author: MINGE, Judge.

text:
    In re the GUARDIANSHIP OF Steven Bernard AUTIO.
    No. A07-0595.
    Court of Appeals of Minnesota.
    April 22, 2008.

      Matthew K. Begeske, John B. Schulte, Begeske Law Offices, Duluth, MN, for appellant Scot Autio.
    Michael K. Kearney, Colosimo, Patchin, Kearney & Brunfelt, Ltd., Virginia, MN, for respondent, Steven Autio.
    Melanie S. Ford, St. Louis County Attorney, Renae M. Darland, Assistant County Attorney, Virginia, MN, for respondent, St. Louis County.
    Considered and decided by KALITOWSKI, Presiding Judge; MINGE, Judge; and CONNOLLY, Judge.
   OPINION

MINGE, Judge.

Appellant challenges the order denying his petition for appointment as emergency guardian and establishing a public guardianship for his brother. Appellant claims that there is an appropriate, less-restrictive alternative to a public guardianship and that a family member is available to serve as guardian. Respondent disagrees and contends that appellant’s challenge is untimely. Because appellant’s appeal was timely and the district court did not abuse its discretion by establishing public guardianship for appellant’s brother, we affirm.

FACT

Appellant Scot Autio is the brother of Steven Bernard Autio, a 47-year-old man with autism and severe mental retardation. Steven has received institutional care since age 13. He is unable to meet his personal needs independently or care for himself without 24-hour supervision. Steven currently lives in a group home.

This matter arises out of a history of escalating conflict over Steven’s medication and treatment regimen. Appellant and George Autio, Steven’s father, have consistently disagreed with the professionals responsible for Steven’s care and supervision, including St. Louis County Social Services staff and staff at the group home. Respondent is St. Louis County. George Autio served as guardian for his son until he was replaced by a public guardian by the district court on January 25, 2007. Both appellant and George were members of a treatment team that was established at an earlier stage in this conflict. The team was charged with making decisions about Steven’s care.

On April 17, 2006, appellant filed a petition requesting that he be appointed as emergency guardian for Steven. St. Louis County had previously submitted a letter to the Commissioner of the Minnesota Department of Human Services (commissioner) requesting that the commissioner accept nomination for appointment as public guardian for Steven. On May 25, 2006, the Public Guardianship Administrator of the Minnesota Department of Human Services consented to the nomination. Accordingly, the county filed a petition requesting removal of Steven’s father as guardian, the establishment of a public guardianship, and the denial of appellant’s petition for emergency guardianship. After a hearing on the competing petitions, the district court authorized the public guardianship, appointed the commissioner as guardian, and denied appellant’s competing petition. This appeal follows.

ISSUES

I. Is this appeal timely?

II. Did the district court abuse its discretion by appointing a public guardian for appellant’s brother while simultaneously denying a family member’s petition for emergency guardianship?

ANALYSIS

I.

The first issue is whether this appeal should be dismissed as untimely. On January 25, 2007, the district court issued its order establishing the public guardianship and denying appellant’s motion for an emergency guardian.

The establishment of public guardianship for developmentally disabled adults is generally governed by Minn.Stat. §§ 252A.01-.21 (2006). The provision relied on by respondent county in challenging the timeliness of the appeal is Minn. Stat. § 252A.101, subd. 6, which states that a “copy of the [public guardianship] order shall be served by mail upon the ward ... and the ward’s counsel. The order must be accompanied by a notice that advises the ward ... of the right to appeal the guardianship or conservatorship appointment within SO days.” (Emphasis added.) However, the statute also provides that appeals may be taken to the court of appeals in the manner prescribed by Minn. Stat. §§ 525.71-731 (2006). MinmStat. § 252A.21, subd. 1. Section 525.712 provides for appeal pursuant to the rules of civil appellate procedure within six months after the filing of the appealable order, judgment, or decree unless a notice of filing is served by a party. The Minnesota Rules of Civil Appellate Procedure require that an appeal be taken within 60 days after the entry of judgment or 60 days after service by a party of notice of filing of an appealable order, unless otherwise provided by statute. Minn. R. Civ.App. P. 104.01, subd. 1.

We acknowledge the confusion that the various provisions just identified create for parties attempting to determine the time for appeal. In this case, the confusion was compounded. On January 26, 2007, the district court sent appellant a “Notice of Entry of Order and Right to Appeal” stating “[y]ou have a right to appeal the Order within 60 days from the date of this notice.” Appellant filed his notice of appeal on March 19, 2007, within 60 days after entry of the order. Respondent claims that this appeal must be dismissed because appellant failed to file within the 30 days referred to in Minn.Stat. § 252A.101, subd. 6.

The notice provision in Minn.Stat. § 252A.101, subd. 6, refers to an appeal period inconsistent with the time period established by Minn.Stat. § 525.712 and Minn. R. Civ.App. P. 104.01, subd. 1. Although specific to public guardianships, the 30-day notice provision in Minn.Stat. § 252A.101, subd.-6, does not reflect any legislative intent to establish a time limit for taking an appeal; it simply refers to the contents of a required notice. The subdivision creates confusion because of its departure from the appeal periods established in Minn.Stat. § 525.712 and Minn. R. CivApp. P. 104.01, subd. 1. We conclude that those provisions govern the time of appeals. Because Minn.Stat. § 525.712 allows six months after the filing of an order unless a party serves written notice of filing, because the order was filed on January 26, 2007, because no party served a notice of filing, and because the appeal was filed within six months after the date of filing, we hold that this appeal is timely.

II.

The second issue is whether the district court abused its discretion by appointing a public guardian for Steven while simultaneously denying appellant’s petition for emergency guardianship. Appellant contends that the district court should have granted his petition to serve as guardian for Steven because family members are entitled to priority in guardianship proceedings and because his appointment would have represented a less-restrictive alternative to public guardianship.

The appointment of a guardian is a matter within the discretion of the district court and will not be disturbed absent a clear abuse of that discretion. In re Conservatorship of Geldert, 621 N.W.2d 285, 287 (Minn.App.2001), review denied (Minn. Mar. 27, 2001) (citing In re Guardianship of Stanger, 299 Minn. 213, 215, 217 N.W.2d 754, 755 (1974), and In re Guardianship of Dahmen’s, 192 Minn. 407, 410, 256 N.W. 891, 893 (1934)). Before a district court is presented with a petition for public guardianship, Minnesota law generally requires that the commissioner and the petitioner consider whether qualified family members are willing to assume guardianship. See MinmStat. §§ 252A.03, subd. 4, .06, subd. 2(6). “Public guardianship or conservatorship is the most restrictive form of guardianship or conservator-ship and should be imposed only when no other acceptable alternative is available.” MinmStat. § 252A.01, subd. 1(b). The district court must find that “no appropriate alternatives to public guardianship ... exist that are less restrictive of the person’s civil rights and liberties.... ” MinmStat. § 252A.101, subd. 5(4). The district court must also recognize the priority for current caretakers, adult children, and parents of proposed wards when considering guardianship appointment. Minn.Stat. § 524.5-309(a)(l), (4), (5) (2006). A district court, however, need not appoint a family member as guardian if it determines that the best interests of the proposed ward will not be served by appointing the family member. See Minn.Stat. § 524.5~309(b). “The best interests of the ward should be the decisive factor in making any choice on his behalf.” In re Guardianship of Schober, 303 Minn. 226, 230, 226 N.W.2d 895, 898 (1975) (quoting In re Guardianship of Overpeck, 211 Minn. 576, 583, 2 N.W.2d 140, 144 (1942)).

Dr. Randall Lakosky, Steven’s primary treating physician since 2001, testified that Steven is currently treated with medications to alleviate his agitation and anxiety and stabilize his mood. Dr. Lakosky noted that he initially stopped prescribing Prozac at George Autio’s request, but Steven subsequently engaged in a variety of self-injurious behaviors. Dr. Lakosky testified that Steven is happier, is more social, and engages in less self-injurious behavior under the current treatment plan than under earlier, less-aggressive treatment plans. He further testified that Steven’s quality of life would markedly deteriorate if the medications were discontinued. Dr. Lakosky stated that, based on his experience with Steven’s father and appellant, he believed that appellant would reduce or eliminate prescription drugs from Steven’s treatment regimen, which would result in Steven experiencing greater agitation and a regression to prior behavior, such as self-injury, striking others, and attempting to ingest inedible objects.

Appellant and his father strongly disagree with Dr. Lakosky. Aside from his own opinion testimony, however, appellant presented no medical evidence contradicting or challenging Dr. Lakosky’s expert testimony at trial. Appellant has no medical degree or training.

The record supports the district court’s finding that appellant would like to see his brother’s medications reduced or discontinued. At trial, appellant suggested the alternative treatment of his brother at a new autism center in Duluth and offered the testimony of the director of the facility. The district court noted that, although the director of the facility had experience working with autism, the director did not have a medical degree and did not meet or assess Steven before the trial. The district court found that appellant’s proposed treatment plan included alternative medicines with no established efficacy or evidence that they would be appropriate for Steven’s condition.

The record indicates that, in addition to disagreements over medication, appellant and his father engaged in obstructive, harassing, and threatening behavior with group-home staff and treatment professionals, and their conduct interfered with Steven’s treatment and weighed against appellant serving as a guardian. To facilitate a cooperative approach to making treatment decisions, a treatment team was created that included appellant, his father, staff at the group home, Steven’s social worker, and, to resolve differences of opinion, an employee of the Disability Law Center. The district court found that the father and appellant harassed this deadlock-breaking member to the point that she obtained a restraining order to protect herself from their offensive conduct and ultimately withdrew from further participation with the team. As a result of the conduct of appellant and his father, they were excluded from treatment meetings and restricted to written and facsimile contact with treatment staff and professionals.

The record further indicates that appellant and Steven’s father had visited with Steven away from the group home. According to the record, during the last such visit, appellant and his father gave Steven a beverage and hotdog, in violation of visitation rules. When a staff member realized what had happened, the staffer attempted to end the visit. Appellant and his father became upset and pushed the staff person away, and appellant began screaming that Steven was choking and to call 911. A staff member testified that Steven had finished eating the food 15 minutes before appellant’s outburst. An emergency vehicle arrived in response to the 911 call and transported Steven to a hospital emergency room, where medical staff determined that there was nothing wrong with him except wax buildup in his right ear. The district court found that George Autio and appellant engaged in similar conduct toward all group-home staff.

The district court found that Steven’s overall well-being has improved under his current treatment regimen; that Steven’s condition would deteriorate if the treatment plan was altered; that appellant would likely change his brother’s current treatment regimen; that appellant’s past interference with Steven’s treatment in the form of harassing and threatening behavior toward treatment staff and professionals rendered appellant an inappropriate guardian; and that appointing a family member as guardian was not in Steven’s best interests.

We conclude that the record in this proceeding overwhelmingly supports the district court’s determination that there is no appropriate alternative to public guardianship that is less restrictive of the civil rights and liberties of Steven; that appellant should not serve as a guardian; that there is no other qualified family member available to serve as guardian; that it is in Steven’s best interests to have an unbiased third party supervising his future care; and that the commissioner should serve in this role.

DECISION

We hold that appellant’s appeal was timely under MinmStat. §§ 252A.21, subd. 1, 525.712. Furthermore, because the record supports the district court’s determination that it is in the best interests of Steven to appoint an unbiased third party to serve as guardian, and there exists no appropriate, less-restrictive alternative to appointing the commissioner, we conclude that the district court did not abuse its discretion in establishing public guardianship for Steven and denying appellant’s competing petition to serve as his emergency guardian.

Affirmed.

      . George Autio did not challenge his removal as guardian and is not a party to this appeal.

      . Although the district court sent the parties notice of filing and entry of the order, it does not appear that either party filed a notice. Even if one of the parties had immediately served a notice of filing, this appeal would be timely because it was filed within 60 days after the date of filing.


source: Caselaw Access Project

author: WORKE, Judge. HARTEN, Judge

license: Public Domain

text:
    In the Matter of the WELFARE OF the CHILDREN OF B.J.B. and N.N.P., Parents.
    No. A07-2124.
    Court of Appeals of Minnesota.
    April 22, 2008.

      Pamela A. King, Baker Law Offices, Rochester, MN, for appellant B.J.B.
    Paul J. Kiltinen, Dodge County Attorney, Janet L. Mahle Hinds, Assistant County Attorney, Mantorville, MN, for respondent Dodge County.
    Considered and decided by WORKE, Presiding Judge; HUDSON, Judge; and HARTEN, Judge.

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

   OPINION

WORKE, Judge.

In this appeal from the district court’s order revoking a stay of termination of her parental rights, appellant-mother argues that (1) the district court’s use of a stayed termination order is not authorized and led to an involuntary waiver of her right to trial and to have the state prove its case, and (2) the record does not support revoking the stay. Because the district court did not err by using a stayed termination order, which did not deprive appellant of due process, and because a statutory basis for terminating appellant’s parental rights was shown by clear and convincing evidence, we affirm.

FACTS

Appellant B.J.B. has a history of chemical dependency and failures in multiple treatment programs. In May 2006, appellant’s fifteen-month-old child, C.P., was adjudicated a child in need of protection or services; in May 2007, appellant’s seventeen-month-old, C.B., was added to the petition and adjudicated in need of protection or services.

In July 2007, the district court issued an emergency protective order removing the children from appellant’s custody after methamphetamine was found at appellant’s residence and she admitted to cocaine use. Following a review hearing in August 2007, the district court found that appellant had consistently produced positive urinalyses (UAs), failed to attend scheduled out-patient treatment sessions, and failed to attend individual therapy. Appellant also missed several supervised visits with the children.

The court gave appellant another 15 days to show that she could abide by the terms of her case plan, which she was unable to do. Dodge County then petitioned for the termination of appellant’s parental rights, based on appellant’s diagnosed history of chemical dependency, her multiple failures in chemical-dependency treatment, and her continued failure to abstain from chemical use. Appellant entered inpatient chemical-dependency treatment. The children’s father consented to termination of his parental rights.

On October 5, 2007, after appellant finished the treatment program, the parties signed a stipulation in which appellant admitted to the termination petition under Minn.Stat. § 260C.301, subd. 1(b)(5) (2006), which provides grounds for termination if, following the children’s out-of-home placement, reasonable efforts have failed to correct the conditions leading to that placement. Appellant admitted that she was addicted to chemicals; that her addiction gravely and negatively impacted her ability to parent the children; that reasonable efforts to correct conditions leading to the children’s placement had been made and those efforts were unsuccessful; and that due to her ongoing chemical dependency, she would be unable for the foreseeable future to care appropriately for the children’s physical, mental, or emotional needs. The stipulation also provided that an order would be issued, staying the termination of appellant’s parental rights for up to 90 days based on appellant’s 100% compliance with certain conditions, including abstaining from the use of alcohol or controlled substances, refusing to associate with persons who used those substances, and complying with all requested UAs. The stipulation provided that, should appellant comply with all of the conditions, visitation with the children would possibly become unsupervised and gradually increase to include overnights, with dismissal of the petition without prejudice after 90 days and the children remaining under protective supervision or care. If it were alleged that appellant had violated the conditions, the court would hold a hearing and make a finding on the alleged violation. The stipulation stated that if appellant failed to comply with the provisions of the stipulation and order “in all respects,” it would be determined to be in the best interests of the children to terminate her parental rights so that the children could obtain a permanent home.

When the parties presented the stipulation to the court, appellant’s attorney stated that appellant wished to admit, as stipulated, to the termination petition. Appellant testified that she was addicted to cocaine and other controlled substances, that she had failed chemical-dependency programs at least twice, and that she loved her children but was incapable of parenting when she was using chemicals. Appellant waived her right to a court trial, to subpoena and cross-examine witnesses, and to testify or not to testify. The court confirmed that the stipulation included random testing for the next 90 days, and appellant agreed to provide a UA immediately after the hearing. The court approved the stipulation.

Appellant produced a positive UA after the hearing, and a second UA also tested positive for cocaine. Appellant, as well as the person she was living with, declined to produce any additional UAs over the next few days. On October 12, the district court held another hearing on the allegation that appellant had violated the conditions of the stay. Appellant was present and admitted, through her attorney, that “she did relapse. She did use cocaine.” The district court issued an order terminating appellant’s parental rights, and this appeal followed.

ISSUES

I. Did the district court err by using a stayed termination order in a termination-of-parental-rights proceeding?

II. Does clear and convincing evidence of a statutory basis for termination exist to support revocation of the stay?

ANALYSIS

I.

A district court may terminate parental rights if it is proved by clear and convincing evidence that a statutory ground for termination exists and that the termination is in the child’s best interests. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001). The best interests of the child is the paramount consideration in a termination-of-parental rights proceeding. Minn.Stat. § 260C.301, subd. 7 (2006). Whether a parent’s due-process rights have been violated in a termination proceeding is a question of law, which this court reviews de novo. In re Child of P.T., 657 N.W.2d 577, 583 (Minn.App.2003), review denied (Minn. Apr. 15, 2003).

The parent-child relationship is among the fundamental rights protected by substantive due process. Soohoo v. Johnson, 731 N.W.2d 815, 820 (Minn.2007); P.T., 657 N.W.2d at 588. The applicable due-process standard for juvenile proceedings is fundamental fairness. McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 1985, 29 L.Ed.2d 647 (1971). A court considering whether a party has been deprived of due process balances the private interest affected by official action, the risk of erroneous deprivation of that interest through the procedures used and the value of additional or substitute procedural safeguards, and the government’s interest. Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 415-16 (Minn.2007).

Appellant argues that the district court’s use of a stayed termination order violated substantive and procedural due process because it induced her to waive her constitutional right to a hearing and to waive the requirement that grounds for termination be proved by clear and convincing evidence.

At the outset, the record does not show that appellant used the prescribed procedure under the Minnesota Rules of Juvenile Protection Procedure for challenging a settlement in a termination proceeding. That procedure requires that a party who objects to a settlement agreement in a termination proceeding must, within five days of service of notice of the proposed agreement, “adopt the existing pleadings ... or file pleadings in support of an alternative.” Minn. R. Juv. Prot. P. 19.04. Additionally, although alleging coercion, appellant did not request relief from the district court order based on fraud, duress, or undue influence. See Minn. R. Juv. Prot. P. 46.02 (allowing district court to grant relief based on fraud or misrepresentation); see also In re Welfare of N.M.C., 447 N.W.2d 14, 17 (Minn.App.1989) (stating that a parent seeking to set aside an order terminating parental rights must “allege facts sufficient to show duress, undue influence, or fraud before a full evidentiary hearing will be held”).

To support her argument that the use of a stayed termination order deprived her of due process, appellant notes that no express authority exists for such an order and cites P.R.L., in which the Minnesota Supreme Court expressed disapproval of stayed termination orders. 622 N.W.2d at 544. The supreme court stated:

[a] stayed termination order engenders in child and parent the hope of reunification based upon anticipated compliance with the conditions of the stay by a parent who has so steadfastly failed to comply with case plans that it has been found to be in the best interests of the child to have the parent’s rights terminated. In that way it exacts real, human costs... .While the courts must exhibit caution in severing family bonds, they should not merely delay what is demonstrated to be inevitable.

Id. The supreme court also noted both that no specific statute or rule authorizes “[sjtaying a permanency order” and that “settlement tools in child protection matters cannot exist outside the statutory mandate that decisions are to serve a child’s best interests.” Id. at 543 and n. 6, 544.

But the supreme court, although expressing disapproval of a stayed-adjudication process, upheld the termination of parental rights in P.R.L., concluding that the district court’s findings showed grounds for termination by clear and convincing evidence. Id. at 545. Thus, the language cited by appellant from P.R.L. was dicta, and no caselaw or statute explicitly prohibits the use of such a stay.-

We acknowledge the supreme court’s warning that staying a termination order carries the potential for significant substantive and procedural legal problems, as well as a substantial likelihood for the “real, human costs” mentioned in P.R.L. But we cannot conclude that in every case the district court’s use of this procedure so impacts either a parent’s rights or a child's best interests that it invariably constitutes reversible error. Specifically, the facts and procedure in this case do not show that appellant was deprived of due process by the district court’s use of a stay and the later revocation of that stay.

The record shows that appellant was represented by counsel throughout the proceedings. At the hearing when the stipulation was received, appellant’s attorney stated that appellant was willing to admit to grounds for terminating her parental rights under Minn.Stat. § 260C.301, subd. 1(b)(5). Appellant’s attorney then questioned appellant concerning her rights to a court trial, to subpoena witnesses and cross-examine opposing witnesses, and to testify or not to testify. Appellant testified that she wished to waive all of these rights. Appellant also acknowledged that she was agreeing to termination because of her addiction to cocaine and other illegal substances and because she had attended multiple treatment programs and failed those programs at least twice. Appellant also acknowledged that when she was not using controlled substances, she was a good parent and loved her children, but that when she was using illegal substances she was not a good parent and was incapable of parenting at those times. Thus, before the court approved the stipulation, appellant, with the advice of her attorney, agreed to an admission to a statutory ground for terminating her parental rights and made complete, on-the-record waivers of her constitutional rights. At the hearing revoking the stay, appellant’s attorney also confirmed that appellant had voluntarily entered into the stipulation and waived her right to a trial.

Appellant also maintains that the use of a stayed termination order is proee-durally defective because no designated standards exist for determining a violation of the conditions of the stay. But the parties stated on the record their agreement that a hearing would be held if a violation were alleged, with the district court making findings as to whether the conditions of the stay had been violated. Under these circumstances, the lack of specific procedural standards does not violate procedural due process because the record shows not only that appellant voluntarily waived the typically applicable procedures, but also that the parties agreed on a process for an alleged violation and understood the consequences for a violation of the stay.

Appellant further argues that the use of a stayed termination order is inconsistent with the best interests of the children. Finality is one factor to be considered in determining a child’s best interests. N.M.C., 447 N.W.2d at 17. But the record shows that at the time of the stipulation, appellant had just successfully finished a 21-day drug-treatment program. Because the petition was initially filed as a result of appellant’s consistent history of drug use and treatment failures, we cannot say, in light of what was then an apparent success by appellant, that the court acted unreasonably by giving appellant a final chance to address her chemical dependency and maintain sobriety as a condition of resuming reunification efforts.

Therefore, we conclude that the district court’s use of a stayed termination order in a termination-of-parental-rights proceeding does not, by itself, violate due process and that in this case, appellant’s due-process rights were not impermissibly infringed by the court-approved stipulation and the later revocation of the stay.

II.

Appellant argues that even if the district court appropriately stayed the termination, there was insufficient evidence to support the revocation of the stay and to terminate her parental rights. To revoke a stay of termination of parental rights, there must be sufficient evidentiary basis to show the existence of conditions satisfying a statutory ground for termination at the time of revocation. P.R.L., 622 N.W.2d at 544-45.

Appellant maintains that there was no evidence admitted at the revocation hearing, and that appellant’s admission through her attorney that she relapsed by using cocaine was insufficient to show the existence of a statutory ground for termination. But appellant’s attorney told the court that appellant waived an evidentiary hearing on the issue of grounds for revocation. And appellant has cited no authority for the proposition that she was required personally to admit her violation of the conditions of the stay.

Further, a finding that “following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement” is a sufficient ground for termination under Minn. Stat. § 260C.301, subd. 1(b)(5). P.R.L., 622 N.W.2d at 544. A presumption arises that reasonable efforts have failed on a showing that:

(A) the parent has been diagnosed as chemically dependent by a professional certified to make the diagnosis;
(B) the parent has been required by a case plan to participate in a chemical dependency program;
(C) the treatment programs offered to the parent were culturally, linguistically, and clinically appropriate;
(D) the parent has [ ] faded two or more times to successfully complete a treatment program ...; and
(E) the parent continues to abuse chemicals.

Minn.Stat. § 260C.301, subd. l(b)(5)(iv).

Although the district court’s findings do not specifically refer to each of these bases, the findings are sufficient to show by clear and convincing evidence that a basis existed for terminating appellant’s parental rights. The district court took notice of the court orders in the child-protection proceedings concerning both children. See Minn. R. Juv. Prot. P. 3.02, subd. 3 (stating that in juvenile-protection proceedings, a district court may take judicial notice as permitted under the Rules of Evidence, as well as findings of fact and court orders in juvenile-protection court files and any other proceedings in any court file involving the child or the child’s parents). The uncontested record establishes that appellant had received diagnoses of a history of cannabis, cocaine, opiate, hallucinogen and methamphetamine abuse; that she was required to participate in chemical-dependency treatment plans by the terms of her case plan; and that she left at least three of those programs against staff advice. Appellant does not dispute that she had positive UAs immediately following the hearing at which the stipulation was approved, and she admitted through her attorney that she had “relapsed” and used cocaine. Therefore, a presumption was created that reasonable efforts have failed to correct the conditions leading to the children’s out-of-home placement. Appellant failed to rebut that presumption, and the record shows by clear and convincing evidence that a statutory condition for termination existed.

DECISION

The district court’s use of a stayed termination order did not deprive appellant of due process, and a statutory basis for termination was shown by clear and convincing evidence at the time the stay was revoked.

Affirmed.

HARTEN, Judge

(concurring specially).

I agree with the result here — termination of appellant’s parental rights (TPR) is in the children’s best interests. But, unfortunately, the judicial process disregarded the supreme court’s admonition in P.R.L. that staying the adjudication of TPR petitions implicates a parent’s right to due process. As the supreme court noted, no statute or rule provides authority for a stay in TPR proceedings. P.R.L., 622 N.W.2d at 543. And such a stay may hold out an unlikely hope for reunification, thus pressuring a parent to forgo his or her constitutionally protected right to a trial on the merits of the petition. “It is particularly troubling to stay entry of a permanency order ... where the problem that led to termination was one of such long standing and the prospects of success during a stay so dim as to make the court, through its agreement to the stay, a party to fruitless delay.” Id. at 544. This language applies in the instant case, where the stay was conditioned on appellant’s ability to maintain sobriety by overcoming a longstanding history of chemical abuse and treatment failures. Unfortunately, such stays are not expressly prohibited. Even so, the lack of established procedural standards governing stayed TPR dispositions creates problematic due process concerns for court administration of (including vacation of) the stay. Here, as in almost all such TPR stays, nothing was accomplished but an unwarranted continuation of the children’s hardship and uncertainty.


author: KONENKAMP, Justice.

text:
    2008 SD 23
    Tom JOHNSON, Plaintiff and Appellant, v. Stanley C. RADLE and Sharon B. Radle; Floyd T. Birchfield; Linda Haglund, Defendants, and Deadwood Stage Run, L.L.C., Defendant and Appellee.
    No. 24575.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2008.
    Decided March 26, 2008.

      Roger A. Tellinghuisen of Tellinghuisen & Gordon Spearfish, South Dakota, Attorney for plaintiff and appellant.
    Scott J. Odenbach of Seward & Oden-bach, Spearfish, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] The owners of Lot 696, Palisades Stone Placer, Lawrence County, South Dakota began subdividing their property in 1979. After each subdivision, the owners filed and recorded a plat with the Register of Deeds. On the first plat, the owners created Tract D, which was burdened by one easement. In three subsequent plats that created new tracts, the owners established additional easements burdening Tract D. These later plats, however, did not amend or vacate the plat for Tract D. Now, the validity of the two additional easements burdening Tract D is in dispute. On cross motions for summary judgment, the circuit court held that the current owner of Tract D had constructive notice of the easements. We affirm in part and reverse in part.

Background

[¶ 2.] The property in dispute is located in Lot 696 Palisades Stone Placer, Lawrence County, South Dakota (Lot 696). Donald and Nora Ostby and Douglas and Betty Nelson (the Owners) began subdividing Lot 696 in 1979. The first tract of land created was Tract D. The plat for Tract D was filed by the Owners with the Lawrence County Register of Deeds as Plat # 79-3272. A review of the plat shows a 66’ wide easement along the northeastern boundary of Tract D (Northeastern Easement).

[¶ 3.] The Owners continued to subdivide Lot 696. In July 1980, they filed Plat # 80-2185, creating Tract C. On this plat, the boundaries and location of Tract D are included, but not the Northeastern Ease-

ment. There is an easement on the plat, but it is listed as a “66’ wide dedicated public right of way” and is located on the northwestern boundary of Tract D (Northwestern Easement).

[¶ 4.] In 1981, the Owners filed Plat # 81-2887, creating Tracts E and F. This plat includes the boundaries and location of Tract D, but not Tract C. The plat also does not reference the original Northeastern Easement. Instead, the plat contains a notation declaring that the “previously dedicated public right of way” was to be “vacated by this plat.” The arrows by this notation point to the areas that would have been the Northwestern and Northeastern Easements. The plat for Tracts E and F identify a new “50’ wide private access and utility easement” (Diagonal Easement), which starts in Tract D from the middle of the original Northeastern Easement and runs diagonally to the south, ending in Tract E.

[¶5.] In 1984, the Owners filed Plat # 84-2419, creating Tracts A, B, G, H, I, J, K, and L. The plat for these tracts includes the boundaries and locations of Tracts D, C, E, and F. The plat has arrows pointing toward the Northeastern and Northwestern Easements, with a “Road easements of record” notation. The Diagonal Easement is also present, with a “50’ wide easement of record” notation.

[¶ 6.] In 2001, Tom Johnson entered into a purchase agreement with Mark Heinen for Tract D. Johnson had visually inspected the land before his purchase and bought title insurance. The commitment for title insurance identified various easements, and in particular, revealed an “Easement of Right of Way between John M. Heinen and Teri R. Heinen and Tammy Hollenbeck to use existing roadway across Tract D for the benefit of Tract C to run with the land as recorded in Document No. 2001-6824.” Johnson’s warranty deed also indicated that Tract D is “SUBJECT TO access easement across Tract D exclusively between Mark Heinen and Doug Mergen and Tammy Mergen for the benefit of Lot C Doc. No. 90-3143[.]”

[¶ 7.] At some point after Johnson purchased Tract D, a dispute arose between him and the owners of various other tracts in Lot 696 concerning their use of Tract D for access to their property. After Johnson challenged their right to use his land, he was told that certain easements granted them the right. In particular, it was claimed that the Diagonal and Northwestern Easements across Tract D were previously created by the Owners of Lot 696 and have been continuously used for over twenty years. Johnson questioned whether the two easements were validly created and brought suit to quiet title against Stanley C. and Sharon B. Radie, Floyd T. Birchfield, Linda Haglund, Douglas M. Mergen, John Mark Heinen and John Nick Heinen (defendants).

[¶ 8.] Johnson and defendants filed cross motions for summary judgment. Johnson argued that when he purchased Tract D there was no indication that the Northwestern or Diagonal Easement existed because the plat for Tract D contains only the Northeastern Easement. Defendants averred that the easements were validly created by Plats ##80-2185, 81-2887, and 84-2419, that Johnson had constructive notice of the easements, and that the easements existed by prescription. The court granted summary judgment for defendants, concluding that Johnson had constructive notice of the Northwestern and Diagonal Easements. Johnson appeals asserting that the court erred when it (1) concluded as a matter of law that Plats ##80-2185, 81-2887, and 84-2419 created valid easements across Tract D; (2) found that he had constructive notice of the easements; and (3) denied his motion for summary judgment.

Standard of Review

[¶ 9.] Our standard of review for summary judgment is well established:

“When reviewing a grant of summary judgment, we decide only whether there were genuine issues of material fact and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza Condominiums Ass’n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846). “We view the evidence in a light most favorable to the nonmoving party.” Toben v. Jeske, 2006 SD 57, ¶ 9, 718 N.W.2d 32, 35 (citing Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). The moving party has the burden of showing “the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.” Yarcheski v. Reiner, 2003 SD 108, ¶ 15, 669 N.W.2d 487, 493 (citing S.D. Dept. of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989)).

Rush v. U.S. Bancorp Equipment Finance Inc., 2007 SD 119, ¶ 7, 742 N.W.2d 266, 268.

Analysis and Decision

[¶ 10.] Johnson first contends that the circuit court found “as a matter of law the Diagonal easement and the Northwestern easement across [Tract D] were validly created by the recording of subsequent plats.” (Emphasis added). On the contrary, the circuit court did not find that the plats created the easements as a matter of law. In fact, the court recognized that the Owners of Lot 696 failed to prepare these plats to properly vacate or amend the plat for Tract D. Rather, the court ruled that Johnson had constructive notice of the easements indicated on those plats through language used in two access agreements filed with the Register of Deeds, his warranty deed, and the title insurance policy.

[¶ 11.] Johnson also disputes the court’s finding that he had constructive notice of either the Northwestern or Diagonal Easement. According to Johnson, because the Owners of Lot 696 failed to comply with SDCL Chapter 11-3 when they filed subsequent plats, there can be no constructive notice to him of easements not properly indexed to his property. Further, Johnson insists that constructive notice could not be imputed to him because after a professional title search and personal observation of the property, nothing indicated to him the possibility that such easements existed.

[¶ 12.] Defendants concede that Plats ##80-2185, 81-2887, and 84-2419 did not properly vacate or amend Plat # 79-3272. However, they contend that Johnson is charged with notice of the disputed easements through his warranty deed and title insurance policy. His warranty deed identified an access agreement between Mark Heinen (previous owner of Tract D) and the Mergens (owners of Tract C), made for the benefit of Tract C. The agreement was created on July 30, 1990, and was filed as Document # 90-3143. Because the agreement contains references to a “road ease-meiit,” “existing road,” and “Tract A and B”, defendants maintain that Johnson had a duty to seek out and investigate matters relating to the use of Tract D by the owners of Tracts A, B, and C. Had Johnson investigated the plats for Tracts A, B, and C, defendants claim he would have learned of the existence of both disputed easements.

[¶ 13.] Constructive notice of an easement can be imputed to a purchaser

where the easement is of such character that a purchaser acting with ordinary diligence would know or learn of its existence. Thus, where the easement is open and visible, the purchaser will be charged with notice even though the easement was created by a grant which was not then recorded. The grantee is bound where a reasonably careful inspection of the premises would disclose the existence of the easement or where the grantee has knowledge of facts sufficient to put a prudent buyer on inquiry.

Wiege v. Knock, 293 N.W.2d 146, 148 (S.D.1980) (citations omitted) (emphasis added).

[¶ 14.] Defendants do not claim that a careful inspection of Tract D would have disclosed the existence of an easement. Therefore, we must determine whether the record discloses facts sufficient to put Johnson on inquiry that the Northwestern and Diagonal Easements existed. See id. Johnson’s warranty deed and title insurance policy informed him that there are two access agreements burdening Tract D. The first access agreement from 1990, Document # 90-3143, provides in part:

MERGENS specifically acknowledge that the existing road through Lot D owned by HEINEN to Lot C owned by MERGENS is a private road which MERGENS can use only with permission from HEINEN, and that the road easement according to the Plat for a road serving Lot C is approximately 133 Feet to the North of the existing road.
II.
HEINEN hereby grants MERGENS permission to use the existing private road through Lot D for so long as MERGENS own Tract C,....

(Emphasis added). The second agreement was between the Heinens and Tammy Hol-lenbeck (previously Tammy Mergen). It was created on December 21, 2001, and was filed as Document # 2001-6824. It is entitled “EASEMENT OF RIGHT OF WAY” and gives Hollenbeck continued access to use the private drive over Tract D. Like the 1990 access agreement, it also references the platted easement.

[¶ 15.] Based on these access agreements and the plat for Tract D, it is evident that Johnson was on notice that a “road easement” existed across Tract D on the northwestern edge. The 1990 access agreement indicates that the “road easement according to the Plat for a road serving Lot C is approximately 133 Feet to the North of the existing road.” (Emphasis added). A plain reading of this statement would require a prudent purchaser of Tract D to examine more than the plat for Tract D to determine the extent of the “road easement according to the Plat for a road serving Lot C.” This is because the plat for Tract D does not identify the location of Tract C, or any road that would serve Tract C (see diagrams below). What “road easement” could serve Tract C, then, demands prudent investigation.

[¶ 16.] Because the access agreement setting forth that the owners would, if a dispute arose, use the “road easement according to the Plat for a road serving Lot C,” and the plat for Tract D did not contain a road that could service Tract C, Johnson was put on sufficient notice for inquiry. See Wiege, 293 N.W.2d at 148. “ ‘If facts are sufficient to put a purchaser of a title or lien upon inquiry of any adverse right or equity of a third party, his want of diligence in making such inquiry is equivalent to a want of good faith.’ ” Townsend v. Yankton Super 8 Motel, Inc., 371 N.W.2d 162, 165 (S.D.1985) (quoting Modson v. Ballou, 63 S.D. 501, 505, 260 N.W. 831, 833 (1935)). The court did not err when it found that Johnson had constructive notice of the Northwestern Easement.

[¶ 17.] Next, we examine whether Johnson had constructive notice of the Diagonal Easement. According to the Defendants, because the 1990 access agreement between Heinen (Tract D) and Mer-gen (Tract C) references a possible need for Tracts A and B to have access over Tract D, Johnson was on notice to examine the plat for Tracts A and B. The 1990 access agreement that refers to Tracts A and B contains the following language in paragraph three:

The parties agree that this permission is only for MERGENS [owners of Tract C] and that in the event it is necessary for the owners of Tract A and B to obtain and use access to their property through Lot D, that at such time the existing use of the private drive through Lot D will cease and a road will have to be constructed at no cost to HEINEN through the easement as shown on the Plat along the Northerly edge of Lot D.

(Emphasis added).

[¶ 18.] “Notice of an easement is generally imputed to a purchaser where the easement is of such character that a purchaser acting with ordinary diligence would know or learn of its existence.” Wiege, 293 N.W.2d at 148. A reference to Tracts A and B and a possible need in the future to use Tract D to gain access to Tracts A and B is not sufficient to put a prudent purchaser on notice that an easement exists now. Moreover, because Tracts A and B cannot be accessed using the disputed Diagonal Easement, a reference in the access agreement to Tracts A and B is insufficient to put a purchaser of Tract D on notice of the Diagonal Easement.

Although an easement can be valid without a recorded conveyance when there is constructive notice, the circumstances known to Johnson do not indicate the possibility of the Diagonal Easement. See Peterson v. Beck, 537 N.W.2d 375, 378 (S.D.1995) (constructive notice is imputed when the easement is apparent to anyone viewing the land).

[¶ 19.] Defendants assert that the Diagonal Easement is a valid easement by prescription. They argue that the owners of the tracts surrounding Tract D and their predecessors had been using the Diagonal Easement for over twenty years before Johnson’s quiet title action. Whether the Diagonal Easement is a valid prescriptive easement is not properly before us. The circuit court did not consider the issue, and defendants cannot assert error on a matter not ruled on by the circuit court. See Watertown v. Dakota, Minnesota & Eastern Railroad Co., 1996 SD 82, ¶ 26, 551 N.W.2d 571, 577 (citations omitted). Further, defendants did not file a notice of review on this issue, and therefore, they have waived it. See Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 2, n. 1, 566 N.W.2d 487, 489 n. 1 (citing SDCL 15-26A-22; Rude Transp. Co. v. S.D. Pub. Utils. Comm’n, 431 N.W.2d 160, 162 (S.D.1988)) (failure to file a notice of review waives the issue).

Conclusion

[¶ 20.] The circuit court did not err in granting summary judgment to the defendants, imputing constructive notice to Johnson of the Northwestern Easement and in denying summary judgment for Johnson on the same issue. However, the court erred when it granted summary judgment to defendants, concluding that Johnson had constructive notice of the Diagonal Easement. There being no material issues of fact in dispute, we reverse and direct the court to enter an order granting Johnson’s motion for summary judgment voiding the Diagonal Easement across Tract D. Deadwood Stage Run’s motion for appellate attorney’s fees is denied.

[¶ 21.] Affirmed in part and reversed in part.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . The parties do not dispute that this plat did not vacate or amend the plat for Tract D (with the Northeastern Easement) or the plat for Tract C (with the Northwestern Easement).

      .Additional easements recognized are: “Right of way permit to Black Hills Power and Light Document No. 80-2558”; “Pipeline Easement between John Mark Heinen and Lisa Kay Heinen and Willston Basin Interstate Pipeline recorded in Document No. 95-3704”; "Pipeline Easement between John Mark Heinen and Willston Basin Interstate Pipeline Company recorded Document No. 2000-4595”.

      . The Radies own Tract A. Birchfield and Haglund own Tract B. The Mergens own Tract C. In April 2006, the parties stipulated that Deadwood Stage Run, LLC would be substituted as a defendant for Douglas M. Mergen and John Nick Heinen. Deadwood Stage Run, LLC owns Tracts G, H, I, J, K, and L.

      . The circuit court never ruled on the prescription issue and the matter was not appealed.

      . Although the court recognized that the Lot 696 Owners did not include the legal description for Tract D, which would have indexed their subsequent plats to Tract D, the court cited Aasland v. Yankton County for the proposition that this "incomplete” platting of all subsequent plats was sufficient to put Johnson on notice of a right of way and that the right of way instrument should be sought out and examined. See 280 N.W.2d 666, 668 (S.D.1979). This reliance on Aasland is mistaken. The plats here are not "incomplete.” It is not disputed that the plats were properly filed and recorded. The failure of the Owners to properly prepare the subsequent plats to be indexed to Tract D is not “a mere mistake in recordation.” See id.

      . The record contains no indication of where the “existing road” is located on Tract D.

      . Although Deadwood Stage Run's request included a statement of legal services rendered, it did not identify how such fees are allowable in this action. See SDCL 15-26A-87.3.


text:
    2008 SD 24
    METROPOLITAN LIFE INSURANCE COMPANY; Metropolitan Insurance and Annuity Company; New England Life Insurance Company; Metlife Investors USA Insurance Company; General American Life Insurance Company; Paragon Life Insurance Company; Metlife Investors Insurance Company; Metropolitan Property and Casualty Insurance Company; Metropolitan Group Property and Casualty Insurance Company; Economy Premier Assurance Company; Metropolitan Tower Life Insurance Company; and Metropolitan Direct Property and Casualty Insurance Company, Plaintiffs and Appellees, v. Paul KINSMAN, Secretary, South Dakota Department of Revenue; Merle Scheiber, Director, Division of Insurance; and the State of South Dakota, Defendants and Appellants.
    No. 24704.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2008.
    Decided March 26, 2008.
    Rehearing Denied May 6, 2008.

      Ronald G. Schmidt of Schmidt, Schroyer, Moreno, Lee & Bachand, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.
    Timothy M. Gebhart, Eric R. Johnson of Davenport, Evans, Hurwitz and Smith, Sioux Falls, South Dakota, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] An out-of-state insurance company brought suit against South Dakota asserting that its taxing method in SDCL Chapter 10-44 unconstitutionally favors domestic insurers. According to the company, from 1970 to the present, the State imposed a higher tax on foreign insurers solely because they are nonresidents. In light of a United States Supreme Court decision prohibiting discrimination based on residence alone, the insurance company sought relief. After a trial to the circuit court, SDCL 10-44-2 and SDCL 10-44-4 through SDCL 10-44-6 were declared unconstitutional from 1970 to the present. The State appeals, and we reverse.

Background

[¶ 2.] Metropolitan Life Insurance Company, et al. (MetLife) brought suit against the Secretary of the South Dakota Department of Revenue and Regulation, the Director of the South Dakota Division of Insurance, and the State of South Dakota (collectively the State or South Dakota), asserting that the State’s tax structure on insurance premiums and annuity considerations has been and is unconstitutional. According to MetLife, from 1970 to the present, SDCL 10-44-2 and SDCL 10-44-4 through SDCL 10-44-6 violate the equal protection clause of the United States and South Dakota constitutions.

[¶ 3.] In 1981, MetLife filed an administrative claim for a refund of its premium taxes paid. The claim was denied because of MetLife’s failure to comply with certain statutory requirements. The parties agreed to stay all appeals while the United States Supreme Court considered the constitutionality of state insurance tax structures. The Supreme Court answered the question in 1982, but the parties continued to agree to stay all appeals. Ultimately, in 2004, on appeal to the circuit court, MetLife’s administrative claim was consolidated with its constitutional challenge. The State and MetLife stipulated that the circuit court should only consider whether South Dakota’s insurance premium and annuity tax structure violated the equal protection clause in the constitutions of the United States and South Dakota. After a trial to the court in 2007, findings of fact and conclusions of law and a judgment were entered declaring SDCL 10-44-2, and SDCL 10-44-4 through SDCL 10-44-6 unconstitutional from 1970 to the present. The court also awarded disbursements to MetLife of $8,871.62. The State appeals asserting that the premium and annuity tax structure is and has always been constitutional and that the court abused its discretion when it imposed certain costs against the State.

Analysis and Decision

[¶ 4.] A tax has been imposed on insurance company business here since before statehood. See Cutting v. Taylor, 3 S.D. 11, 51 N.W. 949 (1892) (discussing the Territory’s tax on insurance companies). To facilitate its tax scheme, South Dakota, like many other states, places insurance companies into one of three classifications: domestic, foreign, and those not licensed to do in-state business. See SDCL 10-44-2 (2007). A domestic insurance company is “any company organized under the laws of South Dakota[.]” SDCL 10-44-1(3) (2007). A foreign company is one organized under the laws of a different jurisdiction. Id. (4). Unlicensed companies include those not licensed in South Dakota, as well as those not authorized to do business here. See SDCL 1044-2(3).

[¶ 5.] Until 1982, the State taxed each classification at a different rate. SDCL 10-44-2 (1981). In the 1980s, however, the United States Supreme Court began to scrutinize disparate tax treatment of insurance companies. See Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981) (upholding a state’s retaliatory tax against foreign insurance companies because it was rationally related to a legitimate state interest); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) (invalidating a tax that discriminated against a foreign insurer based on its residence). In 1982, South Dakota amended its tax structure and imposed an identical tax on all insurers, regardless of their classification. See SDCL 10—44—2 (2007).

[¶ 6.] Nevertheless, MetLife argues that South Dakota’s tax structure from 1970 to the present continues to violate the United States and South Dakota constitutions. It contends that the tax structure discriminates against foreign insurers based on residence, similar to the scheme invalidated in Ward. Because South Dakota substantially revised its insurance tax statutes in 1982, we divide the issues in this appeal into: Tax Structure from 1970-1981; Tax Structure from 1982-Present.

1. Tax Structure from 1970-1981

[¶ 7.] From 1970 to 1981, South Dakota taxed insurance companies at different rates depending on the classification of the company and the type of insurance transaction. SDCL 10-44-2 (1981). The following table shows the tax rates for each classification from 1970-1981:

Id. Also during the same time, a foreign insurer was offered a credit on its tax obligation if it “owns and substantially occupies any building in this state as a regional home office....” SDCL 10-44-4 (1981). The available credit was a maximum of fifty percent of the tax levied and a deduction for all ad valorem taxes paid on the building and adjacent land and any taxes paid for property used in the operation and maintenance of the regional home office. Id.

[¶ 8.] On February 26, 1981, the South Dakota Division of Insurance received from MetLife a claim for refund of all premium taxes paid for the years 1970 through 1979. It later made a similar claim for taxes paid in 1980. In March 1982, the Director of Insurance ruled on these claims. He concluded that the tax was constitutional, and, in addition, he ruled that Met Life’s claims for taxes paid from 1970 through 1980 were barred by its failure to comply with SDCL 10-27-2 and SDCL Chapter 10-55. By stipulation, no appeals were taken until this present action.

[¶ 9.] Notwithstanding the stipulation to stay all appeals, the record is not clear why MetLife’s refund claims for an alleged discriminatory tax beginning in 1970 have been left in suspense for so long, especially after 1985, when the Supreme Court struck down taxing arrangements of the type MetLife here complains. Now we are asked, some twenty-six years after SDCL 10-44-2 (1981) was repealed, to rule on its constitutionality. Deciding the constitutionality of a legislative enactment is a solemn and momentous occasion. We do not approach such tasks lightly; nor do we engage these questions as a matter of first resort. Indeed, we refrain from hasty ventures into constitutional analysis until after any preliminary obstacles have been surmounted and judgment is unavoidable.

[¶ 10.] That the parties have stipulated that we treat the constitutional challenge first in no way obviates our duty to refrain from premature decision making. We do not answer hypothetical questions or dispense advisory opinions. Boever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 750 (S.D.1995). If Met-Life fails to overcome all preliminary issues yet to be decided by the circuit court, its constitutional challenge may never come before us. Justiciability- — the conception that an actual and substantial controversy must be at hand before a decision can be rendered — cannot be conferred by stipulation or consent of the parties. Danforth v. City of Yankton, 71 S.D. 406, 412, 25 N.W.2d 50, 53 (1946). In our tripartite form of government, where legislative enactments are entitled to every presumption of legitimacy, erosion of our system of separation of powers might result from the indiscriminate passing on the constitutionality of those enactments through anticipatory opinions. Thus, we conclude that the constitutionality of the former 1970-1981 statutes is not properly before us, and we decline to decide the question until such time as the matter is fully justiciable.

2. Tax Structure from 1982-Present

[¶ 11.] In 1982, the Legislature amended the insurance tax structure to impose the same tax on all insurers, regardless of their classification. SDCL HM4-2 (2007). In addition, “any insurer” subject to tax under SDCL 10-44-2 is allowed a credit for having a principal or regional home office in South Dakota. SDCL 10-44-4 (2007).

[¶ 12.] Although foreign and domestic insurers are taxed equally, MetLife maintains that the statutory scheme is unconstitutional in operation and practical effect. It argues that we must consider SDCL 58-5-93 when evaluating whether the tax statutes in SDCL Chapter 10-44 are constitutional. SDCL 58-5-93 mandates that a domestic insurer locate its principal place of business in South Dakota. According to MetLife, because a domestic company is required to locate its principal place of business here, a domestic company has to do nothing to receive the lower tax, but a foreign insurer must take “the affirmative and substantial step of establishing a principal office or regional home office in the State[.]” In MetLife’s view, because of SDCL 58-5-93, the State still discriminates against foreign insurers based on their residence.

[¶ 13.] To prevail on an equal protection challenge, MetLife must first establish that the statutory scheme “creates arbitrary classifications among citizens.” See Davis, 2004 SD 70, ¶ 5, 681 N.W.2d at 454 (citation omitted); see also State v. Black Hills Transp. Co., 71 S.D. 28, 32-33, 20 N.W.2d 683, 685 (1945) (the State has flexible power to classify for purposes of taxation). As we recognized in State v. Krahwinkel, “classification is primarily for the Legislature and we will not interfere ‘unless the classification is clearly arbitrary and unreasonable.’ ” 2002 SD 160, ¶ 18, 656 N.W.2d 451, 460 (quoting Berens v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 80 S.D. 168, 120 N.W.2d 565, 570-71 (1963)). “Equal protection does not require that all persons be treated identically, but it does require that distinctions have some relevance to the purpose for which classifications are made.” Id. ¶ 21.

[¶ 14.] When reviewing the constitutionality of SDCL 1044-2 and SDCL 10444 through SDCL 10-44-6, we will consider other related enactments. See Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201 (citations omitted). SDCL 58-5-93 relates to SDCL 10-44-4 because both implicate an insurer’s requirement to maintain an in-state office. Through SDCL 58-5-93, “[e]very domestic insurer shall have and maintain its principal place of business and home office in this state[.]” And, through SDCL 10-4441, “any insurer” desiring a credit on their tax obligation must maintain a principal or regional home office in South Dakota.

[¶ 15.] Interpreting SDCL 58-5-93 with the tax structure in SDCL Chapter 10-44, we do not find that a domestic insurer is entitled to a credit as a matter of law or that the domestic insurer must do nothing to receive the lower tax rate. That SDCL 58-5-93 imposes a mandatory obligation on the domestic company to maintain its principal place of business here does not result in a foreign insurer being discriminated against. The domestic insurer is not given the credit simply by being a domestic company. Rather, it must establish and maintain an office here, not only to qualify for the credit, but also to be considered a domestic insurance company. A foreign insurer, on the other hand, is not required to maintain an office here to do business in the State. It must, however, maintain a principal or regional home office in South Dakota to receive the available credit.

[¶ 16.] It is MetLife’s business decision that determines whether it pays a higher tax, not an unequal statutory scheme. There is no disparate treatment when both types of insurers are burdened by being required to do similar actions (maintain an office here) to obtain a credit on their tax obligation. There is no arbitrary or unreasonable classification. See State v. Alabama Municipal. Ins. Corp., 730 So.2d 107, 111 (Ala.1998) (upholding a tax statute that granted credits “based on objective, clearly ascertainable criteria”). The current statutory scheme affords both domestic and foreign insurers a favorable tax rate after both insurers maintain a qualifying office in the State. The criteria are clear and objective and it is the insurer’s business decision that determines its tax, not any discrimination by the State.

[¶ 17.] Nonetheless, MetLife insists that the State’s statutory scheme still im-permissibly burdens foreign insurers when the definition of a regional home office in SDCL 10-44-5 is considered. From 1982 until 2003, a regional home office was defined to require an insurer to do business with at least two states. See SDCL 10-44-5 (1983). According to MetLife, a domestic company does not maintain a regional home office, but a principal place of business, and therefore, it is only required to do business with one state. Because a foreign insurer would likely maintain a regional home office, MetLife argues that the application of the tax statutes results in discrimination based on residence.

[¶ 18.] “We presume that statutes are constitutional unless shown otherwise beyond a reasonable doubt.” Davis, 2004 SD 70, ¶ 4, 681 N.W.2d at 454 (citing Accounts Management, Inc., 484 N.W.2d at 299). “Our function is not to decide if a legislative act is unwise, unsound, or unnecessary, but rather, to decide only whether it is unconstitutional.” State v. Allison, 2000 SD 21, ¶ 5, 607 N.W.2d 1, 2. MetLife bears the burden of proving that there is no reasonable basis for the Legislature’s decision to define a regional home office to require service covering at least two states. See id.

[¶ 19.] MetLife has not established how it was unreasonable for the Legislature to believe that a regional home office would service at least two states, and therefore, include that requirement in its definition. That a “regional” office would serve more than one area is not an unreasonable concept. Further, even considering that a foreign insurer is most impacted by the definition, the type of alleged discrimination forbidden by Ward has not been established. See 470 U.S. at 878, 105 S.Ct. at 1682, 84 L.Ed.2d 751. The statutory scheme with SDCL 10-44-5 (1981) does not result in a foreign insurer being taxed at a higher rate solely based on its residence. This tax structure affords a foreign insurer the same tax rate if that foreign insurer maintains a principal or regional home office here.

[¶ 20.] Finally, MetLife contends that the tax structure from 1982 to the present is unconstitutional because under SDCL 10-44-4 “[a]ny insurer who qualifies for a credit pursuant to this section shall meet the requirements provided for in § 58-5-93.” (Emphasis added). Where there are two possible interpréta-tions, one by which a statute would be unconstitutional and the other by which it would be valid, we will interpret the statute in a constitutional manner. Crowley v. State, 268 N.W.2d 616, 619 (S.D.1978). The challenged statutory language was not added by the Legislature until 2004. Although SDCL 10-44-4 states that “any insurer” must comply, a plain reading of SDCL 58-5-93 reveals that the requirement would implicate only domestic insurance companies. SDCL 58-5-93 obviously relates to domestic insurers. It begins by including “Every domestic insurer” not “any insurer.” Id. It would be illogical to read SDCL 10-44-4 to require that a foreign company open a principal place of business in South Dakota (in compliance with SDCL 58-5-93) before qualifying for the credit. The requirement in SDCL 10-44-4 that “any insurer” must comply with SDCL 58-5-93 applies to domestic companies, as that is all SDCL 58-5-93 encompasses.

[¶ 21.] South Dakota’s current statutory scheme does not favor the “home team” or give domestic insurers a lower tax rate simply based on their residence in the State. While a domestic insurer is required to maintain its principal place of business here, a foreign insurer has the option of receiving the same favorable tax rate by opening a principal or regional home office in South Dakota. Therefore, it is the foreign insurer’s business decision that determines its ultimate tax rate, not discrimination by the State.

[¶ 22.] Because it did not prevail on its claim as required by SDCL 15-17-37, we reverse the court’s award of disbursements to MetLife.

[¶ 23.] Reversed and remanded.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . We review a challenge to the constitutionality of a statute de novo. State v. Moschell, 2004 SD 35, ¶ 13, 677 N.W.2d 551, 558 (citing Boever v. S.D. Bd. of Accountancy, 1997 SD 34, ¶ 7, 561 N.W.2d 309, 311 (citing Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398)).
      We presume that statutes are constitutional unless shown otherwise beyond a reasonable doubt. Accounts Management, Inc. v. Williams, 484 N.W.2d 297, 299 (S.D.1992). If possible, we interpret statutes reasonably to find them constitutional and valid. State v. Krahwinkel, 2002 SD 160, ¶ 43, 656 N.W.2d 451, 466. The party asserting the unconstitutionality of a statute bears the burden of persuasion. Id.

        In re Davis, 2004 SD 70, V 4, 681 N.W.2d 452, 454. A court's award of disbursements under SDCL 15-17-37 is reviewed under an abuse of discretion standard. Ridley v. Lawrence County Comm'n, 2000 SD 143, ¶ 12, 619 N.W.2d 254, 259 (citing Michlitsch v. Meyer, 1999 SD 69, ¶ 10, 594 N.W.2d 731, 733 (citations omitted)).

      . In State v. American Bankers Ins. Co., 374 N.W.2d 609, 615-17 (S.D.1985) (citing SDCL 10-44-2(3)), the disparate tax rate for unlicensed insurers in South Dakota was ruled unconstitutional.

      . From 1970-1978, SDCL 10-44-2 provided in part:
      Except as expressly provided in this chapter, there is hereby levied a tax on all companies doing an insurance business in this state, at the rates hereinafter specified; ... (1) On each domestic company, one-half of one per cent of premiums and one-half of one per cent of the consideration for annuity contracts;
      (2) On each foreign company, two and one-half per cent of premiums, and one and one-fourth per cent of the consideration for annuity contracts;
      (3) On each insurer not licensed or not authorized to do business in this state, one and one-half times the amount payable by foreign insurers as provided by this section, or four per cent of the premiums whichever is the greater.
      From 1978-1981, SDCL 10-44-2(1), (2), and (3) provided:
      (1) On each domestic company, three-quarters of one percent of premiums and one-half of one percent of the consideration for annuity contracts;
      (2) On each foreign company, two and one-half percent of premiums, and one and one-fourth percent of the consideration for annuity contracts;
      (3) On each insurer not licensed or authorized to do business in this state, one and one-half times the amount payable by the foreign insurers as provide by this section, or four percent of the premiums whichever is greater.

      . A regional home office was defined as
      an office performing, for an area covering three or more states, the selling, underwriting, issuing and servicing of insurance, including the following • functions relating thereto: actuarial, medical (where required), law, approval or rejection of applications for insurance and issuance of policies thereon, approval of payment of all types of claims, maintenance of records to provide policyholder information and service, advertising and publications, public relations, supervision and training of sales and service forces.
      SDCL 10-44-5 (1981).

      . The credits and reductions could not reduce the tax obligation to less than 20% of the tax otherwise payable. SDCL 10-44-4 (1981).

      . The stipulation states that the court was to determine "the constitutional validity of the statutes without the same being a waiver of or other bar to [MetLife’s] subsequent right to seek further relief if such statutes are declared unconstitutional[.]”

      . SDCL 10-44-2 (2007) provides in part:
      Any company doing insurance business in this state shall pay a tax at the rates specified in this section....
      (1) On each domestic company, two and one-half percent of premiums, except for life insurance policies, other than credit life as defined in chapter 58-19, of a face amount of seven thousand dollars or less, for which the rate is one and one-fourth percent of premiums; and one and one-fourth percent of the consideration for annuity contracts. However, the rate for life insurance and annuities shall be computed as follows:
      (a)Two and one-half percent of premiums for a life policy on the first one hundred thousand dollars of annual premium, and eight one-hundredths of a percent for that portion of a policy's annual life premiums exceeding one hundred thousand dollars; and
      (b)One and one-fourth percent of the consideration for an annuity contract on the first five hundred thousand dollars of consideration, and eight one-hundredths of a percent for that portion of the consideration on an annuity contract exceeding five hundred thousand dollars....
      (2) On each foreign company the rate shall be computed as follows:
      (a) Two and one-half percent of premiums, except for life insurance policies, other than credit life as defined in chapter 58-19, of a face amount of seven thousand dollars or less, for which the rate is one and one fourth percent of premiums;
      (b) Two and one-half percent of premiums for a life policy on the first one hundred thousand dollars of annual premium, and eight one-hundredths of a percent for the portion of a policy’s annual life premiums exceeding one hundred thousand dollars; and
      (c) One and one-fourth percent of the consideration for an annuity contract on the first five hundred thousand dollars of consideration, and eight one-hundredths of a percent for that portion of the consideration on an annuity contract exceeding five hundred thousand dollars;

        (3) On each insurer not licensed or not authorized to do business in this state the rate shall be computed as follows:
      (a) Two and one-half percent of premiums, except for life insurance policies, other than credit life as defined in chapter 58-19, of a face amount of seven thousand dollars or less, for which the rate is one and one-fourth percent of premiums;
      (b) Two and one-half percent of premiums for a life policy on the first one hundred thousand dollars of annual premium, and eight one-hundredths of a percent for that portion of a policy's annual life premiums exceeding one hundred thousand dollars; and
      (c) One and one-fourth percent of the consideration for an annuity contract on the first five hundred thousand dollars of consideration, and eight one-hundredths of a percent for that portion of the consideration on an annuity contract exceeding five hundred thousand dollars!.]

      . SDCL 10-44-4 (2007) provides in part:
      Any insurer subject to payment of tax provided for in § 10-44-2, and which has in this state its principal office, or a regional home office as defined in § 10-44-5, for over one-half the tax year is entitled to the following credits and deductions against such tax:
      (1) An amount equal to fifty percent of the tax as determined under § 10-44-2; and
      (2) An amount equal to ad valorem taxes or payments made in lieu of taxes paid by such insurer, whether direct or in the form of rent, on that proportion of the premises occupied as a principal or regional home office during the year next preceding the filing of its annual tax return.
      However, in no event shall such credits and deductions reduce the amount of tax to less than thirty percent of the amount of the tax otherwise payable without the application of the credit provided by this section. Any insurer who qualifies for a credit pursuant to this section shall meet the requirements provided for in § 58-5-93.

      . SDCL 10-44-5 (1983) provided:
      A regional home office, for the purposes of § 10-44-4, means an office performing, for an area covering two or more states, the selling, underwriting, issuing and servicing of insurance, including the following functions relating thereto: Actuarial, medical (where required), law, approval or rejection of applications for insurance and issuance of policies thereon, approval of payment of all types of claims, maintenance of records to provide policy holder information and service, advertising and publications, public relations, supervision and training of sales and service forces.

      . In 2004, the Legislature revised SDCL 10-44-5 to require the regional office to cover “one or more states[.]” Therefore, from 2004 te the present, there is no difference in what is required of a foreign insurer if it decides to maintain a regional home office here.


author: MEIERHENRY, Justice.

text:
    2008 SD 25
    James GERLACH, Appellant, v. STATE of South Dakota, Appellee.
    No. 24608.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2008.
    Decided March 26, 2008.

      Lee C. “Kit” McCahren of Olinger, Lo-vald, McCahren, Reimers, P.C., Pierre, South Dakota, Attorneys for appellant.
    Christina L. Fischer of May, Adam, Gerdes & Thompson, L.L.P., Pierre, South Dakota, Attorneys for appellee.
   MEIERHENRY, Justice.

[¶ 1.] James Gerlach, a Buildings and Grounds employee for the State of South Dakota, appeals an adverse ruling on a workers’ compensation claim. We affirm.

FACTS

[¶ 2.] In 1998, Gerlach began his work for the State of South Dakota as a grounds employee. In September of 2003, Gerlach was moving chairs with a co-worker and injured his lower back. It is undisputed this 2003 injury was work-related. What is disputed is whether his complained of 2004 health problems were causally related to the 2003 injury. Gerlach claims that the 2003 injury was aggravated in the spring of 2004 by driving a tractor as part of his job. He claims that the tractor’s rocking and jerking motion caused chronic pain in his lower back and legs, gait abnormalities and loss of coordination and balance.

[¶ 3.] Gerlach sought treatment from several doctors: Dr. Monroe, a chiropractor; Dr. Gerhart, a pain management specialist; Dr. Plumage, an internal medicine specialist; Dr. Koob, a neurologist; and other physicians including some from Mayo Clinic. Gerlach was also examined by Dr. Luther, the State’s expert. Doctors Monroe, Koob, Plumage and Gerhart, determined that Gerlach’s injuries were work-related. Dr. Luther determined that Gerlach’s injuries were not related to his 2003 work injury. The other doctors gave no opinion as to whether Gerlach’s condition was related to his work. None of the doctors were able to provide a diagnosis for his subjective complaints.

[¶ 4.] The physicians who determined that Gerlach’s condition was work-related did not testify at the hearing or by deposition. Nevertheless, the parties stipulated to the admission of Gerlach’s complete medical records for the Administrative Law Judge’s (ALJ’s) consideration. The State’s expert, Dr. Luther, testified at the hearing.

[¶ 5.] Ultimately, the ALJ found Dr. Luther to be credible and adopted his opinion concluding that Gerlach was not entitled to workers’ compensation. The circuit court affirmed the ALJ’s decision. Gerlach claims on this appeal that the Department of Labor erred in denying his claim.

[¶ 6.] Our standard of review in workers’ compensation cases is well established.

“When the issue is a question of fact, then the actions of the agency are judged by the clearly erroneous standard; and when the issue is a question of law, then the actions of the agency are fully reviewable [ie., de novo].” “Mixed questions of fact and law are fully reviewable.”
When findings of fact are made based on live testimony, the clearly erroneous standard applies. Deference and great weight are given to the hearing examiner on fact questions. ‘When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule.”

Orth v. Stoebner & Permann Constr., Inc., 2006 SD 99, ¶¶ 27-28, 724 N.W.2d 586, 592 (citations omitted). ‘We do not substitute our judgment for the Department’s on the weight of the evidence or the credibility of witnesses.” Mettler v. Sibco, Inc., 2001 SD 64, ¶ 7, 628 N.W.2d 722, 724 (citation omitted). “The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo: unaided by any presumption that the trial court is correct.” Capital Motors, LLC v. Schied, 2003 SD 33, ¶ 10, 660 N.W.2d 242, 245 (citations omitted).

[¶ 7.] When applying for workers’ compensation benefits Gerlach bears the burden of proving a causal connection between his condition and his work-related injury. Wise v. Brooks Constr. Serv., 2006 SD 80, ¶ 21, 721 N.W.2d 461, 468. SDCL 62-1-1(7) provides that a compensable injury must be “established by medical evidence,” and that “[n]o injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of.... ” Whether Gerlach’s employment was a major contributing cause of his condition is necessarily a question of fact.

In applying the statute, we have held “a worker’s compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment.” We have further said “South Dakota law requires [Gerlach] to establish by medical evidence that the ‘employment or employment conditions are a major contributing cause of the condition complained of.’ ” “A possibility is insufficient and a probability is necessary.”

Wise, 2006 SD 80, ¶ 21, 721 N.W.2d at 468 (internal citations omitted).

[¶ 8.] We review evidentiary rulings under an abuse of discretion standard. McDowell v. Citibank, 2007 SD 52, ¶ 26, 734 N.W.2d 1, 10. An abuse of discretion “is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” State v. Mattson, 2005 SD 71, ¶ 13, 698 N.W.2d 538, 544 (citations omitted). An error will not be overturned unless it “in all probability ... produced some effect upon the final result.” Id.; McDowell, 2007 SD 52, ¶ 26, 734 N.W.2d at 10.

[¶ 9.] Gerlach contends that the ALJ committed reversible error by failing to consider certain stipulated evidence. Specifically, Gerlach claims that the ALJ erroneously rejected South Dakota Retirement System (SDRS) (D-2) Physician Evaluation Forms. As part of the evidence submitted to the ALJ, the State assembled a binder containing all of Ger-lach’s relevant medical history and both parties stipulated to the files’ admission. Within these voluminous records were six SDRS (D-2) Physician Evaluation Forms. A SDRS (D-2) form is a single sheet of paper with small areas for the physician’s comments and boxes for the physician to check regarding the cause of the patient’s injury and the patient’s capacity to work. Each form was signed by a physician. On three of the forms, the respective physician checked the box which affirmed that Gerlach’s “condition is due to injury or sickness arising out of [Gerlach’s] employment.”

[¶ 10.] Although the parties stipulated to the admission of the SDRS forms without objection, the ALJ acted sua sponte and disregarded the forms, based upon SDCL 3-12-142. That statute provides:

An application for disability benefits pursuant to this chapter [South Dakota Retirement System], any associated evidence and documents, and the disability determination and decision related thereto shall be inadmissible and non-determinative for any associated proceeding relative to [workers’ compensation].

SDCL 3-12-142. (emphasis added).

[¶ 11.] Generally, a party’s stipulation to admit evidence serves as a waiver to any evidentiary objections the party could have raised. Stipulations permit a more amiable proceeding, cut costs of litigation and expedite the judicial process. Therefore, stipulations that are “not against good morals, or sound public policy, have been and will be enforced.” In re New York, L. & W. R.R. Co., 98 N.Y. 447, 1885 WL 10574, at *3 (N.Y. March 10, 1885) (stating that “[p]arties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce”). See also In re Malloy’s Estate, 278 N.Y. 429, 17 N.E.2d 108, 109 (1938) (stating “ ‘[pjarties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights’ ”) (citation omitted); Cobbs v. Allied Chem. Corp., 443 Pa.Super. 386, 661 A.2d 1376, 1377 (1995) (noting “[i]t is well-established that parties, by stipulation, may bind themselves on all matters except those affecting jurisdiction and prerogatives of the court”) (citation omitted); Wigmore, Evidence § 7a (Tillers rev.1983) (stating parties may stipulate where law would exclude the evidence).

[¶ 12.] Stipulations are typically upheld, unless the “usual rule of exclusion thereby suspended were one affecting a specific third person’s interests or affecting vital general policies independent of the contracting parties.” WigmoRE, supra, § 7a (providing an example of a forbidden stipulation as: “a waiver of the privilege against disclosing official’s secrets of state”). We cannot surmise any “vital” general policy that would forbid the parties’ stipulation in this case.

[¶ 13.] When construing stipulations, courts “adopt the interpretation that is the most reasonable and probable, bearing in mind the objects which the parties intended to accomplish through the agreement.” Cobbs, 661 A.2d at 1377. In this case, the stipulation allowed for the ALJ to consider all of the pertinent evidence which tended to prove or disprove the causation and extent of Gerlach’s injuries. For the ALJ to disallow the stipulated forms was an abuse of discretion.

[¶ 14.] Although the ALJ erred by not considering the SDRS forms, as properly stipulated, the error did not constitute reversible error. The parties did “not stipulate that [the evidence] was to be taken as conclusive, and the question of [the experts’] credibility and the weight that should be accorded their [records] remained to be considered by the [fact finder].” Southern California Edison Co. v. Gemmill, 30 Cal.App.2d 23, 85 P.2d 500, 502 (1938); People on Complaint of DeAngelis v. Guiseppe, 97 N.Y.S.2d 486, 487 (N.Y.Child.Ct.1949), order aff'd, 276 A.D. 1102, 96 N.Y.S.2d 848 (1950) (although reports may be stipulated into evidence they are accepted for what they are worth, without further examination of their author’s expertise).

[¶ 15.] In this case, three physicians who filled out the SDRS forms indicated that Gerlach’s current health problems were work-related. These physicians were: Dr. Gerhart, Dr. Koob, and Dr. Monroe. The findings of fact and conclusions of law unequivocally demonstrate that the ALJ considered the physicians’ opinions but did not find their opinions persuasive. Specifically, the ALJ determined that “[n]either Dr. Gerhart nor Dr. Koob fully reviewed all of [Gerlach’s] medical records. [Therefore,] Dr. Gerhart’s and Dr. Koob’s opinions are rejected.” The ALJ also “rejected” Dr. Monroe’s opinions as he too failed to read all of Gerlach’s medical records, including his Mayo Clinic workup. Moreover, these physicians’ opinions were disputed by Dr. Luther’s testimony at the hearing. Specifically, the ALJ found: “[i]n light of Dr. Luther’s credible opinions and testimony, Dr. Monroe’s opinion is rejected.” As stated above, “[w]hen findings of fact are based on live testimony, the clearly erroneous standard applies.” Orth, 2006 SD 99, ¶ 28, 724 N.W.2d at 592 (citation omitted) (emphasis added).

[¶ 16.] Although the ALJ failed to consider the stipulated SDRS forms, the ALJ did consider all the medical records admitted into the record, including the doctors’ opinions, personal evaluations and notes. The ALJ rejected these physicians’ opinions as lacking foundation because the physicians failed to “fully review! ] all of [Gerlach’s] medical records,” and found Dr. Luther’s live testimony more persuasive. The SDRS forms, if considered, would not have bolstered these physicians’ credibility nor would it have provided more foundation for their opinions. Therefore, the ALJ’s evidentiary error of failing to consider the stipulated SDRS forms was harmless because they, “in all probability,” would not have affected the final decision. Mattson, 2005 SD 71, ¶ 13, 698 N.W.2d at 544 (stating that we will not overturn evi-dentiary rulings unless they “in all probability ... produced some effect upon the final result”) (citations omitted).

[¶ 17.] The only other physician Ger-lach relied on to prove causation was Dr. Plumage. Dr. Plumage noted that Ger-lach’s condition was caused by an “initial back injury and then subsequent exacer-bations.” Dr. Plumage’s notes indicated that Mayo Clinic determined that Ger-lach’s condition was “certainly work-related in nature” and that he “[w]ould have to agree.” The ALJ noted that “[n]o physician at the Mayo Clinic ‘felt that the injury was certainly work-related in nature.’ The physicians at Mayo Clinic could not and declined to determine the nature of [Ger-lach’s] condition, let alone the cause.” The ALJ also noted that the complaints that Dr. Plumage treated, “related to increasing weakness and balance problems in the lower extremities, ... were different than the symptoms [Gerlach] experienced after the September 2003 injury.” The ALJ found that “Dr. Plumage was unable to determine a diagnosis for [Gerlach’s] subjective complaints and ‘was uncertain what to make of the overall progressive weakness.’ ” Furthermore, according to Dr. Goff, a physician at the VA Hospital, Ger-lach’s lower extremity symptoms could not be connected to his back pain. Based on these facts, the ALJ found that Dr. Plumage’s opinion lacked foundation. Thus, the ALJ rejected all of the physicians’ opinions that Gerlach offered to prove causation and accepted the opinions of Dr. Luther.

[¶ 18.] Dr. Luther, a self-employed certified Independent Medical Examiner and a certified Medical Review Officer, testified as an expert for the State. Dr. Luther reviewed Gerlach’s entire medical record and also examined Gerlach. The ALJ concluded that Dr. Luther’s opinions were “[b]ased on a full and complete analysis of [Gerlach’s] voluminous medical records, [and were] well-founded, well-reasoned, fully explained, and logical.”

[¶ 19.] Dr. Luther testified as follows:

[I]t is my medical opinion based upon a reasonable degree of medical certainty that [Gerlach’s] occupational injury [in 2003] is not a major contributing factor to the symptoms that he has at this point. And my opinion was based on the fact that [Gerlach] had negative imaging studies, including normal MRI scans ... his injury would have been most consistent with a lumbar strain or sprain, and in my opinion, there would have been ample recovery time and that [Gerlach] would have been at maximum medical improvement for his industrial injury.

Furthermore, after reviewing a neurologist’s records, Dr. Luther testified that “further treatment would not be related to [Gerlach’s 2003 injury].” Ultimately, the ALJ found Dr. Luther “credible” and determined that his opinions were “entitled to more weight than the unexplained and unsupported opinions expressed solely in the medical records.” Under our standard of review, the ALJ’s findings of fact were not clearly erroneous.

[¶ 20.] We affirm.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, concur.

[¶ 22.] ZINTER, Justice, deeming himself disqualified, did not participate.

      . Although Gerlach contends that the ALJ discounted the SDRS forms for failing to utilize "magic language,” citing Wise, 2006 SD 80, ¶ 25, 721 N.W.2d at 470; the ALJ discounted the SDRS forms based on SDCL 3-12-142. This reason for rejecting the SDRS forms was expressly noted in conclusion of law number seventeen, which stated: "The SDRS Physician’s Evaluation forms presented by Claimant are inadmissible and cannot be used in this workers’ compensation proceeding pursuant to SDCL 3-12-142.”

      . Although Gerlach now attempts to argue that his condition may have been caused by other employment injuries, independent of the 2003 work injury, he failed to present any evidence of this argument at the hearing.