author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Mohammed Gazizamil AL-NASEER, Appellant.
    No. A03-634.
    Court of Appeals of Minnesota.
    April 27, 2004.

      Mike Hatch, Attorney General, Thomas R. Ragatz, Amy V. Kvalseth, Assistant Attorneys General, St. Paul, MN and Lisa Borgen, Clay County Attorney, Kenneth Kohler, Assistant Clay County Attorney, Moorhead, MN, for respondent.
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

On this appeal from a conviction for criminal vehicular homicide, appellant argues that (1) admission of a videotaped statement violated his constitutional rights because he invoked his right to remain silent and made unequivocal requests for an attorney; (2) the district court erred in admitting emotional “spark-of-life” evidence and in denying a motion for a mistrial after the prosecutor questioned the victim’s widow on her preclusion from attending the rest of the trial because of a sequestration order; (3) the district court erred in responding to jury questions during deliberations by stating appellant did not have to be aware of hitting the victim or have to cause the collision to be found guilty; (4) the district court erred in refusing to instruct the jury on the lesser-included offense of careless driving; (5) he did not receive effective assistance of counsel; and (6) the district court erred when it sentenced him on both counts for a single behavioral incident.

FACTS

In June 2002, appellant Mohammed Gaz-izamil Al-Naseer was driving his car home to Fargo, North Dakota from Cass Lake. He swerved onto the side of the road and struck and killed Kane Thomson (Thomson), who was changing a tire. Ten miles down the highway, appellant realized that his headlights were not working properly. Because he was only eight miles from home, he decided to drive slowly with his hazard lights on. But a short time later, he stopped to try to repair the headlights. Two police officers, who had been dispatched to locate a car involved in a hit- and-run accident, stopped when they saw appellant. One of the officers noticed fresh damage to appellant’s car and asked appellant if he hit something about ten miles back. Appellant is Iraqi and speaks very little English, but he told the officers that he might have hit something. The officers arrested appellant and took him to the Moorhead Law Enforcement Center, where Sergeant Daniel Prischmann videotaped an interview with him. The relevant portions of the interview are as follows:

DP: [Y]ou have that right to remain silent. If you want an attorney prior to questioning or you have an attorney ...
MA: Why do I? Why would I need one? I can’t say nothing.
DP: I’m just advising you of your rights.
MA: I’m not sure. Even my English is not very good.
DP: I understand that. If you couldn’t afford an attorney one would be appointed for you by the courts.
MA: Well, before I say something, why would I need somebody? Before I say something I need to make sure, and I can’t say nothing, I need somebody here, because if you say attorney or whatever I say court and I don’t know, I mean ... I stopped behind me and he saw me outside not inside of the car. I am not inside the car. I was outside the car.
DP: I understand that. Do you understand your rights?
MA: I don’t know. You say court, whatever, and I don’t want to say nothing because I’m not sure. I’m honest with you, I don’t know what is going on. Yes I’m tired. I’m not drunk, I never drink in my life ... I don’t know ...
DP: Do you have an attorney?
MA: Well I don’t know. Put yourself my place. This is first time and I don’t know. I mean I don’t know. I’m kind of at a loss. I am here and I don’t know what is happening. My car is gone and I don’t know what happened. So I mean I’m not sure. I’m not sure. Take your place my place. I don’t know.
DP: I could give you a phone book and you could call one if you want to call one, and let you talk to one.
MA: Now? I don’t see anyone. I mean. I don’t know. Probably I can’t afford an attorney. Well, I need somebody, whatever, county, court appoint me one ... we can try ... I tired ... I don’t know. I don’t know.
DP: We can’t make you give any statements against yourself. We can’t make you say anything or tell us what you know without your consent.
MA: Well, yeah I mean. I don’t know. I’m lost. I am here. My car gone. I don’t know what happen. And I stopped, nobody stop me. And the officer saw me outside, not inside the car. I don’t know.
DP: Do you want to tell me what happened when you stopped? Can you tell me what you did or—
MA: Actually I was the driver and I’m tired. I feel something bump my car. I drive away a little bit. I feel no light. I went outside to check the light. I had no lights. I need to find out what is going on. So I do the lights. I hit it. I have lights. I thought that I would make it maybe. I not know so then I’ll call my friend and see what has happened.
DP: If I understand, what you are telling me is, you say that you were very tired last night when you were driving?
MA: No. Today. I don’t know. I don’t know. If something happened I don’t know.

Sergeant Prischmann continued to question appellant for another 50 minutes. The videotape shows that appellant was very unsure as to why he was there and why Sergeant Prischmann was questioning him. The videotape also shows that because of the language barrier, appellant is difficult to understand, and doesn’t always understand what Sergeant Prisehmann is saying to him. At one point, he seems to think he is being questioned because he did not have lights: “I need to go to court because I’m suppose to go to the gas station but I cannot go because I, don’t have lights.”

After Sergeant Prisehmann asked appellant several questions about the problems appellant was experiencing with his car, he asked, “Do you recall hitting anything along the way? I think you told the officer you hit something a while before you pulled over. Do you recall hitting anything?” Appellant responded, “No. I don’t know.”

The state charged appellant with two counts of criminal vehicular homicide for causing the accident through gross negligence and leaving the scene of an accident. Before trial, appellant stipulated that he was driving the vehicle that hit Thomson. An interpreter was appointed to assist him when needed during the trial.

Appellant moved to suppress the videotaped interview, arguing that Sergeant Prisehmann obtained the statement after appellant invoked his right to counsel. The district court denied the motion because appellant “simply never paused in his attempt to explain his story to Sergeant Prisehmann, even while referring to his need for counsel,” and he did not request to terminate the interrogation until his counsel was present.

At trial, the state showed the jury the entire videotaped interview. In addition, appellant testified that he didn’t understand English very well and was confused during that interview. Appellant also testified that he was tired the night of the accident but did not recall having the accident and that it took him several days to believe that he hit Thomson. He stated that if he had known that he hit something he would have stopped.

Dustin Leingang, who was with Thomson on the night of the accident, testified that when Thomson’s car got a flat tire, they pulled to the shoulder, put the hazard lights on, and used the light of the trunk and a small flashlight to see what they were doing. Leingang testified that there was enough room between the fog line and the ditch for the car, the removed tire, and Thomson, who weighed 250 pounds and was 6 feet 3 inches tall. Leingang held the flashlight as Thomson crouched down to change the tire. Leingang testified that when the accident occurred he was spun around as if being pushed. He then saw Thomson’s body several feet in front of the car and saw a car’s taillights, but no brake lights, and heard no acceleration.

The police officers, who arrived shortly after the accident, also testified. They described the scene and debris matching appellant’s car. One of the officers also testified to finding appellant on the side of the road. He testified that appellant initially stated that he must have hit something but did not know what, and later became unclear as to what occurred.

An accident reconstructionist theorized that appellant’s car made a gradual arc until his car crossed about a foot over the fog line and hit Thomson while he was crouched down changing the tire. He also theorized that, given Thomson’s position, appellant would not have seen Thomson when he hit him, would not have seen him in the rearview mirror after the impact, and would not have been able to notice the damage to the front passenger side of his car without getting out of his car.

Thomson’s wife (Ms. Thomson) testified about her life with Thomson and read a poem Thomson had written. Over appellant’s objection, she also presented three photos to the jury — of Thomson and his father; of the Thomsons on their honeymoon; and of the Thomsons and their family on Thomsons’ wedding day, six months before the accident.

Ms. Thomson stated that, based upon the motion to sequester, she would be testifying and could not attend the entire trial. Appellant moved for a mistrial based on the state’s comments regarding Ms. Thomson’s absence from much of the trial, her reading of the poem, and her testimony regarding Thomson’s life. The district court denied the motion and gave a corrective instruction on the sequestration. Defense counsel requested that the district court submit the lesser-included offense of careless driving on the gross-negligence charge. The district court denied this motion.

During jury deliberations, the jury sent three written questions to the judge regarding the knowledge requirement of the leaving-the-scene charge. The court answered that “there’s no specific intent required.” When appellant asked about general intent, the district court responded, “I’m not going to get into that. You can argue that on appeal.” Appellant objected, stating that for someone to remain at the scene of an accident it was inherently necessary that there be an element of knowledge that there had been an accident.

The jury convicted appellant of both criminal vehicular homicide involving gross negligence and criminal vehicular homicide involving a fatality and leaving the scene of an accident. Appellant was sentenced under the first count to 48 months in prison and ordered to pay a fíne and restitution. This direct appeal followed.

ISSUES

1.Was it a violation of appellant’s state and federal constitutional rights for the district court to admit the videotaped statement appellant made to Sergeant Prischmann? Did appellant (a) invoke his right to counsel; (b) invoke his right to remain silent; or (c) make a knowing, voluntary, and intelligent waiver of his constitutional rights?

2. Was appellant denied his right to a fair trial where the state introduced “spark-of-life” evidence from the victim’s wife?

3. Did the district court err as a matter of law in its interpretation of the statute on leaving the scene of a vehicular homicide, and instructing the jury that knowledge and causation were not elements of the offense?

4. Did the district court err when it refused to instruct the jury on the lesser-included offense of careless driving?

5. Did appellant receive effective assistance of counsel at trial?

6. Did the district court err when it sentenced appellant on both counts when there was only a single victim from a single behavioral incident?

ANALYSIS

I

This court will uphold a district court’s factual findings, including whether an accused invoked his constitutional right to counsel or his right to remain silent, unless the district court’s findings are clearly erroneous. State v. Hannon, 636 N.W.2d 796, 804 (Minn.2001). “However, we make an independent determination, on the basis of the facts as found, of whether the state has shown by a fair preponderance of the evidence that the suspect’s waiver [of his constitutional rights] was knowing, intelligent, and voluntary.” Id. at 806.

Right to Counsel

Under the United States Constitution and the Minnesota Constitution, an accused must be informed of his right to counsel prior to a custodial police interrogation. Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966); State v. Munson, 594 N.W.2d 128, 138 (Minn.1999).

To ensure the sanctity of this protection, the U.S. Supreme Court has promulgated a bright-line, prophylactic rule that “an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.”

Munson, 594 N.W.2d at 138 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981)). An Edwards analysis requires that the court must first determine whether the suspect invoked his right to counsel during a custodial interrogation. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 493, 83 L.Ed.2d 488 (1984). Once it has been shown that a suspect successfully invoked his right to counsel, “courts may admit [the suspect’s] responses to further questioning only on finding that [the suspect] (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right [the suspect] invoked.” Id.; Munson, 594 N.W.2d at 139; State v. Warndahl, 436 N.W.2d 770, 775 (Minn.1989).

Invoking Right to Counsel

In applying the Edwards rule, the U.S. Supreme Court has stated that custodial interrogation must cease only if a suspect’s invocation of his right to counsel is clear and unequivocal. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). The determination of whether a suspect invoked his right to counsel is an objective inquiry. Id. at 452, 114 S.Ct. at 2352. Thus, to trigger Edwards, a suspect must articulate his desire to have counsel present in a sufficiently clear manner such that a reasonable police officer, in similar circumstances, would understand the statement to be a request for an attorney.

In Hannon, during a custodial interrogation, defendant asked, “Can I have a drink of water and then lock me up — I think we really should have an attorney.” Hannon, 636 N.W.2d at 800. The Minnesota Supreme Court found that this was sufficiently clear and that a reasonable police officer under the same circumstances would have understood the statement as a request for an attorney, and thus was unequivocal. Id. at 805. In making this determination the court considered the fact that the detective reacted to the statement by responding that if defendant wanted to talk to an attorney, the detectives would have to stop talking with him. Id. at 804.

In determining whether a defendant’s request for an attorney is clear and unequivocal, the police, and the courts, must consider a defendant’s language limitations. Although the police do not have to treat vague, equivocal, or incomprehensible responses as requests for counsel, there are no talismanic words that a defendant must utter or risk the loss of an opportunity to consult a lawyer. Here, appellant did not say, “I want to speak with a lawyer.” But it was reasonably apparent that he did not fully comprehend his right to remain silent or his right to consult with an attorney without cost to him. And throughout the relatively extensive discussion about lawyers, appellant said that he was not sure but that he needed “somebody” here, that he did not want to say anything because he was not sure, and that he thought maybe the court should appoint an attorney.

This conversation and the many references to questions about having an attorney present might be viewed differently if appellant were a person of ordinary intelligence who was fluent in English. Perhaps we would conclude that such a person had not made the requisite clear- and unequivocal request for counsel. Our reading of appellant’s responses leads us to conclude that he made a sufficient request to require the interrogation to cease.

Initiating Further Discussion

“If an accused asserts his right to counsel, interrogation must cease unless the accused initiates further communication, exchanges, or conversations with the police and validly waives his earlier request for the assistance of counsel.” Id. (emphasis added).

In State v. Risk, the police told appellant he could call his attorney at “any time.” 598 N.W.2d 642, 645 (Minn.1999). The appellant in Risk was not concerned with ending the interview, but instead with finding out if he could be released on bail that evening. Id. at 649-50. Appellant stated, “I wanna call my lawyer.” Id. at 646. The police replied, “That’s fine,” adding, “[I]f you don’t wanna talk to us, you don’t have to.” Id. Appellant then made his intentions clear, stating “I do wanna talk to you but ... I don’t wanna stay in [...] jail.” Id. The court found that this exchange demonstrated that appellant was simply talking about calling his attorney after the interview to see if he could obtain a release on bail and was not trying to stop the interrogation. Id. at 649-50.

Here, the district court admitted appellant’s statement to Sergeant Prisch-mann because it found that appellant “simply never paused in his attempt to explain his story to Sergeant Prischmann, even while referring to his need for counsel.” The videotape shows that appellant interrupted Sergeant Prischmann to state that he doesn’t know, doesn’t want to say anything, and that he was outside of the car when the police arrived. But it is important to note that this was not a case, as in Risk, where appellant made it clear that he wanted to continue talking to the police. Here, at no time did appellant say that he wanted to continue talking to Sergeant Prischmann. Instead, it was Sergeant Prischmann who initiated further questioning by asking whether appellant wanted to tell him what had happened after appellant repeatedly expressed confusion about why he was talking to the police at all. Thus, appellant did not initiate further communication with Sergeant Prischmann.

To further protect an accused’s right against compelled self-incrimination under the Minnesota Constitution,

police are.required to cease questioning an accused once he or she has made an ambiguous or equivocal statement that could reasonably be construed as an invocation of the accused’s right to counsel, except for narrow questions designed to clarify the accused true desires regarding counsel. Only if the narrow clarifying questions asked by the police confirm that the accused is not expressing a desire to deal with the police only through counsel may the police resume the custodial interrogation.

Id. at 648-49.

Sergeant Prischmann explained that he could not make appellant give a statement against himself without appellant’s permission. Appellant responded, “Well, yeah. I don’t know. I am here. My. car gone. I don’t know what happened. I stopped. Nobody stopped me. Even the officer saw me outside. Not inside the car. I don’t know.” Sergeant Prisehmann did not clarify whether this meant that appellant wanted to continue the discussion. Rather, Sergeant Prisehmann responded, “Do you want to tell me what happened when you stopped? Can you tell me what you did?” Sergeant Prischmann’s comments were not narrow clarifying questions to confirm that appellant was expressing a desire to deal with the police without counsel present, and therefore do not satisfy the “clarifying question” test.

Valid Waiver

Whether a suspect voluntarily waived his constitutional rights is determined by examining the totality of the circumstances. State v. Pilcher, 472 N.W.2d 327, 333 (Minn.1991). Despite this inquiry, the standard of review remains whether the district court’s finding is clearly erroneous. State v. Camacho, 561 N.W.2d 160, 168-69 (Minn.1997). We independently review whether the state established by a preponderance of the evidence that a defendant validly waived his or her constitutional rights. State v. Williams, 535 N.W.2d 277, 286 (Minn.1995).

Under the totality-of-the-circumstances test, the court considers factors such as age, maturity, intelligence, education, experience, ability to comprehend, familiarity with the criminal-justice system, physical and mental condition, and language barriers. Camacho, 561 N.W.2d at 168.

In State v. Marin, although the officers realized that Marin, a native of Mexico, had difficulty speaking and understanding English, they did not use a staff interpreter. 541 N.W.2d 370, 373-74 (Minn.App.1996), review denied (Minn. Mar. 27, 1996). Marin eventually waived his rights, although he stated several times that he did not understand them. Id. at 373. In Marin,

[w]hen first asked if he understood his right to remain silent, Marin responded, “A little bit.” The officer again stated, “You do have the right to remain silent,” and Marin replied, “I don’t understand you.” The other officer then told Marin that he did not have to talk to them. This time, Marin said, “Me, I want — I want to tell the truth.” He responded, “okay,” when the officer asked if he understood he could say he did not want to talk to them and then stated he understood. When further asked if he understood that everything he said could be used against him, Marin replied, “Yeah, I — everything what I told you.” One officer also informed Marin he had the right to a lawyer. Marin simply responded, “Wait, I don’t need a lawyer so I — I don’t know — .” When again asked if he understood his rights, Marin said, “No”; he did not understand if he needed a lawyer. Marin then acknowledged understanding his right to have one appointed. The next time an officer asked if he understood his rights, Marin replied, “Yeah.”
At another point, Marin stated he did not understand when an officer wanted to know [the victim’s] last name. The officer simply continued questioning Marin about the events rather than repeat his question. Marin also said he did not speak English very well. Later, one officer asked if he wore a condom during the assault. Marin replied, “No. * * * But I mean you know I work real hard to, I don’t drink, I don’t smoke, I don’t drugs.”

Id. at 372-73. Because of the language barrier, and Marin’s inability to understand the legal system, this court held that Marin did not voluntarily, knowingly, and intelligently waive his constitutional rights. Id. at 374.

Here, the videotaped interview is very similar to the interview in Marin. The videotape shows that appellant had difficulty understanding English., He says that his English is “not very good.” He repeatedly states that he does not understand. He asks .for clarification several times, and struggles with pronunciation. Here, as in Marin, appellant’s language barrier is a strong factor in favor of finding that he did not voluntarily, knowingly, and intelligently waive his constitutional rights. In addition, the record shows that appellant has no prior convictions, and he stated that he was unfamiliar with the criminal-justice system. Thus, under the totality of the circumstances, we conclude that appellant did not voluntarily, knowingly, and intelligently waive his constitutional rights.

Right to Remain Silent

When an accused suspect invokes the right to remain silent, “in any manner,” custodial interrogation must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627. The analysis pertaining to appellant’s right to remain silent is very similar to the analysis pertaining to appellant’s right to counsel. More protection is afforded the right to counsel, however, in that there is the further measure of requiring the police to ask clarifying questions regarding a suspect’s desire to proceed with or without counsel. Williams, 535 N.W.2d at 284-85.

Again, the videotape shows that appellant repeatedly stated, “I can’t say nothing” arid “I don’t want to say nothing because I’m not sure.” This is an unambiguous and unequivocal invocation of the right to remain silent.

Thus, under the totality of the circumstances, appellant did not voluntarily, knowingly, and intelligently waive his constitutional right to remain silent. The district court erred in admitting the videotape and did not show by a fair preponderance of the evidence that appellant’s waiver was intelligently, knowingly, and voluntarily waived.

In addition, we note that although appellant did not raise this issue, under Minn. Stat. § 611.32, subd. 2 (2000), law enforcement officials must provide an interpreter before interrogating or taking a statement from a person handicapped in communication. A person is “handicapped in communication” if he or she cannot understand legal proceedings because of difficulty .speaking or comprehending English. Minn.Stat. § 611.31 (2000). Clearly, this is a situation where having an interpreter would have facilitated better understanding and communication between appellant and his interviewer.

Harmless Error

Even though the district court erred in admitting the videotape, appellant’s conviction will stand if the error was harmless beyond a reasonable doubt. State v. Robinson, 427 N.W.2d 217, 224 (Minn.1988). This court conducts a harmless-error analysis by independently evaluating the evidence to determine whether the jury’s verdict would have been different if the district court had excluded the statement. Id. If the evidence is overwhelming even without the statement and the statement would not have significantly contributed to the jury’s verdict, the error was harmless. Id.

The jury’s verdict was that appellant was guilty under the following statute:

A person is guilty of criminal vehicular homicide resulting in death and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle:
(1) in a grossly negligent manner;
(7) where the driver who causes the accident leaves the scene of the accident in violation of section 169.09, subdivision 1 or'6.

MinmStat. § 609.21, subd. 1 (2000). Gross negligence in this context has been defined' “as a very high degree of negligence. Unlike recklessness ... gross negligence requires no conscious and intentional action which the actor knows, or should know, creates an unreasonable risk of harm to others. Negligence, even though extreme negligence, is all that is required”.” State v. Brehmer, 281 Minn. 156, 161, 160 N.W.2d 669, 673 (1968). See also State v. Boldra, 292 Minn. 491, 492, 195 N.W.2d 578, 579 (1972) (finding gross negligence where defendant drove through stop, sign); State v. Kremer, 262 Minn. 190, 192, 114 N.W.2d 88, 89 (1962) (“[w]hen the driver intends to proceed forward, or is negligent in any way, he can be held liable for his acts.”); State v. Pelawa, 590 N.W.2d 142, 145 (Minn.App.1999) (finding gross negligence was shown -by a “sufficient degree of inattention to the road”)” revieiu denied (Minn. Apr. 28, 1999); State v. Hegstrom, 543 N.W.2d 698, 703 (Minn.App.1996) (“[a] sufficient degree of inattention to the road could constitute a lack of ‘slight care’ that is gross negligence,”), review denied (Minn. Apr. 16,1996).

Appellant stipulated that his car was involved in the accident. He testified that he was tired the night of the accident. He testified that he does not remember hitting anything and didn’t realize that his car was damaged until he got out to check his lights.

Appellant’s own testimony, coupled with the testimony of the officers who arrived at the scene, the testimony of Lemgang, who saw- a car drive off without braking, and the testimony of the accident recon-structionist, show that appellant either fell asleep or was extremely inattentive at the wheel as to have not seen the victim’s car on the side of the road and not felt the impact of hitting a 250-pound man.

The videotaped interview with Sergeant Prischmann did not contain any additional information except to show appellant’s confusion about what had happened. Because the videotaped interview did not significantly add to the testimony at trial, any error the district court made in admitting it was harmless.

Appellant argues that the district court abused its discretion by allowing testimony from Ms. Thomson regarding Thomson and her inability to attend the entire trial because of the sequestration. Appellant argues the evidence was an improper appeal to the sympathy, passion, and prejudice of the jury and that the ■ evidence exceeded the permissible limits established by caselaw on “spark-of-life evidence.” We disagree.

In general, rulings on eviden-tiary matters are within the discretion of the district court. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). If the district court abuses its discretion, this court must determine whether, had the evidence been admitted, the jury would have reached the same verdict beyond a reasonable doubt. State v. Post, 512 N.W.2d 99, 102 (Minn.1994).

The state argues that appellant’s failure to object to Ms. Thomson’s testimony regarding Thomson and her testimony regarding sequestration precludes appeal on these issues. Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis. State v. Vick, 632 N.W.2d 676, 684-85 (Minn.2001). An appellate court may consider a waived issue, however, if there is (1) error, (2) that is plain, and (3) the error affects the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). To satisfy the third prong, a defendant bears a heavy burden of persuasion to show that “the error was prejudicial and affected the outcome of the case.” Id. at 741. In State v. Pilot, 595 N.W.2d 511, 517-18 (Minn.1999), the supreme court stated, “[T]he trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object — -and thereby present the trial court with an opportunity to avoid prejudice — should not forfeit his right to a remedy.” Id. at 518 (quoting Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996)). If these three prongs are met, the court must then decide whether it should address the issue in order to “ensure fairness and the integrity of judicial proceedings.” Griller, 583 N.W.2d. at 742. Only after all these factors are satisfied may an appellate court exercise its discretion to correct an unob-jected-to error. Id.

Here, the claimed error involves admission of Ms. Thomson’s testimony regarding her husband and her testimony regarding the sequestration. Appellant states that the “spark-of-life evidence” was excessive. Evidence concerning the life of a homicide victim is relevant and admissible to show the victim as a human being. See generally State v. Carney, 649 N.W.2d 455, 463 (Minn.2002) (holding photograph showing victim with his family photograph fell within the prosecutors latitude in showing victim and was not unduly prejudicial); State v. Buggs, 581 N.W.2d 329, 342 (Minn.1998) (holding that prosecutor’s attempt to present murder victim as a thoughtful, friendly, hard-working individual and the mother of a four-year-old child, or showing victim’s picture before and after her death did not go beyond the pale of giving the victim a “spark of life” nor was its matter-of-fact nature likely to inflame the jury’s passions); State v. Hodgson, 512 N.W.2d 95, 98 (Minn.1994) (holding that 45-second video of the victim playing basketball during the emotional testimony of victim’s mother did not have potential for creating undue prejudice and arousing emotions of jurors that outweighed the probative value of the evidence); State v. Graham, 371 N.W.2d 204, 207 (Minn.1985) (holding that even though victim’s personal life was not strictly relevant to issue of who murdered him, the prosecution had some leeway to show the victim was imbued with “spark of life” and to present the victim as a human being).

In comparing Ms. Thomson’s testimony to “spark-of-life” testimony found acceptable in other cases, we conclude that her testimony is not inappropriately emotional or inflammatory. There was no plain error here, and appellant has not met his heavy burden of persuasion to show that the error was prejudicial and affected the outcome of the case.

The same can be said for the testimony on Ms. Thomson’s inability to attend the whole trial because she was sequestered. It seems reasonable that the jury would want to know why she was not there for the duration of the trial. Even if this testimony was prejudicial, the district court gave a corrective instruction to the jury that adequately explained the sequestration process.

Appellant also argues that the three photographs Ms. Thomson presented during her testimony were inadmissible “spark-of-life” evidence. Photographs of a homicide victim that show aspects of the victim’s life are admissible, provided they are not too inflammatory or prejudicial. Carney, 649 N.W.2d at 463. The photos here were of Thomson and his father, Thomson and his wife on their honeymoon, and the Thomsons’ wedding picture. These photos are not overly prejudicial or inflammatory and fit within acceptable “spark-of-life” evidence under the caselaw. Thus, the district court did not abuse its discretion in admitting the photographs over appellant’s objection.

Ill

Appellant argues that the district court erred as a matter of law when it interpreted Minnesota’s statute on leaving the scene of a vehicular homicide as a strict liability crime and instructed the jury that knowledge and causation were not elements of the offense. We agree. Statutory construction is subject to de novo review. State v. Loge, 608 N.W.2d 152, 155 (Minn.2000). Jury instructions are reviewed under an abuse-of-discretion standard. State v. Peou, 579 N.W.2d 471, 475 (Minn.1998).

“[A] criminal state of mind, or a criminal intent, is a necessary element of any crime having its origin in common law.” In re Welfare of C.R.M., 611 N.W.2d 802, 808 (Minn.2000) (quoting State v. Orsello, 554 N.W.2d 70, 72 (Minn.1996)). If the legislature chooses not to include an intent requirement in a statutory crime originating in the common law, one is implied as a matter of law. Id. at 808; State v. Charlton, 338 N.W.2d 26, 30 (Minn.1983).

The United States Supreme Court has noted that statutes “concerning ‘public welfare’ or ‘regulatory offenses,’ which typically ‘regulate potentially harmful or injurious items,’ are not subject to a presumption requiring proof of a mens rea to establish liability.” C.R.M., 611 N.W.2d at 805. Legislative intent to impose strict criminal liability must be clear. Id.

In Staples v. U.S., the United States Supreme Court stated, the “penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea." 511 U.S. 600, 616, 114 S.Ct. 1793, 1802, 128 L.Ed.2d 608 (1994). When the punishment imposed is only a light penalty “such as fines or short jail sentences,” the Supreme Court has “construed [such] statutes to dispense with mens rea.” Id. at 616-18, 114 S.Ct. at 1802-03.

Because strict liability offenses are disfavored, an appellate court will determine that the legislature intended to create a strict-liability crime only after a careful and close examination of the statutory language. State v. Arkell, 672 N.W.2d 564, 568 (Minn.2003). The statute at issue here states:

A person is guilty of criminal vehicular homicide resulting in death and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle:
(1) in a grossly negligent manner;
(7) where the driver who causes the accident leaves the scene of the accident in violation of section 169.09, subdivision 1 or 6.

Minn.Stat. § 609.21, subd. 1. Section 169.09, subds. 1, 6, states:

Subdivision 1. Driver to stop for accident with person. The driver of any vehicle involved in an accident re-suiting in immediately demonstrable bodily injury to or death of any person shall immediately stop the vehicle at the scene of the accident, or as close to the scene as possible, but shall then return to and in every event, shall remain at, the scene of the accident until the driver has fulfilled the requirements of this chapter as to the giving of information. The stop shall be made without unnecessarily obstructing traffic.
Subd. 6. Notify police of personal injury. The driver of a vehicle involved in an accident resulting in bodily injury to or death of any person shall, after compliance with the provisions of this section, by the quickest means of communication, give notice of the accident to the local police department, if the accident occurs within a municipality, or to a state patrol officer if the accident occurs on a trunk highway, or to the office of the sheriff of the county.

Here, the district court gave the following jury instruction:

The second charge against the defendant is also a charge that is known as criminal vehicular homicide, but this comes under the law of Minnesota that provides that whoever — or if a driver of a motor vehicle who causes an accident resulting in the death of any person and does not stop and remain at the scene of the accident is guilty of a crime.
So the elements of that charge of criminal vehicular homicide are:
First, that the death of Kane Thomson occurred as a result of an accident. And that is a fact that is stipulated to or agreed upon. So that’s not in dispute.
Second, the defendant failed to stop the vehicle at the scene of the accident or as close as possible to the scene.
The third element is that the defendant’s driving caused the accident. That also is not in dispute. And a fourth element is that the defendant’s act took place on about June 16th, 2002, here in Clay County, Minnesota.

The court corrected the misstatement that appellant’s driving caused the accident and re-instructed the jury that the stipulation was that appellant’s car caused the accident.

The record shows that the jury had several questions after receiving the instructions. The first was, “Did the defendant have to be aware that something happened in order to be guilty of charge 2?” The court answered, “No” and stated, “There’s no specific intent required.” When appellant asked about general intent, the court responded, “I’m not going to get into that. You can argue that on appeal.” Appellant objected. Later the jury rephrased the question:

Does a person need to be aware that he had been in an accident to be guilty of charge No. 2. Because if a person doesn’t know, why should or would they stop right away, especially within a short [distance] of town. If you awoke and found yourself to be short on lighting and could see town under three miles away or less, wouldn’t [you go] there to check out your lighting situation under lights.

The court again responded in the negative, and appellant objected. The jury then asked a third question about the third element of charge No. 2 and whether it referred to “defendant’s manner of driving, or that he was the one operating the vehicle?” Counsel noted that the third element states, “the defendant’s driving caused the accident,” and stated as to element No. 3, “Ask yourselves the question: ‘Did the defendant cause the accident?’ ”

Because a violation of section 609.21, subd. 1(7), is a felony-level offense, the policy disfavoring strict-liability statutes is implicated. The legislature has not clearly indicated its intent to dispense with a mens rea requirement, and the district court should have implied a knowledge requirement as a matter of law. It was an abuse of discretion for the district court not to do so in instructing the jury. Thus, we vacate appellant’s conviction of criminal vehicular homicide—-leaving the scene of a vehicular homicide.

IV

Appellant argues that the district court erred in refusing to give his requested instruction on the lesser-included offense of careless driving. Jury instructions are subject to an abuse of discretion standard. Peou, 579 N.W.2d at 475. A judge’s decision not to submit a lesser-included offense to the jury is subject to an abuse of discretion standard. State v. Dukes, 544 N.W.2d 18, 20 (Minn.1996).

Appellant was charged under the following statute:

A person is guilty of criminal vehicular homicide resulting in death and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle:
(1) in a grossly negligent manner;
(7) where the driver who causes the accident leaves the scene of the accident in violation of section 169.09, subdivision 1 or 6.

Minn.Stat. § 609.21, subd. 1. The statute for careless driving states:

Any person who operates or halts any vehicle upon any street or highway carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers of the vehicle, is guilty of a misdemeanor.

MinmStat. § 169.13, subd. 2 (2002).

Our case law on lesser-included offenses mandates that the trial court instruct the jury on the requested offense if the defendant establishes three things: the lesser offense is included in the higher charge, the evidence provides a rational basis for acquitting the defendant of the offense charged, and the evidence provides a rational basis for convicting the defendant on the lesser-included offense.

Stiles v. State, 664 N.W.2d 315, 319 (Minn.2003). In Pelawa, this court found that the district court did not abuse its discretion by denying an instruction on careless driving where the victims died as a result of the accident. Pelawa, 590 N.W.2d at 148. The court stated that

there is no rational basis for a jury to have found that appellant drove in disregard of his victims’ rights or in a manner that endangered them, but did not drive in a grossly negligent manner that killed them, because the victims were not only endangered but killed by appellant’s driving.

Id.

The parties agree that careless driving is a lesser-included offense of Minn.Stat. § 609.21 subd. 1(1). Thus, the first prong is satisfied. But here, as in Pelawa, because Thomson was not just endangered but died as a result of the accident, the district court was not required to give an instruction on the lesser-included offense of careless driving. Thus, the district court did not abuse its discretion in denying appellant’s request for an instruction on careless driving.

Y

In his pro se supplemental brief, appellant argues that he received ineffective assistance of counsel. Appellant seems to argue that his representation fell below a reasonable standard because trial counsel (1) did not communicate with appellant prior to trial, (2) advised appellant to stipulate that he was the driver of the car that killed Thomson, and that the state may have struck a potential juror based on a racial issue.

The Minnesota Supreme Court' has repeatedly stated that an appeal from a judgment of conviction 'is not the most appropriate way of raising an issue concerning the effectiveness of the trial counsel’s representation because'the reviewing court does not have the benefit of all the facts concerning defense counsel’s representation. See, e.g., State v. Zernechel, 304 N.W.2d 365, 367 (Minn.1981); State v. Grover, 402 N.W.2d 163, 167 (Minn.App.1987). This issue is more effectively presented in a postconviction proceeding. See, e.g., Voorhees v. State, 627 N.W.2d 642, 649 (Minn.2001) (“a postconviction hearing is necessary only when the record is not sufficient to allow proper review of the ineffective assistance of trial counsel claim.”); State v. Wenberg, 357 N.W.2d 355, 356 (Minn.App.1984), review denied (Minn. Feb. 6,1985).

The record is insufficient to allow our proper review appellant’s ineffective assistance of counsel claim. This holding does not preclude appellant from bringing a postconviction petition raising this issue.

VI

Appellant argues that under Minn.Stat. § 609.035 (2000) the state cannot-sentence him on both counts when there was only a single victim and the conviction was the result of a single behavioral incident. Here, appellant was only sentenced under Minn.Stat. § 609.21, subd. 1(1),-for driving his vehicle in a grossly negligent manner. Nothing in the record indicates that appellant was sentenced under Minn.Stat. § 609.21, subd. 1(7). In addition, we vacate appellant’s conviction of gross negligence — leaving the scene of a vehicular homicide,' based on improper responses to the jury’s questions regarding the knowledge requirement of that offense. Thus, appellant’s claim is without merit.

DECISION

Because the district court’s error in admitting appellant’s police interrogation statements was harmless and because the court did not err in its evidentiary rulings, its refusal to instruct on a lesser-included offense, and its sentence, we affirm on those issues. But because the court erred as a matter of law by submitting as a strict liability crime the offense of leaving the scene of a vehicular homicide, we reverse the judgment of conviction as to that crime. We do not address appellant’s ineffective assistance of counsel claim.

Affirmed in part and reversed in part.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    Timothy G. BAILEY, as trustee for the next-of-kin of Virginia Bailey, Respondent, v. CITY OF ST. PAUL, et al., Appellants.
    No. A03-1277.
    Court of Appeals of Minnesota.
    May 3, 2004.

      John F. Eisberg, Daniel A. O’Fallon, Brooke B. Tassoni, Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, for respondent.
    Manuel Cervantes, Saint Paul City Attorney, Eric D. Larson, Assistant City Attorney, St. Paul, MN, for appellants,
    Brian H. Gaviglio, St. Paul, MN, for amicus curiae League of Minnesota Cities.
    Considered and decided by WILLIS, Presiding Judge; KALITOWSKI, Judge; and WRIGHT, Judge.
   OPINION

WILLIS, Judge.

The trustee for the next-of-kin of a woman who died after receiving emergency medical care from a St. Paul Department of Fire and Safety Services ambulance crew sued the city for wrongful death, claiming that the ambulance crew negligently treated the woman. The city moved for summary judgment, arguing that the acts of the ambulance crew are subject to official immunity and, therefore, the city is protected by vicarious official immunity. The district court denied the motion, holding that the ambulance crew’s acts were ministerial, rather than discretionary, and, therefore, official immunity does not apply. We reverse.

FACTS

On December 18, 2000, 73-year-old Virginia Bailey collapsed while shoveling snow outside of her St. Paul home. Her son called 911 at 4:50 p.m., and, within minutes, an ambulance unit of the St. Paul Department of Fire and Safety Services arrived and found Bailey unconscious. The ambulance crew noticed that Bailey was not breathing properly and determined that she needed to be intubated. The crew put Bailey in the ambulance and on their first attempt to intubate her they inadvertently placed the tube in Bailey’s esophagus rather than in her trachea. Observations that they made after their second attempt led them to believe that Bailey -was properly intubated, and they departed for Regions Medical Center.

En route to the hospital, Bailey’s condition worsened and she begán to show signs of the presence of subcutaneous air. The ambulance arrived at the Regions emergency room at 5:16 p.m. Attempts by the Regions emergency-room staff to resuscitate Bailey were unsuccessful, and she was pronounced dead at 5:37 p.m. The results of an autopsy suggested that Bailey had been intubated in her esophagus rather than in her trachea, causing air to accumulate in her stomach, which contributed to ■her death.

Virginia Bailey’s son, respondent Timothy Bailey, was appointed trustee for Virginia Bailey’s next-of-kin. In September 2002, he brought a wrongful-death action against the City of St. Paul and its Fire and Safety Services Department (hereafter generally referred to collectively as “the city”). The suit alleges that the ambulance crew was negligent in (1) failing to recognize an incorrect intubation; (2) failing to properly intubate Virginia Bailey; and (3) failing to provide a safe airway for Virginia Bailey. The suit also alleges that the city is vicariously liable for the ambulance .crew’s negligence.

In June 2003, the city moved for summary judgment, claiming that the ambulance crew was engaged in discretionary conduct protected by official immunity and that the city, therefore, is protected by vicarious official immunity. Respondent opposed the motion, arguing that official immunity does not apply-to the negligent administration of medical ■ care and that, because the Fire and Safety Services Department has a written protocol describing when and how an ambulance crew should intubate a patient, the conduct that respondent challenges was ministerial, rather than discretionary. The district court denied the city’s motion; concluding that the ambulance crew’s allegedly negligent acts were ministerial and that, therefore, official immunity does not .apply to the crew and vicarious official immunity is not available to the city. The city appeals.

.ISSUE

Does official immunity apply to emergency medical care provided by. govern-ment7employed ambulance crews in the course of their official duties?

ANALYSIS

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, this court must determine (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. City of Virginia v. Northland Office Props., 465 N.W.2d 424, 427 (Minn.App.1991), review denied (Minn. Apr. 18, 1991). The question of whether official immunity applies may be' appropriately resolved by summary judgment. Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn.App.1990), review denied (Minn. Feb. 28, 1990).

The-city argues that the' district court erred by determining that official immunity does not apply to the conduct of its ambulance crew in providing emergency medical care for Virginia Bailey. The city contends that official immunity applies to the conduct of all public officials who are required to exercise discretion in carrying out their official duties and that it is particularly applicable in cases where public officials are responding to emergency situations. Whether official immunity applies is a question of law reviewed de novo. Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn.1998).

A person is a public official if he or she performs governmental duties directly related to the public interest. See Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn.1977). The doctrine of official immunity protects public officials from liability for discretionary actions taken in the course of their official duties. Janklow v. Minn. Bd. of Examrs. for Nursing Home Admrs., 552 N.W.2d 711, 716 (Minn.1996). Official immunity exists “to protect public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.” S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn.App.1993) (quoting Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn.1988)) (citation omitted). Official immunity applies when the public official’s conduct involves the exercise of discretion, but it does not protect ministerial acts or malicious conduct. Kari, 582 N.W.2d at 923. A discretionary act requires the exercise of individual judgment. Id. A ministerial act is “absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Rico v. State, 472 N.W.2d 100, 107 (Minn.1991). Generally, if official immunity applies to a public official’s -conduct, then vicarious official immunity will apply to the government employer. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn.1992).

Public officials responding to emergencies often face circumstances that, by their nature, require the exercise of discretion. Accordingly, Minnesota appellate courts have held that the doctrine of official immunity applies in a variety of circumstances where official duties require public officials to respond to emergencies. See Kari, 582 N.W.2d at 924 (ambulance driver responding to report of unconscious person); Pletan, 494 N.W.2d at 41 (police officer’s decision to engage in high-speed pursuit of .criminal suspect); Elwood v. Rice County, 423 N.W.2d 671, 679 (Minn.1988) (police officers responding to report of domestic dispute); Frank’s Livestock & Poultry Farm, Inc. v. City of Wells, 431 N.W.2d 574, 578 (Minn.App.1988) (volunteer fire department responding to report of fire), review denied (Minn. Jan. 25, 1989). The city urges that the same considerations that warranted the application of the doctrine in earlier cases when public officials responded to emergency situations apply here.

Whether official immunity applies to a public official’s conduct is a two-step inquiry. Dokman v. County of Hennepin, 637 N.W.2d 286, 296 (Minn.App.2001), review denied (Minn. Feb. 28, 2002). We must first determine whether the challenged conduct was discretionary or ministerial and then must determine whether the challenged conduct, even though of the type normally subject to official immunity, was malicious or willful and therefore not subject to the protections of official immunity. Id.

At issue here is the conduct of the ambulance crew in attempting to properly intubate Virginia Bailey. The district court concluded that the conduct was ministerial because the Department of Fire and Safety Services “had a set of protocols and guidelines that dictated intubation under certain circumstances, such that there was very little discretion involved.” The city argues that the district court erred because the ambulance crew was presented with an unconscious patient for whom they had no medical information other than what they could observe.. Therefore, the city argues, the crew was not presented with definite facts requiring a specific response and instead was required to assess a situation about which they had very limited knowledge and then to constantly reassess the situation and make instantaneous decisions based on the changing information available to them.

The district courtfs determination that the ambulance crew’s conduct was not entitled to official immunity was based on its interpretation of an unpublished case' of this court, Tousignant v. St. Louis. County, No. C0-98-907 (Minn.App. Pec.8, 1998). Tousignant, in turn, relied on Terwilliger v. Hennepin County, 561 N.W.2d 909 (Minn.1997). In Terwilliger, the supreme court held that official immunity did not protect employees of a county medical facility from liability for a decision not to hospitalize a mental-heaith patient who later committed suicide. Id. at 913-14. But we conclude that the reasoning of the supreme court in Terwilliger As inapplicable here.

In determining whether official immunity applied in Terwilliger, the supreme court noted that the doctors and staff of the county medical facility were able to base their treatment decisions “not only on what they observed of [the patient], but also on the patient’s medical history and on consultations with [the patient].” Id. at 913. The supreme court contrasted that situation to the “policeman’s split-second decision whether to engage in a high-speed chase” that was presented in Fletan. Id.

In Pletan, the supreme court held that vicarious official immunity .protected a city from liability for the death of a pedestrian who was struck by a fleeing vehicle involved in a high-speed police chase. 494 N.W.2d at 41. The court reasoned that “[t]he decision to engage in a car chase and to continue the chase involves the weighing of many factors.... [TJhese questions must be resolved under emergency conditions with little time for reflection and often on the basis of incomplete and confusing information.” Id.

We conclude that the acts of the ambulance crew that treated Virginia Bailey were more analogous to the acts of the police officer in Pletan than to the conduct of the doctors and staff in Terwilliger, who were able to take the time to gather the patient’s medical information and reflect on appropriate treatment based on analysis of that information. Additionally, in Terwilliger, the patient’s life was not obviously in danger. By contrast, the ambulance crew here did not have the luxury of time. The crew’s treatment decisions had to be made immediately, based on scant information, with no time for reflection, and with the knowledge that Virginia Bailey’s life was at stake. Because the doctors and staff in Terwilliger did not face the urgency that the ambulance crew faced, we find Terwilliger inapposite.

Respondent argues that applying official immunity to emergency medical care provided by government-employed ambulance crews would be an expansion of official immunity into the area of medical diagnosis and treatment, which the supreme court rejected in Terwilliger. But we do not read Terwilliger so broadly. Under Minnesota law, every county must maintain and operate a 911 emergency-response system and the system must provide emergency medical care and ambulance services. See Minn.Stat. §§ 403.01, subd. 1, 403.03 (2002). Minnesota appellate courts have held that the offieiahimmunity doctrine applies to government-employed ambulance drivers responding to emergency situations. See Kari, 582 N.W.2d at 924. It would be incongruous, we think, to find that official immunity protects a government-employed ambulance crew while providing statutorily mandated ambulance services in responding to an emergency but no longer applies when the crew arrives at the scene and begins providing statutorily mandated emergency medical care.

In Kari, the supreme court, applying the reasoning of Pletan, held that the conduct of government-employed ambulance drivers responding to an emergency is subject to official immunity because exposing them to civil liability would “tend to exchange prudent caution for timidity,” thereby hindering the performance of an already difficult job. Kari, 582 N.W.2d at 924 (quoting Pletan, 494 N.W.2d at 41). The same reasoning applies to government-employed ambulance crews providing emergency medical care. Fear of potential civil liability arising from their actions in an emergency situation could cause crew members to hesitate in providing treatment, thereby increasing the risk to patients.

Finally, we note that the fact that a written protocol exists does not transform an otherwise discretionary act into a ministerial one. Field-level actions taken by public officials may be discretionary even when there are extensive regulations that dictate procedure. See Kelly v. City of Minneapolis, 598 N.W.2d 657, 665 (Minn.1999) (holding that, despite the fact that police conduct is governed by extensive regulations, statutes, and caselaw, officers responding to dispatch or making an arrest are engaging in discretionary conduct because they are required to make split-second decisions based on incomplete information). In treating the unconscious Virginia Bailey, the ambulance crew was not presented with “fixed and designated facts” giving rise to “absolute, certain and imperative” execution of a “specific duty.” See Rico, 472 N.W.2d at 107. The ambulance crew’s decisions regarding necessary medical care for Bailey had to be made “under emergency conditions with little time for reflection and ... on the basis of incomplete and confusing information.” See Pletan, 494 N.W.2d at 41. The ambulance crew was required to exercise professional judgment based on constantly changing information. We conclude that the ambulance crew’s conduct that is challenged here was discretionary for the purpose of applying official immunity.

Because the ambulance crew’s conduct was discretionary, they are protected by official immunity unless they acted with malice. See Kan, 582 N.W.2d at 923. Respondent does not allege that the ambulance crew acted maliciously, and nothing in the record suggests that they did. Therefore, the ambulance crew’s acts are subject to official immunity, and the city is protected by vicarious official immunity from liability in the death of Virginia Bailey.

DECISION

Because the ambulance crew’s acts are protected by official immunity, respondent’s wrongful-death claim against the city is barred by the city’s vicarious official immunity. The district court’s order denying the city’s motion for summary judgment is reversed.

Reversed.

      . 911 emergency-response services in the seven-county Twin Cities metropolitan area are coordinated by the Metropolitan 911 Board. See Minn.Stat. § 403.01, subd. 2 (2002) (providing that 911 systems may be multi-jurisdic-tional). The St. Paul Department of Fire and Safety Services provides ambulance services in association with the system developed by the Board.


author: HUDSON, Judge.

text:
    In the Matter of the WELFARE OF the CHILD OF W.L.P. and T.J.S., Parents.
    Nos. A03-1593, A03-1603.
    Court of Appeals of Minnesota.
    May 4, 2004.

      Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for respondent.
    Sherri D. Hawley, St. Paul, MN, for appellant-mother.
    Kathryn J. Cima, Minneapolis, MN, for cross-appellant-father.

      Joyce White, White Bear Lake, MN, guardian ad litem.
    Considered and decided by HUDSON, Presiding Judge; ANDERSON, Judge; and STONEBURNER, Judge.
   OPINION

HUDSON, Judge.

Appellants, W.L.P. and T.J.S., appeal from an order terminating their parental rights to M.D.D.P. The trial court found that both parties had previously had their parental rights to other children involuntarily terminated, and therefore, W.L.P. and T.J.S. are statutorily presumed to be palpably unfit to parent. Further, the trial court found that W.L.P. and T.J.S. failed to rebut the presumption of unfitness, and it is in the best interests of M.D.D.P. to terminate their parental rights. On appeal, W.L.P. argues that the trial court erred by concluding that: (1) she did not rebut the presumption of palpable unfitness; and (2) it is in the best interests of M.D.D.P. to terminate her parental rights. T.J.S. argues that Ramsey County did not previously involuntarily terminate his parental rights to another child (C.M.S.); rather he voluntarily terminated his parental rights. Accordingly, T.J.S. argues that the trial court erred in applying the statutory presumption that he is palpably unfit to parent. Because we conclude that the trial court was correct in presuming both parties palpably unfit to parent and neither party rebutted this presumption, we affirm.

FACTS

This is a consolidated appeal challenging the termination of W.L.P.’s and T.J.S.’s parental rights to their son, M.D.D.P. The termination proceedings were heard based on a petition by an Anoka County social worker. The trial court ordered the termination of W.L.P.’s and TJ.S.’s parental rights.

W.L.P. is the mother of M.D.D.P. and T.J.S. is the putative father. W.L.P. is also the biological mother of six other children: A.K.P., born October 13, 1980; J.L.P. and J.L.P., born October 21, 1985 (twins); S.L.P., born May 4, 1989; B.A.P., born January 27, 1991; and C.M.S., born June 15, 1995. Ramsey County has involuntarily terminated W.L.P.’s parental rights to each of these children. T.J.S. is the father of three children. His parental rights to C.M.S. were terminated based on his admission to a petition to terminate those rights. The trial court concluded that the termination was involuntary, but T.J.S. argues that because he admitted the petition, termination was voluntary.

On March 1, 1990, Ramsey County filed a petition to terminate W.L.P.’s parental rights to four of her children. The oldest three children were placed in Ramsey County’s custody in 1987 while W.L.P. was serving a 13-month prison sentence for selling illegal substances. The youngest child at that time, S.L.P., was adjudicated a child in need of services when she tested positive for amphetamines at birth. When W.L.P’s children were initially taken in 1987, Ramsey County developed a case plan for W.L.P. that included chemical dependency treatment. Between February 1988 and November 1989, W.L.P. participated in six chemical dependency programs: (1) she completed outpatient treatment at St. Joseph’s Hospital; (2) she attended the Genesis program from which she was discharged for failure to attend and tardiness; (3) she was re-admitted to the Genesis program and was again discharged for unexcused absences; (4) she completed outpatient treatment at St. Paul Ramsey Hospital; (5) she was re-admitted to the Genesis program for a third time and was subsequently terminated when she admitted to smoking marijuana and tested positive for cocaine; and (6) she attended a day treatment program at Ramsey County Medical Center that she did not complete. On May 21, 1990, W.L.P. failed to appear for a pretrial hearing on the termination of her parental rights. The court found her in default and terminated her parental rights to her first four children: A.K.P., J.L.P., J.L.P., and S.L.P.

On June 22, 2001, Ramsey County filed a petition to terminate W.L.P.’s parental rights to B.A.P. and C.M.S. The petition alleged that five factors supported termination: (1) substantial, continuous, or repeated failure to comply with the duties imposed by the parent-child relationship; (2) palpable unfitness to parent; (3) failure to correct the conditions leading to out-of-home placement after being given reasonable services; (4) that the children were neglected and in foster care; and (5) that it was in the best interests of the children to terminate parental rights. Additionally, the petition alleged that five factors supported termination ' of T.J.S.’s parental rights to C.M.S.: (1) palpable unfitness to parent; (2) failure to correct the conditions leading to out-of-home placement after being given reasonable services; (3) that the child was neglected and in foster care; (4) that he was not entitled to notice of an adoption having failed to register with the putative fathers’ adoption agency; and (5) that it was in the best interests of the child to terminate parental rights.

On November 13, 2001, W.L.P. failed to attend the pretrial hearing on this petition and the district court found W.L.P. in default. -Accordingly, all the allegations in the petition were deemed to be true and the court terminated W.L.P.’s parental rights to B.A.P. and C.M.S.

On December 7, 2001, T.J.S. waived his right to trial and admitted that all of the allegations contained in the petition to terminate his parental rights to C.M.S. were true. The parties - executed a settlement agreement, and the trial court stayed the termination of TJ.S.’s parental rights for 90 days on the condition that he comply with the terms of the settlement agreement. T.J.S. failed to meet the conditions of the stay and on February 19, 2002, the trial court vacated its order staying execution of the termination of parental rights and terminated T.J.S.’s parental rights to C.M.S.

Termination of Parental Rights to MJLD.P.

a. Testimony concerning W.L.P.

W.L.P. stipulated that she previously had her parental rights to six children involuntarily terminated. W.L.P. admitted that she has abused chemical substances for 30 years, that she started drinking at age 8, and that she started using metham-phetamines at age 21.

In December 2002, W.L.P. told T.J.S. that she was pregnant. T.J.S. did not register with the father’s adoption registry either prior to, or after, M.D.D.P.’s birth. T.J.S. in no other way established that he is M.D.D.P.’s biological father. On April 17, 2003, W.L.P. voluntarily admitted herself to the Chemical Dependency Unit at Unity Hospital. W.L.P. told the hospital staff that she was 37 weeks pregnant. She was tested for drugs and her positive test was inconsistent with her statements concerning when she had last used methamphetamine. On April 22, 2003, W.L.P. met with Katey Zeleny, an Anoka County social worker. W.L.P. admitted that she had used methamphetamines a total of four to five times during her pregnancy. W.L.P. had three prenatal appointments while pregnant, and at each appointment she tested positive for methamphetamines.

W.L.P. gave birth to M.D.D.P. on April 24, 2003. The county filed a petition to terminate parental rights on April 28, 2003, contending that W.L.P. and T.J.S. are palpably unfit to be a party to the parent-child relationship. M.D.D.P. was placed in foster care three days after his birth. He has remained in foster care since placement.

W.L.P. remained in the Chemical Dependency Unit at Unity Hospital for approximately 20 days after M.D.D.P.’s birth. She subsequently voluntarily entered inpatient treatment at Dellwood Recovery Center (Dellwood) in Cambridge, Minnesota. On May 11, 2003, Taylor Boaudoin, a licensed drug counselor at Dellwood, completed a substance abuse assessment for W.L.P. Boaudoin testified that his prognosis of W.L.P.’s ability to remain sober was very positive; but the trial court stated that Boaudoin’s opinion carried little or no weight with the court because his evaluation was based solely on W.L.P.’s self-reporting. In addition, Boaudoin did not contact any collateral sources including Anoka or Ramsey County. W.L.P.’s primary chemical dependency counselor at Dellwood did not testify. W.L.P. successfully completed treatment at Dellwood and her urine analyses (UA’s) at Dellwood were all negative.

On May 28, 2003, W.L.P. entered Pathways House, a transitional housing program in Rochester, Minnesota. At the time of the hearing, W.L.P. was still residing at Pathways House. On July 1, 2003, Tabitha Jeffries, a Pathways chemical dependency counselor, reported that W.L.P. was supportive, sharing, and involved during group sessions, but that she continued to be resentful/blaming, poor at maintaining goals and following house rules, was manipulative, and that she failed to meet house expectations of securing employment within two weeks of entering Pathways. W.L.P. secured employment three months after entering Pathways, one week prior to trial. W.L.P.’s UA’s while at Pathways have all been negative. W.L.P. did not ask her chemical dependency counselor at Pathways to testify.

b. Testimony concerning T.J.S.

T.J.S. has been in and out of prison much of the past six years. The trial court found that while incarcerated T.J.S. has taken advantage of many parenting classes; but T.J.S. has never taken such classes on his own volition while not in prison. Further, the trial court found that his ability to remain sober is not clear because his incarcerations have not provided him the opportunity to use drugs and alcohol.

T.J.S. contended that he voluntarily terminated his rights to C.M.S. because he admitted to the allegations in Ramsey County’s petition. The trial court concluded, however, that both W.L.P.’s and T.J.S.’s parental rights had previously been involuntarily terminated. Accordingly, the trial court concluded that both parents were statutorily presumed to be palpably unfit to parent M.D.D.P., that neither parent rebutted the presumption, and that it was in the best interests of M.D.D.P. that the court terminate their parental rights. This appeal follows.

ISSUES

I. Did the trial court err in finding that W.L.P. failed to rebut the presumption that she was palpably unfit to parent M.D.D.P.?

II. Did the trial court err in concluding that T.J.S.’s prior termination of parental rights was involuntary?

III. Did the trial court err in finding that T.J.S. failed to rebut the presumption that he was palpably unfit to parent?

ANALYSIS

I

An appellate court reviews a termination of parental rights to determine whether the trial court’s “findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.” In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001). We inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing. In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn.1996). While we defer to the trial court’s findings, we are required to exercise great caution in proceedings to terminate parental rights. In re Welfare of A.J.C., 556 N.W.2d 616, 622 (Minn.App.1996), review denied (Minn. Mar. 18, 1997). Indeed, parental rights may be terminated only for grave and weighty reasons. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn.1990).

The legislature has established nine criteria that support involuntary termination of parental rights. Minn.Stat. § 260C.301, subd. 1(b) (2002). The trial court may also voluntarily terminate parental rights if the parent provides written consent establishing good cause to terminate parental rights. Minn.Stat. § 260C.301, subd. 1(a) (2002). While a trial court may involuntarily terminate parental rights when only one criterion is proven, the primary consideration in every termination case is the child’s best interests. Minn.Stat. § 260C.301, subds. 1(b), 7 (2002).

The trial court may terminate a parent’s rights if he or she is palpably unfit to parent. Minn.Stat. § 260C.301, subd. 1(b)(4). “It is presumed that a parent is palpably unfit to be a party to the parent and child relationship .upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated.” Id. When this is established, it is the parent’s burden to prove fitness to be a parent and the absence of other reasons to terminate parental rights is not sufficient to overcome the presumption of unfitness. In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn.App.2003). Here, W.L.P. stipulated that her parental rights to six other children were involuntarily terminated. Thus, the trial court correctly presumed that she. is-palpably unfit to engage in the parent-child relationship- and it was her burden to -rebut this presumption.

W.L.P. argues that the trial court erred by concluding that she did not rebut the presumption that she is palpably unfit to parent. She .argues that she rebutted the presumption because she attended chemical dependency. treatment after M.D.D.P.’s birth, had no positive UA’s, took advantage of every opportunity to visit her child, displayed no concerning behaviors during the supervised visits, started taking medication for her bipolar disorder, obtained a parenting assessment and took parenting classes, and got a job— all without the assistance of Anoka County Social Services.

The trial court acknowledged that W.L.P. has made some positive steps. The trial court -concluded, however,, that based on her repeated inability to stay sober, even after completing multiple treatment programs, her failure to call the chemical dependency counselors who were most familiar with her current treatment and prognosis for continued sobriety, and her slow progress in treatment, W.L.P. did not rebut the presumption that she is unfit to parent M.D.D.P. We agree.

W.L.P. makes much of the fact that the county failed to offer her either voluntary or court-ordered services to assist with reunification. But in cases where the court has previously terminated an individual’s parental rights, reasonable efforts for rehabilitation and reunification are not required. Minn.Stat. § 260.012(a)(1)(h) (2002). This court explained in In re D.L.R.D., 656 N.W.2d at 251, that:

[w]hen the presumption of unfitness applies, a parent must affirmatively and actively demonstrate her or his ability to successfully parent a child. We recognize this is a particularly onerous task when, because of the prior termination of parental rights, the statute has relieved the county of the obligation to develop a case plan and make reasonable efforts to reunite the parent and child. To shoulder this burden, the parent, with the assistance of counsel, is inevitably required to marshal any available community resources to develop a plan and accomplish results that demonstrate the parent’s fitness.

Here, to rebut the presumption of unfitness, W.L.P. offered her own testimony, the testimony of a counselor who completed an evaluation based solely on W.L.P.’s self-reporting, her ability to attend all of the hearings, and her ability to stay drug free for a three-month period while living in a structured environment.

Clearly W.L.P. has made progress. But based on the evidence in the record, and in particular the fact that W.L.P. has a 30-year history of substance abuse, up to and including using methamphetamine while pregnant with M.D.D.P., the record supports the trial court’s finding that the evidence W.L.P. produced at the hearing is insufficient to rebut the presumption of unfitness.

The record shows that at the termination hearing, W.L.P. declined to call the chemical dependency counselors who could most accurately testify about her ability to remain sober and her progress in treatment. Further, while W.L.P. has remained sober and secured employment, she has done so while residing in the controlled environment of the halfway house. Significantly, the record shows that in the past, W.L.P. has successfully completed treatment programs and then relapsed after leaving the program. Finally, after meeting with W.L.P., the guardian ad li-tem testified that, given W.L.P.’s 30-year chemical dependency history, she would want W.L.P. to demonstrate two years of sobriety before she would recommend returning M.D.D.P. to W.L.P. Based on this record, we conclude that the trial court’s finding that W.L.P. failed to rebut the presumption of unfitness was not clearly erroneous.

W.L.P. also argues that the trial court should have continued the case for three months to provide W.L.P. the opportunity to demonstrate that she could maintain her sobriety without the safeguards of the halfway house. But because the record supports the conclusion that it could be years before W.L.P. has stability in her life, we conclude that the trial court did not err by refusing to continue the proceedings; especially since trial counsel did not seek a continuance at the time. In addition, the record supports the trial court’s finding that locating a permanent home for M.D.D.P. is of primary importance and in the best interests of M.D.D.P.

Because the trial court addressed the proper statutory criteria, and the evidence in the record supports the trial court’s determination that W.L.P. did not rebut the presumption of unfitness, we conclude that the trial court did not abuse its discretion by terminating W.L.P.’s parental rights to M.D.D.P.

W.L.P. also contends that the trial court did not thoroughly consider whether it is in M.D.D.P.’s best interests to be parented by W.L.P. “In analyzing the best interests of the child, the court must balance three factors: (1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any competing interest of the child.” In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn.App.1992).

Although the trial court did not go into great detail, it concluded that M.D.D.P.’s immediate need for permanency as well as stable, nurturing, drug-free caretakers outweighs any competing interests. The trial court’s conclusion was, again, based on W.L.P.’s 30-year history of substance abuse and the opinion of the guardian ad litem who testified that, given W.L.P.’s prenatal drug use and chemical dependency/relapse history, W.L.P. should have at least two years of demonstrated sobriety before any consideration of returning M.D.D.P. to her. On this record, the trial court did not abuse its discretion in holding that it was in M.D.D.P.’s best interests to terminate W.L.P.’s parental rights.'

II

For his part, T.J.S. argues that the trial court erred by concluding that his parental rights to C.M.S. were involuntarily terminated, and therefore the trial court also erred in subjecting him to the statutory presumption that he is palpably unfit to parent. In addition, T.J.S. argues that because he is statutorily presumed unfit to parent, he was denied his due process rights to have the issue of his fitness to parent fully litigated. We find no merit in either argument.

On June 22, 2001, Ramsey County filed a petition to terminate T.J.S.’s parental rights to C.M.S. The petition alleged that five factors supported termination of T.J.S.’s parental rights: (1) palpable unfitness to parent; (2) failure to correct the conditions leading to out-of-home placement after being given reasonable services; (3) that the child was neglected and in foster care; (4) that he was not entitled to notice of an adoption having failed to register with the putative fathers’ adoption agency; and (5) that it was in the best interests of the child to terminate parental rights. On December 7, 2001, T.J.S. waived his right to trial and admitted that all of the allegations contained in the petition to terminate his parental rights to C.M.S. were true. The parties executed a settlement agreement, and the trial court stayed the termination of T.J.S.’s parental rights for 90 days on the condition that he comply with the terms of the settlement agreement. T.J.S. failed to meet the conditions of the stay and on February 19, 2002, the trial court vacated its order staying execution of the termination of parental rights and terminated T.J.S.’s parental rights to C.M.S.

T.J.S. contends that his admission to the allegations in the petition converted the involuntary termination into a voluntary termination. The trial court concluded that the termination was involuntary, and therefore it could presume that T.J.S. was palpably unfit to parent. We agree.

Parental rights may be terminated voluntarily or involuntarily. Minn.Stat. § 260C.301, subd. 1. Voluntary terminations are governed by Minn.Stat. § 260C.301, subd. 1(a), which provides that parental rights of a parent to a child may be terminated “with the written consent of á parent who for good cause desires to terminate parental rights.” Involuntary terminations are governed by subdivision 1(b) of the same statute, which provides for termination of parental rights upon a court finding that one of nine enumerated parenting deficiencies exists.

The caselaw makes it clear that circumstances that justify involuntary-termination do not necessarily justify voluntary termination. See In re Welfare of J.D.N., 504 N.W.2d 54, 56 (Minn.App.1993). Thus, because in many cases the involuntary petition -will not establish good cause for a voluntary termination, we cannot apply a blanket rule that an admission to an involuntary termination petition converts the petition into a voluntary termination. “Good cause” under the voluntary termination statute “exists under a variety of circumstances.” In re Welfare of D.D.G., 558 N.W.2d 481, 485-86 (Minn.1997); see In re Welfare of K.T., 327 N.W.2d 13, 17-19 (Minn.1982) (upholding the trial court’s finding of good cause when a one-year-old child had resided in a foster home since birth; the parent had not visited the child; and the parent did not believe she was able to take care of a second child); In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn.1978) (concluding that good cause existed when the mother determined that it was in the best interests of her child to have two adoptive parents). Cf. In re Welfare of Alle, 304 Minn. 254, 257-58, 230 N.W.2d 574, 576-77 (1975) (holding that good cause did not exist when the parent’s sole motivation appeared to be avoiding the financial burden of supporting his adoptive children). It was therefore necessary for T.J.S. to take some affirmative steps to voluntarily terminate his parental rights under Minn. Stat. § 260C.301, subd. 1(a).

Here, we note first that the prior petition was instituted by Ramsey County, not T.J.S. Furthermore, the petition alleged five of the grounds for involuntary termination listed in subdivision 1(b). Most significantly, as respondent notes, there are at least two procedures parents can utilize to convert an involuntary termination petition into a voluntary one. Parents can: (1) file a new petition supported by a factual basis articulating good cause and cite to Minn.Stat. § 260C.301, subd. 1(a), as the statutory authority for the petition; or (2) formally amend the original petition to cite to Minn.Stat. § 260C..301, subd. 1(a), as the statutory basis for the petition. Appellant did not avail himself of either procedure or take any other affirmative steps to indicate that he was voluntarily terminating his rights to C.M.S.

Indeed, all of appellant’s actions at the time of the hearing are consistent with the proceeding being one to involuntarily terminate his parental rights. For example, after admitting to the allegations in the petition for involuntary termination of his parental rights, and stipulating to a settlement agreement with the county, the trial court stayed the termination of T.J.S.’s parental rights for 90 days to give T.J.S. an opportunity to retain his parental rights, negating his contention that he was relinquishing these rights for good cause. When he failed to meet the conditions of the stay, he neither attended the court hearing to explain the circumstances around his failure to satisfy the conditions, nor did he provide a written relinquishment of his rights for good cause. Therefore, the court proceeded under the involuntary termination petition and adjudicated him unfit. On this record, we conclude that T.J.S.’s admission to the allegations in the petition did not convert the county’s termination petition to a voluntary termination. Accordingly, the trial court did not err by presuming T.J.S. palpably unfit to parent M.D.D.P.

Further, we conclude that TJ.S.’s related due-process argument lacks merit. T.J.S. was afforded numerous hearings throughout the proceedings terminating his rights to C.M.S. and the current proceedings to terminate his rights to M.D.D.P. He received two hearings in the proceedings terminating his parental rights to C.M.S. At the first hearing he admitted to the allegations in the petition, and at the second he defaulted. T.J.S. also received an evidentiary hearing in the present termination proceedings where he was afforded the opportunity to rebut the presumption of unfitness. To that end, witnesses were called whom he had the opportunity to cross-examine and he had the opportunity to testify himself. Moreover, this court has found that the presumption of unfitness is constitutional if an individual is afforded the right to a full hearing. In re Welfare of P.T., 657 N.W.2d 577, 587-88 (Minn.App.2003), review denied (Minn. Apr. 15, 2003). T.J.S. was afforded due process.

Ill

T.J.S. argues that, in any event, he rebutted the presumption that he was palpably unfit to parent. We disagree.

To support his contention that he is fit to parent, T.J.S. testified about the certificates of life-skills and parenting classes that he received while recently incarcerated. But the trial court noted that if T.J.S. did not attend these programs he would have faced an increase in his prison sentence. T.J.S. did not present any evidence that he would have independently chosen to attend such programs or that completing these classes have improved his ability to parent.

The court found that since 1997, T.J.S. has spent a combined total of one year outside of prison. T.J.S. has a history of drug use, and, while as of the date of trial, T.J.S. had remained sober since July 15, 2001, the trial court found he had likely abstained from drug use because he was incarcerated. T.J.S. provided no evidence of stable employment and provided no information regarding his work history from 1986 though 1993. From 1993 through the present, while not in prison, T.J.S. worked sporadically at his brother’s auto body shop. Further, at trial T.J.S. had no permanent plans for where he would live or work once released from prison.

Moreover, when T.J.S. found out that W.L.P. was pregnant with M.D.D.P. he made no efforts to establish his parental rights or assist W.L.P. Further, T.J.S. has two other children from a previous marriage; but T.J.S. testified that he has not seen these children since 1998, and he has failed to provide child support for these children even though there is a court order requiring him to do so.

We conclude T.J.S. has not presented sufficient evidence to rebut the presumption that he is palpably unfit to parent, and that the trial court did not err in finding that it was in the best interests of M.D.D.P. to terminate T.J.S.’s parental rights. Because we conclude that the trial court properly presumed that T.J.S. is palpably unfit to parent, and T.J.S. did not rebut this presumption, we do not reach whether the trial court erred in finding T.J.S. unfit under Minn.Stat. § 260C.301, subd. 1(b)(2), (7).

DECISION

We affirm the trial court’s determination that W.L.P. failed to rebut the presumption that she is palpably unfit to parent. Further, we affirm the trial court’s conclusion that T.J.S.’s admission to the allegations in the county’s petition to terminate his parental rights to C.M.S. did not convert the involuntary termination into a voluntary termination. Finally, we affirm the trial court’s determination that T.J.S. did not rebut the presumption that he is palpably unfit to parent.

Affirmed.

      . The December 7, 2001, settlement agreement is apparently not in the record, although it is referenced in the March 11, 2002, order terminating T.J.S.’s parental rights to C.M.S.

      . T.J.S. also alleges that the trial court did not make the particularized findings required by the involuntary termination statute. Although we need not address this issue at all because T.J.S. is raising it for the first time on appeal, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988), we note that the March 11, 2002, order terminating T.J.S.'s parental rights to C.M.S. (which was issued after T.J.S. failed to satisfy the terms of the settlement agreement and the stay was vacated), incorporated by reference the findings of fact in the original December 7, 2001, order terminating his rights to C.M.S.