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In re J.J.T.

Supreme Court of North Dakota

July 11, 2018

In the Interest of J.J.T.,
v.
J.J.T., a child, N.R.T., Father, Respondents N.M.T., Petitioner and Appellee and J.G., Mother, Respondent and Appellant

          Appeal from the Juvenile Court of Williams County, Northwest Judicial District, the Honorable Joshua B. Rustad, Judge.

          Thomas J. Corcoran, Williston, ND, for petitioner and appellee.

          Daniel A. Gulya, Williston, ND, for respondent and appellant.

          OPINION

          Jensen, Justice.

         [¶ 1] J.G., the mother of minor child J.J.T, appeals from a judgment terminating her parental rights to the child. J.G. argues the juvenile court erred in finding J.J.T. was deprived, in denying her court-appointed counsel's motion for a continuance to prepare for trial, in granting her court-appointed counsel's motion to withdraw as counsel of record and appointing that counsel as standby counsel, and in denying her statutory right to counsel. Because we conclude the juvenile court did not abuse its discretion in denying a continuance and in allowing withdrawal of counsel, J.G.'s actions were the functional equivalent of a voluntary, knowing, and intelligent waiver of her right to counsel, and the statutory requirements for termination of J.G.'s parental rights were satisfied, we affirm the judgment.

         I

         [¶ 2] In a petition filed with the juvenile court on June 23, 2014, the paternal grandfather of the child born in February 2014 sought to terminate the biological parents' parental rights in the child. The petition alleged that J.G. regularly left the three-month-old child unattended while she engaged in late-night entertaining involving illicit drug use, that a recent drug test on a hair sample of the child revealed excessive levels of illicit drugs present in the child, including methamphetamine, marijuana, and cocaine, and that J.G. had displayed ongoing and persistent neglect regarding the day-to-day care of the child. The petition alleged the child had resided with the grandfather since May 5, 2014, and asked that he be appointed custodian and guardian of the child, but did not seek other specific relief beyond the termination of the parents' parental rights and did not specifically seek adoption or other permanent placement of the child. Subsequently, the paternal grandfather voluntarily dismissed the petition as it related to termination of the father's parental rights.

         [¶ 3] A hearing on the petition for the termination of parental rights was originally scheduled for July 25, 2014, but that hearing was continued because service of the petition on J.G. was not effectuated until August 2014. According to counsel for the grandfather, the Williams County Sheriff's office made multiple attempts to serve the petition on J.G. and expressed a belief that she was intentionally avoiding service. Counsel claimed J.G.'s avoidance of personal service in the termination proceeding was an attempt to bolster her position in seeking to dismiss guardianship proceedings on the grounds that her parental rights had not been terminated.

         [¶ 4] After a September 24, 2014 hearing, the juvenile court entered a protective order awarding the grandfather temporary custody and guardianship, residential responsibility, and decision-making authority for the minor child. The protective order also stated a termination hearing was scheduled for December 12, 2014.

         [¶ 5] J.G. sent a December 8, 2014, handwritten letter to the juvenile court asking for a continuance of the scheduled termination hearing. According to J.G., she was in jail on pending criminal charges. The court granted J.G. a continuance, and the termination hearing was rescheduled to February 6, 2015.

         [¶ 6] On February 5, 2015, a letter bearing a physician's signature was filed with the juvenile court on stationary from a medical facility. The letter stated that J.G. was unable to make her scheduled court appearance on February 6, 2015, and requested a continuance to "tend to her medical needs." The court granted the request for a continuance, and the termination hearing was rescheduled for June 8, 2015.

         [¶ 7] J.G. did not have counsel on June 8, 2015, and the record reflects the termination hearing ultimately was rescheduled to October 19, 2016. On June 23, 2015, J.G. filed an application for the appointment of indigent defense counsel and counsel was appointed on June 24, 2015. In September 2015, a different attorney was appointed to represent J.G. under a conflict reassignment, and a third attorney was appointed to represent J.G. in January 2016.

         [¶ 8] In October 2016, J.G.'s appointed counsel sought and was granted a continuance. Counsel asserted he believed the trial would only require two days, and he was informed on October 14, 2016, that the grandfather's counsel believed the trial would take four days. According to J.G.'s counsel, he would not be available for the entire scheduled four-day trial. On October 18, 2016, the juvenile court continued the termination hearing.

         [¶ 9] In January 2017, the juvenile court ordered the parties to appear for a scheduling conference in February 2017, and on April 4, 2017, the ...


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