This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Welfare
of the Child of:
B. B. and W. S., Parents.
Hennepin County District Court
File No. 175237/J1-05-054664
Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants B.B. and W.S.)
Amy Klobuchar, Hennepin County Attorney, Michelle A. Hatcher, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County Human Services and Public Health Department)
Patricia A. Timpane, Maria Mitchell, Guardian-ad-Litem Office, C-35 Juvenile Justice Center, 626 South Sixth Street, Minneapolis, MN 55415 (Guardian ad Litem)
Considered and decided by Halbrooks, Presiding Judge; Willis, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge the district court’s denial of their motion to vacate a default order and termination of their parental rights. Appellants argue that (1) the district court erred in denying their motion and in failing to make findings that address the criteria for vacating a default order; (2) the default proceedings violated due process of law; (3) the termination of parental rights lacked evidentiary support; and (4) the district court adopted respondent-county’s proposed findings without an independent review. We affirm.
S.W.E.S. was born to B.B. on April 2, 2005. Respondent Hennepin County Human Services and Public Health Department (the county) immediately filed a petition to terminate B.B.’s parental rights, alleging that B.B. was palpably unfit because (1) she tested positive for cocaine at the time of S.W.E.S.’s birth, (2) her parental rights to another child had been terminated, and (3) her four other children were adjudicated in need of protection or services because of her drug use. W.S., who is listed on the petition as the presumed father, signed a recognition of parentage following the child’s birth.
The district court held an emergency protective-care hearing and appointed a public defender to represent W.S., who was present. Following the hearing, the district court ordered protective care and out-of-home placement of S.W.E.S. As part of the order for protective care, W.S. and B.B. were offered an interim case plan that required W.S. and B.B. to complete a chemical-dependency assessment and to submit to urinalysis tests. The district court also appointed a guardian ad litem for S.W.E.S. and ordered W.S. to submit to a test for controlled substances and to provide a month of clean urinalysis tests before he could visit S.W.E.S.
At a June 2 hearing to admit or deny the termination-of-parental-rights (TPR) petition, the county reported that a public defender had been appointed to represent B.B. and that B.B. and W.S. had not complied with their case plans. The public defender entered a denial on behalf of W.S., and the district court ordered B.B. and W.S. to provide two weeks of clean urinalysis tests before they could visit S.W.E.S. B.B. and W.S. acknowledged in writing that they received notice of an admit/deny hearing for B.B. and a pretrial hearing for W.S. scheduled for July 19. The notice directed B.B. and W.S. to report to Room 231 of the Juvenile Justice Center and warned that failure to appear could result in the termination of their parental rights.
On July 19, neither B.B. nor W.S. appeared for the scheduled hearing. Counsel for the parties objected to the county’s motion to proceed by default. The district court overruled the objection but advised that “the matter will remain subject to being reopened, based on some sort of explanation as to why [B.B. and W.S.] could not be here.”
On the county’s motion, the district court took judicial notice of district court orders regarding B.B.’s five other children; the orders established that B.B.’s parental rights to one child had been terminated and custody of her four other children had been transferred from her involuntarily. The social worker assigned to S.W.E.S. opined that it would be in S.W.E.S.’s best interests to terminate B.B.’s parental rights based on her parenting history and her current failure to follow the voluntary case plan. The social worker testified that B.B. did not have any contact with S.W.E.S. following his birth, that S.W.E.S. tested positive for cocaine the day after his birth, that B.B. had continued to use drugs despite being offered treatment programs, and that B.B. had admitted failing to comply with the voluntary case plan.
When the county began questioning the social worker about W.S., his attorney objected on several grounds, including inadequate notice and lack of due process. W.S.’s attorney argued that the petition was devoid of allegations regarding W.S. The district court sustained the objection and advised that the proceedings would be continued for four to six weeks to permit the county to amend the petition and to give W.S. notice and an opportunity to consult with his attorney. The district court decided to “hold the findings” regarding B.B. to allow her attorney to contact B.B. and “clear the default” if she could. The district court warned that the parties’ failure to appear at the next hearing would result in a default order as to both B.B. and W.S.
The county then amended its TPR petition to include W.S. as a respondent, alleging that W.S. had visited the child only once and had not complied with the case plan or cooperated with any services to assist him in parenting his son. The amended petition listed statutory grounds for termination of W.S.’s parental rights that included abandonment of the child; failure to provide food, clothing, and shelter; palpable unfitness; and failure to correct the conditions leading to the out-of-home placement. Both B.B. and W.S. were served a copy of the amended TPR petition, which directed them to report for a disposition hearing before Judge Lefler on September 1, 2005, at 10:00 a.m. and warned that failure to appear could result in termination of their parental rights.
When neither B.B. nor W.S. appeared for the September 1 hearing, the district court granted the county’s motion to proceed by default. The district court also granted the motion of W.S.’s attorney to withdraw, and he left the courtroom before any testimony in support of the TPR petition was taken. In support of the TPR petition, the social worker testified that W.S. had not cooperated with the county’s reasonable efforts to provide services to help him parent S.W.E.S. and that W.S. had not had any contact with his son since the week after the child’s birth. The social worker opined that it was in the best interests of S.W.E.S. to terminate W.S.’s parental rights. The district court granted the county’s motion to terminate the parental rights of B.B. and W.S. and ordered the county to prepare proposed findings.
On September 9, appellants moved to vacate the default order terminating their parental rights and for a new trial. The motion stated that, at the time of the September 1 proceedings they were on the second floor of the Juvenile Justice Center, “having apparently been misdirected there by the clerk’s office.” The motion was submitted without a supporting affidavit. At the October 25 hearing on the motion, the parties did not present testimony in support of the motion. W.S.’s attorney argued that B.B. and W.S. were present in the courthouse on the day the default was entered, but because of a computer system change, a court employee may have been unable to inform them where the hearing was being held. According to the attorney, B.B. and W.S. arrived at the courtroom after the hearing and spoke with a member of the judge’s staff.
Counsel for the county did not “dispute that in fact they might have been [in the courthouse].” The county acknowledged that B.B. and W.S. came to the courtroom at some point that day but noted that they had not arrived by approximately 11:00 a.m. when the hearing concluded. Counsel for the county also argued that, because the summons indicated that the hearing was before Judge Lefler and they had been in Judge Lefler’s courtroom before, the parties had notice of the hearing location. The county urged the district court to deny the motion to vacate because the parents had no defense on the merits and the child was living with B.B.’s sister, who had custody of one of B.B.’s other children and was prepared to adopt S.W.E.S.
B.B.’s counsel noted that she was not present when the default was entered because she had notified the court clerk that she had another hearing. She returned to the courtroom after the hearing had concluded.
In an order dated January 4, 2006, the district court denied the motion to vacate and ordered the termination of B.B.’s and W.S.’s parental rights. This appeal followed.
D E C I S I O N
Appellants argue that the district court erred by denying their motion to vacate and by failing to make findings addressing all of the criteria for doing so. Whether to grant a motion to vacate a default order rests within the district court’s discretion. In re Welfare of Children of Coats, 633 N.W.2d 505, 510 (Minn. 2001); Riemer v. Zahn, 420 N.W.2d 659, 661 (Minn. App. 1988). Absent an abuse of discretion, the district court’s decision on a motion to vacate a default order will stand. Coats, 633 N.W.2d at 510.
a motion made within a reasonable time, but not more than 90 days after the
filing of a default order, the district court may relieve a party from the
default order and may order a new trial or grant other just relief based on,
among other grounds, “mistake, inadvertence, surprise, or excusable neglect” or
“any other reason justifying relief from the operation of the order.”
justify relief, all four factors must be met.
Appellants’ showing satisfied two of four factors. It is undisputed that appellants acted with due diligence after receiving notice of the entry of the default order. The motion to vacate was filed on September 9, approximately one week after the September 1 default ruling. And although the county argues that it would be prejudiced if the motion were granted, the county has not identified any evidence or witnesses that are unavailable. Thus, we conclude that the county would not be substantially prejudiced if the motion to vacate the default order were granted.
But because all four factors must be met, appellants’ failure to satisfy two factors is sufficient to justify denial of the motion to vacate the default order. There is no evidence in the record demonstrating a reasonable defense on the merits as to B.B. Indeed, B.B. has an extensive history of child-protection petitions, and the district court has previously terminated her parental rights to another child. Because of the prior involuntary termination of her parental rights, she must rebut the presumption of palpable unfitness. See Minn. Stat. § 260C.301, subd. 1(b)(4) (2004) (“It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated . . . .”); In re Welfare of D.L.R.D., 656 N.W.2d 247, 251 (Minn. App. 2003) (holding that to rebut presumption, parent must produce “evidence establishing that the prior condition of unfitness no longer exists”). Contrary to providing evidence challenging the presumption that B.B. is an unfit parent, the evidence provides strong support that she is palpably unfit to parent S.W.E.S. B.B. has a significant continuing history of drug abuse; S.W.E.S. tested positive for cocaine shortly after his birth; B.B. has had no contact with S.W.E.S. since his birth; and she failed to comply with the voluntary case plan.
Although W.S. denied the petition, he did not offer an affidavit or any other evidence regarding a reasonable defense on the merits. The necessity for an affidavit or evidentiary support may be waived, however, when there is a valid defense in the answer or elsewhere in the record. Valley View, 399 N.W.2d at 184; see Imperial Premium Finance, Inc. v. GK Cab Co., 603 N.W.2d 853, 857 (Minn. App. 2000) (stating that insurer’s denial that it made representation that insured claimed induced it to enter into insurance contract was sufficient to show reasonable defense on the merits). W.S. has no prior history of child-protection matters, and there were no allegations that he abused drugs. But it is undisputed that W.S. failed to cooperate with the voluntary case plan, to accept the services offered to assist him in parenting S.W.E.S., or to obtain a chemical assessment and urinalysis as required by the voluntary case plan. And after an initial visit with S.W.E.S., W.S. failed to have any contact with S.W.E.S. or to provide any support, financial or otherwise, to meet the child’s basic needs. In light of the unrebutted evidence establishing that W.S. has abandoned his son as defined in Minn. Stat. § 260C.301, subd. 1(b)(1) (2004), W.S.’s general denial of the petition is insufficient to establish a reasonable defense on the merits.
Appellants also failed to
demonstrate a reasonable excuse for their failure to appear at the September 1
hearing. Appellants’ counsel maintains that
they were in the courthouse on time but missed the hearing through no fault of
their own; and the county’s attorney concedes that appellants “might have been”
in the building during the default hearing.
But the arguments of counsel are not evidence. State
v. McCoy, 682 N.W.2d 153, 158 (
Although appellants may have satisfied their burden on two of four factors, due diligence and lack of prejudice, they made no showing regarding a defense on the merits and only an unsubstantiated argument regarding excusable neglect. Accordingly, the district court did not abuse its discretion in denying the motion to vacate.
argue that the district court should have granted their motion despite their
failure to satisfy the four-factor test for excusable neglect because the district
court may also grant relief from a default judgment for “any other reason
justifying relief from the operation of the order.”
Appellants also argue that the default TPR proceedings deprived them of due process of law. Before the district court, W.S.’s counsel argued that a denial of the motion to vacate the default order constituted a violation of due process because the failure to appear was not appellants’ fault and termination of their parental rights was an overly harsh penalty.
Appellants’ argument regarding the unconstitutionality of default termination proceedings at the pretrial phase is unsupported by any controlling legal authority. Indeed, Minnesota Supreme Court cases consistently reject this argument. See In re Welfare of L.W., 644 N.W.2d 796, 796-97 (Minn. 2002) (holding that because notice to parent warned that failure to appear could result in termination of parental rights and evidence supported termination, default proceeding did not violate due process); Coats 633 N.W.2d at 512 (determining that default TPR proceeding was proper); see also Minn. R. Juv. Prot. P. 18.01 (stating that court may receive evidence if party served with notice fails to appear); Minn. R. Juv. Prot. P. 18.02 (stating that district court may enter default order upon sufficient proof). Appellants’ due-process argument, therefore, fails.
On appeal, appellants raise several new due-process issues. Appellants argue that the district court forced counsel to defend the termination of parental rights on the merits at the pretrial stage when the attorneys were unprepared for trial, that the district court unnecessarily expedited the process when it was at a preliminary stage, that the district court conducted the default proceedings regarding B.B. in her counsel’s absence and after allowing W.S.’s counsel to withdraw, and that the default as to B.B. on July 19 violated Minn. R. Juv. Prot. P. 35.02, subd. 1, which permits counsel to enter a denial at an admit/deny hearing on behalf of the client. But counsel did not object to the September 1 default. And because none of these due-process arguments was made before the district court at either the September 1 hearing or the hearing on the motion to vacate the default order, we decline to consider them on appeal. See Thiele, 425 N.W.2d at 582 (stating that appellate courts generally will not consider new issues or theories on appeal).
next asserts that termination of his parental rights is unsupported by the
evidence and, therefore, is in violation of due process. Parental rights may be terminated only for “grave and weighty
reasons.” In re Welfare of M.D.O., 462 N.W.2d 370, 375 (
The district court concluded that clear and convincing evidence established the following grounds for termination of parental rights: appellants abandoned S.W.E.S., Minn. Stat. § 260C.301, subd. 1(b)(1); they failed to comply with the duties imposed by the parent and child relationship, id., subd. 1(b)(2); reasonable efforts failed to correct the conditions than led to out-of-home placement, id., subd. 1(b)(5); and termination of parental rights is in the best interests of S.W.E.S. In support of its determination, the district court found that appellants failed to cooperate with the case plan, failed to have contact with S.W.E.S., failed to participate in services offered to assist them in parenting him, and failed to make contact with the social worker. The district court also found that S.W.E.S.’s out-of-home placement is appropriate and in his best interests, and return of the child to his parents is not possible in the foreseeable future.
does not dispute that she is presumed to be palpably unfit because her parental rights to another child
were involuntarily terminated.
Thus, we focus on W.S.’s argument that the district court lacked clear and convincing evidence to terminate his parental rights. The record belies this argument. Indeed, there was ample testimony at the default hearing to support the termination of W.S.’s parental rights on the ground of abandonment. The record establishes that W.S. had no contact with S.W.E.S. but for one visit during the first week after S.W.E.S. was born. W.S. failed to cooperate with the case plan or accept services offered to assist him in parenting his child. Furthermore, there is no evidence to suggest that W.S.’s abandonment of S.W.E.S. was because of misfortune or was anything other than intentional. On these facts, there is substantial evidence supporting the district court’s decision to terminate W.S.’s parental rights based on his abandonment of S.W.E.S. and its conclusion that such termination is in the best interests of the child. Thus, this challenge to the sufficiency of the evidence is without merit.
also argue that the district court’s findings are not the product of an independent
determination of the facts, but rather are a verbatim adoption of the county’s
proposed findings. On allegations that
the district court has adopted proposed findings verbatim, we conduct a careful
review of the record, and if we conclude that the district court’s findings are
not clearly erroneous, then the verbatim adoption of proposed findings alone is
insufficient grounds for reversal. Dukes v. State, 621 N.W.2d 246, 258-59 (
Here, inaccuracies in the district court’s findings, including incorrect numbering that was replicated from the proposed findings, make evident the district court’s heavy reliance on the county’s proposed findings. This issue was not argued before the district court, however, and, therefore, is not properly before us. Thiele, 425 N.W.2d at 582; see Bliss v. Bliss, 493 N.W.2d 583, 589-90 (Minn. App. 1992) (encouraging parties to address inconsistent and incomplete findings first by moving for amended findings and allowing district court the opportunity to remedy the problem), review denied (Minn. Feb. 12, 1993); see also Minn. R. Juv. Prot. P. 45.05(c) (providing that upon motion district court may amend findings). Notwithstanding the adoption of the county’s proposed findings, we conclude from our review of the record that the dispositive findings are not clearly erroneous. Although the adoption of proposed findings at issue here is not a basis for reversal, we reiterate our caution against the “wholesale adoption of one party’s findings and conclusions.” Bliss, 493 N.W.2d at 590.
In sum, our review of the record establishes that the district court’s dispositive findings are supported by substantial evidence. The district court did not abuse its discretion in denying the motion to vacate the default order because appellants failed to establish a reasonable defense on the merits and a reasonable excuse for their failure to appear. Moreover, on the record before us, termination of appellants’ parental rights is supported by the facts and law and is in the best interests of the child.
 Although appellants do not raise the issue, we note our concern about the adequacy of the notices in this case. Appellants were notified to report to Room 231 for most of the hearings. The summons for the September 1 hearing, however, did not direct them to Room 231. Rather, it indicated that the hearing would be held before “Judge Lefler.” None of the notices identifies the courtroom where the hearing will be held, despite the fact that all of the hearings were scheduled before the same judge and were held in the same courtroom.
 Appellants correctly argue that the district court failed to make findings addressing each of the four factors. But the district court’s finding that there is no evidence to establish the veracity of appellants’ claim regarding their failure to appear clearly indicates that the district court determined that the excusable-neglect assertion had not been met. Appellants’ failure to establish a defense on the merits and a reasonable excuse for failing to appear precluded vacation of the default order.
 Inaccuracies include, for example, the district court’s findings that (1) it found B.B. to be in default on July 19 when in fact the district court decided to “hold the findings” regarding default and wait until the next hearing so the parents did not have a “different legal status”; (2) B.B. was not married when the child was conceived, which is contrary to the record; and (3) there “are no relatives available at this time to accept a transfer of legal custody,” which is contrary to another finding in the same decision—that S.W.E.S. “is in a relative placement.”
Having carefully reviewed this record, we would be remiss if we did not address the troubling aspect of counsels’ representation of appellants before the district court. Rule 35.02, subdivision 1, Minn. R. Juv. Prot. P., permits counsel to enter a denial at an admit/deny hearing on behalf of the client. Yet neither attorney raised this issue before the district court, attempted to enter a denial on appellants’ behalf at the September 1 hearing, which was a first appearance on the amended petition, or objected to the September 1 default proceedings. Instead, for reasons that are not addressed in the record, W.S.’s counsel withdrew and left the courtroom before the default proceedings. And B.B.’s counsel, who did not withdraw, was not present during any portion of the default proceedings because she left the courtroom to represent another client. In addition, neither counsel offered any evidence in support of the motion to vacate the default order. Thus, it is appropriate to observe a fundamental principle of appellate review that cannot be ignored in trial practice: without a party’s utilization of procedural safeguards codified in the rules governing a proceeding and without evidence in the record to support an appellant’s argument, claims of error cannot be meritorious on appeal.