In the Matter of the Welfare of the Child of: M. A. B., Legal Custodian.

This opinion is nonprecedential except as provided by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
A23-1247

In the Matter of the Welfare of the Child of: M. A. B., Legal Custodian.

Filed February 12, 2024
Reversed and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-JV-23-850

Brooke Beskau Warg, Hennepin County Adult Representation Services, Minneapolis,
Minnesota (for appellant M.A.B.)

Mary F. Moriarty, Hennepin County Attorney, Britta Nicholson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and
Public Health Department)

Michael Berger, Fourth District Public Defender, Dean W. Lambrecht, Assistant Public
Defender, Minneapolis, Minnesota (for child)

Andrew Lloyd, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant grandmother challenges the district court’s involuntary transfer of
permanent legal and physical custody of her grandchild from her to the child’s aunt.
Grandmother argues that the district court should not have proceeded by default at the
admit/deny hearing on the transfer petition once her counsel entered a denial on her behalf
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in her absence. Because the district court’s decision to proceed by default was an error that
prejudiced grandmother, we reverse and remand the case for further proceedings.
FACTS
Appellant M.A.B. is the maternal grandmother of E.R.H., born in 2013. In a family
court proceeding in 2017, grandmother was granted sole legal and sole physical custody of
E.R.H.1 In January 2022, respondent Hennepin County Human Services and Public Health
Department (the department) filed a petition alleging that E.R.H. was a child in need of
protection or services (CHIPS).
In April 2022, the district court ordered placement of E.R.H. in foster care with his
maternal aunt. Four months later , the district court entered a CHIPS adjudication and
ordered grandmother to comply with a case plan.
On April 7, 2023, about one year after E.R.H. was removed from grandmother’s
home, the department filed a petition to transfer permanent legal and physical custody of
E.R.H. to aunt. On April 18, 2023, the district court held an admit/deny hearing on the
transfer petition. Grandmother failed to appear at the hearing. The department requested to
proceed by default. Counsel for grandmother objected, arguing that grandmother had
received inadequate notice of the hearing because she had not been served at least ten days
before the hearing. See Minn. R. Juv. Prot. P. 53.02, subd. 3 (“In any permanency
. . . matter, the summons and petition shall be served upon all parties in a manner that will
allow for completion of service at least 10 days prior to the date set for the admit/deny

1 E.R.H.’s mother died in 2016. The parental rights of E.R.H.’s father were terminated in
2019.
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hearing.”). The district court found that grandmother had been personally served with
notice only five days before the hearing and accordingly denied the department’s request
to proceed by default. The district court con tinued the admit/deny hearing to April 27,
2023.
Grandmother failed to appear at the continued admit/deny hearing. The department
made another request to proceed by default. Counsel for grandmother again objected.
Counsel asserted that she was “permitted to enter a denial on [grandmother’s] behalf.”
Counsel noted that “[t]he last position [grandmother] provided [to her] was clearly that she
would not agree to a transfer of custody” and requested that the district court “enter a
denial.” The district court granted counsel’s request to enter a denial on grandmother’s
behalf. The district court then granted the department’s request to proceed by default and
heard testimony on the transfer petition.
Following the default proceeding, the district court granted the transfer petition and
ordered that legal and physical custody of E.R.H. be permanently transferred to aunt; but
the district court stayed the order pending the approval of aunt’s application for Northstar
kinship assistance.
2 The district court revoked the stay on its order after aunt’s Northstar
kinship assistance application was approved. Grandmother moved for a new trial. The
department opposed the motion but also stated that it did not oppose reopening the matter

2 Northstar kinship assistance is a state benefits program available to a child placed in
relative foster care who finds permanency with the relative through a transfer of permanent
legal and physical custody. See Minn. Stat. § 256N.02, subd. 11 (2022) (defining Northstar
kinship assistance); see also Minn. Stat. § 256N.22 (2022) (addressing Northstar kinship
assistance eligibility).
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“to correct[] what may be a procedural error.” The district court denied grandmother’s
motion.
Grandmother appeals.
DECISION
Grandmother argues that the district court committed prejudicial error when it
proceeded by default. We first address the alleged error and then turn to prejudice.
Proceeding by default was a procedural error.
Under Minnesota Rule of Juvenile Protection Procedure 18.01, a district court may
proceed by default when a legal custodian fails to appear for a noticed hearing in a juvenile-
protection proceeding unless one of two exceptions applies. The rule states:
Except as otherwise provided in Rules 47.02, subd. 1
and 56.02, subd . 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 pursuant to Rule
44.03, 44.04, 53.03, or 53.04, the court may receive evidence
in support of the petition or reschedule the hearing.

Minn. R. Juv. Prot. P. 18.01 (emphasis added).
Only the second exception in rule 18.01 is relevant here. Minnesota Rule of Juvenile
Protection Procedure 56.02 provides that, in a permanency matter, “[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.” Minn. R.
Juv. Prot. P. 56.02, subd. 1. When a denial is entered, “the court shall schedule further
proceedings pursuant to Rule 57 or Rule 58.” Id., subd. 2 (emphasis added); see Minn. R.
Juv. P. Prot. P. 57 (pretrial hearing), 58 (trial); cf. Minn. Stat. § 645.44, subd. 16 (2022)
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(stating that “‘[s]hall’ is mandatory”). Appellate courts review a district court’s
construction and application of juvenile-protection rules de novo. In re Welfare of Child of
R.S., 805 N.W.2d 44, 48-49 (Minn. 2011).
Grandmother argues that the district court erred when it proceeded by default at the
admit/deny hearing. She argues that, together, rule 18.01 and rule 56.02 plainly provide
that the district court may not proceed by default when a legal custodian fails to appear for
an admit/deny hearing but the legal custodian’s counsel enters a denial on the custodian’s
behalf; instead, the district court must schedule further proceedings, including a pretrial
and a trial.
The department does not dispute grandmother’s reading of the rules. Instead, it
argues that no violation occurred because grandmother’s purported counsel—who was
court-appointed to represent grandmother in the CHIPS matter —had not yet been court-
appointed to represent her in the permanency matter and therefore did not have the
authority to enter a denial on grandmother’s behalf.
We first address the issue of whether grandmother was represented by counsel.
Minnesota Rule of Juvenile Protection Procedure 36 governs the appointment of counsel
in a juvenile-protection matter. “Every party and participant has the right to be represented
by counsel in every juvenile protection matter” and “[t]his right attaches no later than when
the party or participant first appears in cour t.” Minn. R. Juv. Prot. P. 36.01. Appointment
of counsel for a legal custodian is governed by Minnesota Statutes section 260C.163,
subdivision 3 (2022). Minn. R. Juv. Prot. P. 36.02, subd. 2. If the legal custodian desires
and is eligible for court-appointed counsel, the court must appoint counsel to represent the
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legal custodian “prior to the first hearing on the petition and at all stages of the
proceedings.” Minn. Stat. § 260C.163, subd. 3(c).
The department asserts that, because grandmother failed to appear at the admit/deny
hearing—the first hearing on the transfer petition—“she could not ‘request’ counsel be
appointed” in the permanency matter and “her right to counsel . . . never attached.” But the
right to representation pursuant to rule 36 attaches “no later than when the party or
participant first appears in court.” Minn. R. Juv. Prot. P. 36.01 (emphasis added). And the
department does not explain why the district court was not required to appoint counsel to
represent grandmother before the admit/deny hearing.
Moreover, as grandmother points out, the record demonstrates that grandmother
was, in fact, represented by the attorney who appeared on her behalf at the admit/deny
hearing. The summons for the admit/deny hearing and the transfer petition were personally
served on the attorney. The attorney appeared at the initial admit/deny hearing and
represented grandmother’s interests at the hearing. After the hearing, the district court
issued an order stating that the attorney had “represented” grandmother at the hearing. The
attorney also appeared at the continued admit/deny hearing and represented grandmother’s
interests at that hearing. In its order transferring permanent custody, the district court
identified the attorney as “counsel” for grandmother. And, in its order denying
grandmother’s motion for a new trial, the district court found that it had permitted
grandmother’s counsel to enter a denial on her behalf. The department’s argument fails.
Turning back to the rules governing default proceedings, again, the department does
not dispute grandmother’s interpretation of rule 18.01 and rule 56.02. And we agree with
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grandmother that, under the plain language of the rules, the district court was precluded
from proceeding by default once grandmother’s counsel entered a denial on her behalf.
Grandmother’s counsel objected to the district court proceeding by default and requested
that the district court enter a denial on grandmother’s behalf, stating:
I would object to a finding of default . . . under [rule 56.02,
subdivision 1,] of the Minnesota Rules of Juvenile Protection
Procedure. As counsel, I am permitted to enter a denial on
[grandmother’s] behalf. The last position she provided me was
clearly that she would not agree to a transfer of custody.

. . . So I am entering the position that I last know her to
have, which is not agreeing to the transfer of custody. And at
this admit/deny phase, under that rule, I am permitted to enter
a denial, so that is what I will do today.

After reviewing rule 56.02, subdivision 1, the district court agreed that grandmother’s
counsel was “permitted to enter the denial . . . on behalf of her client” and accepted
counsel’s denial on behalf of grandmother. The district court nevertheless did not schedule
a pretrial or a trial but instead proceeded by default. That decision was contrary to the rules,
and the district court erred.
The error was prejudicial.
The mere existence of an error by the district court is not, by itself, sufficient to
require relief on appeal; rather, the complaining party must also show that the error
prejudiced the complaining party. See Minn. R. Civ. P. 61 (requiring that harmless error be
ignored); Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987) (stating that
“[a]lthough error may exist, unless the error is prejudicial, no grounds exist for reversal”);
see also In re Welfare of Child of D.L.D. , 865 N.W.2d 315, 321 (Minn. App. 2015)
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(applying prejudicial-error analysis in a transfer-of-custody case on appeal), rev. denied
(Minn. July 21, 2015).
Grandmother contends that the district court’s error was prejudicial. As E.R.H.’s
legal custodian, grandmother was a party to the permanency matter. See Minn. R. Juv. Prot.
P. 32.01, subd. 1(b) (listing “the child’s legal custodian” as a party to a juvenile-protection
matter). As a party, grandmother had “the right to . . . present evidence.” Minn. R. Juv.
Prot. P. 32.02(i). Grandmother’s trial rights included “the right to . . . present evidence”
and “witnesses.” Minn. R. Juv. Prot. P. 58.02, subd. 2(a)(1), (2). Grandmother argues that
the district court’s error in proceeding by default prejudiced grandmother by depriving her
of her right to present evidence and witnesses.
The department contends that grandmother has failed to demonstrate prejudice
because “she fails to articulate what evidence she would have presented, and she fails to
demonstrate that her evidence would have been sufficient to change the outcome of the
case.” We are not persuaded. The default proceeding took place less than a month after the
transfer petition was filed. The parties had not completed discovery nor exchanged witness
and exhibit lists. Although grandmother’s counsel was able to participate in the default
proceeding to some extent, she was understandably not fully prepared to present evidence
to oppose the transfer petition at the admit/deny hearing. See Minn. R. Juv. Prot. P. 55.01
(“An admit/deny hearing is a hearing at which the statutory grounds set forth in the petition
are admitted or denied pursuant to Rule 56.”). In these circumstances, we do not think
grandmother has to establish that she would have prevailed at trial in order to show that
erroneously proceeding by default prejudiced her.
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We reverse the district court’s order and remand to the district court for further
proceedings consistent with this opinion. Nothing in this opinion shall be read to require a
change in the temporary placement of E.R.H. pending resolution of the proceedings on
remand. If, however, the district court deems it necessary to alter E.R.H.’s placement
pending resolution of the matter on remand, the district court shall retain the discretion to
do so. The district court shall reopen the record to the extent necessary for the district court
to decide the remanded portion of the case, and nothing in this opinion shall be construed
as an expression of this court’s opinion regarding how to resolve matters to be decided on
remand.3
Reversed and remanded.

3 In this appeal, grandmother also argues, in the alternative, that the district court failed to
make sufficient findings to support the transfer of custody. We need not reach this second
argument because our decision on her first argument is dispositive. But, because we are
remanding for further proceedings, we take this opportunity to emphasize that a district
court “must make sufficient findings to enable appellate review.” Hansen v. Todnem, 908
N.W.2d 592, 597 n.2 (Minn. 2018); see Rosenfeld v. Rosenfeld, 2 49 N.W.2d 168, 171
(Minn. 1976) (noting, on appeal of a custody award, that findings of fact explaining a
district court’s exercise of its discretion are necessary to “(1) assure consideration of the
statutory factors by the [district] court; (2) facilitate appellate review of the [district] court’s
custody decision; and (3) satisfy the parties that this important decision was carefully and
fairly considered by the [district] court”); In re Welfare of Child of J.R.R., 943 N.W.2d
661, 669-70 (Minn. App. 2020) (citing this aspect of Rosenfeld in a juvenile-protection
appeal). Findings are sufficient to facilitate effective appellate review if the district court
identifies its decision and the basis for its decision. See Hagen v. Schirmers, 783 N.W.2d
212, 217 (Minn. App. 2010). In addition, Minnesota Statutes section 260C.517(a) ( 2022)
requires a district court to make “detailed findings” on four statutory factors when ordering
permanent placement of a child out of the home.