B.R.T. v. Executive Director of Social Service Bd. North Dakota, 11062
| Decision Date | 16 July 1986 |
| Docket Number | No. 11062,11062 |
| Citation | 391 N.W.2d 594 |
| Parties | B.R.T., Petitioner and Appellant, v. The EXECUTIVE DIRECTOR OF the SOCIAL SERVICE BOARD of NORTH DAKOTA, Respondent and Appellee. In the Interest of L.D.R.T., a Child. Civ. |
| Court | North Dakota Supreme Court |
Michael T. Mahoney, Seattle, Wash., and Dakota Plains Legal Services, Fort Yates, for petitioner and appellant.
Blaine L. Nordwall, Asst. Atty. Gen., Bismarck, for respondent and appellee.
Sonosky, Chambers & Sachse, Washington, D.C., and Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for amicus curiae Standing Rock Sioux Tribe. Submitted on brief.
B.R.T. appealed from a juvenile court 1 order denying her motion for "redetermination" of a previously entered order terminating her parental rights to L.D.R.T., an Indian child. We affirm.
On August 17, 1983, B.R.T. executed a voluntary petition for the termination of her parental rights to L.D.R.T., who at that time was seven years old. Both B.R.T. and L.D.R.T. were enrolled members of the Standing Rock Sioux Tribe living in Bismarck. L.D.R.T.'s father is deceased. A "Notice of Impending Proceeding in State Court Involving Native Americans" was served upon the Standing Rock Sioux Tribal Court. A hearing was held on September 16, 1983, but the Tribe neither appeared at the hearing nor responded to the petition. Following the hearing, the juvenile court referee recommended that B.R.T.'s parental rights be terminated; that the care, custody, and control of the child be transferred to the Social Service Board of North Dakota [Department] 2 for the purpose After the termination order was entered, L.D.R.T. remained in B.R.T.'s home awaiting placement with a family B.R.T. had hoped would adopt the child. However, the family was unable to adopt L.D.R.T., and Lutheran Social Services, a child-placing agency, attempted to find another placement for L.D.R.T. L.D.R.T. remained in B.R.T.'s custody until January 1984, when B.R.T. sent the child to live with her brother and sister-in-law in Montana. The sister-in-law contacted Lutheran Social Services and expressed a desire to adopt L.D.R.T., but during March 1984, before the proposed placement could be investigated, L.D.R.T. was returned to B.R.T.
of placing the child for adoption; and, because B.R.T. had requested anonymity pursuant to provisions of the Indian Child Welfare Act, 25 U.S.C. Sec. 1901, et seq., recommended that the Department and any child-placing agency involved in the case "shall not notify said child's extended family or tribe in order that their members will be given preference in the adoption decision." The juvenile court confirmed the referee's findings and recommendations on September 21, 1983. No appeal was taken from that order
Lutheran Social Services subsequently contacted another child-placing agency, the Village Family Service Center [the Village], and asked that it handle the adoptive placement of L.D.R.T. During an April 1984 meeting between B.R.T. and a representative of the Village, B.R.T. indicated that she no longer wanted to have L.D.R.T. placed for adoption. The Lutheran Social Services representative informed B.R.T. that she should seek legal assistance to get the termination order vacated. No formal action was taken by B.R.T. at that time. In the meantime, efforts were continued to find a foster family for L.D.R.T.
A foster family was found, and L.D.R.T. was removed from B.R.T.'s home by a representative of the Village and the foster mother on May 25, 1984. According to the Village representative, B.R.T. was cooperative, had all of L.D.R.T.'s belongings packed, and, after visiting with the foster mother, stated that she was happy that L.D.R.T. would be living on a farm. The foster family was non-Indian.
The Village attempted to find an Indian family to adopt L.D.R.T. Those efforts proved unsuccessful and during November 1984 the Village began looking for a non-Indian adoptive family. The foster family with whom L.D.R.T. had been placed after removal from B.R.T.'s home sought to adopt the child, and on December 30, 1984, L.D.R.T. was formally placed for adoption with the foster parents. According to counsel, a petition for adoption has since been filed and the action remains pending in the district court.
In March 1985, B.R.T. brought a motion seeking a "redetermination" of the September 21, 1983, order terminating her parental rights. Following two hearings, the court denied the motion, which it treated as a petition for modification or vacation of the earlier order. The court determined that, among other things, B.R.T.'s consent to the termination was voluntary and that the petition "was instituted by [B.R.T.] of her own decision and volition, and not as the result of any pressure, duress, or promise made by the Juvenile Court or its Referee, ... or by Lutheran Social Services or its agent, ... and particularly was not the result of any representation that [L.D.R.T.] would be placed with any particular adoptive family;" that B.R.T.'s consent was not withdrawn prior to the entry of the final decree of termination; that B.R.T. "actively cooperated in and consented to the removal of [L.D.R.T.] from her home while fully aware of her rights;" that B.R.T. made no showing that the order terminating parental rights was obtained by fraud or mistake; and that "[a]ll appropriate provisions of federal law were complied with in the proceedings, ..." B.R.T. has appealed.
The Department has moved to dismiss B.R.T.'s appeal asserting that it was not timely filed and that no appeal lies from The Department contends that although the appeal was filed within 60 days in compliance with Rule 4(a), N.D.R.App.P., the 30-day limit for appeals under Sec. 27-20-56(1), N.D.C.C., of the Uniform Juvenile Court Act controls in this case. Relying upon Rule 49(b), N.D.R.App.P., and State v. Stokes, 240 N.W.2d 867 (N.D.1976), B.R.T. asserts that the 30-day limit set forth in Sec. 27-20-56(1), N.D.C.C., has been superseded by Rule 4(a), N.D.R.App.P. Regardless of whether Rule 4(a) has superseded the 30-day time limit under the Uniform Juvenile Court Act, Sec. 27-20-56(1), N.D.C.C., specifically allows the filing of the notice of appeal to occur "within any further time the supreme court grants, ..." We deem this an appropriate case for an extension, and conclude that B.R.T.'s appeal was timely filed.
the denial of a motion to vacate. We reject both contentions.
The Department next asserts that the denial of a motion to vacate a judgment is not appealable. The Department contends that allowing appeals from such orders permits an unsuccessful litigant to, in effect, extend the time for appeal from the original judgment. The Department misconceives the nature of a motion to vacate a judgment.
This court's function in reviewing a trial court's denial of a motion to set aside a regularly entered judgment is not to determine if the trial court was substantively correct in entering the judgment from which relief is sought, but is to determine if the trial court erred in ruling that sufficient grounds for disturbing the finality of the judgment were not established. See Fleck v. Fleck, 337 N.W.2d 786 (N.D.1983). Consequently, this court has held that an order denying a motion to vacate a judgment constitutes an appealable order under Sec. 28-27-02(2), N.D.C.C. See Union Storage & Transfer Co. v. Smith, 79 N.D. 605, 58 N.W.2d 782 (1953); Boyd v. Lemmon, 49 N.D. 64, 189 N.W. 681 (1922). 3 We conclude that we have jurisdiction to consider B.R.T.'s appeal.
The juvenile court determined that B.R.T. did not make a sufficient showing under Sec. 27-20-37(1), N.D.C.C., which requires a showing similar to that mandated to obtain relief under Rule 60(b), N.D.R.Civ.P., to require the court to modify or vacate the previous order terminating parental rights. We agree.
B.R.T.'s testimony at the two hearings on the motion seeking "redetermination" clearly reflects that it was her decision to have L.D.R.T. removed from her home and placed for adoption. The record further discloses that B.R.T. consented to the termination of parental rights voluntarily, and that she understood the effect of the termination. 4 B.R.T. testified that no promises were made that the family she hoped would adopt L.D.R.T. would do so, and that she knew if the family did not adopt L.D.R.T., the child would not be returned to her but would be placed with another family. We conclude that the juvenile court did not err in refusing to vacate the termination order on the grounds set forth in Sec. 27-20-37(1), N.D.C.C.
B.R.T. and the amicus curiae also assert that because L.D.R.T. has not yet been formally adopted, and because more than 18 months have passed since the termination order was entered, Sec. 27-20-47(2) N.D.C.C., requires that this case be remanded "for entry of further orders for the care, custody, and control of the child." We initially note that a failure to comply with Sec. 27-20-47(2), N.D.C.C., does not affect the order terminating B.R.T.'s parental rights. See Sec. 27-20-36(1), N.D.C.C.; Commissioner's Note to Uniform Juvenile Court Act Sec. 50, 9A U.L.A. 77 (1979). L.D.R.T. was placed for adoption on December 30, 1984, a petition for adoption was subsequently filed, and, according to counsel, the case remains pending. A remand for entry of further orders concerning L.D.R.T.'s care, custody, and control would serve no useful purpose at this point. We conclude that the technical violation of Sec. 27-20-47(2), N.D.C.C., in this case does not require a modification, remand, or reversal of the juvenile court's order.
Under the provisions of the Indian Child Welfare Act, the parent of an Indian child has the right to petition a court of competent jurisdiction to invalidate any action for termination of parental rights upon a showing that such action violated Secs. 1911, 191...
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