This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A16
- 1103 In the Matter of the Welfare of the Children of: C. L. C., D. L. F., III, D. E. L., Jr., Parents. Filed December 5, 2016 Reversed Halbrooks , Judge

Wabasha County District Court File No. 79

- JV

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- 965 Kurt J. Knuesel, Knuesel Law Firm, Winona, Minnesota (for appellant C.L.C.) D.L.F., III, Rochester, Minnesota (pro se respondent) Mark Jarstad, Wabasha, Minnesota (for re spondent D.E.L. , Jr. ) Karrie Kelly, Wabasha County Attorney, Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent Wabasha County) Michelle Frohrip, Rochester, Minnesota (guardian ad litem) Considered and decided by Rodenberg , Presiding Judge; Halbrooks , Judge; and
Kirk , Judge

. U N P U B L I S H E D O P I N I O N HALBROOKS , Judge
F ollowing the district court’s adjudication of her children as children in need of protection or services (CHIPS) , appellant argu es that the district court lacked subject

matter jurisdiction

. We conclude that the district court had subject

- matter juris dict ion , but2

b ecause the district court failed to comply with the requirements of Minn. R. Juv. Prot.
P. 40.02 in adjudicating the children as CHIPS , we reverse . FACTS Appellant C.L.C. is the mother of two children, A.F. and G.L. , whose fathers are respondents D.L.F. and D.E.L

. , respectively. In October 2015, the Wabasha County Department of Social Services (the county) petitioned the district court to adjudicate A.F. and then unborn G.L. as CHIPS. On January 22, 2016, t he day set for trial , the c ounty info rmed the district court that the parties had reach ed an agreement

. The three parents agreed to admit the allegations in the CHIPS petition, on the understanding that the district court would withhold adjudication for 90 days under Minn. R. Juv. Prot. P. 40.02. T he district court outlin ed the agreemen t on the record:

All right, I will accept the factual b ases for the three admissions. I will follow the agreement and agree to a 90

- day withholding of adjudication on condition that the parties cooperate fully with Soci al Services and the case plan. That you meaningfully engage in any mental health or chemical dependency treatment that is recommended for you, and should we be reviewing this roughly halfway through the period of the stay to see h ow things are going? The district court emphasized to the parents that “there’s an awful lot riding on this , ” no ting that if they did well, “the case gets dismissed in 90 days.”
The district court thereafter made written findings that the parents had vali dly admitted the allegations in the petition, specifically that the children were without proper food, clothing, shelter, or education under Minn. Stat. § 260C.007, subd. 6(3) (2014). The district court found that the children were in need of protection o r services on that basis,3

and that the children’s best interests would be served by remaining in the custody of the parents (both children were then living with C.L.C. and D.E.L.) under protective supervision o f the county. The order provides that the adj udication of the children as CHIPS “shall be withheld in accord with rule 40.02 of the Minnesota Rules of Juvenile Protection for a period of 90 days.”
A fter a March 14 review hearing, based on C.L.C. ’ s and D.E.L.’s lack of progress with the ir case plan s a s well as an incident involving two other children in their care , t he district court transferred custody of A.F. to his father, D.L.F., and instructed the county to file a formal motion for emergency protective care (EPC) of G.L. After a hearing , th e district court denied the EPC motion because the county had not s hown material changes supporting out

- of

- home placement at that time

. The stay of adjudication remained in p lace

. The district court next held a review hearing on April 20, 2016, which was 89 days into the 90

- day stay of adjudication. At the hearing, the district court ordered out

- of

- home placement for G.L. b ased on “material, significant issues that have come up with in t he last week or week and a half. ” Significantly, t h e stay o f adjudication was not addressed at th e April 20 review hearing or in t he recommendations filed i n advance of this hearing

. Shortly after the hearing, the c ounty realized that it had overlooked the CHIPS adjudication in its proposed ord er . Later on April 20, the county filed a letter with an amended proposed order calling for revocation of the stay and adjudication of the children
as CHIPS

. The letter stat es that the filing w as served on counsel for parents, bu t C.L.C.’s counsel contends that he was never served

.4

On April 21 , the distric t court signed two orders : a review

- hearing order (filed April 21) and an amended review

- hearing order (filed April 26)

. The review

- hearing order reiterat ed the factual bas e s and statutory groun d s for the district court’s CHIPS finding, d irected out

- of

- home placement for G.L., and continu ed to withhold adjudication under rule 40.02 “and the order handed down at the January 22, 2016 hearing which provided for a 90 day stay

. ” The a mended review

- hearing order was identical in all respects except that it revoked the stay of adjudication , made findings regarding the stay, and adjudicated the children as CHIPS

. The dist rict court held an intermediate disposition hearing on June 1, 2016. At this hearing, C.L.C. ’s counsel a rgued that if the stay expired without a CHIPS adjudication at a hearing , the district court lacked subject

- matter jurisdiction

. Because no one present could recall with certainty whether the 90

- day stay or CHIPS adjudication had been addressed at the April 20 heari ng, t he district court continued the hearing for two we eks so that a transcript could be obtained

. On June 15, the hearing resumed, and the county noted , based on its review of the transcript that , “in no way was the

— the revocation of the stay discussed” at the April 20 hearing. The county argued that the district court nevertheless retained subject

- matter jurisdiction under Minn. Stat. § 260C.201, subd. 12( 2 ) (2014) because the parents had not complied with the terms of their case plan s as required by the Janua ry 22 agreement. In the alternative, t he county noted that it had prepared a new CHIPS petition for the district court’s consideration if the district court conclude d that a new petition was necessary

. The district court took the matter under advisement.5

I n a June 21, 2016 order , the district court determin ed that it “retain[ed] subject matter jurisdiction in this matter pursuant to Minn. Stat. § 260C.201, subd. 12(2) and thus the ability to adjudicate the children [ as CHIPS ]

. ” The order s tates that the CHIPS adjudication had originally been stayed in accord with rule 40.02, but that in its April 21 review

- hearing order , the district court had withheld adjudication going forward under Minn. Stat. § 260C.201, subd. 12 (2014)

. The June 21 order revoked the stay a nd adjudicated the children as CHIPS. C.L.C. now appeals

. D E C I S I O N C.L.C. argues that , under the plain language of Minn. R. Juv. Prot. P. 40.02, the district court erred in determining that it retain ed “subject

- matter jurisdiction over the parties” when the 90

- day stay expired. The existence of subject

- matter jurisdiction presents a question of law, which we review de novo. In re Welfare of Children of
D.M.T.

- R. , 802 N.W.2d 759, 762 (Minn. App. 2011).
S ubject

- matter jurisdiction refers to the cour t’s power “to hear and determine a particular class of actions and the particular questions presented.” McCullough & Sons, Inc. v. City of Vadnais Heights , 883 N.W.2d 580, 584

- 85 (Minn. 2016) (quotation omitted)

. Because , generally, Minnesota district court s ha ve subject

- matter jurisdiction over CHIPS
matters, the district court had subject

- matter jurisdiction over this matter. The specific question before us is whether the district court’s jurisdiction over this matter terminated upon the expiration of the 90

- da y stay. In support of her jurisdiction argument, C.L.C. cites a case that applies Minn. R. Juv. Delinq. P. 15.05, subd. 4(F), a rule that expressly provides for termination of juvenile6

court jurisdiction over a delinquency matter when it has continued w ithout adjudication for 180 days

. See In re Welfar e of M.J.M. , 766 N.W.2d 360 , 36 4

- 65 (Minn. App. 2009) (holding that a district court does not have jurisdiction to revoke a stay of adjudication in a juvenile delinquency matter after expiration of the 180

- da y period allowed by law to continue the stay) , review denied (Minn. Aug. 26, 2009)

. Because Minn. R. Juv. Prot.
P. 40.02 contains no similar termination

- of

- jurisdiction provision, C.L.C.’s argument that the district court here lacked jurisdiction after the 90

- day stay expired is unpersuasive

. We conclude that the district court correctly determined that it retaine d subject

- matter jurisdiction over this CHIPS matter after the 90

- day stay of adjudication expired. But this does not end our inquiry. Under r ule 40.01 , if the district court makes a finding that the statutory grounds set forth in a CHIPS petition are proved, the district court shall either adjudicate the child as CHIPS or withhold adjudication under rule 40.02. Minn. R. Juv. Prot. P. 40.01

. Here, the di strict court found that the children were in need of protection or services based on the parents’ admissions to the allegations in the petition

. After finding that the children were in need of protection or services, t he district court withheld adjudicati on “in accord with rule 40.02 of the Minnesota Rules of Juvenile Protection for a period of 90 days.” See Minn. R. Juv. Prot. P. 40.01. Under rule 40.02, w hen it is in the best interests of the children, a district court may withhold a CHIPS adjudicati on for up to 90 days from the finding that the statutory grounds set forth in the petition have been met

. Minn. R. Juv. Prot. P. 40.02, subd. 1. The rule further provides :7 At a hearing, which shall be held within ninety (90) days following the court’s w ithholding of adjudication, the court shall either : (a) d ismiss the matter without an adjudication if both the child and the child’s legal custodian have complied with the terms of the continuance; or (b) a djudicate the child in need of protection or ser vices if either the child or the child’s legal custodian has not complied with the terms of the continuance.

. . . Minn. R. Juv. Prot. P. 40.02 , subd. 2

. Thus, when the district court withholds adjudication after making a CHIPS finding, it must either di smiss the matter or adjudicate the children as CHIPS at a hearing while the stay is in force. Here, the 90

- day period began on January 22, 2016 and ended on April 21, 2016.
Two review hearings were held during th e 90

- day stay, the first on March 14 and the second on April 20. No argument was made at either hearing that the parents had complied with the terms of the stay by cooperating fully with their case plans and engaging meaningfully in recommended treatment

. Thus, dismissal of the matter under rule 40.02, subd. 2(a) , was not appropriate, and the district court was required by rule 40.02, subd. 2(b), to adjudicate the children as CHIPS at a hearing

. Not only did t he district court not adjudicate the children as CHIPS at th e April 20 hearing, neither the part ies n or the district court even mention ed CHIPS adjudication or the 90

- day stay

. It appears from the transcript that the focus of the hearing was the case

- plan compliance of C.L.C. and D.E.L. and whether out

- o f

- home placement for G.L. was appropriate at that time

. T he adjudication issue appears simply to have been overlooked. The county attempted to correct the oversight later that day by calling it to the district court’s attention with an amended proposed order addressing adjudication. In part8

b ecause it appeared at the next hearing that C.L.C. may not have been properly ser ved with the county’s proposed order and because there was a question of subject

- matter jurisdiction raised , the district court heard arguments on the question of CHIPS adjudication. The district court then filed a new order on June 21, revoking the stay and adjudicating the children as CHIPS

. In the June 21 order, the district court stated that its April 21 order “continued to withhold adjudication pursuant to Minn. Stat. § 260C.201, subd. 12.” But the April 21 order makes no mention of Minn. Stat. § 260C.201, subd. 12

. The April 21 order reiterates the earlier CHIPS finding and states that the adjudication “s hall continue to be withheld in accord with both rule 40.02 . . . and the order handed down at the January 22, 2016 hearing which provided for a 90 day stay.” The 90

- day stay of adjudication that was gran ted on January 22, 2016 expired on April 21, 2016 without a CHIPS adjudication at a hearing

. When a district court withholds adjudication u nder r ule 40.02, the district court must conduct a hearing within 90 days at whi ch it either dismisses the case based on compliance or adjudicates the child ren as CHIPS

. Here, the district court did not adjudicate the children as CHIPS at a hearing within 90 day s of the January 22 stay of adjudication. Because the CHIPS adjudication did not comply with rule 40.02, we reverse . 1
Reversed.

1 C.L.C. also argues that the district court’s amended review

- hearing order filed on Ap ril 26 should be vacated as it was the result of an ex parte communication by the county. Having reversed on other grounds, w e decline to reach this argument.