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In re Adoption of J.D.F.

February 5, 2009

IN THE MATTER OF THE ADOPTION OF J.D.F., MINOR CHILD
D.D.F. AND C.A.F., PETITIONERS AND APPELLEES
v.
NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, RESPONDENT AND G.V.D., RESPONDENT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Maring, Justice.

REVERSED AND REMANDED.

[¶1] G.V.D. ("Greg")*fn1 appeals from the district court's order terminating his parental rights to J.D.F. ("Jack") and granting the adoption of Jack to Jack's stepfather, D.D.F. ("Doug"). We conclude the district court erred by not informing Greg of his right to court- appointed counsel and by not deciding whether Greg qualified for court- appointed counsel. We reverse the district court's order terminating Greg's parental rights and remand for a new trial. If Greg establishes he is indigent and requests counsel, the district court must appoint counsel to represent him.

I.

[¶2] Jack was born to "Cathy" and Greg on February 11, 1997. Cathy and Greg separated in May 2004, and their divorce was finalized later that year. Since May 2004, Cathy cared for and supported Jack. Cathy married Doug in June 2006. On December 4, 2007, Cathy and Doug petitioned for termination of Greg's parental rights and Doug's stepparent adoption of Jack based on Greg's "failure without justifiable cause to significantly communicate with the child for the past year plus and his failure to provide for the care and support of [Jack]."

[¶3] In a December 27, 2007, letter to the district court, Greg stated he had not been allowed to see Jack since Father's Day, 2005. He alleged he had called Cathy "many times at her home, her job, and her parent[']s house," and he left messages, but never received a call back. Greg stated, "[t]he reason I have not brought [Cathy] into court regarding this matter is purely financial." Greg explained that he had a disorder that precluded him from working and "[b]ecause of this[,] I have no money for an attorney and am not eligible for legal assistance regarding this case."

[¶4] Greg's mother and his sister sent the court letters, stating Greg was a good father, they wished to see Jack, and they had tried to maintain contact with him. Greg's other son, Jack's half-brother, also wrote the court, stating he hoped to see Jack again soon and informed the court he had maintained contact with Jack until Cathy changed her phone number.

[¶5] The district court held a hearing on December 31, 2007. The court asked Greg what his position was on the termination of his parental rights. Greg told the court he was against it, he loved his son, and he had tried to contact Jack "many, many, many times" over the past two and one half years. Greg also told the court he had left messages, sent Jack cards, and sent birthday money. The district court said it was not going to rule on the matter but was going to give Greg "an opportunity to obtain counsel or respond to the petition." Greg inquired if he could see Jack. The court informed Greg, "you may want to consult with an attorney to see what your rights might be," and "you have rights under the divorce decree. If you wish to contact an attorney and investigate those rights. . . ." The court adjourned the hearing.

[¶6] Greg sent a letter to the court on January 21, 2008, stating, "I would like to make a request for a continuous [sic] to give me a little more time to prepare for this case. I am in the process of getting an attorney and a little extra time would really be appreciated." The district court granted the continuance.

[¶7] The court held an evidentiary hearing on April 21, 2008. A different judge presided than at the December 2007 hearing. Cathy testified that Greg initially exercised visitation intermittently in the first year following the divorce and that at the end of each visit, Greg failed to meet her in Fargo, North Dakota, to return Jack. Cathy also testified that she had to provide gas money to Greg for the visits. Cathy testified that when Jack returned from the third visit with his father, he was "very distraught, he was suicidal" and she had to take him to a counselor. Cathy testified that the counselor informed her that Jack should not have any further contact with Greg unless supervised. Cathy also stated that Greg had not had any visitation with Jack since June 2005. Cathy testified that, after the June 2005 visit, Greg told Cathy and Doug over the telephone that he would kill them. Cathy stated she had to secure a restraining order against Greg. Cathy testified that Greg had provided no financial support to Jack since the divorce. Cathy stated Doug sent one birthday card, one letter, and his family members sent a birthday card.

[¶8] During the hearing, Greg attempted to cross-examine Cathy:

The Court: Do you have any questions of the witness?

[Greg]: Well, I guess the question I have, your Honor, is the reason I wasn't able to see [Jack], visit him -

The Court: No, no. You're not making statements at this time. This isn't when you would testify or provide evidence. So, if you have ...


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