In re D.C.S.H.C.

• Decision Date: 26 June 2007
• Docket Number: No. 20060338.,No. 20060337.,20060337.,20060338.
• Parties: 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.
• Court: North Dakota Supreme Court

733 N.W.2d 902

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.

No. 20060337.

No. 20060338.

Supreme Court of North Dakota.

June 26, 2007.

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 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 due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case." Walbert, at ¶ 9 (quoting In re Adoption of J.W.M., 532 N.W.2d 372, 377 (N.D.1995)). A person's right to appear may be satisfied by allowing appearance via telephone. Cf. id.; see also State v. Valentine, 190 Ariz. 107, 945 P.2d 828, 831 (Ct.App.1997) ("We therefore hold, as have other states, that appearance by telephone is an appropriate alternative to personal appearance").

St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175 (emphasis added).

[¶ 9] Because prisoners do not have a constitutional right to appear in person at a termination-of-parental-rights hearing and because children should not be kept in limbo between foster care and permanent placement, see Interest of D.M., 2007 ND 62, ¶ 17, 730 N.W.2d 604, K.C.'s motion for a continuance was properly denied.

B

[¶ 10] K.C. contends her limited participation by telephone at the termination hearing violated her right to procedural due process.

[¶ 11] Under the Fourteenth Amendment, no State may "deprive any person of life, liberty or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. Article I, section 12 of the North Dakota Constitution also provides: "No person shall . . . be deprived of life, liberty or property without due process of law." "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)).

[¶ 12] This Court has held that a "prisoner's due process rights are generally satisfied if the prisoner is represented at the termination hearing by counsel and has an opportunity to appear by deposition or other discovery technique." Adoption of J.W.M., 532 N.W.2d 372, 376 (N.D. 1995), overruled on other grounds, Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913 (overruling those cases that apply a de novo review under the Revised Uniform Adoption Act). We have also held there is no denial of due process when the defendant testified at the termination hearing by telephone and was represented by court-appointed counsel during the proceeding. Adoption of J.M.H., 1997 ND 99, ¶ 19, 564 N.W.2d 623. Within this framework we consider our prior holdings and the facts of this case as we can discern them.

[¶ 13] "A parent's relationship with a biological child is entitled to constitutional protection, but that relationship is neither absolute nor unconditional." Adoption of S.A.L., 2002 ND 178, ¶ 10, 652 N.W.2d 912 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 26-27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Adoption of K.A.S., 499 N.W.2d 558, 567 (N.D.1993)). "A court, however, cannot irrevocably sever a parent's relationship with a biological child without first granting the parent certain procedural protections afforded by due process." Adoption of S.A.L., at ¶ 10.

[¶ 14] A court must apply a three-part balancing test to analyze whether the procedures pass constitutional muster:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Adoption of S.A.L., 2002 ND 178, ¶ 11, 652 N.W.2d 912 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)); see, e.g., Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d...