Opinion
No. A04-1368.
Filed March 8, 2005.
Appeal from the District Court, Hennepin County, File No. J5-03-065906/Fam. Id No. 230178/Cp, 319940.
Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, Mn, for appellant L.D.
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis, Mn, for respondent Hennepin County Children, Family and Adult Services Department.
Jonathan G. Steinberg, Minneapolis, Mn, for guardian ad litem Patricia Timpane.
Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant mother challenges the termination of her parental rights to her two children, asserting that (1) erroneous evidentiary rulings deprived her of a fair trial and violated her due-process rights; (2) the district court erred by failing to separately consider the best interests of each child; (3) the findings are not supported by the evidence; and (4) the district court did not independently evaluate the evidence. We affirm.
FACTS
Appellant-mother L.D. has a history of child-protection involvement and has received extensive services from county and other community agencies during the past five years. In March 2003, mother gave birth to K.D. Her older child, J.D., was nearly five years old at the time. In May 2003, after receiving reports from child-protection workers and other social-service providers that the children's safety was in jeopardy, respondent Hennepin County Children, Family, and Adult Services Department (CFASD) filed a petition alleging the two children to be in need of protection and services (CHIPS petition). Mother had expressed concern to various service providers about her inability to control J.D., especially after K.D. was born. J.D. had frequent tantrums, once attempted to tip over K.D.'s bassinet, and once slapped K.D. in the face. When J.D. acted out, mother restrained J.D. by holding her. Mother expressed concern about J.D.'s habit of running out of the house unattended several times each week and described how she was once afraid for her own safety when J.D. grabbed a kitchen knife after becoming upset.
The parental rights of the presumed father of K.D. and the alleged father of J.D. were terminated in December 2003.
The children were removed from mother's care in May 2003 following a report that mother's boyfriend choked J.D. after she soiled his pants. The county had also received a letter from J.D.'s teachers that expressed their concern for J.D.'s safety and emotional well-being after mother told J.D.'s teacher that she was afraid that she would harm J.D. and they noticed that J.D. had became withdrawn at school. Mother also reported that mother had been hit by her boyfriend. The children were placed with mother's half-brother and his wife in July 2003.
Before the intervention, mother was working with a variety of professionals who provided her with parenting support, therapy to address her depression, and frequent in-home services. Despite the extensive services, the service providers and professionals felt that mother required a more structured living facility to successfully and safely parent her children.
After the CFASD filed the CHIPS petition, a case plan was developed that included efforts to obtain housing for mother and the children at Oakwood, a residential facility that would provide mother with supervision and parenting support. Rebecca Poulton, mother's child-protection caseworker, arranged for mother to tour Oakwood. Initially, the tour went well, but mother became upset and was unable to calm herself down. Mother was opposed to the idea of living at Oakwood because she had lived in a group home and foster homes as a child and did not want her children raised in such a facility.
In August 2003, J.D. and K.D. were adjudicated in need of protection and services. Mother admitted that she has developmental disabilities that affect her ability to adequately care for and parent her children and agreed that she needed services and assistance in parenting. The court adopted the case plan and ordered compliance. The CFASD petitioned for termination of L.D.'s parental rights (TPR) on September 19, 2003.
The court-ordered case plan required mother to (1) complete the recommended mental-health assessment to determine appropriateness for Oakwood and other recommended services; (2) follow through with psychiatric appointments and medications as prescribed; (3) participate in a domestic-violence program; and (4) participate in any services recommended for her children. The case plan also included parenting education and visitation with the children.
Mother resisted entering Oakwood, though the facility offered a trial period for her. The domestic-abuse component of the case plan became less critical after mother told child-protection workers that she was no longer seeing her boyfriend, but the county later learned that mother was maintaining a relationship with him. After mother refused to enter Oakwood, the county made referrals to other agencies to address parent education and provide supervised visitation.
Mother was referred to the Parent Support Project (PSP), a program that provides intensive in-home service for parents with cognitive delays. Mother had previous involvement with PSP from December 1998 through April 2002. Mother completed an updated parenting assessment, and a report generated in February 2004 recommended that mother address her depression, engage in more positive self-care activities, and demonstrate an understanding of her children's needs and developmental stages. In March 2004, PSP declined to work with mother given their previous involvement, the intensity of the program, and the short time line before the TPR trial.
The TPR petition alleged that mother refused or neglected to comply with the duties imposed by the parent-child relationship, pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2) (2002); and is palpably unfit to be a party to the parent-child relationship, pursuant to Minn. Stat. § 260C.301, subd. 1(b)(4) (2002). Trial on the petition took place April 1 and May 4 and 6, 2004.
At trial, the CFASD introduced two certified police reports and several exhibits from mother's and J.D.'s service providers. The police reports were admitted at the beginning of the trial under the public records exceptions to the hearsay rule. The CFASD laid a foundation for each exhibit using the testimony of Poulton and Richard Johnson, mother's permanency caseworker, who testified that the exhibits were correct copies of the reports that were received in order to provide mother and her children with services, and that the reports were kept in the agency's file as a regular practice. Mother objected that the documents were hearsay and that the CFASD failed to lay the necessary foundation for their admission as business records.
Kathryn D., the children's aunt and foster mother, testified at trial that both children had initially demonstrated some behavior difficulties, but both were now doing much better. She also testified that J.D. needed fewer special-education services than she needed before entering foster care and that she had not witnessed any tantrums in her home.
The district court terminated mother's parental rights to K.D. and J.D. The court found that the CFASD proved by clear and convincing evidence all asserted bases for termination and that it was in the best interests of K.D. and J.D. that mother's parental rights be terminated.
Mother moved for a new trial, asserting that the district court erred in admitting several documents into evidence over her objection. Mother did not specifically identify the documents in her motion, but argued that they were admitted without proper foundation and/or contained inadmissible hearsay. Mother also argued that the evidence was insufficient to satisfy the statutory grounds upon which her parental rights were terminated. The district court denied mother's motion. Mother appeals from the order denying her motion and from the order terminating her parental rights.
DECISION
Evidentiary Rulings
Unless otherwise provided by statute or the rules of juvenile protection procedure, evidence admissible in juvenile protection proceedings is the same as would be admissible in a civil trial under the rules of evidence. Minn. R. Juv. Protect. P. 3.02, subd. 1. "Absent an erroneous interpretation of the law, whether to admit or exclude evidence is a question within the district court's broad discretion." In re Child of Simon, 662 N.W.2d 155, 160 (Minn.App. 2003) (citing Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997)). "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error." Kroning, 567 N.W.2d at 46 (quotation omitted). "An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial." Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn.App. 1998). "[E]videntiary rulings . . . are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error." Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 309 (Minn. 2003) (quotation omitted).
Mother contends that the district court erred in admitting nine exhibits under the business-records exceptions to the hearsay rule because the CFASD failed to lay an adequate foundation for the exhibits. "Evidentiary rulings concerning . . . foundation . . . are within the trial court's sound discretion and will only be reversed when that discretion has been clearly abused." Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).
While hearsay evidence is generally inadmissible at trial, records of regularly conducted business activities are not excluded by the hearsay rule. Minn. R. Evid. 802, 803(6). The business-records exception applies to
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. . . . A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.
Minn. R. Evid. 803(6) (emphasis added). To qualify as a business record, a record must be "kept in the course of a regularly conducted business activity" and made as a regular practice of that business activity, and the custodian or another qualified witness must provide a foundation for the evidence. Nat'l Tea Co. v. Tyler Refrigeration Co., 339 N.W.2d 59, 61 (Minn. 1983). A "qualified witness" need not be an employee of the business, and "one business entity may submit the records of another business entity to establish a proposition at trial." Id. at 61-62. This court has noted "that the phrase `other qualified witness' should be interpreted broadly and the witness need only understand the system involved." A L Coating Specialties Corp. v. Meyers Printing Co., 374 N.W.2d 202, 204 (Minn.App. 1985) (holding that company employee who had thorough knowledge of company's business practices could testify as to document supporting damages even though he was not records custodian and not responsible for generating document); see Nat'l Tea, 339 N.W.2d at 60, 62 (holding that engineer employed by defendant refrigeration company could be qualified witness within meaning of rule 803(6) and thus provide foundation for report from independent product-certification organization).
In deciding whether a person other than the author or custodian of a business record may establish the foundation for its admissibility, a district court
should be guided by the following principles:
1. Was the opinion prepared for presentation in the case being tried? If so, then the expert should testify.
2. Was the report made by an independent agency or a hired agency? . . . [A]n independent agency . . . lends more credibility to the report.
3. When was the report made? Was it an existing report, . . . or was it prepared in contemplation of the litigation?
4. The nature of the organization preparing the report. Is it an organization . . . established to do exactly the kind of work involved in preparing the report?
Nat'l Tea Co., 339 N.W.2d at 62.
The nine exhibits to which mother objected are (1) an April 1999 PSP assessment; (2) a July 2003 letter from TASKS relating to mother's admission to Oakwood; (3) a second letter from TASKS dated September 19, 2003; (4) a February 2004 PSP Parent Skills Report; (5) a March 2004 memorandum from a PSP supervisor declining to provide services to mother; (6) an April 17, 2003, psychological evaluation of J.D.; (7) a May 2003 interdepartmental letter addressed to Poulton from a senior social worker stating her professional opinion that mother would be best served in a structured residential setting; (8) a May 2003 letter from J.D.'s teachers expressing their concern for J.D.'s safety and emotional health; and (9) a May 2003 letter to a child-protection worker from a public-health nurse who made home visits to mother's residence. The last letter addresses the nurse's observations and includes her opinion that mother's depression and mental illness "are . . . barrier[s] to her being a successful parent." None of the authors of the letters or reports testified.
TASKS is a community agency that offers programs to assist adults recovering from mental illness and brain injuries.
The district court admitted the records over mother's objections, relying primarily on In re Welfare of Brown, 296 N.W.2d 430 (Minn. 1980). In Brown, the supreme court held that in TPR proceedings, medical and social workers' reports, evaluations, and summaries relating to the physical and psychological health of the children were admissible as business records where they were kept in the social worker's file and it was the regular business practice to keep the reports. Id. at 433-35.
As in the present case, the documentary evidence in Brown was introduced not by the authors of the reports, but via social workers involved in the case. Id. at 433. But see Simon, 662 N.W.2d at 158, 160-61 (noting that social worker was not appropriate person to lay foundation for therapist's letters and that his testimony fell short of providing foundational requirements).
Citing this court's decision in Simon, mother argues that the CFASD failed to lay an adequate foundation for admitting the psychological evaluation and report concerning J.D. because Poulton acknowledged that she did not know the exact process that the psychologist used when writing the report or how the psychologist kept his records. In Simon, this court determined that the district court abused its discretion by admitting two letters written by a therapist when foundation for the letters was provided by a caseworker who did not testify whether the therapist wrote the letters in the regular course of business, kept them as part of routine practice, or prepared them at or near the time of events. 662 N.W.2d at 158, 161. We do not read Simon as establishing a new rule of law. Rather, Simon reflects that the decision to admit evidence is highly fact-specific and that the factors necessary to establish foundation depend on the circumstances of each case. See Benson v. N. Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990) (stating "we reiterate that by their very nature, evidentiary rules demand a case by case analysis").
The record establishes that the psychological evaluation of J.D. was made pursuant to a referral by the CFASD. Under Brown, a psychologist's report concerning a child's emotional condition is admissible as a business record under Minn. R. Evid. 803(6). 296 N.W.2d at 433, 435-36. Here, as in Brown, the social worker's testimony established that the report was kept in her file as part of her regular business practice and that the report dealt with J.D.'s diagnosis and needs. Accordingly, the district court did not abuse its discretion by admitting the psychologist's report as a business record.
Mother addresses the remaining exhibits introduced through Poulton as a group, conceding that Poulton established that as part of her job she relied on the opinions and recommendations of the service providers in question, that the letters were addressed to her, that the authors were part of the team with which she was working to develop a plan for the family, that the documents were kept in her file, and that her job required that she rely on such reports.
Mother contends that this foundation was inadequate and that the letters contained opinions on the ultimate issues. But as the district court determined, the letters expressed opinions about what services should be provided, not about whether mother's parental rights should be terminated. See, e.g., In re Welfare of R.T., 364 N.W.2d 884, 886 (Minn.App. 1985) (holding, in dependency and neglect proceeding, that reports of social workers and psychologists concerning children's emotional condition were admissible under business-records exception); Murray v. Antell, 361 N.W.2d 466, 468-69 (Minn.App. 1985) (holding that district court improperly excluded psychological reports prepared by individuals who were not present in court when reports were prepared in regular course of business by qualified personnel who were conducting a team evaluation); Thus, the opinions did not make the letters inadmissible.
Under National Tea, the witness through whom an exhibit is introduced need not have personal knowledge of the creation of the document. 339 N.W.2d at 61-62. Because Poulton's testimony established that the documents (1) were not prepared in preparation of trial; (2) were made either by independent sources or were made as a part of the CFASD's routine business practice; and/or (3) were prepared by organizations established to do the kind of work involved in preparing the documents, we conclude that the district court did not abuse its discretion in admitting the documents. Seeid. at 62 (outlining principles to guide courts in exercising their discretion).
Mother makes similar arguments with respect to documents for which Johnson provided the foundation. Johnson testified that he received the documents in the course of providing case management for the family; it was CFASD's practice to request such documents from service providers; he routinely kept such documents in the case file; and he relied on the documents in the course of his work.
Mother contends that the authors of the documents needed to provide foundation. But, as we have already discussed, under National Tea, the author is not the only person who can provide foundation. 339 N.W.2d at 61-62. A social-services professional may provide foundation for business records of other agencies that were ordered by the district court to issue reports, and which are part of the social-service professional's file. See R.T., 364 N.W.2d at 886 (holding, in dependency and neglect proceeding, that reports of social workers and psychologists relating to children's emotional condition were admissible under business-records exception); Murray, 361 N.W.2d at 468-69 (holding that district court improperly excluded psychological reports prepared by individuals who were not present in court, when reports were prepared in regular course of business by qualified personnel who were conducting a team evaluation). We conclude that the district court did not abuse its discretion in determining that Poulton and Johnson's testimony provided adequate foundation for admitting the documentary evidence under the business-records exception to the hearsay rule.
Mother also argues that the district court committed reversible error by relying on an unpublished opinion of this court to admit two police reports that contained hearsay statements. But the record indicates that the district court did not rely on the unpublished opinion; the district court relied on the rules of evidence cited in the unpublished opinion. Evidentiary rule 803(8)(C) permits the admission of public records or reports "setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law." Minn. R. Evid. 803(8)(C). Police reports are within this exception from the hearsay rule and are admissible unless the district court determines that the reports lack trustworthiness. Id. Mother asserts that the district court never made a determination that the reports were trustworthy despite stating that the court would do so before including them in the evidence to be considered. However, because the court's termination order includes the reports in the list of exhibits that the court considered and the court made a factual finding specific to the police reports, we may infer that the district court found that the reports were trustworthy. See In re Welfare of J.K., 641 N.W.2d 617, 621 (Minn.App. 2002) (stating appellate court may infer findings from a reading of the district court's order as a whole where the evidence supports such a finding).
The police reports were generated after police officers were dispatched to mother's home regarding a disturbance. Pursuant to their duties, the officers recorded in a report their observations and information that was gathered at the scene, including statements taken from mother and J.D. Mother contends that the out-of-court oral statements repeated in the reports raise an issue of double hearsay. But evidence containing double hearsay is admissible if each item of hearsay falls into a hearsay exception. Minn. R. Evid. 805. Mother's statements are admissions of a party opponent, and, therefore, they are nonhearsay under Minn. R. Evid. 801(d)(2)(A), and J.D.'s statements are within the excited utterance exception under Minn. R. Evid. 803(2). Therefore, the district court did not abuse its discretion by admitting the police reports.
Mother also argues, without citing any authority, that because parents have a fundamental interest in the custody and companionship of their children, and because the standard of proof is higher in termination proceedings than other civil cases, termination proceedings are quasi-criminal in nature and therefore, under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), courts should be vigilant about admitting out-of-court statements that have not been tested by meaningful cross-examination. Termination proceedings are civil proceedings; they are not quasi-criminal. See Minn. R. Juv. Protect. P. 3.02, subd. 1 (stating "the court shall only admit evidence that would be admissible in a civil trial").
Mother argues that the district court committed reversible error by admitting opinion testimony of the guardian ad litem (GAL) that termination would serve the children's best interests. Mother contends that there was no foundation for the opinion and no offer of proof as to whether the opinion was a lay or expert opinion. "[E]videntiary rulings . . . are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error." Alpha Real Estate Co. of Rochester, 664 N.W.2d at 309. Because mother did not raise these issues in her motion for a new trial, they are waived.
Mother also argues that the district court erred by allowing Poulton and Johnson to testify about conversations that they had with other social-service providers. Over mother's objections, the district court allowed the testimony, not to prove the truth of the matter asserted, but as a basis for explaining the CFASD's actions and the services that it provided mother. Mother did not assign the admission of this testimony as error in her new trial motion. Because mother did not raise this issue in her new-trial motion, it is waived.
Mother argues that admitting documents based on foundation provided by social workers deprived her of her constitutional, statutory, and rule-based rights to cross-examine the authors of the documents. The right to cross-examine witnesses is part of the general guarantee of due process. In re Welfare of J.W., 391 N.W.2d 791, 794 (Minn. 1986) (citing Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970)). But "[i]t is an established element of trial court discretion in personal welfare cases to admit written materials as hearsay evidence, provided that the affected parties have an opportunity to dispute the material, either by calling the authors of those reports as witnesses or otherwise responding." In re Welfare of D.J.N., 568 N.W.2d 170, 175 (Minn.App. 1997) (citing Stanford v. Stanford, 266 Minn. 250, 258, 123 N.W.2d 187, 192-93 (1963)). The record establishes that mother was aware before trial that the CFASD intended to offer the exhibits. She could have subpoenaed the authors as witnesses. Therefore, mother has failed to establish that admitting the exhibits based on foundation provided by social workers deprived mother of her right to cross-examine the authors of the exhibits.
Sufficiency of the evidence
Mother argues that the CFASD failed to prove by clear and convincing admissible evidence that her parental rights should be terminated under either statutory basis asserted in the petition. She also argues that the CFASD failed to offer her reasonable rehabilitative services, that she complied with all of the case-plan requirements that were within her control, and that it was not in her children's best interests to terminate her parental rights.
On appeal in a termination proceeding, "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). The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights. In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see Minn. Stat. § 260C.301, subd. 1(b) (listing nine criteria). "[T]he evidence must address conditions that exist at the time of the hearing. . . . When considering termination of parental rights, the court relies not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child." In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotation and citation omitted). The law requires the district court to make specific findings on the nature and extent of efforts to rehabilitate the parent and reunite the family. Minn. Stat. § 260C.301, subd. 8(1) (2002). "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). The primary consideration in all TPR determinations is the best interests of the child. Minn. Stat. § 260C.301, subd. 7 (2002).
The district court determined that mother's parental rights should be terminated under two statutory bases, Minn. Stat. § 260C.301, subd. 1(b)(2) (refusing or neglecting to comply with parental duties, and reasonable efforts failed to correct conditions leading to out-of-home placement), (4) (palpable unfitness) (2002). Under the statute, parental rights may be terminated if the court finds
that a parent is palpably unfit to be a party to the parent and child relationship because of 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.
Id., subd. 1 (b)(4). The district court found
that the Department of Human Services, and other agencies, [have] expended enormous effort in an attempt to allow [mother] to acquire the minimal skills required to parent two children. It is equally clear that those efforts have failed and will continue to fail in the foreseeable future. [Mother's] inability to deal with her children's behavioral issues leaves her overwhelmed as a parent and puts her children at risk if in her care.
. . . [Mother] simply does not have the capacity to parent two children, nor to engage in constructive efforts to improve her ability to parent.
Mother argues that there is no evidence that she has a mental illness or other disability that prevents her from learning how to parent her children. But mother admitted that she has developmental disabilities that affect her ability to adequately care for and parent her children. A parent's condition can provide a context for conduct that supports a determination of palpable unfitness even where the conduct alone may not compel that determination. In re Welfare of A.V., 593 N.W.2d 720, 721-22 (Minn.App. 1999).
Furthermore, there was testimony and documentary evidence that the intensive community-based, in-home services that mother received over the years had not solved the parenting problems that brought the children to the attention of the county in the first place. "If a parent's behavior is likely to be detrimental to the children's physical or mental health . . ., the parent can be found palpably unfit and have his parental rights terminated." In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn.App. 2003) (citing In re Welfare of H.M.P.W., 281 N.W.2d 188, 191 (Minn. 1979)). The district court's findings are not clearly erroneous and they address mother's palpable unfitness to parent. There is clear and convincing evidence that this statutory basis for termination exists.
Mother also argues that under Minn. Stat. § 260C.212, subd. 2 (2002), the court's best-interest's analysis must include an "individualized determination" with respect to each child and that the district court failed to make separate determinations for K.D. and J.D. Mother asserts that it is clear that she does not have the same problems with her son as with her daughter and that she is able to meet K.D.'s needs more easily. Mother contends that if the court had addressed the children's best interests separately, it would not have terminated her rights to K.D. But mother did not raise this issue at trial or in her motion for a new trial, and, therefore, it is waived. Alpha Real Estate Co. of Rochester, 664 N.W.2d at 309. Even if we were to consider this claim, mother's reliance on section 260C.212, subd. 2, is misplaced. That subdivision applies to the best-interests analysis used when making an out-of-home placement decision, rather than a TPR decision. The best-interests analysis for TPR proceedings is a balancing test. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn.App. 1992).
In her reply brief, mother argues that the district court's findings do not adequately explain why the children's best interests are served by terminating mother's parental rights. Mother did not raise this issue in her principal brief but argues that the CFASD raised the issue in its brief. "The reply brief must be confined to new matter raised in the brief of the respondent." Minn. R. Civ. App. P. 128.02, subd. 3. We address mother's argument in the interests of justice. Minn. R. Civ. App. P. 103.04.
The best-interests analysis for TPR proceedings requires the district court to balance 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. R.T.B., 492 N.W.2d at 4. "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.
The district court found that the children had flourished in a stable environment while in foster care. For example, J.D. overcame some of her educational developmental delays and required fewer special-education services than she did when living with mother, and J.D.'s aggressive behavior toward K.D. diminished. The district court also found that despite extensive efforts to help mother "acquire the minimal skills required to parent two children . . . [mother] simply does not have the capacity to parent two children, nor to engage in constructive efforts to improve her ability to parent." These findings adequately explain why the district court found it in the children's best interests to terminate mother's parental rights.
Mother argues that because many of the district court's findings were based on evidence that should not have been admitted, the court's findings were in error. Mother argues that finding number 13 was based on evidence that was not admitted for its truth; that there is no evidence to support finding 24.8; that findings 21.1 and 21.2 contradict the evidence; and that the foster mother testified about only one telephone call during her visits, not frequent calls as detailed in finding 23.
Finding 13 is lengthy and mother does not identify which part of the finding she finds objectionable. Therefore we are unable to address her argument. Mother is correct that the evidence does not support finding 24.8, which addresses group conferencing. The district court excluded testimony concerning family group conferencing. But, when the findings necessary for a legal conclusion are adequately supported, a court's inclusion of other unsupported findings is harmless error. Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979).
Findings 21.1 and 21.2 pertain to mother's admission to Oakwood and the admission requirements. Mother argues that the evidence contradicts the findings, but she does not identify the contradiction. Our review of the record does not reveal a contradiction. Mother also contends that the district court's finding that "[t]estimony from the foster parent noted that [mother] would often call during visits" is erroneous. The record supports mother's assertion that the foster mother testified about only one telephone call during visits. However, as we have already explained, when the findings necessary for a legal conclusion are adequately supported, including other unsupported findings is harmless error. Hanka, 276 N.W.2d at 636.
Adoption of Respondent's Proposed Findings
Citing Goldberg v. Kelly, mother argues that by adopting verbatim the CFASD's proposed findings, the district court failed to exercise its duty to independently evaluate the evidence and violated her right to procedural due process. See Goldberg, 397 U.S. at 271, 90 S. Ct. at 1022 (holding due process requires right to impartial decision maker and right to reasonable decision based solely on the record).
"[V]erbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se." Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn.App. 1992), review denied (Minn. Feb. 12, 1993). However, it raises questions as to whether the district court independently evaluated both parties' testimony and documentary evidence. Id. But where the record supports the findings and shows that the district court conscientiously considered all of the issues, such adoption is not improper and will not provide a basis for reversal. Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn.App. 1987), review denied (Minn. May 5, 1988).
The CFASD argues that mother waived consideration of this issue on appeal because she did not include any issue as to error in the form of the findings in her motion for a new trial. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating reviewing court must generally consider only those issue that the record shows were presented to and considered by the district court). Because mother's new-trial motion only generally alleged that the district court erred in concluding that evidence in the record demonstrates that statutory grounds for termination were met, and charged error in the court's evidentiary rulings, mother has waived this issue on appeal. We note, however, that the district court included its own memorandum addressing the core issues of this case, which demonstrates that it conscientiously considered the issues before it. Mother's argument is therefore without merit.