This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-03-398

 

In the Matter of the Welfare of the Children of:
Elizabeth and Raymond Traylor.

 

Filed September 16, 2003

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. JX01069543/J001058552

 

Amy Klobuchar, Hennepin County Attorney, Cory A. Carlson, Assistant County Attorney, 525 Portland Avenue, Minneapolis, MN  55415 (for respondent Hennepin County Children, Family and Adult Services Department)

 

Leonard Castro, Fourth District Public Defender, David P. Murrin, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellants R.T. and E.T.)

 

Shirley A. Reider, Lakes & Plains Office Building, 842 Raymond Avenue, Suite 205, St. Paul, MN  55114 (for guardian ad litem)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a termination-of-parental-rights order, appellant-parents argue that while this case started as a termination-of-parental-rights proceeding, it was ultimately treated as a proceeding to transfer legal custody of the children, and, therefore, after the order transferring legal custody was vacated, the district court should have conducted another evidentiary hearing addressing the requirements for termination before entering the order terminating parental rights.  We affirm.

FACTS

            Appellant-father R.T. and appellant-mother E.T. are the parents of five minor children.  On October 31, 2001, the district court found the children to be in need of protection and services (CHIPS) due to mother’s chemical dependency and father’s incarceration until 2005.  On November 29, 2001, respondent Hennepin County Children, Family and Adult Services Department filed a termination of parental rights (TPR) petition.[1]  On May 20, 2002, both mother and counsel for the two oldest children filed motions to transfer custody to a relative, C.N.

            Trial on the TPR petition and the custody-transfer motions began on May 28, 2002.  Both parents and the two oldest children were present and represented by counsel at the hearing.  The guardian ad litem was also present and represented by counsel.  Counsel for all parties consented to try the TPR petition and the custody-transfer motions together.

            During the TPR part of the trial, mother stipulated that she was offered a case plan that required her to undergo chemical-dependency treatment and that she was to (1) have no positive urinalyses; (2) complete a parenting assessment and follow all recommendations; (3) engage in consistent, structured visitation; and (4) cooperate with the department’s social worker.  After the case plan was ordered, mother failed three chemical-dependency treatments; completed the parenting assessment but failed to follow all recommendations; failed to engage in consistent, structured visitation; and failed to cooperate with the department.  The department also presented exhibits documenting mother’s chemical-dependency problems and failure to comply with the case-plan requirements.

            The district court took judicial notice that father had committed an intentional felony and was incarcerated for 102 months, which was an upward departure from the presumptive sentence.

            During the custody transfer part of the trial, C.N. testified that she was willing, able, and committed to taking custody of all five children.  D.N. testified that he had a good relationship with the children, was committed to caring for them, and could handle the financial burden of their custody.  The guardian ad litem opined that transferring custody to C.N. was in the children’s best interests.  The parents and the two oldest children all expressed a preference for transferring custody to C.N.

            In an order filed July 1, 2002, the district court found that the department proved by clear and convincing evidence the existence of at least one ground to terminate mother’s parental rights.  Specifically, the court found that mother persistently failed to meet the obligations of the parent/child relationship and failed to correct any of the issues that led to the initial out-of-home placement.  The district court also found that the department proved by clear and convincing evidence that father’s parental rights should be terminated “due to his incarceration until 2005, well beyond permanency guidelines established by the Legislature and Court rule.”  The district court found that it was in the children’s best interests to transfer custody to C.N. and ordered that sole legal and physical custody of all five children be transferred to her, with the right to reasonable visitation by both parents.  The district court continued jurisdiction over the matter and scheduled a review hearing for December 16, 2002.

            Later in July, the custody transfer disrupted when C.N. brought the oldest child to a shelter and refused to take him back.  At a review hearing held on July 25, 2002, to address the disruption, C.N. testified that she had not wanted custody of the two oldest children and had hoped that their grandmother would care for them.  At the review hearing, C.N. also testified that she had testified at trial that she was willing to take all five children because she understood the strong preference for keeping all of the siblings together and that if she had not agreed to take all five, she would not have been awarded custody of the other three.  The district court stated that if C.N. had testified honestly at trial, it would not have transferred custody to her and orally ordered the custody-transfer order vacated.  Neither the parents nor their counsel were present at the review hearing.  To afford the parents an opportunity to present their positions on the matter, the district court continued the review hearing.

            At the continued review hearing on September 25, 2002, counsel for the parents argued that once the district court entered the custody-transfer order, it no longer had jurisdiction to terminate parental rights.  Mother’s counsel argued that if she had known that placement with C.N. was not a viable option, she would have offered different evidence at trial, and, therefore, it would be unfair to order the termination of parental rights without a new trial.  The district court determined that it retained jurisdiction to terminate parental rights and issued a written order vacating the custody-transfer order and terminating both parents’ parental rights.  The district court stayed entry of the termination order for 90 days to allow the parties to make any formal motions that they deemed appropriate, including to reopen the record or for a new trial.  The district court stated that it “want[ed] to make sure that the parents have every opportunity to be heard as to issues that were not heard at the trial” as a result of the parents’ misperception that transferring custody to C.N. was a viable option.

            A final review hearing was held on December 16, 2002.  The parents’ attorneys reiterated their positions stated at the September 2002 hearing but did not offer any additional evidence or make any offers of proof regarding what evidence they would present.  Mother’s counsel also requested that another kinship study be performed to determine if there was another custody-transfer option, which would allow the parents to retain visitation rights.  An order terminating the parental rights of both parents was entered February 3, 2003.

D E C I S I O N

            A district court may terminate parental rights if the petitioning party proves by clear-and-convincing evidence that at least one of the statutory grounds for termination exists.  In re Welfare of D.D.K., 376 N.W.2d 717, 720 (Minn. App. 1985); see Minn. Stat. § 260C.301 (2002) (setting forth grounds for termination).  The court must also find that termination would be in the child’s best interests.  Minn. Stat. § 260C.301, subd. 7; In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

“When a [district] court’s findings in a termination case are challenged, appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.”  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).

            The district court may terminate parental rights if it finds

            that following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement.  It is presumed that reasonable efforts under this clause have failed upon a showing that:

            (i) a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months.  . . . ;

            (ii) the court has approved the out-of-home placement plan required under section 260C.212 and filed with the court under section 260C.178;

            (iii) conditions leading to the out-of-home placement have not been corrected.  It is presumed that conditions leading to a child’s out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court’s orders and a reasonable case plan; and

            (iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.

 

Minn. Stat. § 260C.301, subd. 1(b)(5).

The parents argue that after vacating the custody-transfer order, the district court erred by terminating parental rights without conducting another evidentiary hearing to determine whether current conditions justified terminating parental rights.  We disagree.  The custody-transfer order resulted from a fraud on the court, and, accordingly, the district court vacated it.  See Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 442, 92 N.W.2d. 794, 795 (1958) (holding judgment may be set aside at any time for after-discovered fraud upon the court).  Once the custody-transfer order was vacated, it was as if that disposition had never existed.  See Gerardy v. Gerardy, 406 N.W.2d 10, 12 (Minn. App. 1987) (when a judgment is vacated, the parties are put in the same posture as they were in before the judgment was entered).  What remained were the findings of fact and conclusions of law that statutory grounds existed to terminate the parental rights of both mother and father.  The parents do not dispute that the evidence was sufficient to support the termination of their parental rights at that time.

In In re Welfare of P.R.L., pursuant to the parties’ agreement, the district court issued an order in April 1998 terminating mother’s parental rights to P.R.L. but stayed the termination.  622 N.W.2d 538, 539 (Minn. 2001).  In June 1999, the district court revoked the stay and terminated mother’s parental rights.  Id.  The June 1999 order incorporated findings from the April 1998 order, which in turn incorporated earlier orders from 1994 and 1996.  Id. at 542.  In the June 1999 order, the district court found that mother had violated the conditions of the stay by having contact with her boyfriend.  Id.  Mother’s relationship with her boyfriend was the primary basis of her unfitness to be a parent.  Id. at 545.  Mother did not dispute having contact with her boyfriend but argued that changed circumstances, specifically her boyfriend undergoing domestic-abuse treatment, made the contact reasonable.  Id.

This court reversed the termination because “the district court did not make specific factual findings concerning current conditions sufficient to show by clear and convincing evidence that a statutory condition justifying termination was satisfied at the time the stay was lifted.”  Id. at 542.  Relying on the presumptions in Minn. Stat. § 260C.301, subd. 1(b)(5), and the absence of evidence “that the long-persisting detrimental relationship between” mother and her boyfriend had changed, the supreme court reversed.  Id. at 544-45.

Here, a very short time, less than one month, elapsed between the custody-transfer order and the district court’s oral order vacating the custody transfer due to a fraud on the court.  See Halloran, 253 Minn. at 442, 92 N.W.2d at 798 (holding judgment may be set aside at any time for after-discovered fraud upon the court).  Given that short time period, the district court could have entered the order terminating parental rights without conducting an additional evidentiary hearing.  In re P.R.L., 622 N.W.2d at 544-45.  Instead, because neither the parents nor their attorneys were present at the July 2002 hearing, the district court continued the matter to allow the parents an opportunity to present their positions on the matter.  At the continued hearing in September 2002, the district court ordered both parents’ parental rights terminated but stayed the order to allow the parties time to make any formal motions that they deemed appropriate.  At the final review hearing in December 2002, mother requested a new trial and another kinship study, but did not offer any evidence that she had made progress in correcting the conditions that led to the children’s out-of-home placement, and neither party offered evidence that permanent placement with other relatives was a feasible option.

Father’s situation is unchanged; he remains incarcerated until 2005 and is therefore unavailable to take custody of the children.  Mother’s situation is also unchanged:  as in P.R.L., the children have resided out of the parental home under court order for more than 12 consecutive months, the court approved a case plan, which mother failed to complete, and the county made reasonable efforts to rehabilitate mother and reunite the family.  The only question is whether the district court was required to conduct an additional evidentiary hearing on whether conditions leading to the out-of-home placement had changed.  We conclude that it was not based on (1) the unusual procedural posture of this case, specifically, the custody-transfer order being vacated due to a fraud on the court less than one month after the order was issued; (2) the delay in entering the termination order resulted from the district court’s efforts to allow the parents an adequate opportunity to present their positions on the termination issue following vacation of the custody-transfer order and to support their requests for a new trial and another kinship study; and (3) the absence of any evidence that mother has made progress in addressing her chemical-dependency problem or that father’s situation has changed.

Affirmed.

 



[1] The department also filed an alternative motion to transfer legal custody to relatives but later dismissed the motion.