In re the Matter of the Welfare of the Children of: I. I. and J. G., 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This opinion will be unpublished and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
A19-0133

In re the Matter of the Welfare of the Children of:
I. I. and J. G., Parents.

Filed May 28, 2019
Affirmed
Johnson, Judge

Polk County District Court
File Nos. 60-JV-17-2374, 60-JV-17-704

Stephen D. Larson, Reynolds, Harbott, Knutson & Larson, P.L.L.P., Crookston, Minnesota
(for appellant father)

Trent J. Fischer, Crookston, Minnesota (for respondent mother)

Greg Widseth, Polk County Attorney, Larry D. Orvik, Assistant County Attorney,
Crookston, Minnesota (for respondent Polk County Human Services)

Suzanne M. Weber, Grand Forks, North Dakota (for respondent children)

Krista Wright, Hillsboro, North Dakota (guardian ad litem)

Considered and decided by Johnson, Presiding Judge; Reilly, Judge; and John P.
Smith, Judge.

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

2
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The district court terminated a man’s parental rights to four children after finding
him in default for his failure to appear for trial. On appeal, he argues that the district court
terminated his parental rights in a manner that violated his constitutional right to due
process. We conclude that the district court provided appellant with the process to which
he was due. We further conclude that, even i f appellant did not receive the process to
which he was due, he was not prejudiced because additional procedures nonetheless would
have resulted in the termination of his parental rights. Therefore, we affirm.
FACTS
J.G. is the father, and I.I. is the mother, of four minor children: A.G., F.D.G., F.G.,
and P.G. J.G. and I.I. were married but have been separated since approximately 2014.
The Polk County Social Services department became involved with the family in
March 2017, when the children were living with I.I. The county became concerned about
educational neglect and physical abuse. In early April 2017, a social worker visited I.I. ’s
home to perform a welfare check. I.I. displayed “erratic behavior” and tested positive for
methamphetamine, amphetamine, and THC. The social worker also was concerned about
the condition of I.I.’s home.
On April 7, 2017, the county filed a petition to adjudicate the children as being in
need of protection or services (CHIPS) , pursuant to Minn. Stat. § 260C.007, subd. 6(9)
(2018). After an emergency protective-custody hearing, the children were removed from
I.I.’s home and placed in foster care. The district court appointed a guardian ad litem for

3
the children. After a heari ng in June 2017, the district court adjudicated the children as
being in need of protection and services. After the CHIPS adjudication, I.I. failed to follow
the out-of-home-placement plans. She failed approximately 32 drug tests, failed to show
up for other drug tests, was repeatedly arrested on drug-related charges, and seldom visited
the children.
J.G. had been living in Texas but moved to Minnesota in early 2017 , after the
children were removed from I.I. ’s home . J.G. initially resided with I.I. in her home.
Shortly thereafter, he was charged with various crimes and was detained in jail.
On October 27, 2017, a county social worker sent a letter to the county attorney’s
office recommending that the county seek to terminate the parental rights of both I.I. and
J.G. The social worker noted that the children had been in foster care for 207 days and that
I.I. had “continued to use drugs throughout our case, ” had failed to remain law -abiding,
and had not attended scheduled visitations. The social worker stated that J.G. lived with
I.I. in an uninhabitable home, which was not suitable for home visits. The social worker
also expressed strong concerns about J.G.’s ability to function as a parent because he
“seems to struggle to understand what is going on and when asked questions he gives
several different answers for the same question .” The social worker also stated that J.G.
places priority on I.I.’s welfare instead of that of the children.
On November 9, 2017, the county commenced a separate action t o terminate the
parental rights of both I.I. and J.G. on four statutory grounds: that each had substantially,
continuously, or repeatedly failed to comply with the duties imposed by the parent -child
relationship; that each is palpably unfit to be a party t o the parent-child relationship; that

4
reasonable efforts have failed to correct the conditions leading to the children ’s out-of-
home placement; and that the children were neglected and in foster care. See Minn. Stat.
§ 260C.301, subds. 1(b)(2), (4), (5), (8) (2018).
The district court conducted nine pre-trial hearings between November 2017 and
November 2018. The same district court judge presided over all hearings in both the
CHIPS case and the TPR cases. On November 13, 2017, the district court held an admit-
deny hearing with respect to the TPR petition jointly with a review hearing for the CHIPS
case. On December 11, 2017, the district court held a pre -trial hearing in the TPR case
jointly with a review hearing in the CHIPS case. A psychological evalua tion was
conducted by Dr. Jorgens, who noted that J.G. missed the scheduled appointment with him
on multiple occasions and has “a full -scale intelligence quotient below average, ” and
opined that J.G. “would have much difficulty running a household, managing money, or
managing the schedules and social needs of children in his care.” On January 8, 2018, the
district court held a second pre-trial hearing in the TPR case jointly with a review hearing
in the CHIPS case. The district court incorporated Dr. Jorgen’s report into its findings in
an order filed after the hearing.
On April 2, 2018, the district court held another joint pre -trial and review hearing .
Later that month , a parental-capacity assessment was conducted by Dr. Shaleen, who
concluded that J.G. “has significant cognitive limitations that would interfere with his
ability to care for his children” and that “the children should not be placed” with him. On
April 30, 2018, the district court held another joint hearing. The district court incorporated
Dr. Shaleen’s report into its findings in an order filed after the hearing.

5
On July 23, 2018, the district court held another joint pre -trial and review hearing.
A second parental-capacity assessment was conducted by Dr. Hunter, who noted that J.G.
was consistently late for appointments and that, “[d]ue to his cognitive and skills deficits ,
he would benefit from in home services to assist him with independent living.” The district
court held additional joint pre-trial and review hearings on August 20, 2018, and September
19, 2018 . In its order following the September 19, 2018 hearing, the district court
incorporated Dr. Hunter’s report by reference, noting that it “did not differ much from the
first” parental-capacity assessment.
At the September 19, 2018 hearing, the district court scheduled trial for December
3 and 4, 2018. On October 15, 2018, the district court held another joint pre -trial and
review hearing at which it reiterated that trial would begin on December 3, 2018, and would
conclude on December 4, 2018. J.G. did not attend the October 15, 2018 hearing. The
district court conducted a final pre -trial and review hearing on November 15, 2018, and
again reiterated the trial dates of December 3 and 4, 2018.
On December 3, 2018, I.I. appeared for trial and voluntarily consented to the
termination of her parental rights with provisions for open adoptions. J.G. did not appear.
The county moved for a “default judg ment.” J.G.’s attorney asked the district court to
continue the trial. The district court asked the county ’s attorney, “[H]ow would you like
to go forward with a record here today? Is it your wish to simply stand on the record in the
CHIPS proceeding and the two Parental Capacity Assessments and reports that are on file
with the Court?” The county’s attorney answered, “Yes, Your Honor. That would be my
request.” J.G.’s attorney objected to a “default judgment.” The district court stated that

6
“the Court is going to go forward under Rule 18 and its default provisions here today. ”
The district court further stated:
The Court does believe that the record in the CHIPS
proceeding and protection matter does support a termination in
relation to his rights. The Court believes that that’s especially
true in relation to the two Parental Capacity Assessments and
reports that were filed with the Court. The Court is going to
receive those items and confirm and has received those as a
part of the record. Again, b asically adopt the record in the
protection matter as the record in this permanency matter. The
Court does believe that that record does support the termination
that is being advanced in the Petition by the County.

The Court will note, Mr. Larson [J.G.’s attorney], that
if there has been a situation for [J.G.] with regard to
transportation or other calamities, that the Court will keep the
record open for you to appear before the Court on Monday,
December 10th at 1:00. And if [J.G.] does appear and show
cause and explain to the Court why a default should not be
granted, then the Court will reconsider its default decision. But
if he doesn’t appear on Monday, December 10th at 1:00, then
it would be the Court ’s intention to confirm the default as it
relates to him.

On December 10, 2018, J.G. appeared for the hearing , with his attorney, who
explained that J.G. had been confused about the date of the trial and had shown up for trial
on the second day, December 4. J.G. ’s attorney asked the district court to conduct a
contested, adversarial trial. The county asked the district court to maintain the finding of
default on the ground that J.G. did not provide a good excuse for failing to appear for trial
on the date for which it was scheduled to begin. The distri ct court took the matter under
advisement.
On January 2, 2019, the district court issued a 21 -page order. The district court
concluded that J.G. ’s “parental rights should be involuntarily terminated on both

7
procedural and substantive grounds. ” Under the heading “Procedural Grounds for
Termination,” the district court referred to J.G.’s default and cited supreme court opinions
for the proposition that “an involuntarily termination by default is not void for lack of due
process.” Under the heading “Substantive Grounds for Termination, ” the district court
concluded that “there are statutory grounds to involuntarily terminate the parental rights of
the Father” for the four reasons alleged in the petition, which the district court discussed in
detail in the fo llowing seven pages of the order, with frequent references to the prior
proceedings and the reports of Dr. Jorgens, Dr. Shaleen, and Dr. Hunter. The district court
administrator entered judgment on the same day. J.G. appeals.
D E C I S I O N
J.G. argues that the district court erred by terminating his parental rights in a manner
that is inconsistent with his constitutional right to due process , for three reasons , each of
which is discussed below.
The supreme court twice has considered whether a termination of parental rights
after a parent’s default violates the parent’s constitutional right to due process. In In re
Welfare of Children of Coats, 633 N.W.2d 505 (Minn. 2001) , the supreme court held that
“‘a judgment will be he ld void for want of due process only where the circumstances
surrounding the trial are such as to make it a sham and a pretense rather than a real judicial
proceeding.’” Id. at 512 (quoting State ex rel. Butler v. Swenson , 66 N.W.2d 1, 4 ( Minn.
1954)). The supreme court stated that “the circumstances surrounding the default judgment
against Coats did not constitute a sham or a pretense such that the default judgment was
void.” Id. The supreme court explained that the district court “took evidence and was

8
focused on the welfare of four children who were freed for adoption after waiting for over
a year in the limbo of foster care while their mother repeatedly failed at the program that
would have brought them home.” Id.
In In re Welfare of L.W. , 644 N.W.2d 796 (Minn. 2002), the supreme court noted
that the district court “conducted an evidentiary hearing on the petition to terminate
parental rights and heard testimony from L.F.’s social worker, the guardian ad litem, and
L.F.’s mother, all of whom testified in support of termination of L.F.’s parental rights.” Id.
at 797. The supreme court stated, “The district court’s decision to terminate parental rights
was based on L.F.’s failure to correct the conditions leading to out-of-home placement and
her neglect of L.W. while L.W. was in foster care, not on L.F. ’s failure to appear. ” Id.
Consequently, the supreme court concluded that “the circumstances of the default
proceeding ‘did not constitute a sham or a hoax ’ and it was ‘a real judicial proceeding.’”
Id. (quoting Coats, 633 N.W.2d at 512).
A.
J.G. first contends that it was “fundamentally unfair for the district court to enter a
default judgment against [him] for failing to appear the first day of the December 3-4, 2018
trial under the circumstances.” He notes that his attorney requested a continuance, that he
appeared on the second of the two days that had been set aside for trial, and that his failure
to appear was due to his cognitive limitations.
We begin by noting that the district court did not enter a “default judgment.” The
rules of juvenile protection procedure do not provide for a “default judgment” or for any
judgment or order that is based solely on a parent ’s failure to appear for trial , as in other

9
civil cases. Cf. Minn. R. Civ. P. 55.01. Rather, the consequence of a parent’s default in a
TPR case is that “the court may receive evidence in support of the petition or reschedule
the hearing.” Minn. R. Juv. Prot. P. 18.01. The rule furth er provides, “If the petition is
proved by the applicable standard of proof, the court may enter an order granting the relief
sought in the petition as to that parent . . . .” Minn. R. Juv. Prot. P. 18.02.
The district court did not misapply rule 18 by finding J.G. in default. The district
court was not obligated to grant J.G.’s attorney’s request for a continuance. The text of the
rule allows a district court to receive evidence or to reschedule the heari ng. See Minn. R.
Juv. Prot. P. 18.01. A district court has broad discretion to grant or deny a request for a
continuance of trial. See, e.g., Maranda v. Maranda, 449 N.W.2d 158, 167 (Minn. 1989);
Szarzynski v. Szarzynski, 732 N.W.2d 285, 297 (Minn. App. 2007). The district court did
not abuse its discretion on the ground that J.G. appeared for trial one day after the beginning
of trial. Similarly, the district court did not abuse its discretion on the ground that J.G. has
cognitive limitations.
The district court scheduled a follow-up hearing to determine the reason or reasons
why J.G. had failed to appear for the beginning of trial , even though no such hearing is
required. By doing so, the district court provided J.G. with an additional opportunity to
avoid the finding of default. At that hearing, J.G.’s attorney informed the district court that
J.G. had appeared for trial on the day after the beginning of trial, and the attorney
specifically called attention to J.G.’s cognitive limitations , which are described in the
parental-capacity assessments that the district court previously had received and reviewed.

10
The district court expressly considered the issue in its final order, as follows:
[J.G.] . . . has challenges with keeping things straight
and being on time. . . . [I]t was observed by the Court in
relation to court hearings, lack of appearances or failures to
appear. It appears clear that [J.G. ’s] cognitive challenges
create a situation wherein he can barely care for himself and
manage his ow n life, let alone oversee a household with four
children.

The district court ’s final order indicates that the district court considered the issues that
J.G. believes should have precluded a finding of default , but the district court nonetheless
determined that J.G. was in default. The district court did not abuse its discretion by finding
J.G. in default.
B.
J.G. next contends that the district court was not an impartial decision-maker
because, on its own initiative, it “summarily received into the record . . . the only evidence
in support of the petition to terminate Appellant ’s parental rights, namely, two Parental-
Capacity Assessments and the entire record in the [CHIPS] case. ” J.G. contends that the
district court “inserted itself into the case” by “direct[ing] the presentation of [the county’s]
case.”
As stated above, the applicable rule provides that, if a parent is in default, the district
court “may receive evidence in support of the petition or reschedule the hear ing.” Minn.
R. Juv. Prot. P. 18.01. In this case, the district court chose the first of those two options:
to receive evidence in support of the petition. In transitioning from its finding of default
to its receipt of evidence, the district court asked the county’s attorney a leading question
about how the county wished to proceed. The county was free to respond in the affirmative

11
or to indicate that it wished to proceed differently. We understand J.G.’s concern about
the fact that the district court’s question effectively communicated to the county that the
evidence described by the district court would be sufficient to carry its burden of proof and
that the county need not introduce additional evidence. We also understand that, because
one party was absent and in default, the proceeding naturally was different from a typical
adversarial proceeding. The district court should have refrained from suggesti ng to the
county the evidence it needed to introduce and should have allowed the county, the
petitioning party, to identify and offer evidence in support of the petition . Cf. State v.
Schlienz, 774 N.W.2d 361, 367 (Minn. 2009).
C.
J.G. last contends that the district court did not give him a meaningful opportunity
to be heard after finding him in default.
J.G. first asserts that his attorney was not allowed to object to the introduction of
evidence, to cross -examine the county ’s witnesses, or to present evidence on his behalf.
The district court did not expressly ask J.G.’s attorney whether he had any objection to the
introduction of the evidence identified by the district court. B ut the district court did not
prevent J.G.’s attorney from objecting. It is common for attorneys to interrupt court
proceedings by interjecting an objection, and there is no reason why J.G.’s attorney could
not have done so in this case.
J.G.’s attorney also did not attempt to introduce evidence on behalf of J.G. and did
not object to the closure of the record without such an opportunity, perhaps be cause his
client was not present. In any event, such a request likely would have been futile because

12
the natural consequence of a finding of default is that the defaulted party is not permitted
to offer evidence. Rule 18 states that, after a finding of default, a district court “may receive
evidence in support of the petition or reschedule the hearing.” Minn. R. Juv. Prot. P. 18.01
(emphasis added). By expressly allowing the receipt of evidence in support of the petition,
the rule implies that a district court may not receive evidence in opposition to the petition.
J.G. also contends that the district court improperly took judicial notice of the three
psychologists’ reports and the record s of the CHIPS and TPR cases. J.G. asserts that the
rules of juvenile protection procedure do not allow the district court to take judicial notice
of those items. We note that t he district court did not expressly state that it was taking
judicial notice of anything. The county had included the three psychologists’ reports on its
exhibit list and had expressed its desire to offer them into evidence pursuant to the district
court’s suggestion. With respect to “the record” in the CHIPS and TPR cases, the district
court’s actions could be construed as taking judicial notice, but such an action is not
necessarily inappropriate. In a TPR case, a district court is expressly permitted to take
judicial notice of “findings of fact and court orders in the juvenile protection court file and
in any other proceeding in any other court file involving the child or the child ’s parent or
legal custodian.” Minn. R. Juv. Prot. P. 3.02, subd. 3. It is fair to assume that the district
court was referring to its prior orders when it referred to “the record” because the district
court’s detailed orders following each hearing are a significant portion of the court files in
both the CHIPS and TPR cases (which are two separate court files).

13
D.
As stated above, a termination of parental rights after a finding of default “will be
held void for want of due process only where the circumstances surrounding the trial are
such as to make it a sham and a pretense rather than a real judicial proceeding. ” Coats,
633 N.W.2d at 512 (quotation omitted). In Coats, the supreme court concluded that there
was no denial of due process because the district court “took evidence and was focused on
the welfare of four children ,” whose best interests were protected and promoted by the
termination of parental rights. See id. In L.W., the supreme court again concluded that
there was no denial of due process because the district court “conducted an evidentiary
hearing on the petition to terminate parental rights and heard testimony from [three
witnesses], all of whom testified in support of termination of L.F.’s parental rights.” 644
N.W.2d at 797. The supreme court emphasized that the “decision to terminate parental
rights was based on L.F. ’s failure to correct the conditions leading to out -of-home
placement and her neglect of L.W. whil e L.W. was in foster care, not on L.F. ’s failure to
appear.” Id.
In this case, the district court received evidence in the form of three written reports
prepared by psychologists who had examined J.G. and assessed his ability to be a parent
of the four children. There is no argument that the district court was not focused on the
children’s best interests. The district court’s decision was based on the presence of the four
statutory grounds alleged in the county’s petition, not solely on J.G.’s failure to appear for
trial. Because the circumstances of this case are similar to the circumstances in Coats and
L.W., we conclude that the district court proceeding that followed the default finding was

14
not “a sham or a hoax ” but, instead, was “a real judicial proceeding.” Id.; Coats, 633
N.W.2d at 512.
Furthermore, even if we were to find that J.G. did not receive all of the process to
which he was due, we nonetheless would not find a violation of his constitutional right to
due process. “[P]rejudice as a result of [an] 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); see also In re Welfare of Children of D.F., 752 N.W.2d 88, 97 (Minn. App. 2008).
The record strongly suggests that J.G. is not fit to fulfill the duties of a parent. As the
district court stated in its final order, J.G. had a “lack of involvement in the parental role ”
before moving to Minnesota, a “lack of basic knowledge or information regarding
appropriate parenting methods and skills,” and “overall cognitive and skills deficits.” The
district court also found that, a fter the children were adjudicated as being in need of
protection and services, J.G. was “unable to engage in the process necessary to reunify with
the children” due to “challenges relating to his present personal, family, mental health and
behavioral health which have limited his ability to be wholly invested in the process
necessary for reunification with the children.” All three psychologists who evaluated J.G.
concluded that he would have great difficulty running a household in light of his
impairments, and both parental -capacity assessments recommended that the children not
be placed with him. Thus, it is apparent that, even if the district court had conducted
additional proceedings with additional procedures, the county would have prevailed, and
J.G.’s parental rights would have been terminated.

15
In sum, the district court did not terminate J.G.’s parental rights in a manner that
violated his constitutional right to due process.
Affirmed.