This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Hennepin County District Court
File No. J203056354
Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Amy Klobuchar, Hennepin County Attorney, Cory A. Carlson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
James Gaffney, 4209 West 44th Street, Edina, MN 55416 (for guardian ad litem)
Considered and decided by Stoneburner, Presiding Judge; Harten, Judge; and Shumaker, Judge.
Appellant L.D. challenges the termination of her parental rights to her two children, asserting that the juvenile court’s erroneous evidentiary rulings deprived her of a fair trial and that the order terminating her parental rights is not supported by clear and convincing admissible evidence. Appellant also asserts that the court erred by failing to separately consider the best interests of each child and by refusing to consider post-hearing evidence of her case-plan compliance. We affirm.
In April 2002, the Hennepin County Department of Children and Family Services (HCDCFS) petitioned the juvenile court for a determination that L.D.’s son, K.D., born December 29, 1999, was a child in need of protective services due to medical neglect and failure to thrive. L.D.’s daughter, M.D., was born on July 11, 2002.
Trial on the CHIPS petition involving K.D. took place in September 2002. By order dated October 4, 2002, the juvenile court found that K.D. was in need of protection under Minn. Stat. § 260C.007, subd. 6 (3), (10) (2002). K.D. remained in L.D.’s care under the protective supervision of HCDCFS. The court ordered an in-patient failure-to-thrive evaluation of K.D. at Children’s Hospital and ordered L.D. to complete (1) a psychological evaluation and follow its recommendations; (2) an in-home parenting program; (3) the Early Childhood Family Education and Special Education Programs; and (4) the Nutrition Education Program at the University of Minnesota, as well as to cooperate with HCDCFS and the Metropolitan Visiting Nurse’s Association. The court ordered removal of K.D. from L.D.’s care on October 9, 2002, after the in-patient evaluation demonstrated that he was able to gain weight with adequate nutritional intake.
On October 15, 2002, HCDCFS filed a CHIPS petition regarding M.D., based on K.D.’s diagnosis of failure to thrive, M.D.’s developmental delays, and L.D.’s failure to cooperate with services for M.D. The juvenile court ordered removal of M.D. from L.D.’s custody the next day. The children were placed in foster care with L.D.’s cousin and have remained in her care.
Trial on the CHIPS petition involving M.D. took place on January 31, 2003. The juvenile court adjudicated M.D. a child in need of protective services by order dated March 6, 2003. The court did not change the previously ordered case plan.
HCDCFS petitioned for termination of L.D.’s parental rights to both children on April 17, 2003. At the request of HCDCFS, the juvenile court twice continued trial on the TPR to allow L.D., who was making progress on her case plan, more time to achieve reunification. At the time of the second continuance, in October 2003, HCDCFS reported to the court that L.D. participated in individual therapy, took her medications, was willing to undertake Dialectical Behavioral Therapy (DBT), and the parenting-education provider reported improvements in her attitude. At that time, HCDCFS contemplated that reunification could take place within 60 days.
In November 2003, however, L.D. admitted to her social worker that she had been using marijuana since August 2003. The social worker testified that had she been aware of L.D’s use of marijuana, she would not have recommended continuance of the trial in October.
On November 22, 2003, L.D.’s ex-boyfriend assaulted her, and on December 4, 2003, she went to Atlanta, Georgia, without notifying anyone. She remained in Atlanta until December 16, 2003. As a result, the juvenile court suspended L.D.’s visits with the children until such time as L.D. obtained an order for protection against her ex-boyfriend and developed a safety plan. The court also amended L.D.’s case plan to require a chemical-dependency evaluation and random testing for drugs.
The district court twice denied L.D.’s petition for an order for protection against her ex-boyfriend, stating in the first order that it had determined that L.D. did not want an order for protection and only petitioned for the order due to the request of child protection. The district court stated that L.D.’s second petition was denied because it only repeated information contained in the first denied petition.
L.D. continued to test positive for marijuana through the middle of January 2004. On January 30, she entered outpatient treatment. Even though she missed several DBT sessions while she was in Georgia, her therapist allowed her to remain in the program, but her progress in that program was delayed.
Trial on the TPR took place in March 2004. The petition alleged that L.D. had (1) refused or neglected to comply with the duties imposed by the parent-child relationship, (Minn. Stat. § 260C.301, subd. 1(b)(2) (2002)); (2) is palpably unfit to be a party to the parent-child relationship (Minn. Stat. § 260C.301, subd. 1(b)(4)); (3) reasonable efforts had failed to correct the conditions leading to the children’s out-of-home placement (Minn. Stat. § 260C.301, subd. 1(b)(5)); and (4) the children were neglected and in foster care (Minn. Stat. § 260C.301, subd. 1(b)(8)). During trial, L.D. was discharged from her treatment program before completion, and L.D. discontinued her parenting program because she was upset by testimony about her performance in the program. L.D. testified that she was discharged from her chemical-dependency treatment because she relapsed. She testified that she immediately entered a different program.
By order filed on April 25, 2004, the court terminated L.D.’s parental rights to K.D. and M.D., finding that HCDCFS proved all asserted bases for termination by clear and convincing evidence, and it is in the best interests of K.D. and M.D. that L.D.’s parental rights be terminated.
L.D. moved for a new trial, alleging as newly discovered evidence that she continued to progress well on her case plan after the trial and was compliant to the extent permitted by HCDCFS. L.D. also asserted that the evidence was insufficient to prove the statutory grounds for termination and that the juvenile court committed reversible error by admitting into evidence exhibits 42 (police report of domestic assault), 46 (petition for OFP and order denying OFP), and 49 (second petition for OFP and second order denying OFP) to support its conclusion regarding the termination of L.D.’s parental rights. The court denied L.D.’s motion for a new trial, and this appeal followed.
Unless otherwise provided by statute or the rules of juvenile-protection procedure, the admissibility of evidence in juvenile-protection proceedings is the same as that which would be admissible in a civil trial under the rules of evidence. Minn. R. Juv. Protect. P. 3.02, subd. 1. Absent an 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). “An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial.” Cloverdale Foods of Minnesota, Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998).
Due to “the mushrooming body of judicial activity in the fields of family law, juvenile justice, [and] child protection,” it has become rather commonplace to admit written hearsay materials, “provided that the affected parties have an opportunity to dispute the material . . . .” In re Welfare of D.J.N, 568 N.W.2d 170, 175 (Minn. App. 1997). The Minnesota Supreme Court has expressed confidence “in the ability of a court in a trial without a jury to be objective and to disregard evidence improperly admitted.” Chris/Rob Realty v. Chrysler Realty Corp., 260 N.W.2d 456, 459 (Minn. 1977).
Although L.D. filed a general objection to most of HCDCFS’s exhibits prior to trial, at trial she specifically consented to the admission of all but exhibits 42, 46, 63, 64, and 65. A failure to preserve objections at the trial level generally waives those issues on review. In re Estate of Magnus, 436 N.W.2d 821, 823(Minn. App. 1989). Furthermore, in her motion for a new trial, L.D. objected only to the admission of exhibits 42, 46, and 49, based on hearsay and relevancy. HCDCFS argues that L.D. has waived consideration on appeal of all evidentiary issues except the admission of exhibits 42, 46, and 49, and she has waived foundation objections on those exhibits. We agree. See In re Welfare of M.J.L., 582 N.W.2d 585, 588 (Minn. App. 1998) (stating in absence of effective new trial motion, appellate court reviews only whether evidence supports findings and if findings sufficiently support conclusions of law).
I. Exhibit 42—Police Report
L.D. does not dispute that exhibit 42, a certified police report about the November domestic-assault incident, is a self-authenticating document under Minn. R. Evid. 902(4), admissible in civil proceedings as a public record under Minn. R. Evid. 803(8). See Gardner v. Comm’r of Pub. Safety, 423 N.W.2d 110, 114 (Minn. App. 1988) (holding that district court did not abuse its discretion by admitting a police report pursuant to Minn. R. Evid. 803(8)). Because exhibit 42 was admissible as a public record, we need not address L.D.’s argument that it was not admissible as a business record or HCDCFS’s argument that the exhibit is admissible (is not hearsay) under Minn. R. Evid. 801(d)(2), as an admission by party-opponent.
L.D. also objected to the admission of the exhibit as irrelevant, arguing that protecting the children from domestic abuse was not an issue at trial. And L.D. asserts that exhibit 42 is highly prejudicial, “suggesting [L.D.] made poor choices” regarding men. “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. Evidence is relevant if it “logically tends to prove or disprove a material fact in issue.” Boland v. Morrill, 270 Minn. 86, 99, 132 N.W.2d 711, 719 (1965).
Although domestic abuse was not initially an issue in this case, after L.D. was assaulted, the juvenile court expanded the case plan to address domestic abuse and suspended L.D.’s visitation with the children until she obtained an OFP against the perpetrator of the assault and developed a safety plan. And the record implicitly links L.D.’s abrupt departure from the state, which constituted a major setback in her compliance with the case plan, to this assault. We cannot say that the court abused its discretion by concluding that the assault was relevant or that the probative value of this evidence outweighed any danger of unfair prejudice.
II. Exhibits 46 and 49—OFP Materials
a. Orders denying OFP
At trial and in her motion for a new trial, L.D. objected to the admission of exhibits 46 and 49, court orders denying her petitions for an OFP, together with the attached petitions, on the basis of hearsay and relevance. HCDCFS argues that because the exhibits are relevant to L.D.’s compliance with the case plan, which was amended to require that she obtain an OFP, the juvenile court could properly take judicial notice of the orders. L.D. argues on appeal, without any citation to authority, that the juvenile court had to determine “the reliability of those orders” before taking judicial notice of them. We agree with HCDCFS that the juvenile court could properly take judicial notice of the orders denying L.D.’s petitions for orders for protection. Minn. R. Evid. 201(f), provides for judicial notice of adjudicative facts in civil cases, which may be taken at any stage of the proceeding. And Minn. R. Juv. Protect. P. 3.02, subd. 3, expands the scope of judicial notice in juvenile-protection proceedings, providing that:
In addition to the judicial notice permitted under the Rules of Evidence, the court, upon its own motion or the motion of any party or the county attorney, may take judicial notice only of findings of fact and court orders in the juvenile protection court file and in any other proceeding in any other court file involving the child or the child’s parent or legal custodian.
Therefore, the juvenile court did not abuse its discretion by taking judicial notice of the court orders denying L.D.’s request for orders for protection, which were relevant to the issue of L.D.’s compliance with her case plan.
b. Petitions for OFP
HCDCFS asserts that L.D’s. petitions for the orders for protection are not hearsay under Minn. R. Evid. 801(d)(2) (admission by party-opponent). Minn. R. Evid. 801(d)(2), provides that a statement is not hearsay if it is offered against a party and is the party’s own statement. L.D. counters that the petitions were not admissions under Minn. R. Evid. 801(d)(2), because they were not contrary to her posture in litigation. See Minn. R. Evid.Committee Comment to Minn. R. Evid. 801(d)(2) (stating that rationale for admissibility of admissions is based more on the nature of the adversary system than on principles of trustworthiness or necessity). L.D. asserts without explanation that the petitions were admitted “for the truth of the matter therein,” but HCDCFS did not clarify for what purpose it sought admission of the petitions for the orders for protection. From the record it appears that the purpose was to show L.D.’s representations to the district court, which resulted in the court’s denial of the petition, and not for the truth of what is asserted in the petitions. If so, the petitions were not hearsay and were admissible. We note that the court did not refer to the petitions or otherwise indicate any reliance on them to support its findings of fact or conclusions of law. And L.D. has not demonstrated any prejudice related to the admission of the petitions. Therefore, even if there was any abuse of discretion in their admission, it was harmless and did not deprive L.D. of a fair trial or entitle her to a new trial.
Even though L.D. failed to preserve her objection to the juvenile court’s having taken judicial notice of the orders and exhibits from the CHIPS files, in the interest of justice, we take the opportunity to briefly address this claim in order to clearly state that testimony and exhibits in CHIPS files are not documents that may be judicially noticed, but taking judicial notice of such documents does not necessarily constitute reversible error.
As noted above, the juvenile-protection rules specifically permit judicial notice of court orders in the juvenile-protection court file. Minn. R. Juv. Protect. P. 3.02, subd. 3. The juvenile court clearly did not abuse its discretion by taking judicial notice of orders in the juvenile-protection court files relating to K.D. and M.D. But in In re Welfare of D.J.N., 568 N.W.2d at 175, we discussed the inappropriateness of taking judicial notice of testimony or written reports contained in a court file because judicial notice under rule 201(b) does not extend to matters in dispute, and, more significantly, because “this evidence involves an important distinction between judicial notice law and the law governing the use of hearsay reports in personal welfare cases.” Id. We noted that “[I]t is an established element of trial court discretion” in such cases “to admit written materials as hearsay evidence, provided that the affected parties have an opportunity to dispute the material, either by calling the authors of those reports as witnesses or otherwise responding.” Id. We held that “[i]t was a mistake for the trial court . . . to take judicial notice of the entire files,” noting that “[a] considerable part of the files and records is well beyond the reach of judicial notice.” Id. Nonetheless, because appellants failed to show prejudice, we also held that the mistake was not reversible error. Id. at 176.
In this case, it was a mistake for the juvenile court to take judicial notice of exhibits in the CHIPS files. L.D. has failed to specifically identify any exhibit from the CHIPS files so noticed, but it is possible that all of these exhibits, even if hearsay, could have been properly admitted. As in D.J.N., L.D. has failed to establish that any of the exhibits were prejudicial. Because HCDCFS moved for judicial notice of these documents before the first scheduled TPR trial, L.D. had more than sufficient notice and ample opportunity to dispute any of the exhibits at trial. Neither at trial nor in her appeal has L.D. specifically disputed an exhibit or identified how she has been prejudiced. In fact, she has failed to demonstrate that the juvenile court relied exclusively on any of these exhibits to support its findings of fact and conclusions of law. The extent of L.D.’s claims regarding the prejudicial effect of judicial notice of exhibits from the CHIPS files is a general statement that “all of the documents to which appellant objects were extremely prejudicial. . . .” As in D.J.N., “[w]e cannot determine prejudice where there is little indication that the court considered evidence from prior records, no showing that use of the material otherwise materially affected the result, and no showing of an offer of proof to contradict information that might have been used by the court.” Id.
IV. Opinion Evidence
L.D. asserts that it was “improper” for the juvenile court to allow the social worker to testify, over L.D.’s objection, to her opinion that L.D.’s parental rights should be terminated; that she could not be reunified with her children; and that the children should be adopted by their current foster parent. And L.D. asserts that the court improperly permitted the guardian ad litem (GAL), over objection, to give his opinion that termination would serve the children’s best interests. L.D. argues that there was no foundation for the opinions and no offer of proof as to whether the opinions were lay or expert opinions; that these were not expert opinions or lay opinions; and that the GAL did not have any first-hand knowledge about L.D. or her interactions with the children.
On appeal in a termination proceeding, “appellate courts are limited to determining 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). 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).
Courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b). One criterion is sufficient, though the primary consideration in all TPR determinations is the best interests of the child. Id., subd. 7. The petitioner must prove one or more of the criteria 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). Courts are required to make clear and specific findings that conform to the statutory requirements. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).
At the outset, L.D. argues that because many of the juvenile court’s findings were “based on evidence that should never have been admitted,” the court’s findings were in error. More specifically, however, she argues that the juvenile court erred in its findings because the county failed to make reasonable efforts to reunite her with the children and because she made efforts to correct the conditions leading to the out-of-home-placement by attempting to comply with her case plan.
The juvenile court terminated L.D.’s parental rights on the basis of Minn. Stat. § 260C.301, subd. 1(b)(2), subd. 1(b)(5), and subd. 1(b)(8). To support its conclusions regarding the county’s reasonable efforts to reunite L.D. with her children, the juvenile court found, among other things, that L.D. “has been referred to five parenting programs” by the county; that the county “has provided [L.D.] with a case plan and services;” and that the county “has also provided [L.D.] with alternate service providers when she ended services or was terminated from them.” There is more than sufficient evidence in the record to support these findings.
To support its conclusions regarding L.D.’s failure to correct the conditions leading to the out-of-home placement of her children, the juvenile court found, among other things, that L.D. “cancelled or failed [to attend] five” therapy sessions; that she “stopped attending or scheduling therapy appointments” when she began using marijuana and left town; that one DBT therapy provider “was unwilling to admit her to their program, citing hostile conduct and unwillingness to commit to the program;” that L.D. “had three successive unexcused absences” with respect to her DBT therapy; that she “terminated her relationship with the in-home parenting services worker with Freeport West”; that “Reuben Lindh terminated services to [L.D.] due to her lack of substantive progress”; that as a result of her leaving town, L.D. missed several parenting sessions, causing Family Solutions to “terminate her from their service”; that “The City, Inc. terminated services to [L.D.] citing her harsh and rude behavior to the social worker”; and that Park Avenue chemical dependency treatment center discharged L.D. “after [she missed] three sessions and [became] verbally abusive to peers and staff.” There is sufficient evidence in the record to support these findings.
Evidence presented at a child-protection proceeding must address conditions that exist at the time of the hearing. In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). To support termination, the evidence must clearly and convincingly demonstrate that the conditions that brought the matter to court will exist for a prolonged, indeterminate period, thereby supporting the projected permanency of the parent’s inability to care for the child. Id. L.D. asserts that the juvenile court paid too much attention to her history and that many of the exhibits introduced by HCDCFS were generated early in her involvement with HCDCFS. L.D. asserts that the juvenile court erred by failing to return the children to her under a protective supervision plan while she completed her case plan. We disagree.
VI. Best interests of each child
The best-interests analysis for TPR proceedings requires the court to balance the child’s interest in preserving the parent-child relationship, the parent’s interest in preserving the parent-child relationship, and any competing interests of the child. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). A child has a competing interest in the stability of his or her home environment as well as in his or her health. In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987). “Where the interests of parent and child conflict, the interests of the child are paramount.” Minn. Stat. § 260C.301, subd. 7 (2002).
L.D. argues that under Minn. Stat. § 260C.212, subd. 2 (2002), the best-interests analysis must include an “individualized determination” with respect to each child and that the juvenile court failed to make such individualized determinations for K.D. and M.D. L.D. asserts, for the first time on appeal, that it is clear that she does not have the same problems with M.D. that she did with K.D. and that she is able to meet M.D.’s needs more easily. L.D. argues that if the court had addressed children’s best interests separately, it would not have terminated her rights to M.D. L.D. did not raise this issue at trial or in her motion for a new trial. But even if we were to consider the claim, we note that Minn. Stat. § 260C.212, subd. 2, relates to the best-interests analysis specific to the needs of a child in out-of-home placement decisions rather than TPR proceedings. The proper best-interest analysis for TPR proceedings, as stated above, is a common-law balancing test. R.T.B., 492 N.W.2d at 4. Furthermore, the TPR order in this case addresses at length the needs and conditions of each child, rendering L.D.’s claim meritless.
VII. Post-trial Evidence
L.D. argues that the juvenile court abused its discretion by denying her motion for a new trial based on “newly discovered evidence.” Courts may grant a new trial on the basis of “material evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial.” Minn. R. Juv. Protect. P. 45.03(e).
L.D. asserts that posttrial information is always appropriate for consideration by an appellate court in a termination case, citing Chosa, 290 N.W.2d at 769; and Welfare of B.W., 454 N.W.2d 437 (Minn. App. 1990). B.W., an ICWA case, clearly does not support the proposition L.D. asserts. In that case, we remanded and directed the juvenile court to consider the new evidence of tribal registration when it readdressed the appropriateness of transfer to tribal court. B.W., 454 N.W.2d at 446. And L.D.’s reliance on Chosa is equally misguided. While the court in Chosa was “admittedly influenced by . . . facts not available to the juvenile court” at the time of trial, the record in that case otherwise supported its conclusion regarding the conditions leading to termination. 290 N.W.2d at 769. In fact, Chosa stands for the common proposition that “evidence relating to termination must address conditions that exist at the time of the hearing. . . .” Id. (emphasis added).
At the time of the TPR hearing in this case, the district court found that, among other things, L.D. was in “substantial non-compliance” with her case plan; that she exhibited a “continued lack of ability to demonstrate understanding of the children’s special needs;” and that her “argumentative demeanor” presented obstacles for her success in therapy. The court concluded on the basis of these facts “that the conditions precipitating the children’s removal from the house have not been corrected and that it would not be safe [for the children] to be reunited with [L.D.] at this time, nor within the foreseeable future.”
Moreover, the evidence to which L.D. refers us is not newly discovered, but rather is evidence of what occurred after the TPR trial. In order for evidence to qualify as “newly discovered,” the evidence itself must have been in existence at the time of trial. Swanson v. Williams, 303 Minn. 433, 436, 228 N.W.2d 860, 862 (1975). Evidence of L.D.’s posttrial achievements is clearly not “newly discovered” evidence, and the juvenile court did not abuse its discretion by denying L.D.’s motion for a new trial based on such evidence. The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.” Minn. R. Civ. App. P. 110.01. “An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence [in the trial court].” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
 Section 260C.007, subd. 6 (3) (2002), provides that a child is in need of protective services if the child is “without necessary food, clothing, shelter, education, or other required care for the child’s physical or mental health or morals because the child’s parent . . . is unable or unwilling to provide that care . . . .” Section 260C.007, subd. 6 (10), provides that a child is in need of protective services if the child “is experiencing growth delays, which may be referred to as failure to thrive, that have been diagnosed by a physician and are due to parental neglect. . . .”
 The juvenile court cited three attachments to CHIPS orders as supporting the findings of fact in the TPR: finding II.1.1.2 cites ex. 1 of the order dated October 4, 2002; finding II.A.2.0 cites respondant’s ex. 16 of the order dated March 6, 2003, and finding III.A.4.0 cites respondent’s ex. 11 of the order dated March 6, 2003. In each case, the orders themselves substantially state the information contained in the exhibits referenced.