In the Matter of the Child of N.L.O. and D.V.H., Parents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-544

 

In the Matter of the Child of

N.L.O. and D.V.H., Parents.

 

Filed September 7, 2004

Reversed and remanded;

motions denied
Klaphake, Judge

 

Ramsey County District Court

File No. J2-03553148

 

Carol M. Grant, Kurzman, Grant & Ojala, St. Anthony Main, Suite 403, 219 S.E. Main Street, Minneapolis, MN  55414 (for appellant N.L.O.)

 

Susan Gaertner, Ramsey County Attorney, Angela Potts, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent State)

 

Paul Bergstrom, Ramsey Juvenile Justice Center, 25 West Seventh Street, St. Paul, MN  55102 (for guardian ad litem)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant N.L.O. challenges two district court orders denying her motion to vacate a September 2003 default order terminating her parental rights to her now four-year-old son, D.A.H.O, and denying a motion to reconsider.  Because we conclude that the county failed to exercise due diligence to either ascertain appellant's whereabouts in order to effectuate personal service of the TPR petition before obtaining service by publication or to give appellant actual notice that her parental rights were about to be terminated, we reverse and remand to allow appellant to appear at an expedited hearing on the county's TPR petition.

            Appellant has also filed a motion to supplement the record with an affidavit in which she reiterates her claims regarding lack of notice and describes her current circumstances and living situation.  The county has opposed her motion and responded with a motion for attorney fees that it has incurred to respond to appellant's motion to supplement the record.  Given our decision to reverse and remand, appellant will be given an opportunity to present current evidence to oppose the county's TPR petition.  We therefore deny appellant's motion to supplement the record in this appeal; we also deny the county's motion for attorney fees.[1]

D E C I S I O N

            A district court's decision refusing to vacate a judgment or order entered in default will not be disturbed absent an abuse of discretion.  See In re Welfare of Children of Coats, 633 N.W.2d 505, 510 (Minn. 2001).  Reopening of default judgments should be liberally undertaken to allow resolution of matters on their merits.  See Kosloski v. Jones, 295 Minn. 177, 179-80, 203 N.W.2d 401, 403 (1973). 

            Appellant moved to vacate the default TPR order under Minn. R. Juv. Protect. P. 46.02.  That rule provides in pertinent part that a court may relieve a party from a final order for reasons that include "(a) mistake, inadvertence, surprise, or excusable neglect; . . . (c) fraud . . ., misrepresentation, or other misconduct of an adverse party;  . . . or (e) any other reason justifying relief from the operation of the order."  Id.  Minn. R. Juv. Protect. P. 46.02 is a counterpart to Minn. R. Civ. P. 60.02.  Coats, 633 N.W.2d at 510 n.4.

            A party seeking to reopen a final order in a juvenile protection matter must demonstrate:

(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 judgment; and (4) the opposing party will not be substantially prejudiced if the motion to vacate the default judgment is granted.

 

Id. at 510 (quoting Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997)).

            1.            Reasonable Defense on the Merits.

            Appellant claims that she has a reasonable defense on the merits and that the district court's decision to terminate her parental rights was not supported by clear and convincing evidence.  See In re Welfare of K.P.C., 366 N.W.2d 711, 715 (Minn. App. 1985) (reversing termination of parental rights where evidence failed to clearly and convincingly establish existence of statutory grounds for termination).  Even in a default situation, the district court may enter an order granting the relief sought only "[i]f the petition is proved by the applicable burden of proof."  Minn. R. Juv. Protect. P. 18.02.

            The county argues that appellant has failed to offer a reasonable defense to its TPR petition.  It claims that appellant was only in minimal compliance with her case plan, mainly because she failed to successfully address her chemical dependency problems and failed to remain in contact with county workers and keep them apprised of her whereabouts during the late spring and early summer of 2003.  The county further claims that appellant did not remain law abiding and did not have stable housing, so she could not complete the in-home parenting education program as required by her case plan.

            Appellant argues that the district court's decision is based on stale allegations contained in the amended CHIPS petition filed in March 2003.  She points to more recent evidence, which shows: (1) she regularly visited the child and received the endorsement of his foster parents; (2) she satisfied portions of her case plan, including completion of a psychological and chemical dependency assessment, and of the ALERT program; (3) she attended doctor appointments, continued to go to work, completed a parenting program, and has completed some of the work required to fix her home; and (4) until she allegedly tested positive for cocaine in April 2003, she attended weekly Narcotics Anonymous meetings and submitted to random urinalysis. 

            Appellant also disputes the county's claim that she has avoided contact with it, and she presents evidence showing that she continued to communicate with social workers throughout the summer of 2003.  Appellant finally insists that the only "piece that was not yet in place was the chemical dependency issue, and if [she] had received more assistance, . . . that piece could well have fallen into place."  She points to the record, which shows that few efforts were made to assist her with her chemical dependency problems. 

            Thus, unlike the mother in Coats, appellant has offered a defense on the merits that is supported by more than conclusory allegations.  See Coats, 633 N.W.2d at 511.  We therefore conclude that appellant has raised a possible defense to the county's TPR petition.

            2.            Reasonable Excuse

            Appellant argues that she has a reasonable excuse for failing to appear at the default hearing because she had no actual notice of the hearing.[2]  Appellant claims that the county failed to use due diligence to locate her and inform her of the filing of the June 2003 TPR petition and hearing in August 2003.

            The juvenile rules generally require personal service "[u]nless the court orders service by publication pursuant to Rule 31.02, subdivision 3."  Minn. R. Juv. Protect. P. 32.02, subd. 3(a).  Minn. R. Juv. Protect. P. 31.02, subd. 3, provides that "[t]he court shall authorize service by publication only if the petitioner has filed a written statement or affidavit describing unsuccessful efforts to locate the party to be served."

            Here, the county submitted an affidavit from the social worker assigned to the case outlining the efforts he made to locate appellant.  The social worker stated that (1) appellant's home "has been posted as vacant and not to be occupied for over a year"; (2) the owner at one of her last known addresses indicated that appellant "had left about a month ago without leaving a forwarding address"; and (3) the father of appellant's oldest daughter was unable to tell the county where appellant lived.   

            As appellant notes, however, the social worker failed to mention that he had appellant's telephone number and that in the weeks leading up to the August 2003 hearing, he was able to either speak with her personally or otherwise leave messages to which she often responded.  In addition, it appears that the social worker never specifically told appellant that her parental rights would be terminated if she did not appear at the upcoming hearing.  Finally, the social worker knew that appellant had worked at the same place for over three years and that she was visiting the child regularly at the foster parent's home; nevertheless, the social worker failed to try to contact appellant or to personally serve her at either of these locations.[3] 

            Resort to service by publication should be made only where, "after due diligence, the party's whereabouts cannot be ascertained."  Electro-Measure, Inc. v. Ewald Enters., 398 N.W.2d 85, 88 (Minn. App.1986), review denied (Minn. Mar. 13, 1987).  While appellant had some affirmative obligation to respond to the county's inquiries regarding her address and while she may have been avoiding some contact with the county or court system for fear of arrest on other outstanding warrants, we conclude that she has presented a reasonable excuse for her failure to appear at the hearing.  Cf. Coats, 633 N.W.2d at 511-12 (rejecting mother's "bald assertion" that a medication change caused her confusion regarding date of hearing).

            3.            Due Diligence Exercised by Appellant

            The parties agree that appellant exercised due diligence and filed her motion within a reasonable time after learning of entry of the default TPR order.  The speed with which she acted supports her claim that she would have appeared at the TPR hearing had she been given notice that her parental rights were about to be terminated.

            4.            Substantial Prejudice

            Appellant argues that substantial prejudice will not result in reopening these proceedings to allow an expedited evidentiary hearing to be held on the TPR petition.  This is, perhaps, the most troubling factor in this case.

            The county insists that the child will be substantially prejudiced if these proceedings are further delayed.  The county asserts that this four-year-old child has been in foster care for almost two years, that he has special needs and developmental delays, and that he needs permanency.  Appellant, however, was given only five months to work on her case plan because the amended CHIPS petition was filed in March 2003, just five months before the default hearing was held.  Based on the record we have before us, the child currently appears to be in a good foster home and continues to see appellant, who shows up for visits and is supported by the foster parent.  Given the importance of the child-parent relationship and the preservation of familial bonds, we are not convinced that this child will be substantially prejudiced if appellant is allowed to appear at a hearing on the county's petition.  To minimize the potential prejudice to the child, the proceedings on remand should be expedited.

            We therefore reverse the district court's orders denying appellant's motion to vacate the order terminating her parental rights, deny appellant's motion to supplement the record, and deny the county's motion for attorney fees.

            Reversed and remanded; motions denied.

 

[1] The county provides no substantive basis for its motion for attorney fees, other than Minn. R. Civ. App. P. 139.06.  Rule 139.06 is "procedural only and [does] not provide a substantive basis for claiming fees on appeal."  Id. 1998 advisory comm. cmt.

[2]  The county claims that appellant was served with a copy of the summons and petition by mail, and that she therefore received actual notice.  The record, however, fails to support the county's claim of service by mail.  The county social worker merely alleges that he sent appellant "letters informing [her] of the proceedings and requesting her current information."  The social worker carefully avoided specifying the content of these letters and did not submit a copy of the letter.

 

[3]  These omissions from the social worker's affidavit border on misrepresentations or "other misconduct" that might justify relief under Minn. R. Juv. Protect. P. 46.02(c).  Cf. R.L.M. v. Moon, 410 N.W.2d 925, 927 (Minn. App. 1987) (rejecting father's claim that county committed fraud by alleging that it had no knowledge of his whereabouts prior to the termination hearing, where county presented affidavits from employees who alleged that no one had had any contact with father, no one knew of his whereabouts, and father failed to present any credible evidence to the contrary), review denied (Minn. Oct. 28, 1987).  By omitting information that was not just relevant, but critical to giving the district court an accurate picture of appellant's contacts with the county, the social worker effectively hampered the court's ability to make an informed decision not only on appellant's whereabouts, but also on the ultimate issues of whether "grave and weighty reasons" exist to terminate appellant's parental rights and whether termination is in the child's best interests.  See In re Welfare of J.R., 655 N.W.2d 1, 9 (Minn. 2003); In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).