This opinion will be unpublished and

may not be cited except as provided by

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






In the Matter of the Welfare of:


C.A.F. and G.S.,



Filed November 6, 2001

Reversed and remanded

Harten, Judge


Hennepin County District Court

File No. J6-00-50669


Leonardo Castro, 4th District Public Defender, Peter W. Gorman, Assistant 4th District Public Defender, 317 Second Avenue South, #200, Minneapolis, MN 55401-0809 (for appellant father)


Amy Klobuchar, Hennepin County Attorney, Jamie L. Cork, Mary M. Lynch, Assistant County Attorneys, 525 Portland Avenue, #1210, Minneapolis, MN 55415 (for respondent Hennepin County Children & Family Services Department)


James H. Schaefer, Assistant Public Defender, 317 Second Avenue South, #200, Minneapolis, MN 55401-2700 (for G.S., child)


            Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Hanson, Judge.


U N P U B L I S H E D   O P I N I O N




Appellant-father challenges the juvenile court’s default judgment (issued after appellant failed to appear at a pretrial hearing) placing one child in long-term foster care and terminating his parental rights to a second child.  We reverse and remand for findings not inconsistent with this opinion.



On August 27, 1999, the juvenile court adjudicated G.S. and C.A.F. children in need of protection and services (CHIPS).  The children were respectively fifteen years old and five years old at the time.  C.A.F. has been in out-of-home placement since April 23, 1999, at which time an order for immediate custody was also issued for G.S.  On January 5, 2000, respondent Hennepin County Department of Children and Family Services filed a petition to place G.S. in long-term foster care.  On January 11, 2000, respondent filed a petition to terminate parental rights to C.A.F.

Deborah Flores, the mother of G.S. and C.A.F., defaulted and is not a party to this appeal.  Gene Flores, Deborah Flores’s husband, was the presumed father of the children when these proceedings commenced.  In August 1999, appellant Gary Sawyer, Sr. underwent genetic marker testing that showed his likelihood of paternity to C.A.F. is 99.864%.  Accordingly, appellant is now the presumed father of C.A.F. and the alleged father of G.S., although no genetic testing has been done with regard to G.S.  On February 29, 2000, and March 29, 2000, appellant appeared at pretrial hearings on the termination petition and the long-term foster care petition.  The juvenile court scheduled an additional pretrial hearing for May 12, and set a trial date for July 5.

On May 12, appellant failed to appear at the continued pretrial hearing and respondent asked the juvenile court to proceed by default.  The attorneys for appellant and G.S. opposed the default motion.  The juvenile court agreed to take default testimony and told counsel that it would consider setting aside the default if appellant came in before respondent’s formal findings reached the court.  The juvenile court allowed appellant’s counsel and G.S.’s counsel to withdraw.  Appellant’s counsel excused herself after making a continuing objection to the default testimony and reserving the right to object to the testimony if appellant appeared.  The juvenile court issued a default judgment ordering placement of G.S. in long-term foster care and termination of appellant’s parental rights to C.A.F.

Appellant appeared the next business day, Monday, May 15, 2000, at 8:30 a.m.  On May 18, appellant filed an affidavit and a motion to vacate the default judgment as to both children.  At the June 16 hearing on appellant’s motion to vacate, appellant’s attorney stated on the record that appellant called her “in a panic” on May 15 and told her that “he just messed up.”  In his affidavit accompanying his motion to vacate, appellant stated that he “made a mistake as to the court date for the pretrial.” 

On June 23, 2000, the juvenile court denied appellant’s motion to vacate the default judgment.  This appeal was stayed pending the Minnesota Supreme Court’s decision in In re Welfare of Children of Coats, No. CX-99-2142.  On August 23, 2001, the supreme court’s Coats opinion was filed.  On September 10, 2001, this court granted appellant’s motion to dissolve the stay.  Appellant challenges the default judgment and the juvenile court’s refusal to vacate the default judgment.



“On an appeal from a district court’s decision to deny relief under Rule 60.02, we consider whether the district court’s decision constituted an abuse of discretion.”  In re Welfare of Children of Coats, __ N.W.2d __, __, No. CX-99-2142, slip op. at 9 (Minn. Aug. 23, 2001) (citing Charson v. Temple Israel, 419 N.W.2d 488, 490 (Minn. 1988)).  Unlike the current juvenile procedure rules, the rules in effect at the time these proceedings were initiated in January 2000 did not have a provision comparable to Minn. R. Civ. P. 60.02.  See Minn. R. Juv. P. 81.02 (2000) (specifying grounds for relief from final order of the juvenile court; applicable to all juvenile protection matters filed on or after March 1, 2000).  Rule 60.02 has generally been applied in juvenile proceedings.  See, e.g., In re Welfare of B.J.J., 476 N.W.2d 525, 527-28 (Minn. App. 1991) (finding no basis under rule 60.02 to justify vacating order terminating father’s parental rights). 

Appellant contends that the juvenile court abused its discretion in denying his motion to vacate the default judgment pursuant to Minn. R. Civ. P. 60.02.  A court may grant relief from a final judgment, order, or proceeding for certain enumerated reasons such as mistake, inadvertence, surprise, excusable neglect, or “[a]ny other reason justifying relief.”  Minn. R. Civ. P. 60.02(a), (f). 

In considering whether to grant relief from a default judgment under Rule 60.02, we require the party seeking relief to demonstrate that: (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.  Nguyen v. State Farm. Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997).  All four factors must be met to justify granting relief under Rule 60.02.  Nguyen, 558 N.W.2d at 490.


Coats, No. CX-99-2142, slip op. at 8-9.

            The juvenile court failed to address these four factors in its order denying appellant’s motion to vacate the default judgment.  The magnitude of the rights implicated here requires more than a summary denial.  Accordingly, we reverse and remand for the juvenile court to consider these four factors and make written findings, in a manner not inconsistent with this opinion.[1]

            Reversed and remanded.

[1] Given our remand of this case, we also invite the juvenile court to decide mootness as to G.S., who will be 18 years old on November 8, 2001.