This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-1226

 

In the Matter of the Welfare of:

T.S.T.

 

Filed February 11, 2003

Affirmed; motion denied

Randall, Judge

 

Hennepin County District Court

File No.J2-01-64112, Family No: 234527

 

 

Leonardo Castro, Fourth District Public Defender, Barbara S. Isaacman, 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, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Children, Family and Adult Services Department)

 

Michael J. Bigelow, 839 Midland Bank Building, Suite 839, Minneapolis, MN 55402 (for guardian-ad-litem)

 

            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal in this termination of parental rights proceeding appellant, mother of T.S.T., argues (a) instead of terminating her parental rights, the district court should have transferred custody of the child to his adult sister; (b) the district court failed to make adequate findings explaining why the child was not placed with his adult sister; (c) the county failed to notify the adult sister of the proceedings and her rights to participate in the proceeding; (d) the county attorney failed to fulfill its obligation to present evidence to the court regarding the possibility of placing the child with his adult sister; (e) the district court failed to make findings adequately supporting the termination and the findings that were made were not supported by the record or were based on evidence that should not have been admitted; (f) the district court failed to order reunification of the family; (g) the county failed to offer adequate reunification services; and (h) appellant was denied due process of law by the district court’s acceptance of and reliance on hearsay and other inadmissible evidence.  Respondent motioned this court to strike portions of appellant's brief arguing that the materials are outside the record.  The motion to strike is denied.  We affirm.

FACTS

T.S.T. was born April 3, 1994 and is presently eight years old.  On March 10, 2001, T.S.T. called 911 and police responded to appellant's residence. Appellant, T.S.T.'s motion, had been drinking vodka and taking medication and, while wrestling with T.S.T., had placed T.S.T. in a stranglehold.  At the time of the incident appellant was arrested and the T.S.T. taken from the home.  On March 22, 2001, appellant agreed that T.S.T. was in need of protection and services.

Under the March 2001 case plan developed by Hennepin County Children, Family and Adult Services Department, appellant was to attend psychiatrist appointments, comply with all treatment orders, take medication for her fibromyalgia and chemical dependency, comply with the terms of her probation, including breathalyzer and random urine analysis tests (UA's), obtain a parenting assessment and parental services, cooperate with social workers, and maintain suitable housing.

In the summer of 2001, appellant completed a parenting assessment program while she was in a workhouse.  After release, appellant initially told the social worker that she would not participate in a parenting program; later, appellant said that she would participate in a parenting program and began services in December 2001. 

Following her release, appellant attended therapy sessions with T.S.T.  In October 2001, the therapist recommended supervised visits; appellant missed the first two visits with T.S.T.  The therapist then recommended suspending visits due to appellant's continued alcohol use.

Under her case plan, appellant was to obtain mental health care and take all her prescribed medications.  Appellant began receiving individual counseling sessions.  The social worker testified that she discussed the need for medication with appellant and appellant denied that she needed to take it.  According to appellant, she missed one of the first two scheduled December visits with T.S.T. because she had an anxiety attack.  Appellant told the social worker that she was seeing a psychiatrist and was on medication, but, at first, refused to provide the social worker with either the name of the doctor or the medication.  Appellant later did tell the social worker which medication she was on, but has not provided the doctor's name.

In December 2001, appellant completed chemical dependency treatment and entered aftercare.  An Alcosensor report indicated that appellant had a high blood alcohol level in November 2001 and on December 30, 2001.  The reports indicate that on December 30, 2001, appellant missed several call-back phone calls.  Prior to the permanency hearing, appellant's probation was revoked for failing to maintain sobriety and failing to follow the child protection plan.

On September 4, 2001, Hennepin County Department of Children and Family Services (the county) and appellant's adult daughter (the sister) petitioned to transfer legal custody of appellant's then seven-year-old child T.S.T. to appellant's adult daughter.  The petition alleged that the sister and appellant requested that T.S.T. be permanently placed with the sister, that she had been his primary caretaker, that she demonstrated the capacity and disposition to provide T.S.T. with love, affection, and guidance, and that an expedited home study had been requested from the state where the sister lives.

The county, in the petition, alternatively requested that appellant's parental rights be terminated pursuant to Minn. Stat. § 260C.301, subds. (b)(1), (2), (4), (5) & (8).  The county alleged that that appellant abandoned the child, refused or neglected to comply with her parental duties, was palpably unfit to parent a child, and both that reasonable efforts failed to correct the conditions that led to the out-of-home placement, and that the child was neglected and in foster care. 

On January 8, 2002, an adoption home study was completed that recommended transfer of custody to the child's adult sister; this study did note, however, areas of concern, such as the sister's financial condition, and the sister's erratic job hours, and whether the sister possessed the maturity to care for the child. 

At a permanency hearing held on January 16 and 17, 2002, the social worker opposed transferring custody to the sister and, instead, recommended termination, citing concerns in the home study (1) appellant's plan to move out-of-state to be with the sister and T.S.T.; (2) appellant's continued drinking; (3) her failure to follow the case plan; and (4) her continued criminal issues.  The guardian ad litem also recommended terminating appellant's parental rights because appellant had not made an effort to be with the child and the guardian ad litem cited the other concerns listed in the home study.  Appellant testified that she wanted T.S.T. to remain in foster care until she could again parent her child.  Appellant alternatively requested that custody be transferred to the sister.

Following the permanency hearing, the district court terminated appellant's rights, citing appellant's continued drinking, violent incidents, failure to substantially complete the case plan, probation violation, impending incarceration due to her probation revocation, failure to attend Alcoholics Anonymous meetings, failure to take her medication, and failure to follow through with recommended services.  This appeal follows.

D E C I S I O N

I.

 

Appellant raises eight issues on appeal, however, they are reducible to two (1) whether appellant's parental rights to T.S.T. should have been terminated; and (2) whether custody of T.S.T. should have been transferred to the sister.  The additional six issues fall into one of these two main issues and will be dealt with accordingly.

Appellant's primary argument is that her parental rights should not have been terminated.  She argues that the district court's findings were based on evidence that should not have been admitted, or that the findings were not supported by the record.  Finally, appellant argues that the district court did not order sufficient reunification services and failed to reunite the family.  Initially, we must determine whether the evidence was properly admitted, then determine whether the evidence supports the district court's findings.

On appeal, we afford the district court broad discretion in evidentiary rulings.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  Appellant argues that the district court erred in admitting "hearsay and opinion" evidence from two social workers and the guardian ad litem.  These individuals testified that termination was in the child’s best interests because appellant failed to comply with the case plan.  Appellant claims that their testimony was partially hearsay and opinion because part of their knowledge was based on affidavits and reports from other individuals.  Appellant first objected to the admission of two police reports.  They were offered as part of a "business record" of a social worker containing material about appellant's chemical abuse and assaultive behavior.  The district court stated it would allow the police reports in, but redacted two pages that had to do with someone else's statement to the police.  It would have been better if the police reports had not come in, but there is nothing in them that would have changed this result nor our affirmance.  Appellant's other broad issue about the court admitting opinion testimony and hearsay statements was not preserved by objection at trial.  We decline to address appellant's arguments on the opinion testimony because she failed to object at trial and thus has waived review.  A failure to preserve objections at the trial level generally waives those issues on review.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). This rule applies to cases concerning the termination of parental rights.  Welfare of Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001).

Having determined that appellant failed to show an abuse of discretion in admitting the evidence, we now must inquire into the sufficiency of the evidence to determine whether it is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

In any action for the termination of parental rights, if other statutory requirements are met, "the best interests of the child must be the paramount consideration * * *." Minn. Stat. § 260C.301, subd. 7 (2002).  The court must order one of five dispositions, among them termination of parental rights.  Minn. Stat. § 260C.201, subd. 11(d) (2002).  In selecting a placement for a child, "the court must be governed by the best interests of the child."  Minn. Stat § 260C.201, subd. 11(e) (2002); see In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001) (stating "[i]n a termination of parental rights proceeding, the best interests of the child must always be the chief consideration") (emphasis added). 
Further, adoption is not a consideration in addressing whether to terminate parental rights.  See In re Welfare of J.M., 574 N.W.2d 717, 722-23 (Minn. 1998). 

Here, the record supports the district court's conclusion that it was in the best interests of the child to terminate appellant's parental rights.  The district court found by clear and convincing evidence that termination was warranted under Minn. Stat. § 260C.301, subd. 1(b) (2002).  The problem that originally led to T.S.T.'s out of home placement was appellant’s alcohol abuse.  The record shows the district court made detailed findings that appellant has failed to stop drinking, that on a number of occasions she failed blood alcohol tests, and missed call backs for testing. 

The record also shows that appellant has failed to maintain regular contact with the child.  An April 18, 2001, progress report stated that appellant did not wish "to have any face to face visitation until this past week" because it would be too upsetting to T.S.T. if she cried and that she needed to stay focused on maintaining sobriety.  Appellant also cancelled the first two supervised visitations with the child in December 2001.

Appellant's failure to substantially comply with her case plan also supports the district court's termination of appellant's parental rights.  Under the case plan, appellant had to comply with all aspects of her probation.  Contrary to the requirements of her probation, appellant has failed to abstain from alcohol use, failed to cooperate with the social worker, and has been involved in violent incidents.  Appellant also has been in and out of jail since March 10, 2001, the date of the incident that led to the out-of-home placement.  The actions that caused appellant to be arrested were violations of her probation.  In sum, there was sufficient evidence to support the district court's determination that it was in the best interests of T.S.T. to terminate appellant's parental rights. 

Despite appellant's argument to the contrary, the district court clearly acknowledged and applied the statutory factors listed in Minn. Stat § 260C.301, specifically finding clear and convincing evidence to terminate appellant's parental rights under Minn. Stat § 260C.301, subd. 1(b)(2), (4), (5), and (8) (2002).  A finding that any one of these sections applied would have been sufficient to terminate appellant's parental rights.  Minn. Stat § 260C.317, subd. 1 (2002).

Appellant also argues that the district court did not make sufficient efforts at reunification.  In any termination proceeding, the district court is required to make specific findings regarding the efforts made by the social services agency to rehabilitate the parent and reunite the family or that the reasonable efforts "are not required as provided under section 260.012." Minn. Stat. § 260C.301, subd. 8 (2002).  Here, the district court found that the county made reasonable efforts to help appellant correct her chemical dependency including chemical dependency evaluation; treatment and aftercare services; psychiatric treatment, including psychotropic medication; parenting assessment and services; housing referrals and assistance; visitation services; and case management services.  The record supports these findings and appellant has failed to show that any of these findings were clearly erroneous.  

 

II.

 

Appellant's second principal argument is that the county failed its "statutory role" by failing to present evidence supporting the placement of T.S.T. with the sister and that T.S.T. should have been placed with the sister.  A related argument is that the county should have provided notice of the hearings to the sister.

Appellant asserts that Minn. Stat.§ 260C.201, subd. 11 (2002), requires the court to first place the child with a relative, rather than terminating parental rights.  We disagree.  Minn. Stat. § 260C.201, subd. 11 (d)(1)(i) (2002), requires that a "transfer of permanent legal and physical custody to a relative shall only be made after the court has reviewed the suitability of the prospective legal and physical custodian."

The county's petition sought either to transfer custody of T.S.T. to the sister or to terminate appellant's parental rights.  A home-study report on the sister's residence was completed and introduced at trial.   The record indicates that giving the sister custody was a possible alternative looked at both by the county and the district court.  The record also indicates that there are valid reasons why termination was chosen: (1) the sister's admission that she planned on allowing T.S.T. to have contact with appellant; (2) her financial condition; and (3) appellant’s admission that she would move in order to be with the sister and T.S.T. if the placement occurred. 

Without a termination of parental rights, it is possible appellant wanted to "park" T.S.T. with his older sister so that appellant retained the option of moving in with the sister and T.S.T., taking back the role of parent de facto, if not de jure.  It might have been difficult for T.S.T.'s sister to resist this if appellant had not formally lost her parental rights.  T.S.T. may well end up living with his sister as her adopted child.  If that occurs, his new adoptive mother would have the ability to allow appellant to visit and interact with T.S.T.  As T.S.T., now eight years old, becomes a teenager, his choice of whom he sees will become largely his, and in less than ten years, he can visit and spend time with anyone he wants and establish any relationship with his biological mother, appellant, that he desires.

Regarding notice to the sister, while we realize that she was involved with the proceedings, the record reflects that she was mailed notice along with appellant and T.S.T.'s father.  Thus, the county fully complied with its duty to provide notice. 

III.

            Respondent's motion to strike portions of appellant's brief because it contains material outside the record is denied.  What respondent wants stricken from the record is a district court document showing that (after the appeal was filed) the State of Minnesota has approved placement of T.S.T. in a pre-adoptive home with his sister in Nebraska.  The record notes that the approval is immediate and it is in the best interests of T.S.T.  The substance of this document came to the panel's attention through a direct response from both attorneys, who with candor noted that by the time this appeal was being heard, the pre-adoption process was already in progress.  Substantive information updating T.S.T.'s placement is both helpful in determining T.S.T.'s best interests and the inclusion of this material does not affect the resolution of the appeal. 

Affirmed; motion to strike denied.