This opinion will be unpublished and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

A03-756

 

 

In the Matter of the Children of

Dannelle and Joseph Archibald.

 

 

Filed November 18, 2003

Affirmed

Willis, Judge

 

Anoka County District Court

File Nos. J8-03-51082, J3-02-53294, J8-02-53923, CA3092

 

Sherri D. Hawley, 1398 Myrtle Street North, Saint Paul, MN  55119 (for appellant Dannelle Archibald)

 

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Dan Klint, Assistant County Attorneys, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for respondent county)

 

Cynthia Lee, P.O. Box 25692, Woodbury, MN  55125 (guardian ad litem)

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the termination of her parental rights, arguing that she was denied effective assistance of counsel.  Because we conclude that she was not denied effective assistance of counsel, we affirm.

FACTS

            Appellant Dannelle Archibald is the mother of a 20-month-old son, T.J.  Archibald’s parental rights were terminated after the district court found that the statutory grounds for termination were proved by default.  T.J.’s father filed a voluntary petition to terminate his parental rights and is not a party to this appeal.

An October 2002 CHIPS petition alleged that T.J. was in need of protection or services because of repeated instances of drug use by Archibald.  Beginning in June 2002, Anoka County Social Services received “numerous” reports about Archibald’s use of methamphetamine, a habit for which she was enrolled in a substance-abuse program.  At least two sources reported to the county that Archibald had used methamphetamine or marijuana throughout her pregnancy.  After an emergency protective-care hearing, the district court ordered that T.J. remain in protective care and scheduled an admit/deny hearing for October 21, 2002.

Archibald did not appear at the October 21 hearing.  The district court continued all orders and directed that Archibald be served personally with notice of the next hearing, which was scheduled for December 2.  In late November, an Anoka County Sheriff’s Deputy attempted to serve Archibald personally with notice of the December 2 hearing, but she was no longer living at the address in the county’s records, and her new address was unavailable.  At the December 2 hearing, at which Archibald again failed to appear, the court ordered that notice to Archibald of the next hearing, scheduled for January 17, 2003, should be by publication because her current address was unknown.  The court also ordered the county to file a petition to terminate Archibald’s parental rights.  The termination petition, filed December 11, details the same allegations that are in the CHIPS petition.

The district court first considered the termination petition at a January 17, 2003 hearing.  Archibald again failed to appear, despite having been warned by a county social worker the previous day that failure to appear could result in the termination of her parental rights.  The social worker testified about this warning and also testified that the information in the termination petition was true and accurate.  Although the court found that the statutory grounds for termination were proved by default, it took the termination of Archibald’s parental rights “under advisement” and scheduled a pre-trial hearing on March 27 and a trial on April 11, thereby giving Archibald an additional opportunity to rebut the allegations in the termination petition.

Archibald appeared at the March 27 pre-trial hearing and, in response to the court’s stated concern that she was still using methamphetamine, denied any drug use.  The court ordered that, before it would consider a motion by Archibald to vacate any eventual entry of the default judgment taken under advisement at the January 17 hearing, Archibald was required to provide a clean urinalysis sample that day, March 27.  And the court warned Archibald that her failure to appear for trial on April 11 would result in the termination of her parental rights.

Archibald did not appear for trial on April 11.  Archibald’s counsel informed the court that Archibald was on 72-hour hold in connection with involuntary commitment proceedings related to her drug use.  And the court noted that the urinalysis sample that Archibald provided on March 27 had tested positive for methamphetamine.  The court ordered termination of Archibald’s parental rights, and this appeal follows.

D E C I S I O N

            The district court may terminate parental rights only if it is proved by clear and convincing evidence that at least one statutory ground for termination exists.  See In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); see also Minn. Stat. § 260C.301, subd. 1(b) (2002) (providing statutory grounds for termination).  When reviewing a district court’s findings in a termination proceeding, this court is “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 reviewing court will “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.”  In re Welfare of Clausen, 289 N.W.2d 153, 156  (Minn. 1980).  In any action for the termination of parental rights, if other statutory requirements are met, “the best interests of the child must be the paramount consideration.”  Minn. Stat. § 260C.301, subd. 7  (2002).

Archibald does not contend that the district court’s findings fail to address the statutory criteria or are unsupported by the evidence.  Indeed, the record shows that the court’s findings address the statutory criteria and that the report and testimony of the county’s social worker, unrefuted by Archibald, support the findings.  Archibald argues instead that this court should review her case in accordance with the procedure set forth in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).  In Anders,the Supreme Court articulated a procedure by which counsel who finds an appeal to be meritless may request permission to withdraw without denying an indigent criminal defendant the representation that due process and equal protection require.  Id. at 744, 87 S. Ct. at 1400.  The Court stated that counsel’s request should include a brief referring to anything in the record that might support the appeal and that the reviewing court should then examine all of the proceedings to determine if the case is meritless.  Id.

Anders is inapplicable here because Archibald’s counsel has not sought to withdraw.  Cf. State v. Balfour, 814 P.2d 1069, 1079 (Or. 1991) (declining to apply Anders because, when counsel does not withdraw, “the core constitutional concerns for which Anders [was] designed disappear”).  Not only is Archibald represented by counsel on appeal, but also she argues that she was denied effective assistance of trial counsel because her trial counsel did not move to vacate the default judgment.

To prevail on a claim of ineffective assistance of counsel, Archibald must show that trial counsel was not reasonably effective and that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (quotingStrickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

We conclude that Archibald has not met her burden of showing that the result of her termination proceeding would have been different if her trial counsel had moved to vacate the default judgment.  The district court ordered that Archibald provide a clean urinalysis sample on March 27 before the court would consider such a motion, and Archibald was unable to do so.

Even if Archibald had moved to vacate the default judgment, her motion would have been subject to the four-part test set forth in Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).  Archibald would have had to show that (1) she had a reasonable defense on the merits; (2) she had a reasonable excuse for failure or neglect to answer; (3) she acted with due diligence after notice of the entry of judgment; and (4) no substantial prejudice would result to the other party.  See id; see also In re Coats, 633 N.W.2d 505, 510 (Minn. 2001) (applying Finden test to default judgment terminating parental rights).  Given that Archibald’s drug use had resulted in a 72-hour hold by the time of trial and that she had received repeated warnings about the consequences of failing to appear in court, including the fact that such a failure would result in the termination of her parental rights, we see no likelihood that she could have satisfied the Finden factors.

            Affirmed.