953 N.W.2d 735
Minn. Ct. App.
2021

In the Matter of the Welfare of the Child of: H. G. D. and J. R. Q., Parents.

A20-1182

STATE OF MINNESOTA IN COURT OF APPEALS

Filed January 19, 2021

Worke, Judge

Rice County District Court File No. 66-JV-20-1398

Mallory K. Stoll, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota; and

Brooke Beskau Warg, Mitchell Hamline School of Law, St. Paul, Minnesota (for appellant H.G.D.)

Christopher R. Braden, J. Scott Braden Law Office, Faribault, Minnesota (for J.R.Q.)

John Fossum, Rice County Attorney, Terence Swihart, Chief Assistant County Attorney, Faribault, Minnesota (for respondent county)

Stacy Heusinkveld, New Richland, Minnesota (guardian ad litem)

Considered and decided by Worke, Presiding Judge; Smith, Tracy M., Judge; and Gaïtas, Judge.

SYLLABUS

The plain language of Minnesota Rule of Juvenile Protection Procedure 18 allows a county to present evidence when a parent fails to appear at a hearing upon proper notice and, in a CHIPS proceeding under rule 49.03, requires the county to present clear and convincing evidence that the child is in need of protection or services.

OPINION

WORKE, Judge

Appellant-mother challenges the district court‘s order adjudicating her minor child in need of protection or services and placing the child in the temporary custody of the county after mother failed to appear at the pretrial hearing and the district court proceeded by default. Because the county failed to present clear and convincing evidence that the child was in need of protection or services, we reverse.

FACTS

Appellant H.G.D. (mother) is the mother of I.D.-Q. (the child), who is five years old. This is an appeal from the district court‘s order adjudicating the child in need of protection or services (CHIPS).1 The following is a summary of the proceedings.

Rice County Social Services (the county) filed a CHIPS petition in June 2020. The petition alleged that the county had received a report that mother was neglecting the child after she left the child with the child‘s maternal aunt for three weeks without checking on the child. The child was supposed to stay with the aunt for just one week. According to the petition, mother had a history of alcohol and drug abuse, as well as mental illness. The petition made several additional allegations: that mother was arrested in January 2020 after assaulting father in the child‘s presence, that mother had had transient housing since her release from jail a few months later, that mother showed up intoxicated at her mother‘s house in May 2020 and threatened to kill her, and that in June 2020 she was staying at a house where a man with domestic-assault charges lived. Based on these allegations, the petition sought protection or services for the child on three statutory bases. The district court granted the county‘s ex parte motion for immediate custody.

On July 6, 2020, the district court held the emergency-protective-care hearing, which was combined with the admit-deny hearing. Mother entered a denial of the statutory grounds alleged in the petition. The district court ordered that the child be returned to mother‘s custody if two conditions were met: mother tested negative for chemicals, and the county and the guardian ad litem inspected mother‘s home and approved it for the child. Mother complied with the conditions, and the child was returned to mother‘s care on July 9, 2020. The district court set the matter for a pretrial hearing and sent mother notice of the pretrial-hearing date.

The pretrial hearing was held on August 14, 2020. Mother did not appear in person at the hearing, although her attorney was present. The county requested to proceed by default pursuant to Minnesota Rule of Juvenile Protection Procedure 18, based on mother‘s nonappearance. Over the objection of mother‘s attorney, the district court granted the county‘s request to proceed by default and allowed the county to present evidence.

The county called two witnesses. The first witness was a child-protection investigator who had conducted a family assessment and investigation of mother and the child. The investigator confirmed that he signed the CHIPS petition in June 2020 and that everything stated in the petition was true. The county did not ask the investigator about any specific allegations in the petition, nor did it enter the petition into evidence. The investigator testified that, based on all the allegations in the petition, he believed that the child was in need of protection or services.

The county‘s second witness was the case manager who started working with mother after the CHIPS petition was filed. She testified that the child was returned to mother‘s care on July 9, 2020, after mother tested negative for chemicals and she and the guardian had gone to mother‘s home and determined it was safe for the child. But the case manager believed that mother‘s situation had worsened since then.

The case manager testified about a specific incident that had occurred two days earlier involving father. Mother had called the case manager and told her that she had called the police because father had assaulted her. This incident occurred in spite of a domestic-abuse no-contact order (DANCO) against mother prohibiting her from contacting father. The child was at the residence at the time, but was “hidden in a living room playing with the landlord‘s daughter.”

The case manager also testified that mother was “always going other places” and was “never at home.” Mother gave her inconsistent information about whether she was planning to move residences. When mother had called her two days earlier, mother said that she had moved most of her belongings to a new residence. The case manager asked where mother was staying, but mother said that she had needed to talk to the landlord first. When the case manager said that she needed to see the child at the place they were staying, mother responded that she had appointments and would call her back, but never did. But when the case manager texted mother the following morning and asked to see her, mother said that she was not moving to a different residence.

The case manager expressed additional concerns about her communications with mother. She testified that she had tried to reach out to mother but that mother had texted her saying that text messages were better because she was unable to make phone calls. The case manager testified that she occasionally received text messages from mother at night that were “out of the blue,” “in response to nothing,” and “[didn‘t] make any sense.” The text messages caused her to be concerned that mother had mental-health problems or possibly had been drinking. The case manager also testified that she had had difficulty communicating with mother about getting urinalysis tests. She said that mother had provided two urinalysis samples but had not provided other samples when asked. Whenever she asked to meet with mother, there was “always a reason” that she could not meet. After the case manager testified, the county did not submit any more evidence and rested its case.

The district court found that the child was in need of protection or services, based on the three statutory grounds that the county alleged. The district court determined that the county had met its burden by clear and convincing evidence, and it adjudicated the child in need of protection or services. It also ordered that the child be placed in the temporary legal and physical custody of the county.

Mother appeals from the district court‘s order.

ISSUES

I. Could the district court consider the allegations in the CHIPS petition, by virtue of mother‘s nonappearance at the pretrial hearing and default, in determining whether the county met its burden of proof that the child was in need of protection or services?

II. Was the evidence sufficient for the district court to find by clear and convincing evidence that the child was in need of protection or services, based on the three statutory grounds alleged in the petition?

III. Did the district court err by ordering the child to be placed in the temporary physical and legal custody of the county?

ANALYSIS

Mother challenges two aspects of the district court‘s order: first, the adjudication of the child in need of protection or services, and second, the placement of the child in the temporary custody of the county. The parties also dispute a preliminary question—whether the district court could consider the CHIPS petition in determining whether the county met its burden to prove that the child was in need of protection or services. We address this question first.

Consideration of CHIPS petition

The parties disagree as to whether the allegations in the CHIPS petition could be used to prove the county‘s case that the child is in need of protection or services. The petition was never admitted into evidence, nor did the county‘s witnesses testify about any of the allegations. The county argues that, because the district court proceeded by default, mother effectively admitted to the allegations in the petition and the district court therefore could rely on those allegations in reaching its determinations. Mother argues that the district court could not rely on the petition because the juvenile-protection rules do not provide that the allegations in the petition are admitted as the result of a default, and because the county did not present evidence supporting the allegations in the petition at the hearing.

The procedures for default are governed by Minnesota Rule of Juvenile Protection Procedure 18. The interpretation of these rules is a legal question, which we review de novo. In re Welfare of Child of R.K., 901 N.W.2d 156, 159 (Minn. 2017). Based on a plain-language reading of the rules, we agree with mother that the district court could not consider the allegations in the petition.

If a parent fails to appear at a pretrial hearing2 after being properly served with notice, the district court “may receive evidence in support of the petition.” Minn. R. Juv. Prot. P. 18.01. “If the petition is proved by the applicable standard of proof, the court may enter an order granting the relief sought in the petition as to that parent . . . .” Minn. R. Juv. Prot. P. 18.02. The applicable standard of proof in a CHIPS proceeding is clear and convincing evidence. Minn. R. Juv. Prot. P. 49.03. Thus, the plain language of rule 18 allows the county to present evidence at a default proceeding and, in a CHIPS proceeding, requires the county to present clear and convincing evidence to prove that the child is in need of protection or services.

The county, however, likens the default to a default judgment in a typical civil proceeding. It cites State by Humphrey v. Ri-Mel, Inc. for the proposition that “[t]he entry of a default judgment is equivalent to an admission by the defaulting party to properly pleaded claims and allegations.” 417 N.W.2d 102, 110 (Minn. App. 1987), review denied (Minn. Feb. 17, 1988). The county also cites Thorp Loan & Thrift Co. v. Morse to argue that a defaulting party “may not deny facts alleged in the complaint when such facts were not put into issue below.” 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). The county‘s reliance on these cases is misplaced. These were civil cases that involved the entry of a default judgment under the Minnesota Rules of Civil Procedure. Under those rules, if the plaintiff‘s submissions adequately prove the plaintiff‘s case, and a default judgment is entered against a party, the plaintiff is entitled to the relief sought in the complaint. Minn. R. Civ. P. 55.01. But the rules of civil procedure do not apply to juvenile-protection matters, unless the juvenile-protection rules provide otherwise. Minn. R. Juv. Prot. P. 3.01.

The juvenile-protection rules do not provide for default judgments and, in the event of a party‘s default, do not allow for relief based solely on the pleadings. Rather, rule 18 makes clear that the effect of a party‘s default is to allow the proceeding to continue without the party and to enable the county to present evidence in support of the allegations in the petition. Minn. R. Juv. Prot. P. 18.01. The district court may grant the requested relief only if the county proves the petition “by the applicable standard of proof,” in this case, clear and convincing evidence. Minn. R. Juv. Prot. P. 18.02, 49.03. The default of a parent in a juvenile-protection proceeding does not relieve the county of its burden to present evidence proving the allegations in the petition.

Here, the CHIPS petition was never offered into evidence. The child-protection investigator testified that he signed the petition and, generally, that everything stated therein was true. But he offered no testimony about any of the specific allegations in the petition. Moreover, the district court in a juvenile-protection matter may admit only “evidence that would be admissible in a civil trial pursuant to the Minnesota Rules of Evidence.” Minn. R. Juv. Prot. P. 3.02, subd. 1; see also Minn. Stat. § 260C.163, subd. 1(a) (2018). At no point in the proceedings did the county ever present evidence to prove the allegations in the petition.3 The district court therefore could not consider the allegations in the petition as true when making the underlying CHIPS and custody determinations.

Statutory grounds for CHIPS adjudication

Having determined that the district court could not rely on the allegations in the CHIPS petition, we now consider whether the evidence that the county presented was sufficient for the district court to find that the child was in need of protection or services. We conclude that the county failed to meet its burden.

For the district court to adjudicate a child in need of protection or services, the county must prove the existence of one of the statutory child-protection grounds under Minn. Stat. § 260C.007, subd. 6 (2018), and that the child needs protection or services as a result. In re Welfare of Child of S.S.W., 767 N.W.2d 723, 728 (Minn. App. 2009). The statutory grounds in the CHIPS petition must be proved by clear and convincing evidence. Minn. Stat. § 260C.163, subd. 1(a); Minn. R. Juv. Prot. P. 49.03. The clear-and-convincing standard is higher than a preponderance of the evidence and less than beyond a reasonable doubt. Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). We review a district court‘s factual findings for clear error. In re Welfare of B.A.B., 572 N.W.2d 776, 778 (Minn. App. 1998). We inquire closely into the sufficiency of the evidence to determine whether the evidence was clear and convincing. S.S.W., 767 N.W.2d at 733.

The district court found that the child was in need of protection or services based on three statutory grounds under Minn. Stat. § 260C.007, subd. 6. In determining whether the county proved the statutory grounds by clear and convincing evidence, as explained above, we may not consider the unproven allegations in the CHIPS petition and instead look only to the evidence presented at the pretrial hearing. We consider each statutory ground in turn.

Subdivision 6(3)—lack of food, clothing, shelter, education, or other care

The district court found the child in need of protection or services based on Minn. Stat. § 260C.007, subd. 6(3), that the child “is without necessary food, clothing, shelter, education, or other required care for the child‘s physical or mental health or morals because the child‘s parent, guardian, or custodian is unable or unwilling to provide that care.”

The county presented no evidence that the child lacked food, clothing, education, or other care. The case manager‘s testimony did address mother‘s housing. She said that she and the guardian had visited mother‘s home in July 2020, before the child was returned to mother‘s care, and determined that the home was safe and appropriate for the child. She also testified that mother often was not staying at her home. According to the case manager, mother was inconsistent as to whether she would be moving to a new residence. She told the case manager one day that she had moved most of her belongings to a new residence, before telling her the next day that she was not moving. When the case manager said that she needed to see mother‘s supposed new residence, mother said that she would call her back, but she never did.

The case manager‘s testimony does not show that the child lacked shelter or that mother was unable or unwilling to provide shelter. The case manager herself visited mother‘s home and determined it was safe. The county did not provide evidence detailing the condition of the new residence where mother supposedly would be moving. And although the case manager indicated that mother gave her inconsistent information about whether she was moving to a new residence, the testimony did not suggest that mother lacked adequate housing altogether. The county‘s evidence did not clearly and convincingly show that the child was without food, clothing, shelter, education, or other necessary care.

Subdivision 6(8)—parent‘s disability or state of immaturity

The district court also found the child in need of protection or services based on Minn. Stat. § 260C.007, subd. 6(8), that the child “is without proper parental care because of the emotional, mental, or physical disability, or state of immaturity of the child‘s parent, guardian, or other custodian.”

The county did not present evidence at the hearing showing that mother had an emotional, mental, or physical disability. The only evidence presented that tends to support this ground is the case manager‘s testimony that mother occasionally sent her nonsensical text messages at night. She said that mother‘s texts were “out of the blue” and had “no context.” She testified that mother‘s texts made her concerned that mother was mentally unstable or had been drinking.

This meager evidence does not show that mother suffered from an emotional, mental, or physical disability, or a state of immaturity. The case manager was not a mental-health expert, and she based her belief solely on a small number of mother‘s text messages, which were not entered into evidence and which she did not discuss in detail. Her belief that mother may have mental-health problems falls far short under the clear-and-convincing standard. Moreover, the testimony does not show that the child lacked proper parental care as a result of any alleged disability by mother. The evidence is not sufficient to show by clear and convincing evidence that the child is without proper parental care because of mother‘s emotional, mental, or physical disability, or state of immaturity.

Subdivision 6(9)—injurious or dangerous behavior, condition, or environment

Finally, the district court found the child in need of protection or services based on Minn. Stat. § 260C.007, subd. 6(9), that the child‘s “behavior, condition, or environment is such as to be injurious or dangerous to the child or others.” A dangerous environment includes the child‘s exposure to criminal activity in the child‘s home. Minn. Stat. § 260C.007, subd. 6(9).

The county presented some evidence tending to show that the child may have been exposed to criminal activity. The case manager testified that mother had called her a few days before the pretrial hearing and told her that father had assaulted her. Mother was in contact with father even though father had a DANCO against her. The child was with mother at the time of the incident, but she was, allegedly, in a different room, playing. The fact that the child was at the residence when a domestic-violence incident occurred shows that, at least at that point, the child may have been in a potentially dangerous environment.

As with the other statutory grounds alleged, however, we do not believe this limited evidence is sufficient to satisfy the clear-and-convincing standard. The domestic violence appears to have been a one-time incident, and mother was allegedly the victim. The case manager‘s testimony provided the only details about the incident, and her testimony indicated that the child did not witness the incident and was not placed in immediate danger because she was in a different room at the time. Moreover, the fact that mother called the police suggests that she took measures to protect herself and the child from domestic abuse. Given the lack of evidence presented about the domestic-abuse incident or the child‘s environment more broadly, we cannot say that the county clearly and convincingly proved that the child is in a dangerous or injurious environment.

For these reasons, we conclude that the county failed to present clear and convincing evidence to prove any of the three statutory grounds alleged in the petition. We reverse the district court‘s adjudication that the child is in need of protection or services.

Custody placement

Mother also challenges the district court‘s removal of the child from mother‘s custody and placement in the temporary legal and physical custody of the county. The district court‘s custody order was predicated on its finding that the child was in need of protection or services. See Minn. Stat. §§ 260C.201, subd. 1(a)(2)(ii) (providing that, if the district court finds a child to be in need of protection or services, it can enter an order making one of several dispositions, including transferring legal custody of the child to the county social services agency), .193, subd. 1 (“Whenever the court finds that . . . the facts alleged in the petition have not been proved, it shall dismiss the petition.” (emphasis added)) (2018). Because we reverse the district court‘s CHIPS adjudication, we also reverse the district court‘s placement of the child in the custody of the county. The child shall be returned to mother‘s care, custody, and control, unless the county seeks emergency protective care pursuant to statute.

In reversing, we are mindful of juvenile-protection proceedings’ consideration of the “health, safety, and best interests of the child.” Minn. Stat. § 260C.001, subd. 2(a) (2018). Our holding today merely clarifies that, even in a juvenile-protection matter proceeding after the failure of a parent to appear for a scheduled hearing, the county must still present evidence to prove the statutory grounds alleged in the CHIPS petition. We add that nothing in this opinion precludes the county from filing a new CHIPS petition.

DECISION

Minnesota Rule of Juvenile Protection Procedure 18, governing default, allows a county to present evidence upon a parent‘s failure to appear at a hearing and requires the county to meet the necessary standard of proof, which, in a CHIPS proceeding, requires clear and convincing evidence. Because the county did not present evidence to prove the allegations in the CHIPS petition, and because the evidence the county did present did not clearly and convincingly prove any of the statutory grounds alleged, the evidence was insufficient for the district court to find the child in need of protection or services. The district court therefore did not have a basis to adjudicate the child in need of protection or services, or to place the child in the custody of the county.

Reversed.

Notes

1
J.R.Q. (father) was added as a party to the proceeding at the emergency-protective-care hearing, but he did not file an appeal.
2
The county and the district court proceeded under the assumption that mother‘s failure to appear in person allowed the county to proceed by default under the rule. Mother‘s attorney, however, appeared on mother‘s behalf. We note that rule 18 does not specify how a party must “appear” at a hearing. Because mother does not challenge the default, though, we assume without deciding that mother‘s failure to be personally present at the hearing constituted a default under the rule.
3
At oral argument the county argued that the district court could take judicial notice of the CHIPS petition. But the juvenile-protection rules allow the district court to take judicial notice “only of findings of fact and court orders in the juvenile protection court file.” Minn. R. Juv. Prot. P. 3.02, subd. 3. The rule does not allow the district court to take judicial notice of facts alleged in the petition merely because the petition was filed. The district court‘s findings of fact from earlier hearings in the proceeding merely summarize the allegations in the petition and do not show that the county ever presented evidence to prove the allegations.