Opinion
No. A03-620.
Filed: November 18, 2003.
Appeal from the District Court, Anoka County, File Nos. J5-03-50536, J6-01-53148.
Sherri D. Hawley, (for appellant Laurie Lee Oliveira)
Robert M.A. Johnson, Anoka County Attorney, Dan A. Klint, Assistant County Attorney, Anoka County Government Center, (for respondent county)
Judith Ann Albrecht, Guardian Ad Litem Service, Inc., (guardian ad litem)
Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges the district court's order terminating her parental rights. She argues that (1) she was denied effective assistance of counsel and (2) the district court's refusal to wait for her to appear at a hearing denied her due process. We affirm.
FACTS
Appellant Laurie Lee Oliveira challenges the district court's order terminating her parental rights to her son Z.L. Anoka County Social Services filed the termination petition in February 2003, alleging that (1) Z.L., then 23 months old, had lived with his mother for only the first six and one-half months of his life; (2) Oliveira had a history of drug abuse and either failed to complete court-ordered urinalyses or provided samples showing that she continued to use methamphetamine; (3) Oliveira had been arrested at least six times on drug and child-endangerment charges since 1999; and (4) Oliveira had failed to abide by the terms of the case plan that resulted from Z.L. being found to be a child in need of protection or services (CHIPS).
Oliveira was personally served with the termination petition at a February 14, 2003 CHIPS review hearing. At the conclusion of the hearing, the court scheduled an admit/deny hearing for February 27, a pretrial hearing for March 27, and a trial for April 22. The court also warned Oliveira that her failure to appear at any of the scheduled hearings would allow the county to proceed by default. Oliveira appeared at the February 27 hearing and denied the allegations of the termination petition. The district court again warned Oliveira of the consequences of the failure to appear at scheduled hearings.
Oliveira failed to appear at the March 27 hearing. Her counsel notified the court that Oliveira often arrived late for appearances, but the court allowed the county to proceed by default. A county social worker and Z.L.'s guardian ad litem both testified that the information in the termination petition was true and accurate, and both recommended terminating Oliveira's parental rights. The social worker also testified that Oliveira had not successfully completed any of the treatment that was part of her case plan. The district court ordered Oliveira's parental rights terminated, and this appeal follows.
DECISION
Oliveira argues at the outset that this court should review the record in accordance with the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In Anders, the Supreme Court articulated a procedure by which counsel who finds an appeal to be meritless may request permission to withdraw without denying an indigent criminal defendant the representation that due process and equal protection require. Id. at 744, 87 So. Ct. at 1400. The Court stated that counsel's request should include a brief referring to anything in the record that might support the appeal and that the reviewing court should then examine all of the proceedings to determine if the case is meritless. Id.
We conclude that Anders is inapplicable here because Oliveira's counsel has not sought to withdraw. Cf. State v. Balfour, 814 P.2d 1069, 1079 (Or. 1991) (declining to apply Anders because, when counsel does not withdraw, "the core constitutional concerns for which . . . Anders . . . [was] designed disappear"). Further, far from stating that Oliveira's appeal is meritless, Oliveira's counsel argues at some length that she was denied effective assistance of trial counsel and that the district court abused its discretion by refusing to grant her a continuance. We decline, therefore, to apply Anders.
I.
To prevail on a claim of ineffective assistance of counsel, Oliveira 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 L.B., 404 N.W.2d 341, 345 (Minn.App. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984)). There is a strong presumption that counsel's performance was reasonable. Vorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).
Oliveira contends that she was denied effective assistance of counsel because her trial counsel failed to move the district court to vacate the default judgment. To meet her burden of showing that the result of the termination proceeding would have been different, Oliveira must show that (1) she had a reasonable defense on the merits; (2) she had a reasonable excuse for failure or neglect to answer; (3) she acted with due diligence after notice of the entry of judgment; and (4) no substantial prejudice would result to the other party. See Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964); see also In re Coats, 633 N.W.2d 505, 510 (Minn. 2001) (applying Finden test to default judgment terminating parental rights). But Oliveira does not contest the district court's findings, and she offers no excuse for her failure to appear at the March 27 hearing. Accordingly, she could not have successfully moved to vacate the default judgment. She has not shown, therefore, that she was denied the effective assistance of counsel.
II.
Oliveira also argues that the district court's refusal to wait for her to appear for the March 27 hearing, despite her counsel's statement that Oliveira was often late for appearances, was a denial of due process. In In re Coats, the supreme court noted:
It is well settled that "where the trial court has jurisdiction of the offense and of the defendant a judgment will be held void for want of due process only where the circumstances surrounding the trial are such as to make it a sham and a pretense rather than a real judicial proceeding."
633 N.W.2d at 512 (quoting State ex rel. Butler v. Swenson, 243 Minn. 24, 28, 66 N.W.2d 1, 4 (1954)).
Here, Oliveira was notified repeatedly of the hearing schedule, and she received at least two warnings regarding the consequences of her failure to appear. Further, the March 27 hearing was scheduled to begin at 8:30 a.m. but did not start until 9:25 a.m., allowing Oliveira almost a full extra hour to appear. Nothing in the record suggests that Oliveira would have appeared had the district court waited any longer. Finally, the county presented evidence at the hearing that supports the district court's findings, and the findings address the statutory factors for termination. We conclude, therefore, that the district court's refusal to wait longer for Oliveira to appear at the March 27 hearing did not violate her due-process rights.