This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1614

 

In the Matter of the Welfare of the Children of:

A. T. and F. T., Parents.

 

Filed ­­­­­October 11, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File Nos. J6-03-055367, J3-03-066715, FAM ID No. 244661

 

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants A. T. and F. T.)

 

Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue, Minneapolis, MN 55415 (for respondent Hennepin County Human Services Department)

 

Amy R. Freestone, Faegre & Benson, PLLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for guardian ad litem)

 

Christa J. Groshek, Assistant Hennepin County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondents C. T., B.T., and D.E.T.)

 

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellants A.T. and F.T. appeal from an order terminating their parental rights as to their three adopted children.  They argue that there was insufficient evidence to terminate their parental rights and that the court abused its discretion in the admission of evidence.  Because the evidence was sufficient to support the termination of appellants’ parental rights and because appellants have failed to demonstrate any prejudicial evidentiary error, we affirm.

FACTS

            This matter is before us on remand from the Minnesota Supreme Court.  After the district court ordered the termination of A.T.’s and F.T.’s parental rights as to three adopted daughters, the parents appealed.  On appeal, they alleged that the evidence was insufficient to support the order and the district court made numerous evidentiary errors that deprived them of a fair trial.

            We reviewed the sufficiency-of-the-evidence claim and affirmed.  In re Welfare of Children of A.T., No. A04-1614 (Minn. App. June 7, 2005).  But because the appellants failed to preserve the claim of evidentiary error through a posttrial motion, we held that the appellants had waived such error.  See Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) (evidentiary rulings not assigned as erroneous in a posttrial motion are not reviewable on appeal).

            In its remand order of August 16, 2005, the supreme court reversed our holding and directed us to review the evidentiary issues the appellants had raised.  In re Welfare of Children of A.T., No. A04-1614 (Minn. Aug. 16, 2005).  Our opinion follows.[1]

            A.T. is the adoptive father and F.T. the adoptive mother of three girls, B.T., C.T., and D.E.T.  B.T. and C.T. are sisters.  D.E.T. is the appellants’ granddaughter.  After investigating allegations that the appellants had abused the children, respondent Hennepin County Human Services Department (HSD) filed a CHIPS petition on April 3, 2003.  Then on September 30, 2003, HSD filed a petition for an order terminating the appellants’ parental rights as to the three children.  After an eight-day trial during which the court heard the testimony of numerous witnesses, including the three children, and received 55 exhibits, the court granted HSD’s petition.

            At the time of the trial, C.T. was 15 years old, B.T. was 12, and D.E.T. was nearly 8.  Each child had had several out-of-home placements: C.T. nine, B.T. eight, and D.E.T. six.

            The court received evidence that, while living with the appellants, the children were repeatedly physically abused by the appellants themselves or by another child living in the appellants’ household.  The abuse took the form of beatings with belts, sticks, extension cords, switches, fists, and a hunting gun.  The beatings were of sufficient force to cause bleeding, bruises, and scratch marks.  C.T. was hit every day, and B.T. was struck two or three times a week.  Photographs documenting scars and bruises were received in evidence.  A.T. and F.T. administered the beatings as punishment or disciplinary measures, and each knew that the other had engaged in physical abuse of the children.  The appellants often left the children in the charge of T.B., another child living in the household.  The appellants were aware that T.B. also beat C.T. and B.T. and, despite this awareness, continued to allow T.B. to baby-sit the children.

            A.T. and F.T. also beat D.E.T. in the same ways and for the same reasons that they beat the other children.  A medical examination showed scars that D.E.T. said were the result of A.T.’s abuse.

            In addition to the physical abuse, there was evidence at trial that the appellants’ two sons sexually abused C.T. and B.T. through sexual contact, and, as to B.T., at least one instance of sexual penetration.  Although C.T. and B.T. told the appellants of the sexual abuse by the sons, the appellants took no action to halt the conduct and continued to leave the children unsupervised in the home while the sons were present.

            The court’s findings are replete with the children’s descriptions of abuse by the appellants, many of which are corroborated by photographs or medical reports.  Upon these findings, the court concluded that A.T. and F.T. had “substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon them by the parent and child relationship”; that F.T. is palpably unfit to be a parent; that the children suffered egregious harm in the care of the appellants; that the children are neglected and in foster care; and that it is in the children’s best interests that the parental rights of A.T. and F.T. be terminated.

D E C I S I O N

1.         Sufficiency of the evidence

On appeal from an order terminating parental rights, “appellate 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.”  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997) (citation omitted).  On review, “[c]onsiderable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.”  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citation omitted).  The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); Minn. Stat. § 260C.301, subd. 1(b) (2002) (listing nine criteria).  One criterion is sufficient, although the primary consideration in all TPR determinations is the best interests of the child.  Minn. Stat. § 260C.301, subd. 7 (2002).  Courts are required to make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

The court terminated appellants’ parental rights under Minn. Stat. § 260C.301, subds. 1(b)(2), 1(b)(4), 1(b)(6), 1(b)(8) (2002).  Appellants argue that the court lacked clear and convincing evidence and that there was substantial evidence before the court that the children “fabricated the allegations of physical and sexual abuse . . . .”  Minn. Stat. § 260C.301, subd. 1(b)(2), allows the juvenile court to terminate parental rights based on findings that “the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship . . . .”  To support its conclusions, the court found that the children were physically abused by F.T. and that A.T. was aware of the physical abuse and did nothing to prevent it.  C.T. testified to being hit with sticks and extension cords by both F.T. and A.T.  She also testified that F.T. threatened to harm her if she ever told anyone about the abuse.  B.T. testified to receiving frequent “whoopings” in front of A.T., who did not intervene.  The court further found that the children received infrequent medical care.  After her adoption by appellants, C.T. did not have a physical examination between October 4, 2000, and April 29, 2003, despite concerns regarding her fine motor development and a diagnosis of cerebral palsy.  After her adoption in December 2000, B.T. was not seen by a doctor between August 30, 2001, and August 7, 2003.  D.E.T. was not seen between August 30, 2001, and January 28, 2003.  Additionally, the court found that the county had attempted to provide numerous services to the family to correct the conditions within the home; however appellants consistently refused to participate in any services, arguing that to do so would be an admission of guilt. 

Minn. Stat. § 260C.301, subd. 1(b)(4), allows the juvenile court to terminate parental rights based on findings that a parent is “palpably unfit to be a party to the parent and child relationship . . . .”  Based on the testimony of C.T. and B.T., the court made extensive findings regarding the physical and sexual abuse that occurred in the home.  C.T. testified to being hit by F.T. with a gun and with an extension cord that left a mark on her arm.  She further testified that F.T. choked her, leaving scratch marks on her neck, and threatened to throw her down the stairs of the home.  Both B.T. and C.T. testified regarding sexual abuse committed by the appellants’ adult sons, Donnie and Archie.  B.T. testified that Donnie put his hands on the outside of her vagina and attempted to force her to touch his penis.  C.T. testified that Donnie touched her breast and Archie kissed her on the mouth.  Finally, the court found that F.T.’s anger-management issues, the special needs of the children at issue, and appellants’ refusal to participate in the court-ordered case plan provided sufficient evidence to terminate their parental rights.  Specifically, the court stated that “[they] do not have the parenting skills and necessary insights to meet the children’s needs.” 

Appellants argue that the court’s decision with respect to D.E.T. should be reversed.  They emphasize the fact that D.E.T. testified that she wanted to remain with appellants and denied any physical abuse.  But the evidence supports the court’s finding that appellants are palpably unfit parents.  The testimony of B.T. and C.T. establishes a consistent pattern of physical and sexual abuse within the home, providing the court with ample evidence to terminate appellants’ parental rights as to all three children.

Minn. Stat. § 260C.301, subd. 1(b)(6), allows the juvenile court to terminate parental rights based on findings “that a child has experienced egregious harm in the parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being . . . .”  This ground for termination requires that a child has experienced egregious harm in the parent’s care which demonstrates the parent’s grossly inadequate ability to provide minimally sufficient care to any child.  In re Welfare of A.L.F., 579 N.W.2d 152, 155 (Minn. App. 1998).  To support its conclusion, the court found evidence of physical and sexual abuse occurring within the home.  C.T. and B.T. testified about the sexual abuse and that F.T. was aware of the abuse and failed to take any preventive measures.  The girls also testified regarding the physical abuse within the home, and each had witnessed the other being beaten.  Finally, B.T. testified to witnessing physical abuse of D.E.T. by A.T.  The court found the testimony of B.T. and C.T. to be credible, and the credibility determinations of the court are due considerable deference.  L.A.F., 554 N.W.2d at 396.

Minn. Stat. § 260C.301, subd. 1(b)(8), allows the juvenile court to terminate parental rights based on findings that the children are neglected and in foster care.  Here, the evidence demonstrated that C.T. and D.E.T. have been in continuous out-of-home placement since April 2003 and B.T. has been in continuous out-of-home placement since March 2003.  The court further found that appellants refused to participate in any court-ordered services in an attempt to correct the conditions leading to the out-of-home placements.  The court found that, although appellants have regularly visited with D.E.T., they have requested no visitation with C.T. and that B.T. refused visitation.  Lucius. Luther testified that appellants let him know in “vague terms that they were less interested in  [C.T. and B.T.] at that point in time but were primarily interested in regaining custody of [D.E.T.].”  The court stated that appellants had essentially “abandoned” B.T. and C.T.

            Finally, because a child’s best interests is the paramount consideration in proceedings to terminate parental rights, the court may not terminate parental rights if the record does not show that termination is in the child’s best interests, even if one or more of the statutory prerequisites for termination exists.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996).  The best-interests analysis requires the court to balance the child’s interest in preserving the parent-child relationship, the parent’s interest in preserving the parent-child relationship, and any competing interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  The court made nine detailed findings regarding the best interests of the children.  The court determined that the girls had been in continuous out-of-home placements since April 2003.  Given the physical and sexual abuse witnessed and experienced by the girls, the court determined that they would be at continued risk in appellants’ care and custody.  The court further considered the fact that appellants have consistently refused services to remedy the abusive conditions within the home and have failed to address their issues with anger management.  Finally, the court carefully considered the impact on the children of terminating parental rights and determined that termination would allow them to “obtain [permanency] and stability in their lives” and this “outweighs any detriment resulting from severing the parental relationships.”  There is sufficient evidence in the record to support the findings of the court regarding the best interests of the children.

2.         Evidentiary Rulings

            The appellants contend that the district court admitted extensive hearsay, opinion evidence without foundation, and irrelevant documents which also lacked foundation, and permitted improper leading and refreshing the recollection of an incompetent witness.

            The district court enjoys broad discretion in determining the admission or exclusion of evidence, and its rulings will not be reversed except upon a showing of a clear abuse of that discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d. 42, 45-46 (Minn. 1997).  Furthermore, a party is not entitled to a new trial because of improper evidentiary rulings unless the complaining party demonstrates prejudicial error.  Id.

            a.         Hearsay

            The appellants cite 13 statements as hearsay.  They then note the definition of hearsay, the theory upon which hearsay evidence is to be excluded, and various cases upholding the hearsay exclusion.  But they make no statement-by-statement analysis to demonstrate that the hearsay was inadmissible.

            Out-of-court statements are hearsay only if offered to prove the truth of the matters asserted.  Minn. R. Evid. 801(c).  Certain out-of-court statements offered to prove the truth of the matters asserted are nevertheless defined as not hearsay.  Minn. R. Evid. 801(d)(1), (2).  Other out-of-court statements offered for their truth are admissible as exceptions to the hearsay exclusionary rule.  Minn. R. Evid. 803 and 804.  The only thing the appellants have shown is that the 13 items of testimony were out-of-court statements.  They have not shown that the statements were inadmissible.  And at least several statements were admissible over hearsay objections.

            Gina Anderson’s testimony about certain statements was corroborative of C.T.’s testimony and thus not offered for the truth of the matters asserted.  The statements also fit Minn. R. Evid. 801(d)(1)(B) as being helpful in evaluating a witness’s credibility.  D.E.T.’s statement to a shelter nurse was made in connection with a physical-health screen and was admissible under exceptions in Minn. R. Evid. 803(4) or 803(3).  The testimony of Sigrid Finke was offered for corroboration, and the police report received as Exhibit 29 was admissible under 803(8).  There was no hearsay objection to Anne Nuernberg’s testimony; rather, the objection was made on foundational grounds.  Leif Wisti’s statement about the referral for a parenting assessment and the statements of the parenting assessor appear to be inadmissible hearsay.

            Although the court did allow some apparently inadmissible hearsay, the appellants have not shown how that evidence constituted prejudicial error.  C.T. and B.T. gave extensive firsthand testimony about the abuse and neglect to which they and D.E.T. allegedly were subjected.  The court’s findings appear to be based predominantly on that testimony.  Thus, even without the inadmissible hearsay, the clearly admissible evidence based on witnesses’ personal knowledge amply supports the court’s conclusions.

            b.         Opinion

            The appellants argue that there was no proper foundation for opinion testimony of Anne Nuernberg, Leif Wisti, Lucius Luther, Susan Campion, and Laura Ferenci.  “Evidentiary rulings concerning . . . foundation . . . are within the trial court’s sound discretion and will only be reversed when that discretion has been clearly abused.”  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).  We agree that some of the opinions lacked adequate foundation.  Arguably, some of the opinions of Anne Nuernberg and the HSD social workers were within the ambit of both lay and expert opinion under Minn. R. Evid. 701 and 702.  But even as to the opinions admitted without an adequate foundation, the appellants rely principally on the bald assertion that the “opinion testimony was extremely prejudicial to the T.s., especially given the close division of the evidence on the matter of whether or not the abuse occurred.”  Because much of the testimony of B.T. and C.T. was corroborated by objective evidence, we do not view the issue of whether the abuse occurred as being a particularly close one.  Also, the appellants concede that “the juvenile court who heard this case is very experienced in these matters and it’s quite doubtful that Ms. Nuernberg’s opinions were helpful to her.”  Thus, the appellants have not shown how the inadmissible opinion evidence prejudiced them.

            c.         Leading and Refreshing an Incompetent Witness

            The appellants argue that the court improperly allowed the respondents’ attorney to lead social worker Leif Wisti and to improperly refresh his recollection.  In essence, the appellants claim that because Wisti had to refer to his notes frequently the court should have declared him an incompetent witness.  We know of no rule that renders a witness incompetent because he refers to his notes to refresh his recollection.  And the leading that occurred was to enable Wisti to recall his observations.  A witness’s ability to recall facts raises an issue of credibility but does not preclude that witness from testifying if he can refresh his recollection.  Furthermore, the appellants have failed to demonstrate prejudice from Wisti’s testimony.

      Affirmed.