In the Matter of the Welfare of the Child of: R. H. and D. M., Parents.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1110

In the Matter of the Welfare of the Child of:
R. H. and D. M., Parents.

Filed February 16, 2021
Affirmed
Bjorkman, Judge

Carlton County District Court
File No. 09-JV-19-80

Matthew Miller, Duluth, Minnesota (for appellant R.H.)

D.M., Cloquet, Minnesota (pro se respondent)

Lauri A. Ketola, Carlton County Attorney, Claire Klein, Assistant County Attorney,
Carlton, Minnesota (for respondent Carlton County Public Health and Human Services)

Tim DiPuma, Carlton, Minnesota (guardian ad litem)

Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant R.H. (mother) challenges the transfer of physical and legal custody of her
child to a maternal relative following a default hearing. Mother argues that (1) she was
denied due process of law because she lacked proper notice of the hearing and of the
consequences of failing to appear; (2) the district court abused its discretion by transferring
custody of the child; and (3) she receive ineffective assistance of counsel. We affirm.

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FACTS
Mother and D.M. (father) are the parents of a child born in July 2013. The parties
never married and have “an extensive history with child protection” dating back to 2015.
The child was removed from the home and, following a trial, adjudicated as a child in need
of protection or services ( CHIPS). The problems underlying the CHIPS adjudica tion
include both parents’ chemical-dependency issues, mother ’s mental-health issues, and
mother’s trouble with the law that resulted in her being in custody for a significant portion
of the CHIPS proceeding. Mother ultimately completed the case plan and was reunited
with the child.
In June 2019, respondent Carlton County Public Health and Human Services ( the
county) filed a petition to terminate mother’s parental rights after receiving reports that the
child was raped on a playground, and that mother and father were using drugs in the home.
Mother failed to appear at the emergency protective-care hearing, and the district court
determined that transferring custody to the county was in the child’s best interests.
Mother failed to appear in court for si x out of the next ten hearings. During the
November 5, 2019 pretrial hearing, the county moved to proceed by default, which the
district court denied.1 Two days later, mother was personally served with a petition to
transfer permanent legal and physical custody of the child to a relative. The summons
specifically warne d that failure to appear may result in the court “granting the relief
requested in the petition,” including “permanently transferring the [child’s] legal and

1 Father consented to transfer legal and physical custody of the child during this hearing.

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physical custody to a relative. ” Mother nevertheless did not appear for the admit/deny
hearing, which the district court rescheduled.
Mother attended three of the next four pretrial hearings but again failed to appear
on February 25, 2020. Mother’s attorney stated that she had been “texting [mother] every
several days since the last heari ng reminding [mother] of [the hearing] and the trial and
asking [mother] to contact me, and I’ve had, unfortunat ely, no contact with her.” The
county then moved to proceed by default over the objection of mother’s attorney; this time
the district court granted the request.
A county social worker testified about mother’s prior involvement with child
protection and her continued drug use and mental-health issues. The social worker also
testified that since June 2019, mother has not had stable housing, has been in and out of
jail, and has had “[m]inimal” contact with the child. He stated that, although he created a
case plan for mother, he has not had the opportunity to review it with her. But the social
worker added that he generally discuss ed the services the county would be asking mother
to participate in during the occasions when he transported mother to and from the court.
The social worker opined that it is in the child’s best interests to transfer permanent legal
and physical custody to a maternal aunt.
The guardian ad litem (GAL) testified that he had no contact with mother despite
multiple attempts to reach her. He explained that the child could not be returned to
mother’s care because, in light of her outstanding warrants and drug use, mother is unable
to provide safe and stable housing for the child. And the GAL agreed that it is in the child’s
best interests to transfer custody to the maternal aunt.

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The district court determ ined that “[c]lear and convincing evidence supports a
permanent transfer of legal and physical custody of the child to the proposed custodian.”
But the district court found that the “best interests of the child are served by deferring
transfer of permanen t legal and physical custody pending determination of the child’s
eligibility for Northstar Kin ship Assistance.” The district court left the record open for
“two weeks so that an affidavit from the foster parent may be received.”
In April 2020, mother’s lawyer filed a letter requesting that the district court dismiss
the default order. At a subsequent review hearing, the district court took no action on the
letter because it was not a formal motion. Counsel then orally moved the district court to
vacate the default order because mother was in treatment, had plans for aftercare, and was
doing well. The district court denied the motion.
After the Kinship Benefit Agreement was filed, the district court issued its findings
of fact, conclusions of law, and order transferring permanent legal and physical custody of
the child. The district court determined that the “evidence is clear and convincing that the
child should not be returned to the home of the mother” and that “it is in the child’s best
interest that permanent legal and physical custody immediately be transferred to [the
child’s] maternal aunt.” Mother appeals.
DECISION
On appeal from a n order permanently transferring custody of a child, we apply a
two-part standard of review. See In re Welfare of Child of D.L.D., 865 N.W.2d 315, 321-
22 (Minn. App. 2015), review denied (Minn. July 21, 2015). We review the district court’s
factual findings to determine whether they are clearly erroneous. Id. at 321. “A finding is

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clearly erroneous only if there is no reasonable evidence to support the finding or when an
appellate court is left with the definite and firm conviction that a mistake occurred.” Id. at
322 (quotation omitted). And we review the district court’ s ultimate determination that
there was a statutory basis for a permanency disposition for an abuse of discretion. Id. at
321. “A district court abuses its discretion if it improperly applies the law.” Id. at 322
(quotation omitted).
I. The district court did not err by proceeding by default.
Mother contends that proceeding in her absence was “unwarranted,” and vi olated
her right to due process because she was “not provided with adequate notice of the
consequences of failing to appear for the February [25], 2020 pretrial hearing.” She did
not make this argument to the district court. We generally do not consider matters not
argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988). Accordingly, mother’s argument that the district court improperly granted the
county’s motion to proceed by default is not properly before us.
But even if it were, we conclude that it fails on the merits. “Due process requires
reasonable notice, a timely opportunity for a hearing, the right to counsel, the opportunity
to present evidence, the right to an impartial decision -maker, and the right to a reasonable
decision based solely on the record.” In re Welfare of Children of D.F. , 752 N.W.2d 88,
97 (Minn. App. 2008); see also In re Welfare of L.W., 644 N.W.2d 796, 796 (Minn. 2002)
(holding that due process was satisfied where parent had adequate notice of a hearing and
was warned that failure to appear could result in termi nation of parental rights). Whether
a parent’s due-process rights have been violated is a question of law, wh ich we review

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de novo. See In re Welfare of Children of B.J.B., 747 N.W.2d 605, 608 (Minn. App. 2008).
But we review the district court’s related factual findings for clear error. In re Welfare of
A.D., 535 N.W.2d 643, 648 (Minn. 1995).
Mother argues that the district court’s finding that mother had “proper notice of [the
February 25, 2020] hearing and of the consequences of f ailing to appear” lacks support in
the record. This argument is unavailing.
In a transfer-of-custody case, a summons must be issued by the court ordering the
initial appearance in court of the child’s parents. Minn. R. Juv. Prot. P. 53.02, subd. 1. The
summons must contain a copy of the petition, “a statement of the time and place for the
hearing,” “a statement describing the purpose of the hearing,” and a statement explaining
the rights of representation. Id., subd. 2(a)-(d). And the summons must contain a statement
that the failure to appear may result in:
(1) permanent out -of-home placement of the child
pursuant to a permanency petition;
(2) permanent transfer of the child’s legal and physical
custody to a relative;
(3) a finding that the statutory grounds set forth in the
petition have been proved; and
(4) an order granting the relief requested.

Id., subd. 2(e). Finally, the summons must contain “a statement pursuant to Rule 18.01
that . . . if the p erson summoned fails to appear, the court may conduct the hearing in the
person’s absence.” Id., subd. 2(g)(1).
If a parent fails to appear for an admit -deny hearing, a pretrial hearing, or a trial
after being properly served with a summons under rule 5 3.02, the district court has
discretion to “receive evidence in support of the petition,” Minn. R. Juv. Prot. P. 18.01, and

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“[i]f 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.
Mother agrees that the summons she received with the transfer-of-custody petition
met all of the requirements of Minn. R. Juv. Prot. P. 53.02, subd. 2 . But she contends it
was deficient because it did not explain the consequences of failing to appear for later
hearings. And she asserts that the district court did not advise her orally or in a written
order that her failure to appear at future hearings could result in the matter proceeding by
default and the court granting the relief sought in the petition. We are not persuaded for
two reasons.
First, mother cites no legal authority for the proposition that a parent’s right to due
process is violated where orders issued after the initial summons do not contain the
language required by rule 53.02. And our independent research reveals none. Second, the
record satisfies us that mother had adequate notice of the February 25, 2020 hearing and
the potential consequences of her failure to appear. At ever y hearing she attended, the
district court announced the date and time of the next hearing and told the parties that the
court would see them then. Mother acknowledged during the December 17, 2019 hearing
that she “kn[e]w all about” the timelines in child -protection cases because she “was just
here in 2015.” Mother’s understanding that she was required to attend all court hearings
is further demonstrated by the fact that on the mornings of three of the hearings she missed,
she contacted her attorney or social worker to advise that she was unable to attend. On this
record, we see no clear error by the district court in fi nding that mother had proper notice

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of the February 25, 2020 hearing, and the consequences of failing to appear for that hearing.
Accordingly, the district court did not err by permitting the county to proceed by default.
II. The district court did not abuse its discretion by transferring legal and physical
custody of the child to a maternal relative.

A district court “may order permanent legal and physical custody to a fit and willing
relative in the best interests of the child.” Minn. Stat. § 260C.515, subd. 4 (20 20). An
order permanently transferring legal and physical custody of a child must address:
(1) how the child’s best interests are served by the order;
(2) the nature and extent of the responsible social
services agency’s reasonable efforts . . . to reunify the child
with the parent . . . where reasonable efforts are required;
(3) the parent’s or parents’ efforts and ab ility to use
services to correct the conditions which led to the out-of-home
placement; and
(4) that the conditions which led to the out -of-home
placement have not been corrected so that the child can safely
return home.

Minn. Stat. § 260C.517(a) (20 20). Findings on each of the four statutory factors must be
proved by “clear and convincing evidence.” See Minn. R. Juv. Prot. P. 58.03, subd. 2(a).
Mother argues that the district court clearly erred by finding that ( 1) the transfer of
custody wa s in the c hild’s best interests and ( 2) the county made reasonable efforts to
reunify the child with mother. We address each argument in turn.
A. Best Interests
In making a permanency disposition order, the district court “must be governed by
the best interests of the child, including a review of the relationship between the child and
relatives and the child and other important persons with whom the child has resided or had
significant contact.” Minn. Stat. § 260C.511(b) (2020). To be sufficient, a district court’s

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best-interests findings must facilitate effective appellate review, provide insight into which
facts or opinions were most persuasive for the court’ s ultimate decision, and demonstrate
the court’ s comprehensive consideration of the statutory criteria. In re Tanghe , 672
N.W.2d 623, 626 (Minn. App. 2003).
Mother argues that the testimony provided by the social worker and the GAL at the
default hearing is insufficient to support the district court’s findings that transfer of custody
was in the child’s best interests. But the best-interests findings are not based solely on that
testimony. Without objection, t he district court took judicial notice of the 2015 CHIPS
proceeding, and made detailed findings regarding mother’s extensive use of controlled
substances that prompted the filing of that CHIPS petition. See Minn. R. Juv. Prot. P. 3.02,
subd. 3 (stating that 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 or the child’s parent”) ; Minn. R.
Evid. 201(e) (addressing a party’s right to be heard regarding a court taking judicial notice).
The district court also found that the current child-protection proceedings were premised,
in part, on mother’s continued drug use—including use in the child’s presence —and her
significant mental-health issues. Moreover, the district court found that mother missed
several court appearances, and that at times duri ng these proceedings, mother has been
homeless, continues to use controlled substances, and has not attended visits with the child.
In addition to the extensive findings regarding mother’s inability to provide
adequate care for the child, the district co urt made findings regarding the ability of the
child’s maternal aunt to safely care for the child. These findings are supported by the

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affidavit in which the aunt states that (1) “she wishes to have permanent legal and physical
custody of [the child]”; (2) she is “mentally and physically able to provide for the needs of
the child”; (3) she “has been the primary caretaker of the child since June 25, 2019 and has
provided a stable and satisfactory environment for the child and has developed a close
intimate family relationship with the child”; and (4) she understands that the child is able
to maintain a relationship with the child’s relatives, including reasonable parenting time
with mother conditioned upon mother’s sobriety.
The district court further found that “[t]he child has been in continuous, out-of-home
placement in excess of 880 days over the past five years,” and that the child’s father
testified that transfer of custody was in the child’s best interests. In sum, the district court
found, based on all of the record evidence, that the child has “a safe, stable, and loving
home in the care of the relative,” and that it is “in the child’s best interests that [the child]
be placed in the permanent sole legal and physical custody of the maternal aun t.” On this
record, we conclude that the district court did not clearly err by finding that the transfer of
custody is in the child’s best interests.
B. Reasonable Efforts
Subject to certain exceptions not applicable here, reasonable efforts for reunification
are always required. Minn. Stat. § 260.012(a) (2020). “[T]he nature of the services which
constitute ‘reasonable efforts’ depends on the problem presented.” In re Welfare of
Children of T.R., 750 N.W.2d 656, 664 (Minn. 2008) (quoting In re Welfare of S.Z., 547
N.W.2d 886, 892 (Minn. 1996) ). In determining whether reasonable efforts have been
made, the district court must consider whether the service s to the child and family were:

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“(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the
child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and
timely; and (6) realistic under the circumstances.” Minn. Stat. § 260.012(h) (2020).
Mother argues that the social worker’s testimony during the default hearing
“includes nothing addressing the six requirements contained within [section] 260.012(h),
and nothing that could be construed as genuine assistance.” She specifically contends that
the county knew she struggled with homelessness, but developed a case plan that “does not
include even a single resource listed to assist with this most essential of basic human
needs.” Because neither the social worker nor the GAL presented evidence that mother
received housing assistance, mother asserts the district court’s reasonable-efforts finding
is clearly erroneous.
We are not persuaded. The social worker acknowledged that mother lacked stable
housing, but noted that she has been “in out and of jail throughout these proceedings.” In
addition, the record reflects that despite numerous attempts by the county to contact
mother, she was often unreachable. In fact, mother’s failure to attend many of the hearings
in this matter demonstrates her reluctance to cooperate with the county. The social worker
testified that, during the few times he was able to meet with mother when he transported
her to and from court, he “had a good opportunity to discuss the services” provided by the
county. But according to the social worker, mother “just ticked ‘em off her self because
she mentioned that—she mentioned, in essence, it’s gonna be the same —pretty much the
same as we had the f irst time around.” As the county points out, it “cannot work with a
parent who does not avail herself to the child protection process.”

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More importantly, the social worker testified that the county focused its services on
the issues that precipitated these proceedings—mother’s drug use and mental-health issues.
Services included chemical -dependency and mental -health evaluations and counseling,
and other programming designed to assist mother in maintaining sobriety. These services
were particularly relevant to the problems presented in this case, and suppo rt the district
court’s finding that the county made reasonable efforts to reunify the child with mother.
See T.R., 750 N.W.2d at 664 ( “[T]he nature of the services which constitute ‘reasonable
efforts’ depends on the problem presented.” ). We see no clear error in the district court’ s
finding that the county made reasonable efforts to reunify the child with mother.
Because the district court did not clearly err in its best -interests and reasonable -
efforts findings, the district court acted within its discretion when it granted the coun ty’s
petition to transfer legal and physical custody of the child.
III. Mother received effective assistance of counsel.
Parents have a right to effective assistance of counsel in child -protection
proceedings. Minn. Stat. § 260C.163, subd. 3(a) (20 20). Minnesota courts have used the
test set out in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984), when
considering ineffective-assistance-of-counsel claims in noncriminal matters. See, e.g., In
re Welfare of L.B. , 404 N.W.2d 341, 345 (Minn. App. 1987) (applying Strickland in
juvenile-delinquency context); see also Beaulieu v. Minn. Dep’t of Human Servs. , 798
N.W.2d 542, 550 (Minn. App. 2011) (applying Strickland in the civil commitment
context), aff’d on other grounds, 825 N.W.2d 716 (Minn. 2013). Under Strickland, mother
has the burden of establishing that her lawyer’s representation “‘fell below an objective

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standard of reasonableness ’” and that a reasonable probability exists that, but for the
lawyer’s error, the result of the proceeding would have been different. Gates v. State, 398
N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at
2064, 2068). “We need not address both the performance and prejudice prongs if one is
determinative.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
Mother argues that she was denied the effective assistance of counsel because her
lawyer failed to “effectively” move the district court to vacate the default order and present
“compelling arguments in accordance with the appropriate standards for such motions.” 2
See Minn. R. Juv. Prot. P. 22.02 (addressing a party’s ability to obtain relief from a juvenile
court ruling). We disagree. To obtain relief from a default order, 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. In re Welfare of Children of Coats , 633 N.W.2d 505, 510 &
n.4 (Minn. 2001) (applying, before the predecessor of the current Minn. R. Juv. Prot.
P. 22.02 became effective, Minn. R. Civ. P. 60.02 to default termination of parental rights).
Assuming, without deciding, that mother’s lawyer’s failure to file a formal motion
to vacate under rule 22.02 was objectively unreasonable , we conclude that mother is not

2 Mother forfeited this issue by failing to raise it in the district court. See Thiele , 425
N.W.2d at 582. But in light of the nature of the proceedings, we will review the issue in
the interests of justice under Minn. R. Civ. App. P. 103.04. See Minn. R. Juv. Prot. P. 23.01
(stating that, with exceptions not applicable here, the Minnesota Rules of Civil Appell ate
Procedure apply in juvenile-protection matters).

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entitled to relief because she is unable to establish the second Strickland prong—that the
result of the proceeding would have been different. As discussed above, the record amply
supports the district court’s findings of fact and ultimate decision to transfer legal and
physical custody of the child to a maternal aunt. Accordingly, mother has not demonstrated
that she had a reasonable defense on the merits. And she has not shown that she had a
reasonable excuse for her failure to act. She had adequate notice of the February 25, 2020
hearing and the consequences—including transfer of custody—of her failure to attend.
In short, mother has not established that, but for her lawyer’s failure to seek relief
under rule 22.02, the outcome of this proceeding would have been different. See Gams v.
Houghton, 884 N.W.2d 611, 620 (Minn. 2016) (stating that a party must satisfy all four
factors articulated in rule 60.02 in order to be granted relief). She was not denied the
effective assistance of counsel.
Affirmed.