Adoption of J.S.P.L., Matter of
| Decision Date | 31 May 1995 |
| Docket Number | No. 940243,940243 |
| Citation | 532 N.W.2d 653 |
| Parties | In the Matter of the ADOPTION OF J.S.P.L., J.J.L., and J.W.L. M.L.L. and S.M.L., Petitioners and Appellees, v. Henry C. "Bud" WESSMAN, Executive Director, North Dakota Department of Human Services, Respondent, and J.E.N., Respondent and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Leslie Bakken Oliver (argued), Kapsner & Kapsner, Bismarck, for petitioners and appellees.
J.E.N., Bismarck, pro se.
Melvin L. Webster (argued), Bismarck. Guardian Ad Litem.
J.E.N. (Jack) 1, the natural father of J.S.P.L. (Joan), J.J.L. (Jeff), and J.W.L. (Justin), appeals from a judgment terminating his parental rights and granting the petition Jack was convicted of the January 1992 murder of his wife, P.J.N. (Patty), a class AA felony, and he was sentenced to life imprisonment with no possibility of parole for at least 25 years. Jack violated a protection order restraining him from Patty's home and bribed his children to gain entrance to the home. When Patty returned from work, Jack shot her several times with a handgun in the presence of Joan, Jeff, and Justin, who were then ages 11, 8, and 4, respectively. Jack fled the scene, leaving the children with their dying mother. Patty was dead when police arrived and Jack was arrested shortly thereafter. Joan and Jeff testified against Jack at his murder trial.
of M.L.L. (Mark) and S.M.L. (Sandy) to adopt the children. We conclude that Jack's due process right to access to the courts was not violated and that clear and convincing evidence supported the termination of his parental rights. We therefore affirm.
Shortly after the murder, the children were placed in the physical custody of Patty's sister, Sandy, who successfully petitioned the court for guardianship of the children. In December 1993, Sandy and her husband, Mark, petitioned the court to adopt the children and terminate Jack's parental rights.
Jack requested court-appointed counsel to oppose the adoption. The court appointed attorney Edwin Dyer to represent Jack. Unsatisfied with Dyer's previous representation in a matter involving the children, Jack requested that Dyer be replaced with another attorney. The court denied the motion, and Jack filed a pro se resistance to the adoption petition.
Dyer then moved for Jack's personal appearance at the adoption hearing. Dyer also initiated pretrial discovery and moved for a continuance of the hearing. Mark and Sandy opposed the motion for Jack's personal appearance because Jack was represented by counsel and would have the opportunity to appear in the proceedings through a deposition taken at the state penitentiary. They argued that Jack, as a convicted murderer, was "an obvious and significant security risk." They also asserted that Jack should not be allowed to appear personally because the children would be testifying at the hearing, and, according to affidavits from the social workers who had been counseling Joan, Jeff, and Justin, the children were neither "emotionally nor psychologically ready to have any contact with" their father.
The trial court granted Jack's motion for continuance, but denied the motion for his personal appearance at the hearing because of the "potential danger and security, combined with inconvenience to prison authorities...." The court instead gave Dyer permission to depose Jack and present that testimony at the hearing.
Jack responded by filing a notice of dismissal of Dyer as his counsel and a statement that he would be proceeding pro se. Jack also filed a notice that he was canceling his previously scheduled deposition. After reciting the procedural history of the case, the trial court ruled:
The adoption hearing began in chambers. Dyer appeared at the request of the trial court "to continue on as [Jack's] legal advisor in the event [he] asks for legal assistance during the course of this matter." Jack appeared by telephone and declined any assistance from Dyer, asking "what is he doing there?" When Jack asked if he would be allowed to cross-examine witnesses, the trial court said he would not, because Jack had declined the assistance of Dyer with full knowledge that he would not be attending the hearing.
However, the trial court allowed Jack to orally argue the motions he had previously filed. Jack also testified on his own behalf over the telephone, and was questioned by the guardian ad litem and counsel for Mark and Sandy. Then, the telephone conference was concluded and the hearing continued in the courtroom. The children, the adoptive parents, the social workers, and the prosecutor in Jack's murder trial testified. Attorney Dyer did not cross-examine witnesses or otherwise participate in the hearing.
The trial court terminated Jack's parental rights and granted the adoption. The court ruled that Jack had abandoned the children; that he had deprived the children of both a mother and a father; that he was physically and mentally incapable of providing the necessary parental control of the children; that the condition and causes of his incapacity were irremediable, resulting in physical, mental, moral and emotional harm to the children; and that his consent to the termination of parental rights was unreasonably withheld. The court further ruled that Mark and Sandy were well qualified to adopt the children and that it was in the children's best interests to permit the adoption. Jack appealed.
Jack asserts that the trial court committed reversible error in not allowing oral arguments on his pre-hearing motions as he requested under N.D.R.O.C. 3.2(a). We disagree.
A Rule 3.2 request for oral argument must be granted to any requesting party, including a prison inmate, who has timely served and filed a brief. Matter of Norman, 521 N.W.2d 395, 397 (N.D.1994). See also Anton v. Anton, 442 N.W.2d 445, 446 (N.D.1989). Rule 3.2, however, requires that "[t]he party requesting oral argument must secure a time for the argument and serve notice upon all other parties." Jack did not do so. Failure to secure a time for oral argument renders the request incomplete. Huber v. Oliver County, 529 N.W.2d 179, 183 (N.D.1995).
Moreover, even if the trial court erred in denying several of Jack's motions without oral argument, the remedy would be a remand for oral argument. Norman, 521 N.W.2d at 397. Jack has already received that remedy. At the beginning of the adoption hearing, the trial court allowed Jack to orally argue the motions he had filed. Although Jack complains that he was not allowed enough time for oral argument, the latitude and extent of oral argument is within the sound discretion of the trial court. Matter of Norman, 524 N.W.2d 358, 362 (N.D.1994). Jack has not shown how he was prejudiced by the limited time for oral argument, or that the trial court abused its discretion.
Jack asserts that the trial court violated his right to access to the courts by not allowing him to personally cross-examine the witnesses at the adoption hearing. Under the circumstances, we disagree.
Although prisoners have diminished constitutional protections, they do maintain a due process right to reasonable access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977); In In Interest of F.H., 283 N.W.2d 202, 209 (N.D.1979), this court held that a prisoner does not have an absolute constitutional right to personally appear in court and defend an action to terminate parental rights if the prisoner has been otherwise permitted to appear through counsel and by deposition. We ruled that whether a prisoner should be allowed a personal appearance is discretionary with the trial court, and set forth several factors for consideration. 3 In F.H., the trial court did not abuse its discretion in denying the out-of-state prisoner's motion because he was represented by counsel at the hearing and he appeared by deposition.
Ennis v. Schuetzle, 488 N.W.2d 867, 870-871 (N.D.), cert. denied, --- U.S. ----, 113 S.Ct. 626, 121 L.Ed.2d 558 (1992). See also Annot., State prisoner's right to personally appear at civil trial to which he is a party--state court cases, 82 A.L.R.4th 1063 (1990). Under North Dakota law, "a person convicted of a crime does not suffer civil death ... or sustain loss of civil rights ..., but retains all of his rights, ... including the right ... to sue and be sued...." N.D.C.C. Sec. 12.1-33-02.
In Matter of Adoption of Quenette, 341 N.W.2d 619, 621 (N.D.1983), a majority of this court applied the F.H. rationale to affirm denial of a personal appearance by an in-state prisoner in an adoption proceeding. The prisoner in Quenette was represented by counsel at the hearing,...
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