In the Matter of the Welfare of the Children of: S. L. K.-S., Parent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1570

In the Matter of the Welfare of the Children of: S. L. K.-S., Parent.

Filed April 16, 2018
Affirmed
Schellhas, Judge

Big Stone County District Court
File No. 06-JV-17-39

Krystal M. Lynne, Stermer & Sellner, Chtd., Montevideo, Minnesota (for appellant S.L.K.-
S.)

Joseph P. Glasrud, Big Stone County Attorney, Ortonville, Minnesota; and

Elisabeth Kirchner, Special Assistant Big Stone County Attorney, Morris, Minnesota (for
respondent Big Stone County Family Services)

Susan Marsolek, Ortonville, Minnesota (guardian ad litem)

Considered and decided by Jesson, Presid ing Judge; Schellhas, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant-mother challenges a district cour t’s denial of her motion for a new trial,
arguing that her consent to the terminatio n of her parental rights was coerced and
procedurally defective. We affirm.

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FACTS
Appellant S.L.K.-S. (mother) gave birt h to A.M.S.C. (child) in April 2016. 1 On
July 1, respondent Big Ston e County Family Services pe titioned for adjudication of the
child as a child in n eed of protection or services (CHI PS). On September 23, the district
court adjudicated the child as a CHIPS and transferred her custody to the county.
On March 6, 2017, the county petitioned for mother’s termination of parental rights
(TPR), and the district court appointed a guardian ad litem (GAL) for the child. 2 At a
pretrial hearing on the TPR petition on April 24, all parties agreed to continue the scheduled
trial from May 4 to June 1.
On June 1, 2017, mother appeared for tr ial with her court-ap pointed attorney and
submitted an affidavit to the district court in which she consented to terminate and waive
her parental rights. In a July 28, 2017 order, the district court found that the child’s best
interests were served by a termination of mother’s parental rights and found the existence
of clear and convincing evidence of good cause to terminate mother’s parental rights. The
court accepted mother’s voluntary consent, terminated her parental rights to the child, and
discharged her court-appointed attorney.
On July 31, 2017, mother applied for a c ourt-appointed attorney and the district
court granted her request shortly thereafter. On August 17, mother filed a motion for a new
trial and relief from the TPR order under Minn. R. Juv. Prot. P. 45 and 46, along with a

1 This appeal involves only th is child, but the re cord indicates that mother voluntarily
transferred legal custody of an older child to that child’s father in a separate proceeding.
2 The identity of the child’s father was unknown.

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supporting affidavit. The county filed re sponsive affidavits from a social-services
supervisor, mother’s social worker, the child’s GAL, and an assistant county attorney. The
court conducted a hearing on mother’s motions and denied them in a September 15, 2017
order. The court concluded that mother’s rule 45 motion was untimely and that her rule 46
motion and supporting affidavit failed to present sufficient evidence to warrant withdrawal
of her consent to terminate her parental rights.
This appeal follows.
D E C I S I O N
A natural parent is presumptively a “fit and suitable person to be entrusted with the
care of his or her child,” and “[o]rdinarily, it is in the best interest of a child to be in the
custody of his or her natural parents.” In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn.
1995). As a result, parental rights may be terminated “only for grave and weighty reasons.”
In re Welfare of M.D.O. , 462 N.W.2d 370, 375 (Minn. 1990). “In any proceeding under
this section, the best interests of the child must be the paramount consideration.” Minn.
Stat. § 260C.301, subd. 7 (2016).
While “judicial caution in severing the family bonds is imperative,” In re Welfare
of Child of J.J.B., 390 N.W.2d 274, 280 (Minn. 1986 ), the Minnesota Supreme Court has
observed that “[juvenile protection] proceedings are expedited because a quick resolution
is essential for the best interests of children,” In re Welfare of Child of R.D.L., 853 N.W.2d
127, 134 (Minn. 2014). “The juvenile court may upon petition, terminate all rights of a
parent to a child: (a) with a written consent of a parent who for good cause desires to
terminate parental rights.” Minn. Stat. § 260C.301, subd. 1(a) (2016).

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Generally, “appellate courts review a district court’s decision on a motion to vacate
an order or judgment for an abuse of discretion.” In re Welfare of Children of M.L.A., 730
N.W.2d 54, 60 (Minn. App. 2007). “Where a court’s findings of fact are supported by
substantial evidence and are not clearly erroneous, they will not be reversed.” In re Welfare
of K.T., 327 N.W.2d 13, 17 (Minn. 1982).
Mother’s rule 45 motion
Mother argues that the district court erred by deeming her rule 45 motion untimely.
Because the district court fully considered the merits of mother’s post-termination request
for relief, any error by the court did not pr ejudice mother and was harmless, and we
therefore do not reach this argument. See In re Welfare of Children of D.F., 752 N.W.2d
88, 98 (Minn. App. 2008) (denying reversal of termination of parental rights where alleged
error was harmless).
Mother’s rule 46 motion
The termination order following a parent’s voluntary consent is “a final adjudication
of parental rights.” In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn. 1978) (affirming
denial of mother’s motion to vacate termin ation based on her voluntary consent where
district court found it was in the best interest of the chil d not to vacate). Upon a timely
motion under the rules of juvenile protection procedure, a court may relieve a party from a
final order and grant such relief as may be justified for fraud, misrepresentation, or newly
discovered evidence. Minn. R. Juv. Prot. P. 46.02.
A TPR order following a parent’s voluntary consent “may be vacated only upon a
showing of fraud, duress, or undue influence.” In re Welfare of J.L.L. , 801 N.W.2d 405,

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410 (Minn. App. 2011), review denied (Minn. July 28, 2011). Misrepresentation “sufficient
to vacate a judgment occurs when a party intentionally misleads or deceives the court as to
material circumstances.” In re Welfare of Children of R.A.J., 769 N.W.2d 297, 303 & n.1
(Minn. App. 2009) (quotation omitted) (applying standard of fraud from Minn. R. Civ. P.
60.02 to Minn. R. Juv. Prot. P. 46.02 because the rules are “nearly identical”). A voluntary
consent cannot be abrogated except for “grave and weighty reasons.” K.T., 327 N.W.2d at
18. “A parent who has consented to a termina tion order cannot have that order set aside
simply because she has changed her mind.” Id. at 18 −19 (affirming denial of mother’s
motion to vacate termination where evidence showed that she understood the nature of her
consent).
Citing M.L.A., mother argues that the district court abused its discretion by denying
her motion to set aside the TPR because the record and her affidavit contain sufficient facts
to warrant an evidentiary h earing on the issues of coercion and misrepresentation. In
M.L.A., this court analyzed whether a district court abused its discretion by denying a
mother an evidentiary heari ng on her claim that her cons ent to a voluntary TPR was
coerced. 730 N.W.2d 60−61. Specifically, the mother’s post-termination affidavit included
allegations of coercion that detailed statem ents from her attorney who had already been
discharged by the court. Id. at 57–58. This court concluded that it was necessary to remand
to the district court to hold an evidentiary hear ing “to determine whether, in fact, the
representations mother’s affidavit alleges were made, and if so, by whom they were made.”
Id. at 61. And this court said that “if a part y establishes that the judgment is based on a

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coerced admission, that, in and of itself, is grounds to provide relief from judgment.” Id. at
61–62.
But M.L.A. is distinguishable from this case be cause mother’s affidavit here lacks
any specific, factual allegations to support her motion.3 Mother’s affidavit states only that
she “felt forced and threatened to proceed with a voluntary termination of parental rights.”
She does not state who threatened her, with what statements or actions, or why she felt
threatened. And in the county’s responsive affi davits, each of the affiants specifically
denies making any promises to induce or coerce mother’s TPR consent.4
The record from the June 1, 2017 hearing, at which mo ther submitted her consent
to TPR, reflects that the district court ques tioned mother under oath about her decision to
waive her trial rights and voluntarily terminate her parental rights. In response to the court’s
questioning, mother confirmed, among other th ings, that she had had enough time to talk
to her attorney, that she believed that she had received competent advice from her attorney,
that no one had threatened her or tried to co erce her to “come[] to [an] agreement,” and
that she was not under the influence of any substances that would hinder her judgment. The
court asked mother, “You understand, don’t you, that this would be a final deal and for all

3 M.L.A. relied on, and mother cites to, the supreme court’s decision in State v. Kaiser, 469
N.W.2d 316 (Minn. 1991) regarding coer cion in the context of a guilty plea. See 730
N.W.2d at 61. But in Kaiser, the appellant-defendant’s affidavit included specific
allegations of coercion and detailed statements from his then-current counsel. Kaiser, 469
N.W.2d at 318–19.
4 The social service’s supervisor stated in her affidavit “I did not make any threats, nor did
I instruct any other worker to make any threats to induce [mother] to terminate her parental
rights.” The social worker stated that she never promised anything “in exchange for
[mother] giving up her parental rights.” The GAL stated in her affidavit that she did not
make any “promises” or “threats” to mother “to induce her to terminate her parental rights.”

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intents and purposes you won’t be [the child’s] mom anymore after this. I mean
biologically you will be but you won’t have any more rights?” Mother said yes.
We conclude that the district court did not err in its assessment of mother’s motion—
that she “presented no explanation for her claim of coercion or threat such as to justify an
evidentiary hearing.” See In re Welfare of D.D.G., 558 N.W.2d 481, 484–85 (Minn. 1997)
(affirming TPR based on father’s voluntary consent when he claimed that county coerced
him with promises that district court deemed illusory). We also conclude that the court did
not err in concluding that mother failed to present sufficient evidence of misrepresentation.
See R.A.J., 769 N.W.2d at 303–04 (concluding that district court did not abuse its discretion
in vacating order transferring child-welfare proceeding where court was subjected to
“intentional and wrongful misrepresentations”). The district court therefore did not abuse
its discretion in denying mother’s motion.
Mother also argues that the district cour t failed to appropriate ly determine if she
understood her actions, and that the court’s “failure” amounts to a manifest injustice.
“Manifest injustice is defined as a direct, obvious and observable error in a [district] court.”
In re Welfare of M.K. , 805 N.W.2d 856, 862 (Minn. App. 2011) (quotation omitted).
Mother’s assessment of the district court’s conduct at the TPR hear ing is unsupported by
the record, which reflects that the court thoroughly questi oned mother about whether she
understood her actions and whether she was th inking clearly. Mother confirmed that she
felt her child’s best interests were served if she terminated her parental rights, and the court
thanked her for her “so[u]l sear ching and [her] hard work in the best interests of [the
child].” At no time did mother or her attorney answer the judge’s questions in the negative,

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object, ask questions, indicate confusion, or reveal second thoughts. Based on this record,
we conclude that the district court did not fail to determine whether mother understood her
actions. See J.M.S., 268 N.W.2d at 427 (affirming voluntary TPR even though district court
made “no inquiry . . . in to mother’s specific reasons for terminating her parental rights to
establish good cause,” and concluding that fa ilure to follow procedur e of verifying that
statements in petition evidence “good cause” was not ground for reversal).
Discharge of mother’s first court-appointed counsel
Mother argues that the district court abus ed its discretion by dismissing her first
court-appointed counsel without cause. Moth er argues that the discharge prejudiced her,
creating a manifest injustice that requires reversal of the district court’s order denying her
motion and a remand for an evidentiary hearing.
We agree that the district court abused its discretion by prematurely discharging
mother’s first court-appointe d counsel before the filing an d resolution of all post-trial
motions. Under Minnesota law, “[a]n attorney representing a party in a juvenile protection
matter . . . shall continue representation until such time as: (a) all district court proceedings
in the matter have been completed, including filing and resolution of all post-trial motions
under Rules 45 and 46.” Minn. R. Juv. Prot . P. 25.06(a). A district court abuses its
discretion if it discharges a party’s court-ap pointed counsel “without cause, before the
conclusion of the action in district court.” M.L.A., 730 N.W.2d at 62.
But mother has not shown that she was pr ejudiced or disadvantaged by the district
court’s premature discharge of her first cour t-appointed counsel. Although mother was
without counsel for a brief period of time, the district court granted her application for a

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new attorney and thereafter considered the merits of her post-termination motion. Because
mother has not shown prejudice resulting from th e court’s discharge of her attorney, we
conclude that mother is not entitled to reversal based on the premature discharge of counsel.
See D.F. , 752 N.W.2d at 98 (denying reversal of termination of parental rights where
alleged error was harmless).
Timeliness of filing of TPR order
“Within fifteen (15) days of the conclusion of the testimony . . . the court shall issue
its findings and order regarding whether one or more statutory grounds set forth in the
petition have been proved.” Minn. R. Juv. Prot. P. 39.05, subd. 1; see also Minn. R. Juv.
Prot. P. 10.01 (“[A]ll orders shall be filed wi th the court administrator within fifteen (15)
days of the conclusion of th e testimony.”). The court may issue an order an additional 15
days later if it is “required in the interests of justice and the best interests of the child.” Id.
Here, following the TPR hearing on June 1, 2017, the district court filed the TPR
order on July 28, beyond the time parameters c ontained in rule 39.05. Mother argues that
this court therefore should reverse the order and remand for a trial.
“Our caselaw has previously distingui shed between mandatory and directory
[statutory] provisions.” Johnson v. Cook County , 786 N.W.2d 291, 295 (Minn. 2010). A
“statute may contain a requirement but provi de no consequence for noncompliance, in
which case we regard the statute as directory, not mandatory.” Hans Hagen Homes, Inc. v.
City of Minnetrista, 728 N.W.2d 536, 541 (Minn. 2007). Noncompliance with a mandatory
provision triggers an automatic penalty, whereas noncompliance with a directory provision

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does not. See Johnson, 786 N.W.2d at 295–96 (finding zoning-application law directory
because it “does not provide a consequence” for failure to abide by its requirements).
Here, rules 10.01 and 39.05 do not provide a consequence, and mother provides no
authority to support reversal as a consequence of the distri ct court’s lack of compliance
with the rules. And caselaw does not support reversal. “Absent legislative authority, or the
supreme court’s guidance on implementation of seemingly compulsory, unconditional time
rules, no basis [exists] for adopting appellant’s proposition of law that an order issued after
noncompliance with such a rule must be automatically and finally reversed.” In re Welfare
of J.J.H., 446 N.W.2d 680, 682 (Minn. App. 1989), review denied (Minn. Dec. 8, 1989).
We decline to reverse the TPR order as a consequence for the district court’s late filing of
the order under Minn. R. Juv. Prot. P. 10.01 and 39.05, subd. 1.
Affirmed.