Buy This Entire Record For
In re F.S.
Supreme Court of North Dakota
September 20, 2017
Interest of F.S., minor child
F.S., minor child, M.S., Sr., father, Shane Forshner, Guardian ad Litem, and Christopher Jones, Executive Director of the ND Department of Human Services, Respondents Jaimee Towers, Assistant State's Attorney for Ward County, Petitioner and Appellee and K.S., mother, Respondent and Appellant Interest of M.S., Jr., minor child Jaimee Towers, Assistant State's Attorney for Ward County, Petitioner and Appellee
M.S., Jr., minor child, M.S., Sr., father, Shane Forshner, Guardian ad Litem, and Christopher Jones, Executive Director of the ND Department of Human Services, Respondents and K.S., mother, Respondent and Appellant Interest of M.S., minor child Jaimee Towers, Assistant State's Attorney for Ward County, Petitioner and Appellee
M.S., minor child, M.S., Sr., father, Shane Forshner, Guardian ad Litem, and Christopher Jones, Executive Director of the ND Department of Human Services, Respondents and K.S., mother, Respondent and Appellant
from the Juvenile Court of Ward County, North Central
Judicial District, the Honorable Lee A. Christofferson,
F. E. Towers, Assistant State's Attorney, Minot, N.D.,
petitioner and appellee; submitted on brief.
R. Craig, Minot, N.D., for respondent and appellant;
submitted on brief.
1] K.S., the mother of three minor children, appeals from a
juvenile court order terminating her parental rights. K.S.
argues the juvenile court abused its discretion in granting a
motion to reopen the record. We conclude the court did not
abuse its discretion in reopening the record for a
supplemental hearing. We affirm.
2] In February 2016, the State filed a petition for
termination of parental rights of K.S. and M.S. in regard to
the minor children, F.S.; M.S., Jr.; and M.S. The petition
was based on the continuing deprivation of the children based
on the parents' unresolved addiction and domestic
violence issues; failure to maintain stable housing and
employment; failure to remain law abiding and unresolved
legal issues; and inconsistent visitation and communication
with the children. At the termination hearing on June 13 and
14, 2017, a number of witnesses testified regarding drug
usage and domestic violence, the parents' turbulent
relationship, the level of the parents' cooperation with
social services, and K.S.'s chemical dependency treatment
and lapses in her sobriety. At the conclusion of the hearing,
the juvenile court allowed K.S. the opportunity to submit a
post-hearing brief in lieu of an oral closing argument. K.S.
filed her brief on June 21, 2017. The court directed the
State to file its response within one week.
3] On June 24, 2017, law enforcement and ambulance services
were called to a Minot residence for a possible drug
overdose. A police officer found K.S. on the bathroom floor
with a needle in her arm. K.S. was unconscious, her
extremities were blue-colored, she was gasping for breath,
and had a very low pulse. The officer and ambulance personnel
administered two doses of Narcan to prevent death.
4] On June 26, 2017, Ward County Social Services moved the
juvenile court to reopen the termination of parental rights
proceeding for an evidentiary hearing regarding the overdose.
K.S. opposed the motion. The court granted the motion because
it had not yet issued a final order and the facts of the
underlying incident may have a direct bearing on the matter.
After a supplemental evidentiary hearing, the court entered
an order terminating the parental rights of the three
5] K.S. argues the juvenile court abused its discretion in
reopening the record to allow for a supplemental evidentiary
6] We have stated that "[district] courts are vested
with broad discretion in permitting or refusing to permit a
party, after having rested, to reopen the case for the
purpose of introducing additional proof, and thus the
[district] court's decision will not be reversed on
appeal absent a showing that such discretion was clearly
abused." Leno v. Ehli, 339 N.W.2d 92, 97 (N.D.
1983). "'A district court has broad discretion in
evidentiary matters, and [this Court] will not overturn a
district court's decision to admit or exclude evidence
unless the court abused its discretion.'" Vandal
v. Leno, 2014 ND 45, ¶ 26, 843 N.W.2d 313 (quoting
State v. Gipp, 2013 ND 134, ¶ 5, 833 N.W.2d
541). A district court abuses its discretion when it acts in
an arbitrary, unreasonable, or capricious manner, or
misinterprets or misapplies the law. Id. The
appellant has the burden to prove error. Id.
7] In support of K.S.'s argument, she relies on
Vandal, 2014 ND 45, ¶ 29, 843 N.W.2d 313. In
Vandal, this Court held the district court did not
abuse its discretion by refusing to reopen the record after
the mother attempted to introduce evidence of a favorable
chemical dependency evaluation after the trial had concluded.
Id. at ¶¶ 27-29. The district court denied
the motion to reopen the record because the mother had plenty
of time to obtain a chemical dependency evaluation before
trial, but instead waited until five days before trial began
to meet with an addiction counselor. Id. Vandal is
distinguishable from this case.
8] Here, the parties could not have anticipated that K.S.
would overdose on heroin and be charged with possession of a
controlled substance until June ...