In thе Matter of the WELFARE OF the CHILDREN OF Deloris COATS.
No. CX-99-2142.
Supreme Court of Minnesota.
Aug. 23, 2001.
Rehearing Denied Sept. 27, 2001.
633 N.W.2d 505
In this case, the trial court found that American did not know or have reason to know that Hagen did not make appropriate arrangements with Burmeister before he sent out the letters—the action that led up to his UTSA violation. Thus, Burmeister was required to introduce at trial some evidence tending to show that Hagen‘s tortious act was foreseeable as that term is used in vicarious liability law: for example, evidence showing that the risk of employees misappropriating trade secrets is a well-known hazard in the insurance industry. Fahrendorff, 597 N.W.2d at 910-12. As the district court noted in its order granting summary judgment for American, however, Burmeister introduced no such evidence at trial. We will not assume, absent introduction of some evidencе, that UTSA violations are a common hazard in the insurance industry. See P.L., 545 N.W.2d at 668. Burmeister‘s failure to introduce any evidence establishing that it is foreseeable for insurance industry employees to misappropriate trade secrets, and thus its failure to raise a fact question with respect to that issue, is fatal to its respondeat superior claim. Id. Accordingly, we conclude that American is not vicariously liable for Hagen‘s UTSA violation.
Reversed.
Amy Klobuchar, Hennepin County Attorney, Andrew J. Mitchell, Senior Assistant County Attorney, for appellant.
Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, for respondent.
Andrea K. Niemi, John M. Jerabek, Niemi, Barr & Jerabek, P.A., Minneapolis, for guardian ad litem.
LANCASTER, Justice.
In August 1999, appellant Hennepin County Department of Child and Family Services (DCFS) filed a petition seeking termination оf respondent Deloris Coats’ parental rights to her four children. A pretrial hearing was scheduled for October 12, 1999, and trial was set for November 23, 1999. Although Coats had received notice of the pretrial hearing, she failed to appear. After allowing Coats’ attorney to withdraw from representation and after hearing testimony from a child protection worker, the district court terminated Coats’ parental rights by default on the merits. The district court denied Coats’ subsequent motion to reconsider or, in the alternative, vacate the default judgment. On appeal, the court of appeals held that the default judgment was void because it violated Coats’ right to due process. We reverse and reinstate the default judgment of thе district court.
Coats is the single mother of O.R., J.R., Q.R., and Z.J. Cornell Robinson is the father of O.R., J.R., and Q.R. There is no father of record for Z.J. On October 6, 1998, DCFS filed a petition alleging that Coats’ children were in need of protection or services (CHIPS petition) and the children have been in court-ordered out-of-home placement since then. At the time the petition was filed, the children were between four months and seven years of age.
Following a hearing, the district court found, as Coats admitted, that her history of mental health issues and chemical abuse affected “her children and her ability to care for them“; that “several of her children have special needs“; that “[Coats] will benefit from parenting assistance through Reuben Lindh [Family Services] to help her in addressing and meeting the needs of her children“; and that “[i]t is in the best interests of the children to remain in out-of-home placement until there has been substantial compliance with the case plan ordered herein.” Based on these findings, the district court concluded that the children were in need of protection or services and placed them in DCFS‘s custody. The district court ordered a case plan requiring Coats to: (1) submit to substance-abuse testing to demonstrate sobriety; (2) ensure that the children attend all recommended therapy appointments and follow any recommendations requiring her to participate in their therapy; (3) follow all recommendations for a psychological assessment, including undergoing a рsychi
Review hearings were held on February 3, March 8, April 12, June 2, and June 30, 1999. The district court found at the February 3 review hearing that Coats had not followed her case plan in that she had, among other things, failed to submit to substance-abuse testing as required, failed to attend group or individual therapy, and failed to take part in a psychiatric evaluation. At the March 8 review hearing, the district court permitted Coats’ attorney to withdraw pursuant to Coats’ request. Although the district court indicated in its written findings from that review hearing that Coats had not been following her case plan “as completely as she should,” the district court cited only her failure to meet with Reuben Lindh Family Services. The district court found at the April 12 review hearing that Coats “appears to have made progress on her case plan but sobriety is still an issue.” At the June 2 review hearing, the district court found that Coats was not complying with her case plan and that there was possible alcohol or drug use. Finally, the district court found at the June 30 review hearing that Coats continued to fail to comply with her case plan, and specifically noted “dirty” urinalysis results or missed urinalysis tests.
Pursuant to
The petition outlined Coats’ lengthy history with DCFS: In 1991, a case was opened when DCFS received a report that O.R. was born testing positive for cocaine in her system. In 1992, the case was closed after Coats completed a case plan that included chemical dependency treatment. In 1996, it was reported that O.R. had been sexually abused by three of Coats’ acquaintances. This case was also closed when, in April 1997, DCFS determined that Coats had demonstrated the ability to protect her children. Later in September 1997, DCFS opened another case when the Minneapolis Police reported that Coats was not providing fоod for her children, that their personal hygiene was very poor, and that Coats’ apartment was “filthy.” While this case was open, O.R. and J.R. were reported for habitual truancy and a report was filed that Coats left her children with a male friend who beat them with a belt. In December 1997, this case was closed. In June 1998, DCFS opened yet another case after a social worker noted that Coats’ home was filthy and her children‘s personal hygiene and clothing were inadequate. This DCFS case was closed when, in October 1998, the children were placed out of home.
On August 24, 1999, Coats appeared pro se at an arraignment hearing on the petition for termination of parental rights. At that hearing, the district court reappointed Cоats’ former counsel. Another arraignment hearing was held on September 22, 1999, at which both Coats and Robinson appeared and denied the allegations in DCFS‘s termination petition. The district court found that there was probable cause for the termination petition and scheduled a pretrial hearing for October 12, 1999, and also a trial for November 23, 1999. That same day, Coats and Robinson signed
The next hearing in this case is for PreTrial/Trial at 8:30/9:30 o‘clock on Oct. 12/Nov. 23, 1999.
The Parent(s) and Child(ren) (12 years of age or over who are participating) are required to appear at Room 231, Juvenile Justice Center, 626 South 6th Strеet (corner of 6th and Park), Minneapolis, Minnesota, or a JUDGMENT BY DEFAULT MAY BE ENTERED.
On October 12, 1999, the district court convened the pretrial hearing at 9:00 a.m. Although their attorneys were present, neither Coats nor Robinson were present at that time. DCFS moved to proceed by default against Coats and Robinson on the merits of the petition.2 The district court granted DCFS‘s motion over the objection of Coats’ and Robinson‘s attorneys.3 Coats’ attorney then moved to withdraw, stating “in light of the lack of contact I‘ve had with my client, I‘m not in a position to be able to effectively represent her or oppose the default. I‘d ask to withdraw at this point in time.” The district court allowed Coats’ counsel to withdraw.
After taking judicial notice of its CHIPS order, the district court heard tеstimony from Clare Fossum, one of the DCFS social workers assigned to Coats’ case. Fossum testified that Coats had not addressed her substance-abuse problems or followed through with substance-abuse treatment; that after Coats finally underwent a psychological assessment, she refused to fol2low the treatment recommendations from that assessment; that to date Coats had not successfully completed a parenting program; that Coats had not participated in the children‘s therapy and did not have an understanding of their special needs; that Coats had not been willing to discuss the children‘s special needs with her; and that she was not aware of Coats having contacted the children‘s therapists to inquire about their needs or the services they were receiving. Fossum also testified about DCFS‘s efforts to reunite Coats with her children. She testified that there were more visits scheduled between Coats and the children than she had seen in any other case, but that Coats had missed many of them and had canceled a visit that was to have occurred after Coats’ last court appearance on September 22. Fossum further testified that Coats was repeatedly offered all of the services outlined in her case plan, and that every month Fossum had encouraged Coats to attend counseling, if for no other reason than to comply with the requirements of the case plan. In addition, Fossum testified that another child services worker and the guardian ad litеm expressed concerns about Coats’ inability to focus on the children rather than on herself, and Coats’ failure to follow through on basic childcare issues such as providing food or responding to their simplest needs. Finally, Fossum testified that, in her opinion, termination of Coats’ parental rights to the children was in the children‘s best interests.
On appeal to the court of appeals, Coats alleged as error both the district court‘s refusal to grant her Rule 60.02 motion to reconsider or, in the alternative, to vacate the default judgment, and the court‘s order terminating her parental rights. The court of appeals concluded that the district court‘s default judgment “did not comply with due process because the termination proceedings exceeded the usual scope of a pretrial hearing, the notice of possible default through failure to appear was ambiguous, and Coats was neither present nor represented by counsel.” In re Welfare of Children of Delores Coats, No. CX-99-2142, 2000 WL 944513, *5 (Minn.App. July 11, 2000). As a result, the court of appeals held that the lack of due process rendered the default judgment void, a basis for relief from judgment under Rule 60.02, subd. d, and remanded the matter to the district court for an expedited hearing on the mer
We turn first to DCFS‘s argument that the district court did not abuse its discretion in denying Coats’ motion to reconsider or vacate the default judgment pursuant to
In an apparent attempt to assert a defense on the merits of her case, Coats claimed that she “has repeatedly demonstrated interest in the future health and well being of her children by her previous court appearances and her contact with her children.” The district court held that Coats failed to demonstrate a reasonable defense on the merits, noting that “[w]hile Ms. Coats has attended previous court hearings and visited her children, these efforts do not establish a reasonable defense on the merits. Ms. Coats simply has not undertaken the hard work necessary to correct the conditions resulting in the children‘s out-of-home placement ***.”
Coats’ proffered defense on the merits is deficient because it is supported by no more than conclusory statements. Charson, 419 N.W.2d at 491 (“[T]he existence of a meritorious claim must ordinarily be demonstrated by more than conclusory allegations in moving papers.“). Therefore, the district сourt did not abuse its discretion in rejecting it.
Even if we accepted Coats’ proffered excuse, however, the record belies her assertions regarding her demonstrated interest in her children and instead reveals a turbulent and consistently neglectful parental relationship. Coats’ children were initially removed from the home because Coats’ serious mental health and chemical abuse problems resulted in her being unable to meet the basic needs, including the need for food and physical safety, of the children. During the time the children have been out of her care, Coats has had the benefit of a case plan designed to address her challenges. The plan included many visits with her children—Fossum testified that in her years as a social worker, she had never seen more scheduled visits. However, Coats cancelled or missed many of the scheduled visits. In addition, Coats was provided with mental health and chemical dependency services. She repeatedly refused to participate in therapy sessions and continued to abuse drugs, as shown by repeated positive drug tests. All of this leads us to conclude that the district court did not abuse its discretion in rejecting Coats’ claim that she had a reasonable defense on the merits.
Coats also did not present a reasonable excuse for her failure to appear at the hearing. Coats’ assertion that a medication change caused her confusion regarding the date of the prеtrial hearing is unsupported by any evidence or affidavit. Given her history of chemical dependency, history of missing visits with her children, and the lack of any evidence in the record that Coats was taking prescribed medication at the time of the pretrial hearing, the district court did not abuse its discre
As a final matter, we address the court of appeals’ conclusion that the default judgment was void for lack of due process. Coats never argued to the district court or the court of appeals that she was denied due process.6 Generally, an appellate court should consider only those issues that were presented and considered by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). In keeping with this general rule, we have held that “it is proper for an appellate court to decide an issue not raised on appeal only when the reasoning relied upon by the appellate court is neither novel nor questionable. Needless to say, an appellate court should еxercise this authority only sparingly.” State v. Glidden, 455 N.W.2d 744, 746 (Minn.1990).
Even if Coats had raised the argument that the default judgment was void for lack of due process and that issue was properly before us, she would not prevail. It is well settled 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.” State ex rel. Butler v. Swenson, 243 Minn. 24, 28, 66 N.W.2d 1, 4 (1954). Here, there is no dispute that the district court had both personal and subject-matter jurisdiction. It is also clear that the circumstances surrounding the default judgment against Coats did not constitute a sham or pretense such that the default judgment was void. To the contrary, the record reveals that the court took evidence and was focused on the welfare of four children who were freed for adoption after waiting for over a year in the limbo of foster care while their mother repeatedly failed at the program that would have brought them home. Accordingly, we hold that the default judgment is not void for lack of due process.
Coats’ parental rights were not terminated because of a mere technical violation on her part; her rights were terminated because, despite many opportunities and much offered assistance, she refused to correct the conditions that required her children to be placed out of her home. Coats knew when the petition for termination of parental rights was filed in August 1999 that failure to cooperate with the case plan, including visiting her children and getting her drug and alcohol abuse under control, would result in a termination of her parental rights. As it was, Coats failed to show during the entire course of the case plan that she could provide a safe and adequate home for her children.
In summary, we reverse the court of appeals’ decision and reinstate the district court‘s default judgment.
Reversed.
DISSENT
I respectfully dissent. The issue before us is not whether the termination of respondent Deloris Coats’ parental rights was justified on the merits. Rather, the issue is whether the district court was justified in terminating her parental rights based on her failure to “appear” аt a pretrial hearing. Put another way, was the process fair? I conclude that it was not. Moreover, in reinstating the district court‘s decision, this court, like the district court below, has treated Deloris Coats’ parental rights in a wholly cavalier fashion.
As an initial matter, I am at a complete loss to explain how either the district court or this court can justify their conclusion that Deloris Coats failed to appear at the October 12, 1999, pretrial hearing. On the morning of October 12, 1999, the district court convened the pretrial hearing at 9 a.m. Deloris Coats did not attend, but her attorney was present. Because Deloris Coats was not present, DCFS moved to proceed by default on the merits of the petition. The district court granted DCFS‘s motiоn and then proceeded to terminate Deloris Coats’ parental rights.
The notice requiring Deloris Coats to appear at the pretrial hearing stated:
The next hearing in this case is for PreTrial/Trial at 8:30/9:30 o‘clock on Oct. 12/Nov. 23, 1999.
The Parent(s) and Child(ren) (12 years of age or over who are participating) are required to appear at Room 231, Juvenile Justice Center, 626 South 6th Street (corner of 6th and Park), Minneapolis, Minnesota, or a JUDGMENT BY DEFAULT MAY BE ENTERED.
Deloris Coats acknowledges that she received this notice. Applying the common meanings to the words used in the notice, the notice cannot be read to mandate Deloris Coats’ personal presence at the pretrial hearing. Clearly, the notice required Delоris Coats to “appear” at the October 12 pretrial hearing. The court asserts that the notice “plainly says ‘[t]he Parent(s) *** are required to appear.‘” This assertion, however, merely begs the question of what it means to “appear.” The court offers no explanation as to what it is about this language or any other language in the notice that would make a person reading it understand that he or she was required to appear personally and not through counsel. Noticeably absent from the notice is any explicit requirement that parents personally appear. Given this absence, the proper recourse is to determine the meaning of “appear.” This court has indicated that a pаrty may appear either personally or through counsel.1 See Croes v. Handlos, 225 Minn. 247, 249, 30 N.W.2d 471, 472 (1948) (upholding a default judgment ordered against a defendant for failing to appear at a hearing and noting that a defendant must appear and answer either personally or by counsel). We are not alone. At least two courts addressing the specific issue raised in this case have held that a party to a termination of parental rights proceeding may appear either personally or through counsel. See In re M.M., 708 So.2d 990, 992 (Fla.Dist.Ct.App. 1998) (holding that a trial court‘s decision, in a termination of parental rights proceeding, to enter a default judgment against parents for failing to “appear” at 1
In light of Croes and the fact that Deloris Coats appeared at the pretrial hearing through counsel, there was absolutely no basis for the district court to grant DCFS‘s motion to proceed by default. Having no basis to proceed by default, the district court had no basis to enter the default judgment terminating Dеloris Coats’ parental rights. For this reason alone, the court of appeals’ decision should be affirmed. Yet this court now reverses the court of appeals.
The district court‘s entry of the default judgment also violated Deloris Coats’ right to due process because of inadequate notice. This due process violation required the district court to grant Deloris Coats’ motion to vacate the default judgment under
“It is settled that the nature of due process is flexibility. The amount of process due varies with the circumstances of the case.” In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn.1981). Accordingly, “the determination of what process is due involves a balancing of the interests involved in the specific case under consideration.” Id. In this case, the “pivot point from which we start is that the substantial and fundamental rights of parents to the custody and companionship of their children should not be taken from them except for grave and weighty reasons.” Id. At the same time, it is also true that “[c]hildren are not property, *** but unique and vulnerable small persons entrusted to the care and protection of parents,” id., and that “the law secures parents’ right to custody ‘only so long as they shall promptly recognize and discharge their corresponding obligations,‘” In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn.1985) (quoting H.G.B., 306 N.W.2d at 825).
Nor do any of the surrounding circumstances suggest that the “extreme sanction” of a default judgment was warranted in this case. Hennepin County ex rel. Bartlow v. Brinkman, 378 N.W.2d 790, 793 (Minn.1985). Deloris Coats had no history of failing to make required court appearances. Nor does the record demonstrate 4 misconduct on her part during the termination of parental rights proceedings, or suggest that she was unable or unwilling to participate in the proceedings. Rather, the record shows that she had a number of court appearances in both the child protеction and termination of parental rights proceedings and attended all of them except the October 12 pretrial hearing. Although she may have failed to attend a number of appointments required under her case plan, those failures go to the merits of the termination petition and not to her compliance with the procedural requirements of the termination proceedings. Further, nothing in the record suggests that DCFS would have suffered any prejudice if the district court had vacated the default judgment against Deloris Coats. The motion to vacate the default judgment was made well before the scheduled November 23 trial date, so DCFS would not have been prejudiced by proceeding to trial at that time. In any event, DCFS nеeded to appear for the November 23 trial because it still had to proceed on its petition to terminate the parental rights of Cornell Robinson, the biological father of three of Deloris Coats’ four children. Given these circumstances, the balance of interests implicated was clearly in Deloris Coats’ favor, and more process was due. It is therefore clear that Deloris Coats established “any other reason justifying relief” from the default judgment based on due process.1
Finally, I am compelled to comment on what is alleged to be a сommon practice in Hennepin County District Court—granting default judgments at pretrial hearings in termination of parental rights cases. It appears that in many cases the only reason for holding such pretrial hearings is to see whether the parents will appear in person as opposed to appearing through counsel and, if not, to enter a default judgment against them on the merits of the termination petition. It also appears to be the practice in Hennepin County District Court to allow attorneys appearing on behalf of parents who are not physically present to withdraw during default proceedings, leaving the parents’ rights completely unprotected.
What is more disturbing is the fact that victims of these practices, like Deloris Coats, are likely to be poor people and/or people with chemical dependency or mental health problems. When it comes to due process, these practices treat them as second-class citizens. But their parental rights are no less valuable and should be accorded no less respect than the rights of any other person. I simply cannot imagine that a default judgment on the merits for failure to personally appear at a pretrial hearing attended by their counsel would ever be entered against people who were not poor. This disparity in treatment is irreconcilable with a legal system that purports to dispense equal justice undеr the law. Nor can I imagine that counsel for parents with financial wherewithal would ever seek to withdraw from their representation in such a situation. These practices are “so offensive to a civilized system of justice that they must be condemned.” State v. Williams, 535 N.W.2d 277, 287 (Minn.1995). Yet this court condones them and in the process gives truth to the proverb, “the court is most merciful when the accused is most rich.”
I am appalled and dismayed, but, more than anything, I am disappointed.
STRINGER, Justice (dissenting).
DISSENT
I join in the dissent of Justice Page in part. When Coats’ attorney appeared at the October 12, 1999, pretrial hearing, I agree that Coats was present by her counsel‘s representation and the district court erred in permitting her counsel to withdraw and then finding Coats in default; the court erred in failing to vacate the judgment of default. I would therefore affirm the court of appeals.
GILBERT, Justice (dissenting).
DISSENT
I would affirm for many of the reasons stated in the dissent of Justice Page. I therefore respectfully dissent.
PROGRAMMED LAND, INC., et al., Respondents, v. Patrick O‘CONNOR, in his capacity as Treasurer and Auditor for Hennepin County, et al., petitioners, Appellants, and Harold Christian, individually, and on behalf of all others similarly situated, Respondent, v. Thomas Novak, in his capacity as Treasurer and Auditor for Dakota County, et al., Appellants.
Nos. CX-99-777, C7-99-1210.
Supreme Court of Minnesota.
Sept. 20, 2001.