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In re Child of Simon

June 03, 2003

IN THE MATTER OF THE CHILD OF MICHAEL SIMON, PARENT.


Hennepin County District Court File No. J500072386

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

SYLLABUS BY THE COURT

1. A therapist's report containing an opinion on an ultimate issue is admissible under the business-records exception to the hearsay rule only if the proper foundation is laid and the witness offering the opinion is available for cross-examination.

2. Although incarceration alone is insufficient to terminate parental rights, it may be considered in conjunction with other statutory factors.

The opinion of the court was delivered by: Wright, Judge

Affirmed

Concurring Specially, Lansing, Judge

OPINION

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 non-relative 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 ...


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