This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In the Matter of the Welfare of

the Children of T. B.:

T. B., T. B., F. B., Jr., and T. B.


Filed August 1, 2000


Parker, Judge*


Hennepin County District Court

File No. J698052551


William E. McGee, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant mother)


Amy Klobuchar, Hennepin County Attorney, Sharon A. Lewis, Assistant County Attorney, 1210 Health Services Building, 525 Portland Avenue, Minneapolis, MN 55415-0972 (for respondent Hennepin County Department of Children and Family Services)


Candace J. Barr, John M. Jerabek, Niemi, Barr & Jerabeck, P.A., 510 Marquette Avenue, Suite 700, Minneapolis, MN 55402 (for respondent guardian ad litem)


Caroline Durham, 425 South Third Street, Minneapolis, MN 55415 (for respondent father)


William E. McGee, Fourth District Public Defender, F. Lee Hagens, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent children)

            Considered and decided by Willis, Presiding Judge, Randall, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


Mother appeals a permanent placement order transferring legal custody of her four children to their maternal grandmother in Arkansas.  Mother alleges that the district court denied her due process because he erred in taking judicial notice of a report from an Arkansas social worker and erroneously admitted opinion evidence from the guardian ad litem and a child protection social worker.  She also argues the findings that she had not rehabilitated herself and that the children’s best interests are served by permanent placement with their maternal grandmother are unsupported by the evidence.  We affirm.


Generally, objections to evidentiary rulings not assigned as error in a posttrial motion are not reviewable by this court.  Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn. 1986).  The requirement that a party make a posttrial motion to give the district court an opportunity to correct any errors applies equally to child welfare cases.   See In re Welfare of S.G., 390 N.W.2d 336, 340-41 (Minn. App. 1986) (applying rule).

Mother urges us to consider the merits of her evidentiary claims despite the lack of a posttrial motion.  She advances the argument that strict adherence to procedural rules is not necessary under the circumstances of this case.  In support of her argument, she relies on a termination-of-parental-rights case where this court recognized an exception to Sauter’s nonreviewability rule.  See In re Welfare of S.R.A., 527 N.W.2d 835, 837 (Minn. App. 1995) (ignoring failure to make a posttrial motion in termination-of-parental-rights case and reviewing denial of suppression motions), review denied (Minn. Mar. 29, 1995).  The S.R.A. court was unwilling to apply the Sauter rule because of the finality and permanence of a termination order.  Id.

First, as the mother acknowledges, the order here is a permanent placement and transfer of legal custody.  She argues, however, that the order in this case “is about as permanent as an order can be without termination” and that the interests of justice require that we address her evidentiary concerns.  Transfer of legal custody, however, is not analogous to a termination of parental rights.  A termination order completely severs a parent’s rights and provides no statutory avenue to regain them.  Minn. Stat. § 260C.317, subd. 1 (Supp. 1999).[1]  A transfer of legal custody carries visitation rights and provides a statutory avenue to change the court’s order.  Minn. Stat. § 260C.201, subd. 5 (Supp. 1999) (allowing visitation rights); Minn. Stat. § 260C.201, subd. 11(i) (Supp. 1999) (allowing modification of custody under standards in Minn. Stat. §§ 518.18 and 518.185).  The level of finality and permanency between the two is markedly different.  See, e.g., In re Welfare of A.R.G.-B., 551 N.W.2d 256, 264 (Minn. App. 1996) (noting differences between termination proceedings and custody awards).

Second, even assuming termination to be analogous to transfer of custody, we think that S.R.A. has been effectively overruled by In re Welfare of D.D.G., 558 N.W.2d 481 (Minn. 1997). There, a father argued that his oral consent to voluntary termination of parental rights was invalid, but the court concluded that he waived his argument because he raised it for the first time on appeal.  While the court did not cite S.R.A. in its discussion, it reemphasized the importance of properly preserving issues for review even in termination cases, concluding “[t]he gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument.”  Id. at 485.  Because of the differences between a termination of parental rights and a transfer of legal custody and because of the supreme court’s decision in D.D.G., mother is precluded from raising her evidentiary concerns on appeal because she failed to raise them in posttrial motions.[2]

Absent a posttrial motion, this court’s scope of review “is limited to the sufficiency of the evidence and the adequacy of the findings to support the conclusions of law.”  S.G., 390 N.W.2d at 341 (quoting Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).  On appeal, mother challenges the findings that (1) she has not made sufficient progress on her case plan to be reunited with her children and (2) the ultimate determination that placement with their maternal grandmother is in the children’s best interests.

As in other child protection proceedings, “the county must prove the allegations of the petition for permanent placement by clear and convincing evidence.”  A.R.G.-B., 551 N.W.2d at 261; Minn. R. Juv. P. 59.05 (now codified as 74.04, subd. 1).  On review, this court determines if the challenged findings “address the statutory criteria and are supported by ‘substantial evidence,’ or whether they are clearly erroneous.”  Id. (citing In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990)).

Mother does not argue that the findings fail to address the statutory criteria. Rather, she alleges first that there is no substantial evidence supporting the district court’s underlying finding that she failed to comply substantially with the court-ordered case plan and that she has not corrected the conditions that led to the CHIPS petition.

The challenged underlying finding supports the ultimate best-interests determination of the district court and is reviewed under a clearly erroneous standard.  See Vangsness v. Vangsness, 607 N.W.2d 468, 472, 475 (Minn. App. 2000) (explaining that underlying factual findings supporting best-interests factors are reviewed under clearly erroneous standard whereas ultimate best-interests determination is reviewed for abuse of discretion).  The record must be viewed in the light most favorable to the findings and only if a review of the entire record leaves this court with the “definite and firm conviction that a mistake has been made” will the district court’s factual findings be set aside.  In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn. App. 1996) (quoting In re Estate of Beecham, 378 N.W.2d 800, 802 (Minn. 1985) (citation omitted)).

Mother argues that she responded appropriately to the underlying problems and to the county’s case plan, attempted to seek psychological help, and adequately rehabilitated herself.  The district court found that she made some progress in her therapy but has not shown she would be able to protect the children from abuse in the future.  Additionally, the court found there was no evidence that mother had made any progress in her treatment since she moved to Arkansas in November 1999.

The June 7, 1999, psychological assessment and the therapy progress reports of August 30 and November 19, 1999, support the district court’s finding.  While the August report noted that mother appeared to be advancing toward some of her treatment goals, it also concluded she needed to consider how her relationship with the children’s father affected her ability to protect her children.  Additionally, it noted the inconsistency between reports of abuse mother filed in Washington state and her later assertions the reports were false and based only on her own efforts to coach her eldest daughter into making false allegations of abuse.  The November progress report showed mother terminated her therapy and moved to Arkansas. The psychologist recommended ongoing psychotherapy.  When asked at the disposition hearing if she was seeing a therapist in Arkansas, mother replied that she was, but she could not provide the therapist’s name.

The court specifically found that mother’s testimony lacked credibility. Mother was required under her case plan to continue to follow her therapist’s recommendations, and her therapist recommended continued therapy in Arkansas.  She said she was seeing someone but could not remember the name.  The court’s determination that her testimony lacked credibility supports the finding that mother failed to comply substantially with her case plan and correct the conditions that led to the out-of-home placements.  Giving proper deference to the factfinder, we cannot say the finding was clearly erroneous.  See Vangsness, 607 N.W.2d at 472-73 (requiring evidence to be considered in light most favorable to findings and accounting for deference to credibility decisions and trial court’s role as factfinder).

Mother next argues that the ultimate best-interests determination is unsupported by the evidence.  This court reviews the ultimate best-interests determination for an abuse of discretion.  Vangsness, 607 N.W.2d at 475.  Mother asserts that placing the children in Arkansas would inhibit reunification.  She also contends that placement with her mother is not in the children’s best interests because her mother failed to protect her from sexual abuse when she was growing up, reasoning that if the maternal grandmother failed to protect her daughter, she might also fail to protect her grandchildren.

While mother’s concerns appear colorable, it does not appear that the district court abused discretion in finding that transfer of legal custody to the maternal grandmother was in the children’s best interests.  The evidence in the record shows that the children are adjusting well and that the grandmother, a licensed foster parent, provides a stable, consistent living environment accompanied by a sense of belonging.  These qualities are much needed after nearly 19 months of out-of-home placements in at least three different living locations, after the incarceration of their father, and given the impact on all the children of the sexual abuse of T.B.  The grandmother testified that she was willing and able to provide for the children’s needs by providing adequate living space, room for recreation, adult supervision and discipline, educational support, structured visitation with the children’s parents, and connections with relatives through regular interaction with cousins, aunts, and uncles.  An Arkansas home-study report concluded that grandmother has good support from her family and friends, has knowledge of her grandchildren’s history, is supportive of efforts to provide the children with counseling, and “has the skills to attend to each of her grandchildren’s physical and emotional needs.”  Finally, mother’s argument that placing the children in Arkansas would inhibit reunification is not persuasive since she was the one who first moved them there.

Considering the evidence in the record, we cannot say the district court abused discretion in the ultimate determination that it is in the children’s best interests to be permanently placed with their maternal grandmother.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1]  The child protection provisions of the Juvenile Court Act, codified in 1999 at §§ 260C.001-.451, 1999 Minn. Laws ch. 139, art. 3, §§ 1-48; ch. 245, art. 8, §§ 19-25, 41-64, were formerly codified in chapter 260.


[2] While recognizing that the issue is not properly reserved for review, we note in passing that we find persuasive the guardian ad litem’s argument that his opinion was admissible as expert testimony and need not have qualified under the rules for lay witness opinions.  See Minn. R. GAL. P. 908.01.