In the Matter of the Welfare of the Children of:

This opinion is nonprecedential except as provided by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
A21-1043

In the Matter of the Welfare of the Children of:

D. L. W.,

Commissioner of Human Services,
Legal Custodian.

Filed May 23, 2022
Reversed and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-JV-19-1107

Rhia Bornmann Spears, Spears Family Law, PLLC, Minneapolis, Minnesota; and

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellant K.H.)

Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human
Services and Public Health Department)

Michelle Deibert, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Cochran, Presiding Judge; Bryan, Judge; and
Gaïtas, Judge.
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NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this juvenile-protection matter, appella nt-grandmother cha llenges the district
court’s order denying her motion to interv ene as a matter of right in permanency
proceedings for her two grandc hildren and granting the motio n of respondent to rule
grandmother out as a permanency option. Grandmother argues that the district court erred
in its decision with respect to both motions.
We first conclude that the district court erred when it determined that grandmother
did not meet the requirements for intervention as a matter of right under Minn. R. Juv. Prot.
P. 34.01, subd. 2. We further conclude that grandmother was prejudiced as a result during
the rule-out proceeding. We therefore reverse and remand with instructions for the district
court to grant grandmother’s motion to intervene and to conduct a new rule-out hearing.
FACTS
The two children who are the subject of this appeal were born in 2016 and 2017. In
February 2018, they were plac ed in foster care with appella nt K.H. (grandmother). The
placement occurred after respondent Hennepin County Human Services and Public Health
Department (the county) filed a children- in-need-of-protection-or-services (CHIPS)
petition for the children. In August 2018, a district court adjudicated the children as
CHIPS. In March 2019, the county petitioned th e district court to terminate the parental
rights of both parents. In Janua ry 2020, the district court terminated all parental rights to
the children and placed the children under the guardia nship of the Minnesota
Commissioner of Human Services.
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Progress Towards Permanency
Both before and after parental rights were terminated, the county considered
grandmother as a possible permanency option for the children. But in late 2020, after the
children had been living with grandmother fo r almost three years, the county raised
concerns about grandmother’s ability to properly supervise and care for them. The county
expressed concern that grandmother was not adequately supervising the children because
the children had been involved in a number of accidents resulting in physical injury. The
county also identified other incidents wher e injury was avoided but safety concerns
remained. And the county had other concerns including that the children, both of whom
have special needs, were not consiste ntly attending early-childhood education
programming.
Based on these concerns and in consultati on with the children’s guardian ad litem,
the county determined that grandmother “could not properly care for the children or keep
them safe.” Staff for the co unty met with grandm other in December 2020 to inform her
that she would no longer be considered a perm anency option for the children. According
to the staff involved in the meeting, gran dmother was very upset and made several
statements suggesting that she might leave the state or hurt herself or the children, though
she also stated that only “stu pid people” would take such ac tions. Out of concern for the
children’s safety, the county removed the children from grandmother’s care and placed
them in a shelter home the next day. Th e children remained at the shelter home for
approximately five months. On May 4, 2021, the children we re placed in a pre-adoptive
home with someone other than grandmother.
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Motions and Related District Court Proceedings
The next day, May 5, grandmother filed a motion to intervene as a matter of right
under Minn. R. Juv. Prot. P. 34.01, subd. 2. This rule gives a gr andparent the right to
intervene in a juvenile-protec tion matter if the child who is the subject of the matter has
lived with the grandparent “within the two years preceding the filing of the petition.” Minn.
R. Juv. Prot. P. 34.01, subd. 2. The county opposed grandmother’s motion.
On July 8, 2021, the county filed a motion to rule grandmother out as a permanency
option for the children. In its suppor ting memorandum, the county argued that
grandmother should be ruled out because of her alleged failures to properly supervise the
children and to meet their medical, behavioral, educational, and safety needs. The county
argued that permanent placement with grandm other would not be in the children’s best
interests. The county also filed the affidavit of a social worker to support its memorandum
and requested a hearing on its motion.
On July 15, 2021, the district court h eard oral argument on gr andmother’s motion
to intervene. Grandmother argu ed that her right to interven e is clear under rule 34.01,
subdivision 2, because the grandchildren lived with her within the two years preceding the
filing of the petition to terminate parental rights (TPR). Grandmother also argued that the
district court was required to decide grandm other’s motion to intervene before it could
consider the county’s rule-out motion. The county disagreed and opposed grandmother’s
motion to intervene. The county argued that the releva nt petition for purposes of
determining the right to intervene under ru le 34.01, subdivision 2, is the CHIPS petition
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and noted that the grandchildren did not live with grandmother prior to the filing of the
CHIPS petition. The county also argued the substance of its rule-out motion.
After hearing from the parties on the motion to intervene, the district court decided
to take the intervention issue under advisement. The district court then proposed holding
a contested hearing on the county’s rule-out motion in the near future and told grandmother
that she could participate in that hearing without having party status. Based on the district
court’s statements, the parties agreed to an evidentiary hearing on the rule-out motion.
On July 26, 2021, the district court held the evidentiary hear ing on the county’s
motion to rule grandmother out as a permanen cy option. Both th e social worker and
grandmother testified. Counsel for each party cross-examined the opposing witness. The
social worker reaffirmed the statement in her affidavit that she believed it was not in the
children’s best interests to be placed perm anently with grandmother and stood by the
county’s decision to remove the children fr om grandmother’s home in December 2020.
Grandmother testified that she wanted to adopt her grandchildren and believed that she was
the best placement for them.
On cross-examinatio n, counsel for the county pointed out that the state was
reviewing grandmother’s foster-care lic ense and asked grandmother how many
licensing-correction orders she had received. She only remembered receiving one, but
counsel for the county noted “for impeachment purposes” that she had received three. In
closing argument, counsel for grandmother argued that the county was “rushing this
through for some reason and trying to cut [g randmother] off from her statutory right to
argue that [the children’s] placement . . . not being with her is unreasonable.” Counsel
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asked the court not to rule out grandmother “prematurely” before sh e had the chance to
argue against the county’s mo tion for adoptive placement and file her own motion for
adoptive placement.
District Court Decision
In a written order, the district court gr anted the county’s request to rule out
grandmother as a permanency option and denied grandmother’s motion to intervene. The
district court first explained its rule-out decision. The district court noted that grandmother
exhibited “a pattern” of difficulty adequately supervising the children. The district court
also found that grandmother failed to meet at least one child ’s needs “by refusing to send
[them] to the preschool program identified by the school district.” The district court
recognized that grandmother “l oves these children dearly” bu t concluded that the county
“adequately supported” its request to rule grandmother out as a permanency option.
The district court then determined that its decision to grant the county’s rule-out
motion rendered the issue of grandmother’s in tervention moot. In the alternative, the
district court concluded that the right to intervene under rule 34.01, subdivision 2,
“is intended to be available for grandparents who have lived with children in the two years
before the filing of a CHIPS petition” and therefore did not apply in this case.
Grandmother appeals.
7
DECISION
I. The district court’s conclusion that grandmother did not have a right to
intervene under Minn. R. Juv. Prot. P. 34. 01, subd. 2, is inconsistent with the
rule.

A grandparent’s ability to intervene as a matter of right in a juvenile-protection
matter is governed by Minn. R. Juv. Prot. P. 34.01, subd. 2. Under the rule, the grandparent
of a child who is the subject of a juvenile-protection matter “shall have the right to intervene
as a party if the child has liv ed with the grandparent within the two years preceding the
filing of the petition.” Minn. R. Juv. Prot. P. 34.01, subd. 2. Th e rules of juvenile
protection procedure do not define the term “petition” as used in rule 34.01, subdivision 2.
See id.; Minn. R. Juv. Prot. P. 2.01 (defining certain terms but not defining “petition”).
The district court read the word “petition,” as used in the rule, to refer only to a
CHIPS petition. Based on that reading, the district court determined that grandmother was
not entitled to intervene because the children were not placed with her until after the CHIPS
petition was filed. Gran dmother challenges this determina tion, arguing that the district
court interpreted the term “petition” too narrowly when it limited the term to only one type
of petition—a CHIPS petition. She contends th at the rule and the term “petition” should
be interpreted more broadly to allow intervention as a matter of right in circumstances such
as these, when a child has liv ed with a grandparent within two years preceding the filing
of a TPR petition.
Appellate courts review de novo a distri ct court’s construction of the rules of
juvenile protection procedure. In re Welfare of Child of R.K., 901 N.W.2d 156, 159 (Minn.
2017). When interpreting the rules, “we look first to the plain language of the rule and its
8
purpose.” Id. at 160 (quotation omitted). “Where the language is plain and unambiguous,
that plain language must be followed.” Id. (quotation omitted).
Rule 34.01, subdivision 2, plainly states that a grandparent has the right to intervene
in juvenile-protection matters if the child subject to the proceeding has lived with the
grandparent in the two years preceding “the filing of the petition.” Minn. R. Juv. Prot. P.
34.01, subd. 2. The ru le does not limit its application to any particular petition or to a
CHIPS petition specifically.
In this case, there are two petitions to which the rule could refer: the CHIPS petition
filed on February 2, 2018, and the TPR petition filed on Ma rch 18, 2019. Both petitions
involve a “juvenile protection matter.” See Minn. R. Juv. Prot. P. 2.01(19)(a), (e) (defining
“juvenile protection matter” to include both CHIPS and TPR matters). To determine which
petition is the relevant petition for purposes of rule 34.01, subdivision 2, we consider the
specific facts of this case in the context of the st atutory framework governing
juvenile-protection matters.
A child’s interaction with the juvenile-protection system often starts, as it did here,
when a CHIPS petition is filed. See Minn. Stat. § 260C.141 (2 020). If a child is
subsequently adjudicated in n eed of protection or services and removed from the care of
the parent, “a two-tracked process begins.” In re Welfare of Child. of M.L.S. ,
964 N.W.2d 441, 449 (Minn. App. 2021); Mi nn. Stat. §§ 260C.193, subd. 3(b), .202(a)
(2020). One track involves efforts by the responsible social services agency to reunify the
child with the parents. Id. (citing Minn. Stat. § 26 0.012(a) (2020)). “[A] second track,
called concurrent permanency planning, identifies a potential permanent home for the child
9
in case the reunification efforts fail.” Id. (citing Minn. Stat. §§ 260C.223, subd. 1(b),
260.012(k) (2020)). Under Minnesota law, the responsi ble social servic es agency must
give priority to relatives when placing the child in foster care and during permanency
planning. See Minn. Stat. §§ 259.57, subd. 2(c) (re quiring a court to consider adoptive
placement with a relative before consideration of other pers ons), 260C.212, subd. 2(a)
(imposing a similar requirement fo r foster-care placement) (2020); see also Minn.
Stat. § 260C.221(a) (2020) (stating that a county “shall” consider placement with a relative
without delay when a child is removed from a parent).
In circumstances where reunification effort s fail, the responsible social services
agency files a permanency or TPR petition. See Minn. Stat. § 260C.505 (2020). And, if a
district court grants a TPR petition, the district court retains ongoing jurisdiction over the
juvenile-protection matter until th e child is adopted or reache s the age of 18 (except for
certain children who remain in foster care pa st the age of 18). Minn. Stat. §§ 260C.317,
subd. 3(d)(1)-(3), .521, subd. 1 (requiring yearly court reviews following permanency
disposition orders), .605, subd. 1(a) (implying ongoing jurisdiction over efforts to finalize
adoption) (2020).
Here, in May 2021, grandmother moved to intervene in the ongoing proceedings
stemming from the county’s TPR petition filed in March 2019. Though the county initiated
a separate juvenile-protection matter in Fe bruary 2018 when it f iled its CHIPS petition,
that CHIPS matter was closed at the time grandmother filed her motion.1 As a result, when

1 In juvenile-protection matters, except as otherwise provided by statute or by the rules of
juvenile protection, the rules of evidence apply. Minn. R. Juv. Prot. P. 3.02, subd. 1. Under
10
grandmother moved to intervene in May 2021, the only proceeding that was open, and
therefore the only proceeding in which gr andmother could seek to intervene, was the
permanency phase of the proceeding initiate d by the TPR petition. And it was in this
proceeding that grandmother filed her motion to intervene. Because grandmother sought
to intervene in the permanen cy phase of the proceeding in itiated by the TPR petition, we
conclude that the relevant petition here for purpos es of rule 34.01, subdivision 2, must be
the TPR petition. Indeed, it is the only possibility under the facts of this case.
Consequently, we conclude that the TPR petition, not the CHIPS petition, is “the
petition” for purposes of determining whether grandmother has a right to intervene under
rule 34.01, subdivision 2. And we further c onclude that, because it is undisputed that the
children lived with grandmother “within the two years preceding the filing of the petition,”
grandmother has a right to intervene as a pa rty in the ongoing permanency proceeding.
Minn. R. Juv. Prot. P. 34.01, subd. 2. The district court therefore erred by denying
grandmother’s motion to intervene as a matter of right.

the rules of evidence, “[j]udicial notice may be taken at any stage of the proceeding.”
Minn. R. Evid. 201(f). And “[c]ourt records and files from prior adjudicative proceedings
are an appropriate subject for j udicial notice by the court.” In re Welfare of D.J.N. ,
568 N.W.2d 170, 174 (Minn. App. 1997) (dis cussing propriety of district court taking
judicial notice of prior court file); see In re Welfare of Child of H.G.D., 962 N.W.2d 861,
872 n.5 (Minn. 2021) (discussing judicial notice in juvenile-protection matters). Here, the
register of actions for the CHIPS file underlyi ng the TPR file in which this appeal was
taken shows that the CHIPS file was clos ed when grandmother filed her motion to
intervene. We take judicial notice of this fact.
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Resulting Prejudice
We generally grant relief from error only if an appellant demonstrates that the error
caused prejudice. See, e.g., D.J.N., 568 N.W.2d at 176 (declining to reverse termination
of parental rights where appellants failed to demonstrate that district court error caused
prejudice); In re Welfare of Child. of A.D.B. , 970 N.W.2d 725, 731 (Minn. App. 2022)
(citing this aspect of D.J.N.).
Grandmother contends that the denial of her motion to in tervene caused her
prejudice by denying “her rights [that] sh e should have been able to exercise prior to the
rule-out hearing,” including the rights to c onduct discovery and subpoena witnesses. See
Minn. R. Juv. Prot. P. 32.02 (listing part y rights). She asserts that the ability to exercise
these rights would have allowed her to acce ss county records relevant to her defense,
helped her to avoid impeachment by counsel for the county at the rule-out hearing, and
otherwise given her a greater chance of defeating the county’s motion to rule her out as an
adoptive placement option for her grandchildren. The county contends that even if the
district court erred by denying grandmother’s motion to intervene, grandmother was not
prejudiced because she agreed to the ad hoc procedure proposed by the district court to
address the county’s rule-out motion. We conclude that grandmother has demonstrated
sufficient prejudice to warrant reversal becaus e she was not afforded the full rights of a
party prior to the rule-out hearing and instead was essentially limited to being a participant.
The rules of juvenile protection proced ure address the rights of two different
categories of individuals who are involved in a juvenile-protection matter: parties and
participants. Minn. R. Juv. Prot. P. 32, 33 . A relative who requests notice has a right to
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participate in the matter, even without party status, as a “participant.” Minn. R. Juv. Prot.
P. 33.01(f) (providing that participants in a juvenile-protection matter include “relatives or
other persons providing care for the child and other relatives who request notice”). But the
rights of a “participant” and a “party” are not the same. See Minn. R. Juv. Prot. P. 33.02,
subd. 1, 32.02 (delineating the rights of participants and parties). The rights of participants
are limited to notice, legal re presentation, being present at hearings unless otherwise
excluded, and offering informatio n at the discretion of the court. Minn. R. Juv. Prot. P.
33.02, subd. 1. If the participant is a relative providing care for the child, they also “have
a right to be heard in any h earing regarding the child.” Id., subd. 2. Parties, on the other
hand, have numerous rights under the rules, including but not limited to the rights to
conduct discovery and subpoena witnesses— the specific rights that grandmother has
identified as significant here. See Minn. R. Juv. Prot. P. 32.02 (listing the rights of a party,
including but not limited to the rights to conduct discovery, bring motions before the court,
subpoena witnesses, make arguments, present evidence, and cross-examine witnesses).
At a minimum, if the district court ha d properly granted grandmother’s motion to
intervene under rule 34.01, subd ivision 2, her ability to exercise her rights as a party to
conduct discovery and subpoena witnesses could have changed the outcome of the rule-out
proceeding. Grandmother could have accessed medical and educational attendance records
for her grandchildren along with other reco rds related to the a llegations on which the
county based its decision to eliminate her as a permanency option. She could have avoided
or minimized impeachment by counsel for the county based on her failure to remember the
number of times she received a licensing-co rrection order. And sh e might have called
13
additional witnesses who could further speak to her ability to adequately supervise and care
for the children. On this record, we conclude that grandmother was prejudiced as a result
of the district court’s erroneous interpretation of rule 34.01, subdivision 2.
II. The district court erred in relying on mootness as a basis for denying
grandmother’s motion to intervene.

We next address the district court’s al ternative ground for denying grandmother’s
motion to intervene—that grandmother’s moti on to intervene was rendered moot by the
district court’s decision to grant the county’s rule-out motion. We conclude that the district
court erred in this regard as well.
“The doctrine of mootness requires that we decide only actual controversies and
avoid advisory opinions.” In re McCaskill , 603 N.W.2d 326, 327 (Minn. 1999). The
mootness doctrine “therefore[] implies a comparison between the relief demanded and the
circumstances of the case at the time of deci sion in order to determ ine whether there is a
live controversy that can be resolved.” In re Application of Minnegasco, 565 N.W.2d 706,
710 (Minn. 1997). If a court cannot grant effective relief, the matter is generally dismissed
as moot. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005).2 “Mootness is an issue of
justiciability, which is an issue of law we review de novo.” State ex rel. Young v. Schnell,
956 N.W.2d 652, 662 (Minn. 2021).

2 We note that the district court denied gr andmother’s motion to intervene rather than
dismissing it as moot. Because we reverse a nd remand to the district court for further
proceedings including a new rule -out hearing, we need not address whether the district
court erred by denying, rather than dismissing, the motion.
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In its order, the district court addressed the intervention issue only after granting the
county’s request to rule out grandmother as a permanency option. Based on its rule-out
decision, the district court stated its belief that “the intervention issue is moot.” The district
court did not provide any further explanation.
Given our conclusion that grandmother had a right to intervene and was prejudiced
during the rule-out hearing as a result of the district court’s failure to allow her to do so,
the district court’s rule-out decision ca nnot serve as a basis for concluding that
grandmother’s motion to intervene was moot. Cf. Doe v. F.P. , 667 N.W.2d 493, 501
(Minn. App. 2003) (reversing and remanding denial of a mo tion for leave to amend after
concluding that “the district court was incorrect in its underlying legal ruling”), rev. denied
(Minn. Oct. 21, 2003). We th erefore conclude that the district court erred when it relied
on mootness as a basis for denying grandmother’s motion.
In sum, we conclude that the district court erred when it denied grandmother’s
motion to intervene. Because the denial of interv ention prevented grandmother from
exercising her full rights as a party and theref ore may have affected the outcome of the
rule-out proceeding, we conclude that reversal of both the denial of grandmother’s motion
to intervene and the grant of the county’s motion to rule grandmother out as a permanency
option for the children is warranted. We reverse and remand with instructions to the district
court to grant grandmother’s motion to interv ene under rule 34.01, subdivision 2, and to
hold a new hearing on the rule-out motion afte r the parties have had the opportunity to
15
conduct discovery and exercise the other rights of a party under the rules of
juvenile-protection procedure.3
Reversed and remanded.

3 Because we reverse and remand to the district court for fu rther proceedings including a
new rule-out hearing, we do not reach gran dmother’s other arguments challenging the
district court’s rule-out decision and express no opinion as to the merits of those arguments.