This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Hennepin County District Court
File No. J300056079
Leonardo Castro, Hennepin County 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, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue, Suite 1200, Minneapolis, MN 55415 (for respondent Hennepin County Children Family and Adult Services Department)
Stephen M. Goldfarb, 4600 West 29th Street, St. Louis Park, MN 55416 (for respondent guardian ad litem)
Considered and decided by Minge, Presiding Judge, Willis, Judge, and Wright, Judge.
Appellant-mother E.V. appeals the district court’s decision, after remand, to terminate her parental rights. E.V. argues that the district court (1) did not comply with this court’s remand instructions, (2) improperly admitted hearsay evidence on remand, (3) improperly considered the availability of an adoptive placement in determining whether to terminate parental rights, and (4) should have found that termination of her parental rights was not in the child’s best interests. We affirm.
This matter is before us for a second time, after we reversed and remanded the district court’s December 20, 2000, order terminating E.V.’s parental rights to L.S.V. The facts underlying the first appeal are set out in this court’s September 9, 2001, opinion, but a brief summary provides guidance in this subsequent appeal. L.S.V., now 12 years old, was first removed from E.V.’s home after E.V.’s boyfriend beat him with a belt when L.S.V. discussed suicide. In February 1999, E.V.’s boyfriend was convicted of malicious punishment of L.S.V. In April 1999, E.V.’s boyfriend again beat L.S.V. with a belt, this time with E.V.’s consent. Hennepin County Department of Children and Family Services (HCDCFS) then initiated a child in need of protective services (CHIPS) action. E.V. was convicted of gross misdemeanor child neglect and her boyfriend was convicted of child abuse. E.V.’s boyfriend was eventually deported to Jamaica, his home country.
In September 1999, L.S.V. was adjudicated a child in need of protective services and HCDCFS assumed legal custody of him. Psychologist Michael Sancilio, in consultation with a psychiatrist and clinical nurse specialist, diagnosed L.S.V. with Attention Deficit Hyperactivity Disorder (ADHD) and Klinefelter’s Syndrome. E.V. participated in a parenting evaluation at Fraser Family and Child Center. The evaluators recommended that E.V. participate in individual therapy. As part of the child protection process, the district court ordered E.V. to comply with a case plan. Essentially, the case plan required E.V. to (1) participate in individual therapy, (2) work with L.S.V.’s mental health professionals, and (3) participate in an approved parenting education program.
E.V. began individual therapy, but did not complete it. She did, however, receive a certificate for completing a nonviolent conflict resolution workshop, and she also participated in an anger management group. E.V. did not work with L.S.V.’s mental health professionals as required by the case plan. E.V. stated that she would not continue L.S.V.’s special education services or medication, because she did not believe that L.S.V. needed those services. She also disputed L.S.V.’s diagnosis of ADHD, believing instead that L.S.V.’s behavioral problems were caused by Klinefelter’s Syndrome. The district court refused to return L.S.V. to E.V., because E.V. removed L.S.V. from a treatment center and “she would not have him take speech and language evaluation.” E.V. participated in parenting education as required by the case plan, but she did not complete the program. Trenton Peterson, a therapist for Generations Community Support Services, stated that E.V. met with him for parenting education, had “exceptional parenting skills,” and expressed her understanding of acceptable discipline techniques. He observed, however, that E.V. still believed in physical punishment. Peterson noted that his sessions with E.V. had “not been very productive for parenting work,” and, eventually, the sessions were discontinued.
Because E.V. did not comply with the case plan, HCDCFS filed a termination of parental rights (TPR) petition in October 2000. After a two-day trial, the district court ordered that E.V.’s parental rights to L.S.V. be terminated (the first termination order). E.V. appealed the first termination order to this court.
On appeal, this court ruled that the district court’s findings did not adequately support termination of parental rights. In re E.V., L.S.V., 634 N.W.2d 443, 447 (Minn. App. 2001) (L.S.V. I). In particular, this court held that the district court’s findings
fail[ed] on a basic level to address whether full compliance with the case plan’s requirements was necessary to correct the conditions that led to the out-of-home placement and whether the efforts appellant did make were insufficient to correct the conditions.
On remand, the district court received additional evidence, which consisted of the affidavit of a Hennepin County social worker and four letters written by individuals involved with L.S.V.’s treatment or education. The evidence admitted included information about the prospects of L.S.V.’s adoption. On January 18, 2002, the district court again terminated E.V.’s parental rights (the second termination order). This appeal followed.
At some point after this court issued its October 9, 2001, decision in the first appeal, the Immigration and Naturalization Service (INS) arrested E.V. and deported her to Belize, her native country, where she remains today. At oral argument, E.V.’s attorney stated that she will not be eligible to reapply for admission to the United States until after L.S.V. reaches majority.
We note at the outset that although E.V. has been deported and is not likely to return to this country before L.S.V. reaches majority, the parties agree, and this court concludes, that this case is not moot because of the collateral consequences of the termination of parental rights, which would prevent L.S.V. from joining E.V. either in Belize or in the United States, if E.V. were to return sooner than anticipated. SeeUnited States v. Villamonte-Marquez, 462 U.S. 579, 580 n. 2, 103 S. Ct. 2573, 2575 (1983) (holding that criminal appeal was not moot because if deported defendants were to re-enter the United States, the collateral consequences of upholding their conviction would subject them to legal consequences); In re McCaskill, 603 N.W.2d 326, 329 (Minn. 1999) (discharge from civil commitment before completion of appellate review did not render appeal moot because of collateral consequences that attach to civil commitment).
E.V. argues that, in terminating her parental rights, the district court did not comply with this court’s mandate on remand. The district court’s duty on remand is to execute the mandate of this court strictly according to its terms. Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982). “Parental rights are terminated only for grave and weighty reasons.” In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citation omitted). There is a presumption that the natural parent is suitable to be entrusted with the care of his or her child and that it is in the child’s best interests to be in the natural parent’s care. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).
When a party challenges the district court’s findings in a termination proceeding, this court determines “whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). On review, “[c]onsiderable 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 party petitioning for termination must prove one or more of the statutory grounds by clear and convincing evidence. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991) (citation omitted). This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).
As we noted in our decision in L.S.V. I, the district court’s findings addressed the following four provisions of the termination statute: (1) E.V. refused to comply with duties of the parent and child relationship under Minn. Stat. § 260C.301, subd. 1(b)(2) (2000); (2) reasonable efforts, under the district court’s direction, have failed to correct the conditions leading to the CHIPS determination under Minn. Stat. § 260C.301, subd. 1(b)(5) (2000); (3) the father is not known, has not registered with the adoption registry, and is not entitled to notice under Minn. Stat. § 260C.301, subd. 1(b)(7) (2000); and (4) the child is neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8) (2000). In re E.V., L.S.V., 634 N.W.2d 443, 446 (Minn. App. 2001). The district court based the second termination order on the same four provisions. As we noted in L.S.V. I, and as remains the case, no one challenged the criterion concerning L.S.V.’s father.
Each CHIPS intervention requires a case plan reflecting the reasonable efforts of the petitioning agency to facilitate reunification of the parent and child. See Minn. Stat. §§ 260C.201, subd. 6 (2000) (requiring case plan when child is placed away from parent), 260.012 (2000) (requiring reasonable efforts to reunite child and parent). Termination is appropriate when those efforts fail. Minn. Stat. § 260C.301, subds. 1(b)(2) (allowing termination when “reasonableefforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable”), 1(b)(5) (allowing termination when “reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement”), 1(b)(8) (allowing termination when child is “neglected and in foster care,” which, under Minn. Stat. § 260C.007, subd. 18(c) (2000), means that “parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances”).
The district court based the first termination order on E.V.’s failure to comply with the case plan, in particular: (1) her failure to follow through with individual therapy; (2) her failure to cooperate with L.S.V.’s mental health professionals; and (3) her failure to follow through with parenting education. L.S.V. I, 634 N.W.2d at 447-48. We concluded in L.S.V. I that each of the findings in the first termination order failed to address whether E.V.’s compliance with the case plan was necessary to correct the conditions leading to out-of-home placement or whether E.V.’s efforts were insufficient to correct the conditions. Id. at 451. E.V. now argues that the district court failed to comply with this court’s mandate on remand. After a careful review of the entire record, we hold that the district court’s findings in the second termination order comply with the remand and address the statutory criteria.
A. Individual Therapy
We found that, in the first termination order, the district court “did not find that failure to obtain individual therapy impeded correction of the conditions that led to the out-of-home placement.” Id. at 447. In the second termination order, the district court expressly adopted the Fraser Child and Family Center parenting evaluation, which stated that individual therapy was necessary, so that E.V. (1) could be better able to empathize with L.S.V.; (2) could understand L.S.V.’s mental health issues as determined by his therapist; and (3) could use alternative methods of discipline. The district court then found that E.V.’s failure to participate in therapy
mandated that [the district court] find that [E.V.] had not corrected the conditions that led to L.S.V.’s out-of-home placement that was the result of the whipping in April 1999.
The individual therapy portion of the district court’s case plan was an appropriate way to facilitate reunification and insure that L.S.V. would no longer be abused. We conclude from our review that the district court’s findings on remand are supported by substantial evidence and adequately address the statutory criteria for termination of parental rights.
In L.S.V. I, we also held that, in the first termination order, the district court did not find that requiring E.V.’s cooperation with L.S.V.’s mental health professionals was necessary to correct the conditions that led to the out-of-home placement. Id. at 448. We gave three reasons for our holding. First, the district court’s first termination order simply referred to the June 3, 1999, parenting evaluation performed by the Fraser Child and Family Center. Id. We noted that the district court quoted from this evaluation, but failed to adopt it or give a reason for adopting it. Id. Second, the district court failed to discuss E.V.’s stated reason for failing to comply with L.S.V.’s mental health professionals—that she disagreed with his diagnosis of ADHD. Id. Finally, this court held that the district court failed to find that, over E.V.’s protests, it was necessary for L.S.V. to be medicated in order to correct the conditions that led to his out-of-home placement. Id.
The district court’s second termination order expressly adopted the Fraser Parenting Evaluation Summary, which recommended that E.V. participate in therapy for L.S.V. On remand, the district court found that E.V.’s participation was critical “to help her understand her son whom she had abused and his behavior” and “to help heal her relationship with her son.” The district court also found that E.V.’s participation in L.S.V.’s treatment was necessary to correct the conditions that led to his out-of-home placement. Further, the district court considered E.V.’s testimony regarding proper diagnosis and treatment of L.S.V. and ultimately chose to credit the testimony of mental health professionals instead. Upon review we conclude that, by adopting the Fraser Parenting Evaluation Summary and considering E.V.’s testimony, the district court complied with this court’s remand instructions.
On remand, the district court found that E.V.’s failure to cooperate with L.S.V.’s mental health professionals prevented correction of the abusive conditions that led to the out-of-home placement. This finding properly addressed the statutory criteria and is supported by substantial evidence in the record.
C. Participation in Parenting Education
Finally, in the first appeal, we found that the district court did not address the statutory criteria when it found that E.V. “failed to fully participate in an approved parenting education program.” Id. Because E.V. participated in a parenting program for six months and received some favorable progress reports, the district court needed to address whether E.V.’s participation failed to correct the conditions that led to the out-of-home placement. Id. We held that a therapist’s evaluations of E.V.’s parenting skills were not properly considered when “the [district] court did not find that the progress noted by the therapist failed to correct the conditions or that [E.V.] made too little progress.” Id. We also found that the district court failed to consider E.V.’s testimony explaining her techniques, beliefs, and future plans regarding physical discipline of L.S.V. Id.
In the second termination order, the district court acknowledged that E.V.’s parenting educator initially submitted positive reports regarding E.V’s participation. The district court, however, explained that after receiving less positive reports, E.V. was no longer an active participant in the education program. E.V. continued to indicate that she saw no need to change her parenting methods despite the incidents of prior abuse. The district court also found that E.V.’s contention that L.S.V. no longer faced a threat of physical abuse lacked credibility. The district court complied with our mandate on remand. The district court’s determination that E.V.’s manner of participation in parenting education failed to correct the conditions that led to the abuse resulting in the out-of-home placement properly addressed the statutory criteria and was supported by substantial evidence.
Because the district court developed a case plan to facilitate reunification and prevent the abuse of L.S.V., and because E.V. did not comply with this plan and correct the conditions that led to L.S.V.’s out-of-home placement, the district court did not err in terminating E.V.’s parental rights.
II. Best Interests of the Child
E.V. also argues that the district court’s second termination order does not serve L.S.V.’s best interests, because E.V. and L.S.V. have a close mother-child relationship. We declined to rule on this issue in the first appeal. Id.at 450. In support of her argument, E.V. relies on testimony of the bond between E.V. and L.S.V. Respondent guardian ad litem argues that termination is in the best interest of L.S.V., because the failure to correct the conditions that led to L.S.V.’s out-of-home placement outweigh the parent-child bond. We agree.
In a termination proceeding, the child’s best interests must always be the primary consideration. M.D.O., 462 N.W.2d at 375. When substantial evidence supports the district court’s findings and those findings are adequate to support termination, this court will uphold the termination order. In re Welfare of D.T.J., 554 N.W.2d 104, 110 (Minn. App. 1996). The evidence of a parent-child bond is insufficient to overcome the substantial evidence supporting termination. The district court did not clearly err in finding that L.S.V.’s best interests will be served by the termination of E.V.’s parental rights.
III. Evidence Admitted After Remand
E.V. next argues that the post-remand evidence admitted by the district court was inadmissible because it contained hearsay. In L.S.V. I we stated that, “it remains within the trial court’s discretion whether to open the record for the presentation of additional evidence.” L.S.V. I, 634 N.W.2d at 449. The district court admitted the affidavit of a Hennepin County social worker and several letters written by individuals involved with L.S.V.’s treatment or education. E.V. points out that some of the information admitted after remand was mentioned in the district court’s second termination order, specifically in finding number 30, which addresses L.S.V.’s potential adoption.
Absent an erroneous interpretation of the law, it is within the district court’s discretion to decide whether to admit evidence. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). “Error may not be predicated on a ruling which admits evidence unless a substantial right of the party is affected.” In re Welfare of J.H.D., 416 N.W.2d 194, 199 (Minn. App. 1987) (citing Minn. R. Evid. 103 (a)), review denied (Minn. Feb. 12, 1988). “An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial.” Cloverdale Foods, Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998).
The affidavit and letters were hearsay. Minn. R. Evid. 801(c). From the record, we conclude, however, that the admission of the affidavit and letters did not significantly prejudice E.V. See J.H.D., 416 N.W.2d at 199 (holding no error by trial court where no significant prejudice was caused by admission of testimony regarding county social services reports). The district court relied on the post-remand evidence only to address L.S.V.’s prospect for adoption, which was a minute portion of a greater body of evidence supporting termination. The district court did not commit prejudicial error by admitting the affidavit and letters on remand.
B. Adoption Information
E.V. also argues that the district court should not have considered the availability of an adoptive placement for L.S.V in its termination order. She argues that a district court is not permitted to consider a child’s adoptability in deciding whether to terminate parental rights. The caselaw she cites, however, does not support her proposition. See J.M., 574 N.W.2d at 724 (“the termination statute does not require assessment of a child’s adoptability”). The J.M. decision does not preclude a district court from considering whether a child will be adopted after terminating parental rights; it merely states that a district court is not required to consider adoptability. Id. Even if considering L.S.V.’s prospects for adoption were improper, the outcome of this case did not turn on this consideration. From our review, we conclude that there was substantial evidence to support termination of E.V.’s parental rights, without relying on evidence of L.S.V.’s adoptability.