IN THE SUPREME COURT
OF THE STATE OF NORTH DAKOTA
Kathlyn A. Quarne, )
Plaintiff, Appellee, ) Civil No. 94-C-0903
vs. ) Supreme Court No. 990045
Tracey J. Quarne, )
Defendant, Appellant. )
APPEAL FROM THE DISTRICT COURT
NORTHWEST JUDICIAL DISTRICT
WARD COUNTY, NORTH DAKOTA
HONORABLE GARY A. HOLUM, PRESIDING
BRIEF OF APPELLANT
Faron E. Terry
Mr. Gary H. Lee
PO Box 717
PO Box 1180
Minot, ND 58702-0717
Minot, ND 58702-1180
Attorney for Appellant
Attorney for Appellee
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . .
TABLE OF AUTHORITIES. . . . . . .
STATEMENT OF ISSUES .... .
PROCEDURAL AND FACTUAL HISTORY. .
STANDARD OF REVIEW. . . . . . . .
JURISDICTION . . .
LAW AND ARGUMENT. . . . . . . . .
1. Whether Tracey Quarne had a right
to the raw data underlying the reports
issued by the professional evaluators . . .
Whether Tracey Quarne had a right to
cross examine Tammy Ness and Dr. Bell
who had submitted reports to the court. . .
a) N.D. Rule of Court 8.2 requires cross-examination of witness(es) used to provide testimony at Interim Order Hearing. . 13
3. Whether Tracy Quarne had established
a prima facie case to warrant a hearing
on his Change of Custody Motion under
North Dakota Century Code Section
14-09-06.6. . . . . .
CONCLUSION . . .
TABLE OF AUTHORITIES
North Dakota Century Code Section 14-09-06.3 . . . . . 9,10
North Dakota Rule of Court 8.2(West 1997) . . . . . . 13
N.D. Cent. Code section 14-09-06.6 (West 1997) . . . . 14
Stout v Stout, 1997 ND 61, 560 N.W.2d 903(N.D. 1997) 8
McAdams v McAdams, 530 NW2d 647 (N.D. 1995) . . . . . 10,11
Helbling v Helbling, 541 N.W.2d 443 (N.D. 1995). . . 15
Blacks Law Dictionary 4th Edition (1991) . . . . . . . 15
STATEMENT OF ISSUES
1. WHETHER TRACEY QUARNE HAD A RIGHT TO THE RAW DATA UNDERLYING THE REPORTS ISSUED BY THE PROFESSIONAL EVALUATORS.
2. WHETHER TRACEY QUARNE HAD A RIGHT TO CROSS EXAMINE TAMMY NESS AND DR. BELL WHO HAD SUBMITTED REPORTS TO THE COURT.
3. WHETHER TRACEY QUARNE HAD ESTABLISHED A PRIMA FACIE CASE TO WARRANT A HEARING ON HIS CHANGE OF CUSTODY MOTION UNDER NORTH DAKOTA CENTURY CODE SECTION 14-09-06.6.
PROCEDURAL AND FACTUAL HISTORY On or about August 18, 1998, Tracey Quarne, appellant, filed a Motion for Change of Custody. (Appendix [Hereinafter A] at 9-11.) Concurrent with this, Mr. Quarne was convinced there were exceptional circumstances to warrant the issuance of an Ex Parte Interim Order, pending hearing on his Motion for Change of Custody. (A at 15-16.) Mr. Quarne presented the application for Ex parte Interim Order to the Honorable Gary Holum, whose familiarity with this matter is substantiated by virtue of the fact he has been judge in all prior proceedings relevant to this matter before the court, including custody of the minor child. (See Court records.) Judge Holum so agreed that exceptional circumstances existed that he signed the Ex parte Interim Order. (A at 33-35.)
On or about August 19, 1998, Mr. Quarne amended the Order again, by the hand of Judge Holum, to allow enforcement by the Ward County Sheriff's office. (A at 36-38.) However, the Sheriff's office did not enforce the Order, but rather, served the Order upon the Plaintiff's attorney, Gary Lee. (Transcript [Hereinafter T1] at 8.) Mr. Lee requested an emergency hearing on the Interim Order. At 11:05 a.m. and at 1:29 p.m., August 19, 1998, the court held an emergency hearing on the Ex Parte Interim Order. (T1 at 4 & 13.) Initially, Mr. Lee appeared on behalf of the Plaintiff, and Mr. Terry appeared on behalf of the Defendant. (T1 at 1.)
Mr. Quarne had initially submitted an Affidavit with attachments from the medical personnel of two different providers of services from California, where the minor child had been with Mr. Quarne during the summer for visitation, and from Glenn County Human Resources - Child Protective Services (CPS). (A at 43-66.) During the child's summer visitation with her biological father, Tracey J. Quarne, the child made statements to the aforementioned medical personnel and an investigator from Glenn County CPS to the effect,.... mommy kicked me in the tummy" ... and... "mommy slaps me off the bed." (T1 at 21.) Medical personnel wrote, in part, ..."The patient (sic the child) volunteers this information" and ... She does not require any pumping of information." (T1 at 23.) The medical providers in California reported this to Child Protective Services (CPS) of Glenn County California, who, in turn, were required, due to the jurisdictional authority of Ward County Social Services, as the alleged abuse occurred in Ward County, North Dakota, to obtain permission from Ward County Social Services to conduct an investigation. (See A at 46, 47 & T1 at 24 & 54.)
During the emergency hearing, the Plaintiff produced several witnesses, including two officers of the Minot Police Department. (T1 at 92-95.) As a result of the Glenn County CPS securing permission from Ward County Social Services to conduct the investigation in California, the Ward County Social Services had contacted the Minot Police Department who had opened an investigation into the matter. (T1 at 54 & A at 46, 47.) Curiously, Detective Metz of the Minot Police Department, along with Dale Goldade, a social worker with Ward County Social Services, interviewed the minor child on August 18, 1998. (T1 at 45-46.) August 18, 1998 is also the very day Judge Holum signed the first Ex Parte Interim Order, and the day before the emergency hearing. (A at 33-35.) Furthermore, Detective Paul Metz appeared for and testified on behalf of the Plaintiff, the very individual he was investigating for assault, while in the middle of said investigation, and without a subpoena. (T1 at 2, 58, 59 & 64.) Beyond this, Detective Metz had with him a complete, typed transcript of the interview he and Dale Goldade had conducted with the minor child. (T1 at 45 & 58-59.)
The second officer of the Minot Police Department who testified was Officer Scot Redding. (T1 at 92.) His testimony was considered relevant as he is the brother-in-law of the Plaintiff, Ms. Quarne. (T1 at 93.) Officer Redding testified that he had not observed his sister-in-law, Kathlyn Quarne, abuse the minor child. He further testified that neither has he observed anyone abuse this or any minor child in his presence. (T1 at 92-95.)
The following dialogue occurred during the August 18, 1998 interview between Detective Metz, Ward County Social Services Social Worker, Dale Goldade, and the minor child. (T1 at 52, 53, 56, 57 & 60.) Detective Metz testified in pertinent part as follows:
"Ali, somebody told us that maybe your mommy kicked you in the stomach."
"Well, actually Zachary (a cat) made me sick."
"Did you tell somebody that your momma kicked you in the stomach?" (And she hesitated, and I told her "it was alright if she had told somebody that."
She said that she "had told Kristine everything" and said "it was too late to let my mommy say no, don't say that."
"Did somebody tell you to say that your mommy kicked you in the stomach?"
She said, "No."
And I again asked, "Nobody told you to say that, nobody told you what to tell the doctor?"
"No, mommy told me not to say that. Mommy didn't say I can tell no one that, but I just said it because I wanted to let my daddy know."
And I asked her, "You wanted to let your daddy know what?"
"That mommy really hurt me and stuff, that she really spanked me and that's all she did and I just fell out of bed."
"Zachary (a cat) made you sick. Did you tell somebody that your mama kicked you in the stomach?"
"It's all right if you did."
"Well, I telled Kristine everything and it was too late to let my mommy say no, don't say that."
"Nobody told you to say that? Nobody told you to tell the doctor that?"
"No, mommy said not to say that. Mommy didn't say I can tell no one that, that I just said it 'cuz, um, 'cuz I wanted to let my daddy know."
"You wanted to let him know what?"
"That mommy really hurt me and stuff, that she really spanked me and that she did and I just fell out of bed. That's what she telled me."
"I asked the question -- we were talking about Kristine. I said "so let me see if I have it right, Ali. Kristine told you to say that your mommy kicked me?"
She answered, "Kristine didn't say that, I said that."
Based on this dialogue, Detective Metz, a colleague of the Plaintiff' brother-in-law, Scot Redding, an officer of the Minot Police Department, stated he had concluded that the minor child had not been coached by Ms. Quarne and had lied about the statements of abuse. (T1 at 53, 54 & 61.)
During the hearing, Ms. Quarne suggested a social worker from North Central Human Service Center, Tammy Ness, do the evaluation(s) whom Ms. Quarne referenced as 'Patty Ness' in court. (T1 at 110.) Based on the testimony at the emergency hearing, the court held the Interim Order in abeyance and ordered an evaluation of the child and possibly the Defendant by a court appointed psychiatrist, Dr. Mark Bell, but, quite notably, the court did not appoint nor recommend the social worker, Tammy Ness. (Tl at 120, A at 82.)
At no time was Mr. Quarne allowed to participate nor even speak with the psychiatrist, even though Dr. Bell suggested he be made a part of the evaluation. (Transcript dated December 16, 1998 [Hereinafter T2] at 9 & A at 77, 82.) Additionally, on this same day, August 25, 1998, Judge Holum provided Dr. Bell with the records from Enloe Hospital, Chico, California, and Glenn County Human Resource Agency, Willows, California. (A at 83.) Incredibly, the report from Becky Long, PA, Convenient Care, Chico, California, the report Judge Holum referenced in court as ..."one of the bases for issuing the order"... was not mentioned in the letter to Dr. Bell and was, therefore, apparently omitted from the materials presented to Dr. Bell. (T at 12-13 & A at 83.) Furthermore, in this same letter to Dr. Bell, Judge Holum included ..."a copy of an order issued today directing that reports compiled by Detective Paul Metz of the Minot Police Department and by Dale Goldade of Ward County Social Services be released to you (sic Dr. Bell) in the very near future." (A at 83.) Counsel has not received a copy of this order nor a copy of the report compiled by Detective Metz nor a copy of the report compiled by Social Worker Dale Goldade.
The evaluation took several months. (A at 68.) During this time, Mr. Quarne requested that this matter be set for hearing. (A at 40-42 & A at 78.) Mr. Quarne requested, at least, an Interim Order hearing, which was denied. (A at 78.) Mr. Quarne requested that the raw data of the evaluations be made available to counsel, which, as it has not been produced for counsel some five (5) months later, has been denied. (A at 78.)
Within the record, according to the Court Reporter (See Record of the Court), is a letter to Judge Holum from Linda Heilman, Director of Ward County Social Services and a letter to Judge Holum from Debby Anderson, a counselor from North Central Human Services Center, neither of which has been provided to counsel. These documents were requested from the Supreme Court clerk. (A at 79-80.)
What is in the record and has been provided to counsel is a report from the same Tammy Ness Ms. Quarne had recommended to the court during the emergency hearing, again, whom Ms. Quarne referred to as 'Patty' Ness in court. (A at 75-76, T1 at 110.)
The report of Tammy Ness is addressed to Dr. Townsend, Psychologist, of UniMed Medical Center, whom Dr. Bell had supposedly contacted to do a psychological evaluation. (A at 67, 68, 75-76.) Tammy Ness's name never appears as a contact person in this correspondence from Dr. Bell. (A at 67, 68.) It is confusing if Dr. Bell had, in fact, contacted Dr. Townsend, or if Dr. Townsend had, in fact, conducted a psychological evaluation as Dr. Townsend has provided nothing, not even a letter acknowledging his involvement, raw data, or a report to the court, Dr. Bell, or counsel some eight (8) months later.
The court did receive a report from Dr. Bell indicating he did not believe Ms. Quarne had abused the minor child. (A at 68-76.) However, Dr. Bell states, as to the minor child's medical history, there is no history of allergies, present or past medications, surgeries and the child is without acute illness. (A at 73.) The fact of the matter is the minor child has been seen over 100 times by physicians and has been hospitalized and assumed to be on medication. (T2 at 9 and A at 7 item 204 attachments.) Dr. Bell also states that the primary historian for his evaluation is the mother, the very person being evaluated for abuse. (A at 72.) Interestingly, Ms. Quarne was able to recall for Dr. Bell the fact she had had a tonsillectomy and an adenoidectomy during her childhood. (A at 70.)
Without allowing Mr. Quarne the opportunity to cross-examine the experts thus far produced, setting a final hearing on the Interim Order, or the opportunity to produce his own witnesses, the court issued its Memorandum Decision and Findings of Facts and Conclusions of Law which denied Mr. Quarne's Motion for Change of Custody. (A at 27-32.) Tracey Quarne strongly objected to any Findings or Memorandum Decision without the opportunity to cross-examine the expert witnesses the court used in its evaluation, the raw data and the right to produce his own witnesses. (A at 39-42.) Moreover, the court did not schedule this matter for hearing on the Change of Custody, apparently because the court felt Mr. Quarne had not established a prima facie case.
STANDARD OF REVIEW
A finding is clearly erroneous under Rule 52(a), N.D.R.Civ.P., only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Stout v Stout, 1997 ND 61,¶ 8, 560 N.W.2d 903,906 (N.D. 1997)(Citation omitted).
The district court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Sec. 27-05-06(2). The supreme court has jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Secs. 28-27-01 and 28-27-02(1)&(5). The appeal is timely under Rule 4(a), N.D.R.App.P.
LAW AND ARGUMENT
1. Whether Tracey Quarne had a right to the raw data underlying the reports issued by the professional evaluators.
2. Whether Tracey Quarne had a right to cross examine Tammy Ness and Dr. Bell who had submitted reports to the court.
North Dakota Century Code Section 14-09-06.3 states as
1. In contested custody proceedings the court may, upon the request of either party, or, upon its own motion, order an investigation and report concerning custodial arrangements for the child. The court shall designate a person or agency responsible for making the investigation and report, which designees may include the county social service board, public health officer, school officials, and any other public agency or private practitioner it deems qualified to make the investigation.
2. The investigator may consult any person who may have information about the child and any potential custody arrangements, and upon order of the court may refer the child to any professional personnel for diagnosis.
3. The court shall mail the investigator's report to counsel and to any party not represented by counsel at least thirty days before the hearing. The investigator shall make available to any such counsel or party the complete file of data and reports underlying the investigator's report and the names and addresses of all persons whom the investigator has consulted. A party may call the investigator and any person whom the investigator has consulted for cross-examination at the hearing. A party may not waive the party's right of cross-examination before the hearing.
4. The court shall enter an order for the costs of any such investigation against either or both parties, except that if the parties are indigent the expenses must be e by the county.
N.D. Cent. Code section 14-09-06.3 (West 1997). The court did not order a full custody evaluation, but appointed Dr. Bell to do a psychological evaluation of the mother and child. Ms. Quarne will likely argue that this section does not apply to the evaluation in this case. However, the court appointed two experts and from the experts he made the following Finding:
Dr. Bell's evaluation as it relates to Alexandra indicates that she is an extremely precocious and appositional child and has learned to manipulate situations extremely well.
(A at 31.) This fact came from documentary evidence, a report, provided to the court by Dr. Bell. Most facts are determined when both sides are given an opportunity to cross-examine the witness.
The North Dakota supreme court has looked at section 14-09-06.3 in the case of McAdams v McAdams. The court stated, which is very relevant to this mater, as follows:
Under N.D.C.C. Sec. 14-09-06.3, the court may order a custody investigation upon motion of a party or upon its own motion. The investigator's report is supplied to the parties and the investigator must make the complete file underlying the report available. N.D.C.C. Sec. 14-09-06.3(3). A party may call the investigator for cross-examination at the hearing. For a district court to use a custody investigator's report, it should be made part of the evidentiary record. (Citation omitted). These procedural safeguards track those found in Rule 706, N.D.R.Evid. Under Rule 706, the court may appoint an expert witness upon motion of a party or its own motion. The expert's findings shall be available to the parties. The parties may depose the expert, and the expert is subject to cross-examination by each party. The rule specifically provides 'the witness may be called to testify by the court or any party.' Rule 706(a), N.D.R.Evid.
Rule 614, N.D.R.Evid., provides the court may call or interrogate witnesses. 'The rule, however, clearly allows the court to call the witness to testify only on the record under oath, and specifically provides that all parties are entitled to cross-examine the witness.' (Citation omitted).
These rules ensure the court's decision is based on the evidence adduced at trial. 'One of the fundamental precepts of our judicial system is that the finder of fact must rely only on the evidence presented in court.'
McAdams v McAdams, 530 NW2d 647,651 (N.D. 1995). In a nutshell, the court did not make any of the raw data available to counsel nor was Mr. Quarne allowed his fundamental right to cross examine expert witnesses. (It was requested on several occasions that Mr. Quarne wanted to cross examine these witnesses).
The McAdams case states that "one of the fundamental precepts of our judicial system is the finder of fact must rely only on the evidence presented in court". Id. In a document dated August 26, 1998 is a letter from Linda Heilman, Social Service Supervisor addressed to Judge Gary Holum. (A at 79.) Mr. Quarne received this letter after reviewing the Clerk's Certificate of Record and requesting the clerk of the supreme court to provide this document to counsel. This indicates that an assessment was being completed and would be forwarded to the court and Dr. Mark Bell. This surely was part of the raw data used by Dr. Bell in his report. It is unclear whether the court received the assessment. Yet, Mr. Quarne never received a copy of the assessment or the Order alluded to in the letter. Surely, Mr. Quarne had a right to review of this information and to cross-examine Dr. Bell as to the weight he gave this assessment. There is also another letter in the file dated November 6, 1998 and addressed to LaVonne Carlson. (A at 80-81.) This letter was not provided to Mr. Quarne or his counsel. What else did Mr. Quarne not receive? This shows there is a fundamental right to be provided the raw data and all the data the expert used in the completion of his report.
Mr. Quarne had a right to cross examine Dr. Bell and Tammy Ness. In Dr. Bells report he states as to the minor child's medical history, there is no history of allergies, present or past medications, surgeries and the child is without acute illness. (A at 73.) At a supplemental hearing, Mr. Quarne introduced medical records that show that Alexandra had been seen numerous times in the last several years. (T2 at 4.) Clearly, Dr. Bell was not provided appropriate clinical history. This shows the need for cross examination, for Mr. Quarne to ask Dr. Bell and to establish whether, with this information, it would have made a difference in his final determination. Curiously, in his report Dr. Bell states that the primary historian for his evaluation was Kathy Quarne, who is the very person being evaluated for abuse. (A at 72.) Tracey Quarne had a fundamental right to the raw data and all data used in the completion of Dr. Bell's and Tammy Ness's reports. Tracey Quarne had a fundamental right to cross-examine both experts.
As alluded to in the procedural history, Tammy Ness, a licensed social worker, provided a report to the court. In searching all court records and correspondence, there is nothing, not even from Dr. Bell, that alludes to Tammy Ness. Several of the letters from Dr. Bell do allude to Dr. Townsend. Cross-examination and access to the raw data would have clarified some of the confusion as to Dr. Townsend and Tammy Ness. It is confusing whether Dr. Bell had, in fact, contacted Dr. Townsend, or if Dr. Townsend had, in fact, conducted a psychological evaluation. Dr. Townsend has provided nothing, not even a letter acknowledging his involvement, raw data, or a report to the court, Dr. Bell or counsel some eight (8) months later. It is, therefore, quite confusing as to how the report from Tammy Ness made its way into the Court record as she was not only not accepted by the Court but had, in fact, been rejected by the court and was not working in conjunction with Dr. Bell as her name or services do not appear in any of Dr. Bell's reports or writings. Clearly, cross examination could have clarified this confusion.
a) N.D. Rule of Court 8.2 requires cross-examination of witnesses used to provide testimony at Interim Order Hearing.
It should be noted that Mr. Quarne was not given his hearing on the Interim Order. North Dakota Rule of Court 8.2 states in pertinent part as follows:
(2) Unless the court otherwise orders, evidence either in support of or in opposition to the interim order must be presented by affidavit. Evidence presented by affidavit may not be considered unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross examination. The party initially seeking interim relief shall proceed first at the hearing. The affidavits and itemized financial statement of the moving party must be served and filed no later than ten days prior to the commencement of the hearing. Respondent's affidavits and itemized financial statement must be served and filed no later than three days prior to the commencement of the hearing.
North Dakota Rule of Court 8.2(West 1997). The rule clearly states that evidence presented by affidavit may not be considered unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross-examination. Mr. Quarne will concede that the evidence provided by Dr. Bell and Tammy Ness was not provided to the court by affidavit. Yet, if evidence provided by Affidavit cannot be considered unless the affiant is made available for cross-examination, there is a much stronger case that evidence provided in a report, not under oath, must not be considered unless the maker of the report is available for cross-examination. Thus, the rule requires that since the experts who made the reports were not available for cross-examination, then the reports should not have been used as evidence to support the Judge's decision to deny the Motion and the Request for Interim Order. The Judge's Findings are clearly erroneous and induced by an incorrect application of the law.
3. Whether Tracy Quarne had established a prima facie case to warrant a hearing on his Change of Custody Motion under North Dakota Century Code Section 14-09-06.6.
Tracey Quarne on several occasions asked that this matter be set for evidentiary hearing so he could cross-examine the experts and present additional testimony. He was denied both a hearing on his Interim Order and a hearing on his Motion for Change of Custody. North Dakota Century Code Section 14-09-06.6 states in pertinent part as follows:
4. A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.
N.D. Cent. Code section 14-09-06.6 (West 1997). Mr. Quarne followed the dictates of this statute. However, the court did not. In fact, the court made no decision as to this statute at all. The court initially signed the ex-parte Interim Order thus he clearly had to feel that Mr. Quarne had established a prima facie case. It is true that the court did stay that Interim Order pending an evaluation by Dr. Bell. However, the courts decision to deny the motion was induced by an erroneous view of the law. The North Dakota supreme court has defined prima facie in several case, in Helbling v Helbling the court stated:
When the party with the burden of proof establishes a prima facie case, 'the burden of going forward with the evidence ... shifts to the defendant. If the defendant can impair the prima facie quality of [i.e., rebut] the case against him, the burden [of going forward] returns to the party having the burden of proof.' (Citation omitted) If the party having the burden of proof establishes a prima facie case, this party will prevail unless the opposing party offers 'proof to the contrary.'
Helbling v Helbling, 541 N.W.2d 443,446(N.D. 1995). Blacks Law Dictionary defines Prima Facie as follows: "A prima facie case consists of sufficient evidence in the type of case to get plaintiff past a motion for directed verdict in a jury case or motion to dismiss in a nonjury case; it is evidence necessary to require defendant to proceed with his case." Blacks Law Dictionary 4th Edition (1991). Mr. Quarne established a prima facie case and should have been given a hearing. At the very least, he should have been given a hearing on the Interim Order.
CONCLUSION Tracey Quarne was denied his right to the raw data of the experts that supplied reports to the court. In addition, Mr. Quarne had a fundamental right to cross-examine these witnesses after numerous requests. Judge Holum signed an Interim Order, this in and of itself, shows that Mr. Quarne had created a prima facie case. Any Findings by the court were induced by a wrong application of the law.
Dated this ___ day of April, 1999.
Faron E. Terry #04925
Attorney for Appellant
216 South Broadway, Suite 3
PO Box 717
Minot, ND 58702-0717