author: WRIGHT, Judge. LANSING, Judge

text:
    In the Matter of the CHILD OF Michael SIMON, Parent.
    No. CX-02-2024.
    Court of Appeals of Minnesota.
    June 3, 2003.

      Leonardo Castro, Fourth District Public Defender, David P. Murrin, Assistant Public Defender, Minneapolis, for appellant.
    Amy J. Klobuchar, Hennepin County Attorney, Julie K. Harris, Assistant County Attorney, Minneapolis, for respondent Hennepin County Department of Children, Family and Adult Services.
    Jonathan G. Steinberg, Minneapolis, for respondent Guardian ad Litem.
    Considered and decided by LANSING, Presiding Judge, PETERSON, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

On appeal from an order terminating his parental rights, appellant Michael Simon argues that the district court abused its discretion by (a) admitting letters from his child’s therapist under the business-records exception to the hearsay rule and (b) terminating his parental rights because of his imprisonment. We affirm.

FACTS

In 1997, Michael Simon was adjudicated the father of T.H., born on May 31, 1994. Simon was incarcerated for approximately four years for second-degree burglary beginning in May 1998.

In November 2000, respondent Henne-pin County Department of Children, Family and Adult Services (the county) filed a petition in district court, alleging that T.H. was a child in need of protective services. T.H. was subsequently placed in a nonrela-tive foster home, and in January 2001 adjudicated a child in need of protection and services. In April 2001, the county filed a petition to terminate the parental rights of T.H.’s parents. T.H.’s mother voluntarily consented to termination of her parental rights and consented to T.H.’s adoption by her foster parents in December 2001. The district court stayed its order on this matter for 90 days pending the determination of Simon’s parental rights. The district court later terminated the parental rights of T.H.’s mother but determined that the consent to adopt T.H. was not valid unless Simon’s rights also were terminated.

Following Simon’s release from prison in March 2002, he met with Cliff Robinson, a Hennepin County child-protection social worker, to develop a case plan and set up supervised visits with T.H. Simon understood the requirements of the case plan, which included completion of a psychological evaluation to determine the appropriate services he needed to facilitate his reunification with T.H. The case plan also required Simon to (1) undergo a parenting assessment after his supervised visits with T.H., (2) obtain safe, adequate housing, and (3) participate in parenting-education classes pending the results of the psychological evaluation.

Simon missed his appointment for the psychological evaluation and did not reschedule it. Despite Robinson’s efforts to contact Simon by telephone and certified letter, Simon did not complete the evaluation. Simon also did not complete any of the other requirements of the case plan. Simon re-offended in April 2002 and was sentenced to serve five years in prison.

As the social worker assigned to T.H.’s case, Robinson was required to monitor Simon’s progress, make referrals, and provide resources as necessary. Robinson was also required to assess T.H.’s well-being. To do so, Robinson maintained ongoing contact with T.H.’s foster family and her therapist, Dr. Julia Davis.

In an April 13, 2002, letter, Davis offered her opinion as to whether the county’s suspension of T.H.’s visits with Simon was in T.H.’s best interests. The letter summarized Davis’s observations of T.H. during individual-play therapy sessions and a supervised visit with Simon. Davis reported that T.H. was “doing well until notification of her father’s reappearance and wish to visit with her.” Upon learning of her father’s pending visits, T.H. developed symptoms of anxiety. After two supervised visits with Simon, T.H. told Davis that she no longer wished to see him. Based on her observations of T.H. and her knowledge of Simon’s failure to attend his psychological evaluation and parenting assessment, Davis supported the county’s decision to suspend T.H.’s visits with Simon “until [Simon] has complied with his case plan and demonstrated a willingness and ability to provide a secure and stable presence in his daughter’s life.”

At the county’s request, Davis wrote another letter dated August 8, 2002, “to update the district court” on her work with T.H., T.H.’s progress in therapy, and Davis’s recommendations as to T.H.’s best interests for placement and contact with her biological parents. Davis’s letter provides:

I understand that the Court hearing will decide on permanency issues for [T.H.]. As I have recommended before, I believe that her best interests will be served by her continuation in her current foster home, as there is a good chance for placement there. * * * I also understand that [Simon] re-offended and has been returned to prison, and that his rights are considered for termination at this time. In view of [T.H.’s] extreme anxiety in her most recent contacts with her father, her lack of strong attachment to him, and his continued difficulty in maintaining a healthy lifestyle, I strongly recommend no further contact between [T.H.] and her father at this time.

The hearing on the petition to terminate Simon’s parental rights was held on August 13, 2002. Simon, Robinson, and the guardian ad litem, Lyndsey Davis, testified. In his testimony, Simon admitted that he did not undergo the psychological evaluation and parenting assessment and explained that he failed to do so because he was depressed after T.H. rejected him during a supervised visit. Simon did not dispute that he failed to comply with the other requirements of the case plan.

During Robinson’s testimony, the county offered Davis’s April 13 and August 8 letters into evidence under Minn. R. Evid. 803(6), the business-records exception to the hearsay rule. Simon objected, arguing that the letters were not admissible under the business-records exception and, therefore, were inadmissible hearsay. The district court overruled the objection and admitted the letters under the business-records exception. Robinson testified that, in his opinion, termination of Simon’s parental rights was in T.H.’s best interests. Robinson’s opinion as to T.H.’s best interests was based on his 35 years of experience as a social worker, the knowledge he gained during the two years he was assigned to this case, the eight months he had known Simon, Davis’s recommendations, and the ability and willingness of T.H.’s foster parents to adopt T.H.

In its September 12, 2002, order, the district court terminated Simon’s parental rights after determining that it is in the best interests of T.H. to do so. In terminating Simon’s parental rights to T.H., the district court relied on three statutory criteria, finding that (1) Simon failed to comply with the duties and responsibilities of the parent-child relationship, Minn.Stat. § 260C.301, subd. 1(b)(2) (2002); (2) Simon failed to correct the conditions that led to the out-of-home placement, Minn.Stat. § 260C.301, subd. 1(b)(5); and (3) T.H. is neglected and in foster care, Minn.Stat. § 260C.301, subd. 1(b)(8).

Simon moved for a new trial, alleging that the district court abused its discretion in admitting Davis’s letters and other exhibits over Simon’s hearsay objections. The district court denied the motion. This appeal followed.

ISSUES

1. Did the district court properly admit letters from T.H.’s therapist under the business-records exception to the hearsay rule?

2. Did the district court err in terminating Simon’s parental rights while he was incarcerated?

ANALYSIS

I.

Simon first argues that the district court abused its discretion by admitting Davis’s letters under the business-records exception to the hearsay rule. Absent an erroneous interpretation of the law, whether to admit or exclude evidence is a question within the district court’s broad discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). A new trial will be granted because of an improper evidentiary ruling only if the complaining party demonstrates prejudicial error. Id. at 46.

Although generally inadmissible, hearsay statements may be admissible under one of several exceptions to the general rule, including the business-records exception. Minn. R. Evid. 802 (general rule); Minn. R. Evid. 803(6) (business-records exception to hearsay rule). Business records are presumed to be reliable because (1) the regularity of the records produces habits of precision in the record keeper, (2) the records are regularly checked, (3) employees are motivated to make accurate records because the businesses that employ them function in reliance on these records, and (4) employees are required to be accurate and risk embarrassment or dismissal if they fail. In re the Welfare of L.Z., 396 N.W.2d 214, 220 (Minn.1986).

Business records are admissible under the business-records exception if the custodian or another qualified witness can testify that the records were (1) made by a person with personal knowledge of the matters recorded and a business duty to report accurately or from information transmitted by a person with such knowledge, (2) made at or near the time of the recorded event, (3) kept in the course of a regularly conducted business activity, and (4) made as part of the regular practice of that business activity. Minn. R. Evid. 803(6). Even regularly prepared business records are inadmissible, however, when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Id.

Although Rule 803(6) does not require the custodian of the records to testify, it requires the person attempting to lay foundation to be familiar with how the business in question compiles its documents. Nat’l Tea Co., Inc. v. Tyler Refrigeration Co. Inc., 339 N.W.2d 59, 61 (Minn. 1983) (stating that “[t]he testimony of the custodian or other qualified witness who can explain the recordkeeping of his organization is ordinarily essential” (emphasis added) (citation omitted)). In Murray v. Antell, 361 N.W.2d 466 (Minn.App.1985), for example, we concluded that reports of abuse prepared by staff members of a mental health center were admissible under the business-records exception, even though the staff members did not testify, where the center’s psychologist, who had examined the children reporting the abuse, was qualified to testify that the reports were prepared by qualified personnel conducting a team evaluation. Id. at 469. The Murray court emphasized that “[i]t is acceptable medical practice to use a team approach for psychological evaluations.” Id.

Here, the record contains no evidence that Robinson was familiar with how Davis compiled her records or that he participated with Davis in an evaluation of T.H. Robinson, therefore, was not qualified to establish the four foundational requirements of Rule 803(6) for either the April 13 letter or the August 8 letter. See United States v. Patrick, 959 F.2d 991, 1001 (D.C.Cir.1992) (holding that sales receipt inadmissible under business-records exception partly because government did not call store employee who could testify that it was store’s regular practice to make receipt); cf. Nat’l Tea, 339 N.W.2d at 60-62 (concluding that engineer familiar with underwriter’s operations and procedures was qualified to lay foundation for admission of underwriter’s report). Even if Robinson were qualified to authenticate the letters, his testimony fell far short of what is required to lay the foundational requirements of Rule 803(6). Robinson testified only that he had regular contact with Davis and that she sent him reports about T.H. upon request. He did not provide, and could not have provided, testimony as to three of four foundational elements — that Davis (1) wrote the letters in the regular course of her profession, (2) kept them as part of the routine practice of her work, and (3) prepared them at or near the time of the events.

Moreover, even if Robinson had laid the foundation required for admission of the August 8 letter under the business-records exception, it is nevertheless inadmissible because it was prepared in anticipation of litigation. Minn. R. Evid. 803(6) (stating that “[a] memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.”); see also Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 481, 87 L.Ed. 645 (1943) (concluding that report containing train engineer’s account of accident was inadmissible because primary utility of report was in litigating, not in railroading); Brown v. St. Paul Ry. Co., 241 Minn. 15, 36, 62 N.W.2d 688, 701-02 (1954) (concluding that report prepared pursuant to an established business routine was admissible under business-records exception where report had many uses besides litigation). In determining whether a document was prepared for litigation, a district court must consider when and by whom the report was made and the purpose of the report. Nat’l Tea, 339 N.W.2d at 62.

Davis wrote the August 8 letter expressly to update the court on T.H.’s progress in therapy and to offer her recommendation for T.H.’s placement. Davis noted her understanding that the district court would be making a decision on permanency issues. Thus, she clearly prepared the second letter in anticipation of litigation, and the district court abused its discretion in admitting the letter.

Finally, Davis’s August 8 letter was inadmissible because it contained her opinion on an ultimate issue, namely, whether further contact between Simon and T.H. was in T.H.’s best interests. Business records qualify for admission under the business-records exception even if they include opinions or diagnoses. Minn. R. Evid. 803(6); see Brown, 241 Minn, at 26, 62 N.W.2d at 696 (concluding that properly identified hospital records admissible to prove matters related to patient’s hospitalization and treatment but hearsay and self-serving statements contained in records not admissible to prove how injury occurred); see also Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 232-33, 214 N.W.2d 672, 678-79 (1974) (concluding that hospital records admissible). But a business record containing an opinion on an ultimate issue is admissible only if the witness offering the opinion is available to permit the fact-finder to test the weight and credibility of the opinion through cross-examination. See Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 433, 47 N.W.2d 180, 193 (1951) (concluding that report of plane-crash investigation containing expression of opinion inadmissible under public-records exception to hearsay rule “not on the ground that it was not properly certified or exemplified, but upon the more serious ground that * * * [defendant had no opportunity to cross-examine with reference to the report nor anyone making it”); see also Skogen v. Dow Chem. Co., 375 F.2d 692, 704-05 (8th Cir. 1967) (concluding that opinion contained in hospital record inadmissible under business-records exception because, among other things, admission would deny defendant opportunity to cross-examine).

Although the district court abused its discretion in admitting Davis’s letters under the business-records exception, we conclude that the error was harmless because the record contains evidence, other than the observations and opinion of Davis, that is independently sufficient to support the district court’s decision to terminate Simon’s parental rights. In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn.App. 1995) (concluding that admission of evidence in termination-of-parental-rights proceeding was harmless error), review denied (Minn. Mar. 29, 1995).

II.

Simon next argues that the district court committed reversible error when it terminated his parental rights while he was incarcerated. The district court may terminate parental rights if clear and convincing evidence establishes that at least one statutory basis for termination exists and termination is in the best interests of the child. Minn.Stat. § 260C.317, subd. 1 (2002); In re Welfare of L.A.F., 554 N.W.2d 393, 396-97 (Minn. 1996); see also Minn.Stat. § 260C.310, subd. 1(b) (2002) (providing statutory grounds for termination). We review a termination of parental rights to determine “whether the district 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) (citation omitted). We examine the record “to determine whether the evidence is clear and convincing.” Id. (citing In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn.1980)). 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). In a termination-of-parental-rights proceeding, the best interests of the child are paramount. Minn.Stat. § 260C.301, subd. 7 (2002).

Although a parent’s incarceration alone is not enough to warrant termination of parental rights, the district court may consider the fact of incarceration in conjunction with other evidence supporting the petition for termination. See In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (Minn.App.1997) (concluding that no error committed in considering father’s incarceration, limited contact with son, and failure to cooperate with social workers), review denied (Minn. Apr. 15, 1997); see also In re Welfare of Stoat, 287 Minn. 501, 506-07, 178 N.W.2d 709, 713 (1970) (considering relationship prior to father’s incarceration and father’s desire and ability to continue relationship); In re Welfare of Udstuen, 349 N.W.2d 300, 304 (Minn.App.1984) (considering child’s special needs, foster mother’s ability to care for child, and father’s indifference). Contrary to Simon’s argument, there is no prohibition against terminating parental rights while the parent is in prison.

In terminating Simon’s parental rights to T.H., the district court relied on three statutory criteria, finding that (1) Simon has failed to comply with the duties and responsibilities of the parent-child relationship, Minn.Stat. § 260C.301, subd. 1(b)(2) (2002); (2) Simon has failed to correct the conditions that led to T.H.’s out-of-home placement, Minn.Stat. § 260C.301, subd. 1(b)(5); and (3) T.H. is neglected and in foster care, Minn.Stat. § 260C.301, subd. 1(b)(8). Substantial evidence in the record supports these findings.

The district court may terminate parental rights if it finds

that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties, imposed upon that parent by the parent and child relationship.

Minn.Stat. § 260C.301, subd. 1(b)(2). Simon’s failure to satisfy key elements of the court-ordered case plan provides ample evidence of his lack of compliance with the duties and responsibilities of the parent-child relationship. Evidence that Simon never underwent a psychological evaluation or parenting assessment is uncontro-verted. Even after his incarceration, Simon could have completed the psychological evaluation. But he failed to do so. Likewise, the district court correctly concluded that Simon has “failed to provide any meaningful parenting to T.H.” and has “offered no evidence that he possesses] the skills and knowledge” to parent T.H. effectively. The district court’s finding that Simon has neglected his parenting duties and responsibilities is supported by substantial evidence and, therefore, is not clearly erroneous.

The record also establishes that, notwithstanding the county’s reasonable efforts to help Simon correct the conditions leading to T.H.’s out-of-home placement, Simon has failed to do so. As to this statutory criterion, Minn.Stat. § 260C.301, subd. 1(b)(5), the uncontested evidence establishes that, when he was not incarcerated, Simon failed to provide a stable home for T.H. and, within two months of his release from prison, he engaged in criminal activity that will preclude him from doing so for five additional years. That Simon re-offended only two months after his release from prison shows that he did not correct the conditions leading to T.H.’s placement out of the home. Rather, the conditions remained virtually unchanged. Thus, the district court’s findings under this statutory criterion are supported by substantial evidence and are not clearly erroneous.

Parental rights may be terminated if the district court finds “that the child is neglected and in foster care.” Minn. Stat. § 260C.301, subd. 1(b)(8).

“Neglected and in foster care” means a child
(a) [w]ho has been placed in foster care by court order; and
(b) [w]hose parents’ circumstances, condition, or conduct are such that the child cannot be returned to them; and
(c) [w]hose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child.

MinmStat. § 260C.007, subd. 24 (2002). From our review of the record, it is clear that each element of this statutory criterion is met. Likewise, the record establishes that T.H. has been in a “stable and secure” foster home for the past 17 months, and T.H. cannot live with Simon for the next several years. Substantial evidence supports the district court’s finding that T.H. is neglected and in foster care.

Finally, in reviewing the district court’s conclusion that termination of Simon’s parental rights is in the best interests of T.H., we consider (1) the child’s interests in maintaining the parent-child relationship, (2) the parent’s interests in maintaining the parent-child relationship, and (3) any competing interests of the child. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn.App.1992).

The district court reasoned that termination of Simon’s parental rights is in T.H.’s best interests, because (1) Simon has never demonstrated that he is capable of parenting his daughter, (2) T.H. has been in an out-of-home placement for approximately two years, and (3) Simon has continued his criminal behavior and has been unable to maintain himself in the community. In addition, the district court found, based on the testimony of the guardian ad litem, that T.H. “has no meaningful relationship with her father, * * ⅞ and does not desire to have contact or reside with her father.”

Contrary to Simon’s claims, the district court considered other probative factors in addition to Simon’s incarceration during most of his daughter’s life. The district court made detailed and thorough findings regarding Simon’s conduct and T.H.’s needs, which are supported by substantial evidence. Accordingly, we conclude that the district court did not err in finding termination of Simon’s parental rights to be in the best interests of T.H.

DECISION

The district court abused its discretion in admitting two letters from T.H.’s therapist into evidence under the business-records exception to the hearsay rule, Minn. R. Evid. 803(6), without the proper foundation to establish their trustworthiness. The August 8, 2002, letter was inadmissible for two additional reasons. First, the letter was written in anticipation of litigation. Second, it contained an opinion on the ultimate issue rendered by a witness who was not available for cross-examination. But the error was harmless because, even without consideration of the letters, the district court’s findings are supported by substantial evidence, and the record establishes that termination of Simon’s parental rights is in T.H.’s best interests.

Affirmed.

LANSING, Judge

(concurring).

The evidence clearly and convincingly establishes three statutory reasons for termination: (1) failure to comply with the duties and responsibilities of the parent-child relationship, (2) failure to correct conditions that led to the child’s out-of-home placement, and (3) neglect and continued placement in foster care. To prove that termination was in the child’s best interests, the state presented testimony from a child-protection social worker and the guardian ad litem.

In the course of the social worker’s testimony the state introduced nine exhibits, two of which were letters from the child’s therapist. According to the trial transcript, the purpose of those letters was to show that the therapist was recommending continued therapy for the child. Appellant objected on hearsay grounds, and the county contended that the letters were admissible under the business-records exception to the hearsay rule. The court permitted the county to establish foundation through the social worker’s testimony that it was a business record of the county. No one suggested that the preparation of the letters was untrustworthy. In fact, the appellant has not challenged the foundation.

I agree with the majority’s conclusion that the letters were not prejudicial to the court’s decision to terminate parental rights. The letters were not referred to in closing argument except in a general reference to the nine exhibits, and the letters did not form a basis for any of the court’s findings of fact or conclusions of law. But I do not agree that the letters are inadmissible because they lack proper foundation, were prepared in anticipation of litigation, or address the ultimate issue. For the limited purpose for which the letters were admitted their admission was not an abuse of discretion.

I concur in the majority’s determination that the record establishes clear and convincing evidence for termination of parental rights on three separate statutory grounds.


source: Caselaw Access Project

author: HARTEN, Judge. MINGE, Judge

license: Public Domain

text:
    John K. GARDE, Respondent, v. ONE 1992 FORD EXPLORER XLT MOTOR VEHICLE, VIN No. 1FMDU34X3NUC11624, Minnesota License No. FHW 406, Defendant, City of Richfield, Appellant.
    No. C5-02-2142.
    Court of Appeals of Minnesota.
    June 3, 2003.
    Martin J. Costello, Russell J. Platzek, Hughes & Costello, 1230 Landmark Towers, St. Paul, MN, for appellant.
    Silas L. Danielson, Christopher M. Roe, Blethen, Gage & Krause, P.L.L.P., Manka-to, MN, for respondent.
    Considered and decided by HARTEN, Presiding Judge, MINGE, Judge, and HUDSON, Judge.
   OPINION

HARTEN, Judge.

Appellant city challenges the district court’s order granting summary judgment to respondent in a judicial forfeiture proceeding. Because we conclude that the district court lacked jurisdiction, we reverse and remand for dismissal.

FACTS

On 20 March 2002, respondent John Garde was arrested and charged with first-degree driving while impaired (DWI). That same day, the state seized respondent’s vehicle, a 1992 Ford Explorer, and served respondent with a notice of seizure and intent to forfeit vehicle. On 18 April 2002, respondent filed a demand for judicial determination of forfeiture in the district court. It is undisputed that he never served the demand for judicial review on appellant City of Richfield, the prosecuting authority with jurisdiction over the forfeiture. Respondent later pleaded guilty to second-degree DWI.

Appellant moved for summary judgment, arguing that the district court lacked jurisdiction over the matter because respondent failed to satisfy the requirements of Minn.Stat. § 169A.68, subd. 8(d) (2000), when demanding judicial review. The district court denied appellant’s motion and sua sponte entered judgment for respondent, concluding that respondent was not convicted of a designated offense under the vehicle forfeiture statute. This appeal follows.

ISSUE

Did respondent’s failure to comply strictly with Minn.Stat. § 169A.68, subd. 8(d) (2000), deprive the district court of jurisdiction?

ANALYSIS

Appellant argues that the district court lacked jurisdiction because respondent failed to serve his demand for judicial determination of forfeiture as required by Minn.Stat. § 169A.63, subd. 8(d) (2000). Whether a district court has jurisdiction is a question of law subject to de novo review. Strange v. 1997 Jeep Cherokee, 597 N.W.2d 355, 357 (Minn.App.1999).

Minn.Stat. § 169A.63, subd. 8, provides:

(d) Within 30 days following service of a notice of seizure and forfeiture under this subdivision, a claimant may file a demand for judicial determination of the forfeiture. The demand must be in the form of a civil complaint and must be filed with the court administrator in the county in which the seizure occurred, together with proof of service of a copy of the complaint on the prosecuting authority having jurisdiction over the forfeiture * * *.
(e) * * * [A]n action for the return of a vehicle seized under this section may not be maintained by * * * any person who has been served with a notice of seizure and forfeiture unless the person has complied with this subdivision.

When the language of a statute is plain and unambiguous, we must apply its plain language. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999).

The plain language of the statute provides that a claimant “may not” maintain an action for judicial determination of forfeiture without complying with the statutory requirements. Minn.Stat. § 169A.63, subd. 8(e). One requirement is that a claimant’s demand for judicial review be filed with proof of service on the prosecuting authority. Id., subd. 8(d). Respondent does not dispute the district court’s finding that he never served his demand on appellant. Therefore, he could not have filed proof of service when he filed his demand with the district court. Because respondent failed to comply with the statute, he may not maintain his action for judicial determination of forfeiture. Id., subd. 8(e). Accordingly, the district court did not have jurisdiction over the forfeiture proceeding and should have dismissed the action. We reverse and remand to the district with instructions to dismiss this judicial forfeiture action.

DECISION

Because respondent did not comply strictly with the service requirements of Minn.Stat. § 169A.63, subd. 8 (2000), when he failed to file service of process with his demand for judicial determination of forfeiture, the district court did not have jurisdiction over the forfeiture proceeding.

Reversed and remanded.

MINGE, Judge

(concurring specially).

This case involves forfeiture of a motor vehicle. Forfeiture is a harsh penalty when it involves property such as a motor vehicle that has significant value and may be an economic necessity.

There are two issues on appeal I wish to address. The first is jurisdiction. I respectfully disagree with the majority on its disposition of the issue. I would not construe the statute to foreclose judicial review in the circumstances of this case. Respondent requested review within the 30 days required by law. Appellant (city attorney) had actual knowledge of the appeal. And most importantly, although the statute does require service on the city attorney, the statute does not state that the judicial system is without jurisdiction to review the forfeiture unless the service on the city attorney is within the 30-day filing deadline.

I note that the time period for the owner to challenge the forfeiture of his property is relatively short, 30 days. In some circumstances, an abbreviated forfeiture process without judicial review will raise due process concerns. We should construe laws to minimize constitutional problems.

The second issue is whether appellant was convicted of a designated offense under the forfeiture statute, Minn.Stat. § 169A.63 (2000). Because of its ruling on the first issue the majority does not reach this second issue. However, because of my contrary conclusion, I do reach the second issue.

The district court construed the phrase “designated offense” to require conviction of first-degree driving while impaired. The statute only requires a conviction of simple driving while impaired (Minn.Stat. § 169A.20 (2000)) “under the circumstances described in ” the first-degree driving while impaired statute. Minn. Stat. § 169A.63, subd. 1(d)(1) (emphasis added). The record demonstrates that respondent actually had previous driving offenses which constituted the circumstances of first-degree driving while impaired. I would reverse the district court’s determination that appellant was not convicted of a designated offense.

Based on my conclusion as to this second issue, I concur with the majority’s reversal of the district court’s determination in this matter.

      . Because we conclude that the district court lacked subject-matter jurisdiction, we do not address the other issue pertaining to the "designated offense” under the forfeiture statute.

      . Although Minn.Stat. § 169A.63, subd. 1(d)(1) (2000), was amended to its current version in 2001, it still includes the phrase "under the circumstances described in.”


author: G. BARRY ANDERSON, Judge.

text:
    ROBERT W. CARLSTROM COMPANY, INC., Respondent, v. GERMAN EVANGELICAL LUTHERAN ST. PAUL’S CONGREGATION OF THE UNALTERED AUGSBURG CONFESSION AT JORDAN, Scott County, Minnesota, Appellant.
    No. C3-02-1328.
    Court of Appeals of Minnesota.
    June 3, 2003.

      Larry D. Martin, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, for appellant.
    Kenneth R. White, Law Office of Kenneth R. White and John W. Riedy, Masch-ka, Riedy & Ries, Mankato, MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and WILLIS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Both parties to this contractual dispute allege the district court decision following a bench trial was in error. Appellant contends that the district court erred in finding that the contract did not require respondent to provide written notice of a concealed or unknown condition. Both parties contest the district court’s damage award. Appellant also argues the district court abused its discretion by not awarding attorney fees. We affirm.

FACTS

In 1997, appellant German Evangelical Lutheran St. Paul’s Congregation of the Unaltered Augsburg Confession at Jordan began exploring a roof-reconstruction project. Prior to bidding, interested contractors were allowed to inspect portions of the roof. But appellant, fearing that the cost to replace the roof might be more than it could afford, and in an effort to minimize the damage to the attic area if the project did not proceed, refused to remove attic insulation, thus denying access to a substantial portion of the roof. In fact, appellant refused to allow its own architect access to the entire roof while he was preparing the plans for the project. Following a competitive bidding process, respondent Robert W. Carlstrom Company, Inc. was awarded the contract, valued at $213,900.

Respondent’s crew began removing the old roof on May 6,1998, and was surprised by the poor condition of the roof. Although respondent expected to find bird-mouth cuts in the framing, the unusual depth of the cuts was not expected. At first respondent believed that the cuts were merely inconvenient, but as the project progressed, respondent determined that the depth of these cuts seriously threatened the structural integrity of the roof. Respondent quickly concluded, because of the depth of the bird-mouth cuts and the roofs bizarre blocking and framing, that additional work, material, and labor would be required.

Respondent contacted the architect and verbally reported the unusual condition of the roof. On May 22, 1998, after determining it would need to do additional work respondent immediately verbally notified appellant of the problem. Respondent again verbally reported the condition of the roof, this time on May 27, to appellant’s building committee and also outlined the expected delays and additional costs necessary to correct the conditions. At a building committee meeting in July, appellant requested that respondent submit one request for additional funds, as opposed to several incremental requests. Work continued on the roof from May until project completion in August.

In August, respondent submitted a “change order request” seeking an additional $51,680.94. This detailed break down of the additional costs was the first time respondent had submitted any kind of written documentation about the unknown condition of the roof. Appellant’s architect concluded that the condition of the roof constituted a concealed or unknown condition and recommended that appellant pay the additional funds. Appellant refused to make the additional payment, claiming that respondent was required under the contract to submit written notice of the concealed or unknown conditions.

Respondent and appellant both allege breach of contract. Appellant alleged that respondent faded to complete all the work it was obligated to perform, and respondent contended that it was not paid the money it was owed for the extra work it performed. Appellant also alleged violation of Minnesota’s consumer-protection statute and sought reimbursement for project-completion costs. Appellant asserted also that respondent should have known about or discovered the unusual conditions prior to beginning work on the project.

During the three-day court trial, respondent sought to amend its complaint to conform to the evidence that the additional work, caused by the unknown conditions, actually totaled $55,055.17.

The parties stipulated to a $4,000 settlement of appellant’s counterclaim. The district court dismissed appellant’s consumer-fraud claim with prejudice. Critically, the district court found that respondent encountered unknown conditions materially different from conditions commonly found in similar buildings. The district court concluded that the contract did not require a written notice of these unknown conditions and held that respondent’s verbal report satisfied the obligation to report these conditions within 21 days after discovery. Respondent’s motion to amend the complaint was denied, and the district court ordered appellant to pay respondent $51,680.94 for the extra work done.

ISSUES

I. Did the district court err by concluding that the contract did not require written notice of the discovery of a concealed or unknown condition?
II. Was it an abuse of the district court’s discretion to award respondent $51,680.94 in damages?
III. Did the district court’s decision not to award appellant attorney fees represent an abuse of discretion?

ANALYSIS

I

Appellant raises many different theories of error including the claim that respondent did not give adequate notice of the concealed or unexpected conditions, and therefore appellant was not required to pay for the additional work caused by the concealed and unknown condition. Appellant also argues respondent should have known or discovered the unusual conditions prior to construction, and respondent did not provide acceptable documentation to make a claim for concealed and unknown conditions. But the foundation of the district court’s ruling was its conclusion that the contract did not require respondent to notify appellant in writing of the discovery of an unknown or unusual condition.

Contract interpretation is subject to de novo review by this court. Stiglich Constr., Inc., v. Larson, 621 N.W.2d 801, 802 (Minn.App.2001), review denied (Minn. Mar. 27, 2001). Courts are to give the contractual language its plain and ordinary meaning. Brookfield Trade Ctr. Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn.1998). This court must read contract terms in the context of the entire document. Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App.2002).

At the heart of this dispute are two clauses in the “claims and disputes” sub-paragraphs of the standardized American Institute of Architects (AIA) construction contract: 201A, which was used by the parties. Subparagraph 4.3.1 of the contract defines a claim as:

[A] demand or assertion by one of the parties, seeking as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the Contract. The term “Claim” also in-eludes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be made by written notice.

The AIA standard-form contract, in sub-paragraph 4.3.6, lays out the procedure to be followed if concealed or unknown conditions are discovered.

If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before the conditions are disturbed and in no event no later that 21 days after first observance of the conditions. The architect will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in Contractor’s cost of, or time required for, performance of any part of the work[.] * ⅜ * If the owner and the Contractor cannot agree on an adjustment in the Contract Sum * * ⅜ the adjustment shall be referred to the Architect for initial determination, subject to further proceedings pursuant to Paragraph 4.4.

Paragraph 4.4 requires the architect to review the claim and to attempt to foster agreement between the parties as to the additional costs required. If the parties cannot reach agreement, the contract empowers the architect to resolve the matter and issue a final written decision.

Although no reasons were given, the district court held that the contract did not require respondent to notify appellant in writing of any unusual conditions. The court found that respondent’s crew discovered the conditions on May 22, 1998, and gave verbal notice that day to the architect, thereby fulfilling respondent’s obligations under the contract.

The record supports respondent’s claim that it encountered concealed or unknown conditions and that these conditions substantially altered the time needed and costs necessary to complete the project. Respondent’s witnesses testified that the condition of the roof was significantly different from what would be expected in a typical building of similar age. The architect hired by appellant stated that appellant’s unwillingness to allow inspection of the entire roof before the project began led to the misconception about the roof and therefore the true condition of the roof was unknown.

Having concluded that the district court properly determined that respondent encountered unknown or concealed conditions, we must next determine whether the contract required written notice of such conditions. It is the cardinal rule of contract interpretation to give effect to the intentions of the parties as expressed in the whole of the document. Employers Mut Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998). Phrases found in the contract should not be interpreted out of context, but rather given meaning in accordance with the obvious purpose of the contract as a whole. Beehner v. Cragun Corp., 636 N.W.2d 821, 827 (Minn.App.2001).

Review of this matter is made difficult because there are few reported decisions addressing the requirements of subpara-graph 4.3.6 directly. Nevertheless, we agree with the district court’s interpretation of the contract and conclude that written notice of an unusual condition is not required.

The contract specifically distinguishes claims for unknown conditions from other claims that must be in writing. For example, subparagraphs 4.3.7 and 4.3.8 explicitly require a contractor who needs more time or funds to complete a project to make such a request in writing. This is in sharp contrast to subparagraph 4.3.6, which does not require written notice until after the architect has inspected the construction site and determined that concealed or unknown conditions exist.

At least one commentator has characterized subparagraph 4.3.6 of the standard AIA contract as more of an investigation tool rather than a claims provision. Justin Sweet, Sweet on Contracts 398 (1997). Although the reasoning underlying the paragraph’s unique requirements is not clear, its emphasis on quick investigation suggests this paragraph is meant to address possible design changes and false claims. Id.

The most recent incarnation of the AIA’s standardized construction contract, completed in 1987, reflects a significant amplification of the notice requirement. Justin Sweet et al., Sweet On Construction Industry Contracts: Major AIA Documents, 414 (4th ed.1999). But the 1987 revision dropped any requirement that the notice be in writing. Id. The AIA’s commentary suggests that some may wish to modify the contract to require written notice of a concealed or unknown condition. Id.

We conclude the contract here does not require written notice of a concealed or unknown condition. Paragraph 4.3.6 only requires notice be given within 21 days of discovery, and, unlike other subparagraphs in this contract, 4.3.6 does not require written notice. 4.3.6 shifts the written-notice requirement to the architect after an investigation is completed. Perhaps it would have been better had the parties amended the contract to include such a requirement, but those are not the facts before us. Accordingly, we affirm the district court’s ruling.

II

Next, both parties argue that the district court incorrectly awarded respondent $51,680.94 in damages. We apply an abuse-of-discretion standard of review when analyzing a district court’s award of damages. Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995).

Appellant contends that respondent did not provide the documentation required by the contract to make a claim for damages. But the paragraph appellant relies on pertains only to changes requested by the owner. This litigation arose from appellant’s own refusal to pay respondent for extra work done in addressing the concealed condition of the roof that appellant claims was not authorized by the terms of the contract. Thus, appellant cannot argue that the extra work was done at its request.

Moreover, the record provides ample evidence to support the district court’s damage award. Respondent’s “change order request” sought an additional $51,680.94 for the extra time, labor, and material required to deal with the concealed conditions. In its request for more funds, respondent broke down in considerable detail the money spent in material and labor dealing with the concealed condition. It appears the district court adopted with little comment the damages sought by respondent. But based on this record, we cannot conclude the district court abused its discretion when awarding damages.

Conversely, respondent argues that the award of damages is too low. Respondent contends the evidence produced at trial showed that it spent $55,000 in dealing with the concealed conditions and the district court abused its discretion in refusing to allow it to amend its complaint to conform with this evidence.

The district court has broad discretion to grant or deny a motion to amend pleadings and will not be reversed absent a clear abuse of discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Motions to amend are to liberally granted if both parties agree to litigate the new claims. Harry N. Ray v. First Natn’l. Bank of Pine City, 410 N.W.2d 850, 854-55 (Minn.App.1987). But the record does not indicate that appellant ever consented to litigate the $55,000 amount. In fact, the record suggests just the opposite; appellant objected to evidence suggesting that respondent was entitled to an additional $4,000. We affirm the district court’s award of $51,680.94 in damages.

Ill

Finally, appellant argues that the district court erred by denying its request for attorney fees. Appellant contends the terms of the contract require respondent to indemnify appellant for all attorney fees generated from all claims arising out of the negligence of respondent or its employees. Appellant ignores the fact that its claims are not based on negligence theories but are instead contractual in nature. The contract indemnification clause makes no mention of claims based on contractual disputes. Thus, we conclude the district court did not abuse its discretion in refusing to award attorney fees in this manner. See Gully v. Gully, 599 N.W.2d 814, 825 (Minn.1999) (appellate courts apply an abuse-of-discretion standard to the issue of attorney fees).

DECISION

Because the construction contract provided for a specific process to be employed in the event of discovery of a concealed or unknown condition, the district court did not err in finding the contract did not require respondent to provide written notice within 21 days of discovery of structural defects. Moreover, the district court did not abuse its discretion in awarding damages or in refusing to award attorney fees.

Affirmed.

      . Bird-mouth cuts refer to triangular notched cuts on the slats that help connect the roof to the building frame. The depth of these cuts is significant because it affects the structural stability of the roof.

      . Respondent claims that appellant did not raise the notice issue in its post-trial motion. Although appellant's memorandum in support of its motion for a new trial or JNOV does not give an extensive treatment of the notice issue, the issue was raised and is properly before this court.

      . Appellant raises several arguments challenging the district court’s findings that respondent encountered concealed or unknown conditions soon after it began work on the roof. Appellant claims that the roof was constructed much like other roofs of its genre and that the bird-mouth cuts should have been expected. Appellant also claims that even if the roof was in an unusual condition, respondent had ample opportunity to discover these unusual conditions during the pre-bid inspection and the pre-construction inspection that respondent was contractually obligated to perform. But the district court made factual findings on these issues and those findings are not to be disturbed unless clearly erroneous and unsupported by reasonable evidence. Minn. R. Civ. P. 52.01, Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). Here, the record indicates that appellant’s roof was not in the condition expected in a building of its genre. In fact, appellant's own architect felt that the depth of the cuts represented a concealed or unknown condition. Further, the record contains evidence that appellant’s unwillingness to remove insulation prevented a proper inspection of the building. We cannot conclude that the district court's findings concerning the condition of the roof were clearly erroneous.


text:
    In the Matter of the WELFARE OF T.J.C., Child.
    No. C3-02-1622.
    Court of Appeals of Minnesota.
    June 3, 2003.

      John Stuart, Public Defender, Lawrence Hammerling, Deputy State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, St. Paul; and Janice S. Kolb, Mille Lacs County Attorney, Wade Anthony Kish, Assistant Mille Lacs County Attorney, Milaca, for respondent.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, SCHUMACHER, Judge, and WILLIS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Following a bench trial, appellant was adjudicated delinquent for commission of criminal sexual conduct in the second degree. Appellant challenges his adjudication, claiming that his statement, taken while he was in custody, was erroneously admitted at trial, and there was insufficient evidence to support his adjudication. Although we conclude that appellant was in custody and should have been informed of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we conclude that even without appellant’s statement, sufficient evidence was admitted to sustain the adjudication.

FACTS

On August 21, 2000, appellant T.J.C., then fifteen years of age, was playing with M.J., then four years of age, on a trampoline beside M.J.’s house, while M.J.’s mother watched. At some point mother went into the house. While mother was inside, the telephone rang and she answered it, but watched appellant and M.J. through the window. While mother talked on the telephone, she observed appellant lay down on the trampoline with M.J. beside him. Although initially she “couldn’t really see what [M.J. and appellant] were doing,” mother testified that she saw M.J. “reach over and grab [appellant’s] penis.” At first mother thought this was an accident but she testified that after the initial touching, appellant “grabbed [appellant’s] crotch and moved it around, and then I saw [appellant] look at [M.J.], say something to her, and then [M.J.] went and grabbed him again.” At this point mother ran out of the house and told appellant to leave. Mother then called her husband and the police.

Roughly an hour after the incident on the trampoline, mother and father spoke with M.J. and M.J.’s sister, A.J. Mother testified that during this conversation M.J. stated that appellant had asked her to touch his penis.

On August 25, 2000, M.J. was interviewed by Mille Lacs County Sheriffs investigator, Alan Marxhausen. At this interview, M.J. did not specifically mention the “trampoline incident,” but stated that appellant “wants me to touch his penis. That’s all he does. * * * He let me touch his penis. That’s all he done [sic].” M.J. also mentioned an incident that occurred upstairs, when appellant came into her house “butt naked” and had her touch his penis. M.J stated that appellant then touched M.J.’s “potty” and that this happened “a lot.” M.J. answered “yeah” when asked if appellant “put his fingers in [M.J.’s] potty.” M.J. did not have a medical examination.

On October 18, 2002, appellant was pulled from his special education class and escorted by his teacher to the school’s principal’s office. In the office the school’s liaison police officer, Shelly Milton, and Milaca Police Chief Michael Mott, were waiting. Mott, Milton, and appellant went into an office adjoining the principal’s office and the door was closed behind them. Mott made no attempt to contact appellant’s parents prior to interviewing appellant.

Mott had an unrecorded conversation with appellant, lasting roughly two to three minutes. In the taped and transcribed portion of appellant’s statement, Mott told appellant that he was not under arrest, and that “when we [are] completed [appellant] would be able to get up and walk out of here and go home on the school bus[.]” Mott later reiterated that appellant would be free to go, and that he could get up and leave any time. During the recorded portion of the interview, appellant admitted that while babysitting M.J. and A.J., they were playing a game during which he “decided to take off [his] my pants.” Appellant stated that M. J. and A.J. attempted to pull his underwear off but were unable to, and it was during the struggle to get his underwear off that M. J. touched his penis. There was no mention of the incident on the trampoline during this interview. Appellant was not, at any time prior to or during the interview, informed of his Miranda rights. At trial, appellant testified that he was “terrified” while being questioned by Mott.

Following trial, appellant was adjudicated delinquent for commission of criminal sexual conduct in the second degree. This appeal followed.

ISSUES

I. Was appellant in custody for Miranda purposes when questioned by law-enforcement?

II. Was there sufficient evidence to support appellant’s adjudication as delinquent?

ANALYSIS

I

Appellant contends that when he was questioned in a closed room in the presence of two police officers, without a parent present, he was in custody and should have been informed of his constitutional rights under Miranda v. Arizona, 884 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because he was not so informed, appellant argues that his statement to Mott should have been suppressed and his adjudication reversed.

When reviewing pretrial orders related to suppressing evidence, this court reviews the record independently to determine whether the district court erred as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). If the district court erred, appellant is entitled to a new trial unless the error was harmless beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). In determining if an error was harmless beyond a reasonable doubt, an appellate court must look at the effect of the error, ie., whether or not the error had an impact on the verdict. Id. A very important factor in determining if an error was harmless beyond a reasonable doubt is whether in the absence of the evidence erroneously admitted, the remaining evidence was so overwhelming as to compel a reasonable fact-finder to convict. Id.

Under the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article 1, Section 7 of the Minnesota Constitution, no defendant in a criminal case can be compelled by the state to be a witness against himself. U.S. Const. amends. V, XIV; Minn. Const. art. I, § 7. To safeguard this constitutional right, an uncounseled individual, subject to custodial interrogation, must be informed of his rights under Miranda. In re G.S.P., 610 N.W.2d 651, 656 (Minn.App. 2000). Interrogation is custodial if the person has been placed under arrest or had his freedom of movement restrained to a “degree associated with a formal arrest.” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995) (citation omitted).

When determining whether Miranda warnings are required, this court must first determine if the subject of the questioning was in “custody.” State v. Edrozo, 578 N.W.2d 719, 724 (Minn.1998). Although there is no “bright-line rule” to apply in making this determination, “whether a person is in custody for Miranda purposes is a mixed question of law and fact.” G.S.P., 610 N.W.2d at 657. The ultimate issue is whether a reasonable person, given the circumstances surrounding the interrogation, would have felt free to terminate the interrogation and leave. Id. Once it has been determined that an individual was in custody, the nature of the questioning must be analyzed to determine if the individual was subject to “custodial interrogation.” Id. at 656, 657.

This court reviews the district court’s factual determinations of the circumstances surrounding the interview under the clearly erroneous standard, but independently reviews the district court’s determination of custody. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998). Because the underlying facts of this case are not in dispute on appeal, this court’s review is de novo. State v. Miller, 573 N.W.2d 661, 670 (Minn.1998).

Circumstances to consider in determining whether a juvenile is in custody include: the age and intelligence and education of the child, the child’s prior experience with law-enforcement, the surroundings during questioning, the presence of one or more uniformed officers, whether the child was given the option of having a parent or an attorney present, and whether the interview was tape-recorded. In re D.B.X., 638 N.W.2d 449, 453, 456 (Minn. App.2002) (courts consider child’s age, intelligence, education, inexperience with the law, inadequacy of the warning, and absence of parents); In re R.J.E., 630 N.W.2d 457, 459, 461 (Minn.App.2001) (court considered that the child was not informed that he could have a parent or attorney present during questioning, the only door to the room in which child was questioned was closed, the presence of uniformed police officers, and that the interrogation was recorded), rev’d on other grounds, 642 N.W.2d 708 (Minn.2002).

Here, the fifteen-year-old juvenile had no prior experience with law enforcement. The interview was conducted by two officers, at least one uniformed, in a small, closed room. Appellant was not informed that he could have a parent or attorney present and no attempt was made to contact appellant’s parents. Although a portion of the interview occurred off-tape, much of the questioning was tape-recorded. Appellant was told, however, on a couple of occasions that he was free to leave, and that he was not under arrest.

Though these circumstances might not amount to custodial interrogation if the subject were an adult, in the case of a juvenile, we conclude that this interview was not devoid of psychological intimidation and was strongly suggestive of the coercive influence associated with formal arrest. See G.S.P., 610 N.W.2d at 658. When a uniformed officer summons a child from the classroom and actively participates in questioning him, the circumstances strongly suggest the presence of coercive influence associated with formal arrest. State v. Tibiatowski, 590 N.W.2d 305, 310 (Minn.1999); G.S.P., 610 N.W.2d at 658. Mott knew that appellant was the target of a criminal sexual conduct investigation, and that was his reason for summoning appellant to the principal’s office. Mott asked appellant questions designed to elicit responses concerning such conduct. Additionally, a tape-recorded interview is strongly suggestive of custodial interrogation. Id. at 658. We conclude that appellant was in custody and was subject to custodial interrogation and should have been informed of his constitutional rights.

In addition, we find it significant that no attempt was made to contact appellant’s parents to inform them that their child was going to be questioned by law enforcement. Although the voluntariness of appellant’s statement is not directly at issue, whether a parent is present during questioning is a factor to be considered when determining whether a child’s statement to police is voluntary. State v. Ouk, 516 N.W.2d 180, 185 (Minn.1994). Given the facts of this case, appellant’s parents should have been notified prior to questioning and should have been allowed the opportunity to be present during the interview.

Juveniles and adults are entitled to be informed of their constitutional rights. State v. Loyd, 297 Minn. 442, 445, 212 N.W.2d 671, 674 (1973). The fact that a juvenile is told he is free to leave and need not answer questions is one factor in determining whether custodial interrogation has occurred, but it is only one factor and is not determinative.

Having concluded that the statement should have been suppressed, we must now consider the effect of the erroneous admission of the statement. Juarez, 572 N.W.2d at 291. Appellant is entitled to a new trial unless the admission of his statement was harmless beyond a reasonable doubt. Id. If the weight of the evidence properly admitted justifies the verdict, appellant’s adjudication will be upheld. Id.

As the trial court noted, this case is unlike most criminal-sexual-conduct cases because there was a witness to the abuse. Here, mother witnessed the act for which appellant was charged and convicted. Mother saw M.J. touch appellant’s genital area twice and when asked why M.J. did so, M.J. replied, “[b]ecause he told me to.” The district court also noted the prominent role of M.J. in this trial, finding M.J. credible and stating that M.J. had probably said more in this case than any child victim the district court had previously seen. The district court specifically noted that M.J. testified of her own volition and clearly stated that she had touched appellant’s penis and that he had told her to do so.

Additionally, although the district court noted appellant’s statement was “important,” the district court also noted that appellant’s statement did not appear to relate to the incident on the trampoline for which he was ultimately adjudicated delinquent. While it is unclear what weight the district court attributed to appellant’s statement, the district court had other evidence, overwhelming in character, on which to rely in adjudicating appellant delinquent. Therefore the admission of appellant’s statement was harmless beyond a reasonable doubt.

II

Appellant argues that the evidence at trial was not sufficient to support the district court’s decision to adjudicate him delinquent for commission of criminal sexual conduct in the second degree in violation of Minn.Stat. § 609.343, subd. 1(a)(2000).

When considering a claim of insufficient evidence, this court painstakingly analyzes the trial record to determine if the evidence, viewed in the light most favorable to the fact-finder’s decision, is sufficient to allow the finder of fact to reach the conclusion it did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). Evidence is sufficient to support adjudication if, given the facts in the record and legitimate inferences drawn from those facts, the fact-finder could reasonably conclude that the accused committed the crime. State v. Wilson, 535 N.W.2d 597, 605 (Minn.1995). This court assumes the fact-finder believed that evidence in favor of the outcome, and disbelieved that to the contrary. State v. James, 638 N.W.2d 205, 212 (Minn.App.2002), review denied (Minn. Mar. 27, 2002). These standards apply in cases tried to a jury or, as here, the court. State v. Ibarra, 355 N.W.2d 125, 130 (Minn.1984).

The elements that must be established to adjudicate appellant delinquent in this case are that (1) M.J. was under 13 years of age, (2) appellant was more than 36 months older than M.J., (3) M.J. was induced to touch appellant’s intimate parts, and (4) appellant had sexually aggressive intent in so inducing M.J. Minn.Stat. §§ 609.341, subd. 11(a)(ii), 609.343, subd. 1(a)(2000).

It is not disputed that, at the time of the alleged incident, M.J. was four-years-old and appellant was fifteen-years-old. Therefore, elements one and two were satisfied beyond a reasonable doubt. To establish element three, the state properly offered the following evidence: (1) testimony of mother that she saw M.J. grab appellant’s penis, through his clothes, and, after appellant said something to M.J., she did so again, and that when mother questioned M.J. about this, M.J. said that appellant told her to do it; (2) testimony of Investigator Alan Marxhausen that M.J. told him, during an investigative interview, that appellant “wants me (M.J.) to touch his penis;” (3) testimony of A.J. that when she asked M.J. if appellant asked her to touch his penis, M.J. said “yes;” (4) M.J. testified that while appellant was lying on the trampoline, he asked her to touch him and she did so “[b]ecause he told [her] to;” (5) a video and transcription of Marxhau-sen’s interview of M.J. wherein she states that she touched appellant’s penis at his request. The district court specifically noted that it found mother’s testimony and A.J.’s corroboration of M.J.’s allegation credible. The court also found M.J.’s in-court testimony to be credible, and to have been made of her own volition.

Even without the admission of appellant’s statement, the district court could reasonably conclude beyond a reasonable doubt that appellant induced M.J. to touch his penis on the trampoline. Indeed, M.J.’s testimony alone could have supported the court’s decision. See Minn. Stat. § 609.347, subd. 1 (2002) (in prosecution for violation of Minn.Stat. § 609.343, testimony of victim need not be corroborated). The state presented sufficient evidence to establish the third element of the charge.

The final element that must be established — that appellant acted with sexually aggressive intent — can be demonstrated through repeated attempts to accomplish sexual contact. See In re C.S.K. 438 N.W.2d 375, 377 (Minn.App.1988) (stating that repeated attempts to touch complainant’s intimate parts evidenced sexually-aggressive intent). Mother testified that, on a prior occasion, she found appellant, fully clothed, with A.J. and M.J. in various stages of undress. M.J., in her interview with Marxhausen, mentioned a number of incidents where appellant had touched her, or she had touched him. Assuming the district court believed this evidence, these prior incidents demonstrate that the event for which appellant was charged was accomplished with sexually-aggressive intent. See id. (“[I]t is difficult to believe appellant’s repeated attempts to touch complainant’s intimate parts could be anything but sexually or aggressively motivated.”). Therefore, on this record, we conclude that all elements necessary to sustain adjudication have been sufficiently established.

DECISION

Appellant’s statement was obtained in violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and was erroneously admitted at trial. But because there existed overwhelming evidence apart from appellant’s statement to support the district court’s adjudication of appellant as delinquent, the erroneous admission of the statement was harmless beyond a reasonable doubt. Because sufficient evidence supports the district court’s adjudication, we affirm.

Affirmed.

      . The state also offered testimony of Mott and a transcript of appellant’s interview with Mott. Because we conclude that this evidence was not properly before the court we will not consider it in determining if sufficient evidence existed to support the district court’s conclusion.


text:
    STATE of Minnesota, Respondent, v. Kristen Rae MANYPENNY, Appellant.
    No. CX-02-855.
    Court of Appeals of Minnesota.
    June 3, 2003.

      Becker County District Court, File No. K901534.
    Bradford Colbert, Assistant Public Defender, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Joseph Evans, Becker County Attorney, James W. Donehower, Assistant Becker County Attorney, Detroit Lakes, MN, for respondent.

      Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and WILLIS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant challenges her conviction of fourth-degree assault of a tribal peace officer on White Earth tribal land. She claims that because the officer did not have the authority to effectuate a valid arrest of a tribal member on the White Earth reservation, the evidence was insufficient to sustain her conviction for assaulting an officer. Because we conclude that the tribal officer had the authority to make a lawful arrest, we affirm appellant’s conviction.

FACTS

On April 29, 2001, White Earth Tribal Officer Chris Benson was dispatched to investigate a disturbance outside the residence of Linda Bevins. When he arrived, Benson observed appellant Kristen Rae Manypenny screaming at individuals inside the house. Benson asked appellant to leave the premises, but she refused to do so. Appellant continued to yell at people inside the Bevins residence and Benson warned her that if she refused to leave, she would be arrested for disorderly conduct and trespassing.

Because appellant refused to leave, Benson attempted to place her under arrest. Appellant resisted; she pulled her hands from Benson and tried to move away as he attempted to place handcuffs on her. After Benson successfully placed the handcuffs on appellant, he asked her to get into his squad car; she again refused. As Benson attempted to physically place appellant in the squad car, she kicked Benson in the chest, knocking off his portable radio. She also kicked Benson in the arms and in the mouth, causing Benson to sustain a cut to the inside of his lip. Benson also suffered a cut to his hand as a result of appellant’s physical resistance. Once appellant was in the squad car headed to the Becker County jail, she attempted to kick out the car’s back window and was verbally abusive to Benson.

Respondent State of Minnesota charged appellant with assault in the fourth degree, MinmStat. § 609.2231, subd. 1 (2000); obstructing the legal process, Minn.Stat. § 609.50, subds. 1(2), 2(2) (2000); and disorderly conduct, Minn.Stat. § 609.72, subd. 1(1) (2000). The district court denied appellant’s motion to dismiss all charges based on lack of subject-matter jurisdiction.

After the parties agreed to a trial based on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), the district court found appellant guilty of all three charged offenses. The district court subsequently sentenced appellant to 180 days in jail, staying all but 30 of those days. This appeal followed. The district court stayed execution of the sentence pending this appeal.

ISSUES

I. Did the White Earth tribal police officer have jurisdictional authority to effect a lawful arrest for fourth-degree assault?
II. Does the conferral of concurrent jurisdiction on tribal police officers under MinmStat. § 626.93 (2000) violate either the United States or Minnesota constitutions?

ANALYSIS

Appellant argues that White Earth Tribal Officer Chris Benson did not effect a lawful arrest when he apprehended appellant, and because the statute at issue requires a lawful arrest as an element of the charge, she cannot be convicted of fourth-degree assault on a peace officer. Appellant raises a sufficiency-of-the-evidence issue; essentially she is arguing that the state has failed to prove an element of Minn.Stat. § 609.2281, subd. 1 (2000) — specifically, that Benson was “effecting a lawful arrest.” “To sustain a conviction, the state must prove all essential elements of the charged crime beyond a reasonable doubt.” State v. Papadakis, 648 N.W.2d 349, 354 (Minn.App.2002). Determination of “the evidence required for a conviction” under a specific statute “is an issue of statutory interpretation, a matter of law” subject to de novo review. State v. Tomlin, 622 N.W.2d 546, 548 (Minn.2001) (citation omitted).

I

An individual who physically assaults a peace officer licensed under Minn.Stat. § 626.845, subd. 1 (2000), when that officer is making a lawful arrest or executing any other duty imposed by law, is guilty of fourth-degree assault. Minn.Stat. § 609.2231, subd. 1 (2000). The parties do not dispute that Benson, as a tribal police officer, is an appropriately licensed peace officer under Minn.Stat. § 626.845, subd. 1. It is also uncontroverted that if Benson had the authority to arrest appellant, her physical assault of Benson is sufficient to support a conviction of fourth-degree assault. The issue at hand is whether Benson, as a White Earth tribal officer, had the jurisdictional authority to arrest appellant within the boundaries of the White Earth reservation.

Appellant argues that federal law prohibits the arrest upon which her conviction is based. She maintains that the federal government has not granted Minnesota the right to enter into cooperative agreements with tribes to enforce criminal statutes on reservations. Appellant contends that because jurisdiction over criminal matters resides exclusively with the State of Minnesota, a tribal peace officer could not legally arrest her and thus her conviction must be reversed.

Originally, the federal government and the separate Indian tribes had direct jurisdiction over reservations. See U.S. v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978) (stating that Indian sovereignty “exists only at the sufferance of Congress and is subject to complete defeasance”). The right of Indians to be free from a state’s “regulation of their conduct in Indian country unless Congress provides otherwise derives from the Indian-sovereignty doctrine enunciated in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832).” Latender v. Israel, 584 F.2d 817, 821 n. 5 (7th Cir. 1978).

In 1953, Congress adopted Public Law 280, which provided Minnesota with

jurisdiction over offenses committed by or against Indians in the areas of Indian country * * * to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory.

Pub.L. No. 83-280, 67 Stat. 588-89 (1953) (codified as amended at 18 U.S.C. § 1162(a) (2000)). Congress addressed three issues in Public Law 280: lawlessness on reservations, the desire to assimilate Indian tribes into the population, and a shrinking federal budget for Indian affairs. Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 488, 99 S.Ct. 740, 755, 58 L.Ed.2d 740 (1979); see also Bryan v. Itasca County, 426 U.S. 373, 379, 96 S.Ct. 2102, 2106, 48 L.Ed.2d 710 (1976) (stating that the purpose of this grant of jurisdiction was to combat the problem of lawlessness on reservations and the lack of adequate tribal law enforcement).

Public Law 280 gave certain states, including Minnesota, jurisdiction over crimes committed by or against Indians in Indian country within the state, with specified exceptions in some of the named states. 18 U.S.C. § 1162(a). For example, the Red Lake reservation is not included in the grant of jurisdiction to Minnesota. Id. The effect of Public Law 280 is to require the state to enforce state criminal laws within reservation boundaries. State v. Stone, 572 N.W.2d 725, 729 (Minn.1997).

In 1968, Public Law 280 was amended to allow state governments to retrocede its jurisdiction over a tribe to the federal government. Pub.L. No. 90-284, 82 Stat. 78 (1968) (codified as amended at 25 U.S.C. § 1323); see also Exec. Order No. 11435, 33 Fed.Reg. 17339 (Nov. 21, 1968) (designating the Secretary of the Interior to accept retrocessions). “[R]e-trocession” is a “state’s return to the federal government of jurisdiction over criminal and/or civil matters previously granted to the state by Congress.” U.S. v. Merrick, 767 F.Supp. 1022, 1023 (D.Neb.1991).

Minnesota has not retroceded its authority over the White Earth reservation to the federal government. But the state has entered into “cooperative agreements” with some tribal authorities, including those authorities governing the White Earth reservation, to “regulate the provision of law enforcement services.” Minn. Stat. § 626.93, subd. 4 (2002). Under these agreements, a tribe has concurrent jurisdictional authority with the local county sheriff to enforce state criminal law within the geographical boundaries of the tribe’s reservation. Minn.Stat. § 626.93, subd. 3; see also Minn.Stat. §§ 626.90.91, .93 (2002) (authorizing the Mille Lacs Band of Chippewa Indians, the Lower Sioux Indian Community, and the Fond du Lac Band of Lake Superior Chippewa to establish law enforcement authorities).

Appellant argues that retrocession is the only lawful process for Minnesota to give up its jurisdiction over certain affairs on tribal land, and because the state has never retroceded its jurisdiction over criminal matters to the federal government, only the State of Minnesota is authorized to enforce the state’s criminal laws on tribal lands. Appellant contends that re-trocession is the only way to place criminal jurisdiction in the hands of the tribe and that the cooperative agreement that Minnesota entered into with the White Earth tribe violates federal law.

Whether a cooperative agreement authorizing tribal officers to lawfully arrest Indians on a reservation is permissible is an issue of first impression in this state. The scant case-law treatment addressing the issue of cooperative agreements appears only in dicta. In Stone, the supreme court dealt with various motor-vehicle violations and the question of whether the state had jurisdiction to enforce motor-vehicle statutes against tribal members for conduct occurring within the boundaries of the reservation. 572 N.W.2d at 727. After con-eluding that the state lacked jurisdiction to enforce civil and regulatory statutes and that no extraordinary circumstances existed to justify such action, the supreme court addressed cooperative agreements by observing,

[w]e anticipate that tribes without the resources to sustain their own enforcement systems will enter into cooperative agreements with state and local governments to obtain these services.

Id. at 732. The court recognized that this expectation was likely well founded because of the existence of police-and fire-protection agreements with governmental units such as the agreement between the City of Prior Lake and the Shakopee Indian Community. Id.

What appellant sets up for this court is a false dichotomy. Public Law 280 does not prohibit cooperative agreements. It does not require states to consent to retrocession requests from tribal governments. Nor does it prohibit tribes and state governments from entering into mutually beneficial agreements to provide law-enforcement services that are well short of the retrocession standard. In short, although appellant argues otherwise, law enforcement on Indian reservations is not an either-or proposition.

Minnesota need not retrocede its jurisdiction in order to enter cooperative agreements with Indian tribes. Because numerous benefits flow to both the tribes and the state from entering into such agreements, they are not viewed as a “forcible imposition of state laws on Indian tribes.” Gwyn Goodson Timms, Cooperative Agreements: Govemment-to-Govemment Relations to Foster Reservation Business Development, 20 Pepp. L.Rev. 1295, 1314 (1993). Benefits include (1) limiting litigation over jurisdiction to allow parties to focus on substantive issues, (2) enabling states and tribes to reach compromises between competing interests, (3) allowing each side to share resources and limit expenses by reducing administrative and service costs, (4) encouraging economic development on Indian reservations by more clearly defining applicable laws, and (5) filling regulatory gaps where jurisdictional authority is unclear. Id. at 1305-09. Instead of being an imposition on tribal governments, cooperative agreements permit the tribes to acquiesce to a form of state authority. Id. at 1314.

The existing legal authorities indicate that the cooperative agreement between the White Earth tribe and the state does not violate federal law. Stone, 572 N.W.2d at 732; Timms, supra, at 1314. Because we agree with these authorities, the state’s involvement in a cooperative agreement with the White Earth reservation was not a violation of federal law and thus Benson had the authority to lawfully arrest appellant.

The state argues that Congress has specifically authorized cooperative agreements under 42 U.S.C. § 3796dd(a). But because we conclude that Minnesota need not first retrocede its jurisdiction to enter cooperative agreements with tribes, we need not address this argument.

II

Appellant’s pro se brief raises additional constitutional issues regarding her arrest for fourth-degree assault. First, she alleges that the state’s cooperative agreement with the White Earth tribal police, which provides each with concurrent jurisdiction over criminal affairs on the reservation, is unconstitutional under both the United States and Minnesota constitutions.

Reviewing the constitutionality of a statute is a question of law that we review de novo. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). “The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.” Haggerty, 448 N.W.2d at 364 (citation omitted); see also Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979) (recognizing that a person challenging the constitutionality of a statute must overcome every presumption in favor of constitutionality).

The pro se brief fails to explain appellant’s assertion that this statute violates either the Minnesota or United States constitutions. Moreover, appellant interjects arguments relating to the White Earth Reservation Business Committee, the Tribal Executive Committee, and Resolutions 1-80 and 2-80 without explaining their significance to the present facts. We conclude that appellant has not sustained the burden of demonstrating beyond a reasonable doubt that Minn.Stat. § 626.93 is unconstitutional.

Appellant next argues that the tribe’s constitution precludes the establishment of a tribal police force. Appellant apparently maintains that the tribe’s creation of a law enforcement agency was an ultra vires act, done without the tribal members’ consent through a tribal constitutional amendment or a constitutional convention.

But appellant fails to explain why Minnesota state courts should intervene in a matter of internal tribal governance. In the absence of any developed and articulated argument with cited authority supporting appellant’s argument, we decline to address appellant’s claim of an ultra vires act by the tribal government. See Bryan, 426 U.S. at 388, 96 S.Ct. at 2110-11 (observing that the purpose of Public Law 280 was not to permit states to regulate the internal governance of tribes).

DECISION

Because the cooperative agreement between the WTiite Earth tribe and the State of Minnesota was not invalid, tribal peace officer Chris Benson was authorized to arrest appellant, and thus appellant’s conviction of fourth-degree assault on a peace officer was supported by sufficient evidence. Because we find no merit to the remainder of appellant’s various arguments as to the impropriety of her arrest, we affirm appellant’s conviction.

Affirmed.

      . While appellant is correct that the criminal jurisdiction over the White Earth reservation has not been retroceded, her assertion that Minnesota has never retroceded jurisdiction is incorrect. In 1973, the state retroceded all criminal jurisdiction for the Bois Forte Indian Reservation at’Nett Lake to the federal government under authority of 25 U.S.C. § 1323. Act of May 23, 1973, ch. 625, 1973 Minn. Laws 1500; State v. Stone, 572 N.W.2d 725, 728 n. 3 (1997).

      . Because we conclude the cooperative agreement between the tribe and the State of Minnesota is not invalid for the purposes of the criminal prosecution at issue here, it is not necessary to reach the state’s argument that a tribal peace officer has the inherent authority to arrest appellant. The state concedes there is no controlling authority in Minnesota for this proposition but cites the United States Supreme Court decision of Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), as supporting this argument. Duro held that an Indian tribe does not have criminal jurisdiction over Indians who are not members of that tribe. Id. at 688, 110 S.Ct. at 2061. But Duro, which permits the detention of offenders outside of tribal lands, is wholly silent on the critical question of authority to arrest. Id. at 697, 110 S.Ct. at 2065-66 (holding that tribal law-enforcement authorities have the power to restrain and, if the circumstances dictate, eject those who disturb the public order on reservations). In light of the result here and the lack of authority for the state’s argument on this point, we decline to address the issue.