This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Welfare of:

H.O.B., A.H., & R.L.H.

Filed June 1, 1999


Foley, Judge[*]

Martin County District Court

File No. J7-96-50178

Allen P. Eskens, 3 Civic Center Plaza, Ste. 207, P.O. Box 3412, Mankato, MN 56002-3412 (for appellant mother)

Terry W. Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 923 N. State St., Ste. 130, Fairmont, MN 56031 (for respondent county)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Foley, Judge.


FOLEY, Judge Appellant, the biological mother of three children, contests the award of their permanent legal and physical custody to her father, their maternal grandfather. Because we see no error in the admission of certain evidence or in the judicial notice taken of certain facts and because clear and convincing evidence supports the custody award, we affirm.


Appellant Jeannie McCormick is the mother of H.O.B., age 11, A.M.H., age 7, and R.L.H., age 6. The children were removed from appellant's home in January 1996 because it had no heat. A CHIPS petition was filed on them in 1996; they were adjudicated CHIPS in 1997. After the children were again removed from appellant's home, they moved in with their maternal grandfather Michael Wallerstedt and his wife. They have been living with Wallerstedt since November 1996 and are thriving in his care. A "Child's Out-of-Home Placement Plan" was developed for appellant and Alan McCormick, with whom she was then living. It required appellant to complete in-patient chemical dependency (CD) treatment, required her and McCormick to complete a background and health history inventory and to participate in a parenting assessment, and required McCormick to complete anger management training and a CD assessment and to follow all recommendations. A second plan added the requirement that appellant visit the children two or three times a week. Appellant agreed to follow the plans.

However, appellant's contact with the children has been intermittent. Their social worker contacted appellant in October 1997 and confronted her with her failure to attend AA meetings and to participate in R.L.H.'s Head Start class. Despite the social worker's efforts, there was no further contact until December 1, 1997, when appellant told the social worker she had left McCormick because of domestic abuse and arranged to visit the children a few days later. But by that time appellant was reunited with McCormick; she missed the visit by appearing 45 minutes late with no notification. Later in December, appellant called the social worker, said that she had again left McCormick, and spoke of visiting the children at Christmas. No visit occurred, and she did not contact the children.

Early in February 1998, appellant visited the children and told the social worker she was living with McCormick and attending AA and parenting classes, but later that month she again left McCormick and moved to Winona. A new reunification plan was formulated; it called for appellant to visit the children twice a month and procure suitable housing for them.

In March, the social worker, in a letter to the court, recommended reunification only if appellant fulfilled the requirements of the reunification plan and if McCormick did not live in the same home as the children. In May, however, the social worker wrote recommending that reunification not take place because appellant was again living with McCormick and had moved to Wisconsin. Appellant denied the move; H.O.B. told the social worker that appellant had directed him not to tell anyone she was living with McCormick.

At the hearing, appellant testified that she was living with McCormick but would move to live with her mother if reunification were granted; she presented no evidence that this arrangement would be feasible. The court awarded permanent legal and physical custody of the children to Wallerstadt.

Appellant now argues that the district court's admission of the social worker's letters into evidence was based on an erroneous view of the law, that the district court erred in taking judicial notice of certain facts, and that the placement is not supported by clear and convincing evidence.


1. Admission of Certain Evidence

"The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion." Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

The district court noted that it

considered all documents in the file, including the correspondence from [the social worker], when rendering this decision. * * * Apparently, none of the parties thought it necessary to call [the social worker] as a witness to challenge her prior statements to the Court or to elicit new testimony. Although [the social worker] has been away from work on maternity leave, there is no allegation that she was unavailable at the hearing.

Appellant does not explain why she did not call the social worker as a witness.[1]

Appellant contends that the social worker's correspondence was "inadmissible hearsay," precluded by Minn. R. Juv. P. 59.04 ("The court shall admit only such evidence as would be admissible in a civil trial."). However, rule 59 pertains to "trial[s] * * * held to determine if the allegations of the [CHIPS] petition are proved." Minn. R. Juv. P. 59.01. Here, the trial on the CHIPS petition had already been held; this was a disposition hearing. At such hearings, "[t]he court may receive any information, except privileged communications, that is relevant to the disposition of the cause including reliable hearsay and opinions." Minn. R. Juv. P. 62.04, subd. 2. The social worker's letters were relevant to the disposition of the cause and reliable; the court did not err in admitting them.

Moreover, even if the admission had been erroneous, "[e]ntitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error." Uselman, 464 N.W.2d at 138. Much of the information in the social worker's correspondence was also the subject of testimony by the social worker's supervisor, whom respondent called as a witness. Because the court received the recommendation both from the social worker's letters and from the supervisor's direct testimony, the admission of the letters was not prejudicial and appellant would not be entitled to a new trial even if they had been erroneously admitted.

2. District Court's Judicial Notice of Certain Facts

Respondent, at the close of its evidence, asked the court to consider all the information and files presented in this matter. Appellant raised no objection at the time but objects now to the fact that the court took "judicial notice" of 24 district court files without identifying the specific parts of the files it would consider.

To support her objection, appellant relies on In re D.J.N., 568 N.W.2d 170, 174 (Minn. App. 1997) (holding that a court must give "notice that identifies the portions of the record that the court will consider in determining adjudicative facts in the case.") In D.J.N., one party had argued that it would have prepared for trial differently if it had known that the district court would take the entire juvenile file into evidence. Id. This court noted:

It is an established element of trial court discretion in personal welfare cases to admit written materials as hearsay evidence, provided that the affected parties have an opportunity to dispute the material, either by calling the authors of those reports as witnesses or otherwise responding.

Id at 175. Here, appellant had an opportunity to dispute the material by calling the social worker as a witness, by cross-examination of the social worker's supervisor, or by examination of appellant, so the rationale of D.J.N. does not apply. Moreover, D.J.N. finally determined that the court's failure to disclose the specific portions of the juvenile file it used did not prejudice appellants because the court's findings had adequate support from other sources. Id. at 176. The same is true here: the record submitted to this court in this case adequately supports the district court's findings.

3. Award of Permanent Placement

Consistent with the level of proof generally required in child protection proceedings, the county must prove the allegations of the petition for permanent placement by clear and convincing evidence.

In re A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996). Appellant contends that the permanent placement of the children with Wallerstedt is not supported by clear and convincing evidence.

Minn. Stat. § 260.191, subd. 3b(g) (1998), provides that an order awarding permanent placement must include detailed findings on five factors. The evidence supports the district court's findings on each factor.

The first factor is how the children's best interests are served by the order. The court found that the children's best interests would be served by permanent placement with Wallerstedt and his wife because they have thrived in that environment, the two oldest children are doing well in school, the youngest is in special education, an ongoing relationship with their mother is fostered, and they are in a "safe, stable, nurturing environment." Wallerstedt's testimony alone provides support for this finding.

The second factor is the social service agency's efforts to reunite the children with appellant. The court found that Human Services had made genuine, reasonable efforts to reunite the children with appellant for more than two years, and that the failure of these efforts was due to appellant's resistance and failure to follow through. Testimony of the social worker's supervisor, as well as documents in the record, supports this finding.

The last three factors are whether the conditions that led to the out-of-home placement have been corrected; if not, whether it is probable that the children will be able to return home within the next six months; and whether appellant made an effort or was able to use available services to correct the conditions that led to the out-of-home placement. The court found that (1) appellant has resisted and failed to comply with chemical dependency treatment; (2) she has demonstrated no ability to provide the children with a safe, clean, stable environment, to nurture them, or to make their needs a priority; (3) her visitation was sporadic, with long periods of no communication; (4) she continued to return to McCormick and lied about returning to him despite the recommendation that he not live with the children; and (5) her plan not to live with McCormick if the children return to her was not credible.

Both the hearing testimony and the documents in the record, particularly transcripts of the social worker's interviews with appellant, McCormick, and H.O.B., support these findings. The only stability the children have known has been during their residence with Wallerstedt since November 1996. Appellant makes intermittent improvements in various aspects of her life, but the record reveals no consistency in her residence, relationships, employment, or willingness to engage in therapy or accept social services.

There was no error in admitting the social worker's letters into evidence or in taking judicial notice of her recommendations, and the permanent placement of the children with Wallerstedt is supported by clear and convincing evidence.


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

[1] Appellant's argument that she was deprived of due process because respondent did not call the social worker as a witness is unpersuasive in light of appellant's own failure to call the social worker as a witness.