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In re N.C. M.

Supreme Court of North Dakota

July 18, 2013

In the Interest of N.C. M., D.C.M., and J.J.M. Micah Green, the parent and natural guardian of N.C. M., D.C.M., and J.J.M. and the Grand Forks County Social Service Board, Assignee for Micah O. Green, Plaintiffs
v.
Micah Green, the parent and natural guardian of N.C. M., D.C.M., and J.J.M., Appellant
v.
Christopher Morrissey, Defendant and Appellee and State of North Dakota, Department of Human Services, statutory real party in interest, Respondent

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.

DeWayne A. Johnston, for plaintiff and appellant.

Sara R. Behrens, for defendant and appellee.

OPINION

Maring, Justice.

[¶ 1] Micah Green appeals from a fourth amended judgment and from an order denying her post-judgment motions to amend the trial court's findings, to make additional findings, for a new trial, and for a stay of the judgment. We conclude the trial court did not clearly err in awarding primary residential responsibility of the parties' minor children to the father, Christopher Morrissey; that the court did not misapply the law in admitting certain evidence; and that the court did not clearly err in its award of parenting time to Green. We affirm.

I

[¶ 2] Green and Morrissey are the parents of D.C.M. and N.C. M., both born in 2006, and J.J.M., born in 2007. Although Green and Morrissey were living together when their children were born, they were never married to each other and separated in about May 2008. In December 2008, the trial court entered a third amended judgment awarding Green primary residential responsibility for the parties' three children and setting a parenting time schedule, giving Morrissey parenting time every other weekend and providing an alternating holiday schedule. The judgment also provided that when a parent was unable to care for the children for more than two nights, the parent was to allow the other parent to care for the children before contacting a third party. In January 2010, Green had another child, P.K., with her fiancé Ron Kaiser with whom she was then living.

[¶ 3] Since the entry of the third amended judgment, Green had been investigated by Grand Forks County Social Services on three occasions and three Child Protection Service Assessment Reports were generated. The first assessment report was generated after suspected child abuse/neglect was reported in January 2009. Although no services were required, the social services team recommended "services based upon risk for psychological maltreatment would be beneficial to Micah and the children, " due to Green's drug use and recent incarceration. During her incarceration in January 2009, Green did not allow Morrissey the opportunity to care for the children, but rather her father and her fiancé watched the children.

[¶ 4] A second assessment report was generated after a report was made to social services on January 27, 2010, that Kaiser had injured N.C. M. Although services again were not required, Social Services recommended services as the "use of illegal drugs and failure to consistently address her mental health put the children at risk of psychological maltreatment." The third assessment report was generated after it was reported on June 7, 2010, that Green had been using drugs, was overwhelmed with her life, and threatened to hurt one of the children. Services were required at this point based on Green's psychological maltreatment of the children due to caregiver capacity concerns.

[¶ 5] In September 2010, Morrissey filed a motion for modification of primary residential responsibility on grounds that the children's present environment jeopardized their physical and emotional health, alleging in part that Green had continued to abuse drugs since entry of the prior judgment resulting in her incarceration and inability to care for the children; that Green had attempted to commit suicide in March 2010 leading to police intervention; that Green had been investigated by Grand Forks County Social Services three times since entry of the judgment; and that Social Services had recommended Green seek counseling for her drug use and psychological issues, had required services for Green and referred the matter to juvenile court. Green opposed Morrissey's motion.

[¶ 6] In an October 2010 order, the trial court found Morrissey had established a prima facie case and ordered an evidentiary hearing be held. In March 2011, Grand Forks Social Services removed the children from Green under emergency circumstances and placed them with Morrissey. In separate juvenile court proceedings, the children were found to be deprived in an April 2011 order while in Green's care. Green continued to work with Grand Forks Social Services to transition the children back to her, and in October 2011, the children were returned to Green. In December 2011, the court held a bench trial on Morrissey's motion, during which, including the parties, six witness testified on behalf of Green, twelve witnesses testified on behalf of Morrissey, and nineteen exhibits were offered into evidence.

[¶ 7] In January 2012, the trial court issued its memorandum decision and order granting the motion, awarding Morrissey primary residential responsibility for the three children and granting parenting time to Green. After entry of the fourth amended judgment in February 2012, Green moved the trial court to amend the findings, to make additional findings, for a new trial, and for a stay of the judgment. The court denied Green's motions.

II

[¶ 8] Green initially argues the trial court erred as a matter of law in granting the evidentiary hearing on Morrissey's motion for modification of primary residential responsibility because he failed to establish a prima facie case. In this case, the third amended judgment awarding Green primary residential responsibility of the parties' three children was entered in December 2008, and Morrissey filed his motion for modification of primary residential responsibility in September 2010.

[¶ 9] Section 14-09-06.6, N.D.C.C., governs the post-judgment modification of primary residential responsibility. When a party moves to modify residential responsibility within two years after an order establishing residential responsibility, a stricter or more rigorous modification standard applies. See N.D.C.C. § 14-09-06.6(5); Laib v. Laib, 2008 ND 129, ¶ 8, 751 N.W.2d 228. To obtain an evidentiary hearing on a motion for modification of primary residential responsibility, the party seeking the modification must first establish a prima facie case under N.D.C.C. § 14-09-06.6(4). However, "any issue regarding the evidentiary basis for a court's decision that a prima facie case has been established under N.D.C.C. § 14-09-06.6(4) is rendered moot once the evidentiary hearing is held." Kartes v. Kartes, 2013 ND 106, ¶ 18, 831 N.W.2d 731; see also Smedshammer v. Smedshammer , 2013 ND 107, ¶ 1.

[¶ 10] Here, the trial court held a bench trial on Morrissey's motion for modification of primary residential responsibility in December 2011. Because the court held a full evidentiary hearing on Morrissey's motion, the issue regarding whether the court erred in granting the hearing under N.D.C.C. § 14-09-06.6(4) is moot, and we decline to address Green's claim the court erred in deciding Morrissey established a prima facie case.

III

[¶ 11] Green alleges the trial court clearly erred in its award of primary residential responsibility for the parties' minor children to Morrissey.

[¶ 12] The trial court may not modify a prior custody order within the two-year period unless it first makes an appropriate finding that one of the factors under N.D.C.C. § 14-09-06.6(5) has been met:

The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with parenting time;
b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or
c. The residential responsibility for the child has changed to the other parent for ...

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