Opinion
No. C0-97-1108.
Filed December 2, 1997.
Appeal from the District Court, Washington County, File No. J8210756Y.
Wright S. Walling, Nathalie S. Rabuse, Walling Berg, P.A., (for appellant mother).
Richard M. Arney, Washington County Attorney, Douglas H. Johnson, Assistant County Attorney, (for respondent Washington County).
Gregory J. Schmidt, (for respondent guardian ad litem).
Harold R. Wingerd, (for respondent father).
Eva H. Webster, (for respondent child).
Elizabeth J. Richards, (for amicus Battered Women's Legal Advocacy Project, Inc.).
Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant-mother claims that the juvenile court lacked jurisdiction to modify a family court order and erred in (a) adjudicating her child to be in need of protection or services (CHIPS); (b) not satisfying the disposition requirements; (c) not accepting a post-hearing submission from her counsel; and (d) not recognizing the conflict between the child and the child's guardian ad litem. We affirm in part and remand in part.
FACTS
In its 1986 judgment dissolving the marriage of appellant-mother and respondent-father, the district court awarded mother custody of the parties' son. Subsequent proceedings have been acrimonious. In 1993, this court remanded a custody modification for findings. On remand, the district court entered a stipulated custody and visitation order. In 1995, respondent Washington County filed a CHIPS petition alleging that father abused the child. On March 12, 1996, the district court issued a stipulated order concluding that the child was in need of protection or services but found that it was not in the child's best interests to be so adjudicated and continued the adjudication. An associated evidentiary hearing resulted in a May 1997 order in which the district court adjudicated the child CHIPS and set a visitation schedule. Mother appeals.
DECISION
1. Mother claims that the "juvenile court" lacked jurisdiction to modify the "family court" order that adopted the custody and visitation stipulation. We assume without deciding that the "juvenile court" actually modified the custody and visitation order. We review the jurisdictional question de novo. American Sharecom, Inc. v. LDB Int'l Corp., 553 N.W.2d 433, 434 (Minn.App. 1996).
Under the statute allowing reorganization of the trial courts, one year after a judicial district stated its intent to reorganize, the judicial district had one "general trial court * * * known as the district court" and its jurisdiction included that conferred by chapter 260. Minn. Stat. § 487.191 (1982). The Tenth Judicial District was reorganized effective January 10, 1984. Spec. R. Pract., Tenth Jud. Dist., Preamble IV. Thus, when this matter was heard in 1996 and 1997, it was heard by a court having jurisdiction over juvenile matters. Mother cites In re Welfare of Hall , 268 N.W.2d 418 (Minn. 1978) and Durkin v. Hinich , 442 N.W.2d 148, 152 (Minn. 1989) to argue otherwise. These cases are distinguishable. The former predates the statute allowing trial court reorganization. The latter states that "[t]he family court had jurisdiction to hear both [family and juvenile] matters." Durkin 442 N.W.2d at 152.
2. The district court adjudicated the child CHIPS under Minn. Stat. § 260.015, subd. 2a(4) (1996), which allows CHIPS adjudications if a child is without care necessary for the child's condition because the child's parents are unwilling or unable to provide that care. Mother claims the adjudication is unsupported by the findings.
Mother notes that the county originally filed the CHIPS petition because father allegedly abused the child. Mother then claims that the CHIPS adjudication is defective because it is based on an amended CHIPS petition that did not refer to the alleged abuse. On this record, mother waived any objection she may have had to the amended CHIPS petition. Mother initially opposed the motion to amend the petition. Eight days later, however, the district court issued the stipulated March 12, 1996, order which neither adjudicated the child CHIPS nor found that abuse had occurred. The order, however, contained mother's admission that the child was CHIPS because he lacked the care necessitated by his condition . The record shows mother had numerous later opportunities to object to the amended petition but that she did not do so for 11 months, ultimately objecting in an untimely post-hearing submission. While the record contains a March 26, 1996, letter (filed September 11, 1996) from one of mother's former attorneys, that letter does not object to the amended petition. It objects to the stipulated order, alleging it was defective because it lacked a provision forbidding both parties from abusing the child. On appeal, mother claims the CHIPS adjudication is defective because it omits reference to the alleged child abuse. This claim is apparently based on mother's untimely post-hearing submission. In light of the stipulated March 12, 1996, ruling that the child was CHIPS for reasons other than abuse and mother's failure to raise the issue until her untimely post-hearing submission, mother waived her objections to the amended petition. See Antonson v. Ekvall , 289 Minn. 536, 539, 186 N.W.2d 187, 189 (1971) (claim made "too late" when made for the first time in a motion for a new trial).
In adjudicating the child CHIPS, the district court noted that the stipulated March 12, 1996, order found the parents' relationship so bad "that it is necessary for [the child] to be in therapy" and that (a) the child's "mental and emotional well being" continued "to be adversely affected by the unwillingness of his parents to communicate" and "the parents' total disregard for the welfare of their child because of their desire to hurt each other[;]" and (b) both parents admit their inability to communicate has, and continues to, adversely affect the child. Where the communication between parents is so bad that a child requires therapy, a finding that the child is without the care required by his condition due to his parents unwillingness to provide that care is supported by the record. Further, because it is undisputed that the child is in therapy and because the parties admit their inability to cooperate is harmful to the child, the findings supporting the CHIPS adjudication are not clearly erroneous. See In re Welfare of D.N. , 523 N.W.2d 11, 13 (Minn.App. 1994) (findings in CHIPS proceedings not set aside unless clearly erroneous), review denied (Minn. Nov. 29, 1994).
3. Mother claims that the disposition is defective because, among other things, it is not contemplated by Minn. Stat. § 260.191 (1996) and lacks statutory findings. The county concedes the existence of several of the alleged defects, including the lack of findings. The county does not, however, explicitly admit that the disposition is not contemplated by Minn. Stat. § 260.191. Because the lack of findings precludes us from reviewing the disposition, we remand for the district court to either make the required findings or modify its disposition and make any necessary findings.
Mother claims reversal is proper because the county failed to seek correction of the defective disposition. Because we affirm the CHIPS adjudication, a valid disposition, and hence a remand, is required. See Minn. Stat. § 260.191, subd. 1(a) (if a court adjudicates a child CHIPS, "it shall enter an order making [a disposition]") (emphasis added); Minn. Stat. § 645.44, subd. 16 (1996) ("`[s]hall' is mandatory").
4. Mother does not dispute the district court's authority to schedule post-hearing submissions. She claims, however, that her papers were timely and that equity required the district court to consider her papers. Our review of the record shows that mother's papers were untimely. Mother's claim that equity required the district court to consider her papers is essentially a challenge to the district court's refusal to grant her a continuance. Continuances are discretionary with the district court. D.N. , 523 N.W.2d at 12. In addressing whether a district court abused its discretion in refusing to continue a CHIPS proceeding, this court referred to whether proper notice had been given, when the continuance was requested, and whether prejudice resulted. Id. at 13. Here, mother was present when the district court set the schedule for post-hearing submissions, she did not seek a continuance until the day before her papers were due, and she alleges no specific prejudice as a result of the district court's failure to consider her papers. See Midway Ctr. Assocs. v. Midway Ctr., Inc. , 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (error without prejudice does not merit reversal). On this record, given the already unnecessarily extensive nature of these proceedings, we cannot say it was an abuse of the district court's discretion to deny a continuance.
5. Mother claims that the district court should have reviewed the disposition as requested by the child. Parties may seek review of a modified disposition by objecting within 10 days of learning of the modification. Minn.R.Juv.P. 62.07, subd. 1. Here, because the child sought review two months before the district court issued the order sought to be reviewed, the motion cannot be valid. See Minn.R.Juv.P. 62.07, subd. 2 (court must determine whether "good cause" exists for review within 10 days after a party seeks review and, if "good cause" exists, conduct review within 10 days thereafter).
We do not address mother's standing to assert this claim on behalf of the child or the authority of the attorney to request the review.
6. Alleging that the child and his guardian ad litem disagreed about the disposition, mother claims that the district court should have granted the child's request for new counsel. Mother also states that the district court later allowed the child to be represented by the new attorney. Given the current involvement of the child's new counsel, our remand of the disposition, and that the crux of the alleged disagreement involves the disposition, any disagreement between the child and the guardian ad litem can be resolved on remand and we therefore decline to address the issue.
We do not address mother's standing to assert this claim on behalf of the child.
7. The nature and extent of the proceedings on remand shall be within the discretion of the district court. We express no opinion on the remanded issues.
Affirmed in part and remanded in part.
I agree with the majority's decision to remand to enable the trial court either to reconsider the disposition or to make sufficient findings to support the disposition ordered, and I share its dismay at the protracted and acrimonious nature of this litigation. I write separately, however, to express my position on one issue and my concern on another.
First, because the majority recognizes the discretion of the district court to define the nature and extent of proceedings on remand, I urge the district court to review the papers appellant submitted in an untimely fashion after the last hearing. This litigation, so costly in both its emotional and its economic effects, will not be aggravated, and might be ameliorated, if the parties are assured that the court considers the merits of their positions, even if those positions are not wholly accepted and reflected in the court's findings and conclusions.
Second, appellant raises the troubling question of respondent's alleged abuse of B.L.R. Appellant argues that although an incident of abuse was substantiated by county officials' investigation and led to the initiation of the CHIPS proceeding, the abuse issue was largely lost in subsequent court hearings and orders. The majority's recognition that this issue was waived would end the matter in any other context. But where the welfare of a minor child is concerned, I am convinced that a parent's stipulation or waiver that fails to serve the best interests of that child cannot be accepted, adopted, or approved by the court. See Tammen v. Tammen , 289 Minn. 130, 182 N.W.2d 840, 841-42 (1970); Sydnes v. Sydnes , 388 N.W.2d 3, 7 (Minn.App. 1986).
A review of the record, nonetheless, answers my concern and convinces me that the district court both acknowledged and addressed the abuse issue. The stipulated March 12, 1996, order required (a) respondent to complete in-home family therapy; (b) respondent to complete an anger-management assessment and follow "all recommendations"; (c) the county to report the action it took as a result of any future reports of abuse; and (d) the district court administrator to provide a copy of the order to the Family Violence Network. Further, requirements similar to some of those of the March 12 order were included in a stipulated April 23, 1996, order and a November 5, 1996, order. The three separate orders addressing abuse and abuse-related issues demonstrate that the court knew of and responded to the appellant's concern (and the concern of the county in its original CHIPS petition) that respondent had abused B.L.R.