In re the Matter of the Welfare of the Child of: M. R., M. P., and J. R., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1582

In re the Matter of the Welfare of the Child of: M. R., M. P., and J. R., Parents.

Filed May 13, 2019
Affirmed
Schellhas, Judge

Renville County District Court
File No. 65-JV-18-74

John E. Mack, Mack & Daby, P.A., New London, Minnesota (for appellant)

David J. Torgelson, Renville County Attorney, Glen M. Jacobsen, Assistant County
Attorney, Olivia, Minnesota (for respondent)

Janice Tonn, Renville, Minnesota (guardian ad litem)

Considered and decided by Schellhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
On appeal from the termination of her parental rights, mother argues that (1) the
district court improperly terminated her parental rights by default at a pretrial hearing when
she failed to appear and erred by refusing to vacate the default termination of her parental
rights and (2) the county failed to make an adequate search for relatives with whom the
child could be placed. We affirm.

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FACTS
Appellant-mother M.R. left her children, E.R., born in 2007, J.P., born in 2009, G.P.,
born in 2010, and I.P., born in 2012, in the care of her mother in November 2017. Around
the same time, Renville County Human Services (RCHS) became involved with M.R.’s
children because of truancy reports that it received involving some of the children. The
maternal grandmother told RCHS that although M.R. received regular child -support
payments, she did not purchase food or clothing, or pay rent or utilities with the money.
The maternal grandmother told RCHS that she was financially unable to care for all four
children.
On December 11, 2017, the maternal grandmother was evicted from her home for
nonpayment of rent . At the time, M.R.’s whereabouts were unknown. The maternal
grandmother and the children lived with a relative until they could find new housing. On
January 5, 2018, all four children went to live with M.P., the biological father of J.P., G.P.,
and I.P.
In January 2018, RCHS filed a child -in-need-of-protection-or-services (CHIPS)
petition because of M.R.’s continued absence. The district court conducted an emergency
protective-care hearing and placed the children in the care of M.P. On February 21, the
court adjudicated the children CHIPS by default after M.R. failed to appear at a scheduled
hearing. Over the course of the next few months, M.R. failed to comply with her court-
ordered case plan.
On June 20, 2018, M.R. appeared at a permanency review hearing. The district court
found that M.R. was not in compliance with her case plan or maintaining contact with her

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attorney or RCHS. The court also found that a social worker had made numerous attempts
to contact M.R., once while M.R. was in jail. The court noted that M.R. was unwilling to
schedule a meeting with the social worker ; that M.R. declined all visits with her children;
that during the permanency review hearing, M.R. became angry, talked over the court,
objected to her case plan, expressed that she did not want to do a chemical-use assessment
or drug testing; and that M.R. objected to supervised visits. Based on M.R.’s statements in
court, the court relieved RCHS from providing reasonable efforts to reunify the children
with M.R. because RCHS’s previous efforts were futile. The court therefore ordered that
RCHS file a permanency petition.
RCHS petitioned to terminate M.R.’s parental rights to all four children and to
terminate the parental rights of J.R., the father of E.R. 1 M.R. attended a n admit/deny
hearing on August 1, 2018. At that hearing, t he district court provided M.R. a notice to
appear for a pretrial hearing on September 10, 2018. The notice stated as follows:
IF YOU FAIL TO APPEAR AT THE HEARING:
• The court may conduct the hearing without you; and
• The court may find that the factual allegations and statutory
grounds set forth in the Petition have been proved; and
• The court may enter an order granting the relief requested in
the Petition, which may include:
⸰ removing the child(ren) from the home of the parent or
legal custodian and placing the child(ren) in foster care,
⸰ permanently severing the parent’s rights pursuant to a
termination of parental rights petition,
⸰ permanently transferring the child (ren)’s legal and
physical custody to a relative, or
⸰ an order for other permanent placement of the
child(ren).

1 The district court terminated J.R.’s parental rights to E.R., and J.R. has not appealed from
that order.

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M.R. failed to appear at the pretrial hearing on September 10, 2018 . Her attorney
was present and told the district court:
[M.R.] did call into Court Administration a little bit earlier and
then I subsequently talked with her. She would like to appear
by phone today. She wasn’t able to get a ride, if appear by
phone if that’s possible. I told her given the phone system it
might – might not be and I al so told her that we were likely
going to have to – I think we’ve got the first day of trial
scheduled for the eighteenth and I know we’re going maybe
have to revise that because of something in Kandiyohi County,
so that’s where I’m at with her.

The court found that M.R. received notice of the hearing, was informed that an order could
be entered if she failed to appear at future hearings, and found M.R. in default. The court
heard a social worker’s testimony that M.R. had not completed any of the services required
by her case plan and that, throughout the duration of th e case, she had called the children
three times and had not seen them . The children’s guardian ad litem (GAL) testified that
the children were doing “fantastic” in the home of M.P. and his wife and were comfortable
and happy. M.P. testified by phone and confirmed that he could provide for the children
and that they were doing well.
At the close of the pretrial hearing, the district court found that M.R. had abandoned
her children and that termination of her parental rights was in the children’s best interests.
M.R. appealed the default termination of parental rights (TPR) to this court and, on October
2, 5, and 9 , 2018, filed motion pleadings in district court to vacate the default TPR. This
court stayed M.R.’s appeal, pending a ruling by the district court on her motion to vacate.

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In support of her motion, M.R. filed an affidavit in which she stated as follows:
My name is [M.R.] and I am one of the respondents in
this case. John Meuller is my attorney. I found out the date of
the pre-trial conference w hich was to be held September 10,
2018. I had a previous commitment for a sentencing in
Kandiyohi County Court, Willmar, Minnesota involving a
criminal sentencing, so that had priority over a civil matter in
Renville County. I called Mr. Mueller and told him of the
conflict, which he brought to the Court’s attention. I could not
attend both hearings on time. I did indicate that I could be there,
but I would be late.

I asked to be heard at the pre -trial by telephone. Mr.
Mueller indicated that he would call me back to see if the judge
was okay with letting me appear by telephone. I received a text
message from him telling me that the judge denied my request
to appear by phone but that [M.P.] was permitted to appear by
telephone. This was not even the date for trial . The trial date
was September 18. The trial was cancelled because of the
default.

On November 28, 2018, the district court conducted a hearing on M.R.’s motion to vacate
the default TPR. M.R. appeared with new counsel at the hearing and did not submit an
affidavit from her previous attorney, John Mueller, to corroborate the statements in her
affidavit, some of which were inconsistent with the statements made by Mr. Mueller at the
pretrial hearing.
The GAL informed the district court that M.R. had been scheduled for a hearing in
Kandiyohi County at 10:30 a.m. on September 10, 2018, and that the TPR pretrial hearing
at which M.R. failed to appear was conducted at 1:30 p.m., on that date. Relying on district
court records, the court verified that M.R.’s sentencing hearing on September 10, in
Kandiyohi County “concluded early enough to leave [M.R.] a substantial amount of time

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to get to her pretrial hearing at 1:30 p.m. in Renville County.” The court found that M.R.
did not meet the four factors necessary to vacate a default TPR and denied her motion.
This appeal follows.
D E C I S I O N
I.
Grant of default termination of M.R.’s parental rights
M.R. argues that the district court erred by terminating her parental rights by default
at a pretrial hearing because Minn. R. Juv. Prot. P. 18 “does not explicitly state that a
pretrial hearing may be used as a default hearing.” We disagree.
Minn. R. Juv. Prot. P. 18.01 provides that if a parent “fails to appear for an admit -
deny hearing, a pretrial hearing, or a trial after being properly served with a summons . . .
or a notice . . . the court may receive evidence in support of the petition or reschedule the
hearing.” Then, if the TPR petition is proved by clear and convincing evidence, “the court
may enter an order granting the relief sought in the petition as to that parent.” Minn. R.
Juv. Prot. P. 18.02.
While M.R., through her attorney at the pretrial hearing —not in advance of the
hearing—requested permission to appear by phone, the district court had the discretion to
grant or deny the request under Minn. R. Juv. Prot. P. 12.02. Rule 12.02 provides that “[b]y
agreement of the parties, or exceptional circumstances upon motion of a party or the county
attorney, the court may hold hearings and take testimony by telephone or interactive video.”
Minn. R. Juv. Prot. P. 12.02 (emphasis added); see Minn. Stat. § 645.44, subds. 1, 15 (2018)
(stating that, when used in a statute, “may” is permissive).

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The district court here followed the proper procedure for default under Minn. R.
Juv. Prot. P. 18. The court provided M.R. a notice for the pretrial hearing that explicitly
cautioned her that if she did not attend the pretrial hearing , the court could permanently
sever her parental rights under the TPR petition. The notice satisfied the requirements of
Minn. R. Juv. Prot. P. 18.01. See In re Welfare of the Child of L.W., 644 N.W.2d 796, 796
(Minn. 2002) (stating that summons that provided if party failed to appear, court “may
order your parental rights . . . be terminated,” satisfied the notice requirement in Minn. R.
Juv. P. 54.01, which the supreme court subsequently renumbered as Minn. R. Juv. Prot. P.
18.01). The court heard testimony at the pretrial hearing from the social worker, the
children’s GAL, and the children’s caretaker. Because the circumstances of th e default
proceeding “did not co nstitute a sham or a hoax . . . and was a real judicial proceeding,”
the default termination M.R.’s rights did not violate due process. Id. at 797. After the
hearing, the court issued an order , finding that RCHS proved by clear and convincing
evidence that M.R. abandoned her four childr en under Minn. Stat. § 260C.301, subd.
1(b)(1) (2018) , and that it was in the children’s best interests to terminate her parental
rights.
M.R. does not challenge the district court’s findings on appeal. Her appeal is
constrained to the argument that the court could not order a default TPR at a pretrial hearing
under Rule 18. Because the district court followed proper juvenile-protection procedure
and RCHS proved the TPR petition by clear and convincing evidence, the court did not err
by granting RCHS a default TPR at the pretrial hearing.

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Denial of motion to vacate default TPR

A district court may relieve a party from a final order, including a default order, for
“mistake, inadvertence, surprise, or excusable neglect.” Minn. R. Juv. Prot. P. 46.02(a). To
be entitled to relief from a default order under Rule 46.02, a party must show that (1) she
has a reasonable defense on the merits of the case; (2) she has a reasonable excuse for her
failure to act; (3) she acted with due diligence after the notice of entry of the default order;
and (4) the opposing party will not be substantially prejudiced if the motion to vacate the
default order is granted. See Finden v. Klaas , 128 N.W.2d 748, 750 (Minn. 1964)
(discussing Minn. R. Civ. P. 60.02 and factors that party must demonstrate to be relieved
from consequences of attorney’s neglect); see also In re Welfare of Children of Coats, 633
N.W.2d 505, 510 (Minn. 2001) (applying Minn. R. Civ. P. 60.02 to default TPR and
requiring parent to demonstrate factors to be relieved from default TPR). On appeal from
the district court’s denial of a motion to vacate a default order, this court reviews the court’s
decision for an abuse of discretion. Id.
M.R. did not demonstrate a reasonable defense on the merits
M.R. concedes in her brief that any “reasonable defense on the merits is relatively
weak.” But she argues that although one of the Finden factors is weak, the district court
erred by not granting her motion for relief be cause she made a strong showing on the
remaining factors. When a district court evaluates the existence and strength of the factors,
“the relative weakness of one factor should be balanced against the strong showing on the
other three.” Gelco Corp. v. Crys tal Leasing, Inc. , 396 N.W.2d 672, 674 (Minn. App.
1986).

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Here, the district court found that M.R. did not demonstrate a reasonable defense on
the merits because she “utterly and totally failed to comply with the case plan and has not
presented for visits with her children in nearly two years.” The record supports the court’s
finding. Nothing in the record reflects that M.R. made any effort to meet with the social
worker; to visit her children, telephoning them only three times throughout this case; or to
otherwise comply with her case plan. Indeed, in her affidavit in support of her motion to
vacate the default termination of parental rights, M.R. makes no mention whatsoever of
her children. She addresses neither her desire to care for them nor their welfare. Even
though one weak factor should be balanced against the strength of other factors, M.R.’s
lack of a reasonable defense on the merits to the TPR petition “leaves little logical reason
to compel vacation of default judgment.” See id. at 675 (stating that “appellant’s lack of a
reasonable defense on the merits to respondent’s claim leaves little logical reason to compel
vacation of default judgment”). We conclude that the court did not abuse its discretion in
rejecting M.R.’s claim that she had a reasonable defense on the merits.
M.R. did not demonstrate a reasonable excuse for her failure to act
M.R. argues that she sufficiently demonstrated a reasonable excuse for her failure
to appear at the pretrial hearing. We disagree. M.R. had the burden to demonstrate that she
had a reasonable excuse for failing to attend her pretrial hearing. See Finden, 128 N.W.2d
at 750 (stating that party seeking relief must show that factors are met). Even if M.R.’s
sentencing hearing on September 10, 2018, truly conflicted with her pretrial hearing in her
TPR proceeding—a fact that M.R. has not demonstrated—the record is void of any logical
explanation about why that alleged conflict was not brought to the district court’s attention

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before the day of the scheduled pretrial or why M.R.’s attorney did not relay the alleged
conflict to the court at the pretrial hearing. M.R.’s attorney informed the court only that
M.R. was unable to get a ride to the pretrial hearing; he mentioned nothing about a hearing
conflict. We conclude that the district court did not err by finding that M.R. failed to satisfy
her burden to prove that she had a reasonable excuse for failing to appear at the scheduled
pretrial hearing in her TPR proceeding.
M.R. demonstrated that she acted with due diligence
The district court granted RCHS default termination of parental rights on September
10, 2018. The record shows that M.R. moved for relief from the default TPR within the 90-
day period mandated by Minn. R. Juv. Pro. P. 46.02. Yet the court found that M.R. did not
act with due diligence in seeking relief from the default TPR. M.R. filed an appeal with
this court on September 26 and a motion to vacate the default TPR with the district court
on October 2. We conclude that the record shows that M.R. acted with due diligence.
The opposing party will be substantially prejudiced
The district court found that M.R.’s oldest son, E.R., would be prejudiced if the
court granted M.R.’s motion to vacate the default TRP because of the delay in finalizing
E.R.’s permanency. M.R. argues that the court’s reasoning is erroneous because prejudice
to the opposing party is confined to potential destruction of evidence, unavailability of a
witness, or other related concerns.
Under the fourth Finden factor, M.R. bore the burden of demonstrating that the
opposing party will not be substantially prejudiced if the motion to vacate the default TPR
is granted. Here, although RCHS and the GAL are the opposing parties, not E.R., the

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opposing parties have the legal obligation to protect the children’s best interests. And the
law mandates that the district court conduct a permanency review hearing when a child
remains in foster care for six months. Minn. Stat. § 260C.204(a) (2018). Any unreasonable
delay is prejudicial to RCHS’s ability to comply with the permanency guidelines that are
intended to protect the children’s best interests.
Here, the children have not lived with M.R. since November 2017 and , because
M.R. failed to visit with the children, they have had virtually no contact with her since then.
Although E.R. has resided with his siblings and their biological father sinc e January 10,
2018, E.R. resides in foster care. E.R.’s permanency cannot be established through
adoption until the termination of M.R.’s parental rights becomes final. The supreme court
has “observed the importance of emotional and psychological stability to a child’s sense of
security, happiness, and adaptation, as well as the degree of unanimity among child
psychologists regarding the fundamental significance of permanency to a child’s
development.” In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986).
On these facts, we conclude that the district court did not err by finding that further
delay in the termination proceedings would substantially prejudice E.R.’s interests because
it would continue to undermine his permanency. And the court did not err with respects to
its findings on the Finden factors, except with respect to M.R.’s due diligence acting after
the default TPR. On these particular facts, we conclude that the court did not abuse its
discretion by denying M.R.’s motion to vacate the default TPR.

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II.
Before ordering the termination of parental rights, a district court must make
specific findings that the termination is in the best interests of the children and must
analyze: “(i) the children’s interests in preserving the parent -child relationship; (ii) the
parent’s interests in preserving the parent -child relationship; and (iii) any competing
interests of the child.” Minn. R. Juv. Prot. P. 39.05, subd. 3(b)(3). This court reviews a
district court’s determination that termination is in the children’s best interests for an abuse
of discretion. In re Welfare of Children of J.R.B., 805 N.W.2d 895, 905 (Minn. App. 2011),
review denied (Minn. Jan. 6, 2012).
Pertaining “mainly to . . . E.R.,” M.R. argues that RCHS “failed to properly
determine the rights of relatives and the district court failed to take testimo ny in this
regard.” M.R. relies on Minn. Stat. § 260C.212, subd. 2 (2018) , for the proposition that
RCHS failed to perform an adequate relative search. The statute provides:
The policy of the state of Minnesota is to ensure that the child’s
best interests are met by requiring an individualized
determination of the needs of the child and of how the selected
placement will serve the needs of the child being placed. The
authorized child -placing agency shall place a child . . . in a
family foster home selected by considering placement with
relatives and important friends in the following order:
(1) with an individual who is related to the child by blood,
marriage, or adoption; or
(2) with an individual who is an important friend with whom
the child has resided or had significant contact.

Minn. Stat. § 260C.212, subd. 2(a). This court has noted that “when considering placement
options for children in the child protection system, the legislature directed child -placing
agencies . . . to consider relatives first.” In re Welfare of Children of J.L.G. , 924 N.W.2d

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9, 15 (Minn. App. 2018) (holding that “[i]n adoption -placement cases, the district court
must issue a ruling expressly excluding a relative as a suitable placement option in order
for that relative to be considered ‘ruled out by the court’” (quoting Minn. Stat. § 260C.07,
subd. 2(5))). Section 260C.212, subdivision 2(a), requires that a child-protection agency
consider blood relatives but does not mandate placement with th ose relatives. In re S.G.,
828 N.W.2d 118, 12 4 (Minn. 2013). The Minnesota legislature also has recognized the
importance of placing siblings together. See Minn. Stat. § 260C.212, subd. 2(d) (stating
that “siblings should be placed together for foster care and adoption at the earliest possible
time”).
Here, the district court placed the children—all siblings—in the home of three of
the children’s biological father, M.P., and his wife. In the default TPR order, the court did
not order E.R.’s permanent placement with M.P., the court instead ordered that RCHS shall
“make reasonable efforts to finalize the adoption for [E.R.].” M.R. cites to no legal
authority that would mandate reversal of the termination of her parental rights because a
child-protection agency and presiding court failed to conduct a rel ative search that, if
successful, would culminate in the separation of siblings . And we know of no such
authority. M.R.’s argument lacks merit, and we discern no reversible error by the court.
Affirmed.