Opinion
A21-1087
12-27-2021
In the Matter of the Welfare of the Child of: T.R.T. and K.M.W., Jr., Parents.
Sibley County District Court File No. 72-JV-21-48
Considered and decided by Segal, Chief Judge; Ross, Judge; and Larkin, Judge.
ORDER OPINION
MICHELLE A. LARKIN JUDGE.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Respondent Sibley County Public Health and Human Services (the county) petitioned to terminate appellant-mother T.R.T.'s parental rights to her minor child. Mother appeared with counsel for an admit/deny hearing and denied the allegations in the petition. The district court scheduled a pretrial hearing for July 19, but the hearing did not occur. The hearing was rescheduled for August 4.
2. Mother did not appear at the pretrial hearing on August 4. The county moved to proceed by default. Mother's counsel was present for the hearing and objected to a default proceeding. The district court granted the county's motion, received evidence, and filed an order terminating mother's parental rights. In doing so, the district court found that mother received proper notice of the August 4 hearing. The child's father, K.M.W., Jr., with whom the child was placed, supports the default termination.
3. Mother challenges the district court's finding that she received proper notice of the August 4 hearing. Generally, whether effective service occurred and whether there was compliance with procedural rules are legal questions, subject to de novo review. Melillo v. Heitland, 880 N.W.2d 862, 864 (Minn. 2016); Roehrdanz v. Brill, 682 N.W.2d 626, 629 (Minn. 2004). But we review a district court's findings underlying a determination of effective service for clear error. Melillo, 880 N.W.2d at 864. A finding is clearly erroneous if we are left with the definite and firm conviction that the district court made a mistake. Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008).
4. On direct appeal from a default judgment, the scope of review is limited and generally includes only whether the record evidence supports the district court's findings and whether those findings support the conclusions of law. Michaels v. First USA Title, LLC, 844 N.W.2d 528, 532 (Minn.App. 2014); Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn.App. 1993), rev. denied (Minn. Oct. 28, 1993). The dispositive issue in this case is whether the district court clearly erred by finding that mother had notice of the August 4 hearing. That issue is properly before us. See Michaels, 844 N.W.2d at 532; Nazar, 505 N.W.2d at 633.
5. The county proceeded by default under Minn. R. Juv. Prot. P. 18.01, which permits a district court to "receive evidence in support of the petition" if a parent fails to appear for a pretrial hearing after "being properly served" with notice pursuant to Minn. R. Juv. Prot. P. 53.04. Rule 53.04(a) provides that in termination of parental rights proceedings, "[f]or each hearing following the admit/deny hearing, the court shall order and the court administrator shall serve upon each party, participant, and attorney a written notice of the date, time, and location of the next hearing." Generally, the written notice "shall be personally served by the close of the current hearing," but if such service cannot be accomplished, service by other means, such as mail, email, or e-filing, is permitted. Minn. R. Juv. Prot. P. 53.04(c), (d).
6. Here, the district court did not explain its finding that mother received "proper notice" of the August 4 pretrial hearing, and our review of the record does not reveal evidence that adequately supports that finding.
7. The county included in its addendum to this court an October 2021 email from court administration indicating that hearing notices were served "on all the parties." But our record is limited to "[t]he documents filed in the [district] court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01. Thus, the October 2021 email is outside of the record. Additionally, the email is ambiguous and does not provide adequate support for the district court's finding that mother had notice of the August 4 hearing. Although the email states that the hearing notice for the July 19 hearing was sent to "all parties," it does not unequivocally state that the hearing notice for the August 4 hearing was sent to all parties. It states that the notice for the August 4 hearing was "sent out."
8. The county notes that mother's attorney appeared at the August 4 hearing and argues that notice to mother's attorney is deemed notice on mother. The county relies on Minn. R. Juv. Prot. P. 16.03, which provides that "[u]nless personal service upon a party or participant is required, service upon the party or participant's counsel shall be deemed service upon the party or participant." Although rule 53.04 does not require personal service in all circumstances, it expressly requires service "upon each party, participant, and attorney" and specifies a preference for personal service, noting that notice of a subsequent hearing "shall be personally served," but permitting alternate forms of service if personal service is not accomplished. Minn. R. Juv. Prot. P. 53.04 (emphasis added); see also Minn. R. Juv. Prot. P. 32.02(a) (stating that a party has a right to notice under rule 53).
In 2015, the supreme court amended rule 32.04 to require personal service of the hearing notice at "the current hearing." Order Promulgating Amendments to the Rules of Juvenile Protection, Adoption, & Guardian ad Litem Procedure, No. ADM10-8041, at 47 (Minn. Apr. 22, 2015). The amendment was made "to encourage the best practice of personally serving the notice of hearing by the close of the current hearing," though the advisory committee recognized that "in some instances the date of the next hearing cannot reasonably be set by the close of the current hearing," and in those instances, alternative means of service are permitted. Id., 2015 advisory comm. cmt. Rule 32.04 was later renumbered as rule 53.04. Order Promulgating Amendments to the Rules of Juvenile Protection Procedure & the Rules of Adoption Procedure, Nos. ADM10-8041, ADM10-8040 (Minn. May 13, 2019).
9. Rule 16.03 is a "General Rule[] for Juvenile Protection Matters," whereas rule 53.04 is a rule specific to permanency or termination of parental rights proceedings. Rule 53.04 is also specific to notice of hearings after the admit/deny hearing. To the extent that a conflict exists between rules 16.03 and 53.04, in this case, we conclude that the specific rule controls. See Koehnen v. Flagship Marine Co., 947 N.W.2d 448, 454 (Minn. 2020) (applying stated principle to statutory provisions).
10. In sum, the record does not support the district court's finding that mother received notice of the pretrial hearing on August 4, at which the default proceeding occurred. Thus, the district court's finding regarding notice is clearly erroneous. We therefore reverse the default judgment and remand for further proceedings. Cf In re Welfare of Child of L.F., 6 44 N.W.2d 796, 796-97 (Minn. 2002) (reinstating denial of motion to vacate default judgment terminating parental rights reasoning, in part, that notice requirements of relevant rule were satisfied).
IT IS HEREBY ORDERED:
1. The district court's judgment is reversed, and the matter is remanded for further proceedings on the underlying petition to terminate mother's parental rights.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.