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Hartleib v. Simes

December 15, 2009

BROCK HARTLEIB, PLAINTIFF, APPELLEE AND CROSS-APPELLANT
v.
ASHLEY SIMES, N/K/A ASHLEY FARRELL, AND SUSAN SIMES, GUARDIAN OF L.S., A MINOR CHILD, DEFENDANTS, APPELLANTS AND CROSS-APPELLEES GUARDIAN AD LITEM FOR L.S., A MINOR CHILD, WAYNE D. GOTER, ATTORNEY AT LAW, DEFENDANT AND APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge.

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

AFFIRMED.

[¶1] Ashley Farrell and Susan Simes appealed from a district court judgment which terminated Simes's guardianship over L.S., ordered that Brock Hartleib have custody of L.S., provided visitation to Farrell and Simes, changed the last name of L.S., and ordered the parties to bear their own costs. Hartleib cross-appealed. We affirm.

I.

[¶2] Farrell and Hartleib are the biological parents of L.S., who was born in 2002. Farrell and Hartleib were never married. After the birth of L.S., "Brock was incarcerated and Ashley was unable to care for [L.S.] for a number of reasons including post-partum depression and lack of appropriate living facilities for an infant." Farrell and Hartleib consented to Simes, Farrell's mother, being appointed as guardian of L.S. Simes also had guardianship over S.S., Farrell's daughter from a previous relationship.

[¶3] Farrell subsequently married and lived with her husband and two children born of that marriage. L.S. and S.S. continued to reside with Simes. After Hartleib was paroled and released from prison in 2005, he lived with his parents and worked in construction.

[¶4] In 2006, Hartleib brought this action requesting termination of the guardianship and seeking custody of L.S. The district court issued an interim order continuing custody of L.S. with Simes while the action was pending, with Hartleib receiving visitation.

[¶5] On the second day of trial in July 2007, the guardian ad litem who had been appointed to represent L.S. in this action filed an application for a protective order seeking an immediate change of interim custody to Hartleib based upon suspicion that L.S. had either been abused or had witnessed sexual abuse by Simes's husband. The district court granted the application for a protective order and temporarily placed custody of L.S. with Hartleib, with visitation for Farrell and Simes.

[¶6] The subsequent criminal investigation did not reveal any evidence of sexual abuse, and the trial was concluded in April 2008. The district court terminated the guardianship and awarded custody of L.S. to Hartleib. The court granted two weekends per month and one weekday per week of visitation to Farrell, with directions that the first weekend of visitation is to be exercised by Farrell and the second weekend may be exercised by Farrell, Farrell and Simes jointly, or Simes alone, in Farrell's discretion. Farrell also received three weeks of summer visitation. Farrell was ordered to pay child support, and each party was ordered to pay his or her own costs and attorney fees. Finally, the court ordered that L.S.'s last name be changed to Hartleib.

II.

[¶7] Farrell and Simes contend that the procedures employed by the district court violated their constitutional right to due process.

A.

[¶8] Farrell and Simes argue that they "were not given an opportunity to be heard on the Protective Orders thereby denying them their due process rights."

[¶9] A brief procedural history is necessary to put this issue in context. On July 25, 2007, the second day of trial, the guardian ad litem filed an application for a protective order seeking an immediate change of interim custody to Hartleib. The basis for the guardian ad litem's action was his suspicion, based upon evidence presented during the first day of trial, that L.S. had been sexually abused by, or had witnessed sexual abuse by, Simes's husband. Simes's husband did not live with her, but regularly provided childcare for L.S. and S.S. The guardian ad litem presented testimony from a prosecutor with extensive experience and training in sexual abuse cases, who substantiated the guardian ad litem's suspicions. Counsel for Farrell and Simes had the opportunity to cross-examine this witness and presented arguments that interim custody should remain with Simes or Farrell. The district court granted the application and placed temporary custody with Hartleib, and the trial was continued until the Bureau of Criminal Investigation could complete an investigation of the allegations of abuse. A few days later, the court amended the protective order to prohibit visitation by Farrell or Simes for two weeks.

[¶10] Simes brought a motion, joined by Farrell, to vacate the protective order and seeking an immediate return of custody to Simes. A hearing on the motion was held on August 9, 2007. On August 21, 2007, the district court issued its order denying the motion to vacate the protective order, but setting a visitation schedule for Farrell and Simes.

[¶11] Following completion of the investigation by the Bureau of Criminal Investigation, which failed to find that L.S. had experienced or witnessed sexual abuse, Simes moved for reconsideration of the court's amended protective order and again sought an immediate return of custody to her. A hearing on the motion for reconsideration was held on November 30, 2007, and the court subsequently entered its order denying Simes's motion. L.S. remained in Hartleib's temporary custody until completion of the trial in April 2008, when the guardianship was terminated.

[¶12] We have summarized the essential requirements of procedural due process:

"Generally, `[p]rocedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.'"

In re D.C.S.H.C., 2007 ND 102, ¶ 8, 733 N.W.2d 902 (quoting St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175); see also In re G.R.H., 2006 ND 56, ¶ 24, 711 N.W.2d 587; Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138; Walbert v. Walbert, 1997 ND 164, ¶ 9, 567 N.W.2d 829; In re Adoption of J.W.M., 532 N.W.2d 372, 377 (N.D. 1995), overruled on other grounds by In re Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913. The specific requirements of due process "are flexible and vary depending upon the circumstances of each case." St. Claire, at ¶ 7. As we explained in J.W.M., at 376-77 (quoting Jensen v. Satran, 332 N.W.2d 222, 227 (N.D. 1983)):

However, the very nature of procedural due process "negates the concept of inflexible procedures universally applicable to every imaginable situation; instead, the requirements imposed by [due process] are flexible and variable and dependent upon the particular situation being examined."

[¶13] Farrell and Simes contend they "were not given an opportunity to be heard on the Protective Orders." The record reveals, however, that they had three separate opportunities to be heard. On July 25, 2007, the court heard evidence and arguments from the parties, and Farrell and Simes had the opportunity to cross-examine the guardian ad litem's witness, before the court issued the protective order. A second hearing was held on Simes's motion to vacate the protective order, and a third hearing was held on Simes's motion for reconsideration. Under the circumstances presented in this case, the procedures employed by the district court did not deprive Farrell and Simes of their right to procedural due process.

B.

[¶14] Farrell and Simes contend they were not given as much time as Hartleib to present their case and were not able to call all of their witnesses. They allege they were thereby denied their constitutional right to procedural due process.

[¶15] The district court has broad discretion over the presentation of evidence and the conduct of a trial or hearing. E.g., Niemann v. Niemann, 2008 ND 54, ¶ 19, 746 N.W.2d 3; Burns v. Burns, 2007 ND 134, ¶ 7, 737 N.W.2d 243; Manning v. Manning, 2006 ND 67, ¶ 30, 711 N.W.2d 149; Gullickson, 2004 ND 76, ¶ 15, 678 N.W.2d 138. In exercising that discretion, the court may impose reasonable restrictions upon the length of the trial or hearing and upon the number of witnesses allowed. Manning, at ¶ 30; Thompson v. Olson, 2006 ND 54, ¶ 6, 711 N.W.2d 226. A district court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner, if its decision is not the product of a rational mental process by which the facts of record and law relied upon are stated and considered together for the purpose of reaching a reasonable determination, or if it misinterprets or misapplies the law. E.g., Niemann, at ¶ 19; Burns, at ¶ 7. Within the context of a due process challenge, "[a] court abuses its discretion only when the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues." Thompson, at ¶ 6.

[¶16] Farrell and Simes make a blanket, unsupported assertion that Hartleib was given more time to present his witnesses than were they. They do not explain which additional witnesses they would have called or what those witnesses would have added to their case, nor did they make an offer of proof at trial. Without a sufficient offer of proof, we are unable to review whether a failure to allow presentation of evidence was prejudicial. See Thompson, 2006 ND 54, ¶ 7, 711 N.W.2d 226. We further note that the court heard more than four-and-one-half days of testimony in what was essentially a single-issue case. Based upon the record before us, we conclude the district court afforded the parties a meaningful and reasonable opportunity to present evidence on the relevant issues and did not abuse its discretion in conducting the trial. Farrell and Simes therefore were not denied due process.

III.

[¶17] Farrell and Simes contend the district court erred in terminating the guardianship and in awarding custody of L.S. to Hartleib.

[¶18] Under N.D.C.C. § 30.1-27-12(1), "[a]ny person interested in the welfare of a ward . . . may petition for removal of a guardian on the ground that removal would be in the best interest of the ward." We have identified the applicable procedural framework and burdens of proof when a parent seeks to terminate a guardianship and regain custody of his or her child:

As we previously noted, the natural parent must initially prove, by a preponderance of the evidence, that the impediments leading to the creation of the guardianship have been removed. A non-parent seeking custody then has the burden of rebutting the presumption that it is in the best interests of the child to be in the custody of the parent. The presumption can be overcome when there exist "exceptional circumstances." We recognize today as a matter of law that a voluntarily established guardianship constitutes "exceptional circumstances." This conclusion triggers a best interest of the child analysis as required by our guardianship of minors' law. The burden of proof is then on the non-parent to establish it is in the best interest of the child that the guardianship continue. We conclude the evidentiary burden placed on the non-parent, is a preponderance of the evidence, because there is no persuasive reason to use a clear and convincing evidentiary standard. This evidentiary burden of proof applies in all terminations of a guardianship of a minor. In determining the best interest of the child, the trial court must weigh the benefits of stability of the child's relationship with the guardian and the benefits of the child's relationship with the natural parent. This analysis is supported by our statutes and prior case law.

In re Guardianship of Barros, 2005 ND 122, ¶ 19, 701 N.W.2d 402.

[¶19] Under this process, the district court must first determine whether the impediments leading to the creation of the guardianship have been removed. Id. at ¶¶ 8, 19. In this case, the impediments leading to creation of the guardianship were Farrell's mental health and inability to parent the child, and Hartleib's incarceration. The district court determined those impediments have been removed. The record shows that Farrell's mental health issues have improved and that, with her husband, she now provides care for her two youngest children. Hartleib completed numerous rehabilitation programs while incarcerated and was released from prison in 2005. Evidence was presented showing he provided appropriate care and demonstrated ample parenting skills while L.S. was in his custody from ...


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