This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







In the Matter of the Child of:

J. S., Parent.



Filed September 12, 2000


Halbrooks, Judge


Hennepin County District Court

File No. J697063104



William E. McGee, Fourth District Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55402-2700 (for appellant J.S.)


Amy J. Klobuchar, Hennepin County Attorney, Donna Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent Hennepin County Department of Children and Family Services)


Al Goins, 1919 University Avenue West, Suite 116, St. Paul, MN 55104 (for respondent Guardian ad Litem)




            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant J.S. challenges the district court’s denial of her motion to vacate the default judgment that terminated her parental rights.  She contends that she satisfied the standard for vacating a default judgment under Minn. R. Civ. P. 60.02.  Because we agree with the district court that J.S. does not have a reasonable defense on the merits, we affirm.


            J.S. gave birth to B.L.S. on September 18, 1997.  The Hennepin County Department of Children and Family Services (department) filed a petition for termination of J.S.’s parental rights on September 19, 1997.  The petition alleges that J.S. has a long and documented history of chemical abuse, mental health issues, and criminal activity. 

According to the petition, J.S. was first assessed as chemically dependent in 1987 and has entered numerous treatment programs since that time.  The petition asserts that she participated in at least seven treatment programs between 1987 and 1993.  Despite repeated attempts at treatment, J.S. was asked to leave all but one of the programs as a result of continued drug use or assaults.  Additionally, on June 9, 1997, while J.S. was pregnant with B.L.S., she was examined at the Hennepin County Medical Center OB/GYN clinic and tested positive for cocaine use.  The clinic reported the positive drug test to the department.

The petition also alleges that J.S. has significant mental-health issues.  She has been diagnosed with various psychological and psychiatric disorders.  According to the petition, mental-health professionals have described her as “psychopathic,” severely “characterologically disturbed,” “highly volatile,” and suffering from a “borderline personality disorder.”  J.S.’s mental-health issues date back to her childhood. 

Additionally, the petition alleges that J.S. has a lengthy criminal history.  At the time B.L.S. was born, J.S. was in custody awaiting sentencing after pleading guilty to felony obstruction of legal process with force and five counts of prostitution.  She had been arrested for those charges on June 7, 1997.  In addition to that arrest, the petition alleges that J.S. has been arrested 26 times for prostitution since 1990 and 27 times for loitering with intent to commit prostitution since 1991.  She also had an extensive criminal history as a juvenile and was committed to the commissioner of corrections as a delinquent in 1987.  B.L.S. has been in out-of-home placement since his birth.  J.S.’s parents have been his primary caregiver. 

The proceedings in this case were delayed for various reasons for more than two years.  A termination hearing was ultimately scheduled for December 22, 1999, at 9:00 a.m.  J.S. failed to appear for the hearing.  The department moved the district court to proceed with the hearing, despite J.S.’s absence, over the objection of J.S.’s attorney.  The court agreed with the department and permitted the department to present evidence to justify the termination.  The district court found that termination was in B.L.S.’s best interest and ordered the department to submit proposed findings.  When J.S.’s attorney returned to her office after the hearing, there was a phone message from J.S. that she was sick and wanted a continuance.  The time on the message slip indicates that J.S. called her attorney at 9:55 a.m.

The district court entered a default judgment on January 6, 2000, terminating J.S.’s parental rights.  J.S. filed a timely motion to vacate the default judgment and a hearing was scheduled for February 2, 2000.  J.S. arrived approximately 45 minutes late for that hearing.  On February 8, 2000, the district court’s order denying J.S.’s motion to vacate the default judgment and the findings of fact, conclusions of law and order terminating J.S.’s parental rights were filed.  This appeal follows.


            The district court may proceed with a hearing in a juvenile matter when an interested party is not present if that party was provided with appropriate notice of the proceeding.  Minn. R. Juv. P. 63.02.  In this case, the district court conducted the termination hearing notwithstanding appellant’s absence and her attorney’s objection and request for a continuance.  J.S. had notice of the hearing and it was not error for the court to proceed in her absence.  Id.; see also In re Welfare of Copus, 356 N.W.2d 363, 365 (Minn. App. 1984) (holding no error occurred when district court proceeded with termination of parental rights case despite the fact that father was hospitalized because father did not ask for continuance until the day of the hearing). 

On appeal from the district court’s denial of a motion to vacate a default judgment, the trial court’s decision will be upheld “absent clear abuse of discretion.”  In re Welfare of B.J.J., 476 N.W.2d 525, 526-27 (Minn. App. 1991) (citation omitted).[1]  A trial court “may relieve a party from a default judgment for ‘[m]istake, inadvertence, surprise or excusable neglect.’”  Riemer v. Zahn, 420 N.W.2d 659, 661 (Minn. App. 1988) (quoting Minn. R. Civ. P. 60.02(a), (f)).  When a party makes a motion to vacate a default judgment, that party has the burden of showing that (1) it has a reasonable defense on the merits; (2) it has a reasonable excuse for its failure to act; (3) it proceeded with due diligence after notice of entry of the default judgment; and (4) no substantial prejudice to the opposing party will result from vacating the judgment.  Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 456 (1952). 

In all termination cases, the paramount concern is for the child’s best interest.  In re Welfare of A.V., 593 N.W.2d 720, 722 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  A parent can have his or her parental rights terminated for any one of several reasons set forth at Minn. Stat. § 260C.301 (Supp. 1999).  Here, the district court concluded that the department had established by clear and convincing evidence that (1) J.S. had substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon her by the parent and child relationship; (2) J.S. is palpably unfit to be a party to the parent and child relationship; and (3) B.L.S. is neglected and in foster care since birth.  See Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5).  Any one of these alone could serve as a sufficient basis for terminating J.S.’s parental rights.   

            The district court found that J.S. did not have a reasonable defense on the merits.  Specifically, the district court stated:

            [J.S.] does not have a reasonable defense on the merits.  [J.S.] has not had custody of the child, [B.L.S.] since his birth.  Since this case opened immediately following [B.L.S.’s] birth, he has been in out of home placement.  [J.S.] was incarcerated for a considerable time during these proceedings.  Furthermore, [J.S.] has not addressed either her chemical dependency problems or her mental health issues.  Considering the nature of [J.S.’s] unresolved issues and her extensive history of failure to address them, the Court finds that she will not be in a position to care for [B.L.S.] in the reasonable foreseeable future.


The district court found that appellant’s lack of a reasonable defense was dispositive.  See B.J.J., 476 N.W.2d at 527 (holding that “[t]o prevail on a motion under Rule 60.02 appellant must show, among other things, a reasonable claim on the merits”).  Nonetheless, the district court also found that J.S. did act with due diligence in attempting to vacate the default judgment.  But it also found that both the department and B.L.S. would be prejudiced by further delay because an adoption cannot be pursued until J.S.’s rights are terminated.  See In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (holding that the best interest of the child is the primary consideration in cases involving the termination of parental rights).

            The record supports the district court’s findings, and the district court did not abuse its discretion in refusing to vacate the termination.  All of the evidence in this case indicates that J.S. is not able to provide appropriate care for B.L.S. now or in the reasonably foreseeable future.  See Minn. Stat. § 260C.301, subd. 1(b)(4) (providing that parental rights can be terminated if the parent is palpably unfit to care for the child for the reasonably foreseeable future).  The record supports the district court’s findings that J.S.’s criminal activity and previous incarcerations have adversely affected her ability to parent B.L.S., that she has not had safe and stable housing since the birth of B.L.S., and that she has failed to effectively address her chemical-dependency and mental-health issues despite reasonable efforts made by the department to assist her.

            Because J.S. does not have a reasonable defense on the merits and because it is in B.L.S.’s best interest to have J.S.’s parental rights terminated, we affirm.


[1]  Although the termination of parental rights is governed by the rules of juvenile procedure, those rules did not, until recently, provide a procedure to vacate a default judgment.  Numerous appellate court decisions, however, recognized the applicability of the rules of civil procedure to motions to vacate default judgment entered in juvenile matters.  The current version of the juvenile rules became effective for all proceedings initiated on or after March 1, 2000.  The new rules expressly foreclose the application of the rules of civil procedure and now contain a procedure similar to that in Minn. R. Civ. P. 60.02 by which a party can obtain relief from a final order.  Minn. R. Juv. P. 81.02 (2000).  But because the proceedings in this case occurred before March 1, 2000, it is appropriate to analyze the issue under Minn. R. Civ. P. 60.02.