This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A07-0738

 

In the Matter of the Welfare of the Child of:
C.R.C., Parent

Filed October 30, 2007

Affirmed in part and vacated in part

Stoneburner, Judge

 

Scott County District Court

File Nos. 70JV0610006 & 70200502341

 

David B. Boyce, Ramstad, Kennedy & Boyce, Chartered, 525 First Avenue East, Shakopee, MN 55379; and

Michael McDonald, Suite 250, 16670 Franklin Trail, Prior Lake, MN 55372 (for appellant)

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

Rebecca Anderson, 13451 Quentin Avenue South, Savage, MN 55378 (Guardian ad Litem)

 

††††††††††† Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
 

U N P U B L I S H E D†† O P I N I O N

STONEBURNER, Judge

††††††††††† Appellant father challenges the involuntary termination of parental rights to his son, arguing that the district court erroneously vacated a previously accepted voluntary conditional consent to termination of parental rights, and there is insufficient evidence to support the district courtís finding that he is palpably unfit to be a parent.† Under the unique procedural facts of this case, we conclude that fatherís parental rights were terminated without conditions by a final order based on fatherís consent, and the district court erred by vacating fatherís voluntary termination of parental rights and involuntarily terminating fatherís parental rights based on palpable unfitness.† We therefore affirm voluntary termination of fatherís parental rights and vacate the order for involuntary termination.

FACTS

J.L.W., whose date of birth is March 9, 1995, has lived in foster care for over four years.† He and his four half-siblings have been together in their current placement since September 2005.† He is doing well in school and is involved in track.† The current foster parents want to adopt, and are approved to adopt, all of the children.† J.L.W.ís social worker testified that J.L.W. is very attached to his foster parents and is extremely attached to his siblings.† The adoption of J.L.W. and his siblings has been delayed by the unfortunate delays in finalizing termination of J.L.W.ís biological fatherís parental rights.

Appellant C.R.C., J.L.W.ís biological father (father), has only seen J.L.W. once since J.L.W. was born.† Father was furloughed from prison to attend his motherís funeral in 2003, and he spoke to J.L.W. at the funeral.† In March 2000, father went from prison directly to an indefinite commitment as a sexually dangerous person (SDP) at the Minnesota Sex Offender Program in St. Peter, where he remains.

In response to a November 2003 Carver County termination of parental rights (TPR) petition, on January 22, 2004 father signed a consent form agreeing to TPR contingent on the following conditions:

a.                  [Father] shall be allowed to provide input in the search and selection of the adoptive family.

b.                  [Father] shall be able to exchange cards, letters and photos at least twice annually.[1]

c.                  [Father] shall be allowed further or additional contact with the child when it is deemed in the best interest of the child by the adoptive family.

d.                  [Fatherís] voluntary termination of parental rights is conditioned upon the successful termination of the motherís parental rights.†

 

Fatherís contingent, voluntary consent was presented to the Carver County District Court at a hearing on January 22, 2004. †On February 5, 2004, the Carver County District Court issued TPR findings of fact and conclusions of law.† The findings of fact describe fatherís valid reasons for voluntary TPR but do not mention the contingencies contained in his written consent.† The conclusions of law state that ď[t]he parental rights of [father] are terminated pursuant to Minn. Stat. ß 260C.301, subd. 1(a), in that [father] for good cause desired to terminate his parental rights.Ē† No order terminating fatherís parental rights was issued based on the 2004 findings and conclusions.†

By a process not explained in the record before this court, the findings of fact and conclusions of law were amended on February 4, 2005, to add four findings of fact, including finding #23, which states that termination of fatherís parental rights is contingent on the conditions listed in fatherís written consent form.† The conclusions of law were also amended to state that termination of fatherís parental rights ďis subject to the conditions stated in Finding of Fact #23 above.Ē† The Carver County District Court has never issued an order terminating fatherís parental rights.† Nonetheless, the parties and the district court have referred to the findings of fact and conclusions of law (Carver County ďorderĒ) as an order terminating fatherís parental rights.

On July 27, 2005, J.L.W.ís mother, in response to a TPR petition filed in Scott County District Court, voluntarily consented to termination of her parental rights to J.L.W. and his four half-siblings.† On August 4, 2005, Scott County District Court filed findings of fact, conclusions of† law, order for judgment and judgment terminating motherís and fatherís parental rights to J.L.W.† The findings state that fatherís parental rights were terminated voluntarily for good cause on January 22, 2004, contingent on termination of motherís parental rights.† No other contingencies are stated.† The order for judgment and judgment state that fatherís rights to J.L.W. ďare terminated pursuant to Minnesota Statute ß 260C.301, subdivision 1(a).Ē† An amended order for judgment and judgment, changing only a reference to a district court file number, was filed on August 30, 2005.† Father did not bring any posttrial motions challenging the omission of conditions from the order terminating his parental rights and did not appeal.† Despite the finality of this order terminating fatherís parental rights to J.L.W. without conditions, father, Scott County and the district court have consistently treated the Carver County ďorderĒ as the document that terminated fatherís rights to J.L.W.††

Scott County Human Services (the county) proceeded with adoption planning for J.L.W. and his half-siblings, based on the county and guardian ad litemís (GAL) determination that keeping the siblings together is in the best interests of each individual child.† The children have been together in their current placement for years and the GAL, who has been involved with the five children since their removal from motherís care in 2003, testified that all of the children are expressing anxiety due to the delay in finalizing their adoption.

In December 2005, father, who does not approve of J.L.W.ís adoption by the current foster parents, moved for an order requiring the county to disclose information regarding potential adopters of J.L.W.† Father brought additional motions seeking clarification of the extent of his input into the adoption process and enforcement of the contact conditions set out in the February 4, 2005 Carver County ďorder.Ē† But father has never sought to withdraw his consent to TPR despite the countyís failure to honor the conditions.

In response to fatherís motions,† Scott County filed an involuntary TPR petition on April 21, 2006, on the statutory grounds that (1) father is palpably unfit to be a party to the parent and child relationship and (2) †a child experienced egregious harm while in fatherís care.[2]† On the same date, Scott County moved to vacate the four conditions listed in the Carver County TPR ďorderĒ and to expedite proceedings on its involuntary TPR petition.† Father objected, asserting that the Carver County ďorderĒ was final and could not be challenged after expiration of the time limits on posttrial motions contained in Minn. R. Juv. Prot. P. 45 and 46.††

The district court acknowledged that the countyís motion was untimely under the rules, but determined that based on the best interests of the child,† it had authority to hear the motion. †After a hearing at which J.L.W.ís therapist testified that it would not be in J.L.W.ís best interests to have contact with father at this time, the district court vacated the entire Carver County ďorder.Ē[3]† Father appealed, but the appeal was dismissed as taken from nonfinal orders.†

The district court also held an expedited hearing on the countyís involuntary TPR petition.† At the involuntary TPR trial, the district court declined to consider any challenge to former testimony from J.L.W.ís therapist concerning communication with father, stating that the issue of communication would not be reconsidered.† The county assured the district court that it was not relying on the therapistís opinions in the TPR proceeding.† J.L.W.ís social worker, the GAL, fatherís sister, and father testified.† The district court terminated fatherís parental rights, concluding that the county had proved by clear and convincing evidence that father is palpably unfit to be a party to the parent and child relationship because his commitment to the Minnesota Sex Offender Program makes him unable to care for J.L.W. for the foreseeable future and that TPR is in J.L.W.ís best interests.† Two of the district courtís findings of fact recap the therapistís testimony from the prior hearing to vacate the Carver County ďorder.Ē†

Father moved for a new trial, asserting evidentiary errors, including the improper reliance on the prior testimony of the therapist.† Father also asserted that the evidence is not sufficient to support the finding that he is palpably unfit to be a parent.† The district court denied the motion for a new trial. This appeal followed, challenging the vacation of the Carver County ďorderĒ and the involuntary TPR.†

D E C I S I O N

I.†††††††† Fatherís rights were voluntarily terminated without conditions when he failed to challenge the voluntary TPR filed on August 30, 2005.†††††††††

 

In this very unusual case, the parties and the district court have disregarded an order for judgment and judgment filed on August 30, 2005, voluntarily terminating fatherís parental rights to J.L.W. without conditions.† That voluntary TPR became final when it was not challenged in posttrial motions or appealed.†

The interpretation of court rules presents a question of law that is reviewed
de novo.† Madson v. Minn. Mining & Mfg. Co.,612 N.W.2d 168, 170 (Minn. 2000).† Minn. R. Juv. Prot. P. 45.01, subd. 1, requires that ď[a]ll post-trial motions shall be filed within fifteen (15) days of the service of notice by the court administrator of the filing of the courtís order . . . .Ē† The rules also provide for relief from a final order on enumerated grounds, but limit the time for seeking such relief to 90 days following service by the court administrator of the filing of the courtís order.† Minn. R. Juv. Prot. P. 46.02.† When there are no posttrial motions, any appeal shall be taken within 30 days of the service of notice by the court administrator of the filing of the courtís order.† Minn. R. Juv. Prot. P. 47.02.†

Father relies on the above-cited rules to argue that the district court erred in hearing Scott Countyís untimely attack on the Carver County ďorder.Ē† Assuming that an order was issued in Carver County, fatherís arguments have merit and the district court erred in considering the untimely motion to vacate the order.[4]† But these very arguments mandate that the unconditional voluntary TPR became final when father failed †to appeal.

††††††††††† We conclude that the district court was without authority to hear the countyís untimely motion to vacate a nonexistent ďorderĒ and therefore reverse and vacate the order vacating the Carver County ďorder.Ē† We further conclude that father did not retain any rights which could have been terminated by the involuntary TPR petition after the unconditional voluntary TPR, which predates the countyís involuntary TPR petition by more than six months, became final.† The order purporting to involuntarily terminate fatherís parental rights is therefore vacated.

††††††††††† Although we need not reach the merits of the sufficiency of evidence to support the involuntary TPR, we do so in the interest of judicial economy.† If there remained any rights to be involuntarily terminated, the evidence was sufficient to support the finding of palpable unfitness.†

On appeal in a termination proceeding, ďappellate 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.Ē† In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).† In all termination cases, the paramount concern is for the childís best interests.† Minn. Stat. ß 260C.301, subd. 7 (2006); D.D.G., 558 N.W.2d at 484.

Father first challenges involuntary termination of parental rights, arguing that the district court violated his due process rights when it included findings based on the testimony of J.L.W.ís therapist given in another hearing.† ď[R]ulings on the admissibility of evidence are left to the sound discretion of the trial court.Ē †In re Zemple, 489 N.W.2d 818, 819 (Minn. App. 1992) (quotation omitted).† In juvenile protection proceedings, the district court may take judicial notice as permitted under the Rules of Evidence, as well as judicial notice of findings of fact and court orders in the juvenile protection court file and any other proceedings in any other court file involving the child or the childís parent or legal guardian.† Minn. R. Juv. Prot. P. 3.02, subd. 3.†

To the extent that the district court took judicial notice under Minn. R. Evid. 201(b), permitting judicial notice of adjudicative facts, the court abused its discretion in this case because it failed to give the parties notice of its intent to do so and because prior testimony is not an adjudicative fact.† See In re Welfare of D.J.N.,568 N.W.2d 170, 175 (Minn. App. 1997) (stating that the district courtís exercise of discretion regarding judicial notice is proscribed by the rule that any affected person is entitled to notice that identifies the portions of the record that the court will consider); Zemple, 489 N.W.2dat 820 (stating that prior testimony does not satisfy the requirements of Minn. R. Evid. 201(b)); In re Miner, 424 N.W.2d 810, 813 (Minn. App. 1988) (stating that judicial notice of prior testimony may be permitted if the facts addressed in the testimony are not disputed), review denied (Minn. July 28, 1988).†

But any error in this case would not require reversal of the involuntary TPR because the district courtís finding of palpable unfitness and finding that TPR is in the best interests of J.L.W. are amply supported in the record without reference to the therapistís prior testimony.† See Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (stating that a new trial will be granted because of an improper evidentiary ruling only if the complaining party demonstrates prejudicial error).

Fatherís argument that the evidence is insufficient to support a finding that he is palpably unfit to be a party to the parent and child relationship as defined in Minn. Stat. ß 260C.301, subd. 1(b)(4) (2006) is without merit.† The statute provides in relevant part that the district court may terminate parental rights if it finds

that a parent is palpably unfit to be a party to the parent and child relationship because of . . . specific conditions directly relating to the parent and child relationship . . . 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. ß 260C.301, subd. 1(b)(4).† Here, fatherís commitment makes him physically unavailable to parent J.L.W., a condition that directly relates to the parent and child relationship.† Additionally, fatherís commitment is based on a mental illness that makes him unable to adequately control his sexual impulses, which he directed at adolescent females.† Although the record supports that father has received treatment and has some insight concerning his illness and what he needs to do to reenter the community, he remains committed as a danger to the public, a condition that has a direct impact on his ability to parent.†

A parentís incarceration alone is not sufficient to warrant TPR, but the court may consider that fact with other evidence to support TPR.† In re Children of Vasquez,658 N.W.2d 249, 253 (Minn. App. 2003). ††We read this holding as equally applicable to civil commitment. †The supreme court has stated that mental illness alone is insufficient to support TPR.† In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).† †But a parentís inability to address a childís physical, mental, and emotional needs now and in the reasonably foreseeable future justifies TPR.† In re Child of P.T., 657 N.W.2d 577, 591 (Minn. App. 2003).† In this case, the record supports the district courtís finding that father meets the criteria of palpable unfitness contained in Minn. Stat. ß 260C.301, subd. 1(b)(4).† Given fatherís inability to parent in the past and for the foreseeable future, the length of time J.L.W. has been in foster care, and J.L.W.ís strong attachment to his half-siblings, the record supports the district courtís finding that TPR is in J.L.W.ís best interests.†

Should it be determined that the county appropriately petitioned for involuntary TPR, we would affirm the district courtís order involuntarily terminating fatherís parental rights.† But because the voluntary TPR entered in August 2005 did not contain conditions and was not challenged, we find it controlling in this unique case.† We therefore vacate the order in this matter dated August 7, 2006, and filed on August 14, 2006, and the involuntary TPR order dated January 4, 2007, and filed January 8, 2007, and hold that fatherís parental rights to J.L.W. were voluntarily terminated without conditions pursuant to the order for judgment and judgment filed on August 30, 2005.

††††††††††† Affirmed in part and vacated in part.



[1] Fatherís contact with J.L.W. has been restricted by order of the district court since March 18, 2004, based on the recommendations of J.L.W.ís therapist, the guardian ad litem, and the Carver County social worker.

[2]Fatherís SDP commitment is based on a history of criminal sexual conduct with adolescent girls.

[3]The hearing did not address the contingency that father could have input into selection of an adoptive home.

[4]At oral argument, father conceded that because the district court had continuing jurisdiction over this matter at least until J.L.W.ís adoption is final, the district court could have heard motions to modify the conditions contained in the Carver County ďorder,Ē but was without jurisdiction to vacate the voluntary TPR.