A05-2348

In the Matter of the Welfare of the

Children of: V.H. and E.S., Jr., Parents.

Filed June 20, 2006

Affirmed

Worke, Judge

Hennepin County District Court

File No. 203932/JX-05-050581

Leonardo Castro, Chief Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants E.S. and V.H.)

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

Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from denial of motion for a new trial following the termination of their parental rights, appellants argue that the district court (1) should have granted a continuance based on late disclosure of exhibits and the fact that a settlement collapsed the day before trial; (2) failed to require proper foundation for exhibits admitted as business records, admitted irrelevant and prejudicial exhibits, and allowed leading questions; and (3) should not have terminated their parental rights. We affirm.

D E C I S I O N

Continuance

Appellants first argue that their due-process right to fair proceedings was violated when the district court denied their motion for a continuance that was necessary because of late disclosure of exhibits and the fact that relatives were not able to accept transfer of the children. A district court’s continuance decision is reversed only if the district court clearly abused its discretion. Dunshee v. Douglas,255 N.W.2d 42, 45 (Minn. 1977).

“A trial regarding a termination of parental rights matter shall commence within ninety (90) days from the date of the filing of the petition.” Minn. R. Juv. Prot. P. 39.02, subd. 1(c). A district court may continue a trial “for accumulation or presentation of evidence or witnesses, to protect the rights of a party, or for other good cause shown, so long as the permanency time requirements set forth in [the] rules are not delayed.” Minn. R. Juv. Prot. P. 39.02, subd. 2(a). In deciding whether to grant a continuance, a district court considers whether the moving party diligently sought discovery and whether seeking the information is a “fishing expedition[.]” Rice v. Perl,320 N.W.2d 407, 412 (Minn. 1982).

Here, appellants fail to show how a continuance would have helped their case. This is especially true because appellants concede that their case is not strong on the merits. While we do not condone or take lightly the disclosure of exhibits mere days before trial was to begin, a number of facts in this case show that the district court did not abuse its discretion. First, although appellant-mother’s counsel argues that she had been assigned the case three weeks prior to trial and did not have time to prepare, a presumption existed against appellant-mother because legal and physical custody had previously been transferred to appellant-father. Second, the day before trial, appellant-mother’s counsel chose to attend a class rather than prepare for trial. Third, there were two trial dates separated by more than 20 days in which to review the exhibits. Fourth, there was not a pretrial scheduling order, and appellants’ counsel did not request discovery. Appellants’ counsel indicated that normally a discovery request is not made because Hennepin County Child Protection Services (Department) permits counsel to copy files; appellants, however, did not take advantage of that opportunity. Finally, the children had been in out-of-home placement since August 2004, and a continuance would have done nothing more than prolong an already lengthy proceeding. The district court did not abuse its discretion by denying appellants’ motion for a continuance.

Evidence

Appellants next argue that the district court admitted documents into evidence without requiring foundation, admitted hearsay evidence, permitted leading examination, and admitted prejudicial and irrelevant evidence. Absent an erroneous interpretation of the law, whether to admit evidence is a question within the district court’s broad discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). A new trial will be granted only if the complaining party demonstrates prejudicial error. Id. at 46.

Appellants rely on In re Child of Simon, 662 N.W.2d 155 (Minn. App. 2003), to support their argument that the district court should not have admitted certain documents. The court in Simon held that a social worker failed to lay the necessary foundation for certain documents to be admitted under the business-records exception to the rule against hearsay. Simon, 662 N.W.2d at 160-61. But Simon did not establish a new rule of law. Rather, Simon demonstrates that the decision to admit evidence is highly fact-specific and shows that questions of foundation depend on the circumstances of each case. See Benson v. N. Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990) (stating that “we reiterate that by their very nature, evidentiary rules demand a case by case analysis”).
Moreover, the supreme court has held that the business-records exception to the rule against hearsay applies to documents in a social worker’s file, such as reports from a psychologist, a doctor, a social worker, a counselor, a teacher, a psychiatrist, and a speech pathologist. See In re Welfare of Brown,296 N.W.2d 430, 433-35 (Minn. 1980) (holding that these documents were properly received as business records in a proceeding to terminate parental rights). Here, as in Brown, the challenged documents—intake-maltreatment-assessment reports, reports from St. Joseph’s Children’s Home (St. Joseph’s), clinical assessments of the children, reports of appellant-father’s treatment progress, and reports of appellant-mother’s chemical-health assessments—constitute business records, and the district court properly admitted the evidence.

Appellants also argue that the permanency worker could not testify regarding the exhibits because she did not have first-hand knowledge of the exhibits’ contents. But the reports are admissible under the business-records exception because she is a qualified witness who can testify about the creation and use of the documents. See Nat’l Tea Co. v. Tyler Refrigeration Co.,339 N.W.2d 59, 61 (Minn. 1983) (stating that “other qualified witness” is given the broadest interpretation and need not be an employee of the entity so long as the witness understands the system). Appellants have not demonstrated any prejudice; thus, the district court did not abuse its discretion in admitting the evidence.

Termination of Parental Rights

Finally, appellants argue that the evidence was insufficient to support the termination of their parental rights because the children were bonded with each other, the children did not want to be adopted by non-family members, and the children wanted to remain in contact with appellants. 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). “Considerable 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 district court may terminate parental rights if it finds one or more of the following conditions exist:

(1) that the parent has abandoned the child; (2) 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 . . . ; (3) that a parent [failed to financially support the child]; (4) that a parent is palpably unfit to be [in a parent-child relationship]; (5) that following the child’s placement out of the home, reasonable efforts . . . failed to correct the conditions leading to the child’s placement; (6) that a child has experienced egregious harm in the parent’s care . . . ; (7) that in the case of a child born to a mother who was not married to the child’s father . . . the person is not entitled to notice of an adoption hearing . . . ; (8) that the child is neglected and in foster care; or (9) that the parent has been convicted of a crime listed in section 206.012, paragraph (b), clauses (1) to (3).

Minn. Stat. § 260C.301, subd. 1(b) (2004). The determination of a child’s best interests requires a balancing of the child’s interest in preserving the parent-child relationship, the parent’s interest in preserving the relationship, and any competing interests of the children such as a stable environment and health considerations. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).

The district court terminated parental rights after finding that all but two of the statutory bases for termination existed. Among other things, the district court specifically found that there was clear and convincing evidence that appellant-mother failed to engage in case plan services and failed to eliminate the conditions that led to the children’s out-of-home placement. Appellant-mother’s history with the Department dates back to 1987. In 2001, appellant-mother was ordered to comply with a case plan that required her to ensure the children’s school attendance, provide adequate housing, and attend domestic-abuse treatment. Appellant-mother failed to comply with the case plan. In 2002, the Department attempted to reunify appellant-mother with her children by providing appellant-mother with services and treatment. Appellant-mother failed to comply with the reunification plan and physical and legal custody was transferred to appellant-father. Also in early 2002, appellant-mother left Minnesota without informing her children and her whereabouts were unknown until late 2003. The district court also found that appellant-father was palpably unfit to be a party to the parent-child relationship. In 2003, police officers made a controlled buy of cocaine from appellant-father’s residence. At the time, there was no food in the home. In 2004, appellant-father was using marijuana in the home and within two months, police officers were dispatched to the family home on two separate occasions because of domestic-abuse situations. Through 2004, appellant-father used crack cocaine in the home and tampered with his urinalyses. During a visit, a child-protection investigator observed that there was no food in the home, no gas service or hot water, and that the children drank from only one cup because appellant-father urinated in the other cups. The district court only needed to find that one condition existed and a thorough review of the record shows that it contains clear and convincing evidence supporting each of the district court’s findings. See Wilson v. Moline,234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that an appellate court need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the [district] court’s findings” and that its “duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings”); Vangsness v. Vangsness, 607 N.W.2d 468, 474-75 n.1 (Minn. App. 2000) (applying Wilson in a dissolution case). Therefore, we affirm the district court’s determination to terminate appellants’ parental rights.

Affirmed.