Justia Family Law Opinion Summaries

L.D., father of A.D., appeals a juvenile court order granting a guardianship for A.D. The father argued the court erred by finding A.D. to be a deprived child and failing to address the best interest factors and make an exceptional circumstances finding. A.D.’s aunt and uncle petitioned the juvenile court for a guardianship under N.D.C.C. ch. 27-20.1, alleging A.D. was a deprived child. The juvenile court found by clear and convincing evidence that the father had not provided care for or had any contact with A.D. since 2007 or 2008, and did not make any significant attempts to locate A.D. or have A.D. placed in his care. The court found that although the mother testified she attempted to hide A.D. from the father due to “what the father did to her [the mother],” the father has been aware of A.D.’s whereabouts since at least late 2019. In 2019, the father attempted to speak with A.D. on the telephone, but A.D. refused. The court found the father made no further attempt to contact A.D. The court found the father had abandoned A.D. The father claimed the juvenile court did not address the best interest factors under N.D.C.C. 14-09-06.2. However, the North Dakota Supreme Court was "able to discern how the court’s findings apply to the statutory best interest factors. The court was not required to specifically identify and discuss each best interest factor. The court made sufficient findings to conclude that the guardianship was in the best interest of A.D." Further, the Court found an exceptional circumstances finding was required when both a parent and non-parent are suitable candidates. When the child was deprived by the parents, no finding of exceptional circumstances was required to be made by the court to grant a guardianship. The finding of deprivation eliminates the need for a finding of exceptional circumstances. Accordingly, because A.D. was a deprived child, the juvenile court was not required to make a finding of exceptional circumstances in order to grant the guardianship. The Supreme Court therefore affirmed the juvenile court's order. View "Interest of A.D." on Justia Law

J.H. appealed a trial court's order and findings of fact denying his petition to remove T.F. as guardian of M.H., appoint himself as guardian, and remove contact restrictions T.F. placed on his contact with M.H. On appeal, J.H. argued the trial court abused its discretion in denying his motion to remove T.F. as guardian and refusing to remove restrictions T.F. placed on his contact with M.H, arguing the finding that he was unable to civilly structure his contact with M.H. was clearly erroneous. Because the district court did not abuse its discretion in ordering T.F. remain M.H.’s guardian and its findings of fact are not clearly erroneous, the North Dakota Supreme Court affirmed. View "Guardianship of M.H." on Justia Law

A.S. appealed a juvenile court's judgment and order terminating her parental rights to her child, A.S.F. A.S. was appointed counsel when the State petitioned for involuntary termination of her parental rights. The trial court allowed A.S.’s counsel to withdraw after A.S. expressed dissatisfaction with her counsel. The termination hearing was continued and new counsel was appointed. One day before the rescheduled hearing, A.S.’s second counsel moved to withdraw. The judge heard the motion at the termination hearing. There, counsel stated a material breakdown in the attorney-client relationship had occurred. The court granted counsel’s motion on the basis of the treatment A.S. showed to her counsel and the unwillingness of A.S. to work with any attorney the court appointed. The judge found A.S.’s actions to be a voluntary waiver of her right to counsel. Counsel was allowed to leave the courtroom. The hearing proceeded with A.S. without counsel. The juvenile court entered an order terminating parental rights on June 10, 2021. A.S. appealed to the North Dakota Supreme Court 61 days after the initial June 10 order terminating her parental rights was entered. A.S. argues her right to counsel was violated after the court granted her second attorney’s motion to withdraw, leaving A.S. to represent herself at the termination hearing and without advice regarding the process and deadline for appeal. The Supreme Court determined it lacked jurisdiction even to consider a claim that a party failed to timely appeal as a result of a denial of the party’s right to counsel. "We are without jurisdiction to hear A.S.’s waiver of her right to counsel argument because her appeal was untimely." View "Interest of A.S.F." on Justia Law

Nicole Kunz (formerly, Slappy) appealed a third amended judgment modifying her primary residential responsibility for the parties’ minor child, M.S., and granting Jermece Slappy equal residential responsibility. Kunz argued the district court erred in finding a material change in circumstances, erred in modifying the existing residential responsibility in the absence of a general decline in the child’s condition, and erred in its analysis of the best interest factors. Slappy cross-appealed, arguing the district court improperly calculated his child support obligation. After review, the North Dakota Supreme Court determined the district court erred in modifying the existing residential responsibility without evidence of a general decline in the condition of the child. Therefore, the third amended judgment was reversed. In light of the Court’s decision with respect to the third amended judgment, the Court found it unnecessary to resolve the remaining issues raised by the parties on appeal. View "Slappy v. Slappy" on Justia Law

Tonya Kerzmann appealed a district court’s denial of her request for an evidentiary hearing on her motion for a change in primary residential responsibility. After review, the North Dakota Supreme Court concluded Kerzmann pled a prima facie case supporting her motion for modification of primary residential responsibility. Therefore, the Court reversed the district court’s order and remanded for further proceedings. View "Kerzmann v. Kerzmann" on Justia Law

J.B. appealed a juvenile court order terminating her parental rights to her two children. She argued there was not evidence beyond a reasonable doubt to support the court’s determination under the Indian Child Welfare Act (ICWA) that continued custody by J.B. was likely to result in serious emotional or physical damage to the children. Retaining jurisdiction under N.D.R.App.P. 35(a)(3), the North Dakota Supreme Court remanded to the juvenile court for detailed findings under ICWA, allowing for additional testimony from the qualified expert witness if necessary to make the required findings. After receiving additional testimony, the district court made additional findings, denied the petition to terminate J.B.’s parental rights, and ordered the children be removed from J.B.’s custody for nine months. No party requested additional briefing or argument following the order on remand. Finding no reversible error, the Supreme Court affirmed the juvenile court order. View "Interest of K.B." on Justia Law

Tyson Lerfald appealed a district court order denying his motion to modify his child support obligation and the parenting time provisions of the amended judgment. Lerfald argued the district court erred by denying his motion to modify the parenting time provisions, contending the parenting time provisions required him to maintain a valid driver’s license and be solely responsible for parenting time transportation, which caused his parenting time to be contingent on having a valid driver’s license. The North Dakota Supreme Court affirmed, concluding the court’s finding that Lerfald failed to establish a material change in circumstances was not clearly erroneous, and the court did not err in denying Lerfald’s motion. View "Lerfald v. Lerfald" on Justia Law

Rebecca Benjamin appealed an order denying her motions for interim relief and to modify primary residential responsibility. The North Dakota Supreme Court affirmed, concluding the district court did not err in determining Benjamin had not established a prima facie case warranting an evidentiary hearing. View "Klundt v. Benjamin" on Justia Law

In July 2018, Leanne Hoff Bilger sued Joshua Bilger for legal separation. Bilger executed an admission of service, acknowledging he received the summons and complaint, settlement agreement and an exhibit relating to division of property and debts. The parties executed the settlement agreement which stated Bilger was a member of the armed forces. The district court issued an order for judgment, and the clerk of court entered a judgment granting the parties a legal separation. Joshua appealed a district court order denying his motion to dismiss and vacate the judgment for legal separation, arguing the court erred in finding the Servicemembers Civil Relief Act did not apply. The North Dakota Supreme Court concluded the Act applied; however, Bilger failed to invoke the protections of the Act. View "Bilger v. Bilger" on Justia Law

Nicholas Froehlich appealed an amended judgment entered on September 7, 2018, and an interim order entered on August 25, 2020. Because the appeal of the amended judgment was untimely and the interim order was not an appealable order, the North Dakota Supreme Court dismissed the appeal. View "Froehlich v. Froehlich, et al." on Justia Law