in the three months before the filing of the petition. It is undisputed, however, both that mother regularly visited the children she had with Hayes and stayed in contact with the county. On this record, we decline to rule that the lack of findings on uncontested questions is fatal to the district court's ruling. Cf. In re Welfare of D.J.N., 568 N.W.2d 170 (Minn.App. 1997) (refusing to reverse termination of parental rights for harmless error). Moreover, because the record supports the findings that the Hayes children cannot now or in the foreseeable future be safely returned to mother, the district court's failure to address the visitation and contact factors is not sufficient to allow reversal of the termination. A similar argument addresses mother's allegation that the Hayes children have been in foster care for less time than the children at issue in In re A.D., 535 N.W.2d at 644-47.
Regarding the second consideration (parent's effort to use services offered), mother argues that her children with Hayes are not neglected and in foster care because she complied with what she was asked to do regarding those children. Mother's January 2001 case plan required her to successfully complete family and domestic-abuse counseling, maintain safe housing, and meet her children's needs. The district court, consistent with the record, found that mother failed to complete these aspects of her case plan because (a) after an unfavorable therapy report, she "refused to continue working" with the family-therapy clinic; (b) mother subsequently terminated her relationship with a second therapist after an unfavorable report by that therapist; and (c) mother failed to implement the teachings of the domestic-abuse counseling, as exemplified by allowing the existence of circumstances under which Hayes abused one of the children mother had with Roland. After the district court revised mother's case plan in December 2001, mother (a) "refused to cooperate" with a doctor; (b) failed to complete individual therapy; (c) failed to complete behavioral therapy; and (d) laughed when one of her children with Roland was inappropriately violent with a doll during visitation. The district court's findings show that mother failed to complete her case plans because she refused to work with the persons providing the counseling necessary to remedy the circumstances requiring the removal of the children from mother's care and that she failed to implement the counseling she did receive.
Mother's argument that the county could and should have been more responsive is essentially one that county services were not reasonable, an issue we address elsewhere.
4. The basis for Hayes's challenge to the determination that his children are neglected and in foster care is unclear. To avoid termination on that basis, there must be a finding that the children can be returned to their parent now or in the foreseeable future. Minn. Stat. § 260C.163, subd. 9(2), (6). Hayes argues neither that the children can be placed with him now, nor that the children will be able to be placed with him in the future. And his brief suggests that he does not want the children placed with him at any time.
5. In termination proceedings, the district court "shall" make findings regarding the reasonableness of the county's efforts to reunite the family. Minn. Stat. § 260C.301, subd. 8 (Supp 2001). When, as here, a child has been removed from a parent, "reasonable efforts" are
the exercise of due diligence by the responsible social services agency to use appropriate and available services * * * to eliminate the need for removal and reunite the family.
Minn. Stat. § 260.012(b) (Supp. 2001). In addressing whether county efforts were reasonable, the district court "shall consider" the factors listed in Minn. Stat. § 260.012(c) (Supp. 2001). The burden of proving that efforts were reasonable is on the county. Minn. Stat. § 260.012(b)(2). Mother alleges that the services provided by the county were not reasonable for several reasons.
Mother challenges the timeliness of the county's services, noting that, despite a January 2001 recommendation for depression-related services, she was not referred for such services until summer 2001. The order terminating mother's parental rights was issued in June 2002, a year after the services were provided. And the order found both that despite the "ability" to comply with her case plan, mother "failed" to do so, and that the child-protection worker "credibly and persuasively" testified "no additional case planning services could be put in place with mother to allow the return of the child at this time or in the foreseeable future." If there are no other services that could be provided that would be of any aid to mother, what the county could have done earlier is unclear.
Mother alleges that no parenting assessment was done for her children with Hayes, and if one had been done, it would have shown her more able to care for them than for her other children, who have special needs. While an assessment of mother's ability to parent her children with Hayes might have shown her to be less unable to care for those children than her other children, the record does not show that such a report would have shown mother actually able to care for those children. While the child-protection worker admitted that it would be easier for mother to raise two children than six children, she still testified that termination of mother's parental rights was in the best interests of the children mother had with Hayes because of mother's history with her other children and because mother was unable to provide a safe home. The safety concerns are consistent with the fact that four days after finishing domestic-abuse counseling, and despite a court order for no contact with Hayes, mother created a situation allowing Hayes to abuse one of the children she had with Roland. Moreover, mother's argument that county efforts regarding the Hayes children were unreasonable because they focused on her other children is unpersuasive in light of the fact that the county had run out of services that could assist mother.
Mother alleges that the therapy services provided by the county were inadequate because her therapist violated her expectations of confidentiality. Mother contends that the county could have, and should have, referred her to a culturally appropriate program, or therapist of color, early in her case. There is no allegation that mother's counselor violated a legal or professional duty of confidentiality. Also, the district court credited the assessment of a family therapist who stated that mother was not compliant with therapy and was not "emotionally capable of continuing therapy." This assessment is consistent with a prior psychiatric evaluation of mother indicating that while mother was willing to try to be a responsible parent, "[she] will again fail because of her early poor development." Thus, the record shows that absent correction of her underlying developmental problems, providing mother a different therapist is not likely to make her a capable parent.
Mother also argues that the county's services were inadequate because the county failed to address the concerns of the first therapist. But the first therapist is one of those with whom mother refused to work. How the concerns of that therapist could have been addressed when mother refused to work with the therapist is unclear.
6. To terminate parental rights, the district court must find that at least one of the statutory bases for termination exists and that termination is in the best interests of the child. See Minn. Stat. § 260C.301, subd. 7 (2000) (stating that if a basis for termination exists, the child's best interests are paramount); In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn.App. 1996) (noting that even if basis for termination exists, termination is not mandatory if termination would not be in child's best interests), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 722-24 (Minn. 1998).
Mother alleges that there is "very little testimony" supporting termination of her parental rights to her children with Hayes. The child-protection worker and the guardian ad litem both testified that termination was in the best interests of mother's children with Hayes. While mother does not challenge the testimony of the child-protection worker, she does challenge the testimony of the guardian ad litem, alleging that he did not state the basis for his opinion and that he only saw mother and the children together in the courtroom. The guardian ad litem stated that he agreed with the county's recommendation. And the county's child-protection worker testified that (a) she had been working on the case since July 2001 and was familiar with the file; (b) mother's case is hard to service because she presents confusing information to service providers; (c) the services that can be provided have been provided and mother generally cooperated with those services; (d) the conditions leading to the out-of-home placement were not corrected; (e) permanency is in the children's best interests; (f) mother's children with Hayes cannot be placed with mother now or in the reasonably foreseeable future; (g) for mother to receive custody, there would have to be a great change in her mental health, personality, and ability to be an authority figure; (h) termination is in the best interests of mother's children with Hayes because of mother's history with her other children and the fact that mother is not able to provide a safe home for the children; and (i) on at least three occasions, a child in mother's care was abused. Also, the children's social worker agreed that the children need permanency. The record shows that the children need permanency, that mother is not currently able to provide permanency, and that she is not likely to be able to provide it in the foreseeable future. Therefore, other aspects of the record address any defect in the testimony of the guardian ad litem.
Mother also argues that the guardian ad litem's favoring termination of mother's parental rights to her children with Hayes is inconsistent with his favoring long-term foster care for mother's children with Roland. If best- interests factors weigh differently for different children, those considerations must be separately considered. See In re M.P., 542 N.W.2d at 75-77 (separately addressing best-interests considerations of differently situated children). Here, mother fails to explain why the differently situated and younger Hayes children should be treated the same as mother's children with Roland.
Mother's argument that the Hayes children are bonded to her is weak. The record shows that any preference her children with Hayes have for custody with her is limited.
7. Roland challenges the admissions of the written staff reports concerning his alleged abuse of W.R. Unless provided otherwise by statute or the rules of juvenile procedure, evidence admissible in juvenile protection proceedings is that which would be admissible in a civil trial under the rules of evidence. Minn.R.Juv.P. 39.02. In civil proceedings, whether to admit evidence is discretionary with the district court. Marquette Bank Nat'l Ass'n v. County of Hennepin, 589 N.W.2d 301, 307 (Minn. 1999). Also, if evidence is improperly admitted, a new trial will be granted only when there has been prejudicial error. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997). "An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial." Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn.App. 1998) (citations omitted).
The reports were prepared by facility staff where W.R. was staying and describe W.R.'s statements that, while W.R. visited Roland, Roland was intoxicated and hit W.R. The district court cited these exhibits as evidence that Roland failed to comply with his case plan.
Roland argues that because the people who prepared the reports did not testify, the exhibits did not satisfy the business-document exception to the hearsay rule under Minn.R.Evid. 803(6). The county does not seriously defend the admission of the documents, and mother does not defend it at all. Even if the exhibits are ignored, however, Roland's failure to comply with his case plan is shown by the district court's discussion of a separate incident, Roland's April 9, 2002, conviction for alcohol-related abuse of his girlfriend. Both the conviction and the reports show alcohol-related abuse. And Roland does not dispute the admission of the conviction. Therefore, we cannot say that Roland suffered substantial prejudice by admission of the reports.
8. Roland challenges the district court's decision not to place T.R. and W.R. with him. On appeal from placement decisions, appellate courts review 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). Roland challenges the county's change in its proposed placement, alleging that the child-protection worker did not explain how the staff reports and the conviction caused the county to change proposed placements. Given Roland's violent history and his alcohol-related abuse of others, the reason for the change in the proposed placements is self-evident.