This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-01-351

 

 

In the Matter of the Welfare of: A.L.R.

 

 

Filed August 28, 2001

Affirmed

G. Barry Anderson, Judge

 

Morrison County District Court

File No. J00050362

 

Jody Ollyver DeSmidt, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN  55402 (for appellant)

 

Conrad Freeberg, Morrison County Attorney, Morrison County Government Center, 213 Southeast First Avenue, Little Falls, MN  56345 (for appellant Morrison County)

 

Kristine L. Solheid, 7000 Union Hill Blvd., Belle Plaine, MN  56011 (for respondent)

 

            Considered and decided by Randolph W. Peterson, Presiding Judge, Roland C. Amundson, Judge and G. Barry Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            On appellant-mother’s motion, the district court terminated respondent-father’s parental rights without a hearing.  The district court later vacated that order, concluding that appellant had committed misconduct by failing to disclose to the court information about respondent’s interest in the child.  Because the district court did not abuse its discretion by vacating the termination order based on misconduct of an adverse party pursuant to Minn. R. Juv. P. 81.02(c), we affirm.

FACTS

            In late 1999 and early 2000, respondent Christopher Petrie, now age 19, resided with appellant B.R., now age 17; her custodial parent, Heidi Wanty; and Wanty’s husband in Prentice, Wisconsin.  Appellant became pregnant in January 2000, but her relationship with respondent ended and respondent moved out of Prentice. In approximately April 2000, Wanty accepted employment in Minnesota, and Wanty, her husband, and appellant moved to St. Cloud, Minnesota. 

            On September 25, 2000, appellant gave birth to a daughter, A.L.R.  Upon discharge from the hospital, A.L.R. was placed with prospective adoptive parents Douglas and Debbie Brost, residents of Wisconsin.  On October 3, 2000, appellant filed a petition for termination of her own parental rights in Morrison County District Court in Minnesota.  Appellant informed the court that A.L.R.’s father had “no contact [and] no interest” in the child.  The district court granted the petition.  

            On October 25, 2000, the Brosts filed a petition for the termination of respondent’s parental rights in the Taylor County Circuit Court of Wisconsin.  Upon receiving the summons, respondent, named in the Brosts’ petition as A.L.R.’s birth father, spoke with the Brosts’ attorney and wrote a letter to the Brosts.  In the letter, respondent explained that he was A.L.R.’s father, had not known where his daughter was, and asked to visit A.L.R.   The Brosts voluntarily dismissed their Wisconsin petition to terminate respondent’s parental rights on October 27, 2000.

On November 2, 2000, appellant filed an amended petition in the Morrison County District Court, requesting termination of the parental rights “of any prospective biological fathers of the minor child,” alleging that “no one has served any papers upon the biological mother indicating any intent to exercise any parental rights or responsibilities toward the child” and that “no one has held the child out to be his own.”  On November 6, 2000, appellant filed the search results from the Minnesota Fathers’ Adoption Registry with the district court; that document indicated that no putative father of A.L.R. had registered.  Consequently, on that date the district court, without a hearing, terminated the parental rights of any possible biological father of A.L.R.  The district court ordered that A.L.R. would remain in the custody of the Brosts pending their adoption of the child.

In late November, respondent visited the Brosts and A.L.R.  During that visit, respondent learned that appellant had successfully terminated his parental rights in Minnesota.  In early December, respondent sent a letter to the Minnesota Department of Health, indicating his intention to retain parental rights to A.L.R.  On December 7, 2000, respondent moved to vacate the order terminating his parental rights to A.L.R.   

            By order and memorandum dated February 1, 2001, the district court vacated the order terminating respondent’s parental rights to A.L.R. on two grounds: excusable neglect pursuant to Minn. R. Juv. P. 81.02(a) and misconduct of an adverse party, pursuant to Minn. R. Juv. P. 81.02(c).  By incorporated memorandum, the district court also observed that Wisconsin would be the appropriate jurisdiction for determining respondent’s parental rights and that appellant’s petition to terminate respondent’s rights was defective.  This appeal follows.

D E C I S I O N

            Appellant contends that the district court abused its discretion by vacating the November 6, 2000, order terminating respondent’s parental rights because (1) appellant did not commit misconduct by failing to apprise the court of respondent’s residence and the Wisconsin termination proceedings that had been dismissed days before she brought her motion; (2) Minnesota is the proper jurisdiction for paternity proceedings, if any; and (3) the amended termination petition was not defective.  Absent a clear abuse of discretion, this court will uphold a district court’s decision concerning a motion to vacate an earlier order terminating parental rights.  In re the Welfare of B.J.J,, 476 N.W.2d 525, 527 (Minn. App. 1991).

            Appellant first argues that misconduct cannot be the basis for vacating the termination order because any failure to inform the district court that respondent intended to assert his parental rights in the Wisconsin proceeding was not material.

            The vacation of an earlier order terminating parental rights is governed by common law and court rules.  At common law, an order terminating parental rights “may be set aside at any time for after-discovered fraud upon the court.”  R.L.M. v. Moon,410 N.W.2d 925, 927 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).  A party bringing the motion to vacate must present clear and convincing evidence of fraud or misconduct that prevented full and fair presentation of its case.  J.L.B. v. T.E.B., 474 N.W.2d 599, 603 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).  Fraud, in this context, exists when the court is “misled as to material circumstances, or its process is abused” resulting in an unfair judgment.  R.L.M., 410 N.W.2d at 927(citation and quotation omitted).  The fraud or misconduct must go to the “ultimate issue” of a case.   Regents of Univ. of Minn. v. Medical, Inc., 405 N.W.2d 474, 480 (Minn. App. 1987), review denied (Minn. July 15, 1987).  Misrepresentations and failures to disclose information must be material and intentional.  Maranda v. Maranda,449 N.W.2d 158, 165 (Minn. 1989).

In addition, the Minnesota Rules of Juvenile Procedure govern juvenile delinquency proceedings as well as juvenile protection, including proceedings to terminate parental rights.  See Minn. R. Juv. P. 1.01 (providing that the rules govern juvenile court proceedings); Minn. Stat. § 260C.301 (2000) (providing that the juvenile court may, if the statutory requirements are met, terminate parental rights).  Minn. R. Juv. P. 81.02 (a)-(c) provide that district courts may vacate termination proceedings for, among other things, fraud, mistake, misconduct, and excusable neglect.  Id. 

During the October 2000 hearing concerning termination of appellant’s parental rights, the district court asked appellant about the child’s father; appellant testified that the father had “no contact, no interest” in the child.  In appellant’s November 2000 motion to terminate respondent’s parental rights, appellant alleged that “no one has served any papers upon the biological mother indicating any intent to exercise any parental rights or responsibilities toward the child * * * ” and that “no one has held the child out to be his own.” 

Although technically true, it is clear that, by November 2000, appellant, her parents, the Brosts, and the parties’ attorneys were aware of respondent’s interest by virtue of the dismissed Wisconsin proceedings.  Had the Minnesota district court been made aware of those proceedings, dismissed after respondent demonstrated an interest in the child, it may not have terminated his parental rights.  Cf. In re the Welfare of C.R.B.,384 N.W.2d 576, 580 (Minn. App. 1986) (misrepresentations to court by father concerning mother’s willingness to terminate her parental rights constituted fraud sufficient to vacate termination order), review denied (Minn. May 29, 1986). 

            Appellant argues, however, that her failure to supply information about respondent to the district court cannot be misconduct.  In support of this contention, appellant cites In re Petition to Adopt C.M.A.,557 N.W.2d 353 (Minn. App. 1996), review denied (Minn. Apr. 15, 1997).  In C.M.A.,the child’s biological father, who resided in New Hampshire, moved to vacate an adoption decree, arguing that the mother, who had placed the child with adoptive parents in Minnesota, committed fraud on the court by failing to identify the biological father.  Id. at 355.  Because the father had not complied with any of the statutory provisions that would have entitled him to notice of the adoption proceedings, and because the adoptive parents and birth mother had no knowledge of New Hampshire paternity proceedings, this court held that his identity was not material to adoption and that no fraud existed.  Id. at 358-59.

            C.M.A. is distinguishable in important respects.  First, unlike New Hampshire and Minnesota, Wisconsin does not have a registry with which respondent could have filed.  Second, unlike the adoptive parents and birth mother in C.M.A.,the Brosts not only knew of the dismissed Wisconsin termination proceedings, they had initiated them.  Finally, unlike the father in C.M.A.,appellant, upon learning of A.L.R.’s whereabouts, quickly sought to assert his rights as A.L.R.’s father by retaining counsel and taking action.

We believe that respondent’s interests, as evidenced by the dismissed Wisconsin proceedings and known to appellant at the time she filed her Minnesota petition to terminate respondent’s parental rights to A.L.R., were material to the Minnesota termination proceedings.  We therefore hold that the district court did not abuse its discretion by concluding that appellant’s failure to inform the court of the Wisconsin proceedings was an abuse of process sufficient to constitute misconduct warranting vacation of the termination order pursuant to Minn. R. Juv. P. 81.02(c).

We do not by virtue of this opinion intend to express any opinion regarding the ultimate question of whether respondent’s parental rights should be terminated or what the outcome of adoption proceedings, if any, should be.  These issues, among others, we leave for another day.

            Because we affirm the district court’s order on the basis of misconduct, we need not address appellant’s other claims.

Affirmed.