This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-99-1182

In the Matter of the
Welfare of: M.H., Child.

Filed December 28, 1999
Affirmed
Klaphake, Judge

Blue Earth County District Court
File No. J4-96-50986

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

Ross E. Arneson, Blue Earth County Attorney, Bradley J. Peyton, Assistant County Attorney, P.O. Box 3129, Mankato, MN 56002 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

Appellant L.D. challenges the trial courtís termination of her parental rights to her daughter, M.H. She argues that the trial court did not have jurisdiction over the termination petition because an appeal of the courtís decision denying an earlier petition was pending; a decision on that appeal has since been issued. In re Welfare of M.H., 595 N.W.2d 223 (Minn. App. 1999) (affirming district courtís denial of countyís petition to terminate L.D.ís parental rights). L.D. also contends that the trial court erred in taking judicial notice of testimony from the trial on the earlier petition. Because the trial court had jurisdiction to decide a new petition based on newly-arisen facts and because L.D. was not prejudiced by the judicial notice taken, we affirm.

D E C I S I O N

1. Jurisdiction

L.D. argues that the trial court did not have jurisdiction to rule on the second termination petition. Jurisdiction is a question of law, which this court reviews de novo. Larson v. New Richland Care Ctr., 538 N.W.2d 915, 918 (Minn. App. 1995).

While an appeal is pending, the trial courtís jurisdiction is suspended as to all matters necessarily involved in the appeal. Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984); State v. Barnes, 249 Minn. 301, 302-03, 81 N.W.2d 864, 866 (1957). For example, in a juvenile case, the trial court retains jurisdiction to modify a disposition, but lacks jurisdiction to alter an adjudication of neglect once an appeal has been perfected. In re Welfare of C. Children, 348 N.W.2d 94, 99 (Minn. App. 1984). In the present case, if the trial court had attempted to alter its prior determination that L.D.ís rights not be terminated, it would have lacked jurisdiction to do so. But the trial court did not alter its prior determination; rather, it ruled on a new petition, based on facts arising after its order on the first petition had been issued.

In its original order, the trial court was "unconvinced" that L.D. was palpably unfit to parent M.H. or that L.D.ís refusal to cooperate, particularly regarding a psychological test that was a critical component of the reunification plan, was L.D.ís fault because she was following her attorneyís advice. The court therefore denied the countyís petition, finding that L.D. had shown progress and that some of L.D.ís failures to comply were not her fault. The court continued M.H. in foster care and ordered L.D. to complete a parenting assessment.

Following the trial courtís original order, L.D. submitted to a parenting evaluation, which revealed continuing parenting problems and no progress. Counselors met with L.D. and M.H. on numerous occasions to address these problems. Eventually, however, the counselors concluded that L.D.ís parenting had not improved and that L.D. refused to recognize the need for any change. The trial courtís decision to terminate was based on these newly-arisen facts and on a new petition alleging that L.D.ís parental rights should be terminated under Minn. Stat. ß 260.221, subds. 1(b)(2), 1(b)(4), 1(b)(5) (1998).[1] Thus, although the trial court may have relied on facts established during the trial on the first petition, the decision on the second petition was distinct from the decision on appeal.

2. Judicial Notice

At the start of the second trial, the trial court granted the countyís oral motion to take "judicial notice of the previous testimony in the last hearing and the previous CHIPS orders." A trial courtís evidentiary rulings will not be disturbed unless they are based on an erroneous view of the law or constitute an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). An erroneous evidentiary ruling will result in a new trial only if prejudice is shown. Id.

In general, the trial court may take judicial notice of court records and files. In re Welfare of Clausen, 289 N.W.2d 153, 156-57 (Minn. 1980). Prior court findings may be an appropriate subject for judicial notice. In re Zemple, 489 N.W.2d 818, 820-21 (Minn. App. 1992). Generally, however, the trial court should not take judicial notice of testimony from prior court proceedings. See In re Welfare of D.J.N., 568 N.W.2d 170, 175 (Minn. App. 1997) (noting difference in treatment between different parts of court file and indicating that testimony is not proper subject for judicial notice); Zemple, 489 N.W.2d at 820 (holding trial court erred by taking judicial notice of prior testimony). But see In re Miner, 424 N.W.2d 810, 813 (Minn. App. 1988) (affirming trial courtís decision to take judicial notice of prior testimony), review denied (Minn. July 28, 1988).

The courtís order on the second petition does not reflect that the court actually relied on any testimony from the first trial. Instead, the court expressly relied on the findings that it had previously made, which is within its discretion. See Zemple, 489 N.W.2d at 921. Because there is no indication that the court improperly based its decision on any prior testimony, L.D. has shown no prejudice warranting reversal on this ground. See D.J.N., 568 N.W.2d at 176 (taking judicial notice not reversible error where most of courtís findings were not based on judicially noticed records).

Affirmed.

[1] In this appeal, L.D. does not specifically challenge the trial court's findings or whether the county met its burden by proving the grounds for termination by clear and convincing evidence. Nevertheless, after thoroughly reviewing the record, we conclude that the trial court's findings adequately address the statutory criteria and are supported by substantial evidence.