I'm copying this sample appellant brief here so that if is is taken off the ND website, we'll still have a copy. (It is a matter of public record, and almost anything on a US government website can be copied legally.)
Interest of B.M. - Appellant Brief
IN THE NORTH DAKOTA SUPREME COURT
JANUARY 31, 2005
IN THE INTEREST OF B.M., DOB: [REDACTED] AGE 7 YEARS; B.J.B., DOB: [REDACTED] AGE 4 YEARS; J.B., DOB [REDACTED] AGE 3 YEARS, CHILDREN
Petitioner and Appellee
D.M., a/k/a D.M.M., D.M.B.,
D.M.H., D.M.L., D.M.S. (Mother);
R.B., a/k/a R.H.B., R.H.B, R.L.F., R.F., D.B., S.B., B.B. and J.B. (Father of B.J.B. and J.B.)
Respondent and Appellant
and H.N. (Father of B.M.), and Grand Forks County Social Service Center, (Custodian),
Supreme Court No. 20040205
Grand Forks Co. No. 000451
APPEAL FROM THE DISTRICT COURT,
GRAND FORKS COUNTY, NORTH DAKOTA
NORTHEAST CENTRAL JUDICIAL DISTRICT
THE HONORABLE KAREN K. BRAATEN, PRESIDING
BRIEF OF RESPONDENT / APPELLANT
ATTORNEY FOR RESPONDENT / APPELLANT
OLSON JOHNSTON LAW OFFICE
405 BRUCE AVENUE, SUITE 100A
GRAND FORKS, N.D. 58201
(ND ID #5763)
TABLE OF CONTENTS
TABLE OF AUTHORITIES..ii
STATEMENT OF THE ISSUESiv
STATEMENT OF THE CASE..¶1
STATEMENT OF THE FACTS¶4
I. Whether the District Court erred in denying R.B.'s
Motion for new appointed counsel....¶12
II. Whether there was clear and convincing evidence
that deprivation would continue and there would
be substantial harm to the children if termination
were not ordered..¶17
III. Whether R.B. was denied due process.¶21
TABLE OF AUTHORITIES
In Re T.K., 2001 ND 127, 630 N.W.2d 38..¶19
Interest of D.N., D.N., and C.N., 2001 ND 71, 624 N.W.2d 686¶18, ¶20
Interest of E.R., 2004 ND 202, 688 N.W.2d 384.¶18
Interest of T.F. and T.F., 2004 ND 126, 681 N.W.2d 786...¶19, ¶20
Interest of T.J.L., 2004 ND 142, 682 N.W.2d 735..¶11
Matter of the Adoption of J.M.H., 1997 ND 99, 564 N.W.2d 623..¶14
Matter of the Adoption of J.S.P.L., J.J.L., and J.W.L.,
532 N.W.2d 635 (N.D. 1995)¶21, ¶24
Matter of the Adoption of K.A.S., 499 N.W.2d 558 (N.D. 1993)....¶13
Matter of the Adoption of S.R.F., 2004 ND 150, 683 N.W.2d 913..¶11, ¶17
Price v. Johnston, 334 U.S. 266 (1948)....¶24
Santosky II v. Kramer, 455 U.S. 745, 102 S.Ct. 1388..¶21
State v. Dvorak, 2000 ND 6, 604 N.W.2d 445..¶16
State v. Manning, 134 N.W.2d 91 (N.D. 1965)¶14
State v. Ochoa, 2004 ND 43, 675 N.W.2d 161..¶14, ¶16
Stone v. Morris, 546 F.2d 730 (7th Cir. 1976)¶21
N.D.C.C. § 27-02-05.1¶12
N.D.C.C. § 27-20-44 (1) (b) (1)..¶17, ¶20
N.D.C.C. § 27-20-02 (8)..¶18
N.D.R.Civ.P. 52 (a)...¶11, ¶25
N.D. State Constitution, Art. VI, §§ 2-3.¶12
STATEMENT OF THE ISSUES
I. Whether the district court erred in denying R.B's Motion for new appointed counsel.
II. Whether there was clear and convincing evidence that deprivation would continue and there would be substantial harm to the children if termination were not ordered.
III. Whether R.B. was denied due process.
STATEMENT OF THE CASE
[¶1]This is an appeal from a judgment of the District Court in Grand Forks County terminating the parental rights of R.B., D.M., and H.N. (D.96, A.7)A petition was filed on September 11, 2003 for involuntary termination of parental rights. (D.2, A.10) A hearing was scheduled for January 28, 2004, but was continued until April 7, 2004 by joint motion of the parties. (D.26, A.20) Prior to the hearing on April 7, 2004, the Respondent R.B. submitted to the court a Motion to Stay the Proceedings written without the assistance of counsel. (D.40, A.24) The Motion was dismissed by Judge Braaten for failure of service. (D.40, A.28) The hearing was held on April 7, 2004 in the Grand Forks District Court with the Honorable Judge Karen Braaten presiding. At the beginning of the hearing, Respondent R.B. made a Motion for Continuance so that he may be appointed new counsel. (T-1, p. 9) The Motion was denied on the record. (T-1, p. 9) At that time, the Respondent R.B. stated that he did not wish to be represented by his appointed counsel, and cited his reasons for continuing pro se as not being able to effectively communicate with his appointed counsel, being unable to have access to his file, his belief that his counsel had no effective case to present on his behalf, and had been given no knowledge as to the State's case against him. (T-1, p. 12) The Respondent was asked if he was certain that he wanted to proceed pro se, being advised that he would be held to the same standards as an attorney in that capacity, at which time he repeated his request for new counsel and a continuance until he had the opportunity to have access to his file. (T-1, p. 17) Judge Braaten informed R.B. that he would not be able to continue the proceedings (T-1, p. 17) and granted R.B.'s request to go forward pro se. (T-1, p. 19) R.B. was present at the hearing via telephone from the New Hampshire State Prison.
[¶2]The termination proceedings went forward on April 7, 2004, and the second day of the hearing was held on April 28, 2004 at the conclusion of the permanency plan hearing on the same day. R.B. was represented by appointed counsel for the permanency plan hearing where he conceded that the children needed to remain in the custody of Grand Forks County Social Services. (T-2, p.39) R.B. concluded the second day of the termination hearing pro se. In the interim, R.B. filed another Motion to Stay Proceedings, pro se, on April 23, 2004. (D.51, A.30) R.B. was permitted an opportunity to be heard on that motion prior to the second day of the termination hearing. (T-2, p. 55-58) The Motion was denied for timeliness, procedural grounds, and merit. (T-2, p. 58-61)
[¶3]An order and judgment terminating the parental rights of R.B., D.M., and H.N. were entered on May 27, 2004. (D.95, A.35) R.B. filed a Motion to Reconsider, Set Aside, or Vacate the Order Terminating Parental Rights (D.99, A.47) along with a Motion for Appointed Counsel on June 7, 2004. (D.100, A.50) Both motions were denied and dismissed on June 30, 2004. (D.106, A.53 and D.107, A.56) On July 12, 2004, R.B. filed a Motion to Compel the District Court to order R.B.'s previous appointed counsel to send him his file and all discovery, as well as Motions for extension of filing time for appeal and a temporary injunction of the order terminating his rights. (D.108, A.58, D.109, A.61, D.110, A.63) Notice of Appeal was filed on July 23, 2004. (D.124, A.66) Appointed counsel for this appeal was ordered by Judge Braaten on November 30, 2004. (A.67)
STATEMENT OF THE FACTS
¶R.B. is the biological father of B.J.B., age 4, and J.B., age 3. He is married to D.M. D.M. is the biological mother of B.M., age 8, B.J.B., and J.B. (T-1, p.5) Respondent H.N. is the biological father of B.M. (T-1, p.5) At the present time, R.B. is incarcerated in the New Hampshire State Prison in Concord, NH. (T-1, p.28) D.M.'s whereabouts are unknown at this time.
[¶5]On May 11, 2002, D.M. dropped her children off at the home of an unlicensed daycare provider, whose last name she did not know, for the purpose of temporary childcare. (T-1, p.86) When D.M. failed to return to collect her children by May 14, 2002, Grand Forks County Social Services was called regarding possible abuse or neglect. (T-1, p.86) The children were then taken into emergency foster care on May 14, 2002. (T-1, p.87) At this time, R.B. was incarcerated in the Grand Forks County Correctional Center. (T-1, p.86) A Shelter Care hearing was held on May 15, 2002, where it was determined that the children were deprived and were then placed in the care, custody, and control of Grand Forks County Social Services. (D.95, A.35) An additional hearing on July 1, 2002, placed the children in the care, custody, and control of the Grand Forks County Social Services for a period of 12 months, to be commenced on May 14, 2002. Two additional permanency hearings were conducted on April 30, 2003, and April 28, 2004, respectively, both ordering Grand Forks County Social Services continued care, custody, and control of the minor children.
[¶6]Between May, 2002, and September 27, 2002, D.M. cooperated fully with Grand Forks County Social Services and was given regular visitation with the children. (T-2, p.113-116) She complied with the programs that were recommended for her, and at that time, Social Services set forth a concurrent goal of reunification and termination of parental rights with adoption. (T-2, p.117) On September 27, 2002, D.M. disappeared and had no further contact with either Social Services or her children until July 1, 2003, when she sent a letter to the children via Social Services. She also sent Christmas gifts and a card in December, 2003. Social Services was finally able to locate D.M. on January 13, 2004, where she was in the custody of the Otter Tail County Correctional Center. (D.95, A.35)
[¶7]R.B. has been incarcerated, initially in the Grand Forks County Correctional Center for simple assault, and later in the New Hampshire State Prison after being extradited, since May, 2002. In May, 2002, R.B. requested visitation with his children after they were placed into foster care, however it was determined that the children's ages, in conjunction with domestic violence issues, were relevant factors in denying his request. Since the time that the children were placed in foster care, R.B. has written letters and sent pictures and cards to his children on a nearly-weekly basis. R.B. was also given a set of recommendations for services to be completed per Social Services initial concurrent goal of reunification. R.B. completed programs in anger management, substance abuse, a 12-week "Long Distance Dads" program, and an "Alternatives to Violence" workshop while in the New Hampshire State Prison.
[¶8]The District Court found that at the time the children were abandoned by D.M., there were issues of domestic violence between R.B. and D.M., and a mark near B.M.'s eye was attributed to R.B. allegedly snapping a towel in her face. The court also found that both R.B. and D.M. have had previous incarcerations and criminal histories. D.M. was facing two felony charges for theft of property in Grand Forks County at the completion of her sentence in Otter Tail County in May, 2004. R.B. remains incarcerated in New Hampshire for two counts of burglary, bail jumping, attempted theft, and criminal mischief. His minimum release date is on or about November 5, 2006 and his maximum release date is May 5, 2011.
[¶9]Termination proceedings commenced on April 7, 2004. (D.49) At that time, R.B. made an oral motion for a continuance and new counsel. (T-1, p.9) Both motions were denied, and R.B. proceeded pro se by telephone from the New Hampshire State Prison. A second day of termination proceedings were held on April 28, 2004 immediately following a permanency hearing in the same matter. R.B. was represented by counsel at the permanency hearing, but continued pro se for the second day of the termination proceeding.
[¶10]During trial, H.N., the biological father of B.M. appeared by telephone and stated on the record that he was voluntarily terminating his parental rights to B.M. (T-1, p.168) D.M. also appeared by telephone from the Otter Tail County Correctional Center, but was represented by counsel who was present for the proceedings. (T-1, p.6) D.M. was unable to offer any evidence to support why her parental rights should not be terminated. (T-2, p.160) R.B., however, testified on his own behalf that he was doing all he was able to do to meet his obligations and argued in his closing why his rights should not be terminated. (T-2, p.161-164)
[¶11]The North Dakota Supreme Court will review findings of fact in juvenile matters under a clearly erroneous standard. In the Interest of T.J.L., 2004 ND 142, ¶18, 682 N.W.2d 735. Rule 52 (a) of the North Dakota Rules of Civil Procedure was amended, and effective March 1, 2004, findings of fact in juvenile matters will not be set aside unless clearly erroneous. Id. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made." In the Matter of the Adoption of S.R.F., 2004 ND 150 ¶ 8, 683 N.W.2d 913.
I. Whether the District Court erred in denying R.B.'s Motion for new appointed counsel?
[¶12]North Dakota Supreme Court Administrative Rule 18 states:
Under Sections 2 and 3 of Article VI, North Dakota Constitution, and the administrative
responsibility provided in Section 27-02-05.1, N.D.C.C., the policy of the North Dakota Judicial System is to provide for criminal defense, mental health, juvenile, and
guardian ad litem counsel services for indigent persons, as provided by law.
[¶13]In North Dakota, a parent who is indigent and named as a respondent in the termination of his parental rights has a state constitutional equal protection right to court-appointed counsel. Matter of Adoption of K.A.S., 499 N.W.2d 558, 563 (N.D. 1993). In the present case, an order was entered on October 17, 2003, appointing counsel to R.B. Over the course of the attorney-client relationship, it has been alleged that his former counsel had a block on her phone that prevented R.B. from contacting her. As the termination hearing loomed closer, R.B. had a number of concerns he wished to discuss with his attorney, but was foreclosed from doing so by an inability to contact her by phone, and he alleges his letters went unanswered. At some point prior to the hearing, he requested that his file and discovery be sent to him. This was never done. "A lawyer shall make reasonable efforts to keep a client reasonably informed about the status of the matter. A lawyer shall promptly comply with a client's reasonable requests for information." N.D.R.Prof. Conduct 1.4. While R.B. is not specifically arguing an ineffective assistance of counsel issue, as he represented himself at the termination hearings, it must be noted that but for the conduct of his attorney leading up to trial, his decision to dismiss her would have been different.
[¶14]A waiver of appointed counsel must be "knowing, intelligent, voluntary, and unequivocal." State v. Ochoa, 2004 ND 43, ¶ 16, 675 N.W.2d 161. Whether there has been a knowing, intelligent, voluntary, and unequivocal waiver of this right is dependent on the circumstances of each case, which include "the background, the experience, and the conduct of the accused." Id. (citing State v. Manning, 134 N.W.2d 91, 97 (N.D. 1965). While Ochoa is a criminal case, the section speaking to waiver of counsel is applicable in this case. Indigent parents are given the right to appointed counsel in termination proceedings. In the Matter of The Adoption of J.M.H., 1997 ND 99 ¶ 21, 564 N.W.2d 623.
[¶15]R.B. felt that because there had been no meaningful communication with his attorney in the months leading up to the hearing, he was unable to effectively give her free reign with his defense without knowing what that defense would be. Prior to his request to proceed pro se, R.B. made a motion for new counsel. His request for new appointed counsel was denied. (T-1, p. 9) The initial denial on the record cited procedural inadequacies in the motion. Rule 7 of the North Dakota Rules of Civil Procedure states that "an application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing" [emphasis added] R.B. asked again for new attorney after it was explained to him what proceeding on his own would entail. (T-1, p. 17)
[¶16] In determining R.B.'s waiver of counsel, it is also prudent to note his request for counsel at the permanency hearing, which was continued as a result of his lack of counsel. (T-1, p. 27) Courts should consider all reasonable presumptions against waiver. State v. Ochoa, 2004 ND 43, ¶ 18, 675 N.W.2d 161. R.B.'s request for new appointed counsel, not once, but twice, in conjunction with his desire for and appointment of counsel for the permanency proceeding and appeal establish a presumption against unequivocal waiver. Assertion of one right requires the waiver of another. Id. at ¶ 23 (citing State v. Dvorak, 2000 ND 6 ¶ 11, 604 N.W.2d 445).
II. Whether there was clear and convincing evidence that deprivation would continue and there would be substantial harm to the children if termination were not ordered?
[¶17]A party seeking the termination of parental rights must prove the
elements necessary to support that termination by clear and convincing evidence. In the Matter of the Adoption of S.R.F., 2004 ND 150 ¶ 7, 683 N.W.2d 913. North Dakota Century Code § 27-20-44 sets forth the conditions under which parental rights may be terminated. More specifically, § 27-20-44 (1) (b) (1) provides a three part test for the elements that must be proven by clear and convincing evidence. (1) is the child a deprived child; (2) are the conditions and causes of the deprivation likely to continue; and (3) is the child suffering, or will in the future, probably suffer serious physical, mental, moral, and emotional harm. In the Interest of D.N, D.N., and C.N., 2001 ND 71 ¶ 2, 624 N.W.2d 686.
[¶18]North Dakota Century Code § 27-20-02 (8) defines a deprived child as one who "[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary" In the Interest of E.R., 2004 ND 202, ¶ 6, 688 N.W.2d 384. At the present time, R.B. is incarcerated and is unable to provide a home for the children. As a result of his incarceration, he conceded at the permanency proceedings that his children were in need of care. (T-2, p. 36) R.B. asserts, however, that he did not abandon his children. The children were left with a daycare provider by their mother, D.M., and after she failed to retrieve them for three days, the children were then transferred to the custody of Grand Forks County Social Services.
[¶19]There must also be clear and convincing evidence that if deprivation is found, that it would continue. "Evidence of past deprivation alone is not enough, and there must be prognostic evidence that forms the basis for reasonable prediction of continued or future deprivation." Id. at ¶ 8 (citing In re T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38. R.B. remains incarcerated, however this Court has stated that incarceration standing alone is not enough to establish abandonment for purposes of terminating parental rights. In the Interest of T.F. and T.F., 2004 ND 126 ¶ 12, 681 N.W.2d 786. The Court went on to say that serious mental and emotional harm may be established by prognostic evidence that the incarceration and inability to care for the children will continue on for such a length of time to make it improbable for reunification with a parent. Id. Since his incarceration in May, 2002, until May, 2004 when the Order for Termination was entered, R.B. maintained continuous contact with B.M., B.J.B., and J.B. through letters, cards, and pictures. R.B.'s minimum release date from the New Hampshire State Prison is on or about November 5, 2006. (T-2, p. 73) According to the testimony of Cindy Crompton of the New Hampshire Department of Corrections, R.B. has already become a candidate for his lesser consecutive sentences. R.B. argues that his incarceration is not indefinite and is and has proven to be willing to work closely with social service agency for assistance in re-assimilation with his children.
[¶20]The third prong of N.D.C.C. § 27-20-44 (1) (b) (1) is whether the child is suffering, or will in the future, probably suffer serious physical, mental, moral, or emotional harm. In the Interest of D.N., 2001 ND 71, ¶ 2, 624 N.W.2d 686. R.B. has conceded that his children require the services afforded to them by Grand Forks County Social Services as a result of his incarceration. However, he argues that by keeping lines of communication open between himself and his children, his cooperation with both social services and department of corrections requirements for self-help programs, and his willingness to reunite with his children are relevant, and as a result of his actions, that the Petitioner's burden of clear and convincing evidence has not been met. While it is impossible to know what may occur in the future, one must necessarily reflect on the past conduct of the parties. In the Interest of T.F. and T.F., 2004 ND 126 ¶ 19, 681 N.W.2d 786. What must be considered in hindsight is that the abandonment was willfully done by D.M. It is arguable that incarceration is a voluntary situation, however the more grievous abandonment was the action of D.M. Unlike the Respondent in T.F., R.B. has fully complied with all of the requirements of Grand Forks County Social Services, and has reported to them on a nearly weekly basis with his progress. That cooperation with social services was a pertinent issue in T.F. (¶ 19) R.B. argues that it should also be pertinent in the present case.
III. Whether R.B. was denied due process in the termination proceedings.
[¶21]Parents facing termination of their rights and liberty interests in the care,
custody, and management of their children must be afforded fundamentally fair procedures. Santosky II v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). That care and management does not evaporate because they have failed to be model parents or have lost temporary custody of their children. Id. This Court stated in The Matter of the Adoption of J.S.P.L., J.J.L., and J.W.L, 532 N.W.2d 653 (N.D. 1995) that although incarcerated respondents do have diminished constitutional protections, they maintain a due process right to reasonable access to courts. Id. at 657. There is no absolute constitutional right to personal appearance in court to defend parental termination when the incarcerated parent has been permitted through either counsel or deposition. Id. at 658. However, the trial court maintains discretion in determining when to allow a personal appearance after weighing several factors. Id. The North Dakota Supreme Court notes the factors set forth in Stone v. Morris, 546 F.2d 730, 735-736 (7th Cir. 1976). Those factors include cost and convenience of transporting a prisoner, danger and security risks, substantiality of the matter at issue, need for early determination of the matter, possibility of delaying trial until prisoner is released from incarceration, probability of success on the merits, integrity of the correctional system, and interests of the prisoner in presenting testimony in person. J.S.P.L. at 658.
[¶22]In the present case, R.B. was put in a position of having to defend himself without discovery, files, witness lists, or exhibits for the first day of the termination hearing. Petitioner Rivard did forward the exhibits, witnesses, and discovery that would be used the second day, however R.B. was ill prepared to present any sort of defense for himself for the first half of the proceedings. Despite letters and requests to the court to order his case file sent to him from his former attorney, he was denied that information, and was therefore unable to present any witnesses in his defense with the exception of himself.
[¶23]R.B. was also unable to view exhibits presented during the first day of the proceedings. He was told what they were, but had no opportunity to examine them personally. R.B. also argues that he was foreclosed an opportunity to cross-examine witness face-to-face, as well as testify before the court in person so that his credibility and demeanor may determined by the trier of fact.
[¶24]J.S.P.L. quotes Price v. Johnston, 334 U.S. 266, 284-285 (1948) in the considerations the court must look at in deciding whether to allow a prisoner personal appearance. The best interests of both the government and the prisoner must be considered. The request must reflect something more than a mere desire to be freed temporarily. Id. The Price Court also proffered the caveat that this is not license to throw open the prison gates and allow all who desire to argue. Id. In the present case, that is not the situation. R.B. did not terminate his appointed counsel as a delay tactic. He expressly requested new counsel on the grounds that there had been a communication breakdown between himself and counsel. His actions with regard to his children, and his obvious stake in the proceedings counter any attempted manipulation of the system. R.B. requested an either/or situation: new counsel or personal appearance. He argues that his termination of counsel was legitimate, and shouldn't bar him from his due process rights.
[¶25]Th e N.D.R.Civ.P. 52 (a) amendment requires this Court review this appeal under a clearly erroneous standard. The Appellant requests this Court consider all aspects of that review, including erroneous view of the law, whether sufficient evidence exists to support the finding, and if on review of the record as a whole, there is a firm conviction that a mistake has been made. Appellant requests the Court find that denial of new appointment of counsel, findings of clear and convincing evidence of continued deprivation and future harm, and the denial of due process was clearly erroneous.
Dated this 31st day of January, 2005.
DEWAYNE JOHNSTON (ND ID 5763)
OLSON JOHNSTON LAW OFFICE
405 Bruce Avenue, Suite 100A
Grand Forks, ND 58201
Attorney for Respondent/Appellant
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