This opinion will be unpublished and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:

Filed December 21, 1999
Affirmed; motion denied
Anderson, Judge

Hennepin County District Court
File No. J7-98-064143

Gary A. Debele, Rachel L. Cleary, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for appellant mother)

Amy Klobuchar, Hennepin County Attorney, Andrew J. Mitchell, Mary M. Lynch, Assistant County Attorneys, 525 Portland Avenue South, Minneapolis, MN 55415 (for respondent Hennepin County Department of Children and Family Services)

Howard S. Kleyman, 2400 Hennepin Avenue South, Minneapolis, MN 55405 (for guardian ad litem)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant Kara Richards challenges the district court’s decision to terminate her parental rights to her two-year-old son. She contends the district court abused its discretion in admitting evidence of her history of chemical dependency and that it did not have clear and convincing evidence to support its decision to terminate parental rights. She further argues that the requirement in Minn. Stat. § 260.191, subd. 3b (1998), for a permanency determination, as applied, violated her due-process rights. Respondent moves this court to take judicial notice of appellant’s plea of guilty to aggravated driving offenses that occurred after the district court’s decision. We affirm the district court decision and deny respondent’s motion.


Appellant has a 22-year history of alcoholism and has participated in 12 chemical dependency treatment programs, completing most of them. She testified that her longest period of sobriety lasted about seven years, from 1978 to 1984, and her next longest period was a year and a half. During a period of sobriety in 1996, she became pregnant with L.A.M.[1] Later, while still pregnant, she resumed drinking, but then stopped when she received treatment. L.A.M. was born in January 1997, and two months later, appellant began drinking again.

In April 1997, the county filed a petition alleging L.A.M. was a child in need of protection and services (CHIPS). The court removed L.A.M. from appellant’s custody and ordered her to comply with a case plan that required her to undergo chemical dependency treatment and aftercare, submit to alcohol testing, attend Alcoholics Anonymous, participate in counseling, and continue her psychiatric care. Based on appellant’s compliance with the plan, the court returned L.A.M. to appellant’s custody in November 1997 and dismissed the CHIPS petition in January 1998.

In late May 1998, appellant was in an automobile accident while L.A.M. was with her. The investigating officer found open bottles of alcohol in her car and witnesses described appellant as intoxicated. During a later interview at her apartment, an officer saw her shaking L.A.M. in an unsafe manner, and appellant eventually admitted drinking and driving. At the hearing, appellant denied drinking before the accident or handling her child in an unsafe manner, although she admitted drinking after the accident.

On June 9, 1998, the police, responding to numerous telephone calls reporting that appellant had been drinking and driving with the child in her vehicle, went to her apartment to investigate. Appellant, who admittedly had been drinking, began screaming and yelling and was out of control. The officers transported her to a crisis facility and took L.A.M. to a shelter. At the hearing, appellant admitted consuming alcohol that day, but denied drinking and driving with L.A.M. in the car.

The county filed a second CHIPS petition in June 1998, and the court ordered that L.A.M. should continue in his out-of-home placement. The county prepared a new case plan for appellant on June 29, 1998. Rather than complying by starting treatment immediately, appellant again consumed alcohol in early July 1998. On August 3, 1998, the court adjudicated L.A.M. to be a child in need of protection or services based on the fact that appellant’s chemical dependency interfered with her ability to parent her child. On the same date, appellant once again entered chemical-dependency treatment.

On August 7, 1998, the county filed a petition for termination of appellant’s parental rights. At the termination hearing, witnesses testified that she complied with the requirements of the programs and classes she participated in and interacted appropriately with her child. Those who were able to offer an opinion believed that if appellant had another relapse, she would pose a danger to L.A.M.

Dr. Kenneth Lee Kuhn, a psychiatrist with board certification in addiction psychiatry, stated that despite appellant’s excellent chemical-dependency treatment throughout the years, she continued to relapse. He explained that appellant has not moved from the first stage of treatment, in which she relies on substantial external supports, to the second stage, in which she would internalize treatment factors and be able to function in the community with minimum support. He found no indication that her current treatment program would be any more successful than her last treatment program in preventing relapse. In fact, for one with her history, two to five years of sobriety are required before the risk of relapse drops to even fifty per cent. Further, when appellant resumes drinking, she has severe binge-drinking relapses that pose a danger to a child in her care. The guardian ad litem testified that it was in L.A.M.’s best interests that appellant’s parental rights be terminated.

The court found that L.A.M. has been in court-ordered out-of-home placement for some 15 months of his 25-month life. The court determined that appellant’s chemical dependency and the threat that it presents to her child makes her palpably unfit for the parent-child relationship, that reasonable efforts by the county failed to correct the conditions leading to the determination, and that it was in the best interests of the child that parental rights be terminated. This appeal followed.



Respondent made a motion for this court to take judicial notice of appellant’s July 14, 1999, guilty plea to aggravated driving violations, in which she admitted to driving while intoxicated after revocation of her driver’s license. Appellant opposes the motion, contending the evidence was not part of the record below and should not be considered on appeal.

Generally, an appellate court may not base its decisions on matters outside the record on appeal. Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977); see Minn. R. Civ. App. P. 110.01 (providing papers filed in trial court, exhibits, and transcript, if any, constitute record on appeal). Nevertheless, an appellate court will accept documentary evidence of a conclusive nature to supply evidence omitted at trial, but only to affirm a judgment or verdict. Plowman, 261 N.W.2d at 583-84.

The guilty plea is not evidence of a conclusive nature used to supply an omission at trial. Instead, respondent seeks to use it as further evidence of appellant’s unfitness to be a parent. Consequently, we deny respondent’s motion.


Next, appellant claims that the district court abused its discretion by admitting evidence of her past conduct, rather than relying solely on her current condition in making its decision. We first address respondent’s argument that appellant failed to preserve her evidentiary objections for appellate review because she did not move for a new trial. Generally, a party must raise objections through a motion for a new trial to preserve evidentiary issues for appellate review. Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn. 1986). Nonetheless, this court will review evidentiary objections in a proceeding for termination of parental rights even though the parent did not bring a motion for a new trial. In re Welfare of S.R.A., 527 N.W.2d 835, 837 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995). We do so by granting discretionary review under Minn. R. Civ. App. P. 103.04, in the interests of justice, based on the finality the proceedings to terminate parental rights. S.R.A., 527 N.W.2d at 837 (noting finality of termination proceeding allowed review of issue not preserved in district court).

Respondent, however, contends that after the 1998 amendments to the rules of civil appellate procedure, even in termination of parental rights cases, a party must move for a new trial to preserve issues for appellate review. Rule 103.04 now explicitly provides that the scope of review afforded "may be affected by whether proper steps have been taken to preserve issues for review on appeal, including the existence of timely and proper post-trial motions." Minn. R. Civ. App. P. 103.04. This amendment clarified the rule, citing caselaw including Sauter. Minn. R. Civ. App. P. 103.04 1998 advisory comm. cmt. But we see no indication that the amendment was intended to change the result in S.R.A., which also specifically addressed Sauter. S.R.A., 527 N.W.2d at 837.

Next, respondent contends the interests of justice do not require review of the evidentiary issues raised here because appellant may well have chosen not to bring a motion for a new trial for strategic reasons. This court cannot speculate as to appellant’s motives. Further, the reason for not requiring a motion for a new trial in parental rights termination cases—the finality of the decision—is still present.

We turn next to the merits of appellant’s evidentiary arguments. An appellate court will not overturn evidentiary rulings unless the district court abused its discretion or erred as a matter of law. In re Welfare of D.J.N., 568 N.W.2d 170, 174 (Minn. App. 1997).

Appellant first contends that the district court erred by failing to exclude evidence of her past conduct as irrelevant. Generally, all relevant evidence is admissible. Minn. R. Evid. 402. Relevant evidence is that "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Minn. R. Evid. 401.

Appellant contends that the issue in a parental termination case is whether the parent, at the time of trial, is presently able to assume responsibilities of parenthood. See In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980); In re Welfare of J.K., 374 N.W.2d 463, 467 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985). Consequently, appellant contends that evidence of her history of involvement with child-protection services and chemical dependency is irrelevant. We disagree. While the court must consider the parent’s present ability to care for the child, there is no authority for the proposition that this renders the parent’s conduct in the past irrelevant. To the contrary, some of the statutory factors explicitly require the court to examine past conduct. See Minn. Stat. § 260.221, subd. 1(b)(4) (1998) (in deciding whether parent is palpably unfit, court considers whether duration and nature of pattern of conduct or conditions render parent unable to care for child).

Next, appellant contends that any evidence beyond the four corners of the August 3, 1998, order adjudicating L.A.M. to be a child in need of protection and services should have been excluded, because the order was based on a stipulation of the parties, which the court adopted. She reasons that because respondent, in effect, admitted that if she complied with the case plan, she would be a fit person to parent L.A.M., that respondent was estopped from using any other evidence of her conduct that was known to respondent at the time it entered into the stipulation. Even if the stipulation could be interpreted in this manner, appellant did not comply with the terms of the order because she did not follow the case plan, and her argument has no merit.

Appellant also argues that because the legal issue raised by the CHIPS petition was identical to the issue raised in the termination petition, specifically the legal effect her prior behavior should have had on her parental rights to L.A.M., respondent should have been collaterally estopped from relitigating it. See Carlson v. County of Hennepin, 428 N.W.2d 453, 457 (Minn. App. 1988) (defining collateral estoppel), review denied (Minn. Oct. 10, 1988). The CHIPS proceeding addressed whether (1) L.A.M. was without proper parental care because of appellant’s emotional, mental, or physical disabilities and (2) whether L.A.M.’s environment was such as to be injurious or dangerous. See Minn. Stat. § 260.015, subd. 2a(8), (9) (1998) (defining child in need of protection or services). In contrast, the parental-rights-termination hearing addressed whether appellant was palpably unfit to be a parent and whether appellant failed to correct conditions that led to the CHIPS determination. Minn. Stat. § 260.221, subd. 1(b)(4), (5) (1998). The issues are not identical and collateral estoppel does not apply.


The next issue concerns the merits of the district court’s decision. On review of a parental-rights-termination order, an

appellate court must determine whether the trial court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.

In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citation omitted).

The party bringing the petition for termination of parental rights must prove one or more of the statutory grounds for termination by clear and convincing evidence. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991). "Parental rights are terminated only for grave and weighty reasons." M.D.O., 462 N.W.2d at 375 (citation omitted). The child’s best interests are "the paramount consideration in every termination case." Id.; Minn. Stat. § 260.221, subd. 4 (1998).

Appellant focuses on the evidence of her participation in treatment and aftercare and her strengths in caring for L.A.M. But the district court terminated appellant’s parental rights based on a determination that appellant’s chemical dependency and the threat that it presented to her child made her palpably unfit for the parent-child relationship. To support a finding that the parent is palpably unfit, the statute requires either a "consistent pattern of specific conduct before the child" or "specific conditions directly relating to the parent and child relationship" that is of a duration or nature that renders the parent unable to care for the child. Minn. Stat. § 260.221, subd. 1(b)(4). Here, the district court cited appellant’s relapses into alcohol consumption in situations that directly endangered her child, which continued despite the CHIPS adjudications and treatment.

The district court also found that appellant had failed to correct the conditions that led to L.A.M.’s out-of-home placement. Another ground for termination exists if, after a CHIPS determination, "reasonable efforts * * * have failed to correct the conditions leading to the determination." See Minn. Stat. § 260.221, subd. 1(b)(5). While appellant cites her actions in complying with the case plan, the essential condition—her chemical dependency and the subsequent endangerment of her son—was not corrected. Dr. Kuhn predicted her relapses would continue or even worsen. While she contends the district court did not allow a reasonable time for the case plan to be implemented after the second CHIPS determination because she delayed entering treatment for only a month, we note that the reason for the delay was yet another relapse. The district court had clear and convincing evidence that appellant’s continued alcohol use and severe relapses endangered L.A.M. and that she failed to correct the conditions leading to the CHIPS determination.

Next, appellant contends that the district court erred in concluding clear and convincing evidence existed to hold that the termination of her parental rights to L.A.M. was in L.A.M.’s best interests. See Minn. Stat. § 260.221, subd. 4 (1998) (providing that best interests of child are paramount). She cites the extensive testimony that when sober, she was a very good parent, had bonded to L.A.M., and was strongly committed to being a healthy and proper parent for L.A.M. She contends that her guardian ad litem may have been swayed by the eagerness of the foster parents to adopt L.A.M.[2]

The court found that it was in the best interests of L.A.M., who had already been in court-ordered placement for 15 months out of his 25-month life, that parental rights be terminated for the following reasons:

The danger to [the child] presented by the chemical dependency of [appellant] will not be alleviated in the foreseeable future. By terminating [appellant’s] parental rights, the child will be free for adoption into a family that is able to permanently provide the necessary care and attention which a child of this age deserves.

The district court had clear and convincing evidence to support its decision.


Finally, appellant contends that the permanency statute as applied to her is unconstitutional because it unduly prevented reasonable efforts towards reunification, violating her substantive and procedural due-process rights.

The district court failed to rule on the constitutionality of the statute as applied, and the issue therefore is not properly before the court. In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999). In any event, there is no support for appellant's argument that the court applied the statute in an arbitrary manner to prevent her from having a reasonable amount of time to reunite with her child. Instead, the court based its decision to terminate appellant's parental rights on the merits.

Affirmed; motion denied.

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

[1] L.A.M.'s father has agreed to termination of his parental rights.

[2] L.A.M.'s foster parents, who are friends of appellant's family, have expressed willingness to adopt him and would allow him to continue to have contact with appellant.