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In re N.A.

Supreme Court of North Dakota

May 26, 2016

In the Interest of N.A., child State of North Dakota, Petitioner and Appellee
v.
N.A., child, L.A., mother, M.P., father, and Janice Briese, Guardian ad Litem, and Executive Director of the ND Department of Human Services, Respondent M.P., father, Appellant

          Appeal from the Juvenile Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

         Tessa M. Vaagen, Burleigh County State's Attorney, Bismarck N.D., for petitioner and appellee.

         Bradley D. Peterson, Legal Services of ND, Bismarck N.D., for appellant.

         Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom. VandeWalle, Chief Justice, concurring specially.

          OPINION

Page 83

         Daniel J. Crothers, Justice.

          [¶1] A father appeals a juvenile court order adopting a judicial referee's decision to terminate his parental rights. The father appeals both the juvenile court order and the judicial referee's order, arguing he was denied due process of law because the guardian ad litem failed to fulfill mandatory responsibilities. The guardian ad litem's failure to interview the father did not violate his constitutional right to due process. The juvenile court order adopting the judicial referee's order and terminating the father's parental rights is affirmed.

         I

          [¶2] The state petitioned to terminate the father's and mother's parental rights in April 2015. The child's guardian ad litem filed a report supporting termination, stating the child had been in foster care since August 2013, the father's last contact with social services was in June 2014 and the father's whereabouts were unknown. A juvenile court order granted the state's motion to withdraw the April 2015 petition.

          [¶3] The state again petitioned to terminate the father's and mother's parental rights in October 2015. The father received the petition, affidavit in support of

Page 84

termination and an affidavit of mailing while incarcerated at the Richland county jail. The affidavit of mailing, which was also received by the guardian ad litem, listed the father's address at the Richland county jail. The guardian ad litem filed a nearly identical report supporting termination, listing the father's whereabouts as unknown and his last contact with social services as June 2014. The amended report stated the mother was voluntarily terminating her parental rights. The court mailed the report to the father at the Richland county jail.

          [¶4] A trial was held in January 2016. The guardian ad litem and the father both were present. The father testified he did not contact the child from June 2014 until sometime after July 2015. The guardian ad litem offered her view that the father's parental rights should be terminated. The guardian ad litem made her statement to the court at the judicial referee's request. The guardian ad litem was neither sworn nor subject to cross examination; however, no party objected to any claimed irregularity in the proceeding. The judicial referee " considered the written and in-court report of the guardian ad litem and . . . arguments of counsel" and terminated the father's parental rights.

          [¶5] The father requested juvenile court review, arguing his constitutional right to due process was violated because the guardian ad litem failed to interview him. The juvenile court adopted the referee's order and terminated the father's rights to the child. The juvenile court concluded the father's right to due process and equal treatment under the law was not violated.

         II

          [¶6] The father argues the guardian ad litem failed to fulfill her mandatory duties. N.D.R.Juv.P. 17(b)(2)(C) provides:

" (b) Responsibilities of a lay guardian ad litem. A lay guardian ad litem must:
(1) advocate for the best interest of the child;
(2) exercise independent judgment, gather information, participate in negotiations, and ...

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