733 N.W.2d 902 (N.D. 2007), 20060337, In re D.C.S.H.C.

Docket Nº:20060337, 20060338.
Citation:733 N.W.2d 902, 2007 ND 102
Opinion Judge:SANDSTROM, Justice.
Party Name:In the Interest of D.C.S.H.C., a child Tamera Ressler, L.S.W., Petitioner and Appellee v. K.C., Respondent and Appellant J.B., J.D., B.C., and Dixie Evans or designee, Lay Guardian ad Litem, Respondents.
Attorney:Constance L. Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and appellee., Joe A. Johnson, Fargo, N.D., for respondent and appellant.
Case Date:June 26, 2007
Court:Supreme Court of North Dakota
 
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733 N.W.2d 902 (N.D. 2007)

2007 ND 102

In the Interest of D.C.S.H.C., a child

Tamera Ressler, L.S.W., Petitioner and Appellee

v.

K.C., Respondent and Appellant

J.B., J.D., B.C., and Dixie Evans or designee, Lay Guardian ad Litem, Respondents.

Nos. 20060337, 20060338.

Supreme Court of North Dakota

June 26, 2007

Appeal from the Juvenile Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge.

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Constance L. Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and appellee.

Joe A. Johnson, Fargo, N.D., for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] K.C., the mother, appeals the order adopting the judicial referee's findings and order terminating K.C.'s parental rights to D.C.S.H.C., the child. Concluding that K.C. was given a meaningful opportunity to be heard through her appearance by telephone at the termination hearing while she was in prison in Minnesota, we affirm.

I

[¶ 2] In 2005, the child was born while her mother was involuntarily committed at the North Dakota State Hospital and her father was in jail in Cass County. On the same day as the birth, a social worker petitioned for a finding that the child was deprived. A judicial referee issued an emergency order temporarily removing the child from her parents' custody and placing her with Cass County Social Services. After the birth, the mother was released from the State Hospital. Less than a week after the birth, the referee found probable cause that the child was deprived, largely because of her parents' drug and alcohol abuse and extensive criminal history. Sometime after her release from the State Hospital, K.C. was incarcerated in Stutsman County, North Dakota. On February 17, 2006, the referee issued a writ of habeas corpus ad testificandum requesting that K.C. be transported from Stutsman County to Cass County for the termination hearing scheduled for March 15-17, 2006. According to K.C.'s case manager's testimony at the termination hearing, K.C. was incarcerated at the correctional facility at Shakopee, Minnesota, on March 3, 2006. On March 13, 2006, the judicial referee amended the writ to include the same transportation request for the Director of the Minnesota Department of Corrections. The Minnesota Department of Corrections did not release K.C. for the hearing. On March 15, K.C. appeared by telephone at the termination hearing and requested the hearing be rescheduled so she could appear in person. She did not ask for a specific future date. The Shakopee case manager testified that K.C.'s anticipated release date was July 31, 2006; however, he also testified that K.C. had a pending felony charge in Stearns County, Minnesota. The referee denied her request and reminded K.C. that she would be represented by "very conscientious counsel" throughout the proceedings. The referee did allow her to testify by telephone whenever officials at Shakopee would allow her to use a telephone during the three-day hearing. The referee ordered the parents' rights terminated. The mother requested a juvenile court review of the referee's decision.

[¶ 3] In November 2006, the juvenile court adopted the referee's order and terminated both parents' rights to the child. The court also concluded the mother was not denied her right to a full and fair hearing, because she was represented by counsel and she appeared by telephone at the hearing. Only K.C. appeals.

[¶ 4] The juvenile court had jurisdiction under N.D.C.C. § 27-20-03(1)(b). The district court judge had jurisdiction

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under N.D. Sup.Ct. Admin. R. 13(11) to review the referee's findings and order. The notice of appeal was timely under N.D.C.C. § 27-20-56(1). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 5] K.C., the mother, contends the juvenile court abused its discretion by denying her request to postpone the termination proceeding so that she could appear in person at the hearing. She also contends her sporadic participation by telephone at the termination hearing denied her due process.

A

[¶ 6] A motion for a continuance "will be granted only for good cause shown, either by affidavit or otherwise." N.D.R.Ct. 6.1(b). "We will not reverse a trial court's decision to deny a continuance absent an abuse of discretion." State v. Hilgers, 2004 ND 160, ¶ 38, 685 N.W.2d 109 (citation omitted). "A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586.

[¶ 7] The juvenile court concluded the referee properly denied K.C.'s motion for a continuance:

The Respondent was in the Shakopee prison facility at the time of the hearing. The North Dakota Supreme Court has held that prisoners do not have a constitutional due process right to personally appear at a proceeding for termination of parental rights, and their due process rights are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique. [Adoption of J.M.H.], 1997 ND 99, ¶ 18, 564 N.W.2d 623 (holding where defendant testified at the termination hearing by telephone and was represented by court-appointed counsel during the proceeding there was no due process violation). Here, Respondent also testified at the termination hearing by telephone and was represented by court-appointed counsel. As such, the Respondent's claim fails.

(Emphasis added.)

[¶ 8] In St. Claire v. St. Claire, we concluded that a parent-prisoner has a limited right to appear in person at a termination of parental rights hearing:

[A] prisoner's right to appear personally at a civil proceeding is limited. Walbert v. Walbert, 1997 ND 164, ¶ 8, 567 N.W.2d 829. In the context of parental rights termination there is a statutory right to counsel under N.D.C.C. § 27-20-26, and "[p]risoners' due process rights generally are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique." In re Adoption of J.M.H., 1997 ND 99,¶ 18, 564 N.W.2d 623. Generally, "[p]rocedural...

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