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In re G.L.

Supreme Court of North Dakota

July 18, 2018

State of North Dakota, Petitioner
v.
G.L., child, and T.S., father, Respondents Interest of G.L., a child, and B.L. a/k/a B.Y. and A.Y., co-guardians, Respondents and Appellees and D.L., mother, Respondent and Appellant

          Appeal from the Juvenile Court of Grand Forks County, Northeast Central Judicial District, the Honorable John A. Thelen, Judge.

          Samuel A. Gereszek, East Grand Forks, MN, for respondents and appellees

          B.L. a/k/a B.Y and A.Y. Jessica J. Ahrendt, Grand Forks Public Defender's Office, Grand Forks, ND, for respondent and appellant, D.L.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 1] D.L., mother of G.L., appeals from the juvenile court's order and judgment to continue guardianship of G.L. The mother argues the juvenile court erred in its determination of exceptional circumstances for continuing the guardianship. We reverse the order and judgment and remand.

         I

         [¶ 2] On July 27, 2015 the State filed a petition alleging G.L. (born in 2009) and her sister E.L. (born in 2001) were deprived. The parents, D.L. and T.S. (father), stipulated to a guardianship, placing both girls in the care of the eldest daughter, B.Y. The juvenile court entered an order appointing the eldest daughter as guardian on October 8, 2015, and found both children deprived under N.D.C.C. § 27-20-02(8)(a). The guardianship was to remain in place until the children turned eighteen.

         [¶ 3] On December 7, 2016 the mother wrote a letter to the juvenile court asking for a review of the guardianship. Two weeks later the mother wrote another letter stating the guardianship continued to be in G.L.'s best interests. Shortly after, the mother again changed her mind and asked for a review hearing. The juvenile court treated the communications as a motion to terminate the guardianship and on July 26-27 and August 24, 2017 held a hearing. At the start of the hearing the mother abandoned her request to review her middle daughter's guardianship.

         [¶ 4] The juvenile court found the mother demonstrated a change in circumstances by stabilizing her living situation, obtaining full-time employment, effectively dealing with addiction, and improving her mental and emotional health. The juvenile court found the impediments creating the deprivation had been removed. The juvenile court then shifted the burden of proof to the guardian to establish by preponderance of the evidence that continuation of the guardianship remains in the best interest of the child.

         [¶ 5] The juvenile court made findings on the best interest factors in N.D.C.C. § 14-09-06.2(1). The juvenile court continued the guardianship, ordered the guardian's husband added as co-guardian, and gave the guardian authority to establish a visitation schedule with input from G.L.'s therapist and guardian ad litem. The mother appeals the order and judgment.

         II

         [¶ 6] The mother argues the juvenile court failed to find exceptional circumstances and erred in analyzing whether continuing the guardianship was in the best interests of the child. We agree.

         [¶ 7] "Parents have a fundamental, natural right to their children which is of constitutional dimension. The right is paramount. A parent's paramount and constitutional right to the custody and companionship of their children is superior to that of any other person." Hoff v. Berg, 1999 ND 115, ¶ 10, 595 N.W.2d 285 (citations omitted). Because of these parental rights, guardianship termination cases require the following:

"When there is a custody dispute between a natural parent and a third party the test is whether or not there are exceptional circumstances which require that in the best interest of the child, the child be placed in the custody of the third party rather than with the biological parent. The court cannot award custody to a third party, rather than the natural parent, under a 'best interest of the child' test unless it first determines that 'exceptional circumstances' exist to trigger the best-interest analysis. Absent exceptional ...

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