In the Matter of the Welfare of the Child of: C. L. O. and J. J. S., 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This opinion will be unpublished and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
A15-1194
In the Matter of the Welfare of the Child of:
C. L. O. and J. J. S., Parents.
Filed April 11, 2016
Affirmed
Randall, Judge *
Concurring specially, Connolly, Judge
Hennepin County District Court
File Nos. 27-JV-14-7270; 27-JV-13-7143
Mary F. Moriarty, Chief Hennepin County Public Defender, David W. Merchant, Assistant
Public Defender, Minneapolis, Minnesota (for respondent C.L.O.)
Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent HCHS & PHD)
Michael J. McLaughlin, Legal Rights Center, Minneapolis, Minnesota (for appellant J.J.S.)
Eric S. Rehm, Burnsville, Minnesota (for guardian ad litem)
Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and
Randall, Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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UNPUBLISHED OPINION
RANDALL, Judge
On appeal from the termination of his parental rights to his child, appellant argues
that the district court’s refusal to allow him to call two witnesses at a permanency hearing
violated his due-process rights, statutory rights, and procedural rights. The district court
erred by failing to permit the witnesses to testify, but we affirm because the error did not
unduly prejudice appellant.
FACTS
J.J.S., born on November 29, 2010, is the child of appellant J.J.S., Sr. and C.L.O. 1,
who never married. Respondent Hennepin County (county) received a report in July 2013
that appellant had problems with “chronic and severe . . . alcohol and controlled substance
abuse” that were occurring in front of the child. Appellant also assaulted C.L.O. in J.J.S.’s
presence during July 2013. Appellant was convicted of fifth-degree domestic assault for
that offense and received a probationary sentence. J.J.S. was placed out of home in
November 2013, and was adjudicated a child in need of protection or services (CHIPS) in
February 2014.
Following the CHIPS determination, appellant agreed to a case plan that addressed
his chemical-dependency and domestic-violence issues. The case plan also required him
to complete a psychological evaluation, obtain housing, cooperate with county social
services, and follow professional recommendations. During the CHIPS period, appellant
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C.L.O. voluntarily terminated her parental rights and is not a party to this appeal.
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continued to have problems with drugs and alcohol and was involved in repeated incidents
of domestic abuse. Urinalysis testing conducted early in the case showed that appellant’s
urine contained methamphetamines and chemicals found in marijuana. Throughout the
CHIPS period, appellant did not maintain sobriety unless he was incarcerated.
As to domestic abuse, in December 2013 appellant possessed a firearm and shot into
the front of C.L.O.’s car as she drove away from him. For this incident, he pleaded guilty
to possession of a firearm by a prohibited person and received an executed 60-month
sentence that he began serving in January 2015. Appellant was also charged with two
controlled substance offenses in January 2015 that involved possession of
methamphetamine and OxyContin, and he pleaded guilty to another firearm offense in
exchange for dismissal of the controlled substance charges; his sentence for the 2015
conviction is concurrent with the 2013 sentence. The district court found that appellant
failed to participate in any domestic violence programming.
Appellant also did not address his psychological issues during the pendency of the
case. An initial mental-health assessment diagnosed appellant as antisocial and
narcissistic, but he did not complete further testing or follow recommendations.
With regard to appellant’s parent-child relationship with J.J.S., the district court
found that appellant
loves [J.J.S.], maintained regular visitation with [J.J.S.] when
he was not incarcerated, and engaged in parenting education
through Catholic Charities. When he was not incarcerated,
[appellant] had supervised visits with [J.J.S.] . . . for two hours
every Saturday. [Appellant] was good at attending his visits,
he was attentive, appropriate within the context of the visit,
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affectionate, and, at times, [J.J.S.] demonstrated difficulty
separating from [appellant].
The district court also found that appellant attended parenting education from April to June
2014.
The county petitioned to terminate appellant’s parental rights in November 2014.
At the two-day permanency trial held in April 2015, the district court sustained the county’s
objection to appellant calling two witnesses to testify: appellant’s mother, K.S., and his
friend, T.D. Appellant intended to call the two witnesses to testify about appellant’s ability
to care for J.J.S. in the period before the child was declared CHIPS. The county objected
on relevance grounds, arguing that any testimony from those two witnesses pertained to
J.J.S.’s first two years of life, the child had been in the custody of the county for two
additional years, and the current issue before the court was whether the child could be
returned to the family in the reasonably foreseeable future. The county agreed to “stipulate
that [appellant] loves his child, [and] that he had a strong connection with his child while
the child lived with him for the first year or two of his life.” Appellant’s attorney argued
that appellant’s mother’s observations were relevant to whether it would be in J.J.S.’s best
interests to have appellant’s parental rights terminated because appellant’s demonstrated
capacity to care for his son could be “relevant to his capacity in the future to provide
adequate care for his son.” Appellant’s attorney also argued that parenting is a fundamental
constitutional right, and denial of appellant’s right to call witnesses was a violation of his
due-process rights.
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The district court sustained the objection, ruling that the proposed testimony was
cumulative of other testimony. The district court also stated that the testimony would not
“advance[] the issue that we have before us now, and that is whether [appellant] can parent
this child in the reasonably foreseeable future.” The district court noted that J.J.S. had been
in out-of-home placement for approximately 640 days at the time of the permanency
hearing, appellant had roughly 40 months before he would be released from prison,
appellant had failed to participate in offered programming, the child’s out-of-home
placement was “way, way beyond the permanency guidelines,” and hearing testimony
about appellant’s “good visits” with his child was not “very helpful” to “overcome the
hurdle of the reasonably foreseeable future of the reunification taking place because of
[appellant’s] incarceration.” The district court further noted that “time is a resource” and
stated:
[W]e’ve been dancing around how [appellant], how bad
[appellant] feels, but let’s look at this, let’s cut right to the
chase. We’ve been messing around with this for a whole day
now, but the issue, the real issue is that we haven’t had any
testimony about any completion of programming on
[appellant’s] part.
(Emphasis added.)
Following the permanency trial, the district court concluded that three of five
alleged statutory grounds for termination of appellant’s parental rights were supported by
clear and convincing evidence: (1) appellant neglected the duties of the parent-child
relationship, Minn. Stat. § 260C.301, subd. 1(b)(2) (2014); (2) following J.J.S.’s out-of-
home placement, reasonable efforts by the county failed to correct the conditions that led
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to the placement, Minn. Stat. § 260C.301, subd. 1(b)(5) (2014); and (3) J.J.S. is neglected
and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8) (2014). The district court found
that termination is in J.J.S.’s best interests.
In this appeal, appellant challenges the district court’s ruling to exclude his
witnesses’ testimony.
DECISION
“The parent-child relationship is among the fundamental rights protected by the
constitutional guarantees of due process.” In re Welfare of Children of D.F., 752 N.W.2d
88, 97 (Minn. App. 2008); see Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060
(2000) (“The liberty interest at issue in this case—the interest of parents in the care,
custody, and control of their children—is perhaps the oldest of the fundamental liberty
interests recognized by this Court.”). Due process, which ensures fundamental fairness,
includes “the opportunity to present evidence.” D.F., 752 N.W.2d at 97; see In re Welfare
of L.J.B., 356 N.W.2d 394, 397 (Minn. App. 1984) (stating that “a valid decision to
terminate parental rights” must be based on evidence subject to “due process safeguards”).
The “amount of process due in a particular case varies with the unique circumstances of
that case,” but “prejudice as a result of the alleged violation is an essential component of
the due process analysis.” In re Welfare of Child of B.J.-M., 744 N.W.2d 669, 673 (Minn.
2008). This court gives de novo review to “[w]hether a parent’s due-process rights have
been violated in a TPR proceeding.” D.F., 752 N.W.2d at 97; see Carrillo v. Fabian, 701
N.W.2d 763, 768 (Minn. 2005) (“Whether due process is required in a particular case is a
question of law, which we review de novo.”).
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The district court erred by short-circuiting 2 the trial process in this case. When
information from a one-year period postdating an initial termination hearing was used to
support a termination decision, this court remanded for the district court to consider that
information in an evidentiary hearing, ruling that the district court’s termination decision
should be subject to “due process safeguards.” L.J.B., 356 N.W.2d at 397. The district
court’s ruling in this case effectively prevented appellant from offering evidence to develop
his theory of the case, particularly as it pertained to the important factor of the child’s best
interests. The district court violated appellant’s due-process rights by ruling to exclude
this evidence.
Appellant can succeed on a due-process claim, however, only if he demonstrates
that he was prejudiced by the district court’s exclusion of the two witnesses’ testimony.
See B.J.-M., 744 N.W.2d at 673 (stating that “prejudice as a result of [an] alleged violation
is an essential component of” a due-process claim); see also D.F., 752 N.W.2d at 98(applying harmless-error rule to due-process argument in a termination of parental rights
case). With but a perfunctory nod to real justice, the “harmless-error” rule is an ever-
enlarging hole in the dike of traditional constitutional protections promised to trial litigants.
We reluctantly apply it here. Appellant’s stated purpose for offering the evidence was to
establish appellant’s “capacity in the future to provide adequate care for his son.” He
cannot show substantial prejudice because the district court made findings supportive of
this point, and those findings, in turn, are supported by appellant’s testimony and the
2
“[A] whole day” does not seem an imposition on a termination of parental rights case.
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testimony of adverse witnesses, such as the guardian ad litem. The guardian ad litem
testified that appellant and J.J.S. have a close bond and that appellant appropriately
parented J.J.S. during visitation. The substance of their testimony on behalf of appellant
was heard and acknowledged by the district court.
Appellant also argues that the district court’s exclusion of the two witnesses’
testimony violated Minn. Stat. § 260C.163, subd. 8 (2014) (“The minor and the minor’s
parent, guardian, or custodian are entitled to be heard, to present evidence material to the
case, and to cross-examine witnesses appearing at the hearing.”), and Minn. R. Juv. Prot.
P. 39.03, subd. 2 (providing that in termination proceedings, a parent “shall have the right
to” present evidence and witnesses). To the extent that these issues concern evidentiary
rulings or rules of trial procedure, they are waived because appellant did not move for a
new trial. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d
303, 309 (Minn. 2003) (restating “longstanding rule” that “matters such as trial procedure,
evidentiary rulings and jury instructions 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” (quotation
omitted)).
In addition, even though the district court erred by excluding the evidence, appellant
is not entitled to automatic reversal, because termination proceedings are subject to the
harmless-error rule. D.F., 752 N.W.2d at 98 (applying harmless-error analysis in
termination of parental rights cases). The evidence was cumulative, and the district court
made findings supportive of the proffered evidence. The district court’s decision focused
on other termination factors, including reasonableness of services offered to appellant by
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the county, appellant’s failure to address his chemical-dependency and psychological
issues, appellant’s recurrent incidents of domestic abuse, the length of time J.J.S. has been
out of home and will continue to be out of home, and J.J.S.’s best interests. In light of the
record, which includes definitive evidence supporting the district court’s decision to
terminate parental rights, the error in the exclusion of the testimony from appellant’s
mother and friend does not change our ultimate analysis.
Affirmed.
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CONNOLLY, Judge (concurring specially)
While I agree with the majority’s decision as to affirming the termination of
appellant’s parental rights, I write separately because I do not see any violation of
appellant’s right to due process in the district court’s exclusion of testimony from
appellant’s mother and his friend. The district court was told by appellant’s attorney
that “the reason that we were planning to call [appellant’s mother] to testify is to
talk about [appellant’s] capacity to care for his son before this case began . . .” and
that “[appellant’s friend] would have been offered for the same purpose generally
as [appellant’s mother].” The district court excluded this testimony as cumulative
and irrelevant to the issue before the court, namely whether “[appellant] can parent
this child in the reasonably foreseeable future.” The record supports both reasons
for the exclusion.
Testimony from appellant, from a worker at Catholic Charities, from a social
worker, and from the child’s guardian ad litem indicated that appellant loved his
child, had successfully provided care for him during the first years of his life, and
had appropriately participated in visitation with him. The district court’s findings
reflected this testimony: it found that “[appellant] was good at attending his visits,
he was attentive, appropriate within the context of the visit, affectionate, and, at
times, [the child] demonstrated difficulty separating from [appellant]” and that “the
testimony at trial made it clear that [appellant] loves his son and has an interest in
maintaining the parent-child relationship.” Further testimony as to appellant’s
relationship with his son would have been cumulative. “Although relevant,
CS-1
evidence may be excluded if its probative value is substantially outweighed . . . by
considerations of . . . needless presentation of cumulative evidence.” Minn. R. Evid.
403.
Perhaps more significantly, the excluded testimony would not have been
relevant to the issue before the district court: whether appellant would be able to
parent his child in the foreseeable future. When the trial occurred in April 2015,
appellant had not provided care for the child since he was removed from the home
in October 2013 and had not seen the child since January 2015, when appellant
began serving a 60-month sentence in prison. Testimony that appellant had at times
successfully provided care for the child prior to the child’s removal from his home
and had successfully participated in visitation prior to January 2015 was not relevant
to the facts that (1) the child had been in foster care for more than 18 months and
needed permanency and (2) appellant’s incarceration would prevent him from
providing a permanent home for the child in the foreseeable future. “Evidence
which is not relevant is not admissible.” Minn. R. Evid. 402.
Because I see no violation of appellant’s due-process rights in the exclusion
of his witnesses’ testimony, I do not reach the issue of whether a purported violation
of those rights prejudiced appellant, but, in the event of such a violation, I would
have no compunction in applying the harmless-error rule.
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