This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0981
A16-1012
A16-1014
In the Matter of the Welfare of the Children of:
R. P., B. G., C. M. F., and A. M. H., Parents.
Filed January 9, 2017
Affirmed
Smith, Tracy M., Judge
St. Louis County District Court
File Nos. 69HI-JV-15-187, 69HI-JV-15-41
Bill L. Thompson, Law Office of Bill L. Thompson, Duluth, Minnesota (for appellant
father B.G. in A16-0981)
Hannah N. Casey Forti, Chisolm, Minnesota; and Kimberly Corradi, Corradi Law Office,
Hibbing, Minnesota (for appellant mother R.P. in A16-1012)
Jaclyn Corradi Simon, Sellman, Borland & Simon, PLLC, Hibbing, Minnesota (for
appellant intervenor/grandmother C.B. in A16-1014)
Mark S. Rubin, St. Louis County Attorney, Gayle M. Goff, Assistant County Attorney,
Hibbing, Minnesota (for respondent St. Louis County Public Health and Human Services)
C.M.F., Wausau, Wisconsin (pro se respondent father)
A.M.H., Virginia, Minnesota (pro se respondent mother)
Shireen Lee, Virginia, Minnesota (guardian ad litem)
Considered and decided by Smith, Tracy M., Presiding Judge; Johnson, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Appellant-parents R.P. and B.G. appeal from the termination of their parental rights
based on four of the grounds in Minn. Stat. § 260C.301, subd. 1(b) (2016), challenging the
findings as clearly erroneous and unsupported by the evidence. Appellant-grandmother
C.B. appeals from the denial of her petition for transfer of custody, arguing that the district
court abused its discretion in its analysis of the children’s best interests and in not placing
the children together. C.B. also challenges the district court’s denial of her motion for
judgment as a matter of law or a mistrial. R.P. asserts that she received ineffective
assistance of counsel at trial. The record supports the district court’s conclusion that R.P.’s
and B.G.’s parental rights should be terminated, the district court did not err in denying
C.B.’s petition and motions, and R.P. has not established that she received ineffective
assistance of counsel. We therefore affirm.
FACTS
This petition concerns the welfare of five minor children: X.P., J.G., B.G. III, I.G.,
and A.G. Appellant B.G. is the biological father of J.G., B.G. III, I.G., and A.G. Appellant
R.P. is the biological mother of X.P., B.G. III, I.G., and A.G. Appellant C.B. is the paternal
grandmother of J.G., B.G. III, I.G., and A.G., and an important friend of X.P. K.V., who
is not a party in this proceeding, is the paternal great-grandmother of J.G., B.G. III, I.G.,
and A.G. C.M.F. is the biological father of X.P. and has had no role in X.P.’s upbringing.
A.M.H. is the biological mother of J.G. and has had no role in J.G.’s upbringing.
2
R.P. and B.G. have been in a relationship and primarily living together with their
children since approximately 2007. For most of that time, they lived in K.V.’s house, along
with K.V. and C.B. The children mostly have been cared for by R.P., B.G., C.B., and K.V.
together. Since 2007, R.P. and B.G. have each been absent from K.V.’s house on more
than one occasion for inpatient chemical-dependency treatment or incarceration. R.P. and
C.B. also each moved out for temporary periods due to conflicts with family members.
R.P. took her biological children to live with her outside of K.V.’s house and without B.G.
at least once.
St. Louis County Public Health and Human Services (the county) has been involved
with the family since 2007 concerning the children’s absences from school, inadequate
supervision, neglectful living conditions, and allegations that the parents were abusing
drugs and selling prescription medication.
The children were placed in foster care after a first child-protection petition was
filed in May 2011. The petition was dismissed, and the children returned to K.V.’s house
in September 2011. In December 2011, a second child-protection petition was filed on
behalf of the children. The children were adjudicated to be children in need of protection
or services (CHIPS) on June 12, 2012. At that time, B.G. was incarcerated and R.P. was
in inpatient chemical-dependency treatment. C.B. and K.V. were caring for the children.
B.G. stayed in two different chemical-dependency and mental-health treatment facilities
following his release from prison. He returned to K.V.’s house in February 2013. The
second CHIPS file was closed in June 2013.
3
On June 12, 2014, the county received a report that some of the children were
playing in a dumpster in the rain and were without adult supervision. A social worker went
to K.V.’s house to talk with B.G. and R.P. in response to the report. They discussed
concerns regarding the condition of the home, supervision of the children, keeping the
children’s medical appointments, and the parents allegedly driving without licenses.
In July 2014, R.P. and all of the children except J.G. moved out of K.V.’s house and
into R.P.’s sister’s residence. Three or four days later, the social worker visited K.V.’s
house and became “alarmed” about its condition. He found dead mice in the bathroom, cat
feces and the odor of cat urine throughout the house, cupboards full of dirty and moldy
dishes, cigarettes and pills on the floor, and a large knife on the floor next to a mattress.
There was “a crib in the kitchen that was full of dirty dishes and things” and clothes that
“looked like they had mold on them” all over the steps to the basement. The house also
had “sewer issues.” The social worker testified that when he confronted R.P. about the
condition of K.V.’s house, R.P. said she would not move back there because C.B. was
smoking marijuana daily in front of the children and K.V. was selling prescription pills.
In August 2014, the county received a report that R.P. had pointed a gun at two of
the children’s heads. R.P. said it was a BB gun and denied having pointed it at the children.
On the same day, there was a report that B.G. and C.B. were smoking marijuana and that
C.B. and K.V. were selling prescription pills. B.G. and C.B. told the social worker that
they did smoke marijuana but not in front of the children. That month, the county
determined that the family needed ongoing family services and assigned a new social
worker to the case.
4
On September 23, 2014, the county responded to a report that R.P. and the children
had been living in an apartment for a month but had moved out, “leaving the place filthy”
and leaving behind a spoon containing drug residue. The children were allowed to return
to K.V.’s house pursuant to a safety plan that required the parents to refrain from using
drugs and to begin or continue chemical-dependency treatment.
On November 5, 2014, C.B. found R.P. with K.V.’s prescription pills. R.P. admitted
to a social worker that she had taken the pills, and added that C.B. had been smoking
marijuana in front of the children and that C.B. and K.V. were selling prescription drugs.
R.P. also told the social worker that C.B.’s friend was living in K.V.’s house and using
intravenous drugs.
On November 13, 2014, R.P. and B.G. agreed to have their children voluntarily
placed in foster care. The children were placed in two separate homes. The parents were
allowed to visit the children at one of the foster homes, and K.V. was allowed to take the
children to their medical and therapy appointments. In December, the parents agreed to
out-of-home safety plans.
R.P. completed a rule 25 evaluation and entered inpatient chemical-dependency
treatment. She was discharged from treatment after one week for seeking drugs, and, as a
result, she was sentenced to prison for violating probation. She was in prison from January
to May 2015, and then was returned to prison from July to September 2015 for a drug-
related parole violation.
5
The county filed a CHIPS petition in March 2015 and filed a petition for termination
of parental rights in August 2015. In October 2015, C.B. petitioned for transfer of
permanent legal and physical custody of all five children.
Trial was held on 11 days from November 2015 through April 2016. On the ninth
day of trial, after the county rested its case, C.B. moved for judgment as a matter of law on
her petition for transfer of custody. In the alternative, she moved for a mistrial because the
district court failed to conclude the case within 30 days pursuant to Minn. R. Juv. Prot. P.
39.02. The district court denied both motions. On the tenth day of trial, R.P.’s trial counsel
stipulated to the admissibility of R.P.’s parenting-evaluation report.
The district court concluded that the parental rights of B.G. and R.P. to their children
should be terminated under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), and (8), based
on clear and convincing evidence. The district court also concluded that it is not in the best
interests of the children that their legal custody be transferred to C.B. The district court
terminated the parental rights of R.P. and B.G., denied C.B.’s petition for transfer of
custody, and transferred guardianship and legal custody of the children to the Minnesota
Commissioner of Human Rights. The district court terminated the parental rights of C.M.F.
to X.P. and of A.M.H. to J.G. because they had abandoned their respective children and
were in default.1
B.G., R.P., and C.B. appeal.
1
The terminations of C.M.F.’s and A.M.H.’s parental rights are not challenged on appeal.
6
DECISION
I. The record supports the termination of R.P.’s and B.G.’s parental rights under
Minn. Stat. § 260C.301, subd. 1(b)(2).
Our review of a district court’s decision to terminate parental rights is “limited to
determining whether the findings address the statutory criteria, whether those findings are
supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare
of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). We will affirm a termination of parental
rights if “at least one statutory ground for termination is supported by clear and convincing
evidence and termination is in the child’s best interests.” In re Welfare of Children of R.W.,
678 N.W.2d 49, 55 (Minn. 2004). We apply a clear-error standard of review to a district
court’s finding that a petitioner has proved a statutory ground for termination of parental
rights. In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995). But we “closely inquire
into the sufficiency of the evidence to determine whether it was clear and convincing.” In
re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008).
The district court found that the county proved by clear and convincing evidence
that the parental rights of B.G. and R.P. to their children should be terminated under Minn.
Stat. § 260C.301, subd. 1(b)(2). That provision allows termination of parental rights upon
a finding that
[1] the parent has substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed upon
that parent by the parent and child relationship, including but
not limited to providing the child with necessary food,
clothing, shelter, education, and other care and control
necessary for the child’s physical, mental, or emotional health
and development, if the parent is physically and financially
able, and [2] either reasonable efforts by the social services
7
agency have failed to correct the conditions that formed the
basis of the petition or reasonable efforts would be futile and
therefore unreasonable.
Minn. Stat. § 260C.301, subd. 1(b)(2).
A. Parents have neglected to comply with duties.
The district court found that the parents substantially, continuously, or repeatedly
refused or neglected to comply with the duties imposed on them by the parent-and-child
relationship. Clear and convincing evidence supports this finding.
The district court made the following findings showing that the neglect of parental
duties has been substantial, continuous, and repeated: The county has been involved with
R.P., B.G., and their children since 2007 due to concerns about the parents’ illegal drug
use and chemical dependency, adults in the house selling prescription drugs, inadequate
supervision of the children, neglectful living conditions, and the children’s excessive
absences from school; the county has filed CHIPS petitions on behalf of the children three
times, in May 2011, December 2011, and March 2015; and after the second petition was
resolved in 2013, only about one year passed before the county intervened again due to
reports that the children were unsupervised. These findings are supported by clear and
convincing evidence in the record.
Clear and convincing evidence also supports the district court’s finding that the
children did not receive the necessary shelter, care, and control. Several witnesses testified
to unhygienic and unsafe living conditions in the family’s primary residence. Testimony
and exhibits show that the children were not adequately supervised at times and that X.P.
was sometimes left to care for her four siblings, including an infant, when she was ten years
8
old or younger. The record also shows that all of the children have special needs and that
R.P. and B.G. had trouble remembering and bringing the children to their appointments.
Clear and convincing evidence also supports the district court’s finding that R.P. and B.G.’s
struggles with chemical dependency have interfered with their ability to parent.
The district court found that the parenting arrangement has been inconsistent, as
both R.P. and B.G. have been absent from the home on multiple occasions due to
incarceration and chemical-dependency treatment, and R.P. and C.B. have left for
substantial periods due to fighting among household members. The district court also
found that R.P. has taken four of the children to live somewhere else without B.G. at least
once. The district court found that K.V. “has been the most consistent and stable caregiver
for the children” and that B.G. “has always relied on other people to help care for the
children and his involvement in the care of the children’s basic needs has been very limited
by his psychological problems, his physical ailments, chemical dependency issues and
treatments, and incarcerations.” These findings are supported by clear and convincing
evidence.
In their appellate briefs, R.P. and B.G. do not concede that they neglected their
parental duties, but they do not challenge any specific findings by the district court on the
issue. Based on our review of the findings and the record, we conclude that the district
court’s finding that R.P. and B.G. have substantially, continuously, or repeatedly refused
or neglected to comply with the duties imposed upon them by the parent-and-child
relationship is supported by clear and convincing evidence. S.E.P., 744 N.W.2d at 385;
D.D.G., 558 N.W.2d at 484.
9
B. Reasonable efforts by the county have failed to correct conditions.
R.P. and B.G. focus their challenge to this statutory ground for termination on the
district court’s findings regarding the reasonableness of the efforts by the county to correct
conditions that formed the basis of the petition.
1. Closing date of prior CHIPS file
R.P. and B.G. assert that the district court’s conclusions relied on the erroneous
finding that the previous CHIPS file was closed on June 11, 2014, when the file actually
closed in June 2013.2 The district court relied on the 2014 date to conclude that there was
no break in the family’s need for services because, on June 12, 2014, the county received
a report that the children were not properly supervised. We agree with appellants that the
finding that the second file was closed in 2014 is unsupported by the record, and the district
court’s reliance on that date was erroneous. There is, however, sufficient evidence in the
record to support the termination of R.P.’s and B.G.’s parental rights even if we disregard
the district court’s clearly erroneous finding that the second CHIPS petition closed in 2014.
This error is therefore harmless, and we do not reverse for harmless error. In re Welfare of
Children of D.F., 752 N.W.2d 88, 98 (Minn. App. 2008).
2. Timeline of reasonable efforts
R.P. and B.G. also assert that the district court erred by considering all services the
family has received since 2007 in its evaluation of whether the county made reasonable
efforts to correct the conditions that led to the March 2015 CHIPS petition. They argue
2
C.B. makes the same argument in her challenge to the district court’s decision to deny
her petition for transfer of custody.
10
that, because the statute permits termination if “reasonable efforts by the social services
agency have failed to correct the conditions that formed the basis of the petition,” the
“reasonable efforts” to be considered must be limited to those provided after the petition
was filed. Minn. Stat. § 260C.301, subd. 1(b)(2) (emphasis added).
We disagree that the only reasonable efforts that may be considered are those
provided after the petition was filed. The statute requires a showing of reasonable efforts
provided after the appearance of the conditions that form the basis of a CHIPS petition,
and those conditions necessarily predate the petition. In its findings, however, the district
court described the longer history of services provided to this family and did not
specifically identify the services related only to the current CHIPS petition. However,
because the record supports the ultimate conclusion that there were reasonable efforts
within the relevant time frame and that those efforts failed to correct the conditions that led
to the March 2015 CHIPS petition, the district court’s conclusion is not erroneous.
After the prior CHIPS file was closed in June 2013, the event that prompted the
county to get involved with the family again was the June 12, 2014 report that the children
were playing in a dumpster unsupervised. The record shows that the county remained
involved with the family regularly from that incident through the March 2015 filing, and
that the same conditions that the county discovered when following up on the June 2014
report were still of concern by the time the petition was filed. We therefore consider all
services provided after the June 2014 incident to be part of the county’s reasonable efforts
to correct the conditions that ultimately led to the March 2015 CHIPS petition.
11
The record shows that, after the June 2014 incident, the county provided B.G.
supervised visitation with the children, intensive family-based services, family group
decision-making services, a psychological parenting evaluation, and chemical-dependency
treatment. B.G. argues that the chemical-dependency treatment should not be considered
part of the county’s reasonable efforts because it was mandated in a separate legal
proceeding. But B.G.’s chemical dependency was a significant factor necessitating the
CHIPS petition, and his sobriety was consistently identified as an essential condition for
returning the children home. We see no reason why treatment that was directed at
correcting a condition that led to the CHIPS petition but was provided as a result of an
additional proceeding should not be considered as part of the county’s reasonable efforts
to correct conditions leading to the petition. B.G. does not cite to caselaw indicating that
the services he received after June 2014 are legally insufficient, and he does not identify
any services that the county should have provided but failed to provide. We conclude that
the record supports the finding that the county made reasonable efforts to correct the
conditions leading to the petition with respect to B.G.
The record shows that after the June 2014 incident, the county offered R.P. a referral
to a homeless shelter, a psychological parenting evaluation, supervised visitation with the
children, and permission to join intensive family-based services offered to B.G. R.P.
argues that the intensive family-based services and some of the visitation should not be
considered because R.P. was unable to participate while she was incarcerated. But R.P.
brought about her incarceration by failing to comply with probation and parole conditions
forbidding the use of illegal drugs. No law requires a district court to stay a juvenile-
12
protection case due to a parent’s incarceration, and R.P. does not cite to caselaw indicating
that the services she received are legally inadequate. We conclude that the record supports
the finding that the county made reasonable efforts to correct the conditions leading to the
petition with respect to R.P.
The record also supports the district court’s conclusion that the county’s reasonable
efforts failed to correct the conditions leading to the petition. The conditions that led to
the petition included R.P.’s and B.G.’s drug abuse, inadequate supervision of the children,
X.P. being left responsible for much of the care of the other four children, and neglectful
living conditions in the home. By the end of trial, the parents’ drug problems had not been
corrected. R.P. failed to complete a chemical-dependency treatment program because she
was kicked out for seeking drugs and subsequently sent to prison twice for drug-related
violations of probation and parole. She tested positive for methamphetamine and
amphetamine during trial in April 2016. B.G. completed a treatment program, but he still
tested positive for marijuana during trial in December 2015.
Social-worker testimony and the parenting evaluations also support the district
court’s finding that neither parent had made significant improvements in their parenting
abilities by the time trial began. The record supports the district court’s finding that B.G.
has ongoing problems resulting from a traumatic brain injury that impair his ability to
provide adequate supervision and living conditions for the children, and that those ongoing
problems have not significantly improved with services. The record also supports the
district court’s finding that R.P.’s mental illnesses and coping mechanisms prevent her
from complying with parenting duties and have not improved with services.
13
We therefore affirm the termination of R.P.’s and B.G.’s parental rights under Minn.
Stat. § 260C.301, subd. 1(b)(2). Because a termination of parental rights only needs to be
based on one of the statutory grounds, we do not address the other three grounds on which
the district court based its termination decision. See Minn. Stat. § 260C.301, subd. 1(b);
R.W., 678 N.W.2d at 55.
II. The district court did not abuse its discretion in denying C.B.’s transfer-of-
custody petition.
C.B. argues that the district court abused its discretion in denying her petition for
transfer of custody. She asserts that the county had a burden to prove that placement with
C.B. would be detrimental to the children, which it did not meet, and that the district court
did not adequately address the best-interest factors of Minn. Stat. § 260C.212 (2016) with
respect to her petition.
A. The county was not required to prove that placement with C.B. would
be detrimental to the children.
C.B. asserts that district court abused its discretion in denying her petition because
it allowed some of the children to be placed with non-relatives despite the preference for
placing children with a relative. She cites In re Welfare of M.M., in which the Minnesota
Supreme Court held that, upon termination of the parental rights of a child’s only parent,
there was a preference to place the child with a relative, and the party opposing placement
with a relative had a burden to “make an affirmative showing that the first preferred
placement would be detrimental to the child.” 452 N.W.2d 236, 239 (Minn. 1990).
But M.M. was interpreting a 1988 statute that explicitly required courts “in the
absence of good cause to the contrary” to place a child in the custody of a relative unless
14
that would be “detrimental to the child” or a relative is not available. Id.; Minn. Stat.
§ 260.181 (1988). That statute was repealed in 1999 and has been replaced in relevant part
by section 260C.212, subdivision 2. 1999 Minn. Laws ch. 139, art. 4, § 3. The current
statute still prefers placement with relatives and important friends, but it no longer contains
the strong language requiring placement with a relative “in the absence of good cause” or
unless such placement would be “detrimental to the child.” Minn. Stat. § 260C.212, subd.
2(a) (2016). Thus, under the current statute, the county was not obligated to show that
placement with C.B. would be detrimental to the children, and denying C.B.’s petition
without such a showing was not an abuse of discretion.
B. The district court did not abuse its discretion in its analysis of the best
interests of the children with respect to C.B.’s petition for transfer of
custody.
C.B. argues that the district court erred in denying her petition for transfer of custody
because it is in the children’s best interests to be placed with her. The district court may
order permanent legal and physical custody to a fit and willing relative “in the best interests
of the child[ren].” Minn. Stat. § 260C.515, subd. 4 (2016). In deciding whether to transfer
permanent legal and physical custody to a relative under section 260C.515, subdivision 4,
the district court must make “individualized determinations under section 260C.212,
subdivision 2, paragraph (b), of the needs of the child and of how the selected home will
serve the needs of the child.” Minn. Stat. § 260C.193, subd. 3(a) (2016). Section 260C.212
requires the court to ensure that each child’s best interests are met by requiring an
“individualized determination of the needs of the child and of how the selected placement
15
will serve the needs of the child being placed.” Minn. Stat. § 260C.212, subd. 2(a). The
district court must consider the following factors in determining the needs of the child:
(1) the child’s current functioning and behaviors;
(2) the medical needs of the child;
(3) the educational needs of the child;
(4) the developmental needs of the child;
(5) the child’s history and past experience;
(6) the child’s religious and cultural needs;
(7) the child’s connection with a community, school, and
faith community;
(8) the child’s interests and talents;
(9) the child’s relationship to current caretakers, parents,
siblings, and relatives;
(10) the reasonable preference of the child, if the court . . .
deems the child to be of sufficient age to express
preferences;
Id., subd. 2(b).
We review a district court’s decision regarding whether to transfer legal custody for
an abuse of discretion. In re Welfare of Children of A.I., 779 N.W.2d 886, 895 (Minn.
App. 2010), review dismissed (Minn. Apr. 20, 2010). We conclude that the district court
did not abuse its discretion in its analysis of the statutory factors because it made findings
addressing the necessary factors and those findings were supported by substantial evidence
in the record.
The district court’s findings on the section 260C.212, subdivision 2(b) factors are
set out in paragraph 35 of its findings of fact. The district court discussed each of the
factors individually and made detailed factual findings relevant to each one. The district
court cited to evidence in the record to support the findings. For each of the factors for
which the children’s needs or circumstances are distinct, the district court either discussed
16
each of the children and his or her needs individually or referred to such discussion
elsewhere in the findings.
The district court also made detailed findings about C.B.’s physical and mental
health problems and her reliance on personal-care attendants to care for her own basic
needs. The findings on the children’s needs, in conjunction with the findings on C.B.’s
personal limitations, support the district court’s ultimate conclusion that transfer of custody
to C.B. is not in the children’s best interests.
The district court’s findings in this section are supported by substantial evidence in
the record. C.B. does not challenge any of the specific factual findings in this section as
clearly erroneous or unsupported by substantial evidence. Instead, she relies on evidence
that she argues should weigh in her favor. But our review is limited to whether the district
court abused its discretion in denying C.B.’s petition. We conclude that it did not.
III. The district court did not abuse its discretion by not placing all of the children
together.
C.B. argues that the district court abused its discretion in allowing the children to
remain in four different foster homes rather than transferring custody of all five to C.B. so
they would not be separated.
Siblings should be placed together for foster care and adoption
at the earliest possible time unless it is documented that joint
placement would be contrary to the safety or well-being of any
of the siblings or unless it is not possible after reasonable
efforts by the responsible social services agency.
Minn. Stat. § 260C.212, subd. 2(d).
17
The district court concluded that it was not possible to place the children together
“because there were no available homes that could accommodate” all five children. C.B.
argues that this is erroneous because she was willing to care for all the children at her new
residence in Grand Rapids, Minnesota, and the county failed to make reasonable efforts to
explore that option. The county argues that it does not need to consider C.B. any more
than it already has because C.B. was involved in caring for the children when they were in
R.P. and B.G.’s custody at K.V.’s house, and none of the adults in that household, including
C.B., were able to follow a safety plan and put the children’s best interests first.
C.B. correctly asserts that there is no evidence in the record establishing that the
county considered a plan in which the children would be in C.B.’s custody at C.B.’s Grand
Rapids residence. C.B. therefore asks either that she be granted custody or that the county
be required to investigate her suitability as a possible permanent placement for any or all
of the children. But, because the district court properly concluded that it is not in the
children’s best interests to transfer custody to C.B., it would be futile to require the county
to investigate this option. Thus, the district court did not err in concluding that it is not
possible to place all five children together, meaning that separation of the children was
permissible under Minn. Stat. § 260C.212, subd. 2(d).
IV. The district court did not err in denying C.B.’s motions for judgment as a
matter of law or for a mistrial.
After the county rested its case, C.B. moved the district court to grant her petition
for transfer of permanent legal and physical custody because the county had not met its
burden. The district court interpreted this motion as a motion for judgment as a matter of
18
law. But judgment as a matter of law is available in jury trials under Minn. R. Civ. P.
50.01(a). The Minnesota Rules of Civil Procedure are inapplicable to juvenile-protection
matters “[e]xcept as otherwise provided by statute or [Minnesota Rules of Juvenile
Protection Procedure].” Minn. R. Juv. Prot. P. 3.01. The juvenile-protection rules do not
provide for judgment as a matter of law, and no statute makes Minn. R. Civ. P. 50.01(a)
applicable to juvenile-protection proceedings. The district court’s denial of C.B.’s motion
was not erroneous.
C.B. also asserts that the district court erred in denying her motion for a mistrial
because the district court failed to conclude the case within the timeline required by Minn.
R. Juv. Prot. P. 39.02. The interpretation of a juvenile-protection rule is a legal question
that we review de novo. In re Welfare of R.S., 805 N.W.2d 44, 48-49 (Minn. 2011).
In a “trial regarding a termination of parental rights matter or other permanent
placement matter . . . testimony shall be concluded within [30] days from the date of
commencement of the trial and wherever possible should be over consecutive days.” Minn.
R. Juv. Prot. P. 39.02, subd. 1(c).
Here, the trial convened on November 17, 18, 19, and 20, and December 11, 15, 18,
and 28 of 2015, and then resumed after a three-month break for hearings on April 1, 5, and
15 of 2016. Thus, testimony was not concluded within 30 days from the date of
commencement of the trial. See Minn. R. Juv. Prot. P. 39.02, subd. 1(c). The trial was
delayed in part because the judge was seeking treatment for a medical problem.
Rule 39.02 does not identify a remedy for a court’s failure to comply with timing
requirements, and neither party cited to authority identifying a remedy. C.B.’s suggested
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remedy, a mistrial, would have resulted in a new trial. Minn. R. Juv. Prot. P. 39.02, subd. 3.
C.B. has not explained how holding a new trial would have repaired any harm that may
have been caused by delaying the trial beyond the prescribed 30-day period. It seems
instead that her suggested remedy would have detracted from the goal of the timing rule
by delaying the matter even longer. We therefore decline to reverse the district court’s
denial of C.B.’s motion for a mistrial.
V. R.P. has not established that she received ineffective assistance of counsel.
R.P. argues that she received ineffective assistance of counsel because her trial
attorney stipulated to the admissibility of her parenting-evaluation report.
To establish ineffective assistance of counsel, the complainant must show that trial
counsel was not reasonably effective and that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1997) (quotation
omitted).
R.P. asserts that the report “provided evidence that was highly damaging” to her and
that the district court “heavily relied” on it. She argues that the report is hearsay and that
because of the stipulation, she was not able to cross-examine the evaluator who prepared
it. But R.P. has not identified any particular facts that the district court would not have
been able find without the report, and she has not explained why the outcome probably
would have been different without the stipulation. If R.P.’s counsel had not stipulated to
the admissibility of the evaluation, the county likely would have called the evaluator to
testify and the same information would have been brought before the court that way,
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leading to the same result. R.P. has not shown that there is a reasonable probability that
the result of the proceeding would have been different if her trial counsel had not stipulated
to the admissibility of the parenting evaluation. Therefore, she has not established that she
received ineffective assistance of counsel. See id. at 345.
Affirmed.
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