                         This opinion will be unpublished and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.

                                           1
                           UNPUBLISHED OPINION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



1
    C.L.O. voluntarily terminated her parental rights and is not a party to this appeal.

                                                2
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,



                                               3
              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.




                                              4
          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



                                               5
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.”).


                                                  6
         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.

                                               7
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


                                             8
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.




                                             9
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.




                                        CS-2
