This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-1419

 

In the Matter of the Child of: T.G., Mother.

 

Filed March 26, 2002

Affirmed

Poritsky, Judge*

 

Hennepin County District Court

File No. J400051478

 

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

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN  55103; and

 

Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County DCFS)

 

Stephen M. Goldfarb, 4600 West 29th Street, St. Louis Park, MN 55416 (for guardian ad litem)

 

            Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            T.G. appeals from a district court’s denial of her motion for a new trial, asserting that the district court (a) erred in denying the permissive intervention of the child’s maternal grandmother and aunt, (b) erroneously admitted a redacted police report into evidence, (c) made findings that are clearly erroneous, and (d) erred in terminating appellant’s parental rights.  We conclude (a) the district court did not abuse its discretion in denying intervention, (b) the district court did not abuse its discretion in admitting the redacted police report, (c) the district court findings were not clearly erroneous, and (d) the district court did not err in determining (i) that appellant was palpably unfit to parent, (ii) that appellant failed to fulfill parental duties, (iii) that reasonable efforts to correct the conditions leading to the child’s out-of-home placement have failed, and (iv) that termination was in the best interests of the child.  Therefore, we affirm.

FACTS

            Appellant is the mother of S.M., the child at issue in this appeal.  S.M. is the sixth child of appellant and her husband.  Both parents have a history of domestic abuse. On January 13, 2000, appellant reported to her housing social worker her suspicions that S.M. had been sexually abused.  Appellant brought the child to the hospital where she was examined and released.  On January 15, 2000, police responded to a 911 domestic disturbance call at appellant’s apartment.  Appellant reported that her husband had beaten and choked her after she accused her husband’s brother of sexually abusing S.M.  The child witnessed the beating, and police took her into protective custody. A CHIPS petition followed, and the child was placed out of the home.

Appellant signed a protective services case plan on February 8, 2000, in the presence of her caseworker.  The case plan required appellant to participate in parenting classes and domestic abuse counseling, to submit to urinalyses, and to avoid contact with her husband and the child’s suspected abuser.  Subsequently, she missed urinalysis tests and failed to show up for her supervised visits on several occasions. Appellant participated in some case plan programs, but completed none of them.  At the time of the termination of parental rights hearing, appellant was hospitalized and was then diagnosed with cervical cancer requiring chemotherapy treatment.

Appellant’s social worker, the child’s guardian ad litem, and the child’s psychologist recommended that appellant’s parental rights be terminated. The district court terminated appellant’s parental rights upon the finding that she was palpably unfit to be a parent to the child, that appellant repeatedly refused or neglected to provide parental duties, and that reasonable efforts have failed to correct the conditions leading to the child’s placement.  See Minn. Stat. § 260C.301, subd. 1 (b)(2), (4), (5) (2000) (setting out conditions for termination).  The district court found that termination was in the best interests of the child.

            The district court then denied appellant’s motion for a new trial, and this appeal followed.

D E C I S I O N

I.

 

            The child’s maternal grandmother and aunt appeared at court on the first morning of trial and sought to intervene.   Appellant claims that the district court erred by not allowing intervention.  Because the child had not resided with either the grandmother or aunt during the two years prior to the termination proceedings,neither relative could intervene as a matter of right.  See Minn. R. Juv. P. 59.01. The district court denied the request for permissive intervention.  Permissive intervention is allowed at the court’s discretion, if the intervention is in the child’s best interests.  Minn. R. Juv. P. 59.02.  In this case, the district court found that, due to the lack of contact between the relatives and the child, intervention was not in the child’s best interests.  See Minn. R. Juv. P. 59.03, subd. 2.  The trial court also noted that grandmother and aunt failed to file the requisite notice of permissive intervention.

            Appellant showed no prejudice as a result of the denial of intervention.  By the relatives’ request to intervene, the trial court had been made aware that they were available as potential placements for the child.  We conclude that the district court did not abuse its discretion in denying the motion to intervene.

II.

 

Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id. at 46 (quotation omitted). 

            The district court admitted the redacted police report arising out of the response to the January 15, 2002, 911 domestic disturbance call from appellant’s apartment.  In admitting the report, the court relied on the following hearsay exceptions: public record, under Minn. R. Evid. 803(8)(C); business record, under Minn. R. Evid. 803(6); and the catchall provision, under Minn. R. Evid. 803(24).

            Appellant contends that the district court erred in admitting the report because it was (1) not a business record, and (2) was not self-authenticating.  Respondent agrees that the report is not admissible under the catchall exception, Minn. R. Evid. 803(24), because respondent did not give advanced notice that the records would be used at trial, and that it was not admissible as a business record under Minn. R. Evid. 803(8) because police reports do not qualify as business records.

However, under the public-records exception found in Minn. R. Evid. 803(8)(C), in civil actions “factual findings resulting from an investigation made pursuant to authority granted by law” are admissible. Police reports in this type of case are admissible, unless the district court determines that the report lacks trustworthiness, which it did not in this case.  The police responded to a 911 domestic disturbance call reporting that appellant’s husband was beating appellant.  Pursuant to his duty, the officer recorded in a report what he witnessed and the information he gathered at the scene, including statements taken from the appellant and the child.  Termination proceedings are civil, and the evidence offered was a police report made by an officer pursuant to his authority. 

Appellant touches on the fact that the report contained the out-of-court oral statements of appellant and the child, S.M.; thus, the offer of the police report raised an issue of double hearsay.  Evidence containing double hearsay is nonetheless admissible if each item of hearsay falls into an exception.  Minn. R. Evid. 805.  Appellant’s statements are non-hearsay under Minn. R. Evid. 801(d)(2)(A) as an admission of a party opponent, and S.M.’s statements were admitted under the excited utterance exception, Minn. R. Evid. 803(2).

Appellant also argues that the report was not properly authenticated.  Both parties agreed at trial that the document offered into evidence constituted a police report.  What is required for authentication is a showing that the “matter in question is what its proponent claims.”  Minn. R. Evid. 901(a).  As a result of the agreement between parties, the district court could properly assume that the document was what its proponent claimed it was, i.e., a police report.  Consequently, we conclude that the district court did not err when it admitted the police report. 

III.

 

“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  The court’s factual findings must be clearly erroneous, manifestly contrary to the weight of the evidence, or not reasonably supported by the evidence as a whole to warrant reversal. Vangsness v. Vangsness, 607 N.W.2d 468, 474. (Minn. App. 2000). 

            Appellant points to the court’s finding that each of appellant’s missed urinalysis tests was “deemed positive.” Appellant argues that the trial court erred because (a) no statute or rule requires the court to treat missed urinalyses as positives; (b) the district court’s treatment of the missed tests created an “unrebutted inference” of appellant’s substance abuse; and (c) the district court improperly shifted to appellant the burden of persuasion on this point.

            The case plan signed by appellant requiring her to submit to urinalysis contained the statement “[f]ailure to submit to urinalysis in a timely manner will be treated as a positive for the presence of controlled substance.”  Appellant was on notice from the first day she signed the case plan that the county would construe a failure to submit to a test as a positive result.  In addition to the missed urinalysis tests, in assessing the appellant’s potential for chemical abuse the district court took into account appellant’s statement that she did not use drugs but that she had in the past.  Appellant tested positive for ethanol the day she signed the case plan and failed to provide eight of 16 urinalyses between July 3, 2000, and November 20, 2000.  A similar pattern arose from January 27 to March 15, 2000, when appellant once tested positive, failed to provide five urinalyses, and submitted two samples in an unacceptable temperature range.  Appellant provided no reason at the time for the missed tests.

Appellant’s first two arguments in support of her claim that the district court erred when it deemed missed tests as positive are wide of the mark.  On the basis of all the evidence, the district court was free to draw the inference that missed tests were the equivalent of positive results.  Whether or not there is a statute or rule governing the inference is of no moment.  By the same token, there is nothing in the record to suggest that the district court treated the missed tests as giving rise to an “unrebutted inference” that the results would have been positive.  As to the appellant’s complaint that the district court failed to credit her testimony concerning the missed tests, credibility issues rest with the trial court. The district court’s findings that appellant’s failure to submit a urinalysis was the equivalent of a positive test are adequately supported by the record. Appellant took 25 of the 38 requested urinalysis tests, two tested positive for alcohol and two samples were rejected for improper temperature, and overall appellant failed to take a total of 13 urinalysis tests. 

Finally, appellant’s argument that the district court’s finding concerning the missed tests improperly cast upon appellant the burden of persuasion is without merit.  As we have noted, the trial court was free to draw inferences from the evidence.  A finding that missed tests would be deemed positive is not clearly erroneous.  It is an inference the court was free to draw, and it did not cast upon appellant any burden of persuasion.

IV.

            A court may terminate parental rights “only for grave and weighty reasons.” In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  In reviewing a district court’s decision as to termination of parental rights, the appellate court may review

whether the trial court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.  

 

Id.  The child’s best interests are paramount.  Id.;Minn. Stat. § 260C.301, subd. 8 (2000). 

            The statute sets out various conditions for involuntary termination of parental rights.  Minn. Stat. § 260C.301, subd. 1(b) (2000).  If one of these conditions is met, the court must then decide whether terminating parental rights would be in the child’s best interests.  Minn. Stat. § 260C.301, subd. 7 (2000).  The district court here found three of these were met:  Appellant was palpably unfit to be a parent to the child; appellant repeatedly refused or neglected to provide parental duties; and reasonable efforts have failed to correct the conditions leading to the child’s placement.  See Minn. Stat. § 260C.301, subd. 1 (b)(2), (4), (5) (setting out conditions for termination).  The district court found that termination of appellant’s parental rights was in the child’s best interests.

A.  Palpably Unfit

            A district court may terminate parental rights upon a finding that the parent is “palpably unfit” due to either a “consistent pattern of specific conduct” or “specific conditions” rendering the parent unfit.  Minn. Stat. § 260C.301, subd. 1(b)(4).  The statute presumes a parent is palpably unfit upon a showing that the parent’s parental rights to another child were involuntary terminated. See Minn. Stat. § 260C.301, subd. 1(b)(4). 

In this case, the district court received evidence that the appellant’s parental rights to two of her other children were involuntarily terminated.  In addition, psychologist Sharon Ward noted that the child exhibited behavior indicating the child was subject to a parenting cycle of nurturing disrupted by anger and punishment.  Ward suggested that such a cycle harmed the child, and that the child was in need of consistent parenting.  Appellant offered no evidence of her fitness to parent the child.  In light of the evidence and the statutory presumption of unfitness, the district court did not clearly err in finding the appellant palpably unfit to parent the child.

B.  Failure to fulfill parental duties

            A district court may also terminate parental rights upon a finding that the parent has repeatedly refused or neglected to fulfill parental duties of providing food, clothing, shelter, education, and care for the child’s physical and emotional development.  See Minn. Stat. § 260C.301, subd. 1(b)(2). 

            The district court in this case found that appellant was unable to help the child cope with her sexual abuse, was unwilling to participate in any meaningful therapy, and was unable to maintain consistent visits or to act appropriately during visits.

            The record includes testimony of a social worker who was consulted to help appellant and the child overcome sexual abuse.  The social worker testified that appellant was not able to help the child deal with the effects of sexual abuse.  The testimony of appellant’s social worker and the child’s foster mother illustrate that appellant did not appreciate the impact of her absences and tardiness on S.M. or how to appropriately nurture the child.  The child’s psychologist testified that upon initial out-of-home placement the child exhibited severe symptoms of anxiety disorder, including agitation and extreme rocking behavior. The child’s shaking would be triggered by appellant’s missed visits and behavior.

            Because of appellant’s inability to appreciate the effects her actions had upon the child and appellant’s failure to provide emotionally for the child, the district court did not clearly err in finding that appellant neglected her parental duties. 

C.  Reasonable efforts have failed

A district court may also terminate parental rights upon a finding that following the out-of-home placement of the child, reasonable court-directed efforts to correct the conditions leading to the placement have failed.  Minn. Stat. § 260C.301, subd. (1)(b)(5).  Failure is presumed upon a showing of four factors.  First, that the child has resided outside of the parental home under court order for a cumulative period of 12 months within the preceding 22 months, or if the child is less than eight years old, resides out of the parental home under court order for six months, and the parent has not maintained regular contact or complied with the case plan.  Second, there is a court-approved case plan in the matter.  Third, the conditions leading to the out-of-home placement have not been corrected.  The conditions are presumed uncorrected upon a showing that the parent has failed to substantially comply with the case plan. Fourth, social services made reasonable efforts to reunite the family and rehabilitate the parent. 

Appellant argues that she was not under court order to comply with the case plan until two weeks before the proceedings.  Compliance with a case plan does not require the parent to be under court order, only that the plans are “under the direction of the court.”  Minn. Stat. § 260C.301, subd. 1(b)(5) (2000) (amended in 1999 deleting requirement that court must order compliance with case plans).  Appellant’s case plan was developed at the direction of the court, and appellant signed it.  At the time, the child was less than four years old and had been in court ordered placement from January 20, 2000, until court ordered termination of March 1, 2001.  Thus, according to the statute, reasonable efforts to correct the conditions for the placement were presumed to have failed. Minn. Stat. § 260C.301, subd. 1(b)(5). 

The record supports the district court’s determination that the conditions leading to the placement had not been corrected.  This determination was properly based on appellant’s admission that she had not complied with her case plan.  It was also based on the facts that she missed several visits, failed to appreciate the impact of her missed visits, exhibited inappropriate parenting behavior during visitation, failed to complete individualized therapy, and failed to complete domestic abuse programming.

Because the record contains evidence that social services made various efforts to provide services to the appellant including therapy, parenting classes, domestic abuse counseling, and arranged visitation, and that appellant did not take advantage of the case plan services, the district court did not clearly err in finding that reasonable efforts to correct the conditions leading to an out-of-home placement failed. 

D.  Best interests of S.M.  

            The factor that is of paramount consideration in all terminations is the best interests of the child.  Minn. Stat. § 260C.301, subd. 7 (2000).  Thus, even if one or more of the statutory requirements for termination are present, the district court may not terminate parental rights where the record does not show it is in the child’s best interests.  In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996).   The findings must address whether the termination is in the child’s best interests and must explain the court’s rationale.  Id. at 74-75. 

            The district court found that there was a bond between appellant and S.M., and that appellant had a desire to overcome conditions affecting her ability to parent the child.  However, the court also found that the appellant failed to take advantage of the services offered in her case plan in order to overcome the conditions that prevented her from becoming an adequate parent.  Appellant failed to substantially participate in individual therapy, failed to visit on a consistent basis, failed to complete a domestic abuse program, failed to participate consistently in parenting education, failed to demonstrate sobriety, and failed to maintain stable housing.  The child’s guardian ad litem, who--as appellant recognizes--had the most experience with the family, testified that it would be in the child’s best interests to terminate appellant’s parental rights because appellant is unable to provide S.M. with the stable, consistent, and nurturing environment necessary for her well-being.  The child’s therapist gave similar testimony. 

Appellant contends that termination of her parental rights is not in the child’s best interests because of the strong bond between the two.  While appellant and child have a bond, the record supports the district court’s determination that termination was nonetheless in the child’s best interests.  The child’s therapist testified that when S.M. was removed from appellant’s care, at first the child exhibited severe symptoms of anxiety disorder, including agitation, extreme rocking behavior, and clinginess to adults.  The child’s foster mother testified that the child suffered from bouts of bedwetting after distressing encounters with appellant.  The child’s therapist testified that as a result of out-of-home placement and therapy, the child’s anxiety and agitation had subsided, and to ensure further progress, the child needed a stable and nurturing environment that appellant was unable to provide.  

            The district court’s findings are supported by the record, and therefore, the district court did not clearly err in determining that the termination of appellant’s parental rights was in the best interests of the child.

Appellant raises several other issues on appeal that were not raised in her motion for new trial. These are: the trial court’s denial of a motion for continuance, the respondent’s use of leading questions, and the district court’s judicial notice of two documents that showed appellant’s rights to two of her children were terminated by Illinois courts.  Because appellant failed to raise these issues in her motion for a new trial, she has waived them on appeal. In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997).  Therefore, this court cannot review these issues.

            The district court did not abuse its discretion in denying intervention, or in admitting the redacted police report.  Because the district court’s findings are not clearly erroneous and the district court did not err in determining that appellant was palpably unfit, that appellant failed to fulfill parental duties, that reasonable efforts have failed to correct conditions leading to the child’s placement, and that it was in the best interests of the child to terminate appellant’s parental rights, we affirm. 

            Affirmed.

 

 



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