This opinion will be unpublished and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
In the Matter of the Children of:
A.L. (aka A.W.), Deceased Parent and M.D.,
Parent and Legal Custodian.
Hennepin County District Court
File No. J8-03-064443
Amy Klobuchar, Hennepin County Attorney, Mary M. Lunch, Assistant County Attorney, 525 Portland Avenue South, Suite 1200, Minneapolis, MN 55415 (for respondent Hennepin County)
Eric S. Rehm,
Leonardo Castro, Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant-father M.D.)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from the termination of his parental rights, appellant argues that (a) the district court’s decision relied on inadmissible evidence, thereby depriving him of a fair trial, (b) the record does not provide substantial support for the district court’s termination order on statutory grounds and under a best interests analysis, and (c) the district court erred by adopting the Hennepin County Department of Children and Family Services (the department) proposed findings verbatim. We affirm.
M.D. (appellant) and A.L. met in
In early 2001, both A.L. and appellant obtained nursing
assistant certificates and began working in nursing homes. Eventually, however, A.L. returned to
prostitution and the couple began having frequent arguments. The couple broke up in July 2001, and in
September 2001, appellant moved in with Melissa Wilson, a co-worker. A few weeks
later, A.L. disappeared, leaving R.D. and J.D. in the custody of appellant. Appellant subsequently requested and was granted temporary custody of the children.
At some point, appellant’s relationship with
On April 1, 2002, the district court found the children to be in need of protection or services after A.L. was found to be in default. She regularly failed to appear for court hearings and ignored the requirements of her case plan. In the meantime, appellant was working toward getting his children back. By the March 19, 2001 hearing, appellant completed a parenting assessment, started anger management classes, was looking for housing, and was cooperating with the social worker. Although the parenting assessment conducted in February 2002 identified areas of concern, including appellant’s inability to take responsibility for his role in situations, his feeling like a victim, his lack of self-awareness, and his history of violence, drugs, and crime, the department continued to assist appellant in reuniting him with his children.
In September 2002, the children were placed in appellant’s care under court supervision. The following month, A.L. agreed to transfer legal and physical custody of the boys to appellant. Appellant had not completed the anger management program, but he did agree to begin a therapy regime with Dr. Michael Kearney, the psychologist who had conducted the evaluation that was part of the CHIPS case plan. Although Dr. Kearney diagnosed appellant with a mixed personality disorder, he agreed that appellant seemed to show some insight when he asked for the session with Dr. Kearney following failure of the anger management program. Dr. Kearney also concluded, however, that appellant’s discontinuation of the process after only three sessions could be a problem.
The department recommended dismissal of court jurisdiction on December 27, 2002. The department reported that appellant had maintained a full-time job as a nursing assistant, “maintained a very tidy and appropriate apartment for the boys and himself,” continued to bring R.D. to his Early Childhood Special Education program for four half-days per week, and continued to bring both boys to their licensed daycare center five days a week. The department further reported that the children were clean, well groomed, and dressed appropriately, and that appellant had demonstrated the ability to safely and appropriately care for his two sons.
On August 26, 2003, Delane Layton, the children’s
maternal grandfather, picked the boys up from daycare at appellant’s
request. Upon noticing numerous linear
marks on R.D.’s body,
A trial was held on May 25, 2004 and August 19,
2004. At trial,
Sheila Osmek, the boys’ maternal grandmother, also
testified at trial. Osmek testified that
when she was visiting A.L. in
testified that she saw appellant hold R.D. high in the air while the child screamed hysterically, not taking him down until R.D. stopped crying.
On the first day of trial, appellant denied
responsibility for the marks on R.D.’s body.
On the second day appellant admitted that he hit R.D. with a belt
because R.D. woke him up after he wet the bed.
Appellant explained that he changed his testimony because he recently
had a milestone birthday when he turned 41.
According to appellant, he had asked
On October 4, 2004, the district court issued its order terminating appellant’s parental rights and signing the department’s proposed findings almost verbatim. Appellant moved for a new trial on October 15, 2004, alleging that the district court committed errors of law by (1) relying on objected-to, inadmissible evidence, (2) the cumulative effect of these errors denied him a fair trial, (3) the statutory grounds had not been proven by clear and convincing evidence, and (4) a new trial was required in the interests of justice. The court denied the motion, concluding that even without the evidence to which appellant objected, the record disclosed appellant’s repeated physical assaults on his children, his lack of insight into his behavior, and his unwillingness to address his shortcomings. This appeal followed.
D E C I S I O N
argues that he was deprived of a fair trial because the district court’s
decision was based on inadmissible
otherwise provided by statute or the rules of juvenile protection procedure,
evidence admissible in a juvenile protection proceeding is the same as would be
admissible in a civil trial under the rules of evidence.
Appellant argues that the district court made a number of erroneous evidentiary rulings, including: (a) the admission of stale and irrelevant evidence concerning appellant’s previous employment and relationships with other adults; (b) the admission of business records without proper foundation; (c) the admission of A.L.’s affidavit; (d) the admission of the guardian ad litem’s (GAL) hearsay statements; and (e) the admission of opinion testimony. Appellant contends the district court’s evidentiary rulings deprived him of his due-process trial rights.
A. Alleged stale and irrelevant evidence
that the district court erred by admitting evidence concerning his time in
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.”
Here, the evidence concerning appellant’s prior history
and his relationships with A.L. and
In light of appellant’s past behavior, and his conduct after the transfer of legal custody to appellant, the evidence of his prior history is relevant to shed light on appellant’s ability or inability to break a pattern of violence and inappropriate behavior.
B. Foundation of business record
Appellant argues that the district court erred in
admitting, as a business record, the parenting assessment (Exhibit 28) of
appellant done by social worker Amy Mueller because the record lacked proper
foundation. “Evidentiary rulings concerning . . . foundation
. . . are within the trial court’s sound discretion and will only be reversed
when that discretion has been clearly abused.”
Johnson v. Washington County, 518 N.W.2d 594, 601 (
evidence is generally inadmissible at trial, records of regularly conducted
business activities are not excluded by the hearsay rule.
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness . . . . A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.
Here, the department introduced Exhibit 28 through Cliff Robinson, the permanency social worker. Robinson identified the exhibit and testified that: “This is the parenting assessment we requested. After completing the assessment, [Mueller] put [the assessment] in writing and sent it to us as part of our record.” Robinson further testified that the department keeps the assessments in the ordinary course of its business of administering cases. We conclude that proper foundation for Exhibit 28 was laid. The district court properly admitted the assessment as a business record.
We also note that in its order denying appellant’s motion for a new trial, the district court stated that: “the department subpoenaed Mueller to testify, she was present, but mistakenly reported as absent. When the parties realized she was present the department offered to call Mueller to testify but [appellant] declined and indicated no desire to re-open the testamentary phase of the [trial] thus effectively waiving this objection.” We understand appellant’s argument that although the witness was available to testify, appellant did not know about Mueller’s availability until the conclusion of the trial. Nevertheless, Mueller’s availability, or lack thereof, does not prevent the exhibit from being considered as an admissible business record.
C. A.L.’s affidavit
that the district court erred by admitting and relying on A.L.’s
affidavit. Although appellant concedes
that A.L. was unavailable to testify because she passed away in 2003, appellant
asserts that the affidavit was untrustworthy because at the time A.L. made the
statements, the statements did not subject her to civil liability. See
The record shows that the district court referred to A.L.’s affidavit in finding 11.2. Appellant cannot show that he was prejudiced by the admission of the affidavit. The district court only referred to the affidavit for the limited purpose of stating that appellant was abusive towards A.L. Even if the affidavit had been suppressed, there was testimony from appellant, the maternal grandparents, and various exhibits, which provided information about appellant’s history of domestic violence. The admission of the affidavit was not reversible error.
D. GAL’s statements
Next, appellant argues that the district court abused discretion by admitting hearsay statements made by the GAL concerning a conversation she had with the day care teacher and the maternal great-grandparents. We disagree. The statements were not admitted for the truth of the matter asserted. Rather, the statements were admitted to show that the GAL received the information and what she did with the information. The statements are relevant because they pertain to the GAL’s observations and decision-making process. The GAL’s statements were properly received.
E. Opinion testimony
the district court abused discretion by admitting opinion testimony of the GAL
and Robinson. The admissibility of an
expert’s testimony is governed by Minn. R. Evid. 702, which provides “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.” The helpfulness requirement is the rule’s basic
requirement. State v. Helterbridle, 301 N.W.2d 545, 547 (
Here, Robinson testified that appellant would not be able to parent his children in the foreseeable future, and that it was the department’s recommendation that the children be adopted by a foster family. Moreover, the GAL testified that she thought appellant’s parental rights should be terminated. It is common for a GAL and other knowledgeable people to comment and give opinions concerning the best interests of a child in termination of parental rights and custody matters. But even if it was error to admit the opinion testimony, we conclude the error was harmless. Nothing indicates that the district court was improperly influenced by the “opinion testimony.” Even without the opinions of Robinson and the GAL as to the ultimate issue, there was sufficient evidence to support the termination of appellant’s rights. We find nothing close to reversible error.
F. Due process trial rights
appellant contends that the district court’s evidentiary rulings deprived him
of his due-process trial rights. The due-process standard in TPR proceedings
embodies the notion of fundamental fairness.
In re Welfare of J.W.,
391 N.W.2d 791, 794 (
Here, the record reflects that the district court conducted a careful review of the evidence offered and exercised discretion in a reasonable manner. Most of the objected-to evidence was properly admitted, and appellant is unable to demonstrate that he was substantially prejudiced by any inadmissible evidence. In fact, the district court’s post-trial order stated that even without the objected-to evidence, the record supported the decision to terminate appellant’s parental rights. Appellant had the benefit of a full and fair hearing and a meaningful adversarial process.
Appellant argues that the district court’s termination order was unsupported by admissible trial evidence, and that the court erred in determining that termination was in the best interests of 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 (
The primary consideration in all TPR determinations is the best interests of the child. Minn. Stat. § 260C.301, subd. 7 (2004). Parental rights may be terminated if the district court finds:
[T]hat a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.
Minn. Stat. § 260C.301, subd. 1(b)(4) (2004). “If a parent’s behavior is likely to be
detrimental to the children’s physical or mental health . . ., the parent can
be found palpably unfit and have his parental rights terminated.” In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn. App.
2003) (citing In re Welfare of H.M.P.W., 281 N.W.2d 188, 191 (
A. Sufficiency of evidence
Appellant contends that the record does not provide substantial and compelling support for the statutory grounds supporting the termination of his parental rights because the district court relied primarily upon stale, irrelevant evidence, and inadmissible hearsay. We disagree. As stated above, the evidence was properly admitted and was relevant to the proceedings.
The district court also made extensive findings in support of the order to terminate appellant’s parental rights. The district court initially took judicial notice that appellant was found guilty of maliciously punishing R.D., and that appellant was sentenced to serve 180 days in a correctional facility for the abuse of R.D. The district court found that appellant has a history of violent behavior, not only toward R.D. and J.D., but also toward women with whom he has had relationships. In addition, the district court found that appellant declined to engage in a case plan during the current case because, according to appellant, he “already knew how to parent based on the services he received during a child protection case predating the abuse of [R.D.] in August 2003; and that only bad people do bad things more than once.” The district court noted Dr. Kearney’s testimony that appellant attended therapy only a couple times, and that he stopped attending after the previous case closed in October 2002. The district court found that Dr. Kearney diagnosed appellant with a “mixed personality disorder” and that appellant’s tendency to project fault outwards presented a poor prognosis for safely and successfully parenting the children. See In re Welfare of A.V., 593 N.W.2d 720, 721-22 (Minn. App. 1999) (stating that a parent’s condition can provide a context for conduct that supports a determination of palpable unfitness even where the conduct alone may not compel that determination).
The district court specifically found appellant’s credibility to be very low based on his demeanor, and the court’s perception that appellant’s answers appeared evasive and that he projected blame for every situation onto anyone other than himself. The court found that on the first trial date, appellant denied that he abused R.D. The court noted that even though he admitted to abusing R.D. on the second day of trial, he still went through a contested criminal trial. The district court concluded that appellant’s pattern of violent behavior, his lack of insight into his behavior, and his refusal to acknowledge his responsibilities demonstrated unfitness to parent children.
Finally, in the post-trial order, the district court found that:
Taking into account the non-objected to evidence combined with evidence [appellant] has challenged that this court concluded is admissible the court is presented with the picture of a parent who since his children’s infancy has used cruelty and violence to discipline them, blames other[s] (sic) for any mistakes he has made, and shows neither insight into his parenting shortcoming nor any willingness to become a fit parent. The record also shows the adverse effect of [appellant’s] abusive parenting style on the children. Based on this record, the court once again concludes that the department has proven the petition by clear and convincing evidence.
The record supports the district court’s findings. See L.A.F., 554 N.W.2d at 396 (stating that considerable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses). We find there is clear and convincing evidence to support the termination order.
B. Best interests
Relying on Minn. Stat. § 260C.212, subd. 2 (2004), appellant argues that the district court erred by not considering separately the bests interests of R.D. and J.D. But appellant’s reliance on section 260C.212, subd. 2, is misplaced. That subdivision applies to the best-interests analysis used when making an out-of-home placement decision, rather than a TPR decision. See id.
best-interests analysis for TPR proceedings is a balancing test. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (
Here, the record reflects that R.D. has some developmental difficulties, which, according to appellant, stem from A.L.’s use of drugs during pregnancy. Appellant asserts that, although he loves both boys, the district court should have considered separately the needs and specific circumstances of each child. Appellant notes that testimony indicated that because of R.D.’s developmental delays, R.D. would require more patience and understanding, and would present a more stressful situation to whoever parented him. Appellant further contends that the evidence shows that appellant did not have the same problems with J.D. that he had with R.D. Although appellant asserts that the best interests of either child are not served by the termination of his parental rights, appellant argues that there is nothing to support the termination of his rights to J.D.
The district court found that continuation in appellant’s home is contrary to both of the children’s welfare, and that placement out of the home is in both children’s best interests. The court found that the children thrived in foster care during the first out-of-home placement, and that the children regressed dramatically when they were returned to appellant’s care. The court also found that the children advanced when the children were returned to foster care. Moreover, the district court found that appellant’s “behaviors place the children at risk and threaten their health (sic) physical, emotional and intellectual growth and wellbeing.” (Emphasis added.) Accordingly, the record provides substantial support for the district court’s termination order under a best interests analysis.
appellant argues that the district court committed reversible error by adopting
the department’s proposed findings
almost verbatim. We disagree. The verbatim adoption of a party’s
proposed findings of fact and conclusions of law is not reversible error per
se. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App.
1992), review denied (Minn. Feb. 12, 1993). While this practice has been
recognized as “tolerable,” appellate courts have cautioned that the “wholesale
adoption of one party’s findings and conclusions raises the question of whether
the trial court independently evaluated each party’s testimony and
As stated previously, the record provides support for the district court’s findings. Although the district court failed to address all of the typographical errors, the court did make handwritten corrections, thus indicating independent consideration of the proposed findings. Finally, the district court issued an extensive order in response to appellant’s motion for a new trial that specifically addressed appellant’s allegations. The order reviewed the issues before the court in the original proceeding and was consistent with the original order.
The district court then issued an order containing the required statutory findings on reasonable efforts by the department, appellant’s position on the matter, and the children’s best interests.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Although not authoritative, there are a number of unpublished opinions suggesting that a GAL’s testimony is expert testimony. See, e.g., In re Custody of D.M.P., No. A03-1950, 2004 WL 2094501, at *4 (Minn. App. Sept. 21, 2004) (remanding for expert evidence, including GAL report); In re Children of Oja, No. C3-03-240, 2003 WL 22039969, at *3 (Minn. App. Sept. 2, 2003) (indicating that a GAL’s testimony is considered expert testimony); In re Welfare of T.B., No. C5-00-225, 2000 WL 1052148, at *1 n.2 (Minn. App. Aug. 1, 2000) (finding persuasive the GAL’s argument that his opinion was admissible as expert testimony).