In the Matter of the Welfare of the Child of: J. L. C., 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This opinion will be unpublished and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
A18-0478

In the Matter of the Welfare of the Child of: J. L. C., Parent

Filed October 15, 2018
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-JV-17-370

Daniel W. Homstad, Dan Homstad Defense LLC, Bloomington, Minnesota (for appellant)

Michael O. Freeman, Hennepin County Attorney, Michelle A. Hatcher, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Shirley A. Reider, St. Paul, Minnesota (for guardian ad litem Carolina Amini)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant-father argues that the district court abused its discretion in denying his
motion to vacate the default judgment terminating his parental rights . Because there was
no abuse of discretion in the denial of appellant’s motion, we affirm.

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FACTS
Appellant J.L.C. and D.E., who have a history of domestic violence, are respectively
the father and mother of J.R.C., born in 2017. Shortly after the birth, J.R.C. was ordered
into out-of-home placement and placed with her paternal aunt, appellant’s sister, where she
has remained. D.E. was notified that, if she failed to appear at a hearing on June 6, 2017,
her parental rights could be terminated; she did not appear, and her parental rights to J.R.C.
were terminated.1
Appellant was notified that, if he failed to appear at a hearing on September 18,
2017, at 9:00 a.m., his parental rights to J.R.C. could be terminated. He did not appear for
the hearing, nor did he respond to phone calls from his case manager. The district court
continued the hearing to 10:00 a.m., but, when appellant had not appeared or been heard
from by that time, the district court proceeded with a default hearing . The testimony and
evidence presented at the h earing indicated that termination of appellant’s parental rights
would be in J.R.C.’s best interests. Appellant arrived at court after the default hearing had
concluded. He was asked why he had not return ed the case manager’s phone call and
replied that he did not think of it.
Six days later, appellant reported that he did not appear for his trial because D.E.
had slashed his tires that morning. He filed a motion to vacate the default judgment and
for a new trial. Following two hearings, appellant’s motions were denied and his parental

1 D.E. is the mother of five other children to whom her parental rights have been voluntarily
or involuntarily terminated.

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rights were terminated. He argues that the district court abused its discretion in denying
his motions to vacate the default judgment and for a new trial.
D E C I S I O N
“[An appellate court] will not overturn a rulin g on a motion to vacate a default
judgment unless the district court abused its discretion.” Roehrdanz v. Brill, 682 N.W.2d
626, 631 (Minn. 2004). A party seeking to vacate a default judgment must show (1) a
reasonable defense on the merits; (2) a reason able excuse for the failure to act; (3) due
diligence in resp onding to the entry of judgment; and (4) the absence of substantial
prejudice to the opposing party if the motion to vacate is granted. In re Welfare of Children
of Coats, 633 N.W.2d 505, 510 (Minn. 2001). The parties agree that appellant showed due
diligence in responding to the entry of judgment.
1. Defense on the Merits
Appellant argues that he has a reasonable defens e on the merits because he:
(1) substantially complied with his case plan, (2) purchased some baby supplies, (3) has
been sober for one year, (4) worked with the mental -health court and probation officer,
(5) participated in parenting classes, (6) completed a 30 -day inpatient treatment program
in June 2017, and (7) attended eight sessions of a domestic violence/anger management
program.
But testimony from appellant’s case manager, who has been on the case sin ce
J.R.C.’s birth, indicated that appellant did not substantially comply with his case plan.
When asked if she could explain appellant’s compliance, she answered:

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[H]is case plan included getting a Rule 25 [assessment], getting
some therapy for his chemic al addiction. He’s admitted to
using K2, cocaine, alcohol, and marijuana. He . . . completed
an outpatient program, and he’s now involved in a once a week
ongoing aftercare program. He was also asked to get involved
in an anger-management domestic violence program . . . . He’s
been attending the meetings, I believe he’s missed three of
them. There [have] been some issues . . . [After his] last
meeting . . . the facilitators sent me an update because they
were concerned about the aggression he was demon strating
toward the facilitator. . . . He admitted that anger management
is something he needs to continue working on.
. . . [H]e’s in mental health court right now. . . . [H]e’s
supposed to have ongoing therapy and follow the
recommendations of a psychia trist. He’s self -reported that he
was diagnosed with bipolar disorder, anxiety, and depression.
Since the case has opened, he has not attended any therapy or
seen a psychiatrist, so he hasn’t been med[ication] compliant
the whole time. . . . I believe th ere’s three different therapists
that he’s told me he’s seen, but he’s never been willing to sign
releases so I can get follow -up information. And . . . on the
30th of August, he admitted to me that he has not seen a
therapist since the case opened.
. . . [M]ental health is a really big concern . . . . [H]is
probation officer, . . . his inpatient . . . or outpatient therapist
. . . and . . . the anger management [services] . . . all feel he
needs additional emotional support and therapy regarding . . .
[the] huge amount of trauma in his background.
Another part of the case plan was to maintain gainful
employment. He’s been . . . on leave from work since the case
opened. He was in a car accident and got a head injury. And
then his former partner, [D.E ., J.R.C.’s mother] attacked him
with a hammer and hit him on the head. . . . [H]e has not been
working . . . .

When asked if she was concerned about appellant’s emotional and mental health,
the case manager testified:
[W]hen I visit him at home, . . . he gets like super anxious and
then he’ll just crumble and start sobbing. He talks about how
he can’t handle all the pressure in his life and . . . he’s really on
edge. And that’s my primary concern about him being able to

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manage the stresses of a newborn child[:] he seems not able to
cope with his own everyday stressors.

When asked about appellant’s housing, the case manager testified, “He currently
lives in apartment building where . . . registered sex offenders also li ve . . . and a lot of
addicts . . . . It would definitely not be a safe place to have [J.R.C.]. And in [his] visitation,
he’s specifically prohibited from bringing her [there.]” When asked if she thought J.R.C.
would be safe in appellant’s care, she replied, “At this time, I do not think she would be
safe in his care.”
Appellant’s relationship with D.E. was the subject of testimony from his case
manager, his probation officer, and two police officers. The case manager testified,
[H]e currently has an order for protection and . . . there’s also
a DANCO against D.E. She’s physically attacked him on
numerous occasions. . . . [P]robation has been working with
[appellant] to call [the probation officer] when [D.E.] comes.
At first he wouldn’t even do that, even with the OFP and the
DANCO. Now s ometimes he’ll call 911 but he’ll refuse to
follow up and press charges against her, so that’s a significant
safety issue, too . . . [a]nd . . . an ongoing concern [is] that
[D.E.] may come around when [appellant is] with [J.R.C.].

The probation officer wrote on December 4, 2017:
While [appellant] does have an OFP against [D .E., people]
“have continually seen him with in the neighborhood with
[her]. . . . [Appellant] could be a good father to [J.R.C., but] . . .
he would have to have a close watch by child protection to
maintain safety for the child. [D .E.] is a [problem] for him, a
HUGE DEBILITATING problem for him. I think sometimes
he just can’t say no to her. . . . [D.E.] NEEDS TO BE OUT OF
THE PICTURE . . . TOTALLY. . . [I]f that doesn’t happ en,
then I fear for the child’s safety.

(Emphasis in original, quotation omitted.)

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A police officer reported that, on December 11, 2017, he was called to appellant’s
apartment where domestic abuse was in progress. He met D .E., who said that appellant
had attacked her when she came to retrieve her property, “swung on her two times hittin g
her in the lip and nose” and told her “he was going to kill her as he hit her.” D .E. refused
to fill out domestic-violence supplement forms against appellant.
Another police officer reported that, on February 5, 2018, he responded to a
domestic assault call at a dance club and met with D.E. She said she noticed that appellant
was in the club and left because he had an OFP against her. Appellant was upset because
he wanted her to stay and followed her. When they reached an intersection he “grabbed
her, punched her on the right side of her face, and bit her in the right side of the face, . . .
took her jacket and also forcibly took her cell phone and purse.” D .E. gave oral answers
to questions on the domestic assault supplement form to the officer, saying that “she is not
sure if [appellant] will seriously injure or kill her or their child [JRC] and that he threatens
to assault her all the time”; she also said that appe llant “obtained an OFP against her
because she was a crack cocaine user and [appellant] was trying to get custody of their
child.”
The district court’s findings reflect the testimony of the case manager, the probation
officer, and the police officers, as well as the exhibits. Appellant does not dispute any of
the testimony or the contents of the exhibits. The district court did not abuse its discretion
in concluding that appellant’s “[r]easonable [d]efense on the [m]erits is [d]eficient”
because appellant has not shown that his parental rights are not likely to be terminated.

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2. Reasonable Excuse for the Failure to Act
Appellant submitted an affidavit dated October 16, 2017, stating that: (1) he
received text messages reminding him of his termination-of-parental-rights hearing
scheduled on September 18 at 9:00 a.m. and his mental-health-court hearing scheduled on
September 19 at 10:00 a.m.; (2) he con fused the times and thought the termination -of-
parental-rights hearing was at 10:00 a.m.; (3) he realized this when he received messages
from his sister (J.R.C.’s foster parent) and his case manager asking where he was; (4) when
he left his building to go to court, he saw D.E., who had slashed his tires; (5) he called both
a cab and 911; (6) it was close to 10:00 a.m. when the cab arrived; (7) the hearing was over
but the judge was still on the bench and the parties were still in the courtroom when he
arrived at the court; (8) he was told it was too late and his parental rights had been
terminated; and (9) his request to have the case heard immediately was denied.
The district court did not find appellant’s account credible. “In his affidavit,
[appellant] states that he arrived at the hearing, while the Judge was still on the bench. This
is not true. [Appellant] apparently arrived after the Judge was already in chambers. Thus,
the court finds that [appellant’s] affidavit lacks credibility.” The district court also found
that:
Attempts to contact [appellant] prior to the court date
were made by the [case manager], Guardian ad Litem, and
[appellant’s] counsel. [Appellant] did not answer his phone or
return any of the phone calls. On the day of the trial, the [case
manager] called [appellant] twice, but he did not answer her
phone calls. The [case manage r] also called [appellant’s]
sister, the foster parent, in an attempt to communicate with
[him], but was unsuccessful. The trial was scheduled to start
at 9:00 a.m.; however, the court continued the trial to 10 :00

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a.m. to give [appellant] m ore time to eit her appear [or]
communicate his whereabouts. At 10:00 a.m. the court
proceeded by default. [Appellant] did make an appearance
after the default hearing had concluded. When asked why he
did not return the [case manager’s] phone call, he stated that he
didn’t think about it. [Appellant] did not mention the
altercation with [D .E., i.e., her slashing of his tires] until six
days later when police were dispatched to [appellant’s]
residence due to a reported domes tic-violence-with-weapons
incident.

Appellant does not refute any of these findings. The district court’s determination that
appellant’s “[r]easonable [e]xcuse for [f]ailing to [a]ppear [l]acks [m]erit” is not an abuse
of discretion.
3. Prejudice to the Opposing Party
J.R.C., now 20 months old, has been in out -of-home placement with her paternal
aunt for her entire life. Reasonable efforts to correct the conditions leading to out-of-home
placement of children under eight years old are presumed to have failed when the children
have been in out-of-home placement for six months, and parental rights to such children
may be terminated. Minn. Stat. § 260C.301, subd. 1(b)(5) (2016). Thus, reasonable efforts
to correct the conditions leading to J.R.C.’s out-of-home placement were presumed to have
failed more than a year ago, on July 27, 2017; she still lacks permanent status; and vacating
the default termination of appellant’s parental rights would prejudice her by prolonging her
nonpermanent status.
Appellant offers no legal support for his argument that vacating the default
termination of his parental rights would be in J.R.C.’s best interest , and J.R.C.’s best

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interest is the primary consideration in this TPR dispute. 2 See Minn. Stat. § 260C.301,
subd. 7 (2016) (“In any proceeding und er this section, the best interests of the child must
be the paramount consideration” and “[w]here the interests of parent and child conflict, the
best interests of the child are paramount.”).
Appellant cites five cases to support his argument that “prejudice to the opposing
party [i.e., J.R.C.] is not established by a showing of the delay which is suffered by any
litigant when a case is continued, at least where no evidence has becom e unavailable or
witnesses lost,” but the cases are all distinguishable: they deal with adult litigants and their
ability to prevail in litigation. 3 J.R.C. is not an adult litigant concerned about prevailing;
she is a 20-month-old who needs and is entitled to placement in a permanent home, and
delay will prejudice her and the guardian ad litem representing her interests.

2 Appellant also offered no support for the view stated at oral argument that J.R.C. will not
be prejudiced because she will remain where she is regardless of the delay. But “[t]the
purpose of the laws relating to . . . termination of parental rights . . . is [,]. . . if placement
with the parents is not reasonably foreseeable, to secure for the child a safe and permanent
placement . . . preferably with adoptive parents or . . . a fit and willing rel ative through
transfer of permanent legal and physical custody to that relative.” Minn. Stat. § 260C.001,
subd. 3(2) (2016 ). J.R.C. will be deprived of permanent placement unless and until
appellant’s parental rights are terminated.
3 See Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988) (no prejudice other
than that resulting from delay, which does not establish prejudice); Riemer v. Zahn , 420
N.W.2d 659, 662 (Minn. App. 1988) (no prejudice when delay does not cause evidence to
be affected or witnesses to be unavailable); Petrich v. Dyke, 419 N.W.2d 833, 835 (Minn.
App. 1988) (finding “no prejudice to [the opposing party] other than his costs and the
minimal prejudice inherent in every delay”); Hill v. Tischer, 385 N.W.2d 329, 332 (Minn.
App. 1986) (no prejudice where witnesses can be located) ; Guillaume & Assocs., Inc. v.
Don-John Co., 371 N.W.2d 15, 18 (Minn. App. 1985) (concluding that opposing party ’s
litigation techniques as well as defaulting party’s neglect caused delay).

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There is no basis to vacate the default judgment terminating appellant’s parental
rights.
Affirmed.