This opinion will be unpublished and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

A03-546

 

In the Matter of the Child of

Doreen Kaiser.

 

Filed December 2, 2003

Affirmed

Willis, Judge

 

Lake County District Court

File No. J7-02-50080

 

Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN  55802 (for appellant Kaiser)

 

Russell H. Conrow, Lake County Attorney, Stacey M. Sundquist, Assistant County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN  55616 (for respondent county)

 

Jean E. Johnson, 394 Lake Avenue South, Duluth, MN  55802 (for respondent K.T.)

 

Wendy Hanson, Box 1150, Cook County Courthouse, Grand Marais, MN  55604 (guardian ad litem)

 

            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

 

On appeal from an order finding her daughter, K.T., in need of protection or services, appellant mother arguesthat (1) there is not clear and convincing evidence that she physically abused K.T.; (2) there is not clear and convincing evidence that K.T. lacks proper parental care because of mother’s emotional, mental, or physical disability, or state of immaturity; and (3) the district court should not have taken judicial notice of the juvenile court orders in the juvenile court file for K.T.’s sister.  We conclude that (1) there is not clear and convincing evidence that mother physically abused K.T., and (2) there is clear and convincing evidence to support the district court’s determination that K.T. lacks proper parental care.  Because the existence of any one of the 16 circumstances enumerated in Minn. Stat. § 260C.007, subd. 6, is sufficient to support a determination that a child is in need of protection or services, we affirm.

FACTS

K.T. was born on March 7, 1990, to Doreen Kaiser and James Trotta.  Kaiser has raised K.T. on her own since K.T. was a toddler.   

On the evening of August 14, 2002, Kaiser got into a heated argument with K.T., during which Kaiser slapped K.T.  Kaiser and K.T. dispute the extent of the physical contact: Kaiser claims she slapped K.T. just once and with her fingers, not with the full palm of her hand; K.T. claims that Kaiser slapped her a number of times, held her down, and attempted to stuff a shirt in her mouth.  A county social worker who interviewed K.T. the following day noted no physical signs of abuse on K.T.’s face.

Shortly after the argument, Kaiser left for work, and K.T. telephoned the police and reported the incident.  The police placed K.T. in emergency foster care.  On August 16, a representative of Lake County Human Services (LCHS) filed a child-in-need-of-protection-or-services (CHIPS) petition on K.T.’s behalf, alleging that K.T. had been physically abused, a basis for a CHIPS determination under Minn. Stat § 260C.007, subd. 6(2)(i) (2002), and that she lacked proper parental care because of the emotional, mental, or physical disability, or state of immaturity of her parent, a basis for a CHIPS determination under Minn. Stat § 260C.007, subd. 6(8) (2002). 

K.T. has been in foster care since the August 14 incident.  Kaiser has expressed an interest in having K.T. live with her again, but she has generally refused to comply with LCHS’s case plan regarding K.T.  Additionally, she has refused to provide LCHS with personal belongings K.T. has requested, and on at least two occasions LCHS has had to obtain court orders to compel Kaiser to deliver such belongings.  Kaiser also refused to participate in supervised visits and supervised telephone calls with K.T. and refused to sign a consent form permitting K.T.’s doctor to perform surgery necessary to correct an ear condition, which also forced LCHS to seek judicial intervention.  Since K.T. has been in foster care, Kaiser’s contact with her has been limited to court appearances, two or three brief out-of-court meetings that became confrontational, and two joint-therapy sessions that Kaiser agreed to after five months of separation from K.T.    

The hearing on the CHIPS petition was held on January 17, March 3, and March 10, 2003.  Eight witnesses testified, including K.T. and Kaiser.  During the hearing, the court, on the county’s motion and over Kaiser’s objection, took judicial notice of the juvenile court orders relating to H.S., another child of Kaiser’s, who earlier was taken into and remains in the legal custody of LCHS.  Testimony by LCHS social workers and others indicated that, as in this case, Kaiser was uncooperative with LCHS requests and noncompliant with court orders designed to facilitate her reunification with H.S.

The district court determined that K.T.’s version of the August 14 incident was more credible than Kaiser’s, found that Kaiser’s actions amounted to physical abuse, and therefore determined that K.T. is a child in need of protection or services within the meaning of Minn. Stat § 260C.007, subd. 6(2)(i), because she is a victim of physical abuse.  The court also made a CHIPS determination under Minn. Stat. § 260C.007, subd. 6(8), determining that K.T. lacks proper parental care.  This appeal follows. 

D E C I S I O N

On appeal from a CHIPS determination, we review the district court’s findings to determine whether they are supported by clear and convincing evidence and are not, therefore, clearly erroneous.  In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn. 1978); see Minn. R. Juv. P. 74.04, subd. 1 (requiring allegations in petition to be supported by clear and convincing evidence).  This court closely inquires 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).  “Clear and convincing evidence” means that the party’s evidence should be “unequivocal and uncontradicted, and intrinsically probable and credible.”  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994). Considerable deference is given to the district court’s ability to assess the credibility of witnesses.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).

1.         Physical abuse of K.T.

Minn. Stat. § 260C.007, subd. 6(2)(i), provides that a child is in need of protection or services if the child has been the victim of physical or sexual abuse.  The district court found that K.T.’s testimony regarding the August 14, 2002 incident was clear and convincing proof of physical abuse.  Citing In re Welfare of P.L.C., Kaiser argues that the incident amounted to corporal punishment, which does not justify a finding that a child was physically abused.  See In re Welfare of P.L.C., 384 N.W.2d 222, 226 (Minn. App. 1986) (holding that corporal discipline without evidence of degree of force or injury is not a “grave reason” justifying denial of a right to custody). 

K.T. testified that Kaiser slapped her “a couple times” and then sent her to her room.  K.T. further testified that when she could not stop crying, Kaiser came into her room, sat on her, and attempted to stuff a shirt in her mouth.  Kaiser testified that she slapped K.T. during the argument but claimed that she slapped K.T. just once, in an effort to discipline her for using abusive language.  Neither the police nor LCHS sought medical care for K.T. following the incident.  No one other than Kaiser and K.T. witnessed the incident, and there was no physical or medical evidence of abuse.  The court found K.T.’s version of the incident more credible and determined that K.T.’s version was proved by clear and convincing evidence.  In the memorandum incorporated into its order, the court stated that Kaiser’s behavior during the incident was “reasonably described as assaultive type contact which, as the [c]ourt understands Minnesota law, can and does constitute physical abuse under the evidence presented in this case.”

Adjudication of a child as CHIPS because of physical abuse requires the district court to consider evidence of the degree of force used against the child and any resulting injury.  See Johnson v. Smith, 374 N.W.2d 317, 320-21 (Minn. App. 1985) (concluding that slapping, spanking with wooden spoon, and striking with broomstick are insufficient grounds for change in custody when there is no evidence child was physically or mentally injured), review denied (Minn. Nov. 18, 1985).  Evidence of excessive force or physical injury is necessary to support a determination that a child is in need of protection or services.  Id.  Here, there was no evidence of physical injury and the only evidence of excessive force was the contradicted testimony of K.T.  We conclude that the district court’s determination that K.T. needs protection or services because Kaiser physically abused her is not supported by clear and convincing evidence.

2.         Proper parental care of K.T.

Minn. Stat. § 260C.007, subd. 6(8), provides that a child is in need of protection or services if the child is without proper parental care because of the emotional, mental, or physical disability, or state of immaturity of the child’s parent, guardian, or other custodian.  The district court found that Kaiser showed an unwillingness to cooperate with LCHS’s case plan for K.T., an unwillingness to furnish clothing and other personal belongings of K.T.’s after she had been placed in foster care, and a refusal to participate in recommended therapy other than on her own terms.  Moreover, the court found that in the weeks leading up to the August 14 incident Kaiser had been depressed, resulting in 12-year-old K.T. being required to provide most of the care for both herself and Kaiser.  Based on these findings, the district court concluded that K.T. lacks proper parental care within the meaning of Minn. Stat. § 260C.007, subd. 6(8), and needs protection or services. 

The district court’s findings are supported by the record.  In addition to the findings of the district court, the evidence also shows that Kaiser refused to cooperate with LCHS in meeting K.T.’s healthcare needs and repeatedly acted confrontationally with K.T. and K.T.’s foster-care providers.  Kaiser has continued to be uncooperative with efforts to provide for K.T.’s needs and has made only minimal efforts to facilitate reunification with her daughter.  The record supports by clear and convincing evidence the district court’s conclusion that K.T. lacks proper parental care and is in need of protection or services within the meaning of Minn. Stat. § 260C.007, subd. 6(8).  See In re Welfare of D.N., 523 N.W.2d 11, 13 (Minn. App. 1994) (upholding CHIPS determination where evidence showed parent had demonstrated a lack of concern for her children and failed to complete requirements of case plan), review denied (Minn. Nov. 29, 1994).

3.         Judicial notice of the orders from H.S.’s juvenile court file    

Kaiser claims that the district court erred by taking judicial notice of the orders from H.S.’s CHIPS file because that case is irrelevant here and such notice is “not in the best interests” of K.T.  

Under appropriate circumstances, a court may take judicial notice of court records from prior adjudicative proceedings.  In re Welfare of Clausen, 289 N.W.2d 153, 156-57 (Minn. 1980); see also In re Welfare of D.J.N., 568 N.W.2d 170, 175 (Minn. App. 1997) (holding that a court may take judicial notice of records from prior child-protection proceedings if parties are given notice identifying portions of prior record that court will consider in determining adjudicative facts in the case).  To obtain relief on the ground that the court erred by taking judicial notice of the record of a prior proceeding, an appellant must show that the admission of the records was prejudicial.  Id. at 176.  It is not necessary for us to decide the question of error here because even if  judicial notice of the records of a prior proceeding is taken in error, it is not prejudicial when the use of information from those records did not materially affect the result in the current proceeding.  Id.  And we conclude that there was no material effect in this case.

            Kaiser claims that without the orders from H.S.’s file, the record is insufficient to support a CHIPS determination and that the district court would not have determined that K.T. needed protection or services if it had not considered the prior orders.  But even without those orders, there is abundant evidence in the record to support the court’s determination that K.T. lacked proper parental care due to Kaiser’s emotional, mental, or physical disability, or state of immaturity.

Affirmed.