This opinion will be unpublished and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

A03-1069

 

In the Matter of the Children of:
J.C., Parent.

 

Filed April 27, 2004

Affirmed

Peterson, Judge

 

 

Hennepin County District Court

File No. J602065676/FAM ID. No. 212317

 

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue, Minneapolis, MN  55415 (for respondent Hennepin County Department of Children, Adult and Family Services)

 

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

 

Alan C. Thiel, 411 Edina Executive Plaza, 5200 Willson Road, Edina, MN  55424 (for guardian ad-litem)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

On appeal in this termination-of-parental-rights proceeding, appellant-mother argues that (a) the district court improperly based its termination on stale evidence involved in prior juvenile-protection matters; (b) the record does not support the termination of mother’s parental rights; (c) the district court denied mother due process of law by terminating her parental rights based on unpleaded theories; and (d) a remand is required because the termination was partially based on the grandmother’s willingness to adopt the children, which has since been retracted.  We affirm.

FACTS

            Mother is the parent of three children, D.C., born in 1993; A.C. born in 1998; and S.C. born in 2001.  On September 23, 2002, police executed a search warrant at the apartment where mother lived with her children.  Police found large quantities of cocaine, including crack-cocaine packages hidden in S.C.’s crib.  Mother was taken to jail, and the children were placed in a shelter.

On October 9, 2002, mother pleaded guilty to gross-misdemeanor child endangerment and felony possession of a controlled substance.  Mother was granted a dispositional sentencing departure and placed on probation for four years.  Mother was initially referred for services to African American Family Services (AAFS) for chemical-dependency treatment but discontinued participation in the program without permission in early November 2002.  Mother’s whereabouts were unknown from early November 2002 until December 23, 2002, when a bench warrant was issued and returned.  Mother was jailed from December 23, 2002, until January 17, 2003.

            Mother was then referred to Eden House for chemical-dependency treatment and, at the time of trial on the termination petition, was generally in compliance with the program.  As stated in the court’s findings, mother testified that she began to cooperate in the Eden House program because “she could trust and relate to Jennifer White, a counselor in the program, and that, based upon her relationship with Jennifer White, this is the first treatment program she has attended where she trusts the treating professionals and is benefiting from the program.”  Based on a review of the detailed record and exhibits showing mother’s previous participation in treatment programs, the district court found that the Eden House program was not materially different “in substance from numerous other programs that the mother has participated in over years, where she has relapsed from and reverted to ongoing patterns of neglectful parenting behavior.”  The district court found that there was a likelihood that when the Eden House program ended for mother in the summer, she would “revert to her persistent pattern of non-cooperation with treatment programs and aftercare” and “revert to the problematic parenting behaviors that have repeatedly led to the removal of her children from her home.”

            The district court explained:

 

            21.       This trial record shows, without contradiction, based upon the testimony and the exhibits, that the mother is unlikely to be able to parent her children in the foreseeable future, without a great deal of unspecified additional support and structure.  While Jennifer White, who has worked with the mother on her chemical health issues at Eden House, described her chances of success once out in the world as “good to excellent,” White was not familiar with the mother’s 12 year child protection history, her record of noncooperation with treatment programs, the mother’s current or past unfavorable psychological or parenting assessments, or the harm experienced by the children through the mother’s history of neglect.

 

            22.       This Court would like to give the mother another chance, just as did previous judges on this Court who, since October 2001, twice terminated the mother’s parental rights to these same three children, based upon her pattern of neglect, and then stayed the termination to give her another chance.  The Court must, in the ultimate analysis, rest on whether the mother’s extensive 12-year child protection history, her psychological and parenting assessments, the September 2002 drug raid on top of the 12-year history (and her additional chances) and the mother’s initial grudging compliance with the Eden House program, with the threat of prison and termination of her parental rights hanging over her head, should be discounted severely in light of the mother’s very recent improvement.  The recent improvement has come only after the original January 15 trial date on this petition, and even after the rescheduled trial at the end of April, every witness to testify (except the mother) has stated, consistent with the exhibits, that there is great uncertainty as to whether the mother could parent her children in the reasonably foreseeable future, once she is out of Eden House.  The children deserve a chance at a safe, secure childhood, and at this juncture, in light of the long history detailed in this order, the best interests of the children are not consistent with the mother’s request for another chance.

 

            23.       The Court must consider not only the rights of the mother, but the best interests of the children, who have been exposed to crime, hardship, neglect, and abuse for major portions of their life while their mother attempts or does not attempt to resolve her problems, and who have lived out of the home for substantial periods of their life, due to the mother’s actions.  This pattern has included six substantiated maltreatment investigations based upon child neglect, physical abuse, unsanitary conditions in the home, improper supervision, or criminal behavior.  Most recently – as the recent past sheds light on the foreseeable future – the children have not lived with their mother since September 2002, and although she has had at least five opportunities to visit them since that time under the Court’s visitation order, she has missed two of those visits, despite the fact that she is physically able, lived only a few miles from where the visits would have occurred, and knew that the children were readied for and expecting her visit.  At trial, the Court heard no credible explanation for the mother’s missing visits, at a time when, on the eve of this trial, she had a major incentive to make every one.

 

The district court made detailed findings on the history during the previous 12 years of child-protection and neglect issues; mother’s failure to cooperate when social services, including counseling, were provided to her; and mother’s lack of insight into her problems and pattern of blaming others for them.

            Bob Hyland, the social worker who was assigned to mother’s case in early October 2002, opined that mother would “need long term services in order to address the parenting issues that she has in order to be able to safely parent the children.”  Hyland opined that, based on the number of times that the children had been removed from the home and the history of foster-care placements, the children needed stability, safety, and nurturance for improvement to occur in their lives.  Hyland did not believe that in the reasonably foreseeable future, mother would be able to provide that environment for the children.  Hyland testified that mother’s history with child protection showed a pattern of short-term compliance with programs and addressing behavior issues but a failure to address her problems on a long-term basis.

            Edgar Young, MSW, a social worker with the Center for Child Abuse Prevention and Treatment who performed a parenting assessment of mother in April 2003, found:

My impression of [mother] is that she understands some of her children’s needs, but is not sure how to meet them.  It is unclear whether she understands the impact of her lifestyle on her children.  That her children cannot continue living in an environment that endangers their well-being.  She has been involved with various system programs, but clearly has not bought into some of them to the point of where she benefits from them.  She reports that she has had psychological evaluations, therapy, and in-home therapy, but that these didn’t work.

 

Young concluded that “for her children to be safe, she needs long-term services from someone who can challenge her mistaken beliefs (faulty ideals) and challenge [mother’s] stubbornness.”

Jennifer White testified that mother had “made some progress” in the area of dealing with her tendency to blame others for her problems.  White opined that if mother were able to consistently maintain the level she had reached at Eden House and continue to improve, she would be able to maintain a stable living environment.  White conceded that mother’s ability to do so was “a big . . . if,” “a big unknown.”  White’s primary focus is on chemical health, not mental health or parenting issues.

Psychological assessments performed on D.C. and A.C. showed “numerous signs of psychological damage associated with abandonment and a disrupted childhood.”

The guardian ad litem recommended terminating mother’s parental rights and freeing the children for adoption for the following reasons:

Certainly the history of a number of failed reunifications when the children were put back with their mother and taken away.  Certainly the reports from therapist and psychological evaluations and parenting evaluations that say [mother] doesn’t think she has anything to learn from me.  [Mother] left the program.  [Mother] is minimally compliant, basically [mother] is resistant.  Things that I observed after meeting with [mother] certainly an immediate hostile attitude to me . . . .  Certainly the missing of two visits – the Eden program is at 26th and Park.  The HCB building is at 6th and Park.  I don’t know where [mother] was, but the meeting was at four she’s in programming from 10 to 3.  I would have walked 20 blocks to see my kids.  I sat with the children from one of the missed visits and watched their disappointment . . . .  The idea of disappointing children in that way it’s just – it says to me she doesn’t get it about parenting how important it is for children who are looking forward to see their mother once a week for an hour to see her no matter what. . . . [The children] need permanency and they need stability and they need it now.

 

            The district court terminated mother’s parental rights pursuant to the grounds alleged in the termination petition, refusal to comply with the duties of the parent-child relationship and palpable unfitness.  The court also terminated mother’s parental rights pursuant to additional grounds not alleged in the termination petition.  The district court denied mother’s motion for a new trial.  Mother appeals from the orders terminating her parental rights and denying her motion for a new trial.

D E C I S I O N

I.

Mother argues that the district court erred in considering evidence regarding events related to previous child-protection proceedings during the 12 years preceding initiation of the current proceeding.  Respondent argues that mother waived any objection to this evidence by failing to object at trial and by failing to assign it as error in her new-trial motion.

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).  To preserve evidentiary issues for appellate review, a party must make timely objections during the course of the trial.  In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990).  Also, “evidentiary rulings . . . are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.”  Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 309 (Minn. 2003).

During trial, the parties discussed the admission of the exhibits to which mother now objects.  The county presented 38 exhibits.  Mother’s attorney objected to two of those exhibits, and the county agreed to strike them.  Mother’s attorney stated, “We have agreed that [exhibits] one and two would not be admitted. . . . And the rest of the exhibits that we did discuss, . . . I find them to be admissible.”  The GAL presented 12 exhibits.  Mother’s attorney objected to three of those exhibits, and the GAL withdrew them.  Mother’s attorney stated, “Under that agreement [to withdraw three exhibits], . . . I’ve reviewed those documents and I find them admissible.”  Except for some of Hyland’s testimony referring to an earlier child-protection proceeding, mother did not object to the testimony to which she objects on appeal.

Mother raised in her new-trial motion “[e]rrors of law occurring at the trial and objected to at the time, or if no objection need have been made, then plainly assigned in the motion.”  Mother did not specify any evidentiary errors in her new-trial motion.

Citing In re Welfare of S.R.A., 527 N.W.2d 835, 837 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995),mother argues that admitting the evidence was fundamental error.  S.R.A., however, did not involve fundamental error; rather, it involved this court’s decision to grant discretionary review.  “[T]he so-called ‘fundamental error’ rule . . . provides that error not objected to at trial may nevertheless be assigned in a motion for a new trial, but only if ‘the error in the instructions [was] with respect to fundamental law or controlling principle.’”  Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 57 n.2 (Minn. 1993) (quoting Minn. R. Civ. P. 51).  We note, first, that the fundamental-error rule applies to jury instructions and, second, that it requires the error be assigned in a new-trial motion.  Mother cites no authority applying the fundamental-error rule to permit review of evidentiary rulings that were not objected to at trial and not assigned as error in a new-trial motion.

The gravity of termination proceedings in general is not a sufficient reason to abandon established rules of appellate procedure.  In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997).  In a termination proceeding, as in other civil proceedings, failure to raise an issue before the district court waives the issue on appeal.  Id. (citing Thiele, 425 N.W.2d at 582); see also In re Welfare of Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001) (applying waiver rule in termination proceeding).

The decision whether to object to evidence is a matter of trial strategy.  See State v. Rainer, 502 N.W.2d 784, 789 (Minn. 1993) (noting that decision not to object to evidence is a trial tactic).  Having agreed at trial to the admission of the exhibits to which she now objects and having failed to make any claim in her new-trial motion that the district court considered the evidence for an improper purpose, mother now attempts to change her trial strategy on appeal.  Allowing her to do so would be contrary to the efficient administration of justice.  See Alpha Real Estate, 664 N.W.2d at 310 (explaining rationale underlying requirement that evidentiary rulings be assigned as error in new-trial motion).  We, therefore, follow the general rule and hold that mother waived any objection to the exhibits to which she objects on appeal.

Mother did object to some of Hyland’s testimony referring to a previous child-protection proceeding.  That testimony was cumulative and not prejudicial.  “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).

II.

The district court may terminate parental rights if clear and convincing evidence establishes that at least one statutory basis for termination exists and termination is in the best interests of the child.  We review a termination of parental rights to determine ‘whether the district court’s findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.’  We examine the record ‘to determine whether the evidence is clear and convincing.’  Parental rights may be terminated only for grave and weighty reasons.  In a termination-of-parental-rights proceeding, the best interests of the child are paramount. 

 

In re Child of Simon, 662 N.W.2d 155, 162 (Minn. App. 2003) (citations omitted).

            Mother argues that the evidence was insufficient to support the termination of her parental rights.

The district court may terminate parental rights if it finds “that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship.”  Minn. Stat. § 260C.301, subd. 1(b)(2) (2002).

            The record contains considerable evidence that during the 12 years preceding the termination proceeding, mother’s actions satisfied the standard for termination under Minn. Stat. § 260C.301, subd. 1(b)(2).  The current proceeding was initiated following execution of a search warrant at mother’s apartment, during which officers discovered controlled substances in areas accessible to the children.    The only evidence of progress by mother is that she was successfully undergoing chemical-dependency treatment during a period of about three months preceding trial.  But during that same period, mother missed two visits with her children without any credible excuse, and she failed to maintain a positive relationship with the guardian ad litem or Hyland.  In April 2003, a social worker who performed a parenting assessment found that mother understood some of her children’s needs but was unsure of how to meet them; it was unclear whether mother understood the impact of her lifestyle on her children; and while mother had participated to some extent in social-services programs, she had not participated to the point that she benefited from them.  A showing of merely some progress does not demonstrate that the evidence was insufficient to support the termination based on failure to comply with parental duties.  See In re Welfare of J.K., 374 N.W.2d 463, 466 (Minn. App. 1985) (deciding that a mother’s claimed recent improvement in light of her whole “negative track record” was not enough to show the trial court clearly erred in finding her poor parenting would continue indefinitely), review denied (Minn. Nov. 25, 1985).

            The district court made extensive findings on mother’s history and her recent, limited progress.  The court also considered the children’s problems resulting from mother’s behavior and their best interests.  The district court did not err in terminating mother’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2).  The evidence that supports the termination of mother’s parental rights for failure to comply with parental duties also supports the termination of her parental rights for palpable unfitness under Minn. Stat. § 260C.301, subd. 1(b)(4).

III.

Mother argues that she was denied due process rights because the district court terminated parental rights based on grounds not alleged in the termination petition. The termination petition sought to terminate mother’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2) (refusal to comply with the duties of the parent-child relationship), (4) (palpable unfitness) (2002).  The district court terminated mother’s parental rights on those grounds and also terminated mother’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5) (following a determination of child’s need for protection or services, reasonable efforts have failed to correct conditions leading to child’s placement), (7) (child born to mother not married to child’s father and person is not entitled to a notice of adoption and has not registered with fathers’ adoption registry), and (8) (neglected and in foster care).

“It is fundamental that a party must have notice of a claim against him and an opportunity to oppose it before a binding adverse judgment may be rendered.  A trial court, therefore, is required to base relief on issues either raised by the pleadings or litigated by consent.”  Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983) (citations omitted).  Also, the statutes and rules governing termination of parental rights require the party petitioning for termination to specifically state the statutory basis for relief and the relevant facts supporting the request.  SeeMinn. R. Juv. P. 70.02, subd. 1(a) (requiring petitioning party to recite relevant facts supporting termination request), (f) (requiring petitioning party to state the statutory basis upon which relief is sought); Minn. Stat. § 260C.141 (2002); see also Minn. Stat. § 260C.301, subd. 1 (permitting district court to terminate parental rights “upon petition”).

But the existence of a single statutory ground is sufficient to support a termination of parental rights.  In re Welfare of Maas, 355 N.W.2d 480, 483 (Minn. App. 1984).   Therefore, because the evidence was sufficient to support the termination of mother’s parental rights based on the grounds alleged in the termination petition, any error that the district court might have made by terminating mother’s rights on grounds not alleged in the termination petition was harmless. See In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997) (refusing to reverse termination of parental rights for harmless error).

IV.

Mother argues that this case should be remanded because grandmother is no longer willing to adopt the children.  The district court is not required to make findings on adoptability before terminating parental rights.  In re Welfare of J.M., 574 N.W.2d 717, 722-23 (Minn. 1998).  The district court’s findings do not indicate that it relied on grandmother’s willingness to adopt the children in deciding to terminate mother’s parental rights.  Grandmother’s unwillingness to adopt the children is an insufficient basis for a remand.

Affirmed.