This opinion will be unpublished and

may not be cited except as provided by

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






In re the Welfare of the Minor Child E. P. K., dob December 31, 1999.

Thomas Gorski, et al., petitioners,


Ramsey County Community Human Services Department,



Crystal Jean Klein,

Rudy Molina,


Filed September 28, 2004

Affirmed in part, reversed in part, and remanded

Minge, Judge


Ramsey County District Court

File No. F6-01-000577


Robert J. Lawton, 1100 West Seventh Street, St. Paul, MN 55102 (for respondents Gorski)


Susan Gaertner, Ramsey County Attorney, Heather E. McCleery, Assistant County Attorney, Suite 560, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondents Ramsey County Human Services)


Jennifer Mrachek, Southern Minnesota Regional Legal Services, Inc., 579 Wells Street, Suite 100, St. Paul, MN 55101; and


Janet C. Werness, Southern Minnesota Regional Legal Services, Inc., 46 East Fourth Street, Suite 700, St. Paul, MN 55101 (for appellant)

            Considered and decided by Minge, Presiding Judge; Harten, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

MINGE, Judge

Appellant-father Rudy Molina challenges the district court’s denial of his motion to vacate a 2001 order awarding custody of his child to respondents Thomas and Shawn Gorski.  While the Gorskis, Crystal Klein, who is the child’s mother, and respondent Ramsey County stipulated to the custody order, appellant received no notice of that proceeding.  The 2001 custody ruling does not purport to address appellant’s rights, appellant was not involved in the proceedings producing that ruling, and respondents admit that appellant can petition for custody of the child.  Therefore, in this unique and limited circumstance, we determine that appellant’s motion to vacate the 2001 custody ruling should be treated and considered as a request for a determination of appellant’s custodial rights on the merits, we reverse the denial of the motion so construed, and we remand to the district court for a hearing and a determination of appellant’s parental role and custodial rights. 


            Appellant and Klein, who have never been married to each other, are parents of the child who is the subject of these proceedings.  Appellant is named as the child’s father on the child’s birth certificate, which was signed January 1, 2000, and on a recognition of parentage (ROP) for the child, which he signed on January 14, 2000 and filed with the Minnesota Department of Vital Statistics.  When appellant and Klein separated, Klein and the child eventually moved in with Klein’s brother and the sister-in-law, both of whom limited Klein’s contact with appellant.  During this time, appellant and his family made numerous attempts to reach Klein and the child. 

            In September 2000, respondent Ramsey County diagnosed the child with a “failure to thrive” and the child was placed in foster care pending an emergency-protective-care hearing.  Klein told a social worker that appellant was the child’s father, that appellant was an illegal immigrant who smuggled drugs, and that appellant had never signed the child’s birth certificate or an ROP.  Klein also told the social worker that she did not know where appellant was.  In a later court appearance, Klein admitted that these statements were false. 

From September 2000 to March 2001, several emergency-protective-care and evidentiary hearings were held, and a CHIPS petition was subsequently filed.  In December, the child was placed with respondents Shawn and Tom Gorski, who are friends of Klein.  At a March 2001 permanency hearing, the county, Klein and the Gorskis agreed to transfer permanent physical and legal custody of the child to the Gorskis in exchange for dismissal of the CHIPS petition.  On March 14, 2001, the court adopted the stipulation and transferred custody accordingly. 

Although Klein was given notice of, and was represented at all the hearings, appellant was not served or provided with notice of the hearings or any subsequent court orders.  Klein contacted appellant in November or December 2000 and told him only that the county had taken custody of the child and placed the child in foster care and provided appellant with the name and phone number of the social worker on the case.  

Throughout this time, appellant and his family attempted to obtain information on the child.  Klein’s family refused to cooperate, and appellant and his family were unsuccessful in obtaining information from the county.  The social worker informed appellant that she could not talk to him because he was not a U.S. citizen and had not signed the child’s birth certificate or an ROP.  When appellant told her that she was mistaken in all three statements, she informed him that until he provided her with originals of the papers, she could not release information regarding the child.  The social worker did not attempt to contact appellant, determine his status, offer him services, inform him of court dates, or involve his family members in caring for the child.  Appellant unsuccessfully sought information from another social worker who was responsible for the child’s file.  That social worker later testified that contact from appellant was not important and that it was not his job to follow up on information regarding appellant.

In September 2001, while incarcerated, appellant received notice from Washington County that the Gorskis had filed a child support action against him.  On March 21, 2002, Gorskis filed a private termination-of-parental rights petition against appellant in Washington County.  In an extensive order and memorandum, the Washington County District Court denied that petition on December 10, 2002, noting, among other things, that (a) despite efforts to become involved with the child, appellant and his family had been kept from the child by Klein, Klein’s family, and the county; (b) appellant had been omitted from the proceedings transferring custody of the child to the Gorskis; (c) in those proceedings, the county failed to make “reasonable efforts” to locate appellant; and (d) the mother of appellant’s other child testified that appellant had had a good relationship with that child.

Upon his release from prison in 2003, appellant was formally adjudicated the father of Klein’s child on June 17, 2003.  He then filed a motion to intervene in the custody proceedings, requesting that the district court vacate the March 2001 custody ruling on the grounds that it was entered without notice to him and in violation of his due-process rights and grant such other relief as may be just and equitable.  The district court allowed appellant to intervene but denied his motion to vacate the custody order, finding that he failed to timely make the motion and that the lack of notice did not deprive him of his constitutional rights.  Appellant now challenges that denial. 

In its appellate brief, the county states that appellant did not seek custody of the child in his paternity action.  On May 7, 2004, appellant moved this court to correct or modify the record to incorporate documents from his paternity action, including the summons and complaint, the notice of motion and motion, and his affidavit, showing that he sought legal and physical custody in the paternity proceeding.  On June 18, 2004, this court issued an order taking judicial notice of the documents from the paternity action.




Appellant challenges the denial of his motion to vacate the 2001 custody ruling, arguing that it is void as to him and must be vacated because he was not served with papers for, or otherwise involved in, the proceedings producing that ruling.  Generally, appellate courts review a district court’s decision on a motion to vacate an order or judgment for an abuse of discretion.  See In re Welfare of T.D., 631 N.W.2d 806, 808 (Minn. App. 2001) (applying abuse-of-discretion standard to decision on motion to vacate made in juvenile proceeding); see also Meyer v. Best Western Seville Plaza Hotel, 562 N.W.2d 690, 694 (Minn. App. 1997) (applying abuse-of-discretion standard to motion to vacate made in civil matter), review denied (Minn. June 26, 1997). 

The 2001 custody ruling both dismissed a CHIPS proceeding and states that the district court was acting “pursuant to MINN. STAT. § 260C.201, subd. 11(e)(1) [(2000)],” the permanent-placement statute.  Therefore, the ruling was a ruling in a “juvenile protection matter.”  See Minn. R. Juv. P. 38.01(h)(1), (5) (defining juvenile-protection matters to include both CHIPS proceedings and permanent-placement matters under Minn. Stat. § 260C.201, subd. 11).[1]  Juvenile-protection proceedings are governed by the Juvenile Protection Rules.  Minn. R. Juv. P. 37.01.  Under those rules, appellant was a party to the juvenile-protection matter that attempted to award the Gorskis permanent custody, and the fact that appellant was a party to that proceeding entitled him to receive notice of, and participate in, that proceeding.  See Minn. R. Juv. P. 57.01, subd. 3(a) (stating parties to permanent placement matters include “the child’s parents, including any noncustodial parent and any adjudicated or presumed father”); Minn. R. Juv. P. 57.02 (listing rights of parties).  That did not happen here. 

The juvenile protection rules allow a party to seek “relie[f]” from an existing ruling because it is void.  Minn. R. Juv. P. 81.02(d).  The custody ruling however, adjudicated only Klein’s rights; it did not mention appellant.  Nor did it address or purport to address his rights vis-à-vis the child.  Because appellant’s rights were not adjudicated in, or otherwise implicated by, the 2001 custody ruling, that ruling does not affect him, and there appears to be no provision of that ruling from which he can be “relieved” under Minn. R. Juv. P. 81.02.  Indeed, both the county and the Gorskis admit that appellant is free to bring his own proceeding seeking custody of the child.  We appreciate the candor of the county and the Gorskis on this point.  Because the 2001 custody ruling did not implicate appellant’s rights vis-à-vis the child, because Gorskis and the county admit that appellant may seek custody, and because it is undisputed that appellant wants his rights regarding the child to be adjudicated, future custody litigation regarding this child is unavoidable regardless of whether the 2001 order is vacated.  Under these discrete circumstances and because of other relief granted in this decision, we decline to address whether the district court abused its discretion in denying appellant’s motion to vacate an order that does not prejudice him or adjudicate his rights.  Further in this situation, we do not reach the questions of whether the motion was timely, whether the ruling was a result of fraud or of fraud on the court, or whether a refusal to vacate the ruling would deprive appellant of his constitutional right to due process of law.


            The record in this matter reflects disagreement and some confusion about why appellant was not served or otherwise involved in the proceedings producing the 2001 custody ruling.  That proceeding started as a CHIPS proceeding, but concluded as one in which the county and the Gorskis petitioned to transfer permanent custody of the child to the Gorskis under Minn. Stat. § 260C.201, subd. 11(c).  Under the juvenile rules, “[i]t shall be the responsibility of the petitioner[s] to set forth in the petition the names and addresses of all parties if known to the petitioner after reasonable inquiry.”  Minn. R. Juv. P. 57.03.  Parties to permanent placement matters include “the child’s parents, including any noncustodial parent and any adjudicated or presumed father.”  Minn. R. Juv. P. 57.01, subd. 3(a).  Thus, the county and the Gorskis, as petitioners, were required to make a “reasonable inquiry” to locate appellant and provide his address to the court.  In the proceeding to vacate the 2001 custody order, however, the district court found that the county “did not make a reasonably diligent effort to locate and serve [appellant.]”  Similar findings were made by the Washington County District Court in the Gorskis’ unsuccessful private TPR proceeding.

            Exactly what constitutes “reasonable inquiry” under the juvenile rules has not been addressed.  Generally, what is reasonable is a fact question determined on a case-by-case basis.  See, e.g., Bode v. Minn. Dep’t of Natural Resources, 612 N.W.2d 862, 870 (Minn. 2000) (explaining that “reasonable time” is defined on a case-by-case basis) (quoting Sommers v. Thomas, 251 Minn. 461, 467, 88 N.W.2d 191, 195-96 (1958)); Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645, 651 (Minn. 1986) (finding a contractual limitation unreasonable).  And “inquiry” is generally defined as “1. The act of inquiring.  2. A question; a query.  3.  A close examination of a matter in a search for information of truth.”  The American Heritage Dictionary of the English Language 932 (3d ed. 1992).  Thus, we conclude that whether the “reasonable inquiry” required by Minn. R. Juv. P. 57.03 occurred is a factual determination made on a case-by-case basis addressing whether the petitioner(s) were sufficiently diligent in their attempt to locate the addresses of the parties to the matter being decided.  A district court’s factual determinations are reviewed for clear error.  See In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001) (reciting clear-error standard for findings of fact made in termination-of-parental-rights proceeding). 

We recognize that counties have staggering caseloads, and we do not attempt to hold respondent Ramsey County to an unreasonable, lofty standard in locating parties.  But here, appellant and his family contacted the county on several occasions, attempting to acquire information.  The county’s social workers responsible for the file knew that appellant claimed to be the child’s father and that he and his family were concerned with the welfare of the child.  Also, the Gorskis were able to locate appellant’s address to serve him in their action for child support, and in response to appellant’s motion to vacate, the county obtained family court and police records containing information on appellant.  On this record, the district court did not clearly err in finding that, in the proceedings producing the 2001 custody ruling, the county and the Gorskis failed to make a reasonable inquiry to locate appellant’s address and provide it to the district court.


            Review of appellant’s motion to vacate reveals that it is essentially a request that the district court address his rights regarding the child.  Construing the motion in that fashion, we reverse the district court’s denial of the motion, and remand for the district court to address appellant’s rights regarding the child.  We construe the motion in this manner and remand the case for two reasons. 

            First, the state has a strong policy favoring prompt resolution of custody questions.  See Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988) (“emphasiz[ing] that it is truly in the best interests of the child to have permanent custody fixed as quickly as possible”); see also Minn. Stat. § 518.168(a) (2002) (requiring custody proceedings to be given hearing priority).  Unfortunately, the process of finally resolving the custodial status of this child has been unnecessarily long.  This is because of many circumstances, including chemical-dependency problems of both parents; mother, her family, and the county effectively limiting appellant’s access to the child; appellant’s incarceration; multiple child-protection proceedings in multiple counties; the county and mother failing to make adequate efforts to locate and involve appellant in at least one of those proceedings; an unsuccessful attempt to terminate appellant’s parental rights; the award of custody to the Gorskis; and the current appeal.  While further delay of the final determination of custody that appellant wants, and that the county and the Gorskis admit appellant can seek, might allow the matter to be adjudicated in a form or a procedural posture that is more similar to the procedural posture typically associated with such proceedings; affirming the denial of appellant’s motion and requiring the parties to start the custody process over solely for that reason would be contrary to both the state’s policy of prompt custody determinations and to the best interests of this child.  See Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995) (stating, in context of grandparent visitation dispute, that, “[a]s in all matters involving court-established family relationships of children, we begin with reference to our paramount commitment to the best interests of the children. We said a century ago, ‘[t]he cardinal principle in such matters is to regard the benefit of the infant as paramount’ and we have reiterated that premise in many recent cases.”) (quoting Flint v. Flint, 63 Minn. 187, 189, 65 N.W. 272, 273 (1895)).

            Second, given the concession by the county and the Gorskis that appellant can litigate his custodial rights and given appellant’s undisputed desire to have those rights adjudicated, future custody litigation regarding this child is unavoidable.  Appellant initiated this proceeding requesting in part such relief as may be just and equitable.  There is no point in delaying this proceeding purely for matters of form.  See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (declining to remand custody matter for findings where doing so would not alter result). 

Because of the discrete nature of this case, however, custody of the child shall remain with the Gorskis until resolution of the proceedings on remand, unless the district court concludes that temporary custody pending the remand should be placed elsewhere.


            The parties’ arguments in this court suggest disagreement on the standard applicable to a custody proceeding addressing appellant’s rights.  Because we construe appellant’s motion as one to have his custody rights addressed by the district court, reverse the denial of that motion, and remand for adjudication of those rights; we address the standard applicable on remand.  Cf. Alevizos v. Metro. Airports Comm’n, 298 Minn. 471, 485, 216 N.W.2d 651, 661 (1974) (addressing standard to be applied on remand). 

While the 2001 custody ruling involved an award of custody to the Gorskis, the custody-modification standard of Minn. Stat. § 518.18 (2000) would not be applicable on remand.  Custody disputes between parents and third parties are generally governed by four concepts: (a) a presumption favoring a natural parent, summarized by the doctrine that a parent is “entitled to the custody of [his or] her children unless it clearly appears that [he or] she is unfit or has abandoned [his or] her right to custody, or unless there are some extraordinary circumstances which would require that [he or] she be deprived of custody;” (b) the idea that “[t]he burden of disproving [the presumption favoring a parent over a third party] rests upon those who challenge it;” (c) the best-interests-of-the-child doctrine, “according to which the welfare and interest of the child is the primary test to be applied in awarding custody;” and (d) the idea the presumption favoring parents over third parties “is distinctly subordinate to the controlling principle that the overriding consideration in custody proceedings is the child’s welfare.”  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (quoting Durkin v. Hinich, 442 N.W.2d 148, 152-53 (Minn. 1989) and Wallin v. Wallin, 290 Minn. 261, 264-65, 187 N.W.2d 627, 629-30 (1971) (other citations omitted)). 

Wallin involved a mother seeking custody of her child, who was then in the custody of third parties (the child’s grandparents) who had been awarded custody more than a year earlier by a default judgment issued in a dissolution proceeding in which the mother had not appeared.  Wallin, 290 Minn. at 262-63, 187 N.W.2d at 628.  It summarized the standard to be used when a parent seeks custody of his or her child from a third party:

            Thus, it would seem to be a fundamental rule of law that, all things being equal, as against a third person, a natural mother would be entitled as a matter of law to custody of her minor child unless there has been established on the mother’s part neglect, abandonment, incapacity, moral delinquency, instability of character, or inability to furnish the child with needed care, or unless it has been established that such custody otherwise would not be in the best welfare and interest of the child.


Id. at 266, 187 N.W.2d at 630 (citations omitted). 

We recognize the difference between the Wallin standard and the custody-modification standard of endangerment or impairment in Minn. Stat. § 518.18.  In Westphal v. Westphal, 457 N.W.2d 226, 228-29 (Minn. App. 1990), this court held that it was proper to apply the custody-modification standard of Minn. Stat. § 518.18 to a nonparent’s motion to modify custody from a parent to the nonparent.  Unlike Westphal, the posture of the proceedings on remand in this case will be that of a parent seeking custody from nonparents.  Therefore, the posture of this dispute is closer than that of Wallin than of Westphal, and we conclude that the above quoted standard in Wallin is applicable.  Lastly, because the duration of these proceedings has been unnecessarily prolonged, because it is in the best interests of children to have custody resolved promptly, and because our disposition of this case is driven, in part, by our attempt to expedite the bringing of closure to the child’s custodial situation; we urge the district court to resolve the matter forthwith consistent with the child’s best interests. 

            Affirmed in part, reversed in part, and remanded. 

[1]The Minnesota Rules of Juvenile Procedure were replaced in 2004 by the Minnesota Rules of Juvenile Delinquency Procedure and the Minnesota Rules of Juvenile Protective Procedure.  While numbered differently, the substantive language of the 2000 rules cited in this opinion are the same as the relevant 2004 rules.