This opinion will be unpublished and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 Welfare of the
Children of: V.H. and E.S., Jr., Parents.
Filed June 20, 2006
Hennepin County District Court
File No. 203932/JX-05-050581
Leonardo Castro, Chief Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants E.S. and V.H.)
Amy Klobuchar, Hennepin County Attorney, Michelle A. Hatcher, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)
Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from denial of motion for a new trial following the termination of their parental rights, appellants argue that the district court (1) should have granted a continuance based on late disclosure of exhibits and the fact that a settlement collapsed the day before trial; (2) failed to require proper foundation for exhibits admitted as business records, admitted irrelevant and prejudicial exhibits, and allowed leading questions; and (3) should not have terminated their parental rights. We affirm.
D E C I S I O N
first argue that their due-process right to fair proceedings was violated when
the district court denied their motion for a continuance that was
necessary because of late disclosure of exhibits and the fact that relatives
were not able to accept transfer of the children. A district court’s continuance
decision is reversed only if the district court clearly abused its
discretion. Dunshee v. Douglas,255 N.W.2d 42, 45 (
“A trial regarding a termination of
parental rights matter shall commence within ninety (90) days from the date of
the filing of the petition.” Minn. R.
Juv. Prot. P. 39.02, subd. 1(c). A
district court may continue a trial “for accumulation or presentation of
evidence or witnesses, to protect the rights of a party, or for other good
cause shown, so long as the permanency time requirements set forth in [the]
rules are not delayed.”
Minn. R. Juv. Prot. P. 39.02, subd. 2(a). In deciding whether to grant a continuance, a
district court considers whether the moving party diligently sought discovery and
whether seeking the information is a “fishing expedition[.]” Rice v. Perl,320 N.W.2d 407, 412 (
Here, appellants fail to show how a continuance would have helped their case. This is especially true because appellants concede that their case is not strong on the merits. While we do not condone or take lightly the disclosure of exhibits mere days before trial was to begin, a number of facts in this case show that the district court did not abuse its discretion. First, although appellant-mother’s counsel argues that she had been assigned the case three weeks prior to trial and did not have time to prepare, a presumption existed against appellant-mother because legal and physical custody had previously been transferred to appellant-father. Second, the day before trial, appellant-mother’s counsel chose to attend a class rather than prepare for trial. Third, there were two trial dates separated by more than 20 days in which to review the exhibits. Fourth, there was not a pretrial scheduling order, and appellants’ counsel did not request discovery. Appellants’ counsel indicated that normally a discovery request is not made because Hennepin County Child Protection Services (Department) permits counsel to copy files; appellants, however, did not take advantage of that opportunity. Finally, the children had been in out-of-home placement since August 2004, and a continuance would have done nothing more than prolong an already lengthy proceeding. The district court did not abuse its discretion by denying appellants’ motion for a continuance.
Appellants next argue that the district
court admitted documents into evidence without requiring foundation, admitted
hearsay evidence, permitted leading examination, and admitted prejudicial and
irrelevant evidence. Absent an
erroneous interpretation of the law, whether to admit evidence is a question
within the district court’s broad discretion.
Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (
Appellants rely on In re Child of Simon, 662 N.W.2d 155 (Minn.
App. 2003), to
support their argument that the district court should not have admitted certain
documents. The court in Simon held that a social worker failed to
lay the necessary foundation for certain documents to be admitted under the
business-records exception to the rule against hearsay. Simon, 662 N.W.2d at 160-61. But Simon did not establish a new rule
of law. Rather, Simon demonstrates that the decision to admit evidence is highly
fact-specific and shows that questions of foundation depend on the
circumstances of each case. See
Benson v. N. Gopher Enters., 455 N.W.2d 444, 446 (
Moreover, the supreme court has held that the business-records exception to the rule against hearsay applies to documents in a social worker’s file, such as reports from a psychologist, a doctor, a social worker, a counselor, a teacher, a psychiatrist, and a speech pathologist. See In re Welfare of Brown,296 N.W.2d 430, 433-35 (
Appellants also argue that the permanency
worker could not testify regarding the exhibits because she did not have
first-hand knowledge of the exhibits’ contents.
But the reports are admissible under the business-records exception
because she is a qualified witness who can testify about the creation and use
of the documents. See Nat’l Tea Co. v. Tyler Refrigeration Co.,339 N.W.2d 59, 61 (
Termination of Parental Rights
Finally, appellants argue that the evidence
was insufficient to support the termination of their parental rights because the
children were bonded with each other, the children did not want to be adopted
by non-family members, and the children wanted to remain in contact with appellants. This court will affirm a termination of parental rights “as long as at
least one statutory ground for termination is supported by clear and convincing
evidence and termination is in the child’s best interests.” In re
Welfare of Children of R.W., 678 N.W.2d 49, 55 (
A district court may terminate parental rights if it finds one or more of the following conditions exist:
(1) that the parent has abandoned the child; (2) 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 . . . ; (3) that a parent [failed to financially support the child]; (4) that a parent is palpably unfit to be [in a parent-child relationship]; (5) that following the child’s placement out of the home, reasonable efforts . . . failed to correct the conditions leading to the child’s placement; (6) that a child has experienced egregious harm in the parent’s care . . . ; (7) that in the case of a child born to a mother who was not married to the child’s father . . . the person is not entitled to notice of an adoption hearing . . . ; (8) that the child is neglected and in foster care; or (9) that the parent has been convicted of a crime listed in section 206.012, paragraph (b), clauses (1) to (3).
Minn. Stat. § 260C.301, subd. 1(b) (2004). The determination of a
child’s best interests requires a balancing of the child’s interest in
preserving the parent-child relationship, the parent’s interest in preserving
the relationship, and any competing interests of the children such as a stable
environment and health considerations. In re Welfare of R.T.B., 492 N.W.2d 1, 4
The district court terminated parental rights after finding that
all but two of the statutory bases for termination existed. Among other things, the district court specifically
found that there was clear and convincing evidence that appellant-mother failed
to engage in case plan services and failed to eliminate the conditions that led
to the children’s out-of-home placement.
Appellant-mother’s history with the Department dates back to 1987. In 2001, appellant-mother was ordered to
comply with a case plan that required her to ensure the children’s school
attendance, provide adequate housing, and attend domestic-abuse treatment. Appellant-mother failed to comply with the
case plan. In 2002, the Department
attempted to reunify appellant-mother with her children by providing appellant-mother
with services and treatment. Appellant-mother
failed to comply with the reunification plan and physical and legal custody was
transferred to appellant-father. Also in
early 2002, appellant-mother left