This opinion will be unpublished and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

C1-01-1995

 

In the Matter of the Welfare of the Child of: E.L., Mother.

 

 

Filed June 11, 2002

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. JX00068902

 

Leonard Castro, Chief 4th District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

 

Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Bldg., 525 Portland Avenue, Minneapolis, MN 55415 (for respondent)

 

Kimary Knutson, 1900 Hennepin Avenue, Minneapolis, MN 55403 (for Guardian ad Litem)

 

            Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant mother E.L. challenges the default termination of her parental rights.  Because, despite adequate notice, appellant failed to appear, the district court properly found her in default and, later, entered judgment terminating her parental rights.  The district court did not abuse its discretion in conducting the later termination hearing or denying appellant’s motion to reopen the termination proceedings. 

FACTS

 

            Appellant E.L. is the mother of K.B.  On August 14, 2000, by default, K.B. was adjudicated a child in need of protection and services.  A termination-of-parental-rights proceeding was instituted against appellant in September 2000.  At the pretrial hearing on March 8, 2001, appellant signed a notice for the May 23, 2001, termination-of-parental-rights trial.

On May 23, 2001, appellant arrived at the courthouse one and one-half hours after the scheduled trial time.  She spoke with her attorney and left without making her presence known to the court.  At the hearing, the county requested that the district court proceed in default against appellant.  The court waited until the end of the hearing to address the default issue, in case appellant should appear.  When appellant did not appear, appellant’s counsel argued against default because appellant had been in the courthouse and because the case would be continued anyway to determine the status of K.B.’s biological father.  The court found appellant to be in default, but stayed entry of judgment terminating appellant’s parental rights.  The court discontinued appellant’s visitation rights until further court order.

The district court issued an order on May 24, 2001, finding appellant in default and prohibiting her from participating in any future proceedings, staying the termination of appellant’s parental rights, and ordering all other parties to appear on July 17, 2001, and September 6, 2001.  Appellant’s counsel was discharged.  Although the district court mailed appellant a copy of the May 23, 2001, order at her last known address, it was returned undeliverable.   

At the September hearing, the district court proceeded in default against both parents. The court noted that, having heard no testimony at the May 23 hearing, the county should offer testimony on both parents’ defaults.  The court then heard from K.B.’s child-protection worker and guardian.

On October 11, 2001, the district court issued an order terminating both parents’ rights to K.B.  Following the October 11 order, appellant moved to reopen the judgment terminating her parental rights.  Appellant now challenges the district court’s denial of her motion to reopen, arguing that (1) appellant was not afforded due process notice of the termination hearing in September; and (2) the district court erred in denying her motion to vacate because the district court did not analyze the four factors required for relief. 

D E C I S I O N

 

I.

 

In reviewing a claimed due-process violation, “[i]t is well settled law that ‘where the trial court has jurisdiction of the offense and of the defendant a judgment will be held void for want of due process only where the circumstances surrounding the trial are such as to make it a sham and a pretense rather than a real judicial proceeding’.”  In re Welfare of Children of Deloris Coats, 633 N.W.2d 505, 512 (Minn. 2001) (quoting State ex. rel. Butler v. Swenson, 243 Minn. 24, 28, 66 N.W.2d 1, 4 (1954)).  Due process requires that a parent’s notice of a parental-termination hearing clearly state that failure to appear may result in the court proceeding in default.  In re Welfare of T.D., 631 N.W.2d 806, 809-10 (Minn. App. 2001).

Here, no one disputes that appellant had such notice of the May 23, 2001, hearing. In fact, appellant appeared in the courthouse that day and spoke with her attorney, but left without appearing before the court.  Because appellant had adequate notice of the hearing, but failed to appear, the district court properly proceeded in default.  Minn. R. Juv. P. 54.01; Coats, 633 N.W. 2d at 512.

Appellant argues that despite the default finding, the district court’s stay of entry of judgment of default entitled her to notice of the subsequent termination hearing.  We disagree.   

            The juvenile rules provide that

If a party fails to appear after being properly served with a summons and notice that failure to appear may result in (a) a finding that the statutory grounds set forth in the petition have been proved and (b) an order granting the relief requested, the court shalltake testimony in support of the petition.  

 

Minn. R. Juv. P. 54.01.  This rule allows the court to find a duly notified party in default.  While the court is authorized to take testimony on the petition and, “if the petition is proved by the applicable burden of proof,” enter judgment upon default, the rule does not prohibit a stay of entry of judgment and a delay in taking testimony in support of the termination petition.  Id.  Contrary to appellant’s argument that her due-process rights were violated by the stay and delay, she actually gained a slight reprieve from the district court’s stay.  Her counsel acknowledged this when he requested the stay as “more fair” to his client.  The stay allowed for the possibility that appellant would seek relief from the default finding and that the father would obtain legal custody, thereby preserving appellant’s right to reasonable visitation.  Regardless of this reprieve, appellant made no effort to contact the court or visit the child for more than three months.  Therefore, we cannot conclude that appellant’s due-process rights were violated.

II.

 

The district court’s decision refusing to reopen a judgment “will not be disturbed absent an abuse of discretion.”  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996) (citations omitted); see also In re Welfare of Children of Deloris Coats, 633 N.W. 2d 505, 510 (Minn. 2001).  

           Minn. R. Juv. P. 81.02 provides that the court may relieve a party from a “final order or proceeding” in several circumstances including “mistake, inadvertence, surprise, or excusable neglect.” Id. at (a).  The juvenile rule is a counterpart to Minn. R. Civ. P 60.02.  Coats, 633 N.W.2d at 510 n4.  The party seeking relief under Rule 60.02 must 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 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)).  All four factors must be met to justify granting relief under Rule 60.02.   Nguyen, 558 N.W.2d at 490.

            Appellant does not challenge the sufficiency of the termination; rather, she argues that the district court abused its discretion because it failed to specifically address each prong of the Coats/Nguyen test.  We disagree.

            While the district court did not specifically state and apply each Rule 60.02 factor when it denied appellant’s motion to vacate, the decision in Coats clarifies that the district court does not abuse its discretion when it rejects a Rule 60.02 motion that fails on one or more factor.  Coats, 633 N.W.2d at 511.  Here, at the hearing to reopen or vacate the judgment, the appellant and her counsel testified that appellant had made no effort to contact her attorney or the social worker between the May 23 hearing and the September 6, 2001 hearing.  The court also specifically found in its order denying the motion that appellant had neither engaged in the court-ordered plan nor attempted to visit the child during the same period.  In light of these facts, appellant failed to satisfy all four factors because she did not act with due diligence after the entry of default and she offered no reasonable excuse for her failure to act.

Affirmed.