source: Caselaw Access Project

author: COLLINS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Rashade COLEMAN, Appellant.
    No. A06-325.
    Court of Appeals of Minnesota.
    May 10, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, and James C. Baekstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Hastings, MN, for respondent.
    Lisa Lodin Peralta, Joseph S. Prieberg, Chartered, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; KLAPHAKE, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

Appealing his sentence for multiple current convictions, Appellant Rashade Coleman argues that (1) the district court erred by imposing both a permissive consecutive sentence for his burglary conviction (consecutive to an unexpired prior felony sentence) and a permissive consecutive sentence for criminal sexual conduct (consecutive to the burglary); (2) the court erred by failing to disregard his criminal-history score before determining the duration of the burglary sentence imposed consecutive to his prior unexpired sentence or failing to state reasons specific to the burglary crime justifying a departure; and (3) he was impermissibly sentenced under Minn.Stat. § 609.108 (2002) because it unconstitutionally permitted a judicial finding that a defendant is a patterned sex offender.

Because Minn.Stat. § 609.108 (2002) is not facially unconstitutional, and because the district court did not err by imposing two permissive consecutive sentences, we affirm Coleman’s criminal-sexual-conduct sentence. But because Coleman’s sentence on the burglary conviction constitutes an upward durational departure for which the district court did not relate departure reasons particular to that offense, if indeed the court intended the departure, we reverse and remand for resentencing.

FACTS

In October 2002, Coleman was adjudicated delinquent in Ramsey County for second-degree assault, and samples of his DNA were submitted to the state database.

A year later, while burglarizing college dormatory rooms in Ramsey County, Coleman anally, orally, and vaginally raped a woman in one of the rooms. A semen sample was obtained from the victim, and the Minnesota BCA reported a match with Coleman from the DNA database.

In June 2004, before being arrested for the October 2003 Ramsey County offenses, Coleman broke into a house in Dakota County. He discovered a woman and her son asleep. He orally and vaginally raped the woman in front of her child, asked her for money, took them into the basement, and ordered them to stay there until he told them to leave. Semen found on the mother’s nightshirt matched Coleman’s DNA from the state database.

Following adult certification in Ramsey County, Coleman was prosecuted to convictions of first-degree criminal sexual conduct and first-degree burglary. Coleman subsequently waived a certification hearing in Dakota County and was prosecuted as an adult in the instant case for third-degree criminal sexual conduct, first-degree burglary, and kidnapping. He was sentenced in March 2005 in Ramsey County for the criminal-sexual-conduct and burglary convictions there. On August 12, 2005, Coleman pleaded guilty to the Dakota County charges with the understanding that he could be sentenced to as long as 480 months as a patterned sex offender, consecutive to his Ramsey County sentence. In addition to conceding his status as a patterned sex offender, Coleman admitted each of the numerous aggravating factors alleged in support of the state’s motion for an upward durational departure from the sentencing guidelines.

On November 14, 2005, Coleman received a 68-month sentence for the burglary conviction, to be served consecutively to the Ramsey County sentence, and a consecutive 172-month sentence followed by ten years on conditional release for the criminal-sexual-conduct conviction. The district court imposed and stayed the execution of a presumptively stayed 21-month sentence for the kidnapping conviction, placing Coleman on probation to commence upon completion of supervised release.

ISSUES

I. Did the district court abuse its discretion by imposing more than one permissive consecutive sentence?

II. Did the district court abuse its discretion by departing upwardly from the presumptive guidelines sentence for the burglary conviction without relating reasons in writing or on the record to this particular offense?

III. On resentencing for the burglary conviction, is the district court limited to imposing a sentence within the presumptive guidelines range?

IV. Was Coleman sentenced under an unconstitutional statute that permitted an upward durational departure based on a judge’s finding of enhancement factors?

ANALYSIS

I.

Coleman argues that the district court erred when it imposed more than one permissive consecutive sentence, contending that the plain language of the guidelines only permits one. “Statutory construction and interpretation of the sentencing guidelines are subject to de novo review by [the appellate] court.” State v. Holmes, 719 N.W.2d 904, 907 (Minn.2006) (citation omitted).

Here, the district court imposed two permissive consecutive sentences. The district court first ordered that Coleman’s burglary conviction be sentenced consecutively to an unexpired prior sentence, that is, the burglary and criminal-sexual-conduct sentences imposed in Ramsey County. The Minnesota Sentencing Guidelines permit consecutive sentencing for a current felony conviction when there is a qualifying, unexpired, prior felony sentence. Minn. Sent. Guidelines II.F.

Next, the district court imposed a permissive consecutive sentence for Coleman’s criminal-sexual-conduct conviction, justified by the fact that the sentence was for one of multiple current qualifying convictions. The Minnesota Sentencing Guidelines state that “[mjultiple current felony convictions for crimes on the list of offenses eligible for permissive consecutive sentences found in Section VI may be sentenced consecutively to each other.” Minn. Sent. Guidelines II.F. Section VI includes each of the three crimes of which Coleman is convicted: First-degree burglary with assault under Minn.Stat. 609.582, subd. 1(c) (2004), third-degree criminal sexual conduct under Minn.Stat. 609.344, subd. 1 (2004), and kidnapping under Minn.Stat. 609.25, subd 1 (2004).

The district court thus imposed two discrete permissive consecutive sentences in sentencing for multiple current convictions, when Coleman had a qualifying unexpired prior sentence. We are unwilling to rule that the court erred in applying more than one of the instances in which the guidelines ordain consecutive sentences as permissive. Minn. Sent. Guidelines II.F.

When, as here, consecutive sentences are permissive under more than one of seven enumerated situations, id., we hold that the purpose of the sentencing guidelines is fulfilled if the offender is sentenced more severely because of having multiple current convictions as well as a prior unexpired felony sentence. Coleman’s assertion that the guidelines permit only one type of permissive consecutive sentence at one time is unpersuasive, and the district court did not abuse its discretion by sentencing Coleman consecutively for both the burglary and criminal sexual conduct convictions.

II.

Coleman next argues that the district court erred when it factored his criminal-history points in determining the 68-month duration of the burglary sentence imposed consecutively to his unexpired Ramsey County sentence. The Minnesota Sentencing Guidelines provide that a zero criminal-history score should be used when permissive consecutive sentences are imposed in order to not exaggerate the defendant’s criminality. Minn. Sent. Guidelines ILF & Cmt. II.F.Q2.

The court sentenced Coleman as follows:

On the burglary in the first degree count I’m committing Mr. Coleman to the Commissioner of Corrections to serve 68 months consecutive to his Ramsey County sentence. On the criminal sexual conduct in the third degree, I’m committing Mr. Coleman to the Commissioner of Corrections to serve 172 months, consecutive to the 68-month commit on the burglary first degree.

The presumptive sentence for first-degree burglary with assault, a severity-level VIII offense, with a criminal-history score of zero is 48 months, the non-departure range being 41-57 months. Minn. Sent. Guidelines IV. It appears from the record that the district court may have inadvertently failed to disregard Coleman’s criminal-history score before sentencing for the burglary consecutively to the Ramsey County sentence, because Coleman had two criminal-history points that would otherwise apply and the mid-range sentence for Coleman’s burglary conviction with a criminal-history score of two happens to be 68 months. However, we cannot conclusively determine whether the district court intended an 11-month durational departure or whether the court misapplied the criminal history score.

Coleman also alleges that the district court erred in departing durationally on the kidnapping sentence by staying execution of the presumptive 21-month sentence for 20 years. However, we find no error, because the maximum penalty for kidnapping under Minn.Stat. § 609.25, subd. 2(1) (2004), is imprisonment for not more than 20 years. Under Minn.Stat. § 609.135, subd. 2 (2004), a stay of execution for an offense may be for the maximum period for which the sentence of imprisonment may be imposed, and there was no departure in staying execution of Coleman’s sentence for 20 years. The guidelines provide presumptive durations for prison terms. See Minn. Sent. Guidelines IV. There are no presumptive durations for probationary periods. Id., III. A.2.

III.

Coleman argues that no sentence greater than the presumptive guidelines sentence may be imposed if the sentence for his burglary conviction is reversed, because the district court failed to give sufficient justification on the record at the time of sentencing for the departure as required by the sentencing guidelines. The guidelines provide that when departing from the presumptive sentence, a judge must provide written reasons or findings on the record that specify the substantial and compelling nature of the circumstances. Minn. Sent. Guidelines II.D. Here, the sentencing court stated the following reasons on the record for the departure from the presumptive guidelines sentence:

With regard to why I’m imposing these sentences, I believe that the victim was particularly vulnerable, and that she was assaulted in the bedroom of her own home, and that her young son was in bed with her. I believe that she was put in a position of being unable to fight for her own safety out of fear that her son would also be hurt.
I believe that the conduct was particularly cruel in that it occurred within the victim’s zone of privacy, her own home, her own bedroom, her own bed, and also that her little son was present and was clinging to her and crying while she was being assaulted.
... I believe that the crimes committed have caused psychological harm to this victim, and that harm will continue for the foreseeable future, and that she has experienced and is experiencing depression, sleeplessness, and is currently involved in rape survivors counseling. And I encourage her to continue to do that.
Multiple acts of penetration were committed by Mr. Coleman, both oral and vaginal. The defendant has admitted at a previous hearing that he knows he meets the criteria of a pattern sex offender. The defendant admitted at a prior hearing and again today that he needs sex offender treatment. The defendant has previously admitted that without sex offender treatment he’s at high risk to reoffend.
Dr. Marston’s evaluation, Dr. Reit-man’s evaluation, and the presentence investigation all state that Mr. Coleman is at high risk to reoffend even if he successfully completes sex offender treatment. I believe that the criminal activity here was motivated by sexual impulses and were part of a pattern of predatory behavior with criminal sexual conduct as its goal.

These reasons focus primarily on Coleman’s criminal sexual behavior, and while the sentencing court may have intended to cross-apply some of the same reasons in support of departure on the burglary sentence, the court did not expressly do so. Separate reasons for departure are required for each offense on which a departure is imposed, and those reasons must relate to the particular offense on which that departure is imposed. State v. Richardson, 670 N.W.2d 267, 285 (Minn.2003).

Concerned with the lack of compliance with the guidelines requirement that reasons for departure must be given on the record, in Williams v. State the supreme court provided rules for reviewing courts to follow when enforcing the requirement that sentencing courts state their reasons justifying a departure from the presumptive sentence:

1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.

361 N.W.2d 840, 844 (Minn.1985). But the supreme court later noted that the Williams guidelines led to two conflicting lines of cases from this court: “In one line of cases, the court of appeals has given the sentencing judge an opportunity to provide reasons for departure on remand when the judge fails to provide reasons on the record at the time of sentencing. In the other line of cases, it has not permitted departure.” State v. Geller, 665 N.W.2d 514, 517 (Minn.2003) (citations omitted). The court reaffirmed Williams to conclude that “absent a statement of the reasons for the sentencing departure placed on the record at the time of sentencing, no departure will be allowed. As we discussed in Williams, this rule is consistent with the requirements of the sentencing guidelines and necessary to ensure compliance with them.” Id. Getter specifies that the reasons for departure cannot be “given after the fact” and must instead be put on “the record at the time of sentencing.” Id.

As we have already observed, the court’s narrative in support of the sentences in this case focuses on the sexual-conduct crime and amply justifies the durational departure for that conviction. Moreover, considering the nature and extent of his acts, we cannot say that the aggregate duration of Coleman’s sentence is necessarily unjust or unfairly exaggerates the criminality of his conduct. See State v. Hough, 585 N.W.2d 393, 397 (Minn.1998). Coleman conceded, and we agree, that some of the stated reasons for departure could also have been cross-applied to his burglary conviction, such that the sentencing court could have justified a 68-month sentence if departure was intended. But because the sentencing statement is insufficiently specific as to the burglary, we must reverse and remand for resentencing on this part of Coleman’s sentence. We conclude that the district court may fulfill the cautionary guidelines set forth in Williams, as well as Getter’s intention of guiding the district court upon remand for resentencing, by imposing a burglary sentence within the non-departure range of 41-57 months, or up to 68 months if the departure is supported by departure reasons stated on the existing record applicable to the burglary.

IY.

Coleman also challenges the constitutionality of his sentencing under Minn. Stat. § 609.108 (2002), governing patterned and predatory sex offenders, contending that the statute is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because it allows for the district court, and not a jury, to find the existence of sentencing enhancements.

Coleman pleaded guilty to third-degree criminal sexual conduct and waived his right to a jury trial on all issues, including whether he was a patterned sex offender, but now argues that he was sentenced under a facially unconstitutional statute. Coleman acknowledges that he waived his right to have a jury determine factors related to an increased sentence, but urges this court to find that section 609.108 is facially “unconstitutional because it permitted an upward durational departure based on a judge’s finding of enhancement factors.” We disagree.

In State v. Boehl, 726 N.W.2d 831, 839-41 (Minn.App.2007), we painstakingly discussed the application of the legislative amendments to enhancement statutes, pri- or to their enactment date on August 1, 2005, so that a district court may comply with the Sixth Amendment right to a jury determination on aggravating factors, specifically the patterned-sex-offender enhancement under Minn.Stat. § 609.1352, subd. 1 (1996) (subsequently codified at Minn.Stat. §§ 609.108, subd. 1 (1998), 609.3455, subd. 3a (2006)). We did not find that this statute is facially unconstitutional, but noted, consistent with the decisions in State v. Chauvin, 723 N.W.2d 20 (Minn.2006), and State v. Kendell, 723 N.W.2d 597 (Minn.2006), that

the legislature has remained silent regarding how a district court may fulfill this statutory mandate in a constitutional manner because it has not provided guidance as to the proper sentencing procedure for patterned sex offenders who committed their offenses before August 1, 2005, but are sentenced after the Blakely decision. Absent such guidance, empaneling a resentencing jury to effectuate the legislature’s intent falls within the judiciary’s unique functions while safeguarding [the appellant’s] Sixth Amendment rights.

Boehl, 726 N.W.2d at 839.

Since the enhancement statute is not facially unconstitutional, and Coleman had the opportunity to empanel a sentencing jury, Coleman’s Sixth Amendment rights were safeguarded, and the district court proceeded correctly by imposing an enhanced sentence based only on aggravating factors that Coleman admitted. See United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).

Here, the court used a number of aggravating factors that Coleman conceded were true to justify an upward departure; only one of which is his admission to being a patterned sex-offender. Coleman admitted that his actions were “motivated by sexual impulses and were part of a pattern of predatory behavior with criminal sexual conduct as its goal.” He also conceded that he committed the crime with particular cruelty because it was within the victim’s zone of privacy and her child was present, and that the victim was particularly vulnerable for similar reasons. There was no issue of whether these findings should have been made by a sentencing jury, as Coleman specifically waived a jury during his guilty plea, and the court did not rely on any information outside of Coleman’s prior convictions, the information provided in his plea, and his admissions during the plea hearing to justify the departure. Though we reverse and remand for resentencing on the burglary conviction, we hold the district court did not err by sentencing Coleman as a patterned sex offender, when he waived his right to a sentencing jury and admitted the requisite aggravating factors.

DECISION

Under the Minnesota Sentencing Guidelines, the district court may impose more than one permissive consecutive sentence when a defendant’s multiple current offenses meet the criteria for permissive consecutive sentences, and, therefore, the district court did not err by imposing two separate permissive consecutive sentences. However, because we cannot conclusively determine whether the sentencing court intended to impose an upward durational departure for Coleman’s burglary conviction, or merely erred in not disregarding his criminal-history score, we reverse and remand that part of the sentence. Upon resentencing, the district court may either express the duration of the burglary sentence within the non-departure range of 41-57 months, or up to 68 months supported by departure reasons stated on the record at the time of Coleman’s original sentencing and applicable to the burglary.

Affirmed in part, reversed in part, and remanded.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.


author: MINGE, Judge.

text:
    In the Matter of the REVOCABLE TRUST OF Naomi MARGOLIS.
    No. A06-1018.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Bruce C. Recher, Richelle M. Wahi Reif, Henson & Efron, P.A., Minneapolis, MN, for appellant Barry Lorberbaum.
    Grant R.J. Lindquist, David M. Jacobs, P.A., Minneapolis, MN, for respondent Jack Margolis.
    Considered and decided by MINGE, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

MINGE, Judge.

Appellant-co-beneficiary of a trust challenges the district court’s affirmation of respondent-co-trustee’s accounting. Appellant argues that respondent’s use of trust funds to pay for the beneficiary’s medical care was barred by Minn.Stat. § 501B.14 (2006) and that by using trust funds in this way, respondent breached fiduciary duties. Appellant also maintains that the court clearly erred in finding that a $100,000 Norwest certificate of deposit (CD) was not trust property. Because the district court did not clearly err in finding that the Norwest CD was not trust property, we affirm that finding. But because the district court erred in its interpretation and application of Minn.Stat. § 501B.14, we reverse that portion of the decision. And because the district court did not adequately consider appellant’s breach-of-fiduciary-duty claims, we remand for consideration of those claims, the appropriate remedy, and possible damages.

FACTS

Respondent Jack Margolis and Naomi Margolis married in 1979. Both had been married previously, and both had children from their prior marriages. Appellant Barry Lorberbaum is one of Naomi’s two children. Respondent brought greater wealth to the marriage, and the couple signed an antenuptial property agreement. In 1994, Naomi executed the Naomi Mar-golis Revocable Trust Agreement, displacing that antenuptial agreement. The terms of the trust designated respondent and Naomi as co-trustees. Respondent and Naomi also delegated to each other all of their powers as co-trustee, and Naomi executed a short-form power of attorney designating respondent as her attorney-in-fact.

Article 2 of the trust governs the use of trust property for the support of Naomi. Section 2.1 of the trust requires that during her lifetime the trust distribute to Naomi such income and principal of the trust as she may request. Section 2.2 directs that if Naomi becomes incompetent, the trustees, in their discretion, are to provide for her support, maintenance, and health. Section 6.6 confirms this power.

Articles 3, 4, and 8 of the trust govern the distribution of trust property following Naomi’s death. Section 3.1 provides for the use of trust property to pay for “[Naomi]’s just debts, [and] the expenses of [Naomij’s last illness, funeral and burial, and the expenses of the administration of [Naomi]’s estate....” Section 4.1 requires the remaining trust property to be distributed to Naomi’s children and grandchildren in equal shares. Section 8.1 provides that if Naomi is unable to serve as trustee and fails to designate a successor trustee, appellant is to become her successor trustee.

Although the trust agreement submitted in the record does not include a list of trust property, it is undisputed that the following assets were transferred to the trust:

Knollwood West Partnership Interest — 12.619%
Rosewood Center Partnership Interest — 7.5%
Ridgehill Partners Partnership Interest — 8.33%
Northstar Bank Certificate of Deposit # 24842 — $10,000
Northstar Bank Certificate of Deposit # 30740 — $10,000
Northstar Bank Certificate of Deposit # 36392 — $10,000
Piper Jaffray Account — beginning balance $19,316

A schedule in Naomi’s handwriting also includes a Norwest CD in the amount of $100,000 in the list of assets transferred to the trust. Another note in her handwriting places respondent’s name next to the $100,000 Norwest CD. From 1994 to 2000, Naomi received annual trust distributions between $5,000 and $50,000.

In 2001, Naomi’s health declined. She had difficulty speaking, was unable to communicate effectively, and required assistance with physical activities. A physician advised respondent that Naomi could no longer live at their residence, and she was admitted to the Sholom Home, a long-term health-care facility. When Naomi was admitted, respondent signed an Admission Agreement with the Sholom Home. On the last page, respondent signed next to the heading “RESIDENT’S SPOUSE” and above the line which reads: “The spouse by signing above, acknowledges joint and several responsibility for payment of all charges.” Naomi never signed the Agreement.

While Naomi resided at the Sholom Home, respondent used trust assets indirectly to pay for nursing-home services. Trust income was not deposited in a trust account. Rather, respondent deposited checks payable to the Naomi Margolis Revocable Trust and the proceeds from liquidation of the trust’s three Northstar CD’s directly into the couple’s joint checking account. Respondent then drew on this joint account to make payments to the Sholom Home. According to Sholom Home records, respondent paid $194,089.85 for the uninsured cost of Naomi’s care. According to respondent’s accountant, respondent paid a total of $206,384 for Naomi’s care in the Sholom Home and other medical expenses.

In November 2003, Naomi’s death was imminent, and respondent sought legal advice to determine whether he could move the Ridgehill, Knollwood, and Rosewood partnership interests, then in Naomi’s trust, to his own trust. Relying on the advice of his lawyer, respondent transferred those assets to his trust, the Jack Margolis 'Revocable Trust. After the conveyance, his trust received cash distributions from the partnerships. But near the end of 2004, again on the advice of his lawyer, respondent transferred the partnership interests back to the Naomi Mar-golis Revocable Trust. While respondent held the partnership interests in his own trust, he received $29,263.65 in partnership distributions.

Naomi died in February of 2004. She was survived by her daughter and appellant. In August 2004, appellant petitioned the district court for removal of respondent as trustee of the Naomi Margolis Revocable Trust, for his own appointment as trustee, for redress for respondent’s alleged breach of fiduciary duties, and for a full accounting of the trust’s income, distributions, liabilities, and expenses. The district court granted appellant’s requests for respondent’s removal, his appointment, and an accounting, but it deferred the fiduciary issues to a subsequent hearing. Respondent then filed an accounting.

At trial, appellant claimed that respondent improperly used trust funds to pay for Naomi’s medical expenses, that respondent’s accounting failed to include the $100,000 Norwest CD as trust property, and that respondent breached fiduciary duties owed to the trust. Appellant sought restitution in the amount of $307,902.80 for the allegedly improper payment of Naomi’s medical expenses ($206,-384), and the $100,000 Norwest CD. The district court concluded that all of the trust distributions were used to pay for Naomi’s medical care, that the expenditures were proper, and that appellant did not meet his burden to establish that the Norwest CD was trust property. The district court did not explicitly address appellant’s fiduciary duty arguments. This appeal follows.

ISSUES

I. Did the district court err by affirming respondent’s use of trust funds for Naomi Margolis’s medical expenses?

II. Did the district court clearly err in finding that the $100,000 Norwest certificate of deposit was not trust property?

ANALYSIS

I.

Appellant contends that the district court erred by affirming respondent’s accounting because: (A) respondent’s distributions for Naomi’s medical care violated Minn.Stat. § 501B.14 (2006); (B) respondent’s handling of funds breached fiduciary duties owed to the trust; and (C) respondent breached the terms of the trust by failing to consult a medical advisor and appoint a successor trustee upon Naomi’s incapacitation.

A. MinnStat. § 501B.1I

The first issue is whether respondent’s use of trust funds to pay for Naomi’s medical services was barred by Minn.Stat. § 501B.14, subd. 1(2). In relevant part, this statute provides:

No trustee may exercise or participate in the exercise of any of the following powers: ... (2) any power to make discretionary distributions of either principal or income to discharge any legal support or other obligations of the trustee to any person.

The interpretation and application of a statute to the undisputed facts of a case involves a question of law, and we review the district court’s decision de novo. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). The goal of statutory interpretation is to “ascertain and effectuate” the legislature’s intent. Minn.Stat. § 645.16 (2006). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotations omitted). If the statute is unambiguous, we give the language its plain meaning. State v. J.R.A., 714 N.W.2d 722, 726 (Minn.App.2006), review denied (Minn. Aug. 23, 2006). “If the language is ambiguous, however, we may consider other factors, such as the purpose of the statute and the consequences of a particular interpretation.” In re Estate of Sullivan, 724 N.W.2d 532, 535 (Minn.App.2006).

Initially, respondent argues that Minn.Stat. § 501B.14 is not applicable to this case because it was enacted solely for federal estate tax purposes. Even if the statute were prompted by estate-tax considerations, it contains no qualification or limitation regarding its application, and this claim is not an adequate reason to disregard its language. Moreover, subdivision 3 of the statute expressly governs the statute’s application and states, in part:

Except as provided in paragraph (b), this section applies to any exercise of any powers of the trustee after May 14, 1993, under any trust created before, on, or after May 14, 1993, unless the terras of the trust refer specifically to this section and provide that this section does not apply.

Minn.Stat. § 501B.14, subd. 3(a). The subdivision proceeds to list four instances in which the statute does not apply to a trustee. Minn.Stat. § 501B.14, subd. 3. Respondent makes no claim that this case falls within any of the four exceptions listed in subdivision 3, and the text of the trust agreement does not reference Minn. Stat. § 501B.14 or provide that the statute does not apply. Because the reach of the statute’s application is unambiguous, we do not further consider respondent’s argument regarding its tax purpose.

The question of whether respondent’s allocation of trust funds to pay for Naomi’s medical care was prohibited by Minn.Stat. § 501B.14, is more difficult. Minn.Stat. § 501B.14 was enacted in 1993, and since that date, the statute has been cited in only one Minnesota case, which is not directly on point. See Morrison v. Doyle, 582 N.W.2d 237, 241 (Minn.1998). The question we must resolve is whether respondent “discharge[d][a] legal support or other obligation! ] of the trustee,” within the meaning of Minn.Stat. § 501B.14, by paying for Naomi’s medical care with trust funds.

Respondent urges this court to construe “legal support ... obligation” as an obligation for which the trustee is primarily liable. According to respondent, the statute only prohibits a trustee from using trust funds to discharge a legal obligation when the obligation is primarily the trustee’s and not also the beneficiary’s. In contrast, appellant urges us to construe the phrase “legal support ... obligation” according to its plain meaning. Appellant argues that by using trust funds to pay for Naomi’s medical care, respondent unlawfully discharged his legal-support obligations pursuant to the nursing-home contract he signed and as her husband pursuant to Minn.Stat. § 519.05(a) (2006). By contract and by law, respondent was liable for Naomi’s medical care.

Although we are sympathetic to respondent’s argument, we find it unpersuasive. We acknowledge that trust provisions permitting spouse-trustees to make distributions for the support of the spouse-beneficiaries are commonplace. Also, we recognize that nursing homes and other care providers may regularly require spouses or others who may be trustees to assume liability for the expenses. But the statutory language does not accommodate respondent’s reading of the statute. The statute prohibits a trustee’s use of trust funds to discharge “any legal support or other obligations of the trustee to any person.” Minn.Stat. § 501B.14, subd. 1(2) (emphasis added). The statute does not limit its prohibition to payment of the trustee’s primary support obligations. Black’s Law Dictionary defines an “obligation,” in its popular sense, as “[a] legal ... duty to do or not do something.” Black’s Law Dictionary 1104 (8th ed.2004). In the more technical sense, “obligation” is defined as: “A formal, binding agreement or acknowledgment of a liability to pay a certain amount....” Id. Both definitions encompass respondent’s duty to pay for Naomi’s care. The plain meaning of the statute’s text does not admit the qualification advanced by respondent and the legislature can easily correct any problem it may have created. Absent a constitutional infirmity, judicial rewriting of an unambiguous statute is inappropriate.

Here, respondent had a contractual and statutory legal support obligation to provide for Naomi’s health-care and nursing-home expenses. And Minn.Stat. § 501B.14 plainly, and with no qualification, prohibits trustees from using trust funds to discharge their own legal support obligations. Respondent did so here, and in so doing violated that statute. Respondent argues that this interpretation produces a harsh, and even absurd, result. We disagree. Subdivision 2 of section 501B.14 allows a trustee to avoid the potential harshness of this result by obtaining court approval of expenditures, and subdivision 3 allows settlors to opt out of the reach of this statute “if the terms of the trust refer specifically to this section and provide that this section does not apply.” Minn.Stat. § 501B.14, subds. 2, 3(a). Thus, prudent parties may work around the statute. Furthermore, as the ensuing discussion of remedies indicates, the result is tempered by the context.

Respondent’s claim that the request is harsh is unpersuasive. Not only was respondent liable for Naomi’s care, but the record indicates that they had joint accounts and that respondent had substantial, separate assets that could have been used to pay Naomi’s bills. After her death, Naomi’s children are the beneficiaries of her trust. Respondent was, or upon her death would be, the sole owner of the joint accounts, which his children would inherit from him. Thus, the choice of whether to pay bills out of her trust was not without significance. We conclude that the district court erred in determining that respondent’s distribution was permissible under the statute.

Having determined that the statute proscribes the disbursements as made by respondent, we are faced with the question of how the statute is to be enforced. We note that the statute does not provide a remedy for its violation. Appellant seeks to impose absolute, personal liability on respondent. Although this is a possible remedy, section 8.8 of the trust agreement states:

[No trustee] shall at any time be held liable for a mistake of law and/or fact, for an error of judgment, nor for any loss or injury coming to any trust estate or to any beneficiary thereof ... except as a result of actual fraud or willful misconduct....

Although the per se standard is appropriate in instances of actual fraud/willful misconduct, we are not aware of an application of the per se standard when the trust agreement provides its own standard. Here, there should be appropriate findings of fact and conclusions of law on this issue. This is the function of the district court. The facts referenced in this and the next section are relevant to this undertaking. Accordingly, we remand to the district court with instructions to make factual findings pursuant to section 8.8 of the agreement and to determine the appropriate remedy and damages for respondent’s failure to comply with the statute.

B. Breach-of-Fiduciary-Duty Claims

Appellant also argues that the district court erred in allowing respondent’s accounting because respondent breached fiduciary duties owed to the trust. Under Minnesota law, trustees owe several fiduciary duties to trust beneficiaries. Most importantly, trustees owe a duty of loyalty to trust beneficiaries. The trustee’s “primary duty [is] not to allow his interest as an individual even the opportunity of conflict with his interest as trustee.” Smith v. Tolversen, 190 Minn. 410, 413, 252 N.W. 423, 425 (1934). A trustee can breach the duty of loyalty by acting for personal gain. See In re Estate of Lee, 214 Minn. 448, 9 N.W.2d 245 (1943). But there is no breach of the duty of loyalty where the transaction is explicitly authorized by the terms of the trust. Restatement (Second) of Trusts § 170 cmt. a (1959). Trustees also have a duty to act pursuant to the terms of the trust, and they commit a, breach of trust when they fail to do so. Id. at § 201. Moreover, trustees owe beneficiaries a duty of full disclosure, id. at § 173, are prohibited from co-mingling trust funds with their own personal funds, id. at § 179, and have a responsibility to thoroughly maintain an accounting of their management of trust property, id. at § 172.

Here, the record indicates that respondent co-mingled trust funds with his own funds, failed to keep the beneficiaries reasonably informed of material facts, refused to respond to appellant’s requests for information, failed to maintain an accurate accounting of his management of the trust funds, and failed to inform appellant that he was to serve as a successor trustee after Naomi became incapacitated, even though the trust expressly calls for that appointment. Further, appellant asserts that respondent expended funds from the trust, as opposed to other sources, so as to favor himself and his descendents at the expense of Naomi’s children, that respondent attempted to claim the trust’s limited partnership interests as his own property, and that respondent intentionally misrepresented the trust’s assets. There is support in the record for these claims. But arguments and evidence notwithstanding, the district court made no findings or conclusions regarding appellant’s breach-of-fidueiary-duty claims. Appellant’s arguments were presented to the district court both in his initial petition and his memorandum of law.

Because the breach-of-fiduciary claims raise important fact issues that the district court did not address, we remand for their consideration. We direct the district court to make any findings of fact necessary to resolve this issue. Further, in the event the district court concludes that respondent breached his fiduciary duty to the trust beneficiaries, the district court should determine the proper remedy and damages for such a breach.

C. Consultation of a Medical Advisor and Appointment of a Successor Trustee

Appellant also argues that the court’s affirmation of respondent’s accounting was error because respondent did not follow the provisions of the trust agreement by consulting a medical advisor upon Naomi’s incapacitation or appointing a successor trustee in accordance with the terms of the trust.

Section 2.2 of the trust agreement provides:

2.2 Payments in the event the Grantor becomes Incapacitated. At any time while the Grantor, in the opinion of the Trustees and a competent medical advisor, is incapacitated through illness or any other cause, the Trustees shall pay to or expend for the benefit of the Grantor, and the Grantor’s issue such sum or sums from either the net income from or the principal of the Trust Estate as the Trustees, in the Trustee’s discretion, may deem necessary or advisable to provide for the proper support, maintenance, and health of the Grant- or, and the Grantor’s issue.

Here, respondent never sought an independent medical advisor’s opinion to establish Naomi’s incapacitation. The district court reasoned that because “[tjhere is no dispute that [Naomi] was incapacitated to the extent that she required nursing home care ... the mere failure of [respondent] to obtain an independent medical opinion regarding her capacity is of no consequence.” Based on the record in this case, we agree. Appellant does not challenge the district court’s finding that Naomi was incapacitated at the time she entered the Sholom Home. In fact, appellant testified to her incapacity at trial, and appellant conceded such incapacitation from the outset of the litigation. Additionally, appellant has not shown how respondent’s failure to consult an independent medical advisor resulted in the misuse of trust assets. We affirm this portion of the district court’s decision.

Appellant also contends that the district court erred in affirming respondent’s accounting because respondent failed to bring to appellant’s attention appellant’s role as a successor trustee upon Naomi’s incapacitation. The district court concluded that respondent’s failure to do so was immaterial because “[h]ad [appellant] assumed the duties of successor trustee and had he objected to the payment of his mother’s nursing home costs from her trust, the issue would have been brought before the court, which would have ordered payment from her trust.” However, this conclusion ignores the conflict of interest respondent faced over whether to use resources from Naomi’s trust ór their joint accounts to pay her expenses. It further assumes that appellant or an independent, additional trustee either would have concurred that Naomi’s trust should bear the primary expense of her care or would not have had any persuasive perspective on the question. The district court may have been presented with a different request if respondent was not the sole trustee. Because we remand for consideration of appellant’s section 501B.14 and fiduciary-duty claims, we include in our remand an instruction to the district court to reconsider the adverse effect, if any, of respondent’s failure to obtain a successor trustee.

II.

Next, appellant argues that the district court clearly erred in finding that the $100,000 Norwest CD was not trust property. The question of whether property is trust property depends on whether the grantor was the owner of and intended to identify “a definite trust res wherein the trustee’s title and estate is separated from the vested beneficial interest of the beneficiary.” Brooks v. Ramsey County Cmty. Human Servs. Dep’t, 405 N.W.2d 432, 435 (Minn.App.1987). The existence of intent is a question of fact. Dannheim Dev., Inc. v. Mogler, 412 N.W.2d 398, 400 (Minn.App.1987).

“Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01. In applying Minn. R. Civ. P. 52.01, we view the record in the light most favorable to the district court’s judgment and will not reverse merely because we view the evidence differently. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999). The district court’s factual findings must be clearly erroneous or “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole” to warrant reversal. Id. (quotation omitted). “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (quotation omitted).

Here, appellant introduced two pages of Naomi’s hand-written notes listing various assets held by her and respondent. There are two columns on the first page of the notes, each with headings for Naomi and for respondent. Listed on separate lines below the Naomi heading is: “North Star Bank,” “Ridgehill,” “Rosewood,” “Knoll-wood,” “Norwest CD 100,000 only,” and “Piper Jaffray.” The second column has the heading “Jack” and lists several assets. The following page of notes contains the notation: “Jack ?: Norwest # 1191946 CD ... 100,000.” Appellant did not present any evidence indicating whether the notes were written before or after execution of the trust.

Respondent offered two documents from Norwest Bank in opposition to appellant’s claim. Both documents indicate that the certificate number of the Northwest CD is 4101191946. The first document is a “notice of certificate maturity.” This document attributes ownership of that $100,000 CD to “Jack Margolis or Naomi R Margol-is,” not the Naomi Margolis Revocable Trust. Similarly, the second document, a “CD/Retirement Disclosure,” lists “Jack Margolis” as the depositor of the CD.

Appellant argues that Minnesota law employs a presumption that assets traced into the hands of a trustee are presumed to remain in trust, unless the trustee shows otherwise. By requiring a trustee to explain any ambiguity in accounting for trust property, the presumption operates to encourage clear and diligent accounting of trust property. Appellant’s recitation of the presumption finds support in early Minnesota caselaw. See Stein v. Kemp, 132 Minn. 44, 47, 155 N.W. 1052, 1053 (1916); Blythe v. Kujawa, 175 Minn. 88, 92, 220 N.W. 168, 169 (1928).

But appellant’s reliance on this presumption is misplaced. This presumption is grounded on the presupposition that the property in question is, in fact, trust property. And the presumption takes effect only after it is shown that the property in question was an asset of the trust at the trust’s inception. Here, the district court found that appellant did not meet his evi-dentiary burden to show that the CD was a trust asset. Because the limited and conflicting evidence presented on the issue is adequate to support the district court’s finding and because we defer to the district court’s weighing of the conflicting evidence, we conclude that the district court did not clearly err in finding that the Norwest CD was not trust property.

DECISION

Because the district court did not clearly err in finding that the Norwest CD was not trust property, we affirm that finding. But because the district court erred in its interpretation and application of Minn. Stat. § 501B.14 (2006), and because the district court did not adequately consider appellant’s breach-of-fiduciary-duty and replacement-trustee claims, we remand for consideration of those matters, the appropriate remedy, and damages.

Affirmed in part, reversed in part, and remanded.

      . Although Jack Margolis died after the district court proceeding, his death does not affect the appeal, and we refer to respondent as an individual for simplicity in discussing the case.

      . The record indicates that the trust assets had been transferred by respondent to Naomi several years prior to the creation of the trust. Respondent does not claim and the district court did not find that respondent’s earlier ownership of the assets affected the merits of appellant's claims.


author: ROSS, Judge.

text:
    In the Matter of the WELFARE OF the Child of T.D., a/k/a T.B., Parent.
    No. A06-2109.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, MN, for appellant T.D.
    Michael 0. Freeman, Hennepin County Attorney, C-2000 Government Center, and Michelle A. Hatcher, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County Human Services and Public Health Department.
    Bruce Jones, Lianne C. Knych, Faegre & Benson, LLP, Minneapolis MN, for guardian ad litem.
    Considered and decided by ROSS, Presiding Judge; TOUSSAINT, Chief Judge; and KLAPHAKE, Judge.
   OPINION

ROSS, Judge.

The district court terminated T.D.’s parental rights to her fifth child after finding that she failed to rebut the presumption of parental unfitness that arose when she involuntarily transferred custody of her fourth child and that four other statutory grounds supported termination. T.D. challenges the termination, arguing that the district court erred by taking judicial notice of the involuntary-transfer order and that she overcame the presumption of unfitness. We hold that the district court properly relied on the involuntary-transfer order and that T.D. did not introduce sufficient evidence to overcome the presumption. Because the record establishes a statutory ground for termination of parental rights, we affirm' the district court. Because T.D. submitted material outside the record on appeal and Minnesota courts have not created an exception in termination-of-parental-rights cases that would permit this court to consider the material, we grant the guardian ad litem’s motion to strike.

FACTS

T.D.’s history with child-protection services spans nearly fifteen years and crosses four counties. This appeal arises from the termination of parental rights to her fifth child.

T.D. first gave birth in 1993. Dakota County opened a child-protection case the same year because of allegations of child abuse concerning the baby’s father. In 1995, T.D. agreed to a court order appointing her father as the boy’s guardian. T.D. had two more sons with another man (her husband at the time) in 1997 and 1999. T.D. was convicted of fifth-degree assault for striking the older boy with a closed fist when he was about four years old. Sher-burne County opened a child-protection case, but closed it because the boys’ father took custody of the children. T.D.’s fourth son was born in February 2004 and was removed from the home within days. An Anoka County district court later found the child in need of protection or services after T.D. admitted to the allegations in the county’s child-protection petition. T.D. initially complied with parts of her case plan, but soon ceased contact with her social worker and moved to Missouri in August 2004. The county petitioned to transfer legal custody to the child’s father. T.D. failed to attend the November 2004 hearing to admit or deny the petition, resulting in a default judgment. In February 2005 the court ordered the involuntary and permanent transfer of custody to the boy’s father. The Anoka County records indicate that T.D. has a significant history of poor mental health and domestic violence.

In October 2005 T.D. gave birth to her fifth child, a girl, who is the subject of this appeal. Five days later, the Hennepin County Human Services and Public Health Department filed a petition to terminate T.D.’s parental rights or transfer custody of her infant daughter. T.D. began working on a case plan that became court-ordered in February 2006 when the district court found her daughter to be in need of protection or services. The case plan required T.D. to follow the recommendations of a parenting assessment and psychological evaluation she had already completed, to participate in individual therapy, and to maintain safe and suitable housing. In May 2006, the department filed a new petition to terminate T.D.’s parental rights. The department alleged four statutory grounds for termination. It also moved the district court to take judicial notice of the Dakota and Anoka County orders transferring custody of T.D.’s other children, as well as the court’s own order finding T.D.’s daughter in need of protection or services.

During the hearing on the department’s permanency petition, the district court heard testimony from T.D.’s parenting instructor, a child-protection social worker, and the guardian ad litem. Each testified that termination of parental rights is in the child’s best interests. They acknowledged T.D.’s strong attendance record for her case-plan appointments and recognized that she had made improvements. But they noted that, despite six months of twice-weekly parenting classes, four months of weekly in-home parenting instruction, and having had four other children, T.D. continued to struggle with basic parenting skills and was generally unreceptive to advice. The court also heard testimony from Seymour Gross, a clinical psychologist retained by the public defender’s office to conduct a second psychological evaluation. Dr. Gross testified that many of T.D.’s perceived limitations are the product of hearing loss and that individual and group therapy would likely benefit her. The department noted that most of his recommended services were already in place.

In August 2006, the district court terminated T.D.’s parental rights. The court took judicial notice of the three requested orders, and it found that, based on the February 2005 involuntary transfer of custody of her fourth son, she was presumed palpably unfit. The court found that she had failed to rebut this presumption, and it held that the record supported terminating T.D.’s rights on five statutory grounds. It denied T.D.’s motion for a new trial. T.D. appeals, challenging the district court’s decision to take judicial notice of, and rely on, the Anoka County order, and she disputes whether sufficient evidence supports terminating her parental rights.

ISSUES

I. Did the district court err by taking judicial notice of another county’s order involuntarily transferring custody of another child of the parent?

II. Does the record support the district court’s decision to terminate the mother’s parental rights?

III. Should an appellate court consider submissions that are outside the district court record in an appeal from the termination of parental rights?

ANALYSIS

I

T.D. challenges the district court’s taking judicial notice of the February 2005 Anoka County order involuntarily transferring custody of T.D.’s fourth son. She raises belated due-process objections to that previous transfer of custody and contends that the judgment should have been deemed inadmissible in this case. A court may take judicial notice of a fact not subject to reasonable dispute when the fact is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Minn. R. Evid. 201(b). Judicial notice expedites litigation because it avoids the time and expense required to formally prove factual matters determinable from unquestionable sources of information. Fluoroware, Inc. v. Chubb Group of Ins. Cos., 545 N.W.2d 678, 684 (Minn.App.1996) (quotation omitted). A court may take judicial notice of a fact at any stage of the proceeding and may do so both on its own initiative and when requested by a party that supplies the court with the information. Minn. R. Evid. 201(e)-(d), (f).

T.D. raised her challenge too late. The department moved for judicial notice more than one month before the hearing. T.D. did not contest the motion until she sought a new trial. We will not consider matters not presented to the district court, and a party may not raise an issue for the first time in a new-trial motion. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate court will not consider matters not argued and considered by district court); Filingson v. Burlington N. R.R. Co., 412 N.W.2d 401, 405 (Minn.App.1987) (stating that party may not first raise issue in new-trial motion), review denied (Minn. Nov. 13, 1987). We therefore find this issue waived on appeal.

II

T.D. next challenges the bases for the district court’s decision to terminate her parental rights. A district court may involuntarily terminate parental rights when clear and convincing evidence supports a statutory basis for termination. Minn. R. Juv. Prot. P. 39.04, subd. 1; see also Minn.Stat. § 260C.301, subd. 1(b) (2006) (listing grounds for involuntary termination of parental rights); In re Welfare of the Children of R.W., 678 N.W.2d 49, 55 (Minn.2004) (stating that only one statutory basis is needed to support termination). Whether termination meets the child’s best interests is the paramount consideration. Minn.Stat. § 260C.301, subd. 7 (2006). A court may not terminate parental rights unless it also finds that social-service agencies made reasonable efforts to reunify the parent and child. Id., subd. 8(1) (2006). The court must make its decision based on evidence concerning the “conditions that exist at the time of termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period.” In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001). We will therefore affirm the district court’s decision when clear and convincing evidence supports the decision and the termination is in the child’s best interests. R.W., 678 N.W.2d at 55.

One basis for terminating parental rights is palpable unfitness by the parent to be a party to the parent-child relationship. Minn.Stat. § 260C.301, subd. 1(b)(4). When a parent’s custodial rights to a different child were involuntarily transferred, the parent is presumed palpably unfit. Id. T.D. suggests that even if the district court properly took judicial notice of the prior involuntary transfer-of-custody order, the court should not have relied on the order to invoke the presumption of unfitness. The caselaw that T.D. offers does not support this view, and we decline to adopt her proposition. Because the district court appropriately took judicial notice of the Anoka County order, the court did not err by applying the presumption to T.D.

A parent must rebut a presumption of unfitness. In re Welfare of D.L.R.D., 656 N.W.2d 247, 250-51 (Minn.App.2003). The district court need not establish an independent reason to terminate because it is the parent’s burden to “affirmatively and actively demonstrate her or his ability to successfully parent a child.” Id. On appeal, T.D. argues for a different application of the presumption, arguing that a parent need only produce some evidence of fitness to negate the presumption. T.D. correctly points to the rules of evidence, which provide that “a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof.” Minn. R. Evid. 301. But rule 301 does not conflict with our previous applications of the presumption of parental unfitness. In the context of termination-of-parental-rights cases, the assumed fact is unfitness. Although the burden of persuasion remains with the county, to rebut the presumption a parent must introduce sufficient evidence that would allow a factfinder to find parental fitness. See id. 1977 comm. cmt. (stating that presumption no longer functions when party introduces evidence sufficient to justify a finding of fact contrary to the assumed fact); In re Child of AS., 698 N.W.2d 190, 194, 196 (Minn.App.2005) (stating that applying presumption of unfitness shifts burden to parent to prove fitness and rebut presumption), review denied (Minn. Sept. 20, 2005).

Because we conclude that T.D. did not present sufficient evidence to support a finding of parental fitness, we agree with the district court that she did not rebut the presumption of unfitness. T.D. complied with her case plan in terms of attending appointments, but the service providers testified that she had failed to demonstrate significant or commensurate progress in her parenting skills. Even after many months of parenting classes and in-home instruction, service providers had to repeatedly remind her how to prepare a bottle and care for her daughter after feeding her. They explained that T.D. struggles to read her daughter’s cues and react appropriately. T.D. also struggles to multitask, and supervisors have observed her child fall or nearly fall because T.D. did not pay attention to her or physically support her appropriately. Although T.D. could state the phases of child development, testifying observers doubted that she can adjust to these phases in practice. The guardian noted that T.D. has difficulty learning basic skills, and her daughter’s needs are changing faster than T.D. can keep pace. The guardian acknowledged that some of the cited events might not warrant as much serious concern in isolation, but she explained that the repetition and combination of concerns put T.D.’s daughter at risk.

The service providers also expressed concerns about T.D.’s ability to manage inevitable stress. T.D. becomes frustrated and angry easily, often leaving the room. The guardian noted that T.D.’s daughter is too young to be left alone. The court allowed T.D. to have unsupervised visits in June 2006. Of the three visits, a child-services worker cancelled one because of his concerns about T.D.’s agitated behavior.

T.D. was living in a homeless shelter when her daughter was born, but moved into an apartment in November 2005. Service providers have stressed from the outset that T.D. needs a strong support network to become a successful parent. The parenting assessment recommended that T.D. be surrounded “with as many effective supports as possible. A semi-supervised setting ... where a [social worker] is available may be a possibility.” T.D. declined an open spot in a supportive-housing center early in her case plan and was adamant about remaining in her apartment, although the record is unclear as to the gravity with which the county presented this option to her. Her parenting instructor explained that a supportive-living environment would enable her to receive feedback 24 hours a day and provide the necessary parenting support. But T.D. has few supportive individuals. When she filled out a form asking who she would trust with her daughter, T.D. wrote, “not at this time.” She reported having one friendship, but has represented to service providers that she has no friends.

T.D. indicated that in an emergency she would call her mother or her daughter’s current foster parent. But her mother lives more than one hour away and they have a strained relationship, and the foster mother lives twenty to thirty minutes away and does not drive. The record supports the court’s finding that T.D. will be unable to be a full-time parent to her daughter on her own within the reasonably foreseeable future.

T.D. did not testify and presented only Dr. Gross’s testimony and his psychological evaluation. Dr. Gross commented on T.D.’s emotional responses and frustration when she faced critical parenting feedback. Although Dr. Gross suggested that the service providers should adapt to T.D.’s learning style more when offering their feedback, he admitted that a child will not communicate only in ways that do not frustrate her mother. T.D. argues on appeal that the district court undervalued Dr. Gross’s testimony and overvalued T.D.’s first psychological evaluation. We defer to the district court’s determinations of witness credibility and the weight to be given to the evidence. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn.1996). T.D. also asserts that the guardian ad litem “had no life experiences to guide her decision making and little experience as a guardian.” This assertion is unpersuasive. The guardian completed guardian-ad-litem training in 2003, she participates in monthly ongoing training sessions, and she has worked on seven cases involving thirteen children. She has a bachelor’s degree in youth social sciences, which required studies in psychology, counseling, and youth. T.D.’s uncompelling and unsupported insight into the guardian’s allegedly insufficient personal experiences offers no basis to question the district court’s reliance on her opinion.

The district court’s findings are rooted in the observations and testimony of providers who worked with and observed T.D. for many months. Although the record demonstrates that T.D. made progress, she failed to rebut the presumption of palpable unfitness by putting forth evidence that could establish parental fitness. While a different factfinder may have weighed the evidence differently, based on its supported findings the district court did not err by terminating T.D.’s parental rights on this statutory ground.

In addition to palpable unfitness, the department alleged three other grounds for terminating T.D.’s parental rights. See Minn.Stat. § 260C.301, subd. 1(b)(2), (5), (7) (stating grounds for terminating parental rights). Although the district court found that clear and convincing evidence supported the additional grounds, the court also found that T.D.’s daughter is neglected and in foster care, relying on subdivision 1(b)(8) of section 260C.301. But a court may not terminate parental rights on a ground that is not stated in a petition to terminate rights. See Minn. R. Juv. Prot. P. 39.05, subd. 3(a) (stating that court may terminate parental rights after concluding that “the statutory grounds set forth in the petition are proved”); In re Staat, 287 Minn. 501, 505, 178 N.W.2d 709, 712 (1970) (rejecting one of district court’s grounds for termination of parental rights in part because district court relied on ground not alleged in petition). A parent must have notice of a claim and an opportunity to oppose it. See Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn.1983) (requiring district court to base relief on issues either raised by pleadings or litigated with consent). Because at least one statutory ground supports termination in this case, however, the error does not affect our decision to affirm the termination of T.D.’s parental rights.

The record also supports the district court’s findings on reasonable efforts and the best interests of the child. The department provided T.D. with twice-weekly parenting courses, weekly in-home parenting instruction, and supervised and unsupervised visits with her child. The department also referred T.D. to anger-management classes, which she completed, and offered her a position in a supportive-housing environment, which she declined. The child-protection social worker testified that the department did not make a referral for individual therapy because the first psychological assessment suggested it would not benefit T.D.

T.D. contends that the department “rushed to trial.” But the permanency hearing occurred after her daughter had been in an out-of-home placement for nearly her entire life, about nine months. When a child under eight years is placed outside the home, a permanency hearing to assess progress generally should be held within six months of the placement. Minn. Stat. § 260C.201, subd. 11a (2006). The court recognized T.D.’s love for her daughter and her progress, but it noted that even Dr. Gross did not suggest a timeline within which T.D. could successfully parent her child. The record supports the district court’s finding that termination of parental rights was in the child’s best interests.

III

T.D. attached to her reply brief a March 2007 letter from Dr. Gross to update the court on T.D.’s progress. The guardian has moved to strike the attachment and references to the document within the brief. The motion is well founded.

The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.” Minn. R. Civ.App. P. 110.01. The court generally will not base its decision on matters outside the record on appeal, and it will not consider matters that were not produced and received in evidence in the district court. Thiele, 425 N.W.2d at 582-83. If a party’s brief includes documents that are outside of the appellate record, we will strike the documents. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd 504 N.W.2d 758 (Minn.1993).

T.D. relies on two cases to support her contention that we may consider matters outside the record in a termination-of-parental-rights appeal. Neither case supports her assertion. In one case, the supreme court acknowledged that its decision to vacate a termination of parental rights was “admittedly influenced by the disclosures that [the mother was] presently caring for her second child and that the proposed plan for [the child in need of protection or services’s] placement ha[d] been ineffective, facts not available to the juvenile court.” In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980). But the court explained that “the hearing record also supports our conclusion in this case.” Id. The Chosa court also emphasized that evidence in a termination-of-parental-rights case “must address conditions that exist at the time of the hearing.” Id. T.D. also mischaracterizes this court’s holding in In re Welfare of B.W., 454 N.W.2d 437 (Minn.App.1990), by suggesting that B.W. is part of a “long recognized ... exception in permanency proceedings” concerning our scope of review on appeal. In stating the facts of the case, the B.W. court noted that “[i]t was revealed at oral argument that [the father] underwent chemical dependency treatment in prison; he is now living in a halfway house in St. Paul and attending college.” Id. at 441-42. But the legal issues in the case plainly related to whether the district court should have transferred jurisdiction to the tribal court. The father’s post-termination progress was unrelated to the legal issues, analysis, and holding.

Contrary to T.D.’s representations, Cho-sa and B.W. do not create an exception to the general principle that this court will not consider matters outside the district court record. Because the letter is not properly before the court, we grant the guardian’s motion to strike the letter and references to it in T.D.’s reply brief.

DECISION

The district court properly took judicial notice of the Anoka County order involuntarily transferring custody of T.D.’s fourth child and invoked the presumption of parental unfitness. T.D. failed to rebut this presumption. Because the county established a statutory ground for termination, we affirm the termination of T.D.’s parental rights. Because T.D.’s reply brief includes a document outside the record on appeal, we grant the guardian’s motion to strike the document and references to the document.

Affirmed; motion granted.


author: PER CURIAM.

text:
    2007 ND APP 1
    Roland C. RIEMERS, Plaintiff and Appellant v. STATE of North Dakota, North Dakota State Fair Association, Gary Knell, personally and as President of State Fair Association, Bob Wagoner, personally and as State Fair Manager, and Renae Korslien, personally and as Concessionaire Manager, Defendants and Appellees.
    No. 20060310CA.
    Court of Appeals of North Dakota.
    April 27, 2007.
    Review Denid June 20, 2007.

      Roland C. Riemers (pro se), Emerado, ND.
    Douglas Alan Bahr, Solicitor General, Office of Attorney General, Bismarck, ND, for defendants and appellees.
   PER CURIAM.

[¶ 1] Roland Riemers appeals from summary judgment dismissing his action against the North Dakota State Fair Association (“the Association”) in which Riem-ers challenged the constitutionality of an Association rule prohibiting solicitations at the North Dakota State Fair. We affirm and remand to the district court to determine the Association’s attorney fees for this appeal.

I

[¶ 2] The Association is a statutory agency created under N.D.C.C. § 4-02.1-01 to conduct an annual state fair. The Association has adopted a rule for the fair prohibiting the solicitation and gathering of signatures for petitions except from a paid concession location. The solicitation rule states, “No person, parties or organizations shall distribute any kind of literature, or gather signatures for petitions, other than from a paid concession location — no walking concessions nor gathering of signatures for petitions other than from a paid concession location will be allowed.”

[¶ 3] During the 2006 State Fair, Riemers was asked to leave the fairgrounds after he began stopping patrons as they entered the fairgrounds to solicit signatures for a petition. Riemers returned to the fair a couple of days later and rented a concession booth for the remaining days of the fair to solicit signatures for his petition. Riemers was required to pay a pro-rata fee of $194.40 to rent the booth, and was required to purchase liability insurance.

[¶ 4] Riemers sued the Association for more than $200,000 in damages, claiming the solicitation rule violated his right to free speech under the First Amendment of the United States Constitution and Article I, §§ 1, 4, 5, and 21 of the North Dakota Constitution. The Association answered Riemers’ complaint and moved for summary judgment. Riemers failed to respond to the Association’s motion. The district court granted summary judgment dismissing Riemers’ action. Riemers moved for reconsideration claiming he did not respond to the motion for summary judgment due to a clerical error. The court denied his motion, stating its decision to grant summary judgment did not depend solely on Riemers’ failure to respond, but rather was based on case law that established his claim was frivolous. The court ordered Riemers pay the Association’s attorney fees.

II

[¶ 5] A court’s decision on a motion for summary judgment is a question of law, which we review de novo on the record. Trinity Hosps. v. Mattson, 2006 ND 231, ¶ 10, 723 N.W.2d 684. “Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.” Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615.

The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.
Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. If no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed that no such evidence exists.

Id. at ¶ 8 (internal quotations and citations omitted).

[¶ 6] Riemers failed to respond to the Association’s motion and present any evidence raising an issue of material fact. The only issues to be resolved were questions of law.

[¶ 7] Riemers claims the Association’s solicitation rule violated his right to free speech. The North Dakota Supreme Court considered a similar claim in Bolinske v. North Dakota State Fair Ass’n, 522 N.W.2d 426, 484 (N.D.1994), and held the Association’s solicitation rule constituted a reasonable time, place, and manner restriction, which leaves open ample alternative channels for communication, and therefore does not violate the First Amendment. The Association’s rule prohibiting solicitation has not changed since Bolinske, and we are not persuaded that Bolinske was wrongly decided or that it does not control our resolution of the constitutional issues.

[¶ 8] Riemers argues the fees charged for renting a booth are excessive because the fees are more than the administrative costs of assigning the booth. A similar claim was also addressed in Bolinske, at 436. Generally only fees that cover the administrative costs of a permit or license are permissible, but when a government agency is engaged in a commercial enterprise raising revenue is a significant interest. Id. The State Fair is a commercial enterprise, whose survival depends upon generating sufficient revenue to cover its annual operating costs. Id. Riemers failed to present any evidence raising an issue of material fact that the fees charged in this ease were excessive.

[¶ 9] Riemers contends the Association’s requirement that a renter purchase liability insurance violated his right to free speech. However, Riemers also failed to present any evidence raising an issue of material fact on this issue.

[¶ 10] Riemers also claims summary judgment was not appropriate because he did not have a reasonable opportunity for discovery to develop his position opposing the motion. Rule 56(f), N.D.R.Civ.P., allows for further discovery:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

While compliance with the Rule 56(f) affidavit requirement is preferred, a request for additional discovery at a hearing may be sufficient if the party explains to the court what information is sought, how the information would preclude summary judgment, and why it has not been previously obtained. Choice Financial Group v. Schellpfeffer, 2006 ND 87, ¶ 18, 712 N.W.2d 855. Riemers did not request time for further discovery before summary judgment was granted, and he failed to comply with the Rule 56(f) requirements.

[¶ 11] We affirm the district court’s grant of summary judgment.

III

[¶ 12] Riemers claims the district court erred in awarding the Association attorney fees. He argues a reasonable person, in his position, could have expected a judgment in their favor because the facts of this case are contrary to the ruling in Bolinske. The district court’s decision to award attorney fees will not be reversed on appeal unless the court abused its discretion. Heng v. Rotech Med. Corp., 2006 ND 176, ¶ 30, 720 N.W.2d 54. Section 28-26-01, N.D.C.C., requires a district court to award a prevailing party attorney fees if a claim for relief is frivolous. A claim is frivolous when there is “ ‘such a complete absence of actual facts or law that a reasonable person could not have expected that a court would render judgment in his favor.’ ” Deacon’s Dev., LLP v. Lamb, 2006 ND 172, ¶ 12, 719 N.W.2d 379 (quoting Peterson v. Zerr, 477 N.W.2d 230, 236 (N.D.1991)). We conclude the district court did not abuse its discretion in deciding Riemers’ claims were frivolous and in awarding the Association attorney fees.

IV

[¶ 13] The Association requests attorney fees for this appeal. An award of costs, including reasonable attorney fees, is authorized under N.D.R.App.P. 38 for a frivolous appeal. An appeal is frivolous if it is “ ‘flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.’ ” Riemers v. O’Halloran, 2004 ND 79, ¶ 16, 678 N.W.2d 547 (quoting Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 7, 658 N.W.2d 756). Considering the Supreme Court’s decision in Bolinske and that Riemers failed to respond to the Association’s motion for summary judgment or present any evidence raising an issue of material fact, we conclude his appeal is flagrantly groundless and the Association is entitled to attorney fees for the appeal. The Association did not submit any documentation of its attorney fees, and we remand to the district court for a determination of reasonable attorney fees for this appeal.

V

[¶ 14] We affirm the summary judgment dismissing Riemers’ action and awarding attorney fees, and we remand for a determination of reasonable attorney fees for this appeal.

[¶ 15] BENNY A. GRAFF, S.J., Chief Judge, WILLIAM F. HODNY, S.J., and EVERETT NELS OLSON, S.J. concur.