IN RE: the Welfare of the Children of: M.A. O., M. G., S.B. and J. L., Jr., Parents
Mother appeals the district court's judgment terminating her parental rights, arguing that (1) the evidence does not support the finding that termination was appropriate and in the children's best interests; (2) the district court abused its discretion by admitting certain documents into evidence under the business-records exception to the hearsay rule; and (3) the district court, instead of terminating parental rights, should have transferred legal custody of the child to certain relatives. Because we conclude that
(1) the district court's findings are supported by clear and convincing evidence and that termination is in the children's best interests; (2) the district court did not rely on any erroneously admitted evidence in making its termination decision; and (3) transfer of legal custody to certain relatives was not in the children's best interests, we affirm.
In January 2009, respondent Hennepin County Human Services and Public Health Department (the department) filed a petition alleging that the following four children of appellant M.O. (mother) were children in need of protection or services (CHIPS):
K.G. (age 9 at the time)
M.O. (age 8 at the time)
C.B. (age 5 at the time)
S.B. (age 3 at the time)
The department requested the CHIPS determination on the following bases: (1) the children were victims of physical or sexual abuse, resided with a victim of domestic child abuse, resided with a perpetrator of domestic child abuse or were victims of emotional maltreatment; (2) the children were without necessary food, clothing, shelter, education, or other required care; (3) the children were without proper parental care because of the emotional, mental or physical disability or immaturity of the children's parent; and
(4) the children's behavior, condition or environment was dangerous to the children, themselves, or others. See Minn.Stat. § 260C.007, subd. 6 (2008) (defining CHIPS). The district court held an emergency CHIPS hearing, found that the petition provided a prima facie CHIPS showing, and ordered the children into out-of-home placement.
The children have remained in out-of-home placement since January 29, 2009. K.G. and C.B. have been together in the same non-relative foster home since February 20, 2009. S.B. was in the same foster home until April 8, 2010, when the parties agreed that his physical and legal custody would be transferred to his paternal aunt. M.O. was originally placed with his siblings in the same non-relative foster home on February 20, 2009, but he was moved on July 10, 2009, due to conflict with his siblings. M.O. was placed in a different non-relative foster home from July 10, 2009 until January 15, 2010. On January 15, 2010, M.O. was moved to the home of N.E. and his wife (also N.E.), and currently resides there. N.E. is the father of 12-year-old K.E., who is also mother's child. N.E. (father) was granted permanent sole physical custody and temporary sole legal custody of K.E. in June of 2000, and mother has had little contact with K.E. since.
On April 17, 2009, the children were adjudicated CHIPS, based on mother's admissions that her mental health had adversely affected and interfered with her ability to properly parent her children, and that her family could benefit from rehabilitative services. The district court ordered the children to continue in out-of-home placement and ordered mother to successfully complete the following case plan: (1) cooperate with the child protection social worker and guardian ad litem; (2) complete a parenting assessment and follow all recommendations; (3) cooperate with the parenting worker and participate in an in-home parenting program; (4) complete a psychiatric assessment and follow all recommendations, and comply with any medication changes; (5) take prescribed medications daily; (6) complete a psychological assessment and follow all recommendations; (7) provide UAs as requested by the department; (8) complete a chemical health assessment and follow all recommendations; (9) ensure that her children get to school on time when they are in her care; (10) provide safe and suitable housing for her children and herself; (11) provide safe and appropriate supervision for her children at all times; (12) enforce the no contact order between her boyfriend, J.P., and her children until given court approval otherwise; (13) attend supervised visitation with M.O., C.B., and S.B.; and (14) sign releases for the department.
On July 29, 2009, the department filed a petition to terminate appellant's parental rights or transfer permanent legal and physical custody of the four children. On September 22, 2009, the district court granted the department's motion to extend the time for reunification efforts because mother was working on her case plan and had back surgery that placed limitations on her ability to meet case plan requirements.
A five-day trial on the TPR petition was ultimately held in April and May 2010. The department, the guardian ad litem, nine-year-old K.G., and mother were all present and represented by counsel. Each child has a different father. The department proceeded in default of the fathers. On the first day of trial, the parties agreed to transfer legal and physical custody of S.B. to his paternal aunt and termination proceedings were dropped with respect to him. At trial, mother and K.G. argued for reunification of mother with the three children, K.G., M.O., and C.B., or in the alternative, a transfer of legal custody to certain relatives. The district court found that the proposed relatives were not appropriate custodians for the children at the present time, but that after termination of mother's parental rights, the relatives could apply to adopt the children.
Based on the record, the district court found that as of the time of trial, mother's efforts to complete her case plan were as follows:
Mother completed the parenting assessment as ordered, and she enrolled in the recommended intensive maternal-guidance program. Mother had some difficulty in the program early on, but was eventually readmitted. Mother was still enrolled in the program at the time of trial, with 80 hours of programming left to complete. She testified at trial that she was learning a great deal from the program.
Mother also completed the chemical health assessment and the psychological assessment. Both assessors found that mother suffered from mental health issues and chemical dependence. Mother also completed a psychiatric assessment and met with her psychiatrist about ten times through November 2009; however, she had not seen the psychiatrist since. Mother testified that she weaned herself off pain medication she had been taking post back surgery; however, she appeared to do so without proper advice from her psychiatrist. Throughout her case plan, mother provided some negative UAs, some positive UAs, and missed some UAs, which are presumed positive.
Mother had been homeless and living with friends for a majority of the time her case had been open. One exception was the time period in which she lived at a sober living complex, starting in August 2009; but after an incident involving J.P. (her then boyfriend), she was asked to leave in December 2009.
Mother “made a large number of visits with her children.” Mother's visits with her children were unsupervised, but after J.P. vandalized the home in which mother was living, the district court ordered that the subsequent visits be supervised. The most recent visits occurred during the course of the TPR trial. On April 10, 2010, at a visit supervised by the guardian ad litem, the children were loud and K.G. asked to go home. On April 15, 2010, the county social worker supervised a visit at the library. During the visit, the children were loud and ran around the lobby of the library until the security officer asked them to settle down. K.G. threw a wallet at C.B. Eventually the family was asked to leave the library. The social worker was concerned about the children's safety at that point because they were running around and out of the control of mother. After a visit that occurred at the parenting center on April 25, 2010, N.E., his wife (also N.E.) and M.O.'s therapist received reports from M.O. that mother had threatened to come to N.E.'s home, which resulted in a deterioration of M.O.'s stability. (As previously stated, N.E. and N.E. are providing foster care for M.O. and he is the father of K.E.-the half-sister of M.O.) M.O.'s visits with his mother were subsequently reduced. In February 2010, C.B.'s therapist requested that mother's unsupervised visits with C.B. be stopped. The therapist stated that C.B. was being “re-traumatized” every time he visited with his mother; that it was having a “severely adverse affect on [his] emotional well-being and functional behavior.”
Based on the record, the foregoing findings, and extensive additional findings, the district court granted the TPR petition. Mother and daughter K.G. moved for a new trial, which the district court denied. Mother appeals.
D E C I S I O N
Minn.Stat. § 260C.301 (2008) sets forth the statutory criteria for terminating parental rights. This court reviews a termination of parental rights “to determine whether the district court's findings address the statutory criteria and whether the district court's findings are supported by substantial evidence and are not clearly erroneous.” In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn.2008). Appellate courts “give considerable deference to the district court's decision to terminate parental rights” and “closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing.” Id. “The [district] court must make its decision based on evidence concerning the conditions that exist at the time of termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period.” In re Welfare of Child of T.D., 731 N.W.2d 548, 554 (Minn.App.2007) (quotation omitted). When at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the best interests of the child, appellate courts affirm the district court's termination of parental rights. S.E.P., 744 N.W.2d at 385.
Although only one statutory ground is required, here the district court found it in the children's best interests to terminate mother's parental rights and did so on three grounds: (1) that she failed to satisfy the duties of the parent-child relationship;
(2) that reasonable efforts have failed to correct the conditions leading to the children's out-of-home placement; and (3) that the children are neglected and in foster care. See Minn.Stat. § 260C.301, subd. 1(b)(2), (5), (8) (2008).
B. Failure to Satisfy the Duties of the Parent-Child Relationship
We first consider whether mother failed to satisfy the duties of the parent-child relationship, one basis for termination of parental rights. See Minn.Stat. § 260C.301, subd. 1(b)(2) (2008). This includes, but is not limited to, “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, if the parent is physically and financially able.” Id. A parent's rights may not be terminated under this subdivision unless the county's reasonable efforts failed to correct the conditions that led to the child's out-of-home placement, or reasonable efforts would be futile, and thus unreasonable. Id. Mother does not challenge the district court's determination that the county made reasonable efforts to correct the conditions that led to the out-of-home placement of her children.
Mother argues that she did not fail as a parent because she complied with her case plan “as best she could” and that termination of her parental rights was not supported by clear and convincing evidence. Despite mother's assertions, the record contains clear and convincing evidence to support the district court's conclusion that mother failed to satisfy the duties of the parent-child relationship. As she asserts, mother did make serious efforts to complete her case plan and testified that she was learning a lot from the parenting program. But, as the district court concluded, mother's visits with her children demonstrated that she had not yet developed the parenting skills necessary to provide the proper care and structure that her children need.
The district court further found that mother failed to treat her chemical dependence. While mother did produce some negative UAs, she also produced positive UAs and missed UAs throughout the duration of her case plan. She also failed to maintain regular contact with her psychiatrist and did not regularly take her prescribed medication.
Significantly, as the district court concluded, mother also failed to obtain safe and suitable housing. Mother had been, and was at the time of trial, without a home of her own and living temporarily with friends. Although mother had lived at a sober-living complex for five months, she was asked to leave based on threats that J.P., her then boyfriend, made to other residents in the complex. Because mother refused to take responsibility for J.P.'s actions as her guest at the complex, the department's efforts to work with the complex to reinstate mother's lease were unavailing.
Based on the foregoing considerations and extensive factual findings summarized earlier in this opinion, all of which are supported by admissible evidence in the record, we conclude that clear and convincing evidence supports the district court's determination that mother failed to satisfy the duties of the parent-child relationship. Because we conclude that this basis for termination is established, we do not address the district court's remaining two grounds for terminating her parental rights. See Minn.Stat. § 260C.301, subd. 1(b) (2008) (requiring only one statutory ground for termination).
C. Best Interests
We next consider whether termination is in the best interests of the children. In TPR proceedings in which at least one statutory basis for termination exists, the child's best interests are still the “paramount” consideration. Minn.Stat. § 260C.301, subd. 7 (2008). A child's best interests may preclude terminating parental rights even if a statutory basis for termination exists. 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, 722-24 (Minn.1998). In considering the child's best interests, the district court must balance the preservation of the parent-child relationship against any competing interests of the child. In re Welfare of M.G., 407 N.W2d 118, 121 (Minn.App.1987).
Mother acknowledges that “the children have their own emotional and mental-health issues,” but argues that this fact, on its own, “is not a reason to terminate [the children's] relationship with [her].” But it is apparent from the record that mother had not learned how to end domestic violence in her home or how to cope with her mental illness and her children's special needs.
While a parent's mental illness on its own is not a statutory ground for terminating parental rights, the effect of the mental illness on the parent's conduct and ability to adequately care for the child for the foreseeable future should be considered. In re Welfare of J.J.B., 390 N.W.2d 274, 281 (Minn.1986). Another factor is whether the child has special needs. See In re Welfare of A.H., 402 N.W.2d 598, 603 (Minn.App.1987) (holding that the parent's “long history of debilitating mental illness, her poor prognosis, and the children's special needs” supported the district court's conclusion that the children had suffered substantial and continuous neglect).
The admissible evidence in the record demonstrates that mother's children have extensive special needs as a result of the abuse and neglect they suffered while in mother's care. K.G. has been diagnosed with reactive attachment disorder, which often evolves after a child (1) experienced a persistent disregard for her emotional needs and basic physical needs; (2) has had multiple caregivers and so has difficulty forming stable relationships; and (3) has an indiscriminate way of relating to other people. After a psychiatric evaluation, K.G. was also diagnosed with learning problems, asthma, maltreatment, and educational neglect. Although K.G. has made significant gains in a structured environment, K.G.'s psychologist testified that K.G.'s parent or guardian needs to be empathetic and stable enough to provide K.G. with the support she needs.
In two of his foster homes, M.O. had behavior issues, including aggressiveness, stealing, and telling lies, and he has exhibited some symptoms of learning disabilities.
C.B. is easily distracted at school, has difficulty following directives, and is very aggressive. He is on medication for attention deficit hyperactivity disorder. He was assessed and assigned an individualized education program at school, and his evaluation showed that he is significantly impaired and is in need of special education. The child protection social worker testified that C.B. needs to live in a home with stability, routine and structure, and that he would benefit from a parent or custodian who could remain calm when they talk to him and discipline him appropriately.
Mother is not able to provide the support these children need. Mother was diagnosed with insomnia, nicotine dependency, obesity, bipolar disorder, and panic disorder. She is on medication for these diagnoses. Mother was also diagnosed with a ruptured disc in her back and underwent back surgery in September 2009. Mother's doctor testified that the normal recovery for the type of surgery mother underwent is approximately six weeks; however, the doctor stated that it has taken mother at least three months to recover from the surgery. Mother's doctor prescribed mother pain medication which she took in excess and continued to take for longer than she should have. The doctor testified that in his opinion, mother has both physical and mental health symptoms that require both physical therapy and intense psychiatric assistance. The record clearly and convincingly supports the district court's conclusion that mother cannot provide the stability and care that her children need in the reasonably foreseeable future.
On this record, we conclude that the district court did not err in determining that termination is in the children's best interests.
D. J.P.'s Presence
Mother also argues that “the real reason” this TPR case was granted is her earlier relationship with J.P., who has been violent and abusive. She asserts that “[i]f the parental rights of every battered woman in this society were to be terminated, our foster-care system would be more overwhelmed than it already is,” and that terminating her parental rights results in her “revictimization.”
The admissible evidence in the record makes it clear that the district court considered more than mother's prior relationship to J.P. to support the termination of her parental rights. The recordings of mother's extended phone conversations with J.P. while he was in jail showed an ongoing relationship, as the conversations were not merely related to her recovering her belongings from the property inventory at the jail. Furthermore, the record indicates that mother's relationship with J.P. adversely affected her ability to parent and posed a threat to the safety of the children. As part of her case plan, mother was ordered to abide by the no-contact order between J.P. and her children. The record indicates that mother was not able to break off her relationship with J.P. to ensure the safety of her children. The record indicates that mother's relationship with J.P. was appropriately a factor, but not the only factor, in the district court's decision to terminate her parental rights.
The second issue of this appeal is the admission of certain documents: mother argues that the district court abused its discretion by admitting 39 different documents into evidence. The documents include child protection reports, a letter from a school social worker, police reports, e-mails from the foster mother to the agency social worker, a psychiatric diagnosis by K.G.'s psychiatrist, letters from C.B.'s therapist to the agency social worker, documents related to J.P.'s case planning, and transcripts of J.P.'s phone calls from jail to mother. Mother challenges the admissibility of the 39 documents on several grounds, including hearsay, lack of foundation, irrelevancy, cumulative effect, staleness, and prejudicial effect. At trial, the district court overruled objections to the documents made by mother's counsel.
Generally, evidence admissible in juvenile-protection proceedings is that which is admissible under Rules of Evidence. Minn. R. Juv. Prot. P. 3.02. “Evidentiary rulings concerning materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence are within the trial court's sound discretion and will only be reversed when that discretion has been clearly abused.” Johnson v. Wash. Cnty., 518 N.W.2d 594, 601 (Minn.1994) (quotation omitted).
A. Business Records
Business records are an exception to the general rule that hearsay statements are inadmissible. Minn. R. Evid. 802 (general rule); Minn. R. Evid. 803(6) (business-records exception to hearsay rule). The latter rule allows admission of “[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, diagnoses”
(1) “made at or near the time by, or from information transmitted by, a person with knowledge,” (2) “if kept in the course of a regularly conducted business activity, and”
(3) “if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation.” Minn. R. Evid. 803(6).
We have determined that “reports of social workers and psychologists are admissible as business records.” In re Welfare of J.K., 374 N.W.2d 463, 467 (Minn.App.1985) (citations omitted), review denied (Minn. Nov. 25, 1985). Additionally, the statutes provide that the district court may consider “any report or recommendation made by the responsible social services agency, ․ foster parent, guardian ad litem, ․ the child's health or mental health care provider, or other authorized advocate for the child or child's family ․ or any other information deemed material by the court.” Minn.Stat. § 260C.193, subd. 2 (2008).
Most of the documents at issue here are admissible under the business records exception. The record shows that the district court met with counsel prior to trial to consider objections to the exhibits and concluded that the county social worker could lay the foundation to offer many of these documents as business records. Although the witnesses who laid the foundation for admission of the exhibits were not the authors of the records, they were county social workers currently investigating mother's case and the psychologist for one of the children. See Simon, 662 N.W.2d at 160 (stating that business records are admissible “if the custodian or another qualified witness ” can establish foundation (emphasis added)); Nat'l Tea Co. v. Tyler Refrigeration Co. Inc., 339 N.W.2d 259, 261 (Minn.1983) (stating that while the custodian of the records does not have to establish foundation, the witness must be familiar with how the particular business assembles its documents).
The record also reflects that the county attorney obtained sufficient foundation testimony to establish that most of the objected-to documents were business records, therefore not hearsay. The foundation testimony included the purpose of the documents, and when and by whom they were created. The witnesses who laid the foundation for the documents also established, based on their familiarity with the business practices of the authors, that the documents are regularly made, kept, and relied upon in the course of that particular business activity, be it investigating reports of child abuse, creating and implementing case plans for mother, evaluating the physical and mental health of the children, or providing foster homes through the Volunteers of America.
Furthermore, a report by a service provider that relates to the physical and psychological health or special needs of the children is admissible as a business record upon showing that the document was kept in the file and it was the regular business practice to keep the report. In re Welfare of Brown, 296 N.W.2d 430, 432-33 (Minn.1980).
We conclude that the district court did not abuse its discretion in admitting into evidence as business records, the documents it so identified.
B. Police Reports
The police reports to which mother objects consist almost entirely of statements made by K.G. and M.O. to the officer regarding physical abuse inflicted upon them by mother. Mother lodges a hearsay objection to these reports. The police reports were admissible under Minn.Stat. § 260C.165 (2008), which provides that out-of-court statements made by a child under the age of ten that describe “any act of physical abuse or neglect of the child by another” are admissible in a TPR proceeding. We also note that because K.G. was available as a witness, her statements were not subject to the hearsay rule.1 The district court did not abuse its discretion in admitting the police reports.
C. Documents Related to J.P.
J.P. is the abusive man with whom mother had a relationship and whose continued presence in her life was at issue. Mother objects to the relevance of documents related to J.P.'s case plan, which he entered into voluntarily with the department when it became clear that J.P. and mother wanted to remain in a relationship. Mother also objects to the relevance of the recordings and transcripts of J.P.'s phone calls to her from jail. J.P.'s case plan is relevant because it involves mother's ability to parent and the safety of her children. The phone conversations between J.P. and mother are relevant because they are evidence of the nature of mother's relationship with J.P The district court did not abuse its discretion in determining these documents were relevant and admitting them as a part of the record.
D. Documents Relating to Mother's Oldest Child who was not a Subject of this TPR Proceeding
We agree with mother that the district court erred in admitting into evidence the documents relating to her oldest child, K.E., who is not a subject of the current TPR matter. Because there is ample evidence pertaining to mother's children who are the subjects of the current termination proceeding, the documents relating to K.E. are not relevant; they are stale, more prejudicial than probative, and cumulative. N.E. (step-mother), who currently co-parents K.E. and provides a foster home for M.O., testified at trial and could provide all relevant and necessary information regarding M.O.'s current and possible future placement in her home.
Mother makes a sweeping argument that all of the challenged documents, when taken as a whole, were “enormously prejudicial” to her, but she does not identify how she was prejudiced by any one specific document or set of documents. See Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn.1997) (stating that an appellate court will grant a new trial because of improper evidentiary rulings only if a party demonstrates prejudicial error). Nor do we now find that mother was prejudiced by the admission of the documents that related to K.E. There was ample evidence at trial relating to her other children that supported the termination of her parental rights. The error in admitting the documents relating to K.E. was harmless and thus does not warrant a new trial.
The final issue raised by mother is whether it was error for the district court to deny her petition to transfer legal custody of the children to certain relatives.
In cases where a child is placed in foster care, the district court is required to hold a permanency hearing within 12 months of the child's placement. Minn.Stat.
§ 260C.201, subd. 11(a) (2008). At the conclusion of these permanency proceedings, the district court may either return the child to the custodial parent, or order termination of the custodial parent's parental rights, or order transfer of permanent physical and legal custody to a relative, if such transfer is in the best interests of the child. Minn.Stat.
§ 260C.201, subd. 11(c)-(d) (2008). Contrary to mother's assertions, the current termination-of-parental-rights statute does not prefer that a child be placed with relatives, but rather requires the district court to order a permanent placement that is “governed by the best interests of the child.” Minn.Stat. § 260C.201, subd. 11(e) (2008). Such an order must include “a review of the relationship between the child and relatives and the child and other important persons with whom the child has resided or had significant contact.” Id. This court “will not overturn the [district] court's findings of fact in support of a permanent placement decision unless they are clearly erroneous.” In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261-62 (Minn.App.1996).
One of the relatives proposed by mother is Z.K. Z.K. testified that although she and mother are not blood relatives, they were raised as sisters. Z.K. has not spent much time with mother's children in the past year. Z.K. does not have a clear understanding of the children's significant emotional and behavioral issues. She was not able to clearly explain the children's mental health issues or how she would parent the children, taking into account their specific needs. Z.K. is a 22-year-old single mother who works 55 hours a week. She has two children. It is unclear how she would provide childcare for her children plus one or more of mother's special-needs children.
The other relative is S.B. (not to be confused with three-year-old S.B., who is one of mother's four children subject to the CHIPS and initially was part of the termination proceeding). S.B. has a son who has the same father as K.G. The record indicates that based on her experience parenting her own child who has special needs, S.B. has some understanding about parenting a special-needs child. It also appears that S.B. has an emotional attachment to mother's children. However, mother currently lives in S.B.'s home. It would not be appropriate for the children, who are the subject of this termination proceeding, to live in the same home with mother after the termination. This is especially important considering mother's continued relationship with J.P. We further note that S.B.'s own son has special needs, and that additional children with special needs is at best very challenging. The district court suggested that S.B. may be an appropriate adoption resource for the children in the future. Such a placement may be considered in the context of adoption efforts.
We conclude that the district court appropriately followed the statute in considering Z.K. and S.B. as potential resources for a transfer of custody, and did not abuse its discretion in concluding that neither is suitable at this time.
FN1. Mother appears to object to the police reports insofar as they include statements made by N.E. (M.O.'s foster mother) to the police. However, foster-mother N.E. testified at trial as a witness for the department and recounted the incidents that led to the police reports. Even though the police reports were introduced after foster-mother N.E. testified, mother could have questioned N.E. because the police reports had been disclosed prior to and as a part of N.E.'s testimony. Also, mother could have recalled N.E. as a witness. Regardless, the statements made by foster-mother N.E. that appear in the police reports were cumulative to information from other unchallenged sources and were harmless error, if error at all.. FN1. Mother appears to object to the police reports insofar as they include statements made by N.E. (M.O.'s foster mother) to the police. However, foster-mother N.E. testified at trial as a witness for the department and recounted the incidents that led to the police reports. Even though the police reports were introduced after foster-mother N.E. testified, mother could have questioned N.E. because the police reports had been disclosed prior to and as a part of N.E.'s testimony. Also, mother could have recalled N.E. as a witness. Regardless, the statements made by foster-mother N.E. that appear in the police reports were cumulative to information from other unchallenged sources and were harmless error, if error at all.