Opinion
No. C4-99-533.
Filed October 19, 1999.
Appeal from the District Court, Hennepin County, File No. J496067383.
William E. McGee, Hennepin County Public Defender, Peter W. Gorman, Assistant County Public Defender, (for appellant)
Mike Hatch, Attorney General, and Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, (for respondent)
James D. Stewart, Jr., (for children)
Kimary S. Knutson, (for guardian ad litem)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
On appeal from the trial court's order placing D.E. (born 9-30-81), E.E. (born 10-19-83), T.E. (born 3-29-85), and C.E. (born 4-8-86) in permanent foster care and terminating parental rights to S.E. (born 4-11-97), the mother argues the trial court abused its discretion in consolidating the two petitions, permitting a mid-trial amendment, admitting the children's testimony regarding placement preference, adopting the county's findings, taking judicial notice of certain evidence, placing her four oldest children in permanent foster care, and terminating her parental rights to her youngest child. We affirm.
DECISION I.
This court reviews a trial court's consolidation of two actions and its decisions on a mid-trial amendment and evidentiary rulings under an abuse of discretion standard. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (holding trial court possesses wide discretion in granting or denying amendment); Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24, 26 (Minn. 1992) (applying abuse of discretion standard in reviewing consolidation); Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (stating trial court exercises broad discretion on evidentiary rulings). While a trial court has "broad discretion" when considering consolidation, it must balance convenience and judicial economy against the right to a fair trial. Bucko v. First Minn. Sav. Bank (F.S.B.), 471 N.W.2d 95, 98-99 (Minn. 1991); see Minn.R.Civ.P. 42.01 (allowing consolidation in actions involving common question of law or fact to avoid unnecessary costs or delay); see also Minn.R.Civ.P. 42.02 (permitting separate trial "in furtherance of convenience or to avoid prejudice" or when "conducive to expedition or economy").
The mother argues the trial court abused its discretion by consolidating the petitions for permanent foster care placement for the four oldest children and for termination of parental rights ("TPR") to S.E. because the evidence properly admitted on the permanency petition was prejudicial to a fair trial on the TPR petition. The record shows: (1) the two proceedings had common questions of law and fact, including whether the conditions that led to the children's out-of-home placement have been corrected, the mother's efforts to correct the conditions, and the reasonableness of the county's reunification efforts; (2) the petitions shared much, if not all, of the same evidence and witnesses; (3) the mother and the county were parties to both petitions; and (4) both petitions were concerned with each child's best interests. Given our standard of review and the fact that a trial court can disregard evidence improperly admitted, we conclude the trial court did not abuse its discretion by consolidating the two petitions. See Chris/Rob Realty v. Chrysler Realty Corp., 260 N.W.2d 456, 459 (Minn. 1977) (stating appellate court should trust in ability of trial court without jury to be objective and disregard improperly admitted evidence).
The mother also argues the trial court abused its discretion by permitting a mid-trial amendment to the TPR petition, which included a third ground for termination under Minn. Stat. § 260.221, subd.1(b)(8) (1998) (neglected and in foster care). See Minn.R.Juv.P. 53.04 (authorizing free amendment "in the interest of justice and the welfare of the child"); Minn.R.Civ.P. 15.01 (permitting liberal amendment "when justice so requires"); Fabio, 504 N.W.2d at 761 (providing trial court must consider potential prejudice to objecting party). But the record shows: (1) the mother and the county presented evidence on all three termination theories; (2) the only additional factor considered under a "neglected and in foster care" analysis is an undisputed issue concerning the mother's visitation with S.E.; and (3) the trial court found that all three grounds supporting termination had been proven. Under these circumstances, the trial court did not abuse its discretion by permitting the county's mid-trial amendment. See In re Welfare of S.Z., 547 N.W.2d 886, 890 (Minn. 1996) (holding trial court needs only one statutory ground to support termination).
The mother further argues the trial court abused its discretion in considering her children's wishes on placement preference, prohibiting her counsel from directly cross-examining the children, and excluding her from the in-chambers hearing while the children testified. But a court may consider a child's preference, especially in cases where the child is older. See In re Klugman, 256 Minn. 113, 122, 97 N.W.2d 425, 431 (Minn. 1959) (holding preference of children who are of sufficient age to exercise discretion in choosing their custodian entitled to considerable weight). In addition, the record shows: (1) the children were 12, 13, 15, and 17 at the time of the trial; (2) the county, guardian ad litem, and children's counsel were concerned about the impact of the children's testimony on future visits with their mother and their ability to speak freely and truthfully about their placement preference; (3) the mother was excluded for a small part of the proceeding and her counsel was present during the in-chambers hearing; and (4) the trial court decided placement based on the children's best interests. Considering the applicable statutory provisions and the balancing of the interests involved, we cannot say the trial court abused its discretion in excluding the mother from the in-chambers hearing in which her children expressed their placement preference. See Minn. Stat. § 260.155, subds. 4a and 5 (1998) (permitting juvenile court to take child's testimony informally, require submissions of questions to court, and exclude parent where in best interests of child); Minn.R.Juv.P. 42.03 (allowing exclusion of any person when in best interests of child); In re Welfare of A.Y.-J., 558 N.W.2d 757, 759-60 (Minn.App. 1997) (holding no due process violation where father incarcerated in federal prison had submitted deposition in TPR proceeding), review denied (Minn. Apr. 15, 1997); In re Welfare of Copus, 356 N.W.2d 363, 365 (Minn.App. 1984) (finding no prejudice to hospitalized father because his counsel attended hearing and cross-examined witnesses).
II.
The mother also argues the trial court erred by adopting verbatim the county's proposed findings and by taking judicial notice of certain documents. We disagree. Adoption of the county's findings, especially where the mother chose not to submit findings, does not dictate reversal per se. See, e.g., In re Welfare of M.J.L., 582 N.W.2d 585, 588 n. 3 (Minn.App. 1998) (rejecting challenge to trial court's adoption, with few alterations, of county's proposed findings). Moreover, the record demonstrates: (1) the trial court took nearly two weeks to review the county's proposed findings; (2) the mother was given advance notice of the challenged documents; (3) the documents reveal evidence presented at trial; and (4) the trial court limited its judicial notice to factual statements contained in the documents. Under these circumstances, we conclude the trial court did not abuse its discretion by taking judicial notice of the four pieces of evidence, it made an independent review of the evidence, and its findings were based on the record.
III.
The mother further argues the evidence is insufficient to support either the permanency order or the termination order. But the record reveals: (1) the mother has an extensive history of behavioral problems stemming from her paranoid schizophrenia and medication non-compliance; (2) the mother's behavior has endangered her four oldest children and has resulted in her hospitalization on numerous occasions; (3) the mother also suffers from significant, multi-focal organic cerebral dysfunction that substantially impairs her ability to parent and to receive assistance from others; (4) the mother has verbally abused and threatened authority figures and service providers; (5) the mother has little insight into her mental illness and into the problems that caused her children to be removed from her home; (6) the mother does not appreciate the importance of permanency, structure, and education for her children; (7) D.E., E.E., T.E., and C.E. prefer to remain together in their foster home and have formed an attachment to their foster parents; (8) S.E. would be in immediate risk of harm in the mother's care and custody; (9) S.E. has lived in foster care his whole life; (10) remaining in foster care would result in multiple placements for S.E; (11) the mother has never had unsupervised visitation with S.E. and has returned him to his foster parents early when she became tired; (12) testimony was presented at trial that as a child grows older, his needs increase, and the mother has acknowledged she has difficulties raising older children; (13) despite services provided to the mother addressing child development issues, she could not identify in what ways S.E. might develop and how she could promote his development; and (14) none of the expert witnesses testified in favor of reunification.
After a careful review of the evidence, we conclude the trial court's findings address the statutory criteria and are supported by substantial evidence. See Minn. Stat. § 260.191, subd. 3b (1998) (governing permanent placement); Minn. Stat. § 260.221, subd. 1(b)(4), (5), (8) (1998) (authorizing termination for palpable unfitness, failure to correct CHIPS conditions, neglected and in foster care); Minn.R.Juv.P. 59.05 (requiring allegations of petition be supported by clear and convincing evidence); In re Welfare of M.O.O., 462 N.W.2d 370, 375 (Minn. 1990) (setting forth standard of review in termination proceedings). While we are sympathetic to the mother's desire to be reunited with her children and recognize the efforts she has made to improve herself, we cannot say the trial court clearly erred in reaching its conclusion to place D.E., E.E., T.E., and C.E. in permanent foster care or to terminate her parental rights to S.E.