This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








In the Matter of the Welfare of the

Children of A.M.V., Parent.



Filed January 31, 2006


Willis, Judge


Anoka County District Court

File No. J0-04-52611



David C. Gapen, Sherri D. Hawley, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN 55402 (for appellant)


Cheryl Sowada, Anoka County Public Defender’s Office, 433 Jackson Street, #120, Anoka, MN 55303 (for respondent S.M.V.)


Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent Anoka County)


Mark D. Fiddler, 510 Marquette Avenue South, Suite 200, Minneapolis, MN 55402 (for guardian ad litem)


            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Chief Judge

            Appellant challenges the district court’s order limiting the scope of the new trial granted in response to her motion, its order terminating her parental rights, and its refusal to give custody of her children to their maternal grandmother.   Because we see no clearly erroneous findings and no abuse of discretion, we affirm.



Appellant is the mother of three children:  S.M.V., born October 28, 1991; B.A.D., born January 24, 2001; and B.R.D., born January 8, 2003.  The children’s father died on February 3, 2003.

In January 2004, the children were removed from appellant’s home, and in February 2004, the county filed a petition to declare them children in need of protection or services (CHIPS).  At an emergency hearing, appellant was ordered not to use alcohol or mood-altering chemicals, to submit to random urinalyses (UAs), and to have only supervised visitation with her children.  Following a trial on the CHIPS petition, the children were ordered to be placed in foster care and to receive services, and appellant was ordered to complete a psychological evaluation and a rule 25 assessment and to participate in therapy and parenting classes.  Appellant’s oldest child was placed with her godparents, in whose care she is thriving.  Because the godparents could not care for all three children, the two younger children were placed together with another family.

Between February and October 2004, on approximately 100 separate occasions, appellant either failed to call in about providing a UA sample or failed to provide such a sample.  When she was tested, she had positive results for opiates six times, for methamphetamine twice, and once for both cocaine and marijuana.

In November, following a trial, appellant’s parental rights were terminated.  She moved for a new trial, arguing that certain evidence had been admitted without proper foundation.  Appellant’s motion was granted.  But after a hearing, the scope of the new trial was limited to providing foundation for the evidence that had been improperly admitted at the first trial.  The new trial resulted in a second order terminating appellant’s parental rights.  She moved for another new trial, her motion was denied, and she appeals.

Appellant argues that the district court’s findings that she is palpably unfit to be a parent and that the county made reasonable efforts to reunite her family were clearly erroneous.  She further argues that the district court abused its discretion by excluding from her new trial evidence of her conduct subsequent to the first trial, by admitting documentary evidence as business records or public records, by deciding that terminating appellant’s parental rights was in her children’s best interests, and by declining to award custody of the children to appellant’s mother.


1.         Findings of Fact


             “[O]n appeal in a termination of parental rights case, while we carefully review the record, we will not overturn the trial court’s findings of fact unless those findings are clearly erroneous.”  In re Welfare of A.D., 535 N.W. 2d 643, 648 (Minn. 1995).

            Appellant challenges the finding that she “has demonstrated a pattern of conduct in her continued drug use and continued opposition to the County’s efforts to assist her with her children that shows she is palpably unfit to be a parent to them.”  But appellant’s own testimony showed that she did not comply with the February 2004 order to abstain from alcohol and drugs.  She testified that she had not called in to see if UAs were scheduled between February 26 and March 24 despite a requirement that she call in every day; that she failed to complete fewer than seven UAs in March; that she could not remember the April dates on which she had failed to call in; that she tested positive for opiates in April because she had a prescription for Vicodin, to which she had been addicted; that she had used methamphetamine within the 90 days before trial; and that she had hidden her use from the court by refusing to take a hair-follicle test. 

Moreover, a court-ordered psychological evaluation recommended inpatient chemical-dependency treatment for appellant.  A social worker testified that appellant “did not enter inpatient treatment as recommended, she entered outpatient treatment,” that the social worker had received no information that appellant had completed treatment, and that “there was a chemical health goal [of the case plan] which I believe [appellant] has not met.”  The district court’s finding that appellant is palpably unfit to be a parent to her children is not clearly erroneous.

            Appellant also challenges the finding that “the efforts of the [c]ounty [to correct the conditions which led to the children’s placement outside the home] were unsuccessful due to [appellant’s] continued non-compliance with the case plan and her continued non-cooperation with the social worker.”  Appellant argues that the county’s efforts were not adequate because it should have focused exclusively on appellant’s drug use, which, she claims, was the real problem preventing reunification, and should not have required and provided UAs and parenting classes.  Appellant does not explain why requiring UAs was not focusing on her drug use, and the record shows that appellant’s parenting skills were deficient.  Her oldest child provided evidence that, at 12 years of age, she had repeatedly been left alone overnight to look after the two younger children, then a two-year-old and an infant, without any means of contacting appellant. 

            Neither the finding that appellant is palpably unfit to be a parent nor the finding that the county made adequate efforts to reunite appellant’s family is clearly erroneous.

2.         Limitation on Scope of New Trial


            “The application of . . . rules [governing the granting of a partial or a complete new trial] to any particular case involves the exercise of judicial discretion, and the decision reached by the trial court should not be upset unless there is an abuse of this discretion.”   Fortier v. Newman, 248 Minn. 69, 73, 78 N.W.2d 382, 385 (1956).  Minn. R. Juv. Prot. P. 45.03 provides that “[a] new trial may be granted on all or some of the issues.”  See also Minn. R. Civ. P. 59.01 (“A new trial may be granted . . . on all or part of the issues . . . .”).

Appellant argues that the issue of adequate foundation for the exhibits was inseparable from the issue of her palpable unfitness, that the issue of her palpable unfitness should therefore have been re-tried along with the foundation issue, and that she was entitled to present new evidence at the new trial.  But the district court explained that

[appellant’s] original motion [for a new trial] primarily speaks to the admission of documents and exhibits. She therefore self-limits her argument to whether the exhibits previously improperly received are admissible.  She cannot now allege that material evidence of her “new sobriety” is “newly discovered,” because such evidence did not exist at the time of her original trial.  Therefore, it cannot be newly discovered.


(Footnote omitted.) 

The district court did not abuse its discretion when it declined to accept new evidence because the scope of appellant’s new trial was limited to providing foundation for evidence previously accepted.[1]

3.         Admission of Documentary Evidence

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).  Appellant claims that her UA results and her rule 25 assessment were improperly admitted into evidence because foundation was inadequate despite the new trial conducted to establish foundation.  The district court accepted the UA and hair-follicle test results under both the business document exception to the hearsay rule under Minn. R. Evid. 803(6), which excludes from hearsay a “record . . . made at or near the time by . . . a person with knowledge, if kept in the course of a regularly conducted business activity,” and the public document exception to the hearsay rule under Minn. R. Evid. 803(8), which excludes from hearsay “records . . . setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report.”  A social worker testified that records of an individual’s failures to call in and to provide samples are maintained in the ordinary course of her business, that the records are required by law to be maintained and reported to the court, and that the records resulted from investigation made on authority granted by law.  A representative of the county’s urinalysis laboratory testified regarding the procedures for collecting and processing samples.  The court’s admission of these documents was not an abuse of discretion.

The district court found that appellant’s rule 25 assessment was also “admissible under the Business Document exception and the Public Document exceptions to the Hearsay Rule.”  This was not an abuse of discretion: a social worker testified that the assessment met the criteria for a business document and a public document. 

4.         Best-Interests Factors

In reviewing termination of parental rights, we determine whether the record contains substantial evidence to support the district court’s decision, given that the burden of proof in the district court is “clear and convincing” evidence.  Minn. R. Juv. P. 59.05 (“[A]llegations of the petition must be proved by clear and convincing evidence.”); In re Welfare of Rosenbloom, 266 N.W.2d 888, 889-90 (Minn. 1978); see also In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980) (stating that reviewing court will “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing”).


In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1996).

Appellant argues that, even though reunification might not be in her oldest child’s best interests, the district court “could have . . . determine[d] that reunification was in [the two younger children’s] best interests.”  But appellant offers no reasons why reunification would be in the younger children’s best interests. 

Appellant’s younger children will be three and five years old in January 2006, when they will have been away from her for two years.  In D.T.J., an analogous case,

[t]he district court concluded that the termination of [the mother’s] parental rights would be in the best interests of the children, because “[t]hey have been in foster care well over a year,” and because “[t]heir mother has not been able to correct the conditions that led to that foster care placement after repeated attempts.”  These findings . . . provide adequate support for the district court’s conclusion that the termination of the mother’s parental rights would be in the children’s best interests.


Id. at 110.  Here, the children have been in foster care for two years, two-thirds of B.R.D.’s life and two-fifths of B.A.D.’s life.  The district court’s conclusion that appellant’s parental rights to all her children should be terminated was well supported and was not an abuse of discretion.[2]

5.         Custody With the Maternal Grandmother

            M.E.V., appellant’s mother and the children’s maternal grandmother, petitioned for custody of the children.  The district court found that custody with her would not be in their best interests: 

[M.E.V.] has conducted herself in an oppositional manner during these proceedings such that her visitation with the children had to be curtailed. . . . [She] has not recognized the serious flaws in her daughter’s parenting abilities which have led to these proceedings.

. . . [She] clearly loves her grandchildren very much, but . . . is currently unable to place their needs ahead of [appellant]. . . .  [She] would not be able to protect the children from the influence of their mother.


Appellant relies on Minn. Stat. § 260C.193, subd. 3(e) (2004) (“Whenever possible, siblings should be placed together”), to argue that M.E.V. should have custody because all three children could stay together with her.  But appellant ignores the exception provided by the statute:  “unless it is determined not to be in the best interests of a sibling.”  Minn. Stat. § 260C.193, subd. 3(e).  Here, it is in the oldest child’s best interests to be placed with her godparents; that placement means she cannot be placed with her siblings, who are ten and twelve years younger than she is.  She will maintain her relationship with her younger siblings: the guardian ad litem testified that the godparents “will also ensure that there will be ongoing contact between [the oldest child] and her two younger siblings.”  Placing the custody of all three children with their maternal grandmother solely so they can be together would not be in their best interests, and “[t]he paramount consideration in all proceedings for the termination of parental rights is the best interests of the child.”  Minn. Stat. § 260C.001, subd. 3.


[1] Appellant also argues that she was entitled to a retrial of her petition to have custody given to her mother because the district court, in granting her motion for a new trial, ordered a new trial on both the termination petition and the petition for alternative relief.  But the district court held a hearing so the parties could present arguments as to the scope of the new trial and, following the hearing, determined that the new trial would be limited to laying foundation for the challenged exhibits.  Appellant cites no authority for her argument that due process entitles her mother to a new trial.  See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address issue not adequately briefed).

[2] Appellant suggests that “the proper consideration of a child’s best interests involves a balancing of the child’s interests and the parent’s interests.”  But see In re Welfare of R.T.B., 492 N.W. 2d 1, 4 (Minn. App. 1992) (noting that, while the parent’s interest in preserving the parent-child relationship is one of three factors to be balanced in analyzing the best interests of the child, “the interests of the parent and child are not necessarily given equal weight”); see also Minn. Stat. § 260C.001, subd. 3 (2004) (“The paramount consideration in all proceedings for the termination of parental rights is the best interests of the child”); Minn. Stat. § 260C.301, subd. 7 (2004) (“Where the interests of parent and child conflict, the interests of the child are paramount”).