In the Matter of the Welfare of the Child of: V. R. and J. N., 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This opinion is nonprecedential except as provided by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
A20-1341

In the Matter of the Welfare of the Child of: V. R. and J. N., Parents.

Filed April 12, 2021
Reversed and remanded
Florey, Judge

Kandiyohi County District Court
File No. 34-JV-20-178

Jennifer L. Thompson, JLT Law & Mediation, Litchfield, Minnesota (for appellant -father
J.N.)

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent
Kandiyohi County Health and Human Services)

John W. Mueller, Mueller Law Office, Litchfield, Minnesota (for respondent-mother V.R.)

Kristi Barber, Willmar, Minnesota (guardian ad litem)

Considered and decided by Frisch, Presiding Judge; Florey, Judge; and John Smith,
Judge.*
NONPRECEDENTIAL OPINION
FLOREY, Judge
Respondent-county fi led a petition seeking to terminate the parental rights of
appellant-father. Father did not appear for a pretrial hearing , and the district court , sua
sponte, directed the county to proceed by default. After a short default trial, the district

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

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court found that a statutory ground for involuntary termination existed and that it was in
the child’s best interests to terminate father’s parental rights. Father challenges the district
court’s decision to proceed by default. Considering the unique circumstances of this case,
we conclude that the district court abused its discretion in sua sponte proceeding by default
and remand for further proceedings.
FACTS
In August 2020, respondent Kandiyohi County filed a petition to terminate the
parental rights of appellant-father J.N. and mother V.R. to their child (born in 2019). The
petition alleged that father was palpably unfit to be a party to the parent and child
relationship. See Minn. Stat. § 260C.301, subd. 1(b)(4) (2020). Father’s parental rights to
another child had previously been involuntarily terminated—thus, father was presumed to
be palpably unfit. Id.
Father was in prison during these proceedings and was scheduled to be released in
December 2020. He appeared for the admit/deny hearing on September 1, 2020, via virtual
courtroom. He denied the petition. The district court scheduled a pretrial conference for
September 30, 2020, and a trial beginning on October 13, 2020.
Father did not appear for the pretrial conference. Father’s attorney told the district
court that she “had a difficult time getting a hold of” father, who was still confined. But
she indicated that she had talked with father and understood his position on the matter. In
response, the district court stated that father was aware of the consequences for failing to
appear at the pretrial conference and indicated that it would “allow the petition to proceed
in default.”

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The county’s attorney told the district court that the parties had reached an
agreement to resolve the matter by voluntary termination. But the district court observed
that it could not do a voluntary termination when father was not there. The county’s
attorney responded that he underst ood, but that “five minutes ago that was how we were
hoping to proceed.”
The district court then, sua sponte, placed the child’s guardian ad litem and the social
worker assigned to the case under oath. The county questioned these witnesses, eliciting
testimony that father’s parental rights had been previously terminated and that it was their
opinion that the child’s interests were best served by termination of father’s parental rights.
Near the end of the hearing, the district court judge noted that she had presided over father’s
previous termination case. Following the hearing, the district court entered an order
terminating father’s parental rights to the child, finding that the county had proven by clear
and convincing evidence that father was palpably unfit to be a party to the parent and child
relationship based on the presumption established by father’s p revious involuntary
termination and that it was in the child’s best interests to terminate father’s parental rights.
Father appeals.
DECISION
Father asserts that the district court erred by sua sponte proceeding by default,
making unsupported findings, and violating his right to due process in a number of ways.
The county candidly agrees that the district court abused its discretion by proceeding by
default under these circumstances. Because we also conclude that the district court abused

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its discretion by proceeding by default under these circumstances, we do not reach father’s
arguments regarding unsupported findings and his right to due process.
In a termination proceeding, there are two ways to proceed if a parent fails to appear
for a pretrial hearing : “receive evidence in support of the petition or reschedule the
hearing.” Minn. R. Juv. Prot. P. 18.01. If the district court proceeds by default and receives
evidence in support of the petition, the court may order termination of parental rights if the
county proves by clear and convincing evidence that termination is warranted. Minn. R.
Juv. Prot. P. 18.02; see also Minn. Stat. § 260C.317 (2 020) (establishing clear -and-
convincing burden of proof) . Because the rule provides that the district court “may”
proceed by default or reschedule the hearing, we review the district court’s decision to
proceed by default for an abuse of discretion. Minn. R. Juv. Prot. P. 18.01.
By proceeding by default, the district court necessarily decided not to “reschedule
the hearing.” Our review of the district court’s exercise of discretion is therefore guided
by caselaw and rules regarding continuances. The district court may “continue a scheduled
hearing or trial to a later date so long as the timelines for achieving permanency as set forth
in [the Minnesota Rules of Juvenile Protection Procedure] are not delayed.” Minn. R. Juv.
Prot. P. 5.01, subd. 1. In considering whether the district court abused its discretion by
denying a continuance request, a reviewing court should consider “the circumstances
before the [district] court at the time the motion was made.” State v. Turnipseed , 297
N.W.2d 308, 311 (Minn. 1980); see also Hamilton v. Hamilton, 396 N.W.2d 91, 94 (Minn.
App. 1986) (noting that the district court “should base its decision [on a continuance
request] on the facts and circumstances surrounding the request”).

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This is a unique case. The district court decided to proceed by default despite the
parties’ indication that they had reached an agreement that father would voluntarily
terminate his parental rights. Father’s attorney told the district court that she had some
difficulty getting in contact with father in prison, but stated that she had spoken with father
and understood his position. While no party requested that the district court reschedule the
hearing, the county did not ask that the district court proceed by default.1 The district court
did not ask the parties how they wished to proceed given father’s failure to appear. Before
sua sponte deciding to proceed by default, the district court did not make any effort to
determine whether father’s fail ure to appear was by choice or the result of circumstances
beyond his control. Moreover, there is no indication in the record that the district court
considered rescheduling the hearing and no explanation for the district court’s decision. In
short, rather than sua sponte directing the county to proceed by default, the district court
should have sought out information about father’s failure to appear, asked how the parties
wished to proceed, and considered whether it was more appropriate to reschedule the
hearing.2

1 We observe that the district court, in its order terminating father’s parental rights, found
that the county requested to proceed by default. Both parties agree, and the record reflects,
that the district court’s finding is clearly erroneous.
2 We also observe that, in this case, it was not necessary to proceed by default to maintain
the timelines provided by rules. See Minn. R. Juv. Prot. P. 5.01, subd. 1 (allowing
continuances so long as the timelines in the rules are met). The district court must proceed
to a trial within 60 days of the first admit/deny hearing. Minn. R. Juv. Prot. P. 52.02, subd.
4. The pretrial hearing must occur at least ten days before trial. Id., subd. 3. It was possible
to reschedule pretrial hearing but still maintain the timelines provided for in the rule.

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Considering the unique circumstances of this case, we conclude that the district
court abused its discretion by sua sponte proceeding by default.
Reversed and remanded.