This opinion will be unpublished and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

A05-903
A05-904

 

In the Matter of the Children of:

 

M.P. and M.G., Sr., Parents.

 

Filed ­­­December 27, 2005

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. J8-04-61892

 

Leonardo Castro, 4th District Public Defender, Melissa A. Haley, Assistant Hennepin County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for M.P.)

 

Thomas G. Dunnwald, Dunnwald & Peterson, P.A., 1150E Grain Exchange Building, 412 South Fourth Street, Minneapolis, MN 55415 (for M.G., Sr.)

 

Amy Klobuchar, Hennepin County Attorney, Michelle A. Hatcher, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for Hennepin County Human Services and Public Health Department)

 

Eric S. Rehm, 202 US Bank Building, 301 West Burnsville Parkway, Burnsville, MN 55337 (for Guardian ad Litem)

 

David G. DeSmidt, Suite 309B, 3001 Hennepin Avenue South, Minneapolis, MN 55408 (for A.G., M.G., Jr., and W.G.)

 

Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            In this consolidated appeal, mother challenges the district court order terminating her parental rights of two children and transferring permanent legal and physical custody of the other children, arguing that the court violated her constitutional right to due process, abused its discretion by admitting hearsay evidence, and erred in determining that the evidence was sufficient to support termination of parental rights and transfer of custody.  Father challenges the district court order terminating his parental rights, arguing that the court violated his due process rights and erred in determining that the evidence was sufficient to support termination of parental rights.  Because we conclude that appellants’ due process rights were not violated, the district court did not abuse its discretion in evidentiary rulings, and termination of appellants’ parental rights and transfer of legal and physical custody is supported by clear and convincing evidence and is in the children’s best interests, we affirm. 

FACTS

            Appellant M.P. (mother) and appellant M.G. (father) are the parents of six children: M.G., born March 31, 1990; A.G., born November 10, 1991; W.G., born March 5, 1993; C.G., born January 19, 1999; and twins K.G. and H.G., born March 23, 2001.  Although appellants’ relationship spans more than 17 years, they were never married. 

            In August 2004, the Hennepin County Human Services and Public Health Department (the county) filed a petition to terminate both appellants’ parental rights to their children, or to transfer legal and physical custody of their children to a third party.  The petition alleged that appellants repeatedly refused or neglected to comply with the duties imposed upon them by the parent-child relationship; were palpably unfit to be parties to the parent-child relationship; failed to correct the conditions leading to the children’s placement despite reasonable efforts; and the children were neglected and in foster care.  Minn. Stat. § 260C.301, subds. 1(b)(2),(4),(5), and (8). 

            The family has a significant history of involvement with various county agencies.  In 1997, Stearns County filed a CHIPS petition regarding M.G., A.G., and W.G. The petition alleged domestic violence by father and chemical dependency by mother.  The children were placed out of the home for ten months and then returned to mother’s custody.  One month later, the children were removed due to mother’s chemical dependency.  In 1998, Stearns County juvenile court transferred legal and physical custody of the children to father.

            In April 2001, Hennepin County filed a CHIPS petition regarding K.G. and H.G. based on mother’s chemical dependency.  Following a hearing, the children were removed from mother and placed with father.  Subsequently, legal custody was transferred to father. 

            In April 2002, father assaulted mother at his home in front of all six children.  Father prevented mother from leaving his home; bound her hands and feet and continued to physically assault her over a period of several hours in the presence of some of the children.  During the assault, father asked M.G. if he should kill mother.  Subsequently, father pleaded guilty to second-degree assault and was sentenced to 21 months in prison. 

            As a result of the assault, the county filed a petition to terminate appellants’ parental rights.  The petition alleged mother’s continued chemical abuse and father’s assault as grounds for termination.  Following an emergency placement hearing, the county obtained custody of all six children and placed them in foster care. 

            Mother requested a continuance of the trial on the April 2002 petition for termination of parental rights (TPR) because she had made progress on her case plan.  Mother’s case plan required her to address her chemical dependency, mental health, and domestic violence issues.  When mother provided documentation that she had completed a long-term outpatient chemical dependency program and aftercare, the TPR trial was continued.

            In February 2003, mother filed an alternative petition for transfer of legal custody to herself as the proposed custodian.  In March 2003, M.G. was transferred from the foster home to his paternal grandmother.  The other five children were placed with mother under protective supervision.  The trial on the 2002 TPR petition occurred in January 2004.  Father had been released from prison in December 2003.  Following trial, the court transferred legal custody of all six children back to mother, allowing father visitation and retaining jurisdiction for one year.  The order of February 4, 2004 included a hand-written amendment by the court regarding contact between appellants which stated: “no contact by either” and “any contact by either will be found in contempt.” 

            On February 17, 2004, the county requested an emergency hearing to address contact between appellants in violation of the court order.  At the hearing, the district court found that mother had initiated contact with father by leaving a rose and card on his truck windshield, and that father had been visiting mother at work.  The court also found that father told mother to inform the county that the no-contact order was unnecessarily keeping the family apart.  When she refused, father became verbally abusive and threatening.  In a February 23 order, the district court clarified its previous order:

Any contact between [appellants] regardless of the initiator will constitute a violation of this order.  Contact means in person, by mail, by telephone or voice mail or through third parties.  Contact includes the giving of gifts or presence within three blocks of the other’s residence.  Contact is a violation of this order even if it is consensual.  There are no exceptions.

 

            In June 2004, the county again requested an emergency hearing to address contact between appellants.  Prior to the hearing, mother submitted an affidavit to the court stating that she did not believe that allowing father contact with her and the children was wrong and that, “[i]f I once again would be in a position where you order no contact between [father] and his children with only me standing in between that . . . I will once again fail.”  Mother further stated that “[father] is always going to be the father of my children and I know that unless he dies or is imprisoned he will not go away.”  At the hearing, the district court found that appellants violated the no-contact order and ordered the children be placed in foster care. 

            During the trial on the 2004 petition, the county requested termination of father’s parental rights as to all six children and termination of mother’s parental rights as to K.G. and H.G.  For mother, the county requested transfer of legal and physical custody of C.G. to the foster parents, and reunification with M.G., A.G. and W.G.  M.G., A.G. and W.G. (older children) were separately represented by legal counsel.  The older children requested reunification with mother and opposed termination of parental rights of father; instead they requested specific visitation rights for the three older children.  Alternatively, the older children requested long-term foster care with the current foster parents for A.G. and W.G., and transfer of legal custody to the paternal grandmother for M.G.  The guardian ad litem (GAL) requested termination of parental rights of both parents as to all six children.  The GAL did not object to a transfer of legal custody of M.G. to the paternal grandmother.  Appellants each requested reunification with all six children. 

            At the time of trial, the children had been in out-of-home placement for significant periods of time.  M.G. had been continuously placed outside of the home since April 2002, or 32 months.  A.G., W.G., and C.G. had been in foster care from June 2004 until the time of trial, or seven months.  Prior to reunification with mother in August 2003, A.G., W.G., and C.G. spent sixteen months in out-of-home placement.  K.G. and H.G. spent half of their lives, approximately 23 months, in foster care and were in foster care from June 2004 until the time of trial. 

            Fourteen witnesses testified at trial, including appellants.  Additionally, the district court received 63 documents into evidence.  Mr. Greg Schweda and Ms. Laura Kennedy, two county (child protection) workers testified regarding their ongoing case management of the family and the reunification services provided to the family.  Tommy Turner, a custodian of records for the county, introduced reports from services providers that he received for the family’s file.  Various witnesses testified regarding appellants’ history of domestic violence, the appellants’ repeated violations of the no-contact order, and the needs of the children and the suitability of foster care and relative placements. 

The county introduced various documents from its records.  Mother objected to play therapist reports regarding K.G. and H.G. on the basis of hearsay.  The district court overruled the objection and allowed the documents to be received as business records through the testimony of Turner.

            Mother testified regarding her compliance with her case plan, her maintenance of sobriety, her attachment to her children, and her commitment to ending all contact with father.  Mother admitted her ongoing chemical dependency problems on cross-examination.  Father testified regarding his participation in services, stability, and commitment to the children.  He admitted to the extensive history of domestic violence, including the assault incident of 2002.  Both appellants admitted to violating the no-contact orders of the district court.  And mother testified to allowing father to visit the children in her home.

            Following trial, the district court entered findings of fact, conclusions of law, and an order terminating both appellants’ parental rights to K.G. and H.G., and father’s rights to A.G., W.G., and C.G.  The district court transferred legal and physical custody of A.G., W.G., and C.G. to foster parents, and transferred legal and physical custody of M.G. to his paternal grandmother.  Mother was allowed visitation with M.G., A.G., W.G., and C.G.

            In March 2005, both appellants filed motions for a new trial arguing, inter alia, that the court failed to make adequate findings regarding the proposed custodians.  Appellants argued that the district court relied on domestic abuse research that was not in evidence.  Father argued that he was denied a fair trial. 

The district court held a hearing to address the parties’ motions, and permitted the record to be supplemented with evidence regarding whether the foster parents were willing to accept the children on a permanent basis.  Subsequently, affidavits of the foster parents were received.  Appellants did not file any controverting affidavits.  Following denial of their motions for new trial, both parties appealed. 

D E C I S I O N

I.

First, appellants argue that the district court violated their constitutional rights to due process under the United States Constitution and under Minnesota Constitution, art. I, § 7.  Parents have fundamental rights to enjoy the custody and companionship of their children.  In re Welfare of Rosenbloom, 266 N.W.2d 888, 889 (Minn. 1978).  Because of the magnitude of the rights involved in a TPR proceeding, strict adherence to due process is imperative.  Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981).  Due process requires reasonable notice, a timely opportunity for a hearing, the right to counsel, the opportunity to present evidence, the right to an impartial decision-maker, and the right to a reasonable decision based solely on the record.  Humenansky v. Minnesota Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). 

1.         Reasonable Decision Based Solely on the Record

Appellants argue that they were denied a “reasonable decision based solely on the record,” because a district court finding referenced a website outside the record.  See id.  Respondent argues that appellants failed to raise due process violations at the district court and, thus, are barred from raising due process arguments on appeal. 

This court generally considers only those issues that the record shows were presented and considered by the district court in deciding the matter before it.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Even in the context of TPR, failure to raise constitutional issues in the district court precludes the issues from being raised on appeal.  In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999).  Appellants did not raise due process violations in the district court; therefore, this court need not consider the constitutional argument.  Nonetheless, we will review the due process issues because of the interests at stake. 

The district court found:  “[r]esearch indicates that the point of separation and the abuser’s refusal to accept the end of the relationship places the woman at increased risk, making this an inopportune time for reunification with her children.”  On appeal, appellants have the burden of establishing that the district court abused its discretion and that appellants were thereby prejudiced.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).  The finding was not properly received into evidence; therefore, the court abused its discretion.  But we find no evidence of prejudice.  The website was mentioned in one finding among 33 pages of findings.  The record contains 63 documents and the testimony of 14 witnesses, spanning nine volumes of transcripts.  Based on our review of the record, the district court’s decision is supported by the record and appellants’ due process rights to a reasonable decision based on the record were not violated. 

2.         Reasonable Notice

Mother argues denial of due process because she was not provided “reasonable notice” that the TPR trial could result in transfer of legal and physical custody of her children.  But the record indicates that mother received notice of this possibility.  The petition filed by the county requested that the court terminate parental rights “unless a relative or kin can be identified who is able and desires to become the legal custodian of the children.”  The record reflects that the parties discussed the possibility of transfer of custody prior to trial.  During opening statements, other parties offered dispositional recommendations, including transfer of legal and physical custody.  Neither appellant argued that the recommendation was a surprise, or that the case be continued due to lack of notice.  

Mother had counsel throughout the proceedings, and had the opportunity to cross-examine and call witnesses to refute testimony regarding the suitability of the proposed custodians.  Also, the district court order of March 2005 provided the parties with the opportunity to submit additional evidence regarding the transfer of custody to the proposed custodians.  Mother failed to avail herself of that opportunity.  Based on the record, mother’s due process right to reasonable notice was not violated. 

3.         Impartial Decision-Maker

Father argues that he was denied his due process right to an “impartial decision-maker.” Humenansky, 525 N.W.2d at 565.  Father contends that testimony on the violation of the no contact order by appellants improperly shifted the focus of the proceeding away from the best interests of the children.

But the abusive nature of the appellants’ relationship is clearly relevant in a TPR proceeding.  It was reasonable for the district court to consider the effect that witnessing domestic violence and the dynamics of an abusive relationship had on the children.  It was this disregard for these effects, as demonstrated by appellants’ continued unauthorized contact, which prompted the court to remove the children from mother’s home.  The record indicates that the contact affected the children, thus, appellants’ relationship was an appropriate consideration for the court. 

II.

Mother argues that the district court abused its discretion by admitting written reports of a play therapist regarding K.G. and H.G.  Mother contends that the reports are inadmissible hearsay and respondent did not offer a witness qualified to introduce the reports as business records under Minn. R. Evid. 803(6). 

Absent an erroneous interpretation of the law, whether to admit or exclude evidence is a question within the district court’s broad discretion.  Kroning, 567 N.W.2d at 45-46.  A new trial will be granted only if the complaining party demonstrates prejudicial error.  Id. at 46.

Although generally inadmissible, hearsay statements may be admissible under the business-records exception.  Minn. R. Evid. 803; see also In re Welfare of Brown, 296 N.W.2d 430, 435 (Minn. 1980).  Records are admissible under the business-records exception if the custodian or another qualified witness can testify that the records were (1) made by a person with personal knowledge of the matters recorded and a business duty to report accurately or from information transmitted by a person with such knowledge, (2) made at or near the time of the recorded event, (3) kept in the course of a regularly conducted business activity, and (4) made as part of the regular practice of that business activity.  Minn. R. Evid. 803(6).  

Here, the play therapist’s reports were introduced through the testimony of Turner, a twenty-year employee of the county assigned to K.G. and H.G who also maintained a case file on the family.  Turner testified to all four factors necessary to introduce the documents as business records.  The reports were prepared by a therapist who provides play therapy for the two children; the therapist was expected to provide reports as a regular practice; the reports are prepared shortly after the assessment or therapy is conducted; and the reports are maintained as part of his official duties as part of a regular practice of his department.  And Turner is familiar with how services providers used by the department compile their documents.  See Nat’l Tea Co., Inc. v. Tyler Refrigeration Co., 339 N.W.2d 59, 61 (Minn. 1983) (“other qualified witness” given broadest interpretation and need not be employee of entity so long as witness understands the system).  

Mother further argues that the reports are inadmissible because they were prepared in anticipation of litigation and contained the author’s opinion on an ultimate issue, i.e., whether TPR was in the best interests of K.G. and H.G.  Minn. R. Evid. 803(6).  We disagree.

In determining whether a document was prepared for litigation, a district court must consider when and by whom the report was made and the purpose of the report.  Nat’l Tea, 339 N.W.2d at 62.  Here, Turner testified that he received the report regardless of the trial, and that nothing in the report indicated that it was prepared for trial.  The court credited this testimony, stating “[t]here’s nothing to indicate that it was done in preparation for litigation that I have heard.”

Business records qualify for admission under the business-records exception even if they involve an ultimate issue.  See Minn. R. Evid. 803(6).  “But a business record containing an opinion on an ultimate issue is admissible only if the witness offering the opinion is available to permit the fact-finder to test the weight and credibility of the opinion through cross-examination.”  In re Simon, 662 N.W.2d 155, 161 (Minn. App. 2003) (emphasis added).  Here, the therapist’s reports contain opinions and diagnoses but do not address an ultimate issue, i.e., whether one of the statutory grounds exist for termination, and whether termination is in the twins’ best interests.  Instead, the reports focus on the twins’ special needs and how disruptions would be harmful.  

Because the record supports the determination that proper foundation was laid, the reports were not made in preparation for litigation and did not include an opinion on an ultimate issue, the district court did not abuse its discretion in admitting the reports. 

III.

Third, appellants argue that the evidence was insufficient to support the order terminating their parental rights and transferring legal and physical custody.  On appeal from a termination of parental rights or transfer of legal and physical custody, “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); see also A.R.G.-B., 551 N.W.2d at 261.  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).  While this court gives deference to the district court’s decision, it will closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); A.R.G.-B., 551 N.W.2d at 261. 

            District courts may order TPR or other permanency options on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b).  Minn. Stat. § 260C.201, subd. 11(c) (2004).  The petitioner must prove one or more of the statutory criteria 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).  Because a child’s best interests are the paramount consideration in TPR proceedings, the district court may not terminate parental rights unless it is in the child’s best interests, even if one or more of the statutory criteria for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 723 (Minn. 1998).  

The district court found that three statutory grounds existed to support the termination of both appellants’ parental rights, and that an additional factor supported termination of father’s parental rights.  Only one ground must be proven for termination to be ordered.  In re Welfare of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  Here, the district court found by clear and convincing evidence that appellants “repeatedly refused or neglected to comply with the duties imposed upon [appellants] by the parent and child relationship.”  Minn. Stat. § 260C.301, subd. 1(b)(2).  These duties include “providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child’s physical, mental, or emotional health and development.”  Id.  The repeated failure to comply with these duties must persist even after the county made reasonable efforts to correct the conditions or it is shown that reasonable efforts would be futile.  Id.

            Mother

Mother contends that the court relied solely on her contact with father as the basis for terminating her parental rights and transferring legal and physical custody.  Mother argues that mere unauthorized contact is insufficient to demonstrate non-compliance with the duties of the parent-child relationship. 

The district court found that the contact between appellants, in direct violation of no-contact orders, indicated a failure to comply with the duty to exercise the “care and control necessary for the [children]’s physical, mental, or emotional health and development.”  See id.  The court found that the contact was harmful to the children’s emotional health because of their prior exposure to domestic violence. 

The record supports the court’s findings.  The child protection worker testified that mother admitted to ongoing contact with father despite the no-contact orders, including inviting him into her home several times to see the children.  Mother admitted that she spoke with father on the phone and met him “a dozen [times]” since the children were removed from her home.  And the children were aware that the contact was inappropriate and were asked to keep the contact a secret.  The GAL testified to his concern that, if mother had custody, she would allow father into her life and subject the children to further violence. 

The record also supports the court’s finding that mother’s failure to comply with the duties of the parent-child relationship persisted despite the county’s reasonable efforts at reunification.  See Minn. Stat. § 260C.301, subd. 1(b)(2).  In determining whether reasonable efforts have been made, the court considers whether the services were (1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; and (5) consistent and timely.  Minn. Stat. § 260.012(a) (2004). 

The district court found that the county made reasonable efforts to offer services to mother and her children, including foster care, visitation, chemical health treatment, urinanalysis, sober housing, individual therapeutic services, parenting assessments, African American Family Services, domestic abuse counseling, and ongoing case management services.  The services met the family’s needs by addressing the obstacles to reunification, including chemical dependency, mental and emotional health issues, and domestic abuse.  The efforts were culturally appropriate with service provision provided in part through African American Family Services and the M.O.V.E. program. 

Father

Father argues that unauthorized contact alone does not show non-compliance with the duties of the parent-child relationship.  But the district court found that appellants’ contact indicated a failure to exercise the “care and control necessary for the [children]’s physical, mental, or emotional health and development,” and that the contact was harmful to the children’s emotional health because of father’s 2002 assault of mother.

The record supports the district court’s findings.  Father admitted that shortly before the TPR trial, he pleaded guilty to violating an order for protection.  The director of father’s anger management group and a co-worker testified that father admitted violating the no-contact orders many times after the removal of the children from mother’s home.  A child protection worker testified to his concern that father would not leave mother alone.  Father admitted to subjecting the children to verbal and physical abuse of mother.

The district court also found that father’s failure to comply with the duties of the parent-child relationship persisted despite the county’s reasonable efforts. These services included supervised visitation, chemical health assessment, urinalysis, African American Family Services, domestic abuse services, and anger management services.  The court’s findings regarding reasonable efforts are supported by the record.

Because we conclude termination was appropriate based on appellants’ repeated refusal to comply with the duties imposed upon them by the parent-child relationship, we do not address the remaining grounds for termination cited by the district court.   

IV.

The district court concluded that termination of appellants’ parental rights or transfer of legal and physical was in the children’s best interests.  To determine a child’s best interests requires a careful balancing of 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).  “Competing interests include such things as a stable environment, health considerations and the child’s preferences.”  Id.  “Where the interests of parent and child conflict, the interests of the child are paramount.”  Minn. Stat. § 260C.301, subd. 7. 

            Mother

Mother argues that reunification is in the best interests of the children.  But the district court found that termination of parental rights was in the best interests of K.G. and H.G. due to their special needs relating to physical, emotional, and mental health, and lack of attachment to mother.  The court also found that neither reunification or termination of parental rights was in the best interests of the other children.  Although there is sincere love and attachment between the children and mother, the court concluded that mother is unable to appropriately parent, or provide necessary security and stability to the children due to her continued contact with father.  The court found that a transfer of legal and physical custody of the other children was in their best interests.  Based on the record, the district court’s conclusions are supported by clear and convincing evidence. 

Father

Father argues that the district court’s best interest analysis is conclusory.  But the district court made extensive findings that terminating father’s parental rights was in the children’s best interests.  The court found that the best interests of A.G., W.G., and C.G. were served by termination of father’s parental rights because of their fear of father, his history of violent and erratic behavior, and his inability to appropriately parent within the foreseeable future.  The court’s findings regarding termination as to K.G. and H.G. center on their special needs and the lack of attachment to father.  Based on the record, the court’s conclusion that termination is in the best interests of the children is supported by clear and convincing evidence. 

Affirmed.