In the Matter of the Welfare of the Children of: S. E. N. and R. D. J., Jr., Parents. ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-2009
In the Matter of the Welfare of the
Children of: S. E. N. and R. D. J., Jr., Parents.
Filed May 23, 2016
Affirmed
Jesson, Judge
Nobles County District Court
File No. 53-JV-15-95
Kathleen A. Kusz, Nobles County Attorney, Adam E. Johnson, Assistant County
Attorney, Worthington, Minnesota (for respondent county)
Steven R. Forrest, Hedeen, Hughes & Wetering, Worthington, Minnesota (for appellant-
mother S.E.N.)
Kayla Johnson, Smith & Johnson, Slayton, Minnesota (for respondent-father R.D.J., Jr.)
Thomas Joseph Nolan, Jr., Nolan Law Offices, Minneapolis, Minnesota (for guardian ad
litem)
Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Toussaint,
Judge.
UNPUBLISHED OPINION
JESSON, Judge
Appellant-mother S.E.N. argues that the district court abused its discretion by
terminating her parental rights on the grounds that (1) the county failed to make

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
reasonable efforts to reunite the family and (2) the conditions leading to the children’s
out-of-home placement have not been corrected. She also argues that the district court
abused its discretion by admitting evidence of a parenting-capacity assessment and taking
judicial notice of evidence from a prior child-protection proceeding. We affirm.1
FACTS
S.E.N. is the mother of three children, ages 8, 7, and 5. S.E.N. has a history of
chemical-dependency and mental-health challenges. Her interaction with the child-
protection system began in 2011, when Steele County Human Services filed a child-in-
need-of-protective-services (CHIPS) petition after she failed to care for the children on
two occasions, including once leaving them unattended while she went out drinking. The
children were taken into protective custody and placed in foster care with their maternal
grandparents.
In 2012, S.E.N. had a drug overdose, which was an apparent suicide attempt, and
was treated at a psychiatric hospital in Rochester. She received chemical-dependency
treatment, individual therapy, and family therapy with her children at an inpatient
program in Garden City. After she completed that program in September 2012, she went
to live with her parents and children in Adrian, and in February 2013, the Steele County
child-protection case was dismissed. In April 2013, while living at her parents’ home,
S.E.N. had a mental-health crisis and made a suicide attempt through an overdose of
hypertension medication.
1
The children’s father, R.D.J, Jr., does not appeal the district court’s termination of his
parental rights.
2
S.E.N. moved to Worthington with the children in July 2013 and was generally
sober until November 2014. During this period of time, S.E.N. participated in dialectical
behavioral therapy, which was designed to help her deal with intense emotions and
impulsivity. She had received diagnoses including generalized anxiety disorder, alcohol
dependence in remission, major depressive disorder-moderate, and features of personality
disorder with dependent and borderline traits. Her therapist at that time believed that
S.E.N. was making progress, but S.E.N. discontinued therapy in May 2014.
On November 8, 2014, S.E.N. was involved in a serious motor vehicle accident
while driving under the influence of alcohol with the three children in her car. None of
the children were buckled or otherwise secured in the car, and the youngest child
sustained an injury to her head in the crash. S.E.N. was arrested, and the children were
placed in the emergency custody of Nobles County Community Services (the county).
Two days later, S.E.N. told an agency supervisor that she had made a mistake by drinking
and that she was trying to kill herself and forgot that the children were in the car. In
December 2014, S.E.N. admitted to a CHIPS petition filed by the county. The children
were placed in relative foster care, and S.E.N. received a case plan, which required her to
participate in mental-health services and parenting classes, have a parenting-capacity
assessment, and maintain a period of sobriety.
Barbara Carlson, a licensed professional clinical counselor and alcohol and drug
counselor, completed the parenting-capacity assessment. To do so, she conducted a
personal interview, administered testing, and observed a parent-child visit. Based on
information from this assessment, Carlson formed an opinion that S.E.N. had not been
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providing a safe and stable environment for the children and that reunification was not in
their best interests.
S.E.N. also received a rule-25 chemical-dependency assessment, and in February
2015, she successfully completed a 30-day inpatient dual chemical-dependency and
mental-health program in St. Paul. She then moved to Faribault to live with her
boyfriend of four years. She started to attend the Fountain Centers in Faribault for an
aftercare intensive outpatient chemical-dependency-only program, but did not complete it
because she stopped attending group sessions due to depression. Her prognosis at
discharge was poor, with a moderate-to-high risk of relapse.
In March 2015, S.E.N. began attending weekly therapy sessions with another
psychologist who diagnosed her with major depressive disorder and anxiety disorder.
That psychologist believed that S.E.N. made progress in treatment and had the ability to
parent while sober, but that she would need alcohol monitoring, parenting classes, insight
into her mental health, and a support system rather than her current mode of crisis
management, to assure stability for the children. The psychologist could not predict a
timeline for S.E.N.’s stability.
In April 2015, S.E.N. was hospitalized with suicidal ideation, and the children’s
therapists wrote a joint letter recommending reduced visitation. In June 2015, the county
filed a petition to terminate parental rights. The Nobles County CHIPS case manager
indicated that, although S.E.N. was generally compliant with her case plan, she did not
successfully complete aftercare, did not have stable mental health, and did not respond to
efforts to keep in contact. The case manager was concerned because in the past S.E.N.’s
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relapse and concurrent dangerous behavior came with little notice while she was
receiving numerous services.
The children’s guardian ad litem in Nobles County also recommended termination
of parental rights based on the children’s best interests. She cited the car accident, which
had exposed them to grave danger, as well as several times when they were left home
alone. The guardian ad litem opined that S.E.N. was just beginning to gain insight into
her alcoholism and mental illness, but the children needed permanency now.
The district court conducted a trial and issued findings of fact, conclusions of law,
and an order terminating the parental rights of both parents. The district court found that
the children had spent 569 days in out-of-home placement and terminated S.E.N.’s
parental rights on the following grounds: (1) that she had substantially, repeatedly, or
continuously neglected to comply with the duties of the parent-child relationship, under
Minn. Stat. § 260C.301, subd. 1(b)(2) (2014); (2) that she was palpably unfit to be a
party to the parent-child relationship, under Minn. Stat. § 260C.301, subd. 1(b)(4) (2014);
and (3) that following a determination of neglect or dependency, reasonable efforts under
the court’s direction had failed to correct the conditions leading to the determination,
under Minn. Stat. § 260C.301, subd. 1(b)(5) (2014).
S.E.N. moved for amended findings or a new trial, arguing that the district court
made insufficient findings on whether conditions leading to the determination had been
corrected and whether the county had provided reasonable efforts. She also argued that
the district court had improperly gone beyond the scope of judicial notice by admitting
evidence of her circumstances in the Steele County CHIPS case and that Carlson’s
5
parenting-capacity assessment and testimony lacked foundation from which to draw
conclusions regarding S.E.N.’s parental capabilities. The district court denied the
motion, and S.E.N. appeals.
DECISION
A district court may terminate parental rights if clear and convincing evidence
establishes at least one statutory ground for termination and if termination is in the child’s
best interests. In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004). On
appeal, this court reviews the district court’s findings of fact for clear error. In re Welfare
of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). “A finding is clearly
erroneous if it is either manifestly contrary to the weight of the evidence or not
reasonably supported by the evidence as a whole.” In re Welfare of Children of T.R., 750
N.W.2d 656, 660-61 (Minn. 2008) (quotation omitted). But we review the ultimate
determination that the findings fit the statutory criteria for an abuse of discretion. In re
Welfare of Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), review denied
(Minn. Jan. 17, 2012).
S.E.N. does not expressly challenge the district court’s termination of her parental
rights on the grounds of failure to comply with the duties of the parent-child relationship
and palpable unfitness as a parent. But she argues that the county did not engage in
reasonable reunification efforts, which are required for termination of parental rights. See
In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005) (requiring clear and
convincing evidence of reasonable efforts to support termination). She also argues that
the district court erred by terminating parental rights on the ground that conditions
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leading to the out-of-home placement were not corrected. And she argues that the district
court abused its discretion by admitting the parenting-capacity assessment and evidence
of events that occurred during the prior Steele County CHIPS proceeding.
I
In every termination-of-parental-rights proceeding, the district court must make
specific findings that the county made reasonable efforts to rehabilitate the parent and
reunite the family. Minn. Stat. § 260C.301, subd. 8 (2014); see also Minn. Stat.
§ 260.012(a) (2014) (requiring reasonable reunification efforts in child-protection cases,
absent certain exceptions not at issue here). “[T]he provision of reasonable efforts must
be evaluated by the court in every case.” T.R., 750 N.W.2d at 664 (quotation omitted).
In determining whether efforts were reasonable, a district court considers whether the
services provided were (1) relevant to the child’s safety and protection; (2) adequate to
meet the child’s and family’s needs; (3) culturally appropriate; (4) available and
accessible; (5) timely and consistent; and (6) realistic under the circumstances. Minn.
Stat. § 260.012(h) (2014). The district court also considers the quality of the county’s
effort and the length of time the county was involved with the family. In re Welfare of
H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).
“Reasonable efforts” at rehabilitation must “go beyond mere matters of form so as to
include real, genuine assistance.” In re Welfare of Children of S.W., 727 N.W.2d 144,
150 (Minn. App. 2007) (quotation omitted), review denied (Minn. Mar. 28, 2007). But
reasonable efforts does not require extraordinary or exhaustive efforts. See In re Welfare
of S.Z., 547 N.W.2d 886, 892-93 (Minn. 1996) (stating that “reasonable efforts” did not
7
require services that were unlikely to “bring about lasting parental adjustment enabling
the placement of [the child] with [the parent] within a reasonable period of time”).2
The district court found that the county had provided a number of services to
S.E.N., including inpatient and outpatient dual-diagnosis chemical-dependency and
mental-health programming, individual mental-health therapy, financial and
transportation assistance, and supervised visitation. It also found that the children
received a significant number of services, including individual therapy, medical and
dental care, community activities, and in-home daycare. These findings are not clearly
erroneous.
In addition to reasonable efforts toward reunification, a social services agency is
required to seek permanency for children in foster care within statutory guidelines. A
permanency progress review is required within six months after a child has been placed
in foster care. Minn. Stat. § 260C.204 (2014). And generally, a district court must
commence permanency proceedings no later than 12 months after a child is placed in
foster care or the care of a non-custodial parent. Minn. Stat. § 260C.503 (2014). S.E.N.
argues that, despite offering services to her, the county failed to provide services to
improve her circumstances, but rather “took active steps to create inertia” towards a
desired result of terminating her parental rights. Specifically, she points to the therapists’
April 2015 letter recommending reduced visitation and the case manager’s June 2015 e-
2
The county is not asserting that the presumption applies that reasonable efforts have
failed because of a parent’s chemical dependency and failure of treatment under Minn.
Stat. § 260C.301, subd. 1(b)(5).
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mail to an adoption counselor, stating that she did not know if she could “get away” with
further reducing parental contact.
But by April, the district court had already held a review hearing, at which the
children’s guardian ad litem had submitted reports recommending to the district court that
a permanency petition be filed in 30 days in connection with the county’s obligation to
conduct concurrent permanency planning. At a review hearing in March 2015, the
district court ordered supervised visitation to continue, but also ordered the county to
conduct permanency planning. After another review hearing in April, the district court
continued to recommend services, but found that the children had been in out-of-home
placement for 388 days, which was past permanency deadlines, and ordered a
permanency petition to be filed. Thus, at the time of the psychologists’ April letter and
the county’s June e-mail, the county was seeking the children’s permanent placement as
required by statute.
Minnesota law requires reasonable efforts at reunification, not every conceivable
effort. Given the lengthy time these children were in out-of-home placement, the
county’s efforts were more than reasonable. We therefore reject S.E.N.’s argument and
conclude that clear and convincing evidence supports the determination that the county
made reasonable efforts at reunification.
II
S.E.N. challenges the district court’s determination that the conditions which led
to the out-of-home placement failed to be corrected. Parental rights may be terminated if,
“following the child’s placement out of the home, reasonable efforts, under the direction
9
of the court, have failed to correct the conditions leading to the child’s placement.”
Minn. Stat. § 260C.301, subd. 1(b)(5). To terminate parental rights, the district court
must find clear and convincing evidence that the conditions existing at the time of the
trial will continue for a prolonged indeterminate period. In re Welfare of P.R.L., 622
N.W.2d 538, 543 (Minn. 2001).
Even if a parent has substantially complied with the terms of a case plan, a district
court may still find a statutory basis to terminate parental rights when the record contains
clear and convincing evidence supporting termination. In re Welfare of Child of J.K.T.,
814 N.W.2d 76, 89 (Minn. App. 2012). “The critical issue is not whether the parent
formally complied with the case plan, but rather whether the parent is presently able to
assume the responsibilities of caring for the child.” Id.
The district court found that, although S.E.N. had substantially complied with
some parts of her case plan, the conditions that led to the children’s removal from the
home—her dual diagnoses of mental-health and chemical-dependency issues, which led
to the children’s neglect—have not been corrected. S.E.N. argues that, at the time of
trial, she was sober and had the basic skills to maintain sobriety and her mental health.
She maintains that her personal therapist’s testimony that she was capable of further
progress supports a conclusion that her mental-health and chemical-dependency issues
were not likely to continue for a prolonged period.
But the record shows that, while S.E.N. was making some progress in addressing
these issues, she was still fragile. Her counselor at the Fountain Centers testified that she
was unable to complete that program because of her mental-health concerns, and he gave
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her a poor prognosis. Barbara Carlson testified that, during a visitation session with the
children, S.E.N. was unable to handle the children’s comments about the car accident and
left the room crying, causing the children anxiety. And S.E.N.’s treating therapist
testified that for reunification to occur, S.E.N. would need to develop better support
systems. Further, S.E.N. has not demonstrated insight into her need for additional
assistance: she testified that she did not need further chemical-dependency treatment
because she was sober at the time of trial. We conclude that clear and convincing
evidence supports the district court’s determination that the statutory requirement that
S.E.N. failed to correct conditions leading to the out-of-home placement was met.
III
S.E.N. argues that the district court abused its discretion by admitting Carlson’s
testimony and parenting-capacity assessment because it amounted to a novel scientific
theory and lacked foundational reliability. The district court has broad discretion in
deciding whether to admit evidence, and we will not disturb that ruling unless it amounts
to an abuse of discretion. J.K.T., 814 N.W.2d at 93.
If expert evidence involves a “novel scientific theory, the proponent must establish
that the underlying scientific evidence is generally accepted in the relevant scientific
community.” Minn. R. Evid. 702. The district court generally holds a hearing to examine
this issue. State v. Edstrom, 792 N.W.2d 105, 109 (Minn. App. 2010). In denying
S.E.N.’s posttrial motions, the district court found that Carlson’s opinion and testimony
had sufficient foundation and did not reflect a novel scientific theory. We agree. In
reporting to the court in juvenile-protection matters, social services agencies
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may submit written information from collateral sources,
including, but not limited to, physical and mental health
assessments, parenting assessments, or information about the
delivery of services or any other relevant information
regarding the child’s safety, health, or welfare in support of
the report or as a supplement to the report.
Minn. R. Juv. Prot. P. 38.01, subd. 7. Parenting assessments are commonly used by
social services agencies when termination of parental rights is being considered. See,
e.g., In re Welfare of Child of R.D.L., 853 N.W.2d 127, 129 (Minn. 2014) (noting, in
proceeding to terminate parental rights, that parents’ case plan required following
recommendations made after parenting assessments). Therefore, the use of parenting
assessments is authorized by the rules of juvenile protection procedure and is not
considered a novel scientific theory.
When expert testimony is not based on novel scientific evidence, it must be shown
to “be relevant, be given by a witness qualified as an expert, and be helpful to the trier of
fact.” Goeb v. Theraldson, 615 N.W.2d 800, 814 (Minn. 2000). An expert’s opinion is
helpful if it provides “scientific, technical, or other specialized knowledge [that] will assist
the trier of fact to understand the evidence or to determine a fact in issue.” Minn. R. Evid.
702. Current literature suggests that, in conducting forensic evaluations in child-
protection matters, best practice dictates that professionals use appropriate and relevant
methods of data collection, conduct appropriate testing, and support clinical
interpretations and recommendations with data gathered and presented in their reports.
Antoinette Kavanaugh, et al., Obtaining and Utilizing Comprehensive Forensic
Evaluations: The Applicability of One Clinic’s Model, 6 Nev. L. J. 890, 893-94 (2006).
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Here, Carlson conducted the parenting-capacity assessment in accordance with
professional standards, using instruments such as the parenting stress index and a
domestic-violence inventory. See id. at 912. It therefore meets the standards of rule 702.
S.E.N. argues that, although Carlson was making psychological diagnoses, she was not a
licensed psychologist. But Carlson’s report contained an addendum that was co-signed by
a licensed psychologist. The district court did not abuse its discretion by admitting the
parenting-capacity assessment.
IV
S.E.N. argues that the district court abused its discretion by going beyond the
scope of judicial notice when it admitted evidence of the court file in the Steele County
CHIPS matter, including reports filed by the guardian ad litem in that case. The
Minnesota Rules of Evidence allow the district court to take judicial notice of
adjudicative facts in civil cases if those facts are “not subject to reasonable dispute”
because they are either “generally known within the territorial jurisdiction of the trial
court or” they are “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Minn. R. Evid. 201(b). Thus, a
district court may not take judicial notice of testimony from a previous proceeding
because that testimony is a matter in dispute. In re Zemple, 489 N.W.2d 818, 820 (Minn.
App. 1992). Specifically, in juvenile protection proceedings, “[i]n addition to the judicial
notice permitted under the Rules of Evidence,” the district court “may take judicial notice
only of findings of fact and court orders in the juvenile protection court file and in any
13
other proceeding in any other court file involving the child or the child’s parent or legal
custodian.” Minn. R. Juv. Prot. P. 3.02, subd 3.
A new trial based on improper evidentiary rulings is available only if the
complaining party demonstrates prejudicial error, and “[a]n evidentiary error is not
prejudicial if the record contains other evidence that is sufficient to support the findings.”
J.K.T., 814 N.W.2d at 93. To the extent that the district court’s factual findings in the
Steele County CHIPS proceeding contained the guardian ad litem’s reports from that
case, the district court did not abuse its discretion by taking judicial notice of them. But
to the extent that such reports were not part of those findings, their admission in this case
amounted to harmless error. The guardian ad item who wrote the reports testified in this
matter and was subject to cross-examination. And even without the reports, the record
contains evidence sufficiently supporting the district court’s termination of S.E.N.’s
parental rights. See In re Welfare of D.J.N., 568 N.W.2d 170, 175-76 (Minn. App. 1997)
(holding that, although “[i]t was a mistake for the trial court . . . to take judicial notice of
the entire [previous juvenile-protection] files,” because that appellant failed to show
prejudice, there was no reversible error). S.E.N. has failed to demonstrate prejudice from
the admission of the reports, and she is not entitled to relief.
V
Finally, we note that S.E.N. has not challenged the district court’s determination
that the children’s best interests would be served by termination of her parental rights.
“[T]he best interests of the child must be the paramount consideration” in a proceeding to
terminate parental rights. Minn. Stat. § 260C.301, subd. 7 (2014). The district court
14
balances the child’s and parent’s interests in preserving the parent-and-child relationship
with any competing interests of the child, such as a stable environment and health
considerations. Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3); In re Welfare of R.T.B., 492
N.W.2d 1, 4 (Minn. App. 1992).
Here, the district court made best-interests findings regarding each of the three
children. It found that the children had immediate needs for permanent, consistent,
emotionally stable caregivers, which would best be served by adoption, rather than
waiting an unforeseeable length of time for S.E.N. to acquire the skills necessary to meet
their needs. “Each delay in the termination of a parent’s rights equates to a delay in a
child’s opportunity to have a permanent home . . . .” In re Welfare of J.R., Jr., 655
N.W.2d 1, 5 (Minn. 2003). Although S.E.N. was sober at the time of trial, she has not
demonstrated that she is able to sustain the day-in and day-out tasks of parenting three
children, and her therapist testified that she “can’t really predict a timeline” for her
stability.
After 569 days in out of home placement, it was time for these children to have a
permanent home and family. Because the record supports the district court’s findings,
the district court did not abuse its discretion by concluding that the termination of
S.E.N.’s parental rights is in the children’s best interests.
Affirmed.
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