In the Matter of the Welfare of the Child of: M. H. and S. R., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1750

In the Matter of the Welfare of the Child of: M. H. and S. R., Parents

Filed March 16, 2015
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-JV-14-147

Mary F. Moriarty, Hennepin County Public Defender, Peter W. Gorman, Assistant Public
Defender, Minneapolis, Minnesota (for appellant M.H.)

Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services
and Public Health Department)

Petra E. Dieperink, Assistant County Attorney, Minneapolis, Minnesota (for respondent
S.R.)

Shirley A. Reider, Reider Law Office, St. Paul, Minnesota (for guardian ad litem Nicole
Rice)

Considered and decided by Stauber, Presiding Judge; Peterson, Judge; and

Connolly, Judge.
 UNPUBLISHED OPINION

CONNOLLY, Judge

Appellant challenges the involuntary termination of her parental rights on the

grounds that (1) the district court abused its discretion by denying her a continuance and

(2) she was deprived of her procedural-due-process rights. We affirm.

FACTS

On June 20, 2013, appellant M.H. gave birth to X.R., and on June 24, X.R. tested

positive for opiates. M.H. admitted to using drugs during her pregnancy, and on June 28,

Hennepin County Human Services filed a child-in-need-of-protection-or-services

(CHIPS) petition for X.R. and placed X.R. in the care of M.H.’s stepmother.

On September 23, 2013, the district court adjudicated X.R. CHIPS and transferred

legal custody to Hennepin County. The court instituted case plans for M.H. and S.R.,

X.R.’s presumed father.1 Meanwhile, X.R. remained with M.H.’s stepmother. He now

suffers from a host of medical conditions, including an inguinal hernia, torticollis,

plagiocephaly, and neurofibromatosis.

On January 9, 2014, Hennepin County petitioned to terminate both M.H.’s and

S.R.’s parental rights over X.R. A subsequently filed amended petition sought

termination of M.H.’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(1), (2),

(4), (5), (8) (2012). In support of the petition, Hennepin County filed four court orders

transferring custody of four children from M.H. and three court orders terminating

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S.R. is presumed to be X.R.’s father based on genetic testing.

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M.H.’s parental rights to four other children.2 In each of those cases, the courts

proceeded by default, due to M.H.’s failure to appear.

On May 27, 2014, the district court continued a pretrial and trial proceeding and

scheduled a new pretrial and trial date for August 4, and a second trial date for

September 8. As a condition for the continuance, the court required M.H. and S.R. to

meet certain conditions, including submitting to random drug testing. Both M.H. and

S.R. failed to provide the required drug tests, and the county presumed that they failed.

On August 4, 2014, M.H. arrived at the courthouse for pretrial and trial but left

prior to the proceeding. According to M.H.’s attorney, she was agitated, due to a thyroid

condition and impending surgery. S.R., who also arrived at the courthouse, left with

M.H. The county attorney moved to proceed by default, arguing that M.H. and S.R.

failed to present any documentation regarding M.H.’s medical condition, that the case

was open for almost 14 months, and that permanency considerations were paramount.

M.H.’s attorney objected to the motion, arguing that M.H.’s thyroid condition “may very

well be the reason why [she] was not able to regulate herself” and that M.H. should not

be penalized for “laboring under a medical condition” during the already stressful

termination proceeding. M.H.’s attorney moved for a continuance to the second trial

date. S.R.’s attorney supported the motion for a continuance, concurring with the belief

that M.H. was dealing with a thyroid condition and stating that S.R. left only for the

purpose of ensuring M.H.’s safety. S.R.’s attorney also noted that S.R. wanted to pursue

a voluntary termination. The guardian ad litem’s attorney supported the motion to

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M.H. has also placed a child for adoption through a private agency.

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proceed by default, arguing that the case had been previously continued and that the court

should “start working towards . . . permanency.” The district court granted the motion to

proceed by default and implicitly denied a continuance. But the court stated:

In the event that [M.H.]’s failure to regulate herself in the
courtroom and perceived instability and the fact that she left
the courtroom before trial, in the event that is due to a
medical condition [M.H.] may provide evidence to this Court
of either her sobriety today by taking a UA or the fact that a
medical explanation by a doctor that her behavior today
including her leaving is due to an immediate thyroid
condition, I will allow that evidence to be submitted to this
Court after court and we can address it at a later date.

During the default proceeding, the county attorney offered 36 exhibits into

evidence, en masse, without objection. The county attorney then examined the Hennepin

County social worker and the guardian ad litem, using numerous yes-or-no or otherwise

leading questions. Both witnesses gave opinion testimony regarding X.R.’s best

interests. No objections were made to either the form or substance of the questions asked

by the county attorney. M.H.’s attorney briefly examined the Hennepin County social

worker and the guardian ad litem, and the guardian ad litem’s attorney briefly examined

the guardian ad litem.

At the conclusion of the proceeding, the district court reiterated that M.H. and S.R.

had two weeks “to make any motion to reopen th[e] record.” M.H. submitted no

evidence of sobriety or her medical condition and made no motion to reopen the record

within the designated timeframe. In fact, M.H.’s attorney e-mailed the court indicating

that “[she] w[ould] not be submitting any medical justification for [M.H.]’s absence from

court.”

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 On September 9, 2014, the district court terminated M.H.’s and S.R.’s parental

rights over X.R. Specifically, the court terminated M.H.’s parental rights under Minn.

Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8). On September 10, M.H. moved to reopen

the default or for a new trial under Minn. R. Juv. Prot. P. 45.04(f), (h), 46.02(e). She

argued that she believed she would prevail on the merits, there was insufficient evidence

to support termination, there was insufficient evidence to support the court’s

determination that termination was in X.R.’s best interests, and the court erred by

allowing opinion testimony on X.R.’s best interests. On September 19, the court denied

M.H.’s motion.

This appeal follows.

DECISION

Denial of continuance

M.H. first argues that the district court erred by denying her a continuance. She

cites In re Welfare of Children of S.O., No. A04-0830, 2004 WL 2857672 (Minn. App.

Dec. 14, 2004), review denied (Minn. Mar. 15, 2005), for the proposition that her alleged

medical condition justified a continuance.

The court may . . . continue . . . a trial to a later date upon
written findings or oral findings made on the record that a
continuance is necessary . . . for accumulation or presentation
of evidence or witnesses, to protect the rights of a party, or
for other good cause shown, so long as the permanency time
requirements set forth in these rules are not delayed.

Minn. R. Juv. Prot. P. 39.02, subd. 2. “Whether to grant a continuance is a ruling within

the trial court’s discretion, which will not be reversed absent a showing of a clear abuse

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of that discretion.” In re Welfare of J.A.S., 488 N.W.2d 332, 335 (Minn. App. 1992)

(citing Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977)), review denied (Minn.

Oct. 20, 1992).

M.H.’s reliance on S.O. is misplaced for two reasons. First, although persuasive,

unpublished opinions of this court are not precedential. Vlahos v. R&I Const. of

Bloomington, Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004); see also Minn. Stat.

§ 480A.08, subd. 3(c) (2014) (“Unpublished opinions of the [c]ourt of [a]ppeals are not

precedential.”). Second, this case is factually distinguishable from S.O. In that case, the

“mother sought a continuance to acquire information about whether the lithium added to

her medications would stabilize her mood and allow her to complete her case plan.”

S.O., 2004 WL 2857672, at *2. This court reversed the district court’s denial of a

continuance because the mother was pursuing new evidence that she could not have

previously accumulated with diligence. Id. at *2-3. In this case, M.H.’s attorney

provided no justification for a continuance beyond the assertion that M.H. was absent due

to an alleged medical condition. M.H.’s attorney in no way suggested that a continuance

would allow for accumulation of evidence that could not have previously been obtained

with diligence.

M.H. also fails to address X.R.’s interest in permanency. Although the district

court did not discuss permanency as a reason for denying a continuance, the guardian ad

litem’s attorney and county attorney both argued that the court should proceed by default

because the case was previously continued and was open for almost 14 months and that

the court needed to move toward permanency. See J.A.S., 488 N.W.2d at 335 (noting that

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“[t]he record shows the guardian ad litem believed it would be best for the children if the

detention hearing proceeded as scheduled . . . .”).

Finally, M.H. has failed to demonstrate prejudice from the district court’s denial of

a continuance. See id. The court provided M.H. two weeks to submit a drug test

demonstrating sobriety or some type of medical evidence demonstrating that her absence

was due to her medical condition. The court explicitly stated that if M.H. submitted such

evidence, it would address it. M.H. failed to submit any evidence in the designated time.

We conclude that the district court therefore did not abuse its discretion by

denying the continuance.

Procedural due process

M.H. next argues that the district court violated her procedural-due-process rights

by (1) allowing leading questions, resulting in “the unending succession of ‘yes’ and ‘no’

answers from the agency witness and from the Guardian” and (2) allowing “opinion

testimony from both the agency social worker and the Guardian-ad-Litem.” She argues

that “[t]here is simply nothing in [Minn. R. Juv. Prot. P.] 18 and nothing in any decided

case which permits the juvenile court to grant a default termination of parental rights

upon the sort of ‘pretend’ trial that was had here.”

“Due process requires reasonable notice, a timely opportunity for a hearing, the

right to counsel, the opportunity to present evidence, the right to an impartial decision-

maker, and the right to a reasonable decision based solely on the record.” In re Welfare

of Children of D.F., 752 N.W.2d 88, 97 (Minn. App. 2008). “The applicable due-process

standard in a [termination] proceeding resides in the guarantee of fundamental fairness.”

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Id. (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-95 (1982)).

“Although the amount of process due in a particular case varies with the unique

circumstances of that case, prejudice as a result of the alleged violation is an essential

component of the due process analysis.” In re Welfare of Child of B.J.-M., 744 N.W.2d

669, 673 (Minn. 2008) (citations omitted).

“Whether a parent’s due-process rights have been violated in a termination

proceeding is a question of law, which this court reviews de novo.” In re Welfare of

Children of B.J.B., 747 N.W.2d 605, 608 (Minn. App. 2008). “It is well settled that

where the trial court has jurisdiction of the offense and of the defendant a judgment will

be held void for want of due process only where the circumstances surrounding the trial

are such to make it a sham and a pretense rather than a real judicial proceeding.” In re

Welfare of Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001) (quotation omitted).

In this case, the district court received evidence by way of exhibits and testimony.

M.H.’s attorney was present throughout the proceeding, and the record contains no

suggestion that she was restricted from fully participating therein. In fact, the court

expressly afforded M.H.’s attorney the opportunity to argue against proceeding by

default, move for a continuance, cross-examine witnesses, present evidence in opposition

to the termination, and present a closing argument. M.H.’s attorney could have raised

objections at any time during the proceeding, as evidenced by her objection to proceeding

in default. And M.H. makes no claim that her attorney provided deficient or ineffective

assistance. See In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987)

(analyzing appellant’s claim that he was denied fair trial because, among other things,

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“his court-appointed counsel was ineffective”). Notably, M.H. cites no legal authority to

support her contention that the alleged evidentiary errors, if truly errors, rendered the

proceeding procedurally inadequate. She makes no claim that she did not receive

“reasonable notice, a timely opportunity for a hearing, the right to counsel, the

opportunity to present evidence, the right to an impartial decision-maker, [or] the right to

a reasonable decision based solely on the record.” See D.F., 752 N.W.2d at 97.

Finally, M.H. has failed to demonstrate any prejudice from the alleged violation

of her procedural-due-process rights. See id. (determining that appellant failed to

demonstrate prejudice from alleged due-process violation). Indeed, she makes no

argument that the district court’s factual findings are incorrect or that the outcome of the

case would be different without the alleged violation.

For all of the above reasons, we conclude that this case was not “a sham [or] a

pretense rather than a real judicial proceeding.” Coats, 633 N.W.2d at 512. It was

“fundamental[ly] fair[].” See D.F., 752 N.W.2d at 97.

Affirmed.

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