In re Child of Simon, CX-02-2024.

• Decision Date: 03 June 2003
• Docket Number: No. CX-02-2024.,CX-02-2024.
• Citation: 662 N.W.2d 155
• Parties: In the Matter of the CHILD OF Michael SIMON, Parent.
• Court: Minnesota Court of Appeals

662 N.W.2d 155

In the Matter of the CHILD OF Michael SIMON, Parent.

No. CX-02-2024.

Court of Appeals of Minnesota.

June 3, 2003.

Leonardo Castro, Fourth District Public Defender, David P. Murrin, Assistant Public Defender, Minneapolis, for appellant.

Amy J. Klobuchar, Hennepin County Attorney, Julie K. Harris, Assistant County Attorney, Minneapolis, for respondent Hennepin County Department of Children, Family and Adult Services.

Jonathan G. Steinberg, Minneapolis, for respondent Guardian ad Litem.

Considered and decided by LANSING, Presiding Judge, PETERSON, Judge, and WRIGHT, Judge.

OPINION

WRIGHT, Judge.

On appeal from an order terminating his parental rights, appellant Michael Simon argues that the district court abused its discretion by (a) admitting letters from his child's therapist under the business-records exception to the hearsay rule and (b) terminating his parental rights because of his imprisonment. We affirm.

FACTS

In 1997, Michael Simon was adjudicated the father of T.H., born on May 31, 1994. Simon was incarcerated for approximately four years for second-degree burglary beginning in May 1998.

In November 2000, respondent Hennepin County Department of Children, Family and Adult Services (the county) filed a petition in district court, alleging that T.H. was a child in need of protective services. T.H. was subsequently placed in a nonrelative foster home, and in January 2001 adjudicated a child in need of protection and services. In April 2001, the county filed a petition to terminate the parental rights of T.H.'s parents. T.H.'s mother voluntarily consented to termination of her parental rights and consented to T.H.'s adoption by her foster parents in December 2001. The district court stayed its order on this matter for 90 days pending the determination of Simon's parental rights. The district court later terminated the parental rights of T.H.'s mother but determined that the consent to adopt T.H. was not valid unless Simon's rights also were terminated.

Following Simon's release from prison in March 2002, he met with Cliff Robinson, a Hennepin County child-protection social worker, to develop a case plan and set up supervised visits with T.H. Simon understood the requirements of the case plan, which included completion of a psychological evaluation to determine the appropriate services he needed to facilitate his reunification with T.H. The case plan also required Simon to (1) undergo a parenting assessment after his supervised visits with T.H., (2) obtain safe, adequate housing, and (3) participate in parenting-education classes pending the results of the psychological evaluation.

Simon missed his appointment for the psychological evaluation and did not reschedule it. Despite Robinson's efforts to contact Simon by telephone and certified letter, Simon did not complete the evaluation. Simon also did not complete any of the other requirements of the case plan. Simon re-offended in April 2002 and was sentenced to serve five years in prison.

As the social worker assigned to T.H.'s case, Robinson was required to monitor Simon's progress, make referrals, and provide resources as necessary. Robinson was also required to assess T.H.'s well-being. To do so, Robinson maintained ongoing contact with T.H.'s foster family and her therapist, Dr. Julia Davis.

In an April 13, 2002, letter, Davis offered her opinion as to whether the county's suspension of T.H.'s visits with Simon was in T.H.'s best interests. The letter summarized Davis's observations of T.H. during individual-play therapy sessions and a supervised visit with Simon. Davis reported that T.H. was "doing well until notification of her father's reappearance and wish to visit with her." Upon learning of her father's pending visits, T.H. developed symptoms of anxiety. After two supervised visits with Simon, T.H. told Davis that she no longer wished to see him. Based on her observations of T.H. and her knowledge of Simon's failure to attend his psychological evaluation and parenting assessment, Davis supported the county's decision to suspend T.H.'s visits with Simon "until [Simon] has complied with his case plan and demonstrated a willingness and ability to provide a secure and stable presence in his daughter's life."

At the county's request, Davis wrote another letter dated August 8, 2002, "to update the district court" on her work with T.H., T.H.'s progress in therapy, and Davis's recommendations as to T.H.'s best interests for placement and contact with her biological parents. Davis's letter provides:

I understand that the Court hearing will decide on permanency issues for [T.H.]. As I have recommended before, I believe that her best interests will be served by her continuation in her current foster home, as there is a good chance for placement there. * * * I also understand that [Simon] re-offended and has been returned to prison, and that his rights are considered for termination at this time. In view of [T.H.'s] extreme anxiety in her most recent contacts with her father, her lack of strong attachment to him, and his continued difficulty in maintaining a healthy lifestyle, I strongly recommend no further contact between [T.H.] and her father at this time.

The hearing on the petition to terminate Simon's parental rights was held on August 13, 2002. Simon, Robinson, and the guardian ad litem, Lyndsey Davis, testified. In his testimony, Simon admitted that he did not undergo the psychological evaluation and parenting assessment and explained that he failed to do so because he was depressed after T.H. rejected him during a supervised visit. Simon did not dispute that he failed to comply with the other requirements of the case plan.

During Robinson's testimony, the county offered Davis's April 13 and August 8 letters into evidence under Minn. R. Evid. 803(6), the business-records exception to the hearsay rule. Simon objected, arguing that the letters were not admissible under the business-records exception and, therefore, were inadmissible hearsay. The district court overruled the objection and admitted the letters under the business-records exception. Robinson testified that, in his opinion, termination of Simon's parental rights was in T.H.'s best interests. Robinson's opinion as to T.H.'s best interests was based on his 35 years of experience as a social worker, the knowledge he gained during the two years he was assigned to this case, the eight months he had known Simon, Davis's recommendations, and the ability and willingness of T.H.'s foster parents to adopt T.H.

In its September 12, 2002, order, the district court terminated Simon's parental rights after determining that it is in the best interests of T.H. to do so. In terminating Simon's parental rights to T.H., the district court relied on three statutory criteria, finding that (1) Simon failed to comply with the duties and responsibilities of the parent-child relationship, Minn.Stat. § 260C.301, subd. 1(b)(2) (2002); (2) Simon failed to correct the conditions that led to the out-of-home placement, Minn.Stat. § 260C.301, subd. 1(b)(5); and (3) T.H. is neglected and in foster care, Minn.Stat. § 260C.301, subd. 1(b)(8).

Simon moved for a new trial, alleging that the district court abused its discretion in admitting Davis's letters and other exhibits over Simon's hearsay objections. The district court denied the motion. This appeal followed.

ISSUES

1. Did the district court properly admit letters from T.H.'s therapist under the business-records exception to the hearsay rule?

2. Did the district court err in terminating Simon's parental rights while he was incarcerated?

ANALYSIS

I.

Simon first argues that the district court abused its discretion by admitting Davis's letters under the business-records exception to the hearsay rule. Absent an erroneous interpretation of the law, whether to admit or exclude evidence is a question within the district court's broad discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). A new trial will be granted because of an improper evidentiary ruling only if the complaining party demonstrates prejudicial error. Id. at 46.

Although generally inadmissible, hearsay statements may be admissible under one of several exceptions to the general rule, including the business-records exception. Minn. R. Evid. 802 (general rule); Minn. R. Evid. 803(6) (business-records exception to hearsay rule). Business records are presumed to be reliable because (1) the regularity of the records produces habits of precision in the record keeper, (2) the records are regularly checked, (3) employees are motivated to make accurate records because the businesses that employ them function in reliance on these records, and (4) employees are required to be accurate and risk embarrassment or dismissal if they fail. In re the Welfare of L.Z., 396 N.W.2d 214, 220 (Minn.1986).

Business records are admissible under the business-records exception if the custodian or another qualified witness can testify that the records were (1) made by a person with personal knowledge of the matters recorded and a business duty to report accurately or from information transmitted by a person with such knowledge, (2) made at or near the time of the recorded event, (3) kept in the course of a regularly conducted business activity, and (4) made as part of the regular practice of that business activity. Minn. R. Evid. 803(6). Even regularly prepared business records are inadmissible, however, when "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Id.

Although Rule 803(6) does not require the custodian of the records to testify, it requires the person attempting to lay foundation to be familiar with how the business in question compiles its documents. Nat'l Tea Co., Inc. v. Tyler Refrigeration Co. Inc., 339 N.W.2d 59, 61 (Minn. 1983) (stating that "[t]he testimony of the custodian or other...