TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases

Allstate Ins. Co. v. Allen 590 N.W.2d 820 (Minn. App. 1985) 36

Baker v. Baker, 494 N.W.2d 282 (Minn. 1992) 39, 44, 45, 46, 47, 50

Beede v. Nides Finance Corp., 209 Minn. 354, 296 N.W. 413 (1941) 30

Chosa, 290 N.W.2d at 769 26, 39

Electro-Measure, Inc. v. Ewald Enterprises, Inc., 398 N.W.2d 85 (Minn.App. 1987) 34, 35, 36

Galbreath v. Coleman, 596 N.W.2d 689 (Minn. App. 1999) 25, 30

Hughes v. Lund, 603 N.W.2d 674, 677 (Minn.App.1999) 28

In re Klugman, 97 N.W. 425 (Minn. 1959). 50, 52

In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn.1995) 26, 44

In re Welfare of Clausen, 289 26

Lange v. Johnson, 295 Minn. 320 @ 324, 204 N.W.2d 205 (1973) 30

Lundgren v. Green, 592 N.W.2d 888 @ 890 (Minn. App. 1999) 25, 28, 29

Lyon Development Corporation v. Rick's Inc., 296 Minn. 75, 207 N.W.2d 273 (1973) 29

M.D.O., 462 N.W.2d at 375 26, 44

Marriage of Sammons 26, 27

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903 45, 46

Matter of Welfare of J.J.B., 390 N.W.2d 274, (Minn. 1986) 41, 42, 46, 50, 51

Mesenbourg v. Mesenbourg 538 N.W.2d 489 (Minn. App. 1995) 25, 27, 30, 31, 37

Nieszner v. St. Paul School District 625, 643 N.W.2d 645 (Minn. App. 2002) 27

Peterson v. Eishen, 512 N.W.2d 338 @ 340, 341(Minn. 1994) 25, 30

Santosky v. Kramer, 455 U.S. 745 (1982) 39, 44, 45, 46, 47, 52

Stanley v. Illinois, 405 U.S. 651 44

Thiele, 425 N.W.2d at 584 28

Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn.1997) 28

Welfare of Children of Coats 633 N.W.2d 505, (Minn. 2001) 29

Welfare Of P.L.R., 622 N.W.2d 538 (Minn. 2001) @ 543 26, 39, 45

Welfare of S.R.A., 527 N.W.2d 835 (Minn. App. 1995) 44

Welfare of T.D., 631 N.W.2d 806 (Minn. App. 2001) 23, 25, 27, 28, 37, 53

Welfare Of The Child of E.L., 2002 WL 1276985 25

Statutes

M.S.A. 260C.001, Subd. 2 44

M.S.A. 260C.301, subd.7 26, 44

M.S.A. 260C.317 44, 48

M.S.A. 331A.03 35

M.S.A. 645.11 32

M.S.A. § 260C.212, subd. 1(d) 42

M.S.A. § 260C.301, subd. 2 (a) 1 41

M.S.A. § 331A.02 34

M.S.A. § 331A.03, subd. 1 34

M.S.A. 260C.001 47, 51

M.S.A. 260C.151 subd. 1 51

M.S.A. 260C.152 subd. 1. 29

M.S.A. 260C.152 subd. 2 29

Minn. R. Juv. P. 59.05 (1999) 26, 39

Minn. Stat. 260.011, subd. 2 (1984). 50

Minn.R.Civ.App.P. 103.03 8

Minn.R.Civ.App.P. 131.01 8

Minn.R.Civ.P. 4.03(a) 29

Minn.R.Civ.P. 4.05 28

Minn.R.Civ.P. 44.03(c) 28

Minn.R.Civ.P. 60.02 25, 29, 51

Minn.R.Juv.P. 37.02 25, 29, 51

Minn.R.Juv.P. 37.02(b) 44

Minn.R.Juv.P. 37.02 (b) & (d) 51

Minn.R.Juv.P. 44.02, subd. 2 48

Minn.R.Juv.P. 46 32

Minn.R.Juv.P. 46.01 32

Minn.R.Juv.P. 46.02 32

Minn.R.Juv.P. 51 7

Minn.R.Juv.P. 57.02.(a). 20

Juvenile Rule 68 28, 29, 31, 32

Minn.R.Juv.P. 68.02, subd. 1 16

Minn.R.Juv.P. 68.02, subd. 3 18

Minn.R.Juv.P. 68.07 17, 20, 31

Minn.R.Juv.P. 69, (2001) 28, 29

Minn.R.Juv.P. 69.02, Subd.4(c) 16, 19, 27

Minn.R.Juv.P. 69.02, Subd.3(a) (2001) 27

Minn.R.Juv.P. 69.02. subd. 3(a) 16, 18, 31

Minn.R.Juv.P. 69.04 32

Minn.R.Juv.P. 81.02 21, 25, 29, 48

Minn.R.Juv.P. 82 7

Minn.R.Juv.P.68.02 16

Minn.Stat. § 260C.301, subd. 7 (2000) 26

Rule 68.02 Subd. 2 32

Rule 69.02 25

Rule 69.03, subd. 3 (e). 19

Wis.Stat.Ann. § 985.02(1) (West 1985). 34

LEGAL ISSUES

I. Did the County's failure to properly serve the summons and Petition for Termination of parental rights on Appellant deprive the Court of jurisdiction to terminate those rights?

The Trial Court answered in the negative.

Welfare of T.D., 631 N.W.2d 806, (Minn. App. 2001)

Peterson v. Eishen, 512 N.W.2d 338 @ 340, 341(Minn. 1994)

Mesenbourg v. Mesenbourg 538 N.W.2d 489 (Minn. App. 1995)

52 M.S.A., Juvenile Proc., Rule 54

52 M.S.A., Juvenile Proc., Rule 68

52 M.S.A., Juvenile Proc., Rule 69

M.S.A., 260C.151

M.S.A., 260C.152

Fifth and Fourteenth Amendments of the United States Constitution

Article I, Section 7 of the Minnesota Constitution

II. Did the District Court abuse its discretion in finding that where service may

have been insufficient to confer personal jurisdiction over Mrs. Olson, her rights were otherwise safeguarded by representation by appointed counsel and notice of the termination order, after it was entered?

The Trial Court Answered in the negative.

Welfare of T.D., 631 N.W.2d 806, (Minn. App. 2001

Peterson v. Eishen, 512 N.W.2d 338 (Minn. 1994)

Mesenbourg v. Mesenbourg 538 N.W.2d 489 (Minn. App. 1995)

52 M.S.A., Juvenile Proc., Rule 54

52 M.S.A., Juvenile Proc., Rule 68

52 M.S.A., Juvenile Proc., Rule 69

M.S.A., 260C.151

M.S.A., 260C.152

Fifth and Fourteenth Amendments of the United States Constitution

Article I, Section 7 of the Minnesota Constitution

III. Did the District Court abuse its discretion in denying Mrs. Olson's Motion

to Dismiss or finding the TPR judgment void, where it found service of the summons and Petition had been insufficient to confer personal jurisdiction over her in the TPR action?

The Trial Court answered in the negative.

Welfare of T.D., 631 N.W.2d 806, (Minn. App. 2001)

Peterson v. Eishen, 512 N.W.2d 338 @ 340, 341(Minn. 1994)

Mesenbourg v. Mesenbourg 538 N.W.2d 489 (Minn. App. 1995)

52 M.S.A., Juvenile Proc., Rule 54

52 M.S.A., Juvenile Proc., Rule 68

52 M.S.A., Juvenile Proc., Rule 69

M.S.A., 260C.151

M.S.A., 260C.152

Fifth and Fourteenth Amendments of the United States Constitution

Article I, Section 7 of the Minnesota Constitution

IV. Did the District Court abuse its discretion in holding service by publication

was proper, where the County had no record of diligent efforts to locate Mrs. Olson, and the Notice was not in strict compliance with the statute?

The Trial Court answered in the negative.

Welfare of T.D., 631 N.W.2d 806, (Minn. App. 2001)

Peterson v. Eishen, 512 N.W.2d 338 @ 340, 341(Minn. 1994)

Mesenbourg v. Mesenbourg 538 N.W.2d 489 (Minn. App. 1995)

52 M.S.A., Juvenile Proc., Rule 54

52 M.S.A., Juvenile Proc., Rule 68

52 M.S.A., Juvenile Proc., Rule 69

M.S.A., 260C.151

M.S.A., 260C.152

Fifth and Fourteenth Amendments of the United States Constitution

Article I, Section 7 of the Minnesota Constitution

V. Did the District Court abuse its discretion in denying the Motion to Dismiss when no clear and convincing evidence existed that the circumstances leading to termination would exist for a prolonged and indeterminate amount of time?

The Trial Court answered in the negative.

Santosky v. Kramer, 455 U.S. 745 (1982)

Baker v. Baker, 494 N.W.2d 282 (Minn. 1992)

Welfare Of P.L.R. 622 N.W.2d 538 (Minn. 2001)

Mesenbourg v. Mesenbourg 538 N.W.2d 489 (Minn. App. 1995)

M.S.A., 260C.151

M.S.A., 260C.152

VI. Did the District Court abuse its discretion in denying Mrs. Olson's Motion

to Dismiss, when balancing her liberty interests against the County's interests?

The Trial Court answered in the negative.

Santosky v. Kramer, 455 U.S. 745 (1982)

Baker v. Baker, 494 N.W.2d 282 (Minn. 1992)

In Matter of Welfare of J.J.B., 390 N.W.2d 274, (Minn. 1986)

Fifth and Fourteenth Amendments of the United States Constitution

Article I, Section 7 of the Minnesota Constitution

VII. Did the District Court abuse its discretion in denying Mrs. Olson's Motion to Dismiss because the motion was not timely under Minn.R.Juv.P. 81.02?

The Trial Court answered in the negative.

Peterson v. Eishen, 512 N.W.2d 338 @ 340, 341(Minn. 1994)

Mesenbourg v. Mesenbourg 538 N.W.2d 489 (Minn. App. 1995)

Galbreath v. Coleman 596 N.W.2d 689 (Minn. App. 1999).

52 M.S.A., Juvenile Proc., Rule 81.02

Fifth and Fourteenth Amendments of the United States Constitution

Article I, Section 7 of the Minnesota Constitution

STATEMENT OF THE CASE

Mrs. Olson filed her Notice of Motion and Motion to Dismiss the Order and Judgment of May 8, 2001 on May 23, 2002, under Minn.R.Juv.P. 51. The District Court denied her motion. This appeal is taken pursuant to Minn.R.Juv.P. 82 and Minn.R.Civ.App.P. 103.03. Appellant requests the Court of Appeals to reverse the District Court's decision by granting her motion to dismiss the judgment terminating her parental rights, and reversing the District Court's holding that the motion was not timely.

The order denying Mrs. Olson's motion was entered July 2, 2002. Appellant's Notice of Appeal was timely filed August 1, 2002. Court transcripts were ordered for hearings conducted in this matter on February 1, 2001, April 4, 2001, April 25, 2001 and June 6, 2002. Certificate of Filing and Delivery of the transcripts were received as follows: (1) Certificate for the 4-25-01 hearing was mailed to all parties on August 22, 2001; Certificates for the 4-4-01 and 6-6-02 hearings were mailed on August 28, 2002; Certificate for the 2-21-01 hearing was mailed on September 6, 2002, and was received on September 9, 2002. This appeal is timely filed on October 9, 2002 pursuant to Minn.R.Civ.App.P. 131.01.

STATEMENT OF FACTS

M.N., born December 16, 1989, and W.H., born March 8, 1996, are the children of Appellant, Sheila Olson, formerly known as Sheila Cabor. Mrs. Olson managed to extricate herself from the last of three abusive relationships at the end of June, 1999, when she filed an Order for Protection against P.H., father of her youngest son W.H., in Scott County. He had choked her, banged her head against the wall and threatened to kill her in front of the children. [See Affidavit of Sheila Olson (#1), which was attached to her Reply Brief, filed in the Motion to Dismiss matter, argued on May 8, 2002, attached hereto. See App. Apx. 148; and 225-234, Emergency Order for Protection]. P.H. counter-filed an Order for Protection in Le Sueur County, with the help of a Le Sueur County social worker. Many untrue and unfounded allegations were made, apparently out of anger because Sheila was terminating the relationship. A mutual Order for Protection (OFP) was entered and venue for Appellant's OFP was changed to Le Sueur County. App. Apx. 148, 235-247, 248-250. It is believed that it was the same Le Sueur County social worker who had assisted P.H. in filing his Order for Protection that also filed the CHIPS Petition on July 14, 1999. App. Apx. 1-4.

Appellant moved to Carver County August 1, 1999 with her two children. LeSueur District Court was notified of this move two days later. The case was never transferred to Carver County. App. Apx. 148. On October 5, 1999, Appellant was diagnosed as having "post traumatic stress syndrome," a treatable mental health problem. She sought mental health treatment through admission to Fairview Hospital in late October, but was forced to sign herself out of the hospital. P.H., father of W.H., came to the hospital and asked her to leave because he did not have day care for the children, which included her two sons and his son, T.H. She left against medical advice. App. Apx. 149.

When she took the children to P.H. for regular visitation the following weekend he wanted her to have dinner with him and the children (the Order for Protection was still in place). When she refused, he became enraged and called the Le Sueur County social worker and informed her Appellant had been in the hospital for depression. Appellant was notified the following day by Guardian ad Litem Irene Christensen that the children had been taken into protective custody and would not be returned. App. Apx. 149, 154.

On November 10, 1999, at an admit/deny hearing in Le Sueur County, Appellant "denied" maltreatment; however, legal custody of her two sons was transferred to the County. Temporary custody of W.H. was given to P.H., her abusive ex-partner; physical custody of M.N. was given to Sheila's father, Fred Cabor (M.N.'s maternal grandfather). [M.N. had had no contact with his biological father since birth, nor had any child support been paid.] Sheila was allowed supervised visitation only. The Judge stated that Sheila's father could supervise those visits. App. Apx. 149, 155-156. App. Apx. 205-207, App. Apx. 155-156.

Why the child was not actually placed with his grandfather is disputed. County workers claim Mr. Cabor said he was unable to take the child. Mr. Cabor testified that he was willing and prepared to take M.N. but was informed by the Guardian ad Litem that M.N. could not live with him if Sheila was present in the home. Instead, M.N. was placed in a foster home with complete strangers. App. Apx. 149, 205.

Maintaining supervised visitation was difficult. Both children lived in Montgomery, in Le Sueur County; Mrs. Olson was staying with her father, Fred Cabor, in Apple Valley (Dakota County). Travel time from Montgomery to Apple Valley was approximately one and one-half hours. Although Mr. Cabor volunteered to supervise visits and assist with transportation, he was not allowed to do so. App. Apx. 149-150, 206. Overnight visits were not permitted. She was allowed to see her children only two hours per week and was allowed no telephone contact with M.N. When she requested additional visitation, it was not allowed. App. Apx. 150; 157-163.

Appellant was told she should seek employment and get an evaluation for her mental health problems. She did both. After completing both mental and chemical abuse evaluations, she signed releases so her appointed attorney could get the records. App. Apx. 150; 158.

The individual selected to supervise the visits, Cis Christianson, former first grade teacher of Social Worker Sally Schroer, had very limited time; visits were permitted only when she was available. Sheila's job required that she work from 5:00 p.m. to 2:00 a.m. Her work schedule was completely disregarded when visitation was scheduled by the County; visits were often set for times Appellant was scheduled to work. App. Apx. 150; 163-167; 170-171; 206.

In January, 2000, Appellant was late for a scheduled review hearing, due to her car going in a ditch on the way. When she finally arrived, she was informed the hearing was over; visits continued to be supervised. Although she was finally permitted phone contact with M.N., his foster care family did not always allow it. She was not permitted visitation on Thanksgiving, the boys' birthdays, or her own birthday. When she requested visitation on W.H.'s birthday in February, the County social worker suggested she would do the supervision so that she and Appellant could talk and plan, include another person the social worker wanted to meet (M.N.'s godmother, Brenda Dehmer), and the visit could last a couple of hours. Appellant was not happy with this plan only because she wanted to spend time with her son -- not with adults discussing social service plans in front of him. As it turned out, she was not permitted the visit with W.H. on that date anyway. App. Apx. 150-151; 164-171; 172-178.

Mrs. Olson felt animosity emanating from County Social Worker Sally Schroer, who was supposed to be providing services to effectuate unification. Arranging supervised visits was difficult, particularly after Sheila found employment -- even though Sally Schroer recommended to the Court in her January 6, 2000 correspondence that Sheila be required to maintain employment. App. Apx. 172-174; 206. Visits continued to be scheduled late in the day -- during the very hours she was scheduled to work. Miscommunications continued with the social worker. Her father was not permitted to supervise visitation, even though the Court had approved him as a foster parent for M.N. Nothing on the record indicates her court-appointed counsel helped her solve any of these issues. The burden of her circumstances combined with her own mental health difficulties was too much for Appellant. She finally "gave up." She could no longer fight the system, of which her own attorney seemingly was a part. App. Apx. 152; see also App. Apx. 157-171; 175-178; 202; 206.

On May 8, 2001, following an April 24, 2001 default hearing, never having been properly served notice of the hearing, Sheila Olson's parental rights were terminated. She was served no personal notice, the published notice was defective. Mrs. Olson had resided in Minnesota the entire time. Most of the time she resided with her father in Apple Valley -- the same house she lived in when the children were brought for visitation. She moved to Green Isle in about August, 2000, and later to Hutchinson, Minnesota on February 28, 2001. Her father testified that he is not aware of anyone attempting to serve her at his house from January through April, 2001. The County did find her, however, when it was time to serve her with notice that her rights had been terminated. The County admits that on March 27, 2001 it knew where Mrs. Olson was living, but even with that knowledge, made no effort to properly and personally serve notice prior to the hearing on the termination petition. App. Apx. 152; 139-140; 207.

Mrs. Olson married her present husband, Cameron Olson, a supportive and caring man, in March, 2001. Within six months she sought additional mental health treatment and began taking medications prescribed for her treatable mental health condition appropriate for her diagnosis, "post traumatic stress syndrome." She developed a mother-daughter relationship with her new mother-in-law. She had never experienced a loving bond or on-going relationship with her own mother because of her mother's unresolved mental health issues. The combination of the support she now had from her husband and mother-in-law, and her improved mental health, allowed Appellant to take steps to regain a healthy relationship with her children. App. Apx. 152-153; 179; 192-197.

Appellant's younger son, W.H., was no longer under the jurisdiction of the Court. The child protection case against P.H. was dismissed in September, 2000, and he was granted legal and physical custody of the child. Beginning in August, 2001, and with the permission of P.H., Sheila began having regular visitation with W.H., now six years of age, as well as P.H.'s son, T.H., age seven, who Sheila had mothered from the time he was just a few months old, until she left P.H. App. Apx. 153.

After having survived two foster homes, M.N. was placed in Spencer House, a residential treatment center for boys in Ramsey County. Appellant sought and was granted permission to attend his therapy sessions. At first these sessions were termed "goodbye" sessions; however, they soon turned into sessions which re-established the close bond between mother and son. Appellant began to seek a means by which she could be legally reunited with M.N. when he was to be released from the treatment center; and also with respect to W.H. App. Apx. 152-153; 179; 209-210.

Sheila's mother-in-law, Phyllis Olson, sought and was granted a foster home license so she could bring M.N. home for visitation. As a licensed foster parent, she was also allowed to supervise visits between Sheila and M.N. These visits were allowed to take place at Appellant's home and in the home of Phyllis Olson. Sheila, her husband and Phyllis attended staffings at the residential treatment home. The Out-Of-Home Placement Plan in place from 11/19/2001 to 05/19/2002 (hereinafter "Placement Plan") (App. Apx. 87-105) for M.N. included Appellant as "Parent/Guardian" and relied on her involvement. See App. Apx. 87 & 97; Goal 4 on App. Apx. 91, and App. Apx. 92, 96.

According to the Placement Plan, beginning April, 2002, it was stated Sheila "may be allowed" to have unsupervised visitation in her home with M.N. every other weekend, and on the alternate weekends may be able to visit him at the home of her in-laws. This did, in fact, occur. She also had regular visitation with W.H. and his half-brother every other weekend when they came to her home with the blessing of the boys' father. As a consequence of that visitation schedule, W.H. and M.N. were also able to "reconnect." Following M.N.'s discharge from Spencer House in June, 2002, he was placed in the home of Phyllis Olson and her husband, Sheila's current in-laws. M.N. continues to have on-going regular visitation with his mother.

PROCEDURAL BACKGROUND

I. The CHIPS Petition and the TPR Petition

Sally Schroer, Le Sueur County Child Protection Worker, prepared and filed the CHIPS Petition dated July 14, 1999, against Sheila Olson, and her companion of four years, Paul Hein, Court File # J9-99-50242, District Court, First Judicial District, Le Sueur County. App. Apx. 1-4. The CHIPS Petition alleged the children were without proper care because of the disability or the immaturity of the parent which created an environment injurious or dangerous to the child.

Ms. Schroer later prepared and filed the Petition for Termination of Sheila Olson's Parental Rights (TPR) on January 9, Court File # J8-01-50024. App. Apx. 6-8. In sum, the Petition alleges Appellant abandoned the children; refused or neglected to comply with the duties of a parent; was palpably unfit; and reasonable efforts failed to correct the conditions.

II. Lack of Personal Service

Personal service on the parties is the preferred method of service in juvenile matters by Minn.R.Juv.P. 69.02, subd. 3(a) (2001 The only affidavit attesting to an attempt to personally serve Appellant was one from Ohio, where Mrs. Olson had never lived. App. Apx. 132. This affidavit was never actually filed with the Court. An affidavit of service is required to be filed with the court on or before the date set for service, Minn.R.Juv.P. 68.07.

III. February 21, 2001 Hearing - Lack of Service by Publication

The public defender who represented Mrs. Olson on the CHIPS matter appeared at the February 21, 2001 hearing. His first order of business was to request the District Court to re-appoint him as counsel in the TPR matter. App. Apx. 18. Sheila Olson had no opportunity to consent or disagree with his representation of her in this matter. Personal service of the summons had not been obtained on Mrs. Olson at the time of this hearing; she was not present and was not aware of the pending action. During the hearing, the Court verbally authorized service of the summons and notice of an April 4, 2001 TPR hearing by publication, at the request of the county attorney. App. Apx. 20. Mrs. Olson's court appointed counsel agreed without objection to notice by publication. He did point out that she had provided her father's address at one point.

Even though she had lived with her father at that address during the supervised visitation period of the CHIPS, and this was her actual "last known address" (she had never lived in Ohio), no personal service was attempted there. See App. Apx. 151-152; 207.

"The court shall authorize service by publication only if the petitioner has filed a written statement or affidavit describing unsuccessful efforts to locate the party to be served." Minn.R.Juv.P. 68.02, subd. 3. No affidavit is on the record to support service by publication.

After the Court authorized service by publication, the following exchange took place between the Court and the County.

THE COURT: Let's do the Apple Valley area and we will do Cincinnati, and then once that's completed, we will come back on this file. Now, do I need to prepare an Order in this case?

MR. CHRISTIAN (for the County): No, Your Honor. App. Apx. 21.

The lack of an Order does not conform to Minn.R.Juv.P. 69.02, subd. 3(a).

The summons and notice of the April 4, 2001 hearing for termination of Mrs. Olson's parental rights were published in the Rosemount Town Pages (Dakota County) from March 2 thru March 16, 2001, and the Clermont Sun in Clermont County, Ohio, from March 1, thru March 15, 2001. App. Apx. 261-262. The published summons did not "contain or have attached a statement that if the person summoned fails to appear the court may conduct the hearing in the person's absence and the hearing may result in termination of the person's parental rights." Thus, the published summons did not conform to Minn.R.Juv.P. 69.02, Subd.4(c). It merely provided notice of a Termination of Parental Rights Hearing scheduled for April 4, 2001.

IV. April 4, 2001 Hearing - Lack of Service by Mail

On March 27, 2001, the County learned of a potential new address for Appellant Olson. Notice by mail of an admit/deny hearing on April 4, 2001 was sent Mrs. Olson's address in Hutchinson on March 27, 2001. App. Apx. 259-260. No summons was included. This was only eleven days after the last publication of the defective summons and notice on March 16, 2001. No notice was included which warned Mrs. Olson that her failure to appear could result in termination of parental rights.

An Affidavit of Service by Mail was filed in the District Court. The affiant, Debra Mager -- Chief Deputy Court Administrator, attested a "Petition and Notice of Hearing" was "properly addressed to 445 KOUWE ST HUTCHINSON MN 55350 last known address of" Mrs. Olson. The Affidavit does not purport to claim the summons was included. App. Apx. 259.

Appellant did not attend the April 4, 2001 hearing because she had no notice. Court-appointed counsel requested the hearing be treated as an admit/deny hearing and a denial to be entered. App. Apx. 25-26. The County requested an entry of default. The District Court rejected both oral motions and scheduled a default hearing for April 25, 2001 to terminate Sheila Olson's parental rights. The Court directed the Court Administrator to send notice of the April 25, 2001 default hearing to Mrs. Olson's home address and work address. During the hearing, the Court noted on the record that the Court file did not contain the usual notice of hearing usually sent by the County to the public defender for the April 4, 2001 hearing. App. Apx. 26.

V. April 25, 2001 Hearing - Lack of Notice & Evidence

The record contains no evidence that notice was given to Mrs. Olson of the April 25, 2001 hearing. App. Apx. 257-264. Proof of service is to be filed before the hearing, Rule 68.07. There are no affidavits of personal service. There are no affidavits of service by mail. There are no documents of any type in compliance with the Court instructions to the Court Administrator to send notice to Mrs. Olson's home and work addresses. The County attached no such documentary proofs to their Brief in Opposition to Appellant's Motion to Dismiss. Mrs. Olson's right to notice of a hearing pursuant to Rule 69 is protected by Minn.R.Juv.P. 57.02(a).

The public defender requested a continuance at the April 25th hearing because Appellant was not present. App. Apx. 32. The Court denied the request. Only one witness was called, Sally Schroer, on behalf of the County. The only testimony given on direct exam was a confirmation that nothing had changed from the time the Petition had been filed. Cross examination by the public defender documented the lack of contact between Mrs. Olson and the County. The Court questioned Guardian ad Litem Irene Christensen on the current circumstance of Mrs. Olson's children and the children's fathers. There was no direct or cross examination of Ms. Christensen. App. Apx. 30-41.

The Court acknowledged it would take judicial notice of the reports by Irene Christensen and Sally Schroer filed in the CHIPS matter, Court File # J9-99-50242, at the request of the County. Appointed counsel's request to be discharged as counsel for Mrs. Olson was granted. App. Apx. 35; 40.

The Order and Judgment terminating Sheila Olson's parental rights were filed May 8, 2001. The Notice of Filing the Order is dated May 22, 2001. Appellant Olson received the Order terminating her parental rights by certified mail, return receipt requested on June 5, 2001. App. Apx. 9-15; 257.

VI. The Motion to Dismiss - May 23, 2002

On May 23, 2002, Mrs. Olson filed her Notice of Motion and Motion to Dismiss the Order and Judgment of May 8, 2001 terminating her parental rights. App. Apx. 211-215. She asserted the lack of proper notice violated the Juvenile Rules and her rights to due process, the District Court had no personal jurisdiction over her because the Rules of Procedure were not strictly followed, and the judgment should be vacated or dismissed. Alternatively, she argued that the judgment was void under Minn.R.Juv.P. 81.02(d) and her rights to substantive due process had been violated. App. Apx. 56-73.

The County's Memorandum of Law in Opposition to Petitioner's Motion to Dismiss focused on two issues: Minn.R.Juv.P. 81.02 is controlling and the time to appeal from a judgment from any juvenile court judgment is limited to ninety (90) days. The County also argued Mrs. Olson was properly served by publication and had adequate notice, but failed to present evidence to defend herself. App. Apx. 106-112.

Mrs. Olson's Motion was denied; this Appeal was thereafter timely filed.

VII. Admissions / Positions by the County

The County made the following admissions in its brief:

Mrs. Olson has an ongoing relationship with her children. App. Apx.107;

Service of publication is by court order. App. Apx. 108;

Personal service is preferred. App. Apx. 108;

A written statement or affidavit is required to support a request for service by publication. App. Apx. 109;

The publication of the summons did not have the language required by Rule 69.02, which requires the summons to "contain or have attached a statement that if the person summoned fails to appear the court may conduct the hearing in the person's absence and the hearing may result in termination of the person's parental rights." App. Apx. 110-111;

Only a Petition and Notice of Hearing for the April 4, 2001 hearing was sent to Mrs. Olson on March 27, 2001. The mailing did not include a summons or the notice as required by Rule 69.02. App. Apx.111;

The notice mailed to Appellant Olson on March 27, 2001 did not include notice of the consequences for failure to appear required by Rule 69.03, subd. 3 (e). App. Apx. 111.

The County used a letter dated March 27, 2001 from Sally Schroer to the District Court with Mrs. Olson's address for evidence of notice of the April 24, 2001 default hearing to Mrs. Olson. App. Apx. 111-112; 139. At the hearing on the motion to dismiss, the County offered no other evidence of service upon Mrs. Olson of the default hearing.

The County made the following admission at oral argument, "It is absolutely true that the notice -- the publication notice did not contain the language required in that case, the case of T.D. App. Apx. 49. (Referencing Welfare of T.D., 631 N.W.2d 806, Minn. App., 2001.)

VIII. Findings of the Court

Mrs. Olson's request to dismiss the Order and Judgment terminating her parental rights was denied. In doing so the District Court made the following findings which Appellant deems important:

"The Court ordered service by publication on February 21, 2001." App. Apx. 212;

Service of publication was ordered only after reasonable attempts by the County failed to locate her. App. Apx. 212;

"… the publication failed to include the required statement that failure to appear at the hearing could result in a default judgment and the termination of Cabor/Olson's parental rights. As such, service by publication in this matter may have been insufficient to confer personal jurisdiction over Cabor/Olson." App. Apx. 212;

"… most importantly, Cabor/Olson was represented by counsel throughout the proceedings." App. Apx. 213;

"These facts are determinative of the conclusion of by this Court that Cabor/Olson's rights were safeguards in spite of the technically insufficient notice, and that she failed to act after receiving sufficient notice." App. Apx. 213;

"However, what she (Mrs. Olson) fails to recognize is the equally, if not weightier, importance of a child's right to have stability and finality to decisions regarding their parent's status." App. Apx. 213;

"the Court would also note that she became involved with Mr. Olson and his family in February of 2001, and she and Mr. Olson were married March 9, 2001. Cabor/Olson credits this new relationship with righting her mental and emotional state. If such is the case, there appears to be no reason or excuse as to why she took no action to have the judgment vacated within the ninety day time frame provided by the Rules. App. Apx. 214;

It is commendable that Cabor/Olson has taken a renewed interest in two of her children and seems to have created a stable life for herself. App. Apx. 215;

The motions are untimely and therefore to be denied. App. Apx. 215.

BURDEN OF PROOF - STANDARD OF REVIEW

A question of whether service of process was proper is a question of law, which is reviewed de novo. In Juvenile matters, an Appellate Court will uphold the district court's decision on a Rule 81.02 motion absent a clear abuse of discretion. Welfare of T.D., 631 N.W.2d 806 (Minn. App. 2001) @ 807, Galbreath v. Coleman, 596 N.W.2d 689 (Minn. App. 1999) @ 691, (both decided under Rule 60.02 of the Civil Rules.) The court is to look closely at the record and verify service of process is in strict accordance with the requirements of the statutes and the rules, Welfare of T.D @ 810, Lundgren v. Green, 592 N.W.2d 888 @ 890 (Minn. App. 1999).

The Court in Peterson v. Eishen, 512 N.W.2d 338 @ 340, 341(Minn. 1994) addressed issues for vacating a default judgment:

Although the language of the rule and the statute indicate that motions to vacate void judgments must be made within a reasonable time, we have previously held that there is no time limit for commencing proceedings to set aside a judgment void for lack of jurisdiction over the subject matter or over the parties.

***

A void judgment is legally ineffective; it may be vacated by the court which rendered it at any time.

***

. . . defendant's failure to move to vacate default judgment within reasonable time after its entry did not preclude motion to vacate the judgment for lack of personal jurisdiction. A void judgment cannot gain validity by the passage of time. (String citations omitted)

***

In general, a valid judgment cannot be rendered against a party without due service of process.

The Minnesota Supreme Court identified many of the issues on the County's burden of proof and this Honorable Court's standard of review in the case of Welfare Of P.L.R., 622 N.W.2d 538 (Minn. 2001) @ 543.

We review terminations of parental rights to determine whether the district court's findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous. M.D.O., 462 N.W.2d at 375. We study the record carefully to determine whether the evidence is clear and convincing. In re Welfare of Clausen, 289.

In a termination of parental rights proceeding, the best interests of the child must always be the chief consideration. Minn.Stat. § 260C.301, subd. 7 (2000); In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn.1995); M.D.O., 462 N.W.2d at 375. In most cases, it is presumed that the child's best interests are served by being with a parent. A.D., 535 N.W.2d at 647. To terminate a person's parental rights, the district court must find clear and convincing evidence that statutory requirements are met. Minn.R.Juv.P. 59.05 (1999). [FN5] This evidence must relate to conditions that exist at the time of termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period. Chosa, 290 N.W.2d at 769. (emphasis added).

Close scrutiny is given to the record and strict compliance with statutes and rules is demanded because of the high priority of due process rights as articulated in Marriage of Sammons:

Government action may not deprive individuals of liberty or property interests without due process, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 7 of the Minnesota Constitution . . . Due process protections include >notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decisionmaker, and the right to a reasonable decision based solely on the record=@ (string citation omitted). Marriage of Sammons, 642 N.W.2d 450 @ 457.

If there is not proper service, the District Court lacks personal jurisdiction. Nieszner v. St. Paul School District, 625, 643 N.W.2d 645 (Minn. App. 2002). The County has the burden of proof to show proper service on Mrs. Olson and that the District Court had personal jurisdiction. Mesenbourg v. Mesenbourg, 538 N.W.2d 489 (Minn. App. 1995) @ 492.

LEGAL ARGUMENT

I. FAILURE TO PROPERLY SERVE THE SUMMONS AND PETITION FOR TERMINATION OF APPELLANTS PARENTAL RIGHTS DEPRIVED THE COURT OF JURISDICTION TO TERMINATE THOSE RIGHTS.

Welfare of T.D., 631 N.W.2d 806 is Directly on Point to Sheila

Olson's Case.

The facts in this case coincide with the facts of Welfare of T.D., 631 N.W.2d 806. There, Dakota County did not obtain personal service, the preferred method under Minn.R.Juv.Proc. 69.02, Subd. 3.(a) (2001). Le Sueur County failed to do the same in the instant case. Both Counties attempted service by publication, and in both cases admitted their failure to comply with Minn.R.Juv.P. 69.02, subd., 4 (c) (2001), acknowledging the published summons did not contain a specific notice of rights and consequences should the party fail to appear. In both cases the summons lacked the necessary language to put the parent on notice that a TPR hearing could be conducted without their presence, which may result in termination of their parental rights.

The holding in Welfare of T.D. is applicable to this case where this Honorable Court said:

'Service of process in a manner not authorized by the rule is ineffective service.' " Lundgren v. Green, 592 N.W.2d 888, 890 (Minn.App.1999) (quoting Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn.1997)) (construing Minn.R.Civ.P. 4.03(a)), review denied (Minn. July 28, 1999). "Service of process must accord strictly with statutory requirements." Id. (quotation omitted); see, e.g., Hughes v. Lund, 603 N.W.2d 674, 677 (Minn.App.1999) (finding service under Minn.R.Civ.P. 4.05 ineffectual where appellants did not include an acknowledgment form and self- addressed, postage-prepaid, return envelope in strict accordance with the rule). Because the published summons failed to contain the information required by rule 44.03(c), it is deficient and service of process is ineffective. (emphasis added) In the Matter of the Welfare of T.D., 631 N.W.2d 806.

Therefore, the District Court lacked personal jurisdiction over Mrs. Olson and its holding should be vacated.

The County Cannot Satisfy its Burden of Proof that the Service of Summons was Proper.

The County has admitted, and the District Court found, that the notice published with the summons was defective. App. Apx. 49; 212. The County admitted that no notice for anything was sent to Mrs. Olson in compliance with the Juvenile Rules 68 & 69. Service of process is ineffective when done in a manner not authorized by the rules because strict statutory compliance is required. Lundgren v. Green, 592 N.W.2d @ 890. The Lundgren court further stated:

Thus, "[a]ctual notice will not subject defendants to personal jurisdiction

absent substantial compliance with Rule 4." Thiele, 425 N.W.2d at 584 (citations omitted).

* * *

For attempted service of process to be sufficient where the defendant has

actual knowledge of the action, there must be substantial compliance with the requirements of Rule 4.03(a). Substantial compliance with Rule 4.03(a) is lacking in the present case. The actual knowledge exception does not apply. Lundgren v. Green, 592 N.W.2d @ 892, 893. (cf., Civil Rule 4.03,

(1989) - Personal Service, to Minn.R.Juv.P. 69, (2001).)

The summons is required to contain notice "… of the right to counsel and of the consequences of failure to obey the summons." M.S.A. 260C.151 subd. 1. A summons will be served as provided by the Juvenile Rules, M.S.A. 260C.152 subd. 1. The person making service shall provide proof of service, M.S.A. 260C.152 subd. 2. These code sections are the statutory authority for Juvenile Rule 68 - Methods of Filing and Service, and Rule 69 - summons and notice.

The failure to give notice as required by the rules of procedure is a violation of Sheila Olson's rights "in and of itself" and is grounds to set aside a default judgment. Lyon Development Corporation v. Rick's Inc., 296 Minn. 75 @ 84 - 85, 207 N.W.2d 273 @ 278 - 279, (1973). The "in and of itself" proposition discussed in Lyon Development was cited by Welfare of Children of Coats, 633 N.W.2d 505, (Minn. 2001).

We further held (in Lyon) that the plaintiff's failure to give the notice "in and of itself is grounds to set aside the default judgment entered against the (party)"; thus, we did not require the (party) to show each of the four elements of the Rule 60.02 analysis (cf. Juv. Rule 81.02) before vacation of the default judgment."

Welfare of Children of Coats, 633 N.W.2d @ 510, FN 5.

Careful scrutiny is not necessary when the County admits and the Court finds the summons was not in compliance with Rule 69 and M.S.A. 260C.151 subd. 1. The District Court does not have on file a proof of service of the summons containing appropriate notice as required M.S.A. 260C.152 subd. 2. The County cannot satisfy its burden to prove effective service was made as required by Mesenbourg v. Mesenbourg 538 N.W.2d @ 492. The violation of Sheila Olson's right to due process renders the default judgment void. Therefore Appellant does not need to show other due process violations or construe any cases, statutes or rules.

A judgment obtained without due process is absolutely void. Beede v. Nides Finance Corp., 209 Minn. 354 @ 355, 356, 296 N.W. 413 (1941); Lange v. Johnson, 295 Minn. 320 @ 324, 204 N.W.2d 205 (1973). The District Court had no personal jurisdiction over Sheila Olson, the judgment is void and should be vacated. The District Court should be reversed.

C. The 90-day limit to Appeal a Judgment of Juvenile Rule 82 does not

apply because the passage of time does not validate a void judgment

The District Court's narrow holding is: "Cabor/Olson's motions are untimely and therefore, must be denied." App. Apx 212. The requirements of Rule 81 do not apply because Appellant Olson's rights to due service of process and notice of hearings were violated; the judgment is void. Void judgments cannot gain validity by the passage of time and therefore can be vacated by the court that rendered it at any time; Peterson v. Eishen, 512 N.W.2d @ 341, default judgment vacated after nine years; Galbreath v. Coleman, 596 N.W.2d @ 691, default judgment vacated after six years.

The District Court found the most important issue was representation by counsel. Representation by appointed counsel, (not chosen by Mrs. Olson) is not determinative of the matter when strict compliance with the statutes and rules of procedure are not followed, violating Appellant's right to due process. In Mesenbourg v. Mesenbourg, 538 N.W.2d @ 494 (Minn. App 1995), a default judgment was overturned for lack of personal jurisdiction. There, as here, the defaulting party was represented by counsel and the time to vacate the judgment had passed.

D. The District Court Lacked Personal Jurisdiction Because of

Other Procedural Defects in Violation of Mrs. Olson's Right to

Due Process.

1. No Personal Service.

Here, the County admitted to procedural defects in addition to the language deficiency in the summons, see Admissions/Positions by the County, supra @ pages 15-16. Personal service is the preferred form of service. No evidence exists in the record that any attempt was made to personally serve Sheila Olson in Minnesota, where she actually lived. The failed Affidavit of attempted personal service in Ohio was not filed with the District Court. Mrs. Olson never resided in Ohio.

Less than five weeks, thirty-four days, from the time publication of service was authorized - February 21, 2001, the County admits it had an address at which personal service could be obtained. App. Apx. 139-140. After the County received the correct address for Sheila Olson on March 27, 2001, it chose not to attempt personal service.

2. The Attempt to Obtain Service of Publication Was Not Done in a Reasonable Manner.

a. No order was issued for service by publication.

M.S.A. ' 645.11 and Rule 68.02 Subd. 2 require Apublication in full of the notice or other papers in the regular issue of a qualified newspaper.@ APublication in full@ for the instant case required strictly following the requirements for a summons and notice in Rules 68 & 69. There is no affidavit or written statement to support the District Court's authorization of service.

Contrary to the Court's finding, the Court only authorized service of publication orally during the February 21, 2001 hearing. App. Apx. 20. The record does not contain a written order authorizing service. Rule 69.04 requires an oral order be reduced to writing pursuant to Rule 46. In addition to reducing an oral order to writing under Rule 46.01, the order is to be given or sent to all the parties, Rule 46.02. The record received by Appellant contained no such written order.

The County did not use reasonable efforts to locate Mrs. Olson prior to requesting service by publication.

The evidence offered at the February 21, 2001 hearing of the reasonableness of the efforts by the County to locate Mrs. Olson is lean at best. The public defender "testified" that he sent a letter to Ohio which was returned. The County said the one attempt to do personal service was unsuccessful and the papers were returned. App. Apx. 19-20. The admissions by the public defender provided the information the Court relied upon in authorizing service by publication.

The burden of proof is on the County to prove the need for published service. The County attorney indicated the last three known addresses for Mrs. Olson were, in order of oldest to most recent, Carver County, Dakota County, and Ohio. The County had no idea she had never lived in Ohio. The court authorized service published in Dakota County and Ohio. App. Apx. 21.

There is no evidence that the County tried to call her or her father in Apple Valley, with whom the County knew she had lived, and no evidence of any attempt to personally serve her there. There is no evidence the County made any attempt to check with the U.S. Post Office to see if she made an official change of address. The County did not attempt to contact child #1's godmother, Brenda Dehmer, who was known to the County. The County and the public defender did not attempt to locate Mrs. Olson by e-mail. There is no evidence that any of the e-mail sent to her early in the CHIPS case ever came back, indicating a bad e-mail address. The record shows the Court relied on conclusory statements by the public defender, qualified by such phrases as, "I don't think …" or "I don't believe ...." The County only claimed it did not know where Mrs. Olson was. App. Apx. 19-20.

There are no facts to support the conclusory statements made and no affidavits or statements were filed to support authorization of service by publication. The County has not satisfied the requirement to prove it made the reasonable effort necessary before requesting service by publication.

The service by publication was not "Reasonably

Calculated" to reach Mrs. Olson.

"[A] public notice shall be published in a qualified newspaper ..." M.S.A. § 331A.03, subd. 1. The term "qualified newspaper" is defined at length in M.S.A. § 331A.02. A qualified newspaper must be circulated in the city or the county the newspaper intends to serve and have 500 paying subscribers, 331A.02 subd. 1 (d). This Honorable Court made the following findings in Electro-Measure, Inc. v. Ewald Enterprises, Inc., 398 N.W.2d 85 @ 89 (Minn.App. 1987) @ 89. (Herein after referred to as EMI v. Ewald) :

Under these facts, we conclude that publication in a Wisconsin newspaper with local circulation, was not "reasonably calculated" to give notice to respondent (defendant in Minnesota).

EMI (Electro-Measure) emphasizes the statutory language "in the area or to the person affected, "contending that the alternative for publication in an appropriate "area" had been satisfied here. It is evident, we believe, that the reference to an area speaks of an area where the defendant would likely receive notice. EMI's argument overlooks the true statutory mandate that "legal notice shall be published in a newspaper likely to give notice in the area or to the person affected. Wis.Stat.Ann. § 985.02(1) (West 1985). (italicized emphasis in the original, underlined emphasis added).

The summons and notice of the April 4, 2001 Termination of Parental Rights Hearing were published in both the Rosemount Town Pages and the Clermont County Sun. Appellant asserts two reasonable inferences can be drawn to determine if the two newspapers have "local circulation" in McCleod County and are qualified to give public notice. Neither the Rosemount Town Pages nor the Clermont County Sun, have: 1) 500 paying subscribers in McCleod County; and 2) intended to serve McCleod County, population 34,898. The Rosemount Town Pages and the Clermont County Sun, have no "local circulation" in McCleod County and cannot be "qualified newspapers" "reasonably calculated" to give notice to Sheila Olson of the summons and notice of a TPR hearing.

M.S.A. ' 331A.03 requires Aa public notice shall be published in a qualified newspaper, Y that is likely to give notice Y to whom it is directed.@ (emphasis added). The lack of due diligence by the County in locating Appellant Olson resulted in public notice not directed to her.

Within eleven (11) days of the last date of publication, the County had a good address for Mrs. Olson. App. Apx. 139-140. With this knowledge, due process required the County to recalculate the reasonableness of the attempts to obtain service against the high standard to follow the Rules of Procedure. If the County was reasonably calculating to obtain service on Mrs. Olson, they would have directed the McCleod County Sheriff to do personal service.

In EMI v. Ewald @ 89, the plaintiff had verified the defendant's address in Litchfield, MN, but decided to do service of publication when the sheriff could not obtain personal service. Regardless of the problems of personal service, the court held the plaintiff had not "reasonably calculated" defendant's rights when plaintiff decided to attempt notice by publication in Wisconsin. Similarly, published notice in newspapers of local circulation to Dakota County and to Clermont County, Ohio, is not "likely to give notice Y to whom it is directed," Sheila Olson. Once the County had a good address, it could not rely on the prior service by publication. If service of publication is allowed to be adequate once the party is known to be in McCleod County, then service by publication could just as easily be done in Dakota County for Crow Wing County or Kittson County.

In calculating the reasonableness of the County's efforts, due diligence in trying to find a party's whereabouts is required before a court may authorize service by publication, EMI v. Ewald, 398 N.W.2d @ 88. The County's Memorandum of Law in Opposition to the motion to dismiss contained the following statements:

The notice was published in newspapers reasonably calculated to reach Mrs. Cabor/Olson. At the time of publication in the Rosemont Town Pages it was thought that Mrs. Cabor/Olson could possibly be living with her grandfather in Dakota County. By publishing in Dakota County, Le Sueur County was attempting to reach Mrs. Cabor/Olson or her grandfather, with the idea that the grandfather would notify her of the hearing.

Service of process is to be specifically directed to the party intended to be served, Allstate Ins. Co. v. Allen, 590 N.W.2d 820 (Minn. App. 1985). Service of process by publication in the area of a family member is not service directed to the party to be served. If that was adequate service, any relative could be personally served and the serving party would claim adequate due process had occurred. Service of process is only effective if it strictly complies with statutory requirements, Welfare of T.D., 631 N.W.2d @ 810.

4. Sheila Olson Did Not Receive Notice of the April 25, 2001 TPR

Hearing and "Representation" by Counsel Did Not Rectify This

Due Process Violation.

Strict compliance with the statutes and rules of procedure are required for due process to be satisfied whenever the extreme remedy of termination of parental rights is at issue. Welfare of T.D., 631 N.W.2d @ 810. The record is void of any proof of service on Sheila Olson for the TPR hearing of April 25, 2001 as required by Rule 68.07. There is no affidavit of service or other record of any attempt to serve Mrs. Olson with notice of the hearing where her parental rights were actually terminated. Although the public defender was present at the April 4, 2001 hearing when the District Court set the time for the April 24, 2001 hearing, his presence doesn't constitute notice to Mrs. Olson under the rules when the record shows no service or attempted service.

The quality of Sheila Olson's court appointed "representation" by the public defender supports the issue that representation is not determinative of whether the requirements of due process have been satisfied, Mesenbourg v. Mesenbourg, 538 N.W.2d @ 494. A full review of the three 2001 hearing transcripts shows the public defender had no personal contact with Mrs. Olson for several months. The record suggests he may have sent some letters to addresses provided to him by the County. There is no indication he made any serious attempt to locate Mrs. Olson.

At the February 21, 2001 hearing he assisted the county in obtaining authorization for service by publication. App. Apx. 19-20. At the April 25, 2001 hearing he "testified" on the record to his inability to contact Mrs. Olson, aiding the County in its burden of proof. App. Apx. 31-32. The only questions he asked on cross examination further assisted the County in proving its case. App. Apx. 35-37. No witnesses were called on behalf of Sheila Olson. The attorney purporting to represent Mrs. Olson then had himself immediately removed as counsel. App. Apx. 40.

Mrs. Olson did not know of the February 21, 2001 hearing and was unaware the court appointed counsel on her behalf. She had no opportunity to accept or reject the public defender as her counsel. It is hard to find anything on the record where the Public Defender actually did anything positive for her, and it is clear he accomplished nothing on her behalf. He never raised nor challenged any of the issues argued in this brief and apparently did not have sufficient knowledge of the CHIPS matter to advocate Mrs. Olson's mental health issues, even though Mrs. Olson had completed both the psychological and chemical abuse evaluations and provided him with an authorization to receive those documents. App. Apx. 150; 158. He did not advocate the possibility that keeping the children with their mother may be in the children's best interest. The Court's reliance on the public defender's "representation" of Mrs. Olson to help rectify other due process violations is misplaced.

II. CLEAR AND CONVINCING EVIDENCE DOES NOT EXIST TO

SUPPORT TERMINATION OF SHEILA OLSON'S PARENTAL RIGHTS.

Adjudication of Sheila Olson's parental rights affects her liberty interests, requiring procedural and substantive due process under the Fourteenth Amendment of the United States Constitution. Santosky v. Kramer, 455 U.S. 745 (1982), Baker v. Baker, 494 N.W.2d 282 (Minn. 1992). The substantial liberty interest at issue is why due process requires a showing of clear and convincing evidence to terminate parental rights. Relying on the United State Supreme Court holding in Santosky, the Minnesota Supreme Court stated:

To terminate a person=s parental rights, the district court must find clear and convincing evidence that statutory requirements are met. Minn.R.Juv.P. 59.05 (1999). This evidence must relate to conditions that exist at the time of termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period. Chosa, 290 N.W.2d at 769. Welfare of P.R.L, 622 N.W.2d @ 543.

Reunification of the Children with Mrs. Olson Has Been in the

Children's Best Interest.

Sheila Olson began having unsupervised visitation with her younger son, W.H., in August, 2001, just three months after her rights were terminated. App. Apx. 153. T.H., W.H.'s half-brother, also was at these visitations with the approval of their father, P.H.

Reunification with M.N., her older son, began just one month later. M.N. suffered a decline in his mental health from living in foster homes even before the termination of his mother's rights. App. Apx. 114, 115, 117. He was sexually abused in a foster home. App. Apx. 117, 118. He was placed in residential treatment at Spencer House on February 7, 2001 to provide more structure. The following day he was admitted to the hospital due to destructive behavior to himself and others. App. Apx. 219. He remained there for one week. He was rejected by his father (App. Apx. 130), who had no right to physical or legal custody over him, but who had been brought into the picture by the County. App. Apx. 38. It seemed only a miracle could save him.

The miracle worker was Dennis Grubich, Social Worker at Spencer House. Mr. Grubich allowed Sheila back into M.N.'s life. Starting in September of 2001, Mrs. Olson began attending family therapy sessions, Quarterly Staffings, and other meetings. The positive results in M.N.'s behavior were astounding. App. Apx. 209. Even the county acknowledged the benefit of Mrs. Olson's involvement with M.N. App. Apx. 219.

Mrs. Olson continued to have contact with both boys. Because M.N. has not been permanently placed, he is still under the supervision of the County. The County did a Child Out of Home Placement Plan for November 19, 2001 to May 19, 2002. The plan included the following:

Family Strengths:

Sheila does love and care for M.N.. She does want a relationship with him and wants to be involved in his life.

Goal 4 of the plan was that "Sheila will have a positive relationship with M.N." The description of strengths and needs clearly defines a functioning family unit. Reunification with Mrs. Olson is clearly in the best interest of both children. This was obvious by September of 2001, less than four months after her rights were terminated.

The County admits the ongoing relationship between Mrs. Olson and her children exists. App. Apx. 107. The District Court commended Mrs. Olson for acting in the best interest of her children. App. Apx. 215.

The Finding of Abandonment of the Children is Not Supported

by Clear and Convincing Evidence.

The May 8, 2001 Court Order terminating parental rights, found Mrs. Olson had abandoned her children. App. Apx. 13. Abandonment is grounds for termination, unless mental health is an issue. M.S.A. § 260C.301, subd. 2 (a) 1. There was no attempt to introduce any evidence Mrs. Olson had been diagnosed with Post Traumatic Stress Disorder. App. Apx. 148. The relationship between Mrs. Olson and the County was cordial, but contentious. App. Apx. 155 to175. No evidence was submitted to show how the relationship between Appellant Olson and the County may have contributed to her symptoms. Appellant once again questions the effectiveness of counsel. This begs the question of whether Mrs. Olson abandoned her children or abandoned a system that she felt abused her. The evidence is not clear.

In Matter of Welfare of J.J.B., 390 N.W.2d 274, (Minn. 1986), the Supreme Court addressed issues associated with mental health and how it should be viewed for purposes of terminating parental rights. The court found mental health is not a statutory ground for the termination of parental rights but can be an element in a person=s ability to provide parental care. The court reviewed the record to determine if appropriate assistance had been provided to the parent for her mental health condition. The court=s review of the record showed the appropriate assistance had been provided. Welfare of J.J.B., at 281. There is no indication in this case as to whether the record was even reviewed to attempt to understand Mrs. Olson's mental health issues and how the juvenile process may have affected her.

The timing of the alleged abandonment coincides with coercion applied by the County against Mrs. Olson to sign a placement plan. The March 30, 2000 report by the County to the Court documents the coercion. Because Mrs. Olson had concerns about the plan she would not sign without consulting with her attorney. The report makes clear that Mrs. Olson would not be allowed visitation with M.N. if she did not sign the plan. App. Apx 115. Sally Schroer even told the children that if their mother didn't sign there would be no more visitation, then blamed Sheila for the harm to the children she had caused. App. Apx. 167, 168.

The plan was signed April 5, 2000 in the presence of court appointed counsel without addressing the issues concerning Mrs. Olson. App. Apx. 127. There is no indication Mrs. Olson was advised of her right to have the Court review the plan, see M.S.A. § 260C.212, subd. 1(d). Mrs. Olson believed intellectually, and felt emotionally and psychologically, as if her parental rights had already been terminated. The last contact by anyone from the County with Mrs. Olson was on May 3, 2000. App. Apx. 130.

The County's Reliance on Sally Schroer's Reports is Misplaced

and Inappropriate.

Ms. Schroer's November 7, 2001 report raises the question of her competency and motives. She makes contrary comments about having Sheila being involved in M.N.'s therapy, but acknowledges Dennis Grubich's position that Sheila's involvement was very helpful. She talks about a visit she had with M.N. after he was hospitalized in November of 2001 for losing his temper. Despite the fact he had made substantial gains since his earlier hospitalization, she attributes the second hospitalization to Mrs. Olson's involvement! This conclusion is totally contrary to the observation of the social worker on the scene, Dennis Grubich! App. Apx. 215, 216. Careful review of the record shows this type of treatment and bias against Mrs. Olson throughout the course of the CHIPS matter. It is clear the conditions which resulted in termination of Mrs. Olson's parental rights did not exist for a prolonged and indeterminate period of time as required by due process. The issue becomes whether those conditions ever actually existed.

III. THE COUNTY DENIED MRS. OLSON OF HER RIGHT TO A FAIR

HEARING TO THE DETRIMENT OF THE BEST INTEREST OF

HER CHILDREN.

The consequences of termination of parental rights are substantial.

Upon the termination of parental rights all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceeding concerning the child. M.S.A. ' 260C.317.

The liberty rights at issue are among the most precious in our society.

Lassiter declared it "plain beyond the need for multiple citation" that a natural parent=s "desire for and right to 'the companionship, care, custody, and management of his or her children'@ is an interest far more precious than any property right. 452 U.S. at 27, quoting Stanley v. Illinois, 405 U.S. 651. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. "If the State prevails, it will have worked a unique kind of deprivation. . . . A parent=s interest in the accuracy and justice of the decision to terminate his or her parental is, therefore, a commanding one." 452 U.S. at 27." Santosky v. Kramer, 455 U.S. 745, 758, 759 (1982).

***

Given the weight of the private interests at stake, the social cost of even occasional error is sizable. Santosky at 764.

***

Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination.@ Santosky at 765.

Minnesota courts have analyzed the liberty interests of the parent-child relationship in Baker v. Baker, 494 N.W.2d 282 (1992) and Welfare of S.R.A., 527 N.W.2d 835 (Minn. App. 1995). Public policy strongly supports the reunification of family, i.e. Sheila with M.N. and W.H., M.S.A. ' 260C.001, Subd. 2; Minn.R.Juv.P. 37.02 (b). Both Sheila and the children have a liberty interest to be preserved. AIn a termination of a parental rights proceeding, the best interests of the child must always be the chief consideration. M.S.A. ' 260C.301, subd.7 (2000; In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995); M.D.O., 462 N.W.2d at 375. In most cases, it is presumed that the child=s best interest are served by being with a parent. (Emphasis supplied). A.D., 535 N.W.2d at 647.@ In re Welfare of P.R.L., 622 N.W.2d 538 (Minn. 2001).

Appellant seriously questions the County's competency and intentions to determine the best interests of the children. Appellant's facts do not correspond with the County's facts, e.g., see the Placement Plan of 11/19/01. cf. App. Apx. 87 to App. Apx. 105. No attorney represented the children in the proceedings. Irene Christianson, the Guardian ad Litem, added nothing of substance to the proceedings. She rubber stamped everything suggested by the County. M.N. was eleven years old; no attempt was made to ascertain his ability to express his preference. Nothing on the record indicates he was even asked. A full review of the record raises various issues including whether the County understood or really wanted the best interest of children. (e.g., Trying to reunify M.N. with his father, who had no interest or desire to start a relationship - ultimately rejecting M.N.)

IV. WHEN BALANCING MRS. OLSON'S AND THE CHILDREN'S

LIBERTY INTERESTS AND THE RIGHT TO DUE PROCESS

AGAINST THE INTEREST OF THE COUNTY THE JUDGMENT

SHOULD BE DISMISSED.

The Liberty Interests and Due Process Rights of Mrs. Olson.

The requirements of due process are flexible and call for such procedural protections as the particular situation demands. The factors to consider are: (1) the private interests to be affected by the official action; (2) the risk of erroneous deprivation of these interests and the probable value of additional safeguards; and (3) the government interests involved. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Baker, supra at 287.

***

The inherent flexibility of due process requirements permits this determination on a case by case basis within broad constitutional standards. Santosky v. Kramer, 455 U.S. @ 757 (1982).

***

The private interests at stake, the liberty interests of Sheila Olson, M.N. and W.H., is where the analysis begins to determine whether due process has been violated. The nuclear family is a fundamental premise of our way of life.

Family unit [sic] and a commitment to the nurturing of children are frequently cited as cornerstones of the American way of life. These values give rise to a presumption that a natural parent is a fit and suitable person to be entrusted with the care of his or her child and that it is ordinarily in the best interest of a child to be in the custody of his or her natural parents. Matter of Welfare of J.J.B., 390 N.W.2d 274, 277, 278 (Minn. 1986).

M.N. and W.H. have a right to be a family unit with Sheila because it is presumed to be in the best interest of the children to be with their mother. A natural parent has the inherent right of the companionship, care, custody and management of the parent's child. Santosky @ 758, 759.

Upon determination of the private interest at stake, the second factor in analyzing due process Agoes to the risk of erroneous deprivation of the private interests and the probable value of additional safeguards,@ Baker at 287, quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

The failure of the County to protect Mrs. Olson's rights and those of her children has created the very result due process requirements intend to avoid. Liberty interests are some of the most precious in a free society. No shortcuts are allowed. The County argues for shortcuts because it erred, and so doing, deprived Mrs. Olson of her private rights. Mrs. Olson's right to due process were violated by the County. Within a reasonable period of time after the order of termination Appellant Olson shows evidence of an on-going loving bond and nurturing relationship that is in the best interest of the M.N. and W.H.

B. The Government Interests at Issue.

Governmental interests at issue are nominal when compared to the private interests at stake. The interest in ending litigation is in conflict with more important liberty interests. Ultimately, terminating any liberty interest requires due process. Santosky v. Kramer, 455 U.S. 745 (1982), Baker v. Baker, 494 N.W.2d 282 (Minn. 1992).

Due process mistakes made by the County prolonged the litigation, not shortened it. The County is still trying to place M.N., so his CHIPS petition is still open. It is not a stretch to believe that if the County had pursued this matter with due process in mind, it would have been completely resolved by now. Ultimately it is the County's responsibility to preserve liberty interests and not treat those interests perversely, at the County's own time and place.

The County argues for finality. If Sheila Olson was suffering from mental illness which caused her to drop out of the system, fundamental fairness cries out that there has been no finality. Additional evidence may exist to support allegations of mistake, negligence, or even fraud on the court. The lack of standing puts Mrs. Olson in a position where she may not be able to act on such evidence should it come to her attention. This Honorable Court should be liberal in its findings toward Mrs. Olson because of the harshness of the remedy and the difficulty in proving her case. Liberal interpretation of the statutes is established public policy in Minnesota, M.S.A. 260C.001.

The need for liberal interpretation is especially needed where the relationship between the County and Appellant Olson has been contentious. The state interest at this point is to avoid embarrassment. If the County truly believes Sheila Olson is an unfit mother, the County can continue to pursue the case after Mrs. Olson is properly served. Due process requires a review of Appellant Olson's present circumstances and the situation as it truly exists at the time of a new hearing before parental rights can be terminated. At the hearing terminating Mrs. Olson's parental rights the District Court relied on Sally Schroer's report. Appellant questions her competency and integrity. Ms. Schroer had no idea of Sheila Olson's circumstances, abilities, desires and talents at the time of the April 25, 2001 hearing.

Mrs. Olson wants a fair hearing. The County argues the legislative intent of Minn.R.Juv.P. 81.02 is absolute finality of any judgment in a juvenile matter and therefore she is not entitled to a fair hearing. However, there has not been finality. The County's interest in finality has created unique due process issues. She is included in the most recent Case Plan as a decision maker (App. Apx. 87) but not as a party under M.S.A. ' 260C.317. As a decision maker in the Case Plan she lacks access to the record to determine if the child's due process rights are being protected, see Minn.R.Juv.P. 44.02, subd. 2. She is not entitled to reports and other information the County may gather on M.N.. She is limited in her ability to protect M.N.'s best interest, because she has no rights. According to the County, there are no exceptions to the rules. No judgment can be vacated after ninety days, regardless of any due process violation or even fraud on the court. App. Apx. 48, 106, 107, 108. The Court ruled in the County's favor. App. Apx. 214. Appellant does not believe the intent of the legislature was to change the constitution.

The County, in its brief, suggested the fathers of the two boys would be shocked if Mrs. Olson's parental rights were restored because they would have to pay child support. App. Apx. 107. At the hearing on the motion to dismiss, the Court took the opportunity to express its sentiments to Mrs. Olson. The Court pointed out to Mrs. Olson her obligation to the Court, making clear she had failed in that obligation which would be a decisive factor. The Court made it clear it was going to review the record to ascertain what would be in the best interest of the children; then stated the record did not tip in her favor toward reunification. App. Apx. 52, 53.

The District Court stated at the hearing that the above issues were secondary to the notice issue. App. Apx. 53. However, the memorandum attached to the Order questioned why Mrs. Olson had not made efforts to make the motion sooner. The Court did not accept on its face that Mrs. Olson had mental health issues, App. Apx. 214, and had retained new private counsel. The Court did not consider other issues that may have caused Appellant to delay the filing of a motion.

The Court sided on all issues with the County and did not recognize the burden of proof was on the County to disprove mental health issues. The Court did not consider that dismissing the judgment did not necessarily dismiss the case, but would allow Mrs. Olson to have a fair hearing. To reach the conclusions the Court did, it had to make assumptions unsupported by evidence.

Finally, the County has a financial interest in protecting the due process rights of the children. It is clearly less of a burden on the County if Mrs. Olson is allowed to assume her proper role as a fit parent.

C. Public Policy - Generally.

In Baker v. Baker, 494 N.W.2d 282 (Minn. 1992), the Minnesota Supreme Court made the following observation.

The law governing the legal relationships between men and women, and their children, is complex, reflecting the potentially conflicting policy objectives of preserving families and protecting children, of allowing divorce and ensuring support, of protecting victims and assuring due process. Furthermore, its development has been incremental, reflecting that social attitudes on all of these difficult issues have been rapidly changing in the last several decades.