author: ROBERT H. SCHUMACHER, Judge.

text:
    Steven R. ODENTHAL, Respondent, v. MINNESOTA CONFERENCE OF SEVENTH-DAY ADVENTISTS, Appellant, General Conference of Seventh-Day Adventists; Minnetonka Seventh-Day Adventist Church, Defendants, Lowell Rideout, Appellant.
    Nos. C1-01-278, C4-01-291.
    Court of Appeals of Minnesota.
    Jan. 27, 2003.

      Ronald I. Meshbesher, Katherine S. Flom, Meshbesher & Spence, Ltd., Minneapolis, MN, for respondent.
    Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for appellant Minnesota Conference of Seventh-Day Adventists.
    , Richard L. Pemberton, Jr., Meagher & Geer, P.L.L.P., Minneapolis, MN, for appellant Rideout.
    Considered and decided by TOUSSAINT, Chief Judge, SCHUMACHER, Judge, and HALBROOKS, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Respondent Steven R. Odenthal sued appellant Minnesota Conference of Seventh-Day Adventists (MCSDA) for negligent retention, supervision, and training (negligent employment) and appellant Lowell Rideout for negligent counseling, intentional infliction of emotional distress, clergy malpractice, and breach of fiduciary duty. He alleged vicarious liability against MCSDA. Rideout and MCSDA moved the district court for summary judgment, seeking a dismissal of all claims. The court granted Rideout’s motion as to the claims of intentional infliction of emotional distress, clergy malpractice, and breach of fiduciary duty but denied Rideout’s motion on the negligent counseling claim as well as the claims against MCSDA, ruling that these claims could be adjudicated without violating the First Amendment’s prohibition against excessive entanglement with religion. Rideout and MCSDA appealed to this court.

This court reversed the district court, holding that resolution of the negligent counseling claim would result in an impermissible entanglement with religion. Odenthal v. Minn. Conference of Seventh-Day Adventists, 632 N.W.2d 783 (Minn.App.2001), rev’d, 649 N.W.2d 426 (Minn.2002). The Minnesota Supreme Court reversed, affirming the district court’s denial of summary judgment on the negligent counseling claim against Rideout. Odenthal v. Minn. Conference of Seventlv-Day Adventists, 649 N.W.2d 426 (Minn.2002). The supreme court remanded to this court the issue of whether the district court had subject-matter jurisdiction over Odenthal’s claims against MCSDA for negligent employment and vicarious liability. Id. at 443. We affirm the district court’s denial of summary judgment on these claims and remand for further proceedings.

FACTS

In 1997, Odenthal and his wife Diane Odenthal (Diane) sought counseling from their pastor Rideout. They met once or twice every two weeks between May and August 1997, usually at the Odenthals’ home but occasionally at the church or Odenthal’s office. According to Odenthal, Rideout described these meetings as marital counseling. Early on, Rideout told Odenthal that he was attracted to Diane. The Odenthals also obtained professional counseling during this period; their relationship improved and they ended the professional counseling in August 1997.

The Odenthals continued to meet with Rideout, but by February 1998, their marital relationship had deteriorated. In addition, Odenthal became concerned about the closeness of Diane and Rideout’s relationship. In February 1998, Rideout included other people in the counseling sessions, including Odenthal’s brother and Kathy Just, a church elder who had experience as a counselor. After several meetings, however, Just told Rideout that he was too personally involved to provide marital counseling and that the Odenthals’ martial problems were very severe.

The Odenthals again sought professional counseling, and the counselor advised them to remove themselves from their relationship with Rideout. During this time, Ride-out told Odenthal that he (Rideout) was Diane’s “fantasy man” and that she would “run off’ with him if asked.

After leaving the church for several months, the Odenthals returned and, contrary to the advice of their counselor, continued joint and individual meetings with Rideout. In May 1999, Diane and Rideout told each other they were in love. They did not tell Odenthal, whom Rideout continued to counsel.

Meanwhile, in April 1999, Dennis Carlson, the president of MCSDA, received three anonymous letters complaining of the inappropriate relationship between Diane and Rideout, but Carlson did not investigate. In May 1999, Odenthal’s mother expressed her concerns to Carlson. He then examined Rideout’s personnel file and found a letter stating that while Rideout had been serving at another church as pastor, a woman had accused him of sexual improprieties. Carlson did not investigate further but did speak with Rideout, who described Diane as a special friend but denied having an inappropriate relationship. Although MCSDA has a policy regarding investigation of complaints involving sexual improprieties that provides for the formation of a “sexual ethics committee,” Carlson took no action, believing that there was insufficient specific information to proceed.

In late September 1999, Rideout’s wife and other members of the church met with Carlson to discuss their concerns about Rideout’s relationship with Diane. On that day, Carlson learned that at least ten people had conducted meetings with Ride-out in the prior two years regarding inappropriate conduct with Diane. Carlson confronted Rideout and he resigned. Rideout and his wife then divorced, as did Odenthal and his wife. Rideout and Diane were married shortly thereafter.

ISSUES

1. Are the negligent employment and vicarious liability issues properly before this court?

2. May claims against a church employer for negligent supervision and training and negligent retention of a pastor who allegedly engaged in negligent secular counseling be resolved through application of neutral principles of law?

8. May a claim for vicarious liability against a church employer based on allegations of negligent secular counseling by its pastor be resolved through application of neutral principles of law?

ANALYSIS

Subject-matter jurisdiction is a question of law reviewable de novo. Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 484 (Minn.2002).

1. We first address whether the issues of negligent employment and vicarious liability are properly before this court. Odenthal argues that because MCSDA failed to challenge the district court’s ruling that it had jurisdiction over the negligent employment and vicarious liability claims in its first appeal to this court, it waived the issues and may not raise them now. MCSDA contends that it did raise the issue and moves to strike Odenthal’s argument on the ground that the supreme court instructed this court to address the issue.

After ruling that the district court had subject-matter jurisdiction over Odenthal’s negligent counseling claim against Ride-out, the supreme court remanded the appeal to this court to address whether the district court also had subject-matter jurisdiction over Odenthal’s negligent employment and vicarious liability claims against MCSDA. Id. at 443. In addition, these issues of subject-matter jurisdiction may not be waived. Marzitelli v. City of Little Canada, 582 N.W.2d 904, 907 (Minn.1998). Accordingly, we deny MCSDA’s motion to strike.

2. “[T]he role of secular courts in resolving religious disputes” is limited by state and federal constitutions. Oden-thal, 649 N.W.2d at 434. As to the federal constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I. The First Amendment applies to judicial power. Odenthal, 649 N.W.2d at 435 (citing Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 191, 80 S.Ct. 1037, 1038, 4 L.Ed.2d 1140 (1960)). To pass muster under the First Amendment,

a state action must have a secular purpose, must neither inhibit nor advance religion in its primary effect, and must not foster excessive governmental entanglement with religion.

Id. (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971)). At issue in this case is the third prong, the entanglement doctrine, under which the court “may not inquire into or review the internal decision-making or governance of a religious institution.” Id. (citing Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775 (1979)). If civil courts can resolve the issues by “neutral principles of law” by applying rules or standards “without particular regard to religious institutions,” there is no entanglement problem. Id. (citing Jones, 443 U.S. at 602-04, 99 S.Ct. at 3025-26).

In applying these principles to Oden-thal’s claim of negligent counseling against Rideout, the supreme court ruled that the church’s minister’s handbook that described the minister’s duties could not be used to resolve this claim. Id. at 436. The handbook offered guidelines for counseling, stating that ministers should offer only four or five sessions, emphasizing their limited expertise in counseling. It recommended against counseling women alone, cautioned against sexual counseling, and offered solutions for handling romantic interest from women parishioners. Odenthal, 632 N.W.2d at 788.

The court reasoned that because the handbook constituted a statement of the church’s policy regarding pastoral counseling, litigation to determine the limits of the policy through use of the handbook would pose a serious risk of entanglement. Odenthal, 649 N.W.2d at 436. In contrast, the court ruled that the statute regulating unlicensed mental health practitioners, Minn.Stat. § 148B.60 (1998), provided a neutral standard by which the claim could be resolved because the statutory standards were secular and could be applied without affecting the religious aspects of clerical counseling. Id. Consequently, it held that the district court had subject-matter jurisdiction over the claim against Rideout. Id. at 438-43.

At issue here is whether Odenthal’s claims against MCSDA may similarly be resolved through the use of neutral standards. MCSDA argues that resolving Odenthal’s claims for negligence in hiring, supervising, or retaining a minister would involve the courts in the church’s fundamental right to recognize individuals who have been called by God to ministry. See Black v. Snyder, 471 N.W.2d 715, 720-21 (Minn.App.1991) (dismissing claims relating to pastor’s appointment and discharge as fundamentally connected to issue of church doctrine and governance, but allowing resolution of sexual harassment claim as resolvable by neutral standards), review denied (Minn. Aug. 29, 1991). We note that Odenthal has not asserted a claim for negligent hiring. MCSDA contends that scripture governs discipline within the church, and that if a minister trespasses but repents, scripture requires forgiveness. It notes that courts have been cautioned against “making sensitive judgments about the propriety of the Church Defendants’ supervision in light of their religious beliefs.” Schmidt v. Bishop, 779 F.Supp. 321, 332 (S.D.N.Y.1991).

Minnesota has long recognized that an employer has the “duty to refrain from retaining employees with known dangerous proclivities.” Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn.App.1993) (citation omitted), review denied (Minn. Apr. 20, 1993). Thus, the employer may be hable for negligent retention when

during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.

Id. at 423-24 (citation omitted).

We are not addressing the issue of negligent retention as it relates to Ride-out’s duties as a pastor. Instead, the question relates to whether MCSDA negligently retained Rideout without further investigation after it became aware or should have been aware of his claimed negligent secular counseling.

Odenthal has set forth facts showing that MCSDA knew or should have known of problems with Rideout indicating his unfitness for secular counseling, but failed to investigate or otherwise taken action. These include a 1995 letter in Rideout’s personnel file referring to a “false accusation” regarding claims of sexual impropriety against Rideout at an earlier church, three anonymous letters in April 1999 sent to MCSDA’s president expressing specific concerns about the relationship between Rideout and Diane and an expression of similar concerns by Odenthal’s mother. Although Carlson confronted Rideout with one of the anonymous letters in May 1999, Rideout denied any impropriety, referring only to his special friendship with Diane.

No further action was taken until a meeting in late September 1999, prompted by a call from Rideout’s wife, at which church elders expressed their concerns. Carlson learned that at least ten people had meetings with Rideout to confront him about his inappropriate relationship with Diane. It was only after this meeting that Carlson suggested Rideout resign, and he did so. By applying the tort standard to these facts, the court may use a neutral standard to resolve the claim; no reference to church doctrine is necessary.

Odenthal also asserted a claim for negligent supervision and training. Negligent supervision is derived from the respondeat superior doctrine, which relies on connection of the wrongful act to the employer’s premises or chattels. Yunker, 496 N.W.2d at 422. To prevail, the plaintiff must show “that the employee’s conduct was foreseeable and that the employer faded to exercise ordinary care when supervising the employee.” Oslin v. State, 543 N.W.2d 408, 415 (Minn.App.1996) (citation omitted), review denied (Minn. Apr. 1, 1996).

The district court relied on the minister’s handbook to provide the standards for assessing the claims. Because use of the handbook “poses a serious risk of religious entanglement for a court attempting to discern its limits,” the supreme court prohibited reliance on it. Odenthal, 649 N.W.2d at 436. Again, we must focus on negligent supervision not as to Rideout’s pastoral counseling, which could pose the risk of religious entanglement, but as to the negligent secular counseling claim. Just as the negligent counseling claim against Rideout may be assessed by the neutral standards of the statute governing unlicensed mental health practitioners, so too can the neutral standard of care for supervising unlicensed mental health practitioners be used to address the claims against MCSDA. Consequently, the district court has subject-matter jurisdiction to address this claim.

“[T]he state constitution protects the right to free exercise of religion and prohibits the establishment of religion * * ⅝.” Id. at 442 (citing Minn. Const, art. I, § 16). It provides greater protection to the exercise of religious liberty than the federal constitution. Id. In considering whether the Minnesota Constitution bars adjudication of a claim, the following factors will be considered:

[W]hether (1) the objector’s belief is sincerely held; (2) the state action burdens the exercise of religious belief; (3) the state’s interest is overriding or compelling; and (4) the state action uses the least restrictive means.

Id. (citation omitted).

Applying these factors as the supreme court did in Odenthal, we hold that there is no showing the claims are barred by the Minnesota Constitution. First, we conclude, as the supreme court did, that “for the purpose of the analysis we recognize the presence of a sincerely held religious belief.” Id. Second, Rideout’s challenged conduct was secular, so this action will not unduly burden the exercise of religious belief. Id. Third, “[g]iven the frequently vulnerable nature of those receiving mental health services, the state’s interest in their safety and well-being is compelling.” Id. at 443 (footnote omitted). Finally, the state regulates only secular conduct and does not regulate the provision of spiritual advice or guidance by clergy members. Id. Subjecting MCSDA to Odenthal’s negligent employment claims does not violate the state constitutional protections.

3. “Under the ‘well-established principle’ of respondeat superior, ‘an employer is vicariously liable for the torts of an employee committed within the scope of employment.’ ” Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn.1999) (citation omitted). This is not based on the employer’s fault; instead, courts have determined as a matter of public policy that “liability for acts committed within the scope of employment should be allocated to the employer as a cost of engaging in that business.” Id. (citation omitted).

The test for determining if the negligent conduct occurred within the scope of employment is

whether (1) the conduct was to some degree in furtherance of the employer’s interests, (2) the employee was authorized to perform the type of conduct, (3) the conduct occurred substantially within authorized time and space restrictions, and (4) the employer should reasonably have foreseen the conduct.

Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 745 (Minn.App.2000) (citation omitted), review denied (Minn. Oct. 17, 2000).

MCSDA contends that because the negligent secular counseling claim is based on Odenthal’s argument that Ride-out was not acting within the scope of his duties as a minister, it cannot be held vicariously liable. See, e.g., Dausch v. Rykse, 52 F.3d 1425, 1428 (7th Cir.1994) (rejecting vicarious liability claims because alleged acts of sexual misconduct were outside scope of employment). But as Oden-thal points out, the issue presented here is not a resolution of the merits, but whether the issue can be decided by neutral application of law. Odenthal, 649 N.W.2d at 441. Resolution of this claim does not require excessive entanglement with religious doctrine. It may be resolved by application of the facts to the test set out in Snilsberg, 614 N.W.2d at 745.

DECISION

The district court’s denial of summary judgment on Odenthal’s claims against MCSDA for negligent retention and supervision and vicarious liability is affirmed.

Affirmed and remanded.

      . At oral argument, the attorney for Odenthal stated that no claim is being raised for negligent training.


source: Caselaw Access Project

author: HUDSON, Judge.

license: Public Domain

text:
    In the Matter of the Child of P.T. and A.T., Parents.
    No. C5-02-1508.
    Court of Appeals of Minnesota.
    March 4, 2003.

      Ruth Ann Webster, Gislason & Hunter, LLP, New Ulm, for appellant parents.
    Mike Hatch, Attorney General, St. Paul; and Rachel Cornelius Androli, Jason L. Moran, Special Assistant Nicollet County Attorneys, Le Center, for respondent state.
    Michelle M. Zehnder Fischer, Mackenzie & Gustafson, Ltd., St. Peter, for guardian ad litem Sharia Boyer.
    Considered and decided by KALITOWSKI, Presiding Judge, HUDSON, Judge, and PORITSKY, Judge.

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

   OPINION

HUDSON, Judge.

Appellants’ parental rights to their first four children were involuntarily terminated. Appellants now challenge the involuntary termination of their parental rights to their fifth child, M.T. Minn.Stat. § 260C.301, subd. 1(b)(4) (2002), creates a presumption of palpable unfitness to be a party to the parent-and-child relationship where parental rights to another child have been previously involuntarily terminated. In these circumstances, there is no requirement that reasonable efforts be made to rehabilitate and reunify the parents prior to a termination of parental rights. Minn.Stat. § 260C.001, subd. 3 (2002). Appellants argue that the statutory presumption of palpable unfitness in section 260C.301, subdivision 1(b)(4), unconstitutionally eliminates judicial review of an agency’s reasonable efforts at rehabilitation and reunification, and violates appellants’ due process and equal protection rights. Appellants also argue that the record does not support by clear and convincing evidence that appellants are palpably unfit to parent. We affirm.

FACTS

Appellants P.T. and A.T. are the parents of five children. The parental rights to their first four children, ages six, five, three, and two, were involuntarily terminated following a June 6, 2001, jury trial in LaCrosse, Wisconsin. On July 16, 2001, Nicollet County Social Services (NCSS) learned from LaCrosse County Social Services (LCSS) that A.T. was pregnant with the couple’s fifth child, and was believed to be living in Nicollet County. LCSS was concerned about the unborn child due to appellants’ neglect of their first four children. Gayle Robinson (Robinson), a child protection specialist for Nicollet County, was assigned to the case, and subsequently learned that A.T. was living with her parents in St. Peter, Minnesota. Robinson later learned that A.T. gave birth to M.T. on July 17, 2001, in Waconia, Minnesota.

From July 17, to August 14, 2001, Robinson worked to gather information regarding appellants’ current situation. According to Robinson, appellants were very hostile and difficult to work with. In addition, Robinson had difficulty with P.T.’s mother, J.W., who was similarly hostile and uncooperative. On August 15, 2001, Robinson requested that the Nicollet County Attorney’s Office file a child in need of protection or services (CHIPS) petition on behalf of M.T. because Robinson believed that M.T. would suffer the same neglect as M.T.’s four siblings. Robinson based her belief on the fact that appellants did not seem willing to accept responsibility for their neglect of their other four children and seemed unrealistic in their plans for parenting M.T. NCSS filed a CHIPS petition on August 28, 2001, and sought immediate custody of M.T. At the CHIPS hearing on August 29, 2001, the district court denied NCSS’ request for immediate custody, ordering that M.T. remain in the custody of appellants and continue to reside with A.T. at her parents’ home. The district court also ordered that appellants’ custody of M.T. be conditioned upon their cooperation with NCSS and guardian ad litem Sharia Boyer (Boyer). The court also appointed counsel from the public defender’s office to represent appellants.

A pretrial hearing was scheduled for September 17, 2001. But prior to the hearing, NCSS and the guardian ad litem informed the district court that on September 10, 2001, A.T. contacted NCSS and voluntarily placed M.T. in foster care. A.T. expressed concern for M.T.’s safety because P.T. and P.T.’s mother had threatened to take M.T. away from her. A.T. also stated that she and P.T. continually argued. According to Robinson, A.T. felt sad and guilty because of the termination of parental rights of her other children and wished to immediately be relieved of her responsibility for M.T. NCSS accommodated A.T.’s request and arranged for A.T. to sign a voluntary placement agreement with NCSS for sixty days of foster care placement. The agreement stated that the agency agreed to develop a written out-of-home placement plan within 80 days. NCSS also told A.T. that the agency would arrange for visitations between M.T. and appellants during the time M.T. was in the agency’s care to preserve the parent-child relationships.

The next day, A.T. again contacted NCSS. This time A.T. requested information about placing M.T. in protective custody because, according to A.T., P.T. and his mother had continued to threaten her. On September 12, 2001, A.T. contacted NCSS with second thoughts about voluntarily placing M.T. in foster care. A.T. said her friends had pressured her to get M.T. out of foster care, and that her parents were upset with her for placing M.T. in foster care. A.T. said that she would contact NCSS about her final decision concerning M.T.’s voluntary placement. A.T. never contacted NCSS.

On September 13, 2001, NCSS requested that the St. Peter Police Department place a 72-hour hold on M.T. for her safety. Robinson attempted to contact A.T. between September 12, and September 14, 2001, but was unable to locate her. In addition, Boyer informed the district court that she believed it was in M.T.’s best interest to remain in foster care. During this period, NCSS made no further attempts at rehabilitation or reunification of M.T. and appellants.

The district court held a hearing on the 72-hour hold on September 17, 2001 and found that M.T.’s health, safety, or welfare would be immediately endangered if M.T. were released to the care of appellants. The district court ordered that M.T. be placed in the temporary legal and physical custody of NCSS. The district court also ordered that appellants each undergo individual parenting and psychological assessments, and were allowed supervised visitation with M.T., to be arranged through NCSS. Visitation was scheduled for two hours, once a week. The district court continued the November 21, 2001, CHIPS petition trial, pending the results of the parenting assessments.

NCSS received the results of the parenting assessments in the form of parental capacity evaluations completed by Counseling Services of Southern , Minnesota, Inc. Appellants were interviewed extensively and underwent a battery of psychological testing. In addition, reports from Wisconsin child protection services were received and reviewed. Both evaluations recommended that appellants’ parental rights be terminated. Specifically, with regard to A.T., the report found that A.T.’s dependent personality disorder prevents her from parenting properly. A.T. does not remember being nurtured, and she does not know how to be nurturing. A.T.’s personality disorder consists of deeply engrained behaviors and a highly inflexible pattern of functioning, likely resulting in a poor outcome with respect to treatment. Furthermore, A.T. does not know how to meet her own basic needs, 'much less those of M.T. Because of her personality disorder, A.T. relies exclusively on P.T. to care for her and help her with decision-making. The report also found that, despite past rehabilitative efforts, A.T. had failed to create a safe environment for M.T. The report concluded that it was highly likely that M.T.’s psychological, emotional, and physical well-being would be negatively impacted if M.T. were returned to appellants.

Similarly, the report cdncluded that, despite a variety of rehabilitative efforts, P.T. had failed in creating a safe environment for M.T. In addition, the report concluded that “P.T. lacks the parenting skills necessary to care for a young child.” Furthermore, P.T. is diagnosed with an antisocial personality disorder 'and fails to conform to social norms, consistently acts in an irresponsible manner, lacks remorse for his actions, and fails to plan ahead. With regard to P.T.’s interaction with M.T., the report found that P.T. was not responsive to M.T.’s emotional needs, and he appeared to have significant deficits involving stimulation of M.T.’s needs, engaging her, or becoming attuned to her. Moreover, P.T.’s high level of defensiveness prevents him from adapting his behavior to different circumstances and indicates that he is likely unamenable to treatment.

On December 18, 2001, in response to the parental capacity evaluations, NCSS dismissed the CHIPS petition and filed a petition for termination of parental rights (TPR). The district court held the TPR trial on July 3, 2002. Brenda Todd-Bense (Todd-Bense), of Counseling Services of Southern Minnesota, Inc., testified as to the parental capacity report findings, and reiterated her conclusion that appellants’ parental rights should be terminated. Steve Solberg (Solberg) of NCSS, testified as to difficulties in supervised visitation between appellants and M.T. Solberg said that appellants claimed they were unable to make visitation because of their lack of transportation. But Solberg noted that appellants were able to meet their other transportation needs, including trips to Wisconsin, without any apparent problems. Solberg also testified that, during supervised visitation, appellants had little physical contact with M.T. In addition, Boyer récommended the termination of appellants’ parental rights, adopting the results of the parental capacity evaluations. Appellants did not testify or present any witnesses, relying instead on cross-examination of the state’s witnesses. Following the TPR proceedings, the trial court con-eluded that appellants were palpably unfit to parent M.T. and terminated appellants’ parental rights. This appeal followed.

ISSUES

I. Does the statutory presumption of palpable unfitness in Minn.Stat. § 260C.301, subd. 1(b)(4) (2002), unconstitutionally eliminate judicial review of an agency’s reasonable efforts at rehabilitation and reunification?

II. Does the statutory presumption of palpable unfitness in Minn.Stat. § 260C.301, subd. 1(b)(4) (2002), violate due process and equal protection rights?

III. Does the record support by clear and convincing evidence that appellants are palpably unfit to parent M.T.?

ANALYSIS

“In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law.” In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (citation omitted). Accordingly, we are not bound by the district court’s legal conclusions. Id. “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). Appellants shoulder the burden of establishing beyond a reasonable doubt that the statute violates a claimed right. In re Conservatorship of Foster, 647 N.W.2d 81, 85 (Minn.1996).

I

Appellants argue that Minn.Stat. § 260C.301, subd. 1(b)(4) (2002), is unconstitutional because the statutory presumption of palpable unfitness eliminates judicial review of an agency’s reasonable efforts at rehabilitation and reunification and denies them the opportunity to prove that they can parent their child. We believe that the issue, more succinctly stated, is whether Minn.Stat. § 260C.001, subd. 3 (2002), eliminating the reasonable efforts requirement in cases involving pri- or involuntary termination of parental rights, unconstitutionally eliminates judicial review of an agency’s reasonable efforts.

Typically, the natural parent is presumed fit and suitable to care for his or her child, and we presume that the child’s best interests entail remaining in that parent’s care. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn.1980). Moreover, the Minnesota Supreme Court has long recognized the substantial and fundamental rights of parents to enjoy the custody and companionship of their children and that a parent should not be deprived of these rights “except for grave and weighty reasons.” In re Welfare of Rosenbloom, 266 N.W.2d 888, 889 (Minn.1978) (citations omitted).

But parental rights are not absolute and should not be

unduly exalted and enforced to the detriment of the child’s welfare and happiness. The right of parentage is in the nature of a trust and is subject to parents’ correlative duty to protect and care for the child.

In re Adoption of Anderson, 235 Minn. 192, 200, 50 N.W.2d 278, 284 (1951). Moreover, in any proceeding to terminate parental rights, the best interests of the child must be the paramount consideration. Minn.Stat. § 260C.301, subd. 7 (2002).

Generally, each CHIPS intervention requires a case plan that reflects the reasonable efforts of a social services agency to facilitate reunification of parent and child. Minn.Stat. § 260.012 (2002) (outlining reasonable efforts for rehabilitation and reunification); Minn.Stat. § 260C.201, subd. 6 (2002) (requiring case plans with out-of-home placements). If implementation of the case plan is not successful, a party may petition for termination of parental rights. See MinmStat. § 260C.301, subds. 1, 2 (2002) (outlining voluntary and involuntary termination of parental rights). The party petitioning for termination must prove one or more of the statutory grounds by clear and convincing evidence. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn.App.1991), review denied (Minn. July 24,1991).

In 1999, however, the Minnesota legislature substantially changed the laws governing child protection and juvenile delinquency. One such change was elimination of the “reasonable efforts” requirement under certain circumstances. Thus, the legislature amended section 260C.001 to provide, in pertinent part:

Subd. 3. Termination of parental rights. The purpose of the laws relating to termination of parental rights is to ensure that:
(1) when required and appropriate, reasonable efforts have been made by the social services agency to reunite the child with the child’s parents in a home that is safe and permanent;
* ⅜ * ⅜
Nothing in this section requires reasonable efforts to be made in circumstances where the court has determined that the child has been subjected to egregious harm or the parental rights of the parent to a sibling have been involuntarily terminated.

Id. (emphasis added). Upon a district court’s determination that a person’s parental rights to another child previously have been terminated involuntarily, reasonable efforts for rehabilitation and reunification are not required. Id.; Minn.Stat. § 260.012(a)(1)(h) (2002). Further, a presumption of palpable unfitness attaches upon demonstration of involuntary termination of one’s parental rights to one or more other children. MinmStat. § 260C.301, subd. 1(b)(4).

Accordingly, having had their parental rights to their first four children terminated, appellants are presumed to be palpably unfit to parent M.T. See Minn.Stat. § 260C.301, subd. 1(b)(4).

Appellants argue that by eliminating the requirement of rehabilitation and reunification efforts in these circumstances, the 1999 legislation unconstitutionally ended the court’s supervision of agency decisions. Appellants rely on In re Welfare of S.Z., 547 N.W.2d 886 (Minn.1996), for the proposition that judicial review of an agency’s reasonable efforts at rehabilitation and reunification is mandatory, and constitutionally required in every termination of parental rights case. In S.Z., the supreme court held:

We conclude that when parental rights are terminated because the parent is palpably unfit to be a party to the parent and child relationship, the Act requires that the court make the determination of whether reasonable efforts have been made to rehabilitate the parent and to reunite the family, even if that determination is that provision of services for the purpose of rehabilitation is not realistic under the circumstances.

Id. at 892 (emphasis added).

Appellants’ reliance on this case is misplaced. The court’s language is very clear: the Act (Juvenile Court Act) requires judicial review of an agency’s reasonable efforts. Id. In other words, the right to mandatory judicial review of an agency’s reasonable efforts at reunification was legislatively imposed by the Juvenile Court Act; not the Minnesota Constitution. Id. Appellants cannot enhance a legislative dictate into a constitutional guarantee. Nor is a constitutional right to judicial review of an agency’s reasonable efforts found in In re Welfare of L.A.F., 554 N.W.2d 393 (Minn.1996), the second case relied on by appellants. In L.A.F., the supreme court simply clarified that its earlier decision in S.Z. did not require involvement by a social service agency to prevent termination of parental rights in every case. Id. at 397. Both S.Z. and L.A.F. make clear that, in some circumstances, reasonable efforts may be futile, and it is properly left to the legislature to determine when reasonable efforts are required prior to termination of parental rights. And indeed, in 1999 the legislature amended the Juvenile Court Act to eliminate the need for reasonable efforts in a limited number of circumstances where the legislature determined that such efforts would be futile. One such circumstance is where a parent’s rights to a previous child were involuntarily terminated.

Conspicuously absent from appellants’ brief is a citation to the provision in the Minnesota Constitution that guarantees the right to judicial review of an agency’s reasonable efforts in a parental termination case. “The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.” Haggerty, 448 N.W.2d at 364 (citation omitted). Appellants have failed to meet their burden.

A review of the record in this case lends support for the legislature’s determination that reasonable efforts are not required when there has been a prior involuntary termination of parental rights. Here, appellants were hostile, uncooperative, and resisted NCSS’s efforts to help them. Furthermore, the record amply demonstrates that reasonable efforts had been exhausted in Wisconsin to prevent removal of the appellants’ other children. LCSS established specific conditions for appellants to satisfy in order to have their children returned to the home. LCSS offered numerous services to appellants, including psychological evaluations, assignment of a family support worker, parental education, parental skills training, and supervised visitation. Several family support workers would not or could not work with appellants because P.T. threatened the workers and their families. Parenting skills training had little impact on appellants’ behavior or the “adolescent lifestyle” they presented. Supervised visitation was difficult and both appellants acted inappropriately. Appellants consistently failed to interact with the children and showed no interest in safety issues, causing a parental aide to intervene on several occasions.

In addition, the record indicates that the living arrangement “seriously endangered the physical health of the children.” Indeed, local authorities condemned the house after the children’s removal from the home. Inspection of the home revealed a number of alarming circumstances: dog feces on the floor; many dangerous items within reach of the children throughout the house; the children’s mattresses were on the floor; and mice ran around the home and on their mattresses. The youngest child was very malnourished, and two of the children were diagnosed with mild hypotonia (low muscle tone) and chronic static encephalopathy (a brain disorder). Two of the children suffer from post-traumatic stress disorder (PTSD). The four children were never returned to the home. Significantly, Minnesota’s involvement with the appellants began less than two months from the Wisconsin jury’s finding that the children’s best interest entailed termination of appellants’ parental rights, and within days of the Wisconsin court’s determination that appellants were unfit to parent their other four children.

Because we conclude that the Minnesota Constitution does not guarantee a right to judicial review of a social service agency’s reasonable efforts at rehabilitation and reunification in parental termination cases, elimination of the reasonable efforts requirement in section 260C.001, subdivision 3, involving cases where there has been a prior involuntary termination, does not violate the Minnesota Constitution.

II

Appellants next argue that the statutory presumption of palpable unfitness in Minn. Stat. § 260C.301, subd. 1(b)(4) (2002), deprives them of their constitutional right to substantive and procedural due process under both the United States Constitution and the Minnesota Constitution. We disagree.

The due process clause provides that the state may not deprive a person of life, liberty, or property without due process of law. R.B. v.C.S., 536 N.W.2d 634, 638 (Minn.App.1995). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time in a meaningful manner.’ ” Brooks v. Comm’r of Pub. Safety, 584 N.W.2d 15, 19 (Minn. App.1998), review denied (Minn. Nov. 24, 1998) (quotation omitted).

Procedural Due Process

Appellants claim that several actions taken by NCSS improperly deprived them of procedural due process. Appellants first allege that NCSS misled A.T. with a promise of rehabilitation and reunification services as a way to obtain custody of M.T. The record does not support appellants’ claim. On September 10, 2001, A.T. executed a voluntary out-of-home placement agreement (“the agreement”), placing M.T. in foster care from September 10, 2001, to November 9, 2001. Paragraph 3 of the agreement provides that the agency will develop a written out-of-home placement plan within 30 days. Paragraph 7 of the agreement provides that the agency will “[r]eturn the child to the parent * * * as soon as possible and no later than 24 hours after receipt of a written and dated request from the parent * * * unless * * * because of child protection concerns, this agency secures legal authority to continue placement outside the home * * *.” Although appellants ascribe bad faith to NCSS’s failure to develop a placement plan before seeking custody of M.T., A.T. did not relinquish custody of M.T. merely by signing ■ the out-of-home placement agreement. The record shows that NCSS only placed a 72-hour hold on M.T. when, after telling NCSS that she would notify them of her final decision concerning M.T.’s voluntary placement, A.T. did not contact NCSS again. Oh September 17, 2001, the district court held a hearing concerning the 72-hour hold. At this hearing, the district court found that M.T.’s “health, safety, or welfare would be immediately endangered” if she was released to appellants. Accordingly, the district court transferred custody of M.T. to NCSS. Significantly, appellants had the opportunity at this hearing to raise any challenges to the 72-hour hold or to otherwise voice concerns about how NCSS was handling their case.

Similarly, appellants maintain that NCSS manipulated the CHIPS process to separate M.T. from appellants in order to better its position in a subsequent termination of parental rights action. The due process implications of this claim are ill-defined; but in any event, the record demonstrates that appellants had ample opportunity to voice their concerns in a timely and meaningful manner. Once NCSS had custody of M.T., the district court ordered parental capacity evaluations and visitation. The parental capacity evaluations recommended that appellants’ parental rights be terminated, and it was only after NCSS received the results of these evaluations that it dismissed the CHIPS petition and filed the TPR petition.

Moreover, NCSS could have immediately proceeded with a TPR petition, bypassing the CHIPS petition altogether. Minnesota law requires that the county attorney file a TPR petition within 30 days of the social services agency’s determination that the parent previously and involuntarily lost parental rights to another child. Minn.Stat. § 260C.301, subd. 3(a) (2002). Therefore, NCSS was not required to file a CHIPS petition before filing a petition to involuntarily terminate appellants’ parental rights. In any event, by virtue of the fact that NCSS first filed a CHIPS petition, appellants were provided with an additional opportunity prior to the TPR trial to establish their fitness as parents.

In addition, the TPR proceeding on July 3, 2002, provided appellants with a full hearing before an impartial decisionmaker. Appellants were present, each represented by separate counsel, and each had the opportunity to testify on his or her own behalf, and to present witnesses and refute the evidence against them. Moreover, appellants overlook the fact that the presumption is not created without the parent first being afforded these same procedural protections in a previous proceeding — in this case — appellants’ TPR trial in Wisconsin. During the Wisconsin TPR trial, appellants had the opportunity to present evidence, were represented by counsel, and put the state to its burden of demonstrating clear and convincing evidence of appellants’ parental unfitness. Following the trial, the Wisconsin court found that reasonable efforts had been made to prevent the removal of the children from the home. Nevertheless, the Wisconsin trial court found that A.T. and P.T. were unfit to parent the children. Moreover, appellants exercised their right to appeal the jury verdict and the district court findings. The Wisconsin Court of Appeals affirmed all four terminations in an unpublished opinion and the Wisconsin Supreme Court denied further review of the case. In Re Termination of Parental Rights to Preston T., 251 Wis.2d 483, 640 N.W.2d 566 (Ct.App.2002) (table), review denied sub nom. La Crosse County Dep’t Human Serv., 252 Wis.2d 152, 644 N.W.2d 688 (2002).

The due process standard in parental-termination proceedings embodies the notion of fundamental fairness. In re Welfare of J.W., 391 N.W.2d 791, 794 (Minn.1986) (holding refusal to allow parents in TPR proceeding to cross-examine opposing witnesses or present witnesses on own behalf not abuse of discretion or denial of due process). Fundamental fairness guarantees a parent facing termination proceedings a right to a meaningful adversarial hearing. See In re Welfare L.J.B., 356 N.W.2d 394, 397 (MinmApp. 1984). Because appellants were afforded a meaningful adversarial hearing, we conclude that the statutory presumption of palpable unfitness set forth in section 260C.301, subdivision 1(b)(4), does not deny procedural due process to a parent facing termination of parental rights.

Substantive Due Process

Appellants also contend that the statutory presumption of palpable unfitness in section 260C.301, subdivision 1(b)(4), is unconstitutional because it denies a parent facing termination of parental rights the opportunity to raise his or her own children. Appellants have not fully briefed this argument, and therefore we need not decide this issue. See State, Dep’t of Labor & Indus., 558 N.W.2d at 480 (holding court declines to reach issue in absence of adequate briefing). But in any case, the statutory presumption in section 260C.301, subdivision 1(b)(4), does not violate substantive due process.

There is a recognized substantive due process right to freedom from governmental interference in childrearing decisions. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (striking down zoning ordinance prohibiting grandmother from raising two grandsons of different parentage); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (allowing Amish to withdraw children from public school after completing eighth grade); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (striking down law prohibiting teaching foreign languages to schoolchildren). Parents have a fundamental interest in childrearing and in childbearing decisions. LaChapelle v. Mitten, 607 N.W.2d 151, 163 (Minn.App. 2000), review denied (Minn. May 16, 2000), cert, denied sub nom. Mitten v. LaCha-pelle, 531 U.S. 1011» 121 S.Ct. 565, 148 L.Ed.2d 485 (2000). Parents have a fundamental right to the custody and companionship of their children. In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn.1981). In general, deprivation of this fundamental right, like most other fundamental rights, is subject to strict judicial scrutiny, meaning that the state bears the burden of proving that such deprivation is narrowly tailored to a compelling state interest. State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 796 (Minn.1999), cert, denied sub nom. Morrow v. Hvass, 528 U.S. 1013, 120 S.Ct. 517,' 145 L.Ed.2d 400 (1999).

Here, the state’s compelling interest is shielding children from parental abuse. R.S. v. State, 459 N.W.2d 680, 689 (Minn.1990). A parent who has had his or her parental rights involuntarily terminated has been adjudicated as posing a threat to the child now and into the future. See S.Z., 547 N.W.2d at 893. Generally speaking, the best evidence of how a parent will treat one child is how a parent has treated other children. Id. Consistent with strict scrutiny, the state may, as parens patriae, invoke its power to protect children “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” Yoder, 406 U.S. at 233-34, 92 S.Ct. at 1542. Applying these standards, we hold that the statutory presumption furthers the compelling state interest of protecting children, such as M.T., from parents who have previously been found to be abusive to, or neglectful of, their children. Thus, the first prong of the strict scrutiny analysis is satisfied.

Furthermore, the statute is narrowly tailored to meet the state’s compelling interest in protecting children from abuse, meeting the second prong of the strict scrutiny analysis. The statutory presumption of palpable unfitness applies only to parents who previously have had their parental rights involuntarily terminated. Unlike parents who voluntarily terminate their- parental rights, parents who have had their parental rights involuntarily terminated have been adjudicated to pose a continuing threat to the safety of their children. Therefore, the presumption only reaches people who have already demonstrated the potential to abuse or neglect their- children.

We conclude that, because section 260C.301, subdivision 1(b)(4), is narrowly tailored to meet a compelling state interest, the statutory presumption of palpable unfitness does not violate substantive due process rights.

Equal Protection

Similarly, appellants contend that the statutory presumption of palpable unfitness in section 260C.801, subdivision 1(b)(4), violates equal protection by treating parents faced with a termination petition who challenge the petition and lose, differently from parents faced with a termination petition who, rather than challenge the petition and risk having the presumption attach, voluntarily terminate them parental rights. We disagree.

Equal protection requires that persons similarly situated be treated similarly, unless a distinction serves a legitimate governmental interest. Lidberg v. Steffen, 514 N.W.2d 779, 784 (Minn.1994) (citation omitted); LaChapelle, 607 N.W.2d at 165. Despite appellants’ claim, parents who voluntarily terminate their parental rights are not situated similarly to those who have their rights terminated involuntarily.

While in both cases parental rights have been terminated, a parent who has had his or her parental rights involuntarily terminated has been adjudicated as failing to adequately provide for the child’s health and safety; while a parent who has voluntarily terminated his or her parental rights has not been so adjudicated. See In re Welfare of J.D.N., 504 N.W.2d 54, 56 (Minn.App.1993) (circumstances that justify involuntary termination do not necessarily justify voluntary termination). The Equal Protection Clause does not require the state “to treat things that are different in fact or opinion as though they were the same in law.” State v. Behl, 564 N.W.2d 560, 568 (Minn.1997). A state is not prevented by the equal protection clause from according two parents different legal rights, where one parent has been adjudicated as failing to shoulder the responsibilities for the child’s “daily supervision, education, protection, or care.” See R.B., 536 N.W.2d at 638 (quotation omitted).

There is a legitimate governmental interest in creating a presumption that a parent whose parental rights have been involuntarily terminated is an unfit parent. As previously stated, the state has a compelling interest in protecting children from abuse and neglect. R.S., 459 N.W.2d at 689. The paramount consideration in the child protection provisions of the Juvenile Court Act is the protection of children. Once a parent has been adjudicated unfit, the court has determined that it is likely the parent will continue to be unfit into the future. See, e.g., S.Z., 547 N.W.2d at 893 (when making termination decision, court should not rely primarily on history, but “to a great extent upon the projected permanency of the parent’s inability to care for his or her child” (quotation omitted)); cf In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980) (holding termination of parental rights of 18-year-old unmarried mother was error where it did not appear that the conditions leading to the termination would be “prolonged and indeterminate”); In re Welfare of J.K., 374 N.W.2d 463, 466 (Minn.App.1985) (holding parental rights of father erroneously terminated in absence of finding that parental misconduct would continue into indefinite future), review denied (Minn. Nov. 25, 1985). The wisdom of such a presumption is painfully evident where, as here, appellants’ legal rights to several other children were involuntarily terminated by a jury’s findings just one month prior, and a court order just three days after, the birth of appellants’ fifth child.

. By contrast, parents who voluntarily terminate their parental rights are not presumed to be unfit, because there has not been an adjudication of their unfitness. Such a presumption would, among other things, negatively impact adoption since voluntary terminations are often used to facilitate adoptions. See In re Welfare of Alie, 304 Minn. 254, 257, 230 N.W.2d 574, 576 (1975) (noting voluntary TPR proceedings facilitate adoption in some circumstances). Young parents who voluntarily terminate their parental rights in order to place the child for adoption would be discouraged from doing so if they would forever be presumed unfit to parent.

Appellants note that the “classic teenage unwed mother placing her child with an adoption agency” is not the only category of parents who voluntarily terminate their parental rights. Thus, appellants invite us to recognize an additional category of parents — namely, parents facing an involuntary termination petition who voluntarily terminate their rights rather than risk losing at trial, and having the statutory presumption of palpable unfitness attach to any' future child. According to appellants, these parents face a “threat” by the agency that their refusal to voluntarily terminate will result in never being able to raise any other child. In other words, appellants argue, the statutory presumption effectively coerces “voluntary” termination. We find four faults with this argument.

First, because each case is unique and must be decided on its own facts, it is speculative as to whether a given district court will involuntarily terminate parental rights. Second, it is likewise speculative as to whether the parent will have additional children. Third, in most instances, as here, the parent will be represented by counsel who will fully apprise the parent of the available options and the resulting consequences, thus lessening any potential for coercion. Fourth, the creation of any new category of parents who would be exempt from the statutory presumption is more properly a task for the legislature.

At present, the legislature has created two categories: voluntary termination (for whatever reason), and involuntary termination. Minn.Stat. § 260C.301, subd. 1(a), (b).(l-9) (2002). For parents who voluntarily terminate their parental rights, the statutory presumption of palpable unfitness does - not attach. Should there be a subsequent termination proceeding, the parent can put the state to its burden of proof. On the other hand, parents who have had their rights involuntarily terminated have been adjudicated unfit, and the presumption of palpable unfitness follows with respect to any subsequent children. We note that the presumption does not relieve the state of meeting its burden of proving unfitness by clear and convincing evidence and parents have the opportunity to present witnesses and refute the evidence against them.

We conclude that parents who voluntarily terminate their parental rights are not similarly situated to parents whose rights have been terminated involuntarily. Accordingly, the statutory presumption of palpable unfitness in section 260C.301, subdivision 1(b)(4), does not violate equal protection.

Ill

Finally, appellants contend that, without the statutory presumption of palpable unfitness, the record does not support by clear and convincing evidence that appellants are unfit to parent. We disagree.

“When a trial court’s findings in a termination case are challenged, appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare D.D.G., 558 N.W.2d 481, 484 (Minn.1997) (citation omitted).

“Parental rights are terminated only for grave and weighty reasons.” In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn.1990) (citation omitted). The legislature has established nine criteria that support termination of parental rights. See Minn.Stat. § 260C.301, subd. 1(b)(4) (2002). While only one criterion needs to be proven to support termination, the “paramount consideration” in every termination case is the child’s best interest. Minn.Stat. § 260C.301, subd. 7 (2002).

Here, the trial court terminated appellants’ parental rights on the ground that appellants were palpably unfit to parent M.T., pursuant to section 260C.301, subdivision 1(b)(4). This statute, in relevant part, provides:

[A] parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child. It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated * * *.

Id. (emphasis added).

Boyer reported that P.T. has failed to demonstrate physical and emotional contact with M.T., while A.T. has demonstrated some physical contact, but has failed to make emotional contact. She concluded that appellants lack an understanding of their parenting deficits, and that these deficits are likely to continue into the foreseeable future. Solberg also testified to appellants’ lack of intimacy with M.T. The parental capacity evaluations concluded that A.T. does not know how to be nurturing, and that P.T. lacks the parenting skills necessary to care for a child. Additionally, P.T. has a sporadic employment history, and is unlikely to have stable employment in the foreseeable future. P.T. was also diagnosed with an antisocial personality disorder and fails to conform to social norms and is consistently irresponsible and fails to plan ahead. Similarly, A.T. is not employed, and lacks the training and prospects for stable employment. This evidence establishes that appellants are unable to address M.T.’s physical, mental, and emotional needs now and in the reasonably foreseeable future.

Even without applying the statutory presumption of palpable unfitness, the record amply supports the trial court’s conclusion that appellants are unfit to parent M.T. within the meaning of section 260C.301, subdivision 1(b)(4), and this conclusion is not clearly erroneous.

DECISION

Because judicial review of an agency’s reasonable efforts at rehabilitation and reunification in a termination of parental rights case is not a constitutionally guaranteed right, the elimination of reasonable efforts in Minn.Stat. § 260C.001, subd. 3 (2002), in cases where there has been a prior involuntary termination, does not violate the Minnesota Constitution. The statutory presumption of palpable unfitness to parent does not violate procedural or substantive due process or equal protection for three reasons: (1) Minn.Stat. § 260C.301, subd. 1(b)(4) (2002), is narrowly tailored to meet a compelling state interest; (2) appellants were provided a meaningful adversarial hearing prior to the termination of their parental rights; and (3) those subject to involuntary termination of parental rights are not similarly situated to those who voluntarily terminate parental rights. Lastly, the record amply supports the trial court’s conclusion that appellants are palpably unfit to parent M.T., and this conclusion was not clearly erroneous.

Affirmed.

      . Appellants also claim that the statutory presumption of palpable unfitness is an unconstitutional presumption. Appellants cite to State v. Kelly, 218 Minn. 247, 254, 15 N.W.2d 554, 559 (1944), which held that a statutory presumption is invalid if applied in either a civil or criminal proceeding, unless there is a logical connection between the proven fact and the presumed fact. But appellants have failed to provide any authority for why the statutory presumption in this case does not meet the above standard. Therefore, we decline to consider this argument. See State, Dep't of Labor and Indus, v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (court declines to reách an issue in the absence of adequate briefing).


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Appellant, v. Mary E. FLICEK, Respondent, Linda J. Borgen, Respondent.
    Nos. C2-02-1269, C9-02-1270.
    Court of Appeals of Minnesota.
    March 4, 2003.

      Scott County District Court, File No.2001-22650.
    Thomas J. Harbinson, Scott County Attorney, Neil Nelson, Chief Deputy Attorney, Shakopee, MN, for appellant.
    Kai Lahti, Apple Valley, MN, for respondent, Flicek.
    Christopher A. Grove, Apple Valley, MN, for respondent, Borgen.
    Considered and decided by WRIGHT, Presiding Judge, ANDERSON, Judge, and STONEBURNER, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant State of Minnesota challenges the district court’s dismissal of two grand-jury indictments against respondents. Appellant argues the district court applied the wrong rule of law in dismissing the indictments, that respondents improperly challenged probable cause, and that the district court erred by concluding that the evidence submitted to the grand jury was insufficient to establish probable cause for the offenses. Because we conclude that respondents correctly challenged probable cause, the district court properly applied the law, and the district court did not err by concluding that the evidence was insufficient to establish probable cause on the charged offenses, we affirm.

FACTS

Respondent Mary Flicek (Flicek) was the part-time clerk-treasurer for the city of Elko for more than 23 years. Flicek prepared and presented to the city council each year a list that included, among other things, the names of city residents with delinquent utility accounts and the amount owed by each. Under Elko City Ordinance 11, the preparation of the list was permissive rather than mandatory.

From this list, the city then certified the delinquent accounts of its residents to the county auditor pursuant to MinmStat. § 444.075, subd. 3 (2002). The effect of certification was to make collection of the delinquent accounts easier for the city because the delinquent account became an assessment payable with a homeowner’s property taxes.

Beginning at latest in 1990, Flicek and her husband’s home utility account became delinquent. Flicek omitted her delinquent utility account from the lists she prepared and presented to the city council. When this was discovered, the delinquent balance on Flicek’s account at the end of 1999 totaled $9,849.26.

Respondent Linda Borgen (Borgen) was elected to the Elko City Council in 1995. Flicek and Borgen had been neighbors and friends for approximately 25 years. From 1990 through 1999, Borgen and her husband failed to pay utility bills on their home totaling $3,164.68 and Flicek omitted their names from the lists of delinquent accounts. From 1995 through 1999, Borgen was present at city council meetings during which the delinquent-utility-account resolutions were submitted by Flicek and passed by the council but took no action to add her name to the delinquent accounts list. Consequently, neither Flicek nor Borgen’s utility account was certified to the county auditor and amounts owed by both were not added to their property-tax obligation.

In the summer of 2000, an audit of the city of Elko revealed Flicek and Borgen’s delinquent utility accounts. The audit was sent to Flicek in June 2000, and it was discussed at a special city-council meeting on June 27, 2000. At this meeting, Flicek told the council that the impending audit report would question the city’s collection procedure of delinquent utility accounts. At this time, Flicek and Borgen also disclosed to the council that their accounts were delinquent.

Borgen made sporadic payments on her account from November 1998 through December 1999, but did not bring her account current before the audit. Few, if any, payments were made on Flicek’s delinquent balance from 1990 to 1998. Shortly before the audit report was publicly released, both Flicek and Borgen made small payments toward their delinquent accounts. As of July 1, 2000, Flicek still had a delinquent utility account balance of $9,712.18 and Borgen had a delinquent account balance of $2,911.56. By September 5, 2000, Borgen’s delinquent account balance had been paid in full. By October 23, 2000, Flicek had also paid the full delinquent amount that she owed the city.

At a July 5, 2000 meeting, the city council suspended Flicek with pay and she ultimately resigned as a city employee. No disciplinary action was taken by the city council against Borgen.

On November 19, 2001, a grand jury returned an indictment alleging that Fli-cek and Borgen committed felony theft by swindle in violation of Minn.Stat. § 609.52, subds. 2(4), 2(5)(i), 3(2) (2000), and misconduct of a public official or employee in violation of MinmStat. §§ 609.43, subd. 4 (2000), and 609.05 (2000).

After the omnibus hearing, the district court dismissed the grand-jury’s indictments against Flicek and Borgen. The state appeals the district court’s dismissal of the grand-jury indictments under Minn. R.Crim. P. 28.04, subd. 1 (appeal of a pretrial order). On August 14, 2002, this court consolidated the two appeals for briefing, oral argument, and decision. State v. Flicek and Borgen, Nos. C2-02-1269, C9-02-1270 (MinnApp. Aug.14, 2002) (order op.). This court also denied two motions by Flicek to dismiss the state’s appeal of her case.

ISSUES

I. Did the district court err as a matter of law by applying the wrong standard to respondents’ motion to dismiss the indictment?
II. Did respondents properly challenge the grand-jury indictments?
III. Did the district court err by concluding that the state failed to present sufficient evidence to establish probable cause for the charges of theft by swindle-temporary control and misconduct by a public officer or employee?

ANALYSIS

The state appeals a district court order dismissing two indictments against respondents. A district court’s order dismissing an indictment is appealable as a matter of right. State v. Miller, 471 N.W.2d 380, 383 (Minn.App.1991).

[T]he standard of review of the dismissal of an indictment is not ‘clear and unequivocal error’ on the part of the trial court. The proper focus of inquiry is the grand jury’s determination of probable cause to believe the alleged offenses occurred, with deference to the grand jury’s factfinding role. A presumption of regularity attaches to a grand jury indictment and only in a rare case will an indictment be invalidated.

State v. Plummer, 511 N.W.2d 36, 38 (Minn.App.1994) (citations omitted).

I.

The state first argues that the district court applied a higher probable-cause standard than is required by Minnesota law. The state contends it had no duty to prove that respondents’ conduct met all the elements of a criminal statute beyond a reasonable doubt but rather that “upon all of the evidence there is probable cause to believe that an offense has been committed and that the defendant committed it.” Minn. R.Crim. P. 18.06, subd. 2.

It might appear that the district court used a more stringent standard of probable cause here because, in its memorandum, the district court concluded:

[T]he State is required to prove that defendants have violated the elements of a specific criminal statute before a conviction may be entered. Here, the State simply cannot make that case for the statutes cited in the indictments.

While this is the correct standard before a conviction may be entered, the standard for probable cause is much lower. Probable cause exists if “evidence worthy of consideration * * * brings the charge * * * within a reasonable probability.” State v. Steinbuch, 514 N.W.2d 793, 798 (Minn.1994) (quotation omitted).

Even though the district court incorrectly stated the indictment standard for both counts, the error is harmless because the district court’s findings support the dismissal of the indictments under the proper standard. Because no evidence of artifice or trick was shown, the district court held that the state had not shown probable cause for theft by swindle. Regarding the charge of misconduct by a public official or employee, the district court held that because the state provided no evidence that the information that Flicek submitted to the city council was “false in any material respect,” no crime by either defendant could have been committed.

The district court made findings of fact that led it to conclude “upon all of the evidence there [was not] probable cause to believe that an offense has been committed.” Minn. R.Crim. P. 18.06, subd. 2. Simply put, if the state cannot present any evidence supporting some elements of the crimes charged, as the district court found, probable cause does not exist. We agree that the evidence presented was insufficient to show that, to a degree of reasonable probability, an offense had been committed or that either of the respondents committed an offense. See Minn. R.Crim. P. 18.06, subd. 2; Steinbuch, 514 N.W.2d at 798.

II.

The state contends that respondents did not properly challenge the indictments on an evidentiary basis as required by Minn. R.Crim. P. 17.06, subd. 2(l)(a). The state contends that respondents argued that they were innocent of the alleged crimes, rather than claiming that the grand jury lacked admissible evidence to indict.

The state’s contention that respondents may not challenge the grand-jury indictments based on lack of probable cause is without merit. A defendant may properly challenge an indictment on the ground that the “evidence admissible before the grand jury was not sufficient * * * to establish the offense charged.” Minn. R.Crim. P. 17.06, subd. 2(l)(a). Although the rule does not expressly describe this type of argument as a probable-cause challenge, an attack on the sufficiency of the evidence “to establish the offense charged” is essentially an argument that no probable cause supports the indictments. Id. The comments to Rule 17.06 also support the district court’s ruling:

dismissal of an indictment for lack of admissible evidence showing probable cause is available because of the requirement of Rule 18.05, subd. 1 that a record be made of the evidence taken before the grand jury.

Minn. R. Crim P. 17.06 cmt. (emphasis added).

The district court did not err by hearing respondents’ probable-cause challenge to the grand-jury indictments. We hold that the district court properly considered respondents’ motion to dismiss the indictments based on lack of probable cause.

III.

The state argues the district court erred by dismissing the grand-jury indictments on the grounds of lack of probable cause.

A. Minn.Stat. § 609.52, subd. 2 (2000), provides in pertinent part:

Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:
⅜ * * * * ⅜
(4) by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person;
(5) intentionally commits any of the acts listed in this subdivision but with intent to exercise temporary control only and: (i) the control exercised manifests an indifference to the rights of the owner or the restoration of the property to the owner[.]

Minn.Stat. § 609.52, subd. 2(4), (5)(i) (2000).

Whether the evidence presented by the state supported probable cause depends on the definition of “swindle.” The state cites State v. Ruffin, 280 Minn. 126, 158 N.W.2d 202 (1968), and two unreported cases in support of its contention that swindle is to be interpreted broadly to encompass respondents’ failure to report their delinquent accounts. In Ruffin, the Minnesota Supreme Court held that the swindling statute was designed to “reach cheats and swindlers of all kinds and descriptions” and that “[n]o single definition can cover the range of possibilities for the offense.” Ruffin, 280 Minn. 126, 130, 158 N.W.2d 202, 205. The state therefore contends that even if respondents used no fraud to obtain utility services, their actions constituted theft by swindling. Id.

We disagree. The Minnesota jury instruction definition of “swindle” states that the essence of the crime “is the cheating of another * * * by a deliberate artifice or scheme.” 10 Minnesota Practice, CRIM-JIG 16.10 (1999). Black’s Law Dictionary defines a “swindler” as “[a] person who willfully defrauds or cheats another.” Black’s Law Dictionary 1010 (7th ed.1991). In addition, the American Heritage Dictionary defines “swindle” as “1. To cheat or defraud, as of money. 2. To obtain by fraud.” American Heritage Dictionary 1372 (3rd ed.2000).

Swindling, therefore, requires a showing of affirmative fraudulent or deceitful behavior. Respondents’ failure to disclose that their utility accounts were delinquent was an omission and arguably dishonest, but it was not fraudulent. Neither Flicek nor Borgen received utility services by affirmatively misrepresenting anything and did not obtain services by deceit. There is nothing in the record before us, for example, to indicate that the city routinely disconnected water service to those homes with delinquent water-service accounts. Both Flicek and Borgen received the same utility services as other citizens, and all of their billings were accurately noted in the city ledgers. Finally, the state presented no evidence that Flicek or Borgen made false ledger entries or fraudulently indicated that they paid their utility bills when they had not.

Furthermore, case law supports the district court’s conclusion that, although respondents’ actions were reprehensible, they did not commit theft by swindle. Theft by swindle requires the intent to defraud. See State v. Saybolt, 461 N.W.2d 729, 735 (Minn.App.1990), review denied (Minn. Dec. 17, 1990) (defendant convicted of theft by swindle of more than $35,000 after he set up a foreign shell corporation to which he sold his employer’s property). Inherent in the intent requirement is that a swindler must act affirmatively to defraud another. See, e.g., State v. Matilla, 339 N.W.2d 54 (1983) (faking burglary, filing false police report, and obtaining more than $2,500 from insurer for personal property constituted theft by swindle); State v. Hodge, 266 Minn. 193, 123 N.W.2d 323 (1963) (defendant fraudulently obtaining a driver’s license and opening a checking account under a fictitious name and intentionally cashing numerous checks without sufficient funds constituted swindling).

All of the authorities addressing theft by swindle establish that the essence of a swindle is defrauding another person by an intentional misrepresentation or scheme. Here, there were no words or actions; there was only a failure to act by not reporting the delinquent accounts. Although respondents abused their positions of authority by failing to disclose them delinquencies, the facts presented to the grand jury do- not constitute probable cause for theft by swindle.

Appellant cited State v. Kramer, 441 N.W.2d 502 (Minn.App.1989) at oral argument as support for the theft-by-swindle count. Kramer simply does not apply in the present context. Kramer was “deeply involved” in affirmative misrepresentations that induced individuals to invest with his venture; here, respondents have not affirmatively acted fraudulently or deceitfully. Id. at 506.

Finally, respondents also argue that they did not commit a crime because the Minnesota Constitution precludes criminalizing the non-payment of debt. Minn. Const. Art. I, § 12; State v. Larson, 605 N.W.2d 706 (Minn.2000). Because we hold the district court properly dismissed the theft-by-swindle charge, it is not necessary to decide the issue of whether the Minnesota Constitution precludes punishment for this type of conduct.

B. The state also argues that the evidence presented to the grand jury was sufficient for a finding of probable cause for the charge of misconduct of a public officer or employee under Minnesota Statute § 609.43(4).

Minnesota Statute § 609.43(4) states:

A public officer or employee who does any of the following, for which no other sentence is specifically provided by law, may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both:
⅜ ⅜ ⅜ ⅜; ⅜ ⅜
(4) In the capacity of such officer or employee, makes a return, certificate, official report, or other like document having knowledge it is false in any material respect.

Minn.Stat. § 609.43(4) (2000).

It seems reasonably clear that both respondents were public officials and each was acting within the scope of her duties when the list of delinquent accounts at issue here was prepared. But the real debate centers around whether Flicek violated Minn.Stat. § 609.43(4) by preparing and presenting delinquency lists to the city council knowing they were materially false. Similarly, the state asserts Borgen participated in this falsehood in a material fashion by signing the lists knowing that the two delinquent accounts at issue here were not listed.

But this is not the whole story. Although Flicek did not include all delinquent accounts in the list forwarded to the city council and it is undisputed that the listed accounts were all delinquent, the state admits that Flicek was not required to list all delinquent accounts, and that she never represented that the list was all-inclusive. Additionally, there is no evidence in the record that there was even an expectation, let alone a usual and customary practice, that the city clerk make a complete list of the delinquent accounts.

Certainly a public officer or employee could submit a document that is “false in any material respect” by omission or nondisclosure, and thus violate the statute. But here, there has been no showing of anything materially false in the list, there was no expectation that the list was complete and, therefore, it was not error for the district court to dismiss the indictments on this charge.

DECISION

Flicek’s failure to report all delinquent utility accounts and Borgen’s subsequent approval of resolutions that omitted respondents’ accounts did not constitute the offenses of theft by swindle or misconduct by a public officer or employee. Although the district court may have incorrectly recited the probable-cause standard, we find no prejudicial error because the district court’s dismissal of the indictment was correct under the appropriate probable-cause standard. Respondents properly challenged probable cause in the district court. Finally, the district court did not err by dismissing the indictments for theft by swindle and misconduct of a public officer or employee. The state’s evidence did not establish probable cause that respondents committed theft by swindle because they did not affirmatively act to defraud the city or misrepresent their actions. Similarly, there was insufficient evidence to establish the elements of misconduct of a public officer or employee. Because the state could not demonstrate that the list submitted to the city council and subsequently approved was false in any material respect or that omitting certain information could serve as the basis of a misconduct charge, the court correctly dismissed the indictment.

Affirmed.

      . Elko was unable to deliver to the Office of the State Auditor (''OSA”) any city council resolutions that might have been prepared before 1991.

      . The OSA report also found: (i) the 1996 resolution was seconded by Borgen, (ii) Bor-gen's name appears as a signature on the face of the 1998 resolution when she was the act-mg mayor, and (iii) Borgen made the motion to pass the 1999 resolution.

      . The first payment listed in the ledger posted to Flicek's account appeared in April 2000 after the completion of the audit report.

      . Although respondents were also charged with violations of Minn.Stat. §§ 609.52, subd. 2(4) and 2(5)(i), the parties only addressed the swindling charge under subdivision 2(4).

      . We leave for another day when and whether omissions or silence may support a theft-by-swindle count. It is sufficient for the result here to note that the parties have not identified facts which support even a vague claim that there was an intent to defraud on the part of respondents.

      .The unpublished cases cited by appellant are also distinguishable from the present facts, and are of persuasive value "[a]t best,” and not precedential. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App.1993). First, in State v. Shadeko, the defendant made affirmative misrepresentations of his income in order to remain in public housing. No. C0-00-472, 2000 WL 1809038 (Minn.App. Dec. 12, 2000). Here, respondents did not affirmatively misrepresent anything. In contrast, the city ledger at all times indicated the true delinquent amount on respondents' accounts. Second, appellant cites the dissent in an unpublished and nonprecedential decision, State v. Rosillo, C0-00-1610, 2001 WL 881279, at *3-4 (Minn.App. Jul.31, 2001). But Rosillo, too, is not helpful to appellant. The defendant in Rosillo was convicted of both a first-degree controlled substance crime and theft by swindle after promising to deliver cocaine for a price and then not delivering it. Id. at *3. On review, this court held that the two convictions were not inconsistent because there is nothing in the requirement to make an offer to sell that is inconsistent with an intent to swindle. Id.

      . Minn. Const, art. I, § 12 provides:
      No person shall be imprisoned for debt in this state, but this shall not prevent the legislature from providing for imprisonment, or holding to bail, persons charged with fraud in contracting said debt.
      Minn. Const, art. I, § 12.

      . The state also asserts a violation of Minn. Stat. § 609.45 (Public officer; unauthorized compensation), although the complaint did not charge respondents with a violation of this statute. Because this appears to be a typographical error by appellant’s counsel, we will not address § 609.45.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Lauro Balleza MARTINEZ, Appellant.
    No. C2-02-333.
    Court of Appeals of Minnesota.
    March 4, 2003.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Roger S. Van Heel, Stearns County Attorney, St. Cloud, MN, for respondent.
    John M. Stuart, Minnesota Public Defender, Lawrence Hammerling, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge, G. BARRY ANDERSON, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Lauro Balleza Martinez challenges his conviction of first-degree controlled-substance crime in violation of Minn.Stat. § 152.021, subds. 1(1) and (3)(a) (2000). Martinez argues that the district court abused its discretion by denying his pre-trial request to impeach a police officer with an untrue statement that the officer made in the course of interrogating Martinez, even though Martinez had successfully moved to suppress his statements made during the interrogation as involuntary. Martinez also argues that he did not properly waive his right to a jury trial. Because the district court did not abuse its discretion by denying use of the untrue statement to impeach the officer, and because Martinez waived his right to a jury trial on the record, we affirm.

FACTS

Appellant Lauro Balleza Martinez was charged with a first-degree controlled-substance crime, in violation of Minn.Stat. § 152.021, subds. 1(1) and (3)(a), for selling 13 grams of cocaine in a “controlled buy.” While interrogating Martinez, a police officer misrepresented the number of controlled buys that the police had made from Martinez. The officer intentionally used the misrepresentation as a tactic to gain Martinez’s cooperation in a larger investigation.

The district court granted Martinez’s motion to suppress statements he made during the interrogation. The district court found that, although no single police statement was overly coercive, the interrogation improperly pressured Martinez by threatening incarceration or suggesting favorable treatment in exchange for cooperation.

Martinez then moved for permission to impeach the officer with his false statement and for an order barring the state from attempting to rehabilitate the officer by introducing any part of the suppressed interrogation. The district court denied the motion, concluding that the officer’s statement was probably not indicative of a general character for truthfulness and that the prejudice resulting from such use of the statement, out of context, outweighed its probative value.

Martinez agreed to submit his case to the district court on stipulated facts, under Minn. R.Crim. P. 26.01, subd. 3. The district court found Martinez guilty, and he was sentenced. This appeal followed.

ISSUES

I. Is an untrue statement used by a police officer as a tactic during an interrogation probative of the officer’s truthfulness or untruthfulness such that it could be used to impeach the officer’s credibility?

II. Did the district court abuse its discretion by determining that use of a police officer’s untrue statement to impeach his trial testimony would be overly prejudicial when the prosecution was precluded from introducing evidence of the context of the statement?

III. Did Martinez knowingly waive his right to a jury trial?

ANALYSIS

I.

District courts are afforded broad discretion in evidentiary rulings. State v. Aubid, 591 N.W.2d 472, 478 (Minn.1999). Absent a clear abuse of discretion, a district court’s evidentiary rulings will not be disturbed on appeal. State v. Bjork, 610 N.W.2d 632, 636 (Minn.2000).

A witness’s credibility may be attacked by specific instances of conduct if they are probative of the witness’s character for truthfulness or untruthfulness. Minn. R. Evid. 608(b). Martinez characterizes the officer’s untrue statement as “a legitimate piece of impeachment evidence.” But the district court noted that the officer’s untrue statement is not necessarily legitimate impeachment evidence. We agree.

Use of false statements by police officers during interrogations of suspects has been widely discussed, particularly in the context of how such deceit affects the volun-tariness of a suspect’s statement. See State v. Thaggard, 527 N.W.2d 804, 808-9 (Minn.1995) (quoting at length the Commentary to § 14.04 of the Model Code of Pre-Arraignment Procedure (1975)). The supreme court has consistently held that use of trickery and deceit as a police tactic does not necessarily make the suspect’s response involuntary. Id. at 810 (declining to adopt a per se rule of exclusion, but cautioning police that they proceed at their own risk when they use deception); State v. Moorman, 505 N.W.2d 593, 600 (Minn.1993) (holding that officer’s false statement to suspect during interrogation did not make confession involuntary where interrogating officers used no threats or intimidation, defendant had experience in criminal-justice system, and defendant was of sufficient age and intelligence to understand situation in which he found himself); State v. Williams, 535 N.W.2d 277, 287 (Minn.1995) (stating that trustworthiness of confession should not always be discounted because investigative officers might have made discursive or imprecise statements to defendant); Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (holding that police misrepresentation to suspect during interrogation did not render confession involuntary).

Despite the risk that use of deceptive statements will result in exclusion of a statement, there is no authority suggesting that use of deception as a tactic implicates an officer’s credibility under oath. We conclude that use of a deceptive statement as an interrogation technique is generally not relevant to a determination of an officer’s character for truthfulness. The district court did not abuse its discretion in this case by denying Martinez’s request to impeach the officer with the untrue statement on the basis that the statement was not probative of the officer’s truthfulness.

II.

The district court also reasoned that, even if the statement is probative of the officer’s truthfulness, admitting the officer’s statement out of context would result in unfair prejudice to the state that would outweigh any probative value. The state was precluded from introducing context evidence because involuntary statements cannot be used for any purpose at trial. Mincey v. Arizona, 437 U.S. 385, 401-2, 98 S.Ct. 2408, 2418, 57 L.Ed.2d 290 (1978); State v. Sutherlin, 396 N.W.2d 238, 243 (Minn.1986) (holding that state may not use coerced statement even for impeachment). Therefore, the district court denied Martinez the use of the untrue statement to impeach the officer’s character because its prejudicial effect outweighed its probative value.

Martinez argues that holding his use of the officer’s untrue statement “hostage” to the introduction of related suppressed statements amounts to the indirect use of the coerced statement to limit his defense, in violation of the principle that the coerced statement cannot be used for any purpose. We disagree.

When a * * * recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement . which ought in fairness to be considered contemporaneously with it.

Minn. R. Evid. 106. The district court correctly concluded that in this case, but for suppression of the interrogation, the state would be entitled to introduce context evidence to explain the officer’s use of the untrue statement. The district court did not abuse its discretion by excluding use of the statement for impeachment on the ground that admission of the officer’s statement out of context was more prejudicial than probative. See Minn. R. Evid. 403 (providing that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice).

III.

In order to submit a case to the district court for trial on stipulated facts, a defendant must waive the right to a jury trial either in writing or orally on the record. State v. Sandmoen, 390 N.W.2d 419, 424 (Minn.App.1986). The defendant must also waive other rights associated with a contested trial in writing or orally on the record. Minn. R.Crim. P. 26.01, subd. 3. Martinez was asked about each right enumerated in Minn. R.Crim. P. 26.01, subd. 3, and orally waived his right to a jury trial on the record. Martinez’s claim that he did not properly waive his rights is without merit.

DECISION

The district court did not abuse its discretion by concluding that a police officer’s false statement used as an interrogation tactic generally does not constitute conduct probative of truthfulness or untruthfulness for purposes of impeachment. The district court did not abuse its discretion by determining that prejudice resulting from Martinez’s use of an officer’s statement, when the state is precluded from offering evidence of the context of the statement, outweighed the probative value of the statement. Martinez voluntarily waived his right to a jury trial on the record.

Affirmed.