Opinion
No. C4-02-544.
Filed December 3, 2002.
Appeal from the District Court, Hennepin County, File No. J69969490.
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Melissa Haley, Assistant Public Defenders, (for appellant M.B.)
Amy Klobuchar, Hennepin County Attorney, Michael Q. Lynch, Senior Assistant County Attorney, Mary Lynch, Assistant County Attorney, (for respondent Hennepin County Children, Family and Adult Services Department)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant mother challenges the district court's termination of her parental rights, arguing that (1) the record does not support the district court's findings, (2) the district court improperly admitted evidence of appellant's failure to protect herself and her children from contact with "inappropriate people," and (3) the district court abused its discretion by refusing to grant a continuance to allow a transfer of custody of appellant's children to relatives. Because the record supports the district court's findings and the district court neither improperly admitted evidence nor abused its discretion as to a continuance, we affirm.
FACTS
Appellant M.B. is the mother of C.P.B., age 12; C.B., age 11; O.B., age 8; and L.D.B., age 5. In July 1999, the district court found the children to be in need of protection and services (CHIPS) and ordered legal custody of the children transferred to the Hennepin County Department of Children and Family Services. The CHIPS adjudication followed a finding that appellant had a history of homelessness and had endangered her children when she allowed three of them, then ranging in age from three to eight years, to travel alone on a city bus.
At a November 2000 hearing, appellant stipulated to findings that she had a history of being unable to provide her children with adequate and appropriate supervision, safe and suitable housing, and protection from contact with "inappropriate people, especially Kenyatta Nicks." The district court found that appellant had begun correcting the conditions that led to out-of-home placement of the children but that it was in the best interests of the children for appellant's parental rights to be terminated if she did not continue to comply with her case plan. The court stayed its order of termination on the conditions that appellant (1) maintain appropriate housing and financial stability; (2) provide adequate and appropriate supervision of the children; (3) protect herself and her children from contact with inappropriate people, including any contact with Nicks; and (4) participate in the Parent Support Project or other appropriate program.
At an October 2001 hearing, the county presented evidence that appellant had violated the terms of the stayed order. Appellant stipulated to the introduction of a presentence-investigation report, a police report, and a social-worker's report. The presentence-investigation report described an August 5, 2001 incident during which, according to appellant, Nicks came to her home uninvited, refused to leave, and choked and punched her. Nicks reportedly told the probation officer who wrote the report that, while he had "technically moved out" of appellant's home, he continued to live with her.
The police report showed that Nicks was present when police responded to an April 13, 2001 call that one of appellant's children had suffered a head injury or seizure. Appellant testified at the October 2001 hearing that, during the preceding six months, Nicks was at her home on four occasions when the police were called.
The county also presented evidence at the October 2001 hearing about appellant's participation in the parenting program. In a May 23, 2001 report by a social worker with the Parent Support Project, the social worker opined that appellant "does not appear to be a willing, interested or active participant." The social worker also wrote that appellant "does not give evidence of any desire or motivation to change her behaviors at this time." A representative from African American Family Services testified that appellant was enrolled in parenting classes with her organization and had attended half of the scheduled classes during August and September 2001.
At a December 2001 hearing, appellant argued for a continuance to allow a transfer of legal custody to relatives instead of a termination of her parental rights. Appellant named three individuals to whom custody could be transferred. The county had already investigated one of the individuals, appellant's cousin Linnell Woods, and recommended against awarding custody to her. The district court denied appellant's request for a continuance and orally lifted the stay of the termination order.
Based on the information presented during the October and December 2001 hearings, the district court issued an order dated February 11, 2002. In the February 2002 order, the district court found that appellant had not complied with the conditions of the stay of the court's November 2000 termination order because she had not protected herself and her children from contact with inappropriate people, specifically Nicks, and had not successfully participated in an appropriate parenting program. The district court also found that, at the time of the December 2001 hearing, appellant had not corrected the conditions that gave rise to the children's original out-of-home placement, namely the protection of herself and her children from contact with "inappropriate people" and her inability to provide her children with adequate and appropriate supervision. The district court consequently ordered appellant's parental rights terminated. This appeal follows.
DECISION I.
Appellant first argues that there was insufficient evidence to support: (1) the district court's findings in its November 2000 stayed termination order; (2) the district court's findings regarding its December 5, 2001 revocation of the stay; and (3) the district court's conclusion that termination of parental rights was in the best interests of the children.
The district court may terminate parental rights only if it is proved by clear and convincing evidence that at least one statutory ground for termination exists. See In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); see also Minn. Stat. § 260C.301, subd. 1(b) (2002) (providing statutory grounds for termination). When reviewing a district court's findings in a termination proceeding, this court is "limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous." In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997) (citation omitted). The reviewing court will "closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing." In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). In any action for the termination of parental rights, if other statutory requirements are met, "the best interests of the child must be the paramount consideration * * * ." Minn. Stat. § 260C.301, subd. 7 (2002).
November 2000 and February 2002 Orders
Appellant argues that the findings in the district court's November 2000 stayed termination order are not supported by sufficient evidence. Appellant argues that the lack of housing, inadequate supervision, and exposure to dangerous persons that gave rise to the original CHIPS adjudication were all conditions that had been "alleviated" at the time of the November 2000 order. Appellant cites the district court's own findings that she had found appropriate housing, was demonstrating adequate and appropriate supervision during visits with her children, and was demonstrating a willingness to protect herself and her children from contact with inappropriate people, including Nicks.
A district court's findings in support of termination must address conditions that exist at the time of the termination hearing. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980); see also In re Welfare of P.R.L., 622 N.W.2d 538, 544-45 (Minn. 2001) (applying Chosa to revocation of stay of termination and holding that record showed grounds to terminate existed at time stay was lifted). Here, the November 2000 order includes findings that were supported by the evidence and, further, the final termination order in February 2002 addresses the conditions that existed at the time of the December 2001 hearing. While the district court's November 2000 stayed termination order includes findings that appellant was working toward correcting the conditions that gave rise to the out-of-home placement, the February 2002 order does not. Rather, the February 2002 order includes specific findings that appellant had not "corrected the conditions that led to out-of-home placement of the children" and that there was "no reasonable likelihood that she [would] correct those conditions in the reasonably foreseeable future." Those conditions included appellant's failure to provide adequate supervision and parenting for her children and to protect herself and her children from contact with inappropriate people.
The evidence supports the findings in the district court's February 2002 order. At the October 2001 hearing, appellant testified that she continued to see Nicks and that he was at her home on several occasions. The evidence also showed that appellant had ceased participating in the Parent Support Project. While there was evidence that appellant had enrolled in an alternative program, testimony showed that her participation was irregular at best.
Lifting of the Stay
Appellant also argues that there was insufficient evidence that she violated the terms of the stay of the termination order. Appellant argues that she at most "technically violated" the requirements that she avoid contact with Nicks and participate in a parenting program. But appellant provides no explanation for this distinction. When the stay was lifted, the district court had before it appellant's admission that she continued to have contact with Nicks, documentation of her lack of participation in the Parent Support Project, and uncontroverted testimony of her minimal participation in an alternative program. There was, therefore, sufficient evidence of her failure to comply with the conditions of the stay, and the district court made specific findings to this effect in its February 2002 order.
Best Interests of the Children
Finally, appellant argues that there was insufficient evidence to support the district court's conclusion that termination would be in the best interests of the children. While there was no direct testimony on this issue, the district court's orders each contain a conclusion of law that there was clear and convincing evidence that termination was in the best interests of the children. The evidence that appellant continued to have contact with Nicks and failed to participate in a parenting program supports this conclusion. Further, the record supports the district court's conclusion that placement with a relative was not a viable alternative to termination. Consequently, the record supports the district court's conclusion that termination was in the best interests of the children.
II.
Appellant next argues that the district court abused its discretion by improperly admitting evidence at the October 2001 hearing. Specifically, appellant argues that the presentence-investigation report, the police report, and the social-worker's report lacked foundation and contain hearsay. This court will not reverse a district court's evidentiary ruling absent a clear abuse of discretion. State v. Washington, 521 N.W.2d 35, 41 (Minn. 1994). Generally, to preserve issues, including evidentiary rulings, arising during the course of a trial, counsel must make timely objections and move for a new trial. In re Gonzalez, 456 N.W.2d 724, 727 (Minn.App. 1990); see also Minn.R.Evid. 103(a)(1) (stating general requirement of timely objection or motion to strike to preserve evidentiary issue for review). Failure to do so precludes review. Gonzalez, 456 N.W.2d at 727; see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that appellate court will address only issues presented to and considered by district court in deciding matter).
Appellant made no objection at trial and, in fact, stipulated to the admission of the three exhibits to which she now objects. Even if, as appellant argues, Nicks's statements about his relationship with appellant, as contained in the presentence-investigation report, are hearsay within hearsay and not admissible under any exception, there was ample evidence of appellant's continued contact with Nicks. Appellant testified that she continued to see Nicks on several occasions. If the district court had excluded those portions of the report that appellant contends constitute inadmissible hearsay, appellant's testimony alone would have been sufficient to support the district court's conclusion that she had not complied with the terms of the stay and continued to demonstrate an inability to protect herself and her children from contact with inappropriate people. Therefore, even if we assume that the district court improperly admitted the evidence in question, we would have to ignore the error as harmless. See In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn.App. 1995) (refusing to reverse termination of parental rights for harmless error), review denied (Minn. Mar. 29, 1995).
III.
Finally, appellant argues that the district court abused its discretion by refusing to grant a continuance to allow a transfer of legal custody of her children to relatives. Appellant contends that the district court failed to make adequate findings as to why it denied appellant's motion for a continuance.
The decision whether to grant a continuance is within the district court's discretion, and that decision will only be reversed on a showing of a clear abuse of that discretion. In re Welfare of J.A.S., 488 N.W.2d 332, 335 (Minn.App. 1992), review denied (Minn. Oct. 20, 1992). The record shows that the district court twice considered the transfer of custody to a relative and on both occasions, in May 1999 and August 2000, the county reported that the placement was not appropriate. Appellant had ample opportunity during the months that the proceeding was continued to recommend a suitable relative to whom custody could be transferred. At the December 2001 hearing, however, appellant recommended only one, on whom a suitability study already had been performed. And that study recommended against a transfer of custody to that person. When it denied appellant's motion for a new trial, the district court made findings regarding why it denied appellant's motion for a continuance. The court considered the alternatives that appellant suggested and decided that the alternatives were not appropriate and that, after lengthy proceedings on the issue of termination, the best interests of appellant's children would best be served by a permanent placement. The district court also noted that a suitable relative could still be considered in any subsequent placement or adoption proceeding. The district court, therefore, did not abuse its discretion by refusing to grant appellant a continuance.
The district court's decision is affirmed.