This opinion will be unpublished and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

A05-1669
A05-1712

In the Matter of the Welfare of the

Children of: C. E. C. and J. B. C., Parents.

Filed February 14, 2006

Affirmed

Halbrooks, Judge

Itasca County District Court

File No. 31-JV-05-958

Ellen E. Tholen, 525 East Itasca Street, Suite 103, Grand Rapids, MN 55744 (for appellant C. E. C.)

Winton J. Mason, 730 Northeast 7th Avenue, Grand Rapids, MN 55744 (for appellant J. B. C.)

John J. Muhar, Itasca County Attorney, Mary J. Evenhouse, Assistant County Attorney, 123 Northeast 4th Street, Grand Rapids, MN 55744 (for respondent Itasca County Health & Human Services)

Judy Blackmarr, 102 Northeast 3rd Street, Suite 200G, Grand Rapids, MN 55744 (guardian ad litem)

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

In this consolidated termination-of-parental-rights matter, appellants argue that (1) the district court impermissibly admitted hearsay and violated Minn. R. Juv. Prot. P. 3.02 by taking judicial notice of the entire CHIPS file; (2) the district court should have granted appellants a continuance; (3) the record lacks sufficient evidence that A.C. suffered egregious harm that was of the nature, duration, or chronicity to indicate appellants’ lack of concern for A.C.’s well-being; (4) the record does not support the conclusions that appellants are palpably unfit parents and that termination is in the best interests of the child; and (5) appellant C.E.C. received ineffective assistance of counsel in the CHIPS proceedings. Because the district court’s findings and conclusions are supported by substantial evidence in the record and are not clearly erroneous and because there is clear and convincing evidence of one or more statutory grounds for termination, we affirm the district court’s decision to terminate appellants’ parental rights.

FACTS

Appellants C.E.C. and J.B.C. are the parents of A.C., age 3, and R.C., age 7. On the evening of September 21, 2004, appellant C.E.C. noticed that A.C. was bleeding vaginally; appellants brought A.C. to a medical clinic the next day. Examination by a physician revealed bruising on A.C.’s ears, across her fingernails on both hands, and on her inner thigh, accompanied by swelling, redness, abrasions, bleeding, and significant bruising in her genital area. A second examination performed by specialists at St. Paul Children’s Hospital also revealed bruising to A.C.’s buttocks as well as tearing and lacerations in her genital area. Physicians at Children’s Hospital also found four healing fractures, two in each of A.C.’s arms, which were not accounted for and were determined to have occurred at a different time than the sexual trauma. R.C. was examined a few days later, but there was no evidence of sexual or physical abuse.

On September 24, 2004, Itasca County Health and Human Services (Itasca County) filed a CHIPS petition on behalf of A.C. and R.C. In January 2005, the district court adjudicated the children as CHIPS, finding that “the sexual abuse and physical abuse of [A.C.] was perpetrated upon the child by one or both of her parents.” C.E.C. appealed from the CHIPS order, but this court dismissed the appeal on the ground that it was untimely. In re Welfare of the Children of: C. E. C. and J. B. C., Parents, Nos. A05-1669, A05-1712 (Minn. App. Oct. 18, 2005) (order).

In March 2005, Itasca County filed a petition for the termination of C.E.C.’s and J.B.C.’s parental rights to A.C. and R.C. The district court issued an order, finding that the children had been subjected to egregious harm and absolving Itasca County of its duty to make reasonable reunification and rehabilitation efforts.

Psychological evaluators Jacqueline MacPherson, Ph.D., and Christos Petsoulis each examined both C.E.C. and J.B.C. Both concluded that appellants have poor insight into their children’s needs and into the effects of the abuse, that it would not be safe for the children to return to their care, and that neither appellant is amenable to treatment. The guardian ad litem also opined that the children would not be safe with appellants.

Appellants opposed the petition, but the district court terminated their rights to both children, concluding that appellants are palpably unfit to be parties to the parent-child relationship, that both children suffered egregious harm, and that returning to the appellants’ home would not serve the children’s best interests.

In support of its finding of egregious harm, the district court cited the evidence of A.C.’s sexual trauma and appellants’ reactions to it. The finding of palpable unfitness was bolstered by substantial evidence supporting the court’s conclusions that appellants are “unable to appropriately care for the needs of the children” and that they “do not have the ability to engage in constructive efforts to improve their parenting.” The court’s conclusion that appellants “are not amenable to treatment” is based on the same conclusion reached by both psychological evaluators and the guardian ad litem.

Appellants moved for amended findings and a new trial. After finding that the bulk of appellants’ assignments of error lacked merit, the district court amended its decision that R.C. suffered egregious harm and terminated appellants’ rights to R.C. on the basis of palpable unfitness alone. The remainder of the motions were denied.

Both C.E.C. and J.B.C. appealed, and this court consolidated the appeals. In re Welfare of the Children of: C. E. C. and J. B. C., Parents, Nos. A05-1669, A05-1712 (Minn. App. Sept. 6, 2005) (order). Noting that appellants sought to appeal issues related to the CHIPS proceeding in the instant appeal, this court questioned jurisdiction and eventually dismissed the parts of the appeals that challenged the CHIPS order. In re Welfare of the Children of: C. E. C. and J. B. C., Parents, Nos. A05-1669, A05-1712 (Minn. App. Oct. 18, 2005) (order).

D E C I S I O N

On appeal from a termination of 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). 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). A reviewing court “exercises great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result.” In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

District courts may terminate parental rights on the basis of one or more of nine statutory criteria. Minn. Stat. § 260C.301, subd. 1(b) (2004). Although the petitioner need only prove one criterion, the primary consideration in any termination proceeding is the best interests of the child. Id., subd. 7 (2004). The burden of proof in termination proceedings is on the county. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

This court will affirm a termination of parental rights “as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child’s best interests.” In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004). We carefully inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

Appellants argue that the district court violated the scope of judicial notice allowed by Minn. R. Juv. Prot. P. 3.02 by taking judicial notice of the entire CHIPS file, and, as a result, admitted and relied on documents and statements that contain inadmissible hearsay. Appellants also contend that the district court erred by admitting other hearsay documents and testimony.

Minn. R. Juv. Prot. P. 3.02, subd. 3, provides that the district court “may take judicial notice only of findings of fact and court orders in the juvenile protection court file and in any other proceeding in any other court file involving the child or the child’s parent or legal custodian.” At trial, the district court granted Itasca County’s motion to take judicial notice of the findings and orders in the juvenile-protection and termination-of-parental-rights files. The district court’s June 2005 order memorialized that decision. The decision to take judicial notice was explained in the court’s July 2005 order, where the court admitted that it had misspoken by stating “that it would take judicial notice ‘of the exhibits’ from the CHIPS proceeding.” The district court clarified that it had only taken judicial notice of the findings of fact and orders in the child-protection and termination files. Thus, appellants’ arguments concerning the scope of the district court’s judicial notice lacks merit.

In the memorandum accompanying its July 2005 order, the district court stated that “[n]one of the evidence, as set forth in the findings of fact, was based upon inadmissible hearsay,” explaining that many of the challenged statements were actually statements of party-opponents and that other hearsay was admitted under an exception to the hearsay rules.

While appellants list numerous examples of alleged hearsay that they claim the district court erroneously admitted, they do not support the assertions with any authority beyond the argument that they were deprived of their right to prepare and cross-examine witnesses. An assignment of error that is based on mere assertion and not supported by argument or authority is waived unless prejudical error is obvious upon mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). And absent an erroneous interpretation of the law, the question of whether to admit evidence is within the district court’s discretion. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).

One of appellants’ hearsay arguments concerns the admissibility of Itasca County’s case notes. But we conclude that those notes were properly admitted as records of regularly conducted business activity. Minn. R. Evid. 803(6). Appellants also assign error to the admission of reports by the psychological evaluators, the social worker, and the guardian ad litem, who allegedly relied on hearsay in preparing their reports. But appellants fail to produce legal authority for their position.

Further, several of the examples of alleged hearsay were not objected to as hearsay during trial. And, as the district court noted, some of the alleged hearsay statements were not hearsay because they were neither offered nor received to prove the truth of the matter asserted. See Minn. R. Evid. 801(c) (a statement is hearsay if it is made outside of court and is offered for the truth of what it asserts).

An appellant bears the burden of demonstrating that an error is prejudicial. Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993). The district court acted within its discretion in these evidentiary rulings. But even if the district court did erroneously admit hearsay, appellants have not demonstrated that the evidentiary error resulted in prejudice that would warrant reversal.

II.

Appellants argue that the district court abused its discretion by denying appellants a continuance. At the beginning of trial, appellants requested a continuance so that they would have more time to prepare to respond to evidence concerning the cause of A.C.’s injuries, the conflict of interest concerning appellants’ representation at the initial admit/deny hearing, and evidence of appellants’ reaction to discovery of the abuse. The district court denied the continuance, explaining that it would not “relitigate things that have already been determined,” and that it was in the best interests of the children to proceed with the matter, particularly because the case could not have been rescheduled within the required 90 days from the date of appellants’ denial of the statutory grounds underlying the termination proceeding. Minn. R. Juv. Prot. P. 39.02, subd. 2(b).

“The granting of a continuance is a matter within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion.” Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). Here, the district court denied the motion for a continuance for the stated reasons and because appellants had ample time to prepare. The district court’s decision was consistent with Minn. R. Juv. Prot. P. 39.02, subd. 2(b), which mandates that termination proceedings be completed within 90 days of the date of the parents’ denial of the statutory grounds for termination. The district court did not abuse its discretion in denying appellants’ motion for a continuance.

III.

Appellants argue that the district court clearly erred by finding that A.C.’s injury was of a nature that demonstrated a lack of regard for A.C.’s well-being. In its memorandum accompanying the June 2005 order, the district court listed the substantial evidence supporting its determination “that [A.C.] suffered egregious harm while in her parents’ care, that [R.C.] is at serious risk of harm while in her parents’ care, and that the harm was of such a serious nature that it demonstrates the parents’ lack of regard for their children’s well-being.” Because there is substantial evidence supporting the district court’s findings, appellants’ arguments lack merit.

Appellant J.B.C.

While admitting that A.C.’s injury was serious, appellant J.B.C. argues that it was not of the nature that indicates a lack of regard for the child’s well-being because “[i]t was not in the nature of permanent injury” and that “[i]t was an injury from which the child could quickly recover.” That point of view precisely demonstrates one of the reasons that the district court articulated in terminating appellants’ parental rights.

Appellant J.B.C. contends that the evidence showed that A.C. received medical attention for her arm fractures before suffering the sexual trauma and that the district court would not allow mental-health evidence about the woman that appellants allege committed the sexual abuse. But substantial evidence supports the district court’s findings concerning appellant J.B.C.’s lack of regard for the children’s well-being, including his lack of concern about the welfare of the children, his lack of concern about or empathy for the effects of A.C.’s abuse, his inability or lack of desire to learn about the devastating effects of that abuse, and his minimization of the abuse.

Appellant C.E.C.

Appellant C.E.C. asserts the same argument that the evidence showed that A.C. was brought in for medical attention for her arm fractures before she suffered the sexual trauma and that the court would not allow mental-health evidence about the woman appellants allege committed the sexual abuse. She further argues that there was evidence that her poor judgment relating to A.C.’s abuse may have been caused by her being overwhelmed and in shock and that the fact that she reported the abuse demonstrates that she has regard for her children’s well-being.

But we conclude that substantial evidence supports the district court’s findings concerning appellant C.E.C.’s lack of regard for the children’s well-being, including her lack of concern about the welfare of the children, her lack of concern about or empathy for the effects of A.C.’s abuse, her inability or lack of desire to learn about the devastating effects of that abuse, and her minimization of the abuse.

Appellants essentially argue that the existence of some evidence supporting their positions should have resulted in different factual findings. But that argument is unpersuasive because it fails to recognize the role that the district court’s credibility determinations play in its ultimate decisions and otherwise misunderstands the law. See Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979); Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating “[t]hat the record might support findings other than those made by the trial court does not show that the court’s findings are defective”). Here, the district court’s findings are supported by substantial evidence, and there is no indication that the district court’s evaluation of certain testimony and evidence constituted an abuse of discretion.

IV.

Appellants challenge the district court’s determination that they are palpably unfit to be parties to the parent-child relationship. Parental rights may be terminated based on clear and convincing evidence that a parent is “palpably unfit” when a parent demonstrates

a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.

Minn. Stat. § 260C.301, subd. 1(b)(4); see also In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991).

In its memorandum, the district court stated:

This Court is aware that “clear and convincing evidence” is a high burden of proof, but the evidence in this case meets that burden. The psychologists, the guardian ad litem, the social worker, and this Court all reached the same general conclusions: that the children have suffered serious harm, the parents are responsible for this harm, returning the children to the parents would expose them to the risk of future harm and the parents are not amenable to treatment.

Appellants have not presented evidence challenging the district court’s findings about the conditions that render appellants unable to care appropriately for the needs of their children. Thus, as the district court correctly noted, the palpable unfitness issue here boils down to whether each individual appellant has “the ability to engage in ‘constructive efforts to improve [his or her] ability to parent.’” See In re Welfare of A.V., 593 N.W.2d 720, 722 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).

Appellant J.B.C.

Appellant J.B.C. fails to present any meaningful evidence or argument in support of his assignment of error on palpable unfitness.

Appellant C.E.C.

Appellant C.E.C. argues that the evidence demonstrates that she is amenable to treatment. In support, C.E.C. cites to the testimony of therapist Cathy McDonald, who testified that appellant had attended three and one-half therapy sessions and that she believed that appellant could improve her parenting skills. But the district court found that McDonald was not qualified to opine as to appellant C.E.C.’s amenability to sex-related counseling or therapy. And McDonald testified that she did not know whether appellant C.E.C. could be counseled and gain enough parenting skills to have the children placed safely back with her in the foreseeable future.

The district court assigned more weight to the reports and testimony of the guardian ad litem and the psychological evaluators. Based on her interactions with appellants, the district court’s findings in the CHIPS order, the evaluators’ conclusions, and the children’s medical records, the guardian ad litem concluded that termination of appellants’ parental rights is in the children’s best interests. Both psychological evaluators determined that appellants are not amenable to treatment. Dr. MacPherson concluded that it would not be safe for A.C. or R.C. to be in appellants’ care and custody; Petsoulis concluded that appellants have a limited ability to protect their children from further abuse and that it would be a risk for the children to return to their care.

The trial court is responsible for evaluating witness credibility. Roy Matson Truck Lines, Inc.,277 N.W.2d at 362. The district court’s conclusion that appellants are palpably unfit to be parties to the parent-child relationship is supported by substantial evidence, and we will not disturb it on appeal.

Appellant C.E.C. contends that the district court erred by determining that termination is in the best interests of the children, arguing that “[t]here was no evidence concerning the paramount consideration of the best interests of the children and how a termination will affect them.” The Minnesota Supreme Court has long recognized the fundamental rights of parents to enjoy the custody and companionship of their children, maintaining that a parent should not be deprived of these rights “except for grave and weighty reasons.” In re Welfare of Rosenbloom, 266 N.W.2d 888, 889 (Minn. 1978) (quotation omitted). But parental rights are not absolute and should not be enforced to the detriment of the child’s welfare and happiness. In re Welfare of P.T. & A.T., 657 N.W.2d 577, 583 (Minn. App. 2003). “The right of parentage is in the nature of a trust and is subject to parents’ correlative duty to protect and care for the child.” Id. (quotation omitted). Moreover, in any proceeding to terminate parental rights, the best interests of the child must be the paramount consideration.” Minn. Stat. § 260C.301, subd. 7.

Three factors guide our review of the district court’s determination that termination is in the best interests of the children: “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any competing interest of the child.” In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). Competing interests include emotional and psychological stability, In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986), and the child’s health needs and interest in a stable, safe environment, In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).

The district court concluded that “[t]he children’s best interests would not be served by returning them to their parents’ home.” While the district court recognized the bond and attachment that exists between appellants and the children, it also recognized the superior importance of the children’s interest in living in a safe and secure environment. In support of its conclusion, the district court cited the extensive and serious injuries suffered by A.C., appellants’ responses to the injuries (including their lack of empathy for A.C.), their lack of understanding about how to protect the children, their lack of amenability to treatment, and their inability or unwillingness to correct the conditions that led to the children being placed out of the home.

Appellant C.E.C. argues that the evidence does not support the district court’s findings concerning the children’s best interests and that her “lack of education, ignorance and naiveté” are not a sufficient basis for termination given the “ample” evidence that she is amenable to treatment and that her poor judgment can be corrected by education and therapy. But, as discussed above, the district court did not clearly err by determining that appellant C.E.C. is not amenable to treatment.

Appellants both argue that termination of their parental rights was premature. They contend that the district court should have extended the period for determining permanency. But in weighing the children’s interests against appellants’ interests, the children’s immediate need for a safe and stable permanent home outweighs appellants’ desire to provide them with a future home. See, e.g., In re Welfare of Udstuen, 349 N.W.2d 300, 305 (Minn. App. 1984). Unnecessary delay is antithetical to both the rules governing the timing of termination proceedings and the basic notion that six months can be a lifetime in the eyes of a child. See Minn. R. Juv. Prot. P. 39.02, subd. 2(b) (mandating completion of termination proceedings within 90 days of denial of the statutory grounds for termination).

In the memorandum accompanying its order, the district court set forth the correct standard for consideration of the children’s best interests, concluding that the children’s interest in permanent placement in a safe and secure environment outweighed appellants’ interest in maintaining the parent-child relationship. We do not find error in the district court’s well-supported findings concerning the children’s best interests.

VI.

Finally, appellant C.E.C. argues that she received ineffective assistance of counsel in the CHIPS proceedings. We do not address this issue, as the portion of this appeal challenging the CHIPS order and raising issues from the CHIPS proceeding have already been dismissed. In re Welfare of the Children of: C. E. C. and J. B. C., Parents, Nos. A05-1669, A05-1712 (Minn. App. Oct. 18, 2005) (order).

Affirmed.