In re the Matter of the Welfare of the Child of: B.E.M. and J.M.M., 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This opinion will be unpublished and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
A19-0811

In re the Matter of the Welfare of the Child of:
B.E.M. and J.M.M., Parents.

Filed October 21, 2019
Reversed and remanded
Slieter, Judge

Mille Lacs County District Court
File No. 48-JV-19-610

Cathleen Gabriel, Annandale, Minnesota (for appellant mother B.E.M.)

Madison A. Bruber, St. Paul, Minnesota (for respondent father J.M.M.)

Joe Walsh, Mille Lacs County Attorney, Briana J. Williams, Assistant County Attorney,
Milaca, Minnesota (for respondent Mille Lacs County Community and Veteran’s Services)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Kalitowski,
Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant mother B.E.M. challenges the district court’s termination of her parental
rights by default following her failure to appear at an admit-deny hearing, arguing that the
district court erred by not accepting her counsel’s request to enter a denial to the

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

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termination-of-parental-rights (TPR) petition and setting the matter for a pretrial hearing.1
Minn. R. Juv. Prot. P. 18.01 precludes the district court from proceeding by default against
an absent parent at the admit-deny hearing when counsel for the absent parent enters a
denial on the absent parent’s behalf. Because the district court did not accept counsel’s
requested denial on the parent’s behalf and, additionally, did not receive sworn testimony
or documentary evidence sufficiently supporting a TPR order, we conclude the court
committed error that violated appellant’s due-process rights. We reverse and remand.
FACTS
Appellant and respondent father J.M.M. have one child together , J.A.M. born in
2013. As described in the underlying child in need of protection or services (CHIPS)
petition, J.A.M. has significant medical needs as a result of his premature birth, including
several diagnosed conditions.
On September 7, 2018, Mille Lacs County Community and Veteran’s Services filed
a CHIPS petition related to J.A.M. Since the county filed the CHIPS petition, J.A.M. has
been under the county’s jurisdiction and placed in non-relative foster care. On September
21, 2018, the court entered a CHIPS adjudication and ordered the parents to comply with
a case plan. The county developed an out -of-home-placement plan for appellant that
included, inter alia, respite care, transportation services, financial support, housing search,
early childhood education, WIC/public health services, and mental health referrals.

1 Appellant raises additional challeng es to the district court’s termination order for
erroneous factual findings and failing to make particularized best-interest findings. We do
not reach these claims because the district court’s decision to proceed by default violated
appellant’s due-process rights, which requires reversal and remand.

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On March 29, 2019 , the county filed a petition to terminate the parents’ parental
rights. The county sought to terminate appellant’s parental rights under M inn. Stat.
§ 260C.301, subds. 1(b)(2), (4)-(6), (8) (2018). The district court scheduled the admit-
deny hearing on the TPR petition for April 26, 2019. The district court also appointed a
lawyer for each parent.
The parents failed to appear at the admit -deny hearing but, as explained by the
county at the admit -deny hearing, the parents had “called the Court.”2 The county
requested the district court enter a default order on the TPR petition . Counsel for the
parents each requested that the district court enter denials on their respective client’s behalf
and schedule the matter for a pretrial hearing. 3 The guardian ad litem indicated that she
supported terminating both parents’ parental rights by default because “the parents [were]
in minimal compliance with the case plan.” The district court asked the guardian ad litem
questions about the child’s progress , eliciting statements —not under oath —that J.A.M.
was doing “[e]xtremely well” in his placement.
Following statements from the guardian ad litem , t he district court granted the
county’s request to proceed by default. The district court stated:
I grant the County’s request for default in both cases. I
find both of them had adequate notice, contact with the various
other elements of the case — in som e cases, including the
counsel, but failed to respond and appear today in a timely

2 The transcript of the admit-deny hearing does not explain the nature of the parents’ call
to the district court. Counsel for the county at the hearing noted that the hearing began
approximately 25 minutes after it was scheduled.

3 J.M.M. filed an appeal following the TPR order, but he withdrew his appeal. We therefore
only address appellant’s issues raised on appeal.

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fashion for a hearing necessary and important, in this case,
obviously.

It’s in the best interest that the child remain placed in
nonrelative foster care pending adoption. The agency has
applied least restrictive alternatives to these placements and
this outcome, and I’ll adopt the report s filed with the Court as
the Court’s finding in that regard. Reasonable efforts have
been made to reunify the family.

I’ve been prese nt through numerous hearings, much
discussion about visitation.
The district court questioned the county social worker present at the hearing —not
under oath—about different efforts made with the parents for parenting time and doctor
appointment attendance. The county social worker noted that the parents were late to
parenting time and doctor appointments; the parents provided explanations for their late
appointments that the county social worker considered “not acceptable.” Based on these
statements the district court stated:
All right. That’s part of my findings regarding
reasonable efforts. The County’s extended quite extensive
efforts to get the [parents] to doctor appointments and to
visitation — accommodated many of those requests and
adjustments over the pendency of this case, and I’m personally
aware of that having presided over those prior hearings, I think,
in their entirety.

And, again, I’ll adopt the reports filed with the Court
regarding those reasonable efforts and make that part of my
findings.

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At counsels’ request, the district court discharged their representation at the end of the
hearing.4
Part of the district court’s TPR order included a factual finding that appellant had
notice of the admit -deny hearing and was personally served with the TPR petition. This
appeal follows.
D E C I S I O N
Appellant argues that the district court violated her due -process rights. First,
appellant contends the dist rict court should have granted her counsel’s request to enter a
denial on her behalf, as permitted by the rule, and set the matter for a pretrial hearing.
Second, appellant asserts that she was deprived the opportunity to confront and cross -
examine witnesses.
Appellate courts “exercise[] great caution in termination proceedings, finding such
action proper only whe n the evidence clearly mandates such a result.” See In re Welfare
of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). “Whether a parent’s due-process rights have
been violated in a TPR proceeding is a question of law, which we review de novo.” In re
Welfare of Children of D.F., 752 N.W.2d 88, 97 (Minn. App. 2008).
“The parent -child relationship is among the fundamental rights protected by the
constitutional guarantees of due process.” Id.; see also SooHoo v. Johnson, 731 N.W.2d

4 Appellant raises no challenge to the district court’s discharge order, bu t we note that
discharge should only occur after conclusion of the district court proceedings. See In re
Welfare of Child of M.L.A., 730 N.W.2d 54, 62 (Minn. App. 2007) (holding that the district
court abused its discretion by discharging court -appointed counsel, without cause, before
conclusion of district court proceedings); see also Minn. R. Juv. Prot. P. 36.05 (addressing
withdrawal and discharge of counsel).

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815, 820 (Minn. 2007) (“A parent’s right to make decisions concerning the care, custody,
and control of his or her children is a protected fundamental right.”). A district court’ s
termination decision must be subject to “due process safeguards.” In re Welfare of L.J.B.,
356 N.W.2d 394, 397 (Minn. App. 1984). “Due process requires reasonable notice, a
timely opportunity for a hearing, the right to counsel, the opportunity to pres ent evidence,
the right to an impartial decision-maker, and the right to a reasonable decision based solely
on the record.” D.F., 752 N.W.2d at 97; see also In re Welfare of Children of B.J.B. , 747
N.W.2d 605, 608 (Minn. App. 2008) (“The applicable due -process standard for juvenile
proceedings is fundamental fairness.”). “‘It is settled that the nature of due process is
flexibility. The amount of process due varies with the circumstances of the case.’” In re
Welfare of Children of Coats , 633 N.W.2d 505, 514 (Minn. 2001) (quoting In re Welfare
of H.G.B., 306 N.W.2d 821, 825 (Minn. 1981)). For a parent to present a valid due-process
challenge that parent must show error and “prejudice as a result of the alleged violation”
because that is “an essential component of the due process analysis.” In re Welfare of B.J.-
M., 744 N.W.2d 669, 673 (Minn. 2008) (citations omitted).
A. The district court procedurally erre d by proceeding in default despite
appellant’s counsel ’s request to enter a denial on his absent client’s
behalf.
Because appellant received notice of the potential consequences for failing to appear
at the admit-deny hearing about her child, 5 the question turns to whether the district court

5 We do not address appellant’s alternative argument regarding lack of service and notice
of admit-deny hearing because appellant is entitled to relief because of the due -process
violation as described herein. We do note however, the record does support the district
court’s finding that she was properly served with notice.

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properly proceeded by default in this circumstance. As noted below, the rules of juvenile
protection allow for an attorney to enter a denial on an absent client’s behalf at the admit -
deny hearing.
Pursuant to Minn. R. Juv. Prot. P. 18.01, 6 a district court may proceed by default
against a n absent parent in a juvenile protection proceeding—with two identified
exceptions.
Except as otherwise provided in Rules 47.02,
subdivision 1, and 56.02, subdivision 1 , if a parent, legal
custodian, or Indian custodian fails to appear for an admit-deny
hearing, a pretrial hearing, or a trial after being properly served
with a summons pursuant to Rule 44.02 or 53.02, or a notice

6 The Minnesota Supreme Court promulgated amendments to the rules of juvenile
protection procedure effective September 1, 2019 —including rule 18 —“to simplify the
rules and incorporate necessary changes for consistency with updated laws and
regulations.” Order Promulgating Amendments to the Rules of Juvenile Protection
Procedure and the Rules of Adoption Procedure, Nos. ADM10-8040, 10-8041 (Minn. May
13, 2019); see also Order Promulgating Amendments to the Rules of Juvenile Protection
Procedure, No. ADM10-8041 (Minn. Aug. 30, 2019) (amending Minn. R. Juv. Prot. P. 59
for reestablishment of the legal parent and child relationship following legislative
amendments). The amendments to the rules are effective September 1, 2019 and apply to
cases pending on that d ate. Id. The amendments modified r ule 18.01 to “update[] the
cross-references in” the rule and “are not intend ed to substantively change the [r] ule’s
meaning.” Minn. R. Juv. Prot. P. 18.01 2019 comm. cmt. But see Commandeur LLC v.
Howard Hartry, Inc., 724 N.W.2d 508, 511 (Minn. 2006) (“[H]owever, as we have noted,
advisory ‘committee comments are included for convenience and are not binding on the
court.’”) (quoting Vandenheuvel v. Wagner, 690 N.W.2d 753, 756 ( Minn. 2005) (citation
omitted)).

The former rule 18.01, which was in effect when the district court made its decision, is
substantively the same rule. Former rule 18.01 cross-referenced the former rule 35.02,
subdivision 1, which permitted a denial to be made by counsel without their client’s
appearance. See Minn. R. Juv. Prot. P. 35.02, subd. 1 (“A written denial or a denial on the
record of the statutory grounds set forth in a petition may be entered by counsel without
the personal appearance of the person represented by counsel.”). The former and current
rule 18.02 both required the petition to be proven by the applicable standard of proof to
permit relief to be granted by the district court.

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pursuant to Rule 44.03, 44.04, 53.03, or 5 3.04, the court may
receive evidence in support of the petition or reschedule the
hearing.
Minn. R. Juv. Prot. P. 18.01 (emphasis added). Pursuant to rule 56.02, subdivision 1, “[a]
written denial or a denial on the record of the statutory grounds set for th in a petition may
be entered by counsel without the personal appearance of the person represented by
counsel.”
Although appellant failed to appear at the scheduled admit-deny hearing, appellant’s
counsel did appear. Appellant’s counsel requested that the district court “not enter a default
judgment against [appellant] at this juncture and just allow [counsel] to enter a denial to
the termination petition and have the matter set on for a pretrial.” By operation of rule s
18.01 and 56.02, subdivision 1, the district court cannot proceed by default when counsel
for appellant requested to enter a denial without appellant’s presence. Because the district
court proceeded by default contrary to the rules, the district court erred.
B. The district court procedurally erred in the manner in which it held the
default hearing.
The district court compounded its procedural error of entering default without
accepting counsel’s denial on behalf of his client, inconsistent with the rules, by the manner
in which the district court conducted the default hearing.
Rule 18 states that the district court proceeding by default “may receive evidence in
support of the petition or reschedule the hearing,” Minn. R. Juv. Prot. P. 18.01, and that the
order will be granted only if “proved by the applicable standard of proof,” Minn. R. Juv.
Prot. P. 18.02. In L.W. and Coats, the supreme court upheld default orders granting TPR

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petitions after “[t]he district court conducted an evidentiary hearing on the petition to
terminate par ental rights and heard testimony,” which made the proceedings “‘not
constitute a sham or a hoax’ and it was ‘a real judicial proceeding.’” In re Welfare of L.W.,
644 N.W.2d 796, 797 (Minn. 2002) (quoting Coats, 633 N.W.2d at 512); see also Coats,
633 N.W.2d at 512 (recognizing that the record established that the district court “took
evidence and was 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 fa iled at
the program that would have brought them home”).
Rather than receiving sworn testimony from the guardian ad litem and the county
social worker in support of the TPR petition, the district court asked questions of witnesses,
who were not placed under oath, and there was no opportunity for counsel for any party to
ask questions. The district court sua sponte adopted the social worker’s report to court as
part of its findings and received the CHIPS petition as part of the record.7 The record
before u s does not reflect an evidentiary proceeding like that in L.W. and Coats and

7 The district court’s order explained that it took judicial notice of these documents.

In addition to the judicial notice permitted under the Rules of
Evidence, the court, upon its own motion . . . may take judicial
notice only 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 o r the child’s parent or legal
custodian.

Minn. R. Juv. Prot. P. 3.02, subd. 3 (emphasis added); Minn. R. Evid. 201; see also Minn.
Stat. § 260C.163, subd. 1(a) (2018) (“In all adjudicatory proceedings regarding juvenile
protection matters under this chapter, the court shall admit only evidence that would be
admissible in a civil trial.”). Appellant raises no objection on appeal to the district court’s
receipt of these documents pursuant to judicial notice.

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consistent with the requirement of rule 18.01 . The district court therefore made an
additional procedural error, as part of the default process, by not holding an evidentiary
hearing during which the county was held to its burden to present evidence in supp ort of
the petition.
As further support of this analysis , we suggested in a recent unpublished opinion
the critical distinction of default judgment under the Minnesota Rules of Juvenile
Protection compared to the Minnesota Rules of Civil Procedure. In re Welfare of Children
of I.I., No. A19-0133, 2019 WL 2263515, at *4 (Minn. App. May 28, 2019). Rather than
allowing a default judgment against a parent for merely failing to a ppear, the court in I.I.
explained that a parent’s failure to appear at a TPR hearing permits the district court to
receive evidence and apply the applicable standard of proof to grant a default TPR. Id.
Although not precedential, we find the reasoning in I.I. to be persuasive.8 See Minn. Stat.
§ 480A.08, subd. 3(c) (2018).
C. Appellant established that the district court’s procedural errors resulted
in prejudice.
For appellant to be entitled to relief on her due-process challenge, she must establish
“prejudice as a result of the alleged violation” because that is “an essential component of
the due process analysis.” B.J.-M., 744 N.W.2d at 673 (citations omitted); see also D.F.,
752 N.W.2d at 97 (applying harmless error in terminati on cases on appeal). Because we
determine that the district court could not proceed by default in this context and, moreover,

8 The I.I. court’s decision was based on the language of former rule 18 , but we conclude
that the rule has not substantively changed.

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did not hold an evidentiary hearing when it chose to proceed by default , appellant was
prejudiced by the district court’s denial of her due-process right to present evidence . See
D.F., 752 N.W.2d at 97 (recognizing a parent’s right to present evidence in a TPR action).
We reviewed the evidence considered by the district court during the admit-deny
hearing in support of the TPR. Although the district court asked questions to the guardian
ad litem and the county social worker, their responses were not under oath. The appellate
record lacks sworn testimony or documentary evidence that conclusively supports the
district court’s termination and addresses the analysis of the child’s best interests, which is
the paramount consideration in juvenile protection cases. See Minn. Stat. § 260C.001,
subd. 2(a) (2018) (“The paramount consideration in all juvenile protection proceedings is
the health, safety, and best interests of the child.”) ; Minn. R. Juv. Prot. P. 58.04(c)(2)(ii)
(providing the particularized findings necessary for addressing best interests of the child in
TPR cases); see also S.Z., 547 N.W.2d at 893 (recognizing great caution taken by appellate
courts in termination proceedings) . Appellant establishes that the TPR order granted by
the district court did not comply with her due -process rights, which caused her prejudice.
See In re Welfare of Child of A.H., 879 N.W.2d 1, 6 (Minn. App. 2016) (“But ‘we will not
reverse a correct decision simply because it is based on incorrect reasons.’”) (quoting Katz
v. Katz, 408 N.W.2d 835, 839 (Minn. 1987)).
This court recognizes that the unfortunate result of this decision is delayed
permanency for J.A.M. The Minnesota Rules of Juvenile Protection were adopted with the
intention to “secure for each child under the jurisdiction of the court a home that is safe
and permanent.” Minn. R. Juv. Prot. P. 1.02(a). However, the rules are also established to

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“provide a just, thorough, speedy, and efficient determination of each juvenile protection
matter before the court and ensure due process for all persons involved in the procedures.”
Id. (b); see also In re Welfare of Child of R.K. , 901 N.W.2d 156, 163 n.9 (Minn. 2017)
(recognizing the rules as “seek[ing] to ensure due process for all parties”). We reverse and
remand for further proceedings consistent with this decision.
Reversed and remanded.