This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of the Welfare of:

C.R., P.D. aka D.C.D., and E.D.

Filed May 13, 1997


Mulally, Judge


Hennepin County District Court

File No. 179556

William R. Kennedy, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, #200, Minneapolis, MN 55401-2700 (for Appellant)

Michael O. Freeman, Hennepin County Attorney, Andrew J. Mitchell, Assistant Hennepin County Attorney, Patricia M. Buss, Interim Assistant County Attorney, 1210 Health Services Building, 525 Portland Avenue, Minneapolis, MN 55415 (for Respondent)

Gerald M.B. Chester, 700 Lumber Exchange Building, 10 Fifth Street South, Minneapolis, MN 55402 (for Guardian Ad Litem)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Mulally, Judge.



Appellant mother challenges the sufficiency of the evidence and several evidentiary rulings from an order terminating her parental rights. We affirm.


Appellant is the mother of C.R., born January 21, 1991, P.D. a/k/a D.C.D., born August 29, 1992, and E.D., born June 22, 1994.[1] In September 1992, after respondent Hennepin County Department of Children and Family Services (Department) filed a children in need of protection or services petition, the juvenile court placed C.R. and P.D. in foster care. In September 1993, the court adjudicated them as children in need of protection or services.

In June 1994, the Department filed a petition to terminate appellant's parental rights to her children, and the juvenile court placed E.D. in foster care. In April 1995, by stipulation, appellant admitted the petition allegations, and the Department agreed to stay the termination for six months in an effort to allow appellant to fulfill certain conditions, which required appellant, among other things, (1) to submit to random urinalysis, (2) to obtain a mental health evaluation and to follow any treatment and medication recommendations, (3) to address the children's medical, psychological, educational, and emotional needs, (4) to maintain stable and appropriate housing, (5) to contact her social worker every three weeks, and (6) to have weekly visitations with her children until reunification. The order allowed the Department to move to vacate the stay if (1) appellant failed to comply with any of the case plan goals, (2) the Department received any substantiated reports of physical, sexual, or emotional abuse of the children while in appellant's care, or (3) appellant left the children with known sexual offenders, known felons, or persons known to the Department as having failed to protect children from abuse in the past. Based on appellant's partial compliance with the conditions, the parties agreed to extend the stay until December 1995.

In December 1995, however, the Department moved to revoke the stay, alleging that appellant failed to find adequate housing, missed several appointments with her social workers and therapists, missed approximately one-half her scheduled visitations, failed to obtain medical insurance or immunizations for the children, left E.D. with inappropriate caretakers, and physically abused C.D. and P.D. After a trial, the court found clear and convincing evidence that appellant had violated the stay conditions, had physically abused C.D. and P.D., and had left the children with inappropriate caretakers. Concluding that termination was in the children's best interests, the court vacated the stay. Appellant moved for a new trial, which the court denied.


1. Sufficiency of the Evidence

Although the child's best interests are the paramount consideration in a termination case, courts only terminate parental rights for grave and weighty reasons. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). We presume that it is ordinarily in the best interest of the child to be in the custody of natural parents. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). Termination is appropriate only where it appears that present circumstances of neglect "will continue for a prolonged, indeterminate period." In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

The standard for reviewing an order terminating parental rights requires the appellate court to consider (1) whether the trial court has addressed the proper statutory factors, (2) whether the trial court's findings are clearly erroneous, and (3) whether substantial evidence supports the trial court's determinations. In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn. App. 1996). An appellate court inquires closely into the sufficiency of the evidence to determine whether it is clear and convincing. Clausen, 289 N.W.2d at 156; see also Minn. R. Juv. P. 59.05 ("To be proved at trial, allegations of the petition must be proved by clear and convincing evidence.").

A court may base a termination of parental rights on any of several statutory grounds. See Minn. Stat. § 260.221, subd.1(b) (1996) (listing statutory grounds); see also In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn. 1985) ("The court need find that only one of the statutory conditions exists to terminate parental rights.") Here, the juvenile court found that appellant had abandoned her children, that she neglected her parental duties, that she was a "palpably unfit" parent, that she failed to correct conditions underlying the determination that the children were in need of protection or services, and that the children were neglected and in foster care. See Minn. Stat. § 260.221, subd. 1(b)(1) (abandonment), (2) (neglect of parental duties), (4) (palpably unfit parent), (5) (failure to correct conditions leading to determination of need for protection or services), (8) (child neglected and in foster care).

Although appellant does not contest the grounds underlying the juvenile court's initial order terminating her parental rights, she challenges the subsequent order vacating the stay. Specifically, she contends that the court clearly erred by finding (a) that she did not comply with the case plan outlined in the stay agreement, (b) that she physically abused C.R. and P.D., and (c) that she left the children with inappropriate caretakers.

a. Case Plan

While appellant does not contest the accuracy of the juvenile court's specific findings of fact, she challenges the court's ultimate conclusion that she did not comply with her case plan on grounds that she substantially fulfilled the plan obligations and that extenuating circumstances prevented her from meeting the other requirements.

Although the juvenile court noted that appellant had satisfied several plan conditions, which included maintaining her sobriety, completing her chemical dependency treatments and a parenting program, attending individual therapy sessions, continuing her employment, and complying with her probation requirements, the court also found that appellant missed one urinalysis test, delayed participating in mental health therapy for four months, missed several appointments with her social workers and therapists, failed to take her mental health medication, failed to obtain medical insurance or immunizations for the children, failed to obtain adequate housing for her children, failed to visit with C.R. and P.D. weekly, and failed to achieve reunification with C.R. and P.D.

Appellant first contends that she did not take the prescribed mental health medication because, as a recovering drug abuser, she was concerned about the addictive nature of the medication, her health insurance did not cover prescriptions, and she had no money to purchase them. Appellant, however, did not consult anyone about taking different, less addictive medication and missed at least six mental health appointments between July 1995 and April 1996.

Regarding the children's medical needs, appellant states that her work did not offer family coverage, that she could not afford private coverage, that she applied for medical assistance, and that at least one social worker encouraged her to quit work so she would qualify for welfare benefits. Appellant, however, failed to obtain immunizations for E.D. while she was in appellant's care, failed to secure medical insurance, medical assistance, or Minnesota Care for the children before the expected reunification date, and expressed unfamiliarity with the children's doctors.

Appellant next contends that although she encountered great difficulty in obtaining adequate housing due to a felony conviction, she continually sought better housing, kept the Department informed of her problems, and eventually rented a house from Bruce Norris, a coworker. Appellant, however, did not obtain this housing until approximately October 31, 1995, and admits that Norris, a convicted felon, assisted her with transporting the children and occasionally was present during the visits. Furthermore, appellant was less than forthcoming about her living arrangement with Norris. While appellant admitted that they dated briefly in early 1995, she denied any further romantic involvement with him. The record indicates, however, that P.D. and C.R. told a social worker that Norris slept in their mother's bed, that appellant told her therapist in August 1995 that she was having mixed feelings about her relationship with Norris, her "boyfriend," and that they were planning on buying a house together, and that she also told another social worker that she was in a sexual relationship.

Appellant alleges that she did not miss any visitations without a legitimate excuse, that the quality of the visits only indicated mutual affection and caring between her and her children, and that the foster care mother fabricated the missed visits to prevent reunification of the children with appellant. Appellant missed approximately half of her scheduled visits with P.D. and C.D. and failed to meet all reunification target dates between 1994 and fall 1995.

Because the record supports the juvenile court's extensive findings regarding appellant's failure to comply with the case plan, they are not clearly erroneous. While appellant partially complied with her case plan, she admits problems with acquiring adequate housing, obtaining immunizations and health insurance for the children, and missing appointments and visitations. Furthermore, even if appellant's relationship with Norris did not continue, she concedes that she eventually knew he was a convicted felon and that he was present during some visitations. Thus, these findings provide clear and convincing evidence that appellant failed to comply with her case plan.

b. Physical Abuse

Appellant next argues that the juvenile court clearly erred by finding that she physically abused C.R. and P.D. during the weekend of November 25-26, 1995. Appellant specifically contends that the foster mother fabricated the physical abuse allegations, that she was never alone with her children during that weekend and no one with whom she was around testified that she abused the children, and that the court should not have relied exclusively on C.R.'s and P.D.'s allegations of abuse.

The juvenile court's extensive findings on the abuse are not clearly erroneous because the record supports these findings. The record reveals that on the night of November 26, 1995, P.D. told his foster mother that appellant had "hit" him with a belt, that a doctor at the emergency room discovered six injuries, including two fresh abrasions, and that the doctor suspected physical abuse.

Three professionals also independently reviewed the children's abuse allegations and concluded that they were accurate. According to the hospital social worker who interviewed P.D., the child told him that "Mommy hurt me." The Department's social worker, who interviewed P.D. and C.R. separately, testified that both children gave extensive accounts of abuse inflicted by appellant, that the children expressed fear of appellant, and that he found that the children's statements substantiated the hospital report of the abuse. Furthermore, the children's therapist found that despite one incident in which C.R. falsely blamed marks on P.D.'s body on Norris, the children gave consistent accounts of abuse, and that they gave no indication that someone had coerced or threatened them into making their abuse allegations. Thus, it appears that P.D.'s statements concerning abuse remained consistent over an extended period of time and that C.R., with one exception, also made consistent accounts of the abuse.

Finally, the children's therapist recommended that it would be in the children's best interest not to reunite them with appellant. Thus, the juvenile court relied on clear and convincing evidence to find that appellant physically abused her children.

c. Inappropriate Caretakers

Appellant also argues that the juvenile court clearly erred by finding that appellant left the children with inappropriate caretakers. The court found that appellant left the children with a known sexual offender, appellant's cousin, and a person who had failed to protect the children from abuse in the past, the children's paternal grandmother. The cousin, who had sexually abused appellant's oldest child, J.S.D, in 1989 when the cousin was eight years old and J.S.D. was three years old, served as E.D.'s primary caretaker while appellant worked. On November 23, 1995, appellant left the children in the care of the grandmother, whose son previously had sexually abused C.R. while in her care.

Appellant contends that she did not violate the stay agreement because she informed the Department that she was leaving E.D. with the cousin and the prior abuse involved "childhood sexual experimentation with another child" rather than "more serious, predatory violations." The agreement, however, prohibited appellant from leaving the children with a "sexual offender," not a predatory offender. Moreover, appellant knew of the previous abuse yet did not disclose it to her social workers because she assumed that they knew about it. Although one social worker acknowledged that he had known that a cousin had sexually abused one of appellant's children, he also testified that appellant at first only told him that a niece would babysit the children and that he did not realize that the caregiver was the same person as the abuser until November 1995. Appellant asserts that she did not leave the children in the grandmother's care, except for a brief period of time when she fell asleep at the grandmother's house on November 23, 1995. The grandmother, however, admitted that she was in charge of the children while appellant slept.

The juvenile court made comprehensive findings regarding the placement of the children with inappropriate caretakers. Appellant admitted that she left the children with the cousin, that she knew that the cousin previously had sexually abused one of her children, and that she failed to disclose the past abuse to the Department. Furthermore, the stay agreement specifically prohibited appellant from leaving the children with known sexual offenders. Due to appellant's own admissions, the court's finding that appellant left E.D. with a known sexual offender is not clearly erroneous. The grandmother's admission also establishes that appellant, albeit briefly, left the children in the care of someone who had failed to protect them from abuse in the past in derogation of the stay agreement. Thus, the juvenile court's findings provide clear and convincing evidence that appellant left the children with an inappropriate caretaker.

2. Evidentiary Issues

Raising a number of evidentiary issues on appeal, appellant first challenges the juvenile court's decision to allow certain expert testimony. Even if the reviewing court had reached a different conclusion on whether a sufficient foundation exists upon which an expert may state an opinion, it will not reverse the trial court's admission of the expert's testimony absent a clear abuse of discretion. Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990). A party is not entitled to a new trial on grounds of improper evidentiary rulings unless the complaining party can demonstrate prejudicial error. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

Appellant asserts that the juvenile court abused its discretion by allowing the testimony of psychologist Dr. Robin Brown on grounds that despite a contrary rule of professional conduct governing psychologists, Dr. Brown diagnosed appellant as suffering from a borderline personality disorder without personally examining appellant, and that other expert testimony contradicted Dr. Brown's diagnosis. Dr. Brown based her diagnosis exclusively on a review of the Department's files.

Appellant, however, does not claim that Dr. Brown's testimony prejudiced her. The juvenile court's order neither cites nor mentions Dr. Brown's testimony, except to indicate that it was presented at trial. The fact that the court relied on the testimony of other expert witnesses when making its findings suggests that the juvenile court gave little, if any, weight to Dr. Brown's testimony. Moreover, as appellant notes, other expert testimony impeached Dr. Brown's diagnosis, thereby reducing any prejudice. Thus, even if the juvenile court abused its discretion by admitting Dr. Brown's testimony, any such error was harmless because it did not prejudice appellant. See Uselman, 464 N.W.2d at 138 (complaining party must demonstrate prejudicial error to obtain new trial on grounds of improper evidentiary ruling).

Appellant next contends that the juvenile court abused its discretion by not allowing evidence to support her assertion that the foster care mother fabricated appellant's alleged physical abuse of the children. The admission of evidence rests within the "broad discretion" of the trial court, and we will not disturb an evidentiary ruling unless it constitutes an abuse of discretion or is based on an erroneous view of the law and the complaining party can demonstrate prejudicial error. Id.

Appellant submitted an offer of proof that included the proposed testimony of the foster mother's neighbor that the foster mother told C.R. and P.D. to say that their mother was "bad to them." The juvenile court's exclusion of this evidence, however, rests within its discretion, and appellant has not shown that the exclusion of this testimony prejudiced her. The court ultimately relied on the testimony of two social workers and the children's therapist that the children exhibited injuries and made consistent statements regarding physical abuse. We find no abuse of discretion.

Appellant also contends that the juvenile court abused its discretion by restricting appellant from presenting evidence on the issue of the best interests of the children. Although the court made findings regarding best interests in the order vacating the stay, these findings merely repeat the court's findings on best interests from the initial order staying the termination. It does not appear that the court reconsidered its earlier determination that termination would be in the best interests of the children. Moreover, where a party already has stipulated to a finding, a trial court does not abuse its discretion where it excludes additional evidence on that issue. Cf. In re Welfare of J.W., 391 N.W.2d 791, 796 (Minn. 1986) (once matter has been admitted, it is established for purposes of proceedings and district court does not abuse discretion by excluding further evidence concerning admitted matters), cert. denied 479 U.S. 1040 (1987). Because appellant already had stipulated to a finding that termination of her parental rights was in the children's best interests, the juvenile court did not abuse its discretion in excluding appellant's proposed testimony.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1Appellant is also the mother of J.S.D., born December 31, 1985, who is no longer a party to this case because the court placed her with her paternal great-grandmother.