In the Matter of the WELFARE OF the CHILD OF: D.L.D. and M.E.F., Parents.
No. A14-2106.
Court of Appeals of Minnesota.
June 8, 2015.
Review Denied July 21, 2015.
865 N.W.2d 315
For the above reasons, I respectfully dissent.
Benjamin Denton, Pipestone, MN, for respondent, M.E.F.
Damain Sandy, Pipestone County Attorney, Pipestone, MN, for respondent, Pipestone County.
Carol Morgan, Luverne, MN, guardian ad litem.
Considered and decided by HALBROOKS, Presiding Judge; SCHELLHAS, Judge; and HOOTEN, Judge.
OPINION
SCHELLHAS, Judge.
Appellant seeks reversal of a permanency disposition order transferring permanent legal and physical custody of her child to respondent, the child‘s father. We affirm.
FACTS
On July 14, 2008, appellant D.L.D. (mother) gave birth to K.D.D.F. Respondent M.E.F. (father) is the adjudicated father of K.D.D.F. A district court granted mother sole legal and physical custody of K.D.D.F. and, in March 2009, granted father reasonable and liberal parenting time with K.D.D.F. In November 2012, the court granted mother and father joint legal and physical custody of K.D.D.F., with mother‘s home serving as the child‘s principal residence.
In March 2014, police executed a search warrant at mother‘s home, where they found approximately 24 grams of marijuana and numerous prescription medications. The State of Minnesota charged mother with three counts of fifth-degree controlled-substance crime (sale of marijuana).1 Respondent Pipestone County, through Southwest Health & Human Services (SWHHS), petitioned the juvenile court to adjudicate K.D.D.F. as a child in need of protection or services (CHIPS).2 Following an emergency protective care hearing, the juvenile court placed K.D.D.F. with father, subject to protective supervision by SWHHS, and mother stipulated to the juvenile court‘s CHIPS adjudication of K.D.D.F. as a child whose environment was such as to be injurious or dangerous to her.
In August 2014, father petitioned the juvenile court for a transfer of permanent legal and physical custody of K.D.D.F. to him (permanency petition). Mother denied the allegations of the permanency petition and moved to dismiss the permanency petition for failure to state a prima facie case for transfer of permanent custody. The court ruled that the petition did not state a prima facie case and granted father leave to file an amended petition. A court-appointed guardian ad litem (GAL) for K.D.D.F. filed an informal report, father filed an amended permanency petition, and mother again moved to dismiss for failure to state a prima facie case. The court denied mother‘s motion to dismiss the amended permanency petition and held an adjudicatory hearing in October 2014. The court heard testimony and argument, received exhibits, and took judicial notice of relevant case files, including the case file for the CHIPS matter (CHIPS file). The GAL filed a second informal report
This appeal follows.
ISSUES
I. Did the juvenile court err by denying mother‘s motion to dismiss the amended permanency petition?
II. Did the juvenile court err by transferring permanent legal and physical custody of K.D.D.F. to father?
ANALYSIS
“The paramount consideration in all juvenile protection proceedings is the health, safety, and best interests of the child.”
“A permanency or termination of parental rights petition must be filed at or prior to the time the child has been ... in the care of a ... nonresident parent for 11 months....”
(1) order the child returned to the care of the parent ... from whom the child was removed; or
(2) order a permanency disposition under section 260C.515 or termination of parental rights ... if a permanency disposition order or termination of parental rights is in the child‘s best interests.
I. The juvenile court did not err by denying mother‘s motion to dismiss the amended permanency petition.
“Every petition filed with the court in a juvenile protection matter ... shall contain ... a statement of facts that, if proven, would support the relief requested in the petition....”
In this case, mother appears to assign error to the juvenile court‘s denial of her
The supreme court has defined a prima facie case as “one that prevails in the absence of evidence invalidating it.” Tousignant v. St. Louis Cnty., 615 N.W.2d 53, 59 (Minn.2000) (quotation omitted); see also Black‘s Law Dictionary 1310 (9th ed.2009) (defining “prima facie case” as “[a] party‘s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party‘s favor”). Yet the supreme court also has acknowledge[d] that the term “prima facie case” is a legal term of art that does not always carry the same meaning in every context. Rather, the specific quantum and quality of evidence that is necessary to establish a prima facie case may vary depending on the nature of the proceedings, the type of action involved, and the stage of the litigation. Braylock v. Jesson, 819 N.W.2d 585, 590 n. 2 (Minn.2012).
Here, father was required to allege facts in support of a transfer of permanent custody of K.D.D.F. See
A. The evidence
“Except as otherwise provided by statute or the[ R]ules [of Juvenile Protection Procedure], in a juvenile protection matter the court shall only admit evidence that would be admissible in a civil trial pursuant to the Minnesota Rules of Evidence.”
Mother attacks the juvenile court‘s consideration of evidence that “[b]etween January 1, 2010, and March 20, 2014, [SWHHS] had received 55 different intake reports” and “had initiated approximately 16 different workgroups involving [mother] and her home.” Mother argues that evidence of “mere unadjudicated allegations and contacts with [SWHHS]” prior to K.D.D.F.‘s removal from mother‘s home was inadmissible as “evidence of [mother]‘s character” or otherwise and, thus, should not have been considered by the juvenile court.
But “[b]efore making a disposition in a case, ... the court may consider any report or recommendation made by the responsible social services agency ... [or the] guardian ad litem, ... or any other information deemed material by the court.”
Furthermore, a juvenile court “may take judicial notice ... of findings of fact and court orders in the juvenile protection court file and in any other proceeding in any other court file involving the child or the child‘s parent or legal custodian.”
Mother argues that evidence of pre-removal intakes and workgroups, even if otherwise admissible, was used improperly as evidence of mother‘s character. We reject mother‘s character-evidence argument as both undeveloped and unpersuasive.
“Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in
Mother‘s brief also contains three sentences that ostensibly answer the question whether the juvenile court erred by considering evidence submitted after the adjudicatory hearing. Mother notes that the TLC order “cited a guardian ad litem report” that “was submitted after the conclusion of evidence,” and she incorporates by reference another three-sentence section of her brief, which section does not support an untimely-evidence argument. Mother‘s passing argument regarding the court‘s reliance on post-hearing evidence likely is waived. See Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn.App.2007) (stating that “[a] party who inadequately briefs an argument waives that argument”).
Regardless, mother‘s untimely-evidence argument fails. The juvenile court‘s consideration of the GAL‘s second informal report was authorized by the statute expressly providing that “the court may consider any report or recommendation made by the ... guardian ad litem....”
B. Permanency findings
On appeal of a juvenile-protection order, we review the juvenile court‘s factual findings for clear error and its finding of a statutory basis for the order for abuse of discretion. Cf. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 900-01 (Minn.App.2011) (stating that “we will review the district court‘s findings of
The juvenile-protection provisions of the Juvenile Court Act state:
Except for an order terminating parental rights, an order permanently placing a child out of the home of the parent ... must include the following detailed findings:
(1) how the child‘s best interests are served by the order;
(2) the nature and extent of the responsible social services agency‘s reasonable efforts ... to reunify the child with the parent ... where reasonable efforts are required;
(3) the parent‘s or parents’ efforts and ability to use services to correct the conditions which led to the out-of-home placement; and
(4) that the conditions which led to the out-of-home placement have not been corrected so that the child can safely return home.
“Reasonable efforts ... for ... reunification are always required except upon a determination by the court that a petition has been filed stating a prima facie case that ... the provision of services or further services for the purpose of reunification is futile.”
- establishment of home-based family therapy in [mother]‘s home as well as that of [father];
- establishment and assistance in the facilitation of a visitation schedule between [K.D.D.F.] and [mother];
- monitoring of [K.D.D.F.]‘s safety and progress in both homes;
- provision of financial assistance in the form of rent assistance, transportation assistance, and provision of gas cards to [mother];
- individual counseling for [K.D.D.F.]; and,
- home visits to observe interaction between each parent and [K.D.D.F.].
Mother does not challenge these findings of underlying fact, which are supported by the record.
Based on the underlying facts, the juvenile court found that “[t]he efforts on the
The juvenile court also found that “the conditions” have not been corrected “such that [K.D.D.F.] can safely return to [mother]‘s home.” Mother argues that the juvenile court abused its discretion by basing that statutory finding on conditions that were alleged for the first time in the permanency proceeding, asserting that “two conditions ... formed the basis for [K.D.D.F.]‘s removal from [mother]: (1) criminal activity in [mother]‘s home; and (2) the condition of [mother]‘s home.” Mother‘s argument is unpersuasive.
Mother confuses the conditions which led to K.D.D.F.‘s out-of-home placement, see
In this case, the condition that led to K.D.D.F.‘s removal from mother‘s home was that K.D.D.F.‘s environment was such as to be injurious or dangerous to her. At the time of removal, the factual bases for that condition were (1) the presence in mother‘s home of controlled substances, paraphernalia, and/or drug users or other criminals; and (2) the home‘s state of poor repair. After the adjudicatory hearing, the juvenile court made the following findings of underlying fact:
13. [K.D.D.F.] has a history of problems regulating her emotions. When she becomes worried or anxious she displays disorganized behaviors.
14. [K.D.D.F.]‘s symptoms are exaggerated by chaos introduced within her daily routine. [K.D.D.F.] needs safety and security in order to settle and focus.
....
23. ... [Photographs] evidence conditions [of mother‘s home] that remain concerning. Testimony from [mother‘s property manager] evidences precarious financial circumstances. As of the date of hearing [mother] owed late rent plus fees....
34. ... [Mother] has no employment, no driver‘s license, and no vehicle. She has missed two supervised visits with [K.D.D.F.].
....
43. ... [K.D.D.F.]‘s behaviors appear to escalate following visits to the home of [mother].
....
52. While [mother] has corrected the primary basis for removal (selling controlled substances in the presence of children), her living arrangements remain precarious. [K.D.D.F.], due to special needs, is in need of stability and proficient parenting, neither of which are consistently provided by [mother].
....
56. [An SWHHS social worker] testified at hearing that ... she would have safety concerns for [K.D.D.F.] if returned to her mother‘s home; and, that [K.D.D.F.]‘s anxieties would likely increase if placed back in [mother‘s] home. The Court finds this testimony credible.
Those findings of underlying fact are supported by the record and show at least two factual bases for the continuing condition that K.D.D.F.‘s environment was such as to be injurious or dangerous to her: (1) mother‘s inability to provide a stable, properly maintained home for K.D.D.F.; and (2) K.D.D.F.‘s receipt of inadequate or inappropriate parenting in mother‘s home. That the factual bases for the condition at the time of the adjudicatory hearing were not identical to the factual bases for the condition at the time of removal does not undermine the juvenile court‘s statutory finding that the overall condition had not been corrected, even if one or both of the time-of-removal factual bases had been corrected. The uncorrected-conditions finding was not an abuse of discretion.
Finally, mother argues that the juvenile court violated her right of procedural due process by (1) making “reasonable efforts findings that spawn from an unadjudicated condition,” (2) considering evidence of pre-removal intakes and workgroups, and/or (3) considering post-hearing evidence. Mother does not attempt to explain how her right to be heard was restricted at the adjudicatory hearing, at which mother was both personally present and represented by counsel who called favorable witnesses—including mother herself—and cross-examined adverse witnesses. And mother does not otherwise develop any of her due-process arguments. Consequently, we do not address them. See Brodsky, 733 N.W.2d at 479 (stating that “[a] party who inadequately briefs an argument waives that argument”).
We reject any suggestion by mother that this opinion will invite the use of juvenile-protection proceedings to circumvent the requirements for custody modification under
DECISION
Because the juvenile court made no prejudicial errors in its consideration of the evidence, and because its permanency findings reflect no abuse of discretion, the juvenile court did not err by transferring permanent legal and physical custody of K.D.D.F. to father.
Affirmed.
SCHELLHAS
Judge