N.M.T. v. J.J.T. (In re Interest of J.J.T.)

• Decision Date: 11 July 2018
• Docket Number: No. 20180136,20180136
• Citation: 915 N.W.2d 106
• Parties: IN the INTEREST OF J.J.T. N.M.T., Petitioner and Appellee v. J.J.T., a child, N.R.T., Father, Respondents and J.G., Mother, Respondent and Appellant
• Court: North Dakota Supreme Court

915 N.W.2d 106

IN the INTEREST OF J.J.T.N.M.T., Petitioner and Appellee

v. J.J.T., a child, N.R.T., Father, RespondentsandJ.G., Mother, Respondent and Appellant

No. 20180136

Supreme Court of North Dakota.

Filed July 11, 2018

Thomas J. Corcoran, Williston, ND, for petitioner and appellee.

Daniel A. Gulya, Williston, ND, for respondent and appellant.

Jensen, Justice.

[¶1] J.G., the mother of minor child J.J.T., appeals from a judgment terminating her parental rights to the child. J.G. argues the juvenile court erred in finding J.J.T. was deprived, in denying her court-appointed counsel’s motion for a continuance to prepare for trial, in granting her court-appointed counsel’s motion to withdraw as counsel of record and appointing that counsel as standby counsel, and in denying her statutory right to counsel. Because we conclude the juvenile court did not abuse its discretion in denying a continuance and in allowing withdrawal of counsel, J.G.’s actions were the functional equivalent of a voluntary, knowing, and intelligent waiver of her right to counsel, and the statutory requirements for termination of J.G.’s parental rights were satisfied, we affirm the judgment.

I

[¶2] In a petition filed with the juvenile court on June 23, 2014, the paternal grandfather of the child born in February 2014 sought to terminate the biological parents' parental rights in the child. The petition alleged that J.G. regularly left the three-month-old child unattended while she engaged in late-night entertaining involving illicit drug use, that a recent drug test on a hair sample of the child revealed excessive levels of illicit drugs present in the child, including methamphetamine, marijuana, and cocaine, and that J.G. had displayed ongoing and persistent neglect regarding the day-to-day care of the child. The petition alleged the child had resided with the grandfather since May 5, 2014, and asked that he be appointed custodian and guardian of the child, but did not seek other specific relief beyond the termination of the parents' parental rights and did not specifically seek adoption or other permanent placement of the child. Subsequently, the paternal grandfather voluntarily dismissed the petition as it related to termination of the father’s parental rights.

[¶3] A hearing on the petition for the termination of parental rights was originally scheduled for July 25, 2014, but that hearing was continued because service of the petition on J.G. was not effectuated until August 2014. According to counsel for the grandfather, the Williams County Sheriff’s office made multiple attempts to serve the petition on J.G. and expressed a belief that she was intentionally avoiding service. Counsel claimed J.G.’s avoidance of personal service in the termination proceeding was an attempt to bolster her position in seeking to dismiss guardianship proceedings on the grounds that her parental rights had not been terminated.

[¶4] After a September 24, 2014 hearing, the juvenile court entered a protective order awarding the grandfather temporary custody and guardianship, residential responsibility, and decision-making authority for the minor child. The protective order also stated a termination hearing was scheduled for December 12, 2014.

[¶5] J.G. sent a December 8, 2014, handwritten letter to the juvenile court asking for a continuance of the scheduled termination hearing. According to J.G., she was in jail on pending criminal charges. The court granted J.G. a continuance, and the termination hearing was rescheduled to February 6, 2015.

[¶6] On February 5, 2015, a letter bearing a physician’s signature was filed with the juvenile court on stationary from a medical facility. The letter stated that J.G. was unable to make her scheduled court appearance on February 6, 2015, and requested a continuance to "tend to her medical needs." The court granted the request for a continuance, and the termination hearing was rescheduled for June 8, 2015.

[¶7] J.G. did not have counsel on June 8, 2015, and the record reflects the termination hearing ultimately was rescheduled to October 19, 2016. On June 23, 2015, J.G. filed an application for the appointment of indigent defense counsel and counsel was appointed on June 24, 2015. In September 2015, a different attorney was appointed to represent J.G. under a conflict reassignment, and a third attorney was appointed to represent J.G. in January 2016.

[¶8] In October 2016, J.G.’s appointed counsel sought and was granted a continuance. Counsel asserted he believed the trial would only require two days, and he was informed on October 14, 2016, that the grandfather’s counsel believed the trial would take four days. According to J.G.’s counsel, he would not be available for the entire scheduled four-day trial. On October 18, 2016, the juvenile court continued the termination hearing.

[¶9] In January 2017, the juvenile court ordered the parties to appear for a scheduling conference in February 2017, and on April 4, 2017, the termination hearing was rescheduled for February 8, 2018.

[¶10] On May 24, 2017, J.G.’s court-appointed counsel moved to withdraw as counsel, asserting J.G. had substantially failed to fulfill her obligations to her attorney and, despite warnings, failed to remain in contact with her attorney. The juvenile court granted the motion to withdraw on August 4, 2017. On December 18, 2017, the grandfather moved to require J.G. to respond to discovery requests. On December 29, 2017, J.G. filed an application for court-appointed counsel and attorney Daniel Gulya was appointed to represent her on January 6, 2018. In an order signed on January 12, 2018, and emailed to counsel on January 17, 2018, the court ordered J.G. to comply with the grandfather’s discovery requests within seven days.

[¶11] On January 17, 2018, attorney Gulya moved for a continuance of the February 8, 2018 termination hearing, asserting he had insufficient time to adequately prepare for the hearing. According to attorney Gulya, the motion for a continuance was based on "schedule congestion," including a scheduled deposition in this case on January 22, 2018, and counsel’s felony jury trials in three other criminal cases scheduled before the termination hearing on February 8, 2018.

[¶12] On January 31, 2018, the juvenile court issued an order for J.G. to show cause on February 8, 2018, for her failure to comply with the January 2018 order compelling discovery. On February 1, 2018, the court denied attorney Gulya’s motion for a continuance, finding there was not cause for a continuance after stating the matter had been continued numerous times and needed to proceed to trial. Attorney Gulya immediately requested reconsideration. On February 2, 2018, attorney Gulya moved to withdraw as counsel, asserting he could not competently represent J.G. within the time frame for the upcoming hearing. Also on February 2, 2018, the grandfather filed a motion requesting that the unanswered requests for admission be deemed admitted, and the court granted the grandfather’s motion on February 7, 2018.

[¶13] At the beginning of the February 8, 2018 termination hearing, the juvenile court stated that it was denying the motion to reconsider a continuance and reiterated that it had granted the motion to deem the unanswered requests for admission be admitted. The court granted attorney Gulya’s request to withdraw as counsel of record, required him to act as standby counsel for J.G., and informed her that she would be representing herself in the hearing with the assistance of attorney Gulya as standby counsel. J.G. stated she would rather not represent herself. After further extensive discussion about the previously granted continuances and the reasons for those continuances, the court proceeded with the termination hearing with attorney Gulya as standby counsel for J.G.

[¶14] After the termination hearing, the juvenile court terminated J.G.’s parental rights to the child, finding clear and convincing evidence for termination under N.D.C.C. § 27-20-44(1)(a), (b), and (c) on the separate grounds of abandonment, aggravated circumstances, and deprivation that was likely to continue or would not be remedied and would cause the child to suffer serious mental, emotional, or physical harm.

II

[¶15] We initially consider J.G.’s argument that she was improperly denied counsel at the termination hearing. In determining whether or not J.G. was improperly denied counsel, we must consider three interrelated decisions by the juvenile court—the denial of the motion for a continuance, the granting of attorney Gulya’s motion to withdraw, and the determination that J.G. represent herself at the termination hearing with attorney Gulya as standby counsel.

A

[¶16] The juvenile court’s denial of attorney Gulya’s January 17, 2018, motion to continue the February 8, 2018, termination hearing will not be reversed on appeal absent an abuse of discretion. Interest of J.C. , 2007 ND 111, ¶ 6, 736 N.W.2d 451 ; Interest of A.S. , 2007 ND 83, ¶ 6, 733 N.W.2d 232. An abuse of discretion requires a court to act unreasonably, arbitrarily, or unconscionably. J.C. , at ¶ 6. The determination of whether or not there has been an abuse of discretion in denying a motion for continuance is dependent upon the particular facts and circumstances of each case and there is no mechanical test to determine whether a court has abused its discretion. Id .

[¶17] The child’s current environment does not reflect the usual exigencies ascribed to termination proceedings because no adoption is planned, the father’s rights were not terminated, and the child’s living arrangements with the grandfather since May 2014, will not change. However, the delay in the resolution of this proceeding is disturbing. The grandfather lives in Michigan and the multiple continuances at the last minute have forced him to reschedule trips to North Dakota. J.G. has had no contact with the child in four years and most of the delay is primarily attributable to her ...