Members Present
Judge Debbie Kleven
Judge Gary Lee
Justice Mary Muehlen Maring
Judge Bruce Romanik
*Steve Balaban
*Connie Cleveland
*Clarence Daniel
*Robert Freed
**Louis Hentzen
Karen Kringlie
*Dave McGeary
*Tara Muhlhauser
*Ken Sorenson
Dale Thompson
Members Absent
**Jim Ganje
*Paul Murphy
Judge Cynthia Rothe-Seeger
* = Expanded membership for purposes of discussing the Uniform Juvenile Court Act.
** = Staff
Minutes
Michelle Kommer, UND School of Law student
Judge Kleven called the meeting to order, and introduced Michelle Kommer, a 2L from UND School of Law who will be providing administrative support to the committee as part of a special project through the School of Law.
1st Agenda Item: Legal Counsel/GAL in Termination of Parental Rights:
Judge Kleven explained that there may be an inconsistent practice pertaining to the appointment of counsel from the Indigent Defense Fund (IDF) managed by Robin Huseby. Some judges are appointing both a legal GAL and an attorney in termination of parental rights (TPR) cases, and Ms. Huseby has expressed that the IDF does not have
the resources to permit the appointment of two attorneys to a TPR case.
Discussion ensued regarding the role of the legal GAL and the attorney in TPR cases. Tara Muhlhauser provided background on the lay GAL role. Per Ms. Muhlhauser, the lay GAL manages the case up to the TPR petition. Ms. Muhlhauser expressed that the best alternative is to have a lay GAL represent the child’s best interest through the TPR
process, then an attorney to represent the child’s legal rights in the TPR process.
Robert Freed expressed concern regarding, for example, a situation where a ten-year old wanted to stay with his parent (child’s interest advanced by the legal GAL), but where a
TPR is actually in the child’s best legal interest. Mr. Freed indicated that in this example, an attorney would be needed in addition to the legal GAL. Per Judge Kleven, Robin Huseby of IDF won’t permit a legal GAL and an attorney. Judge Kleven indicated that a
reasonable decision must be made based on the most common scenarios rather than exceptions or forecasts as to all possible scenarios.
Ms. Muhlhauser offered to take accountability for training and associated expenses for training lay GAL’s to take over the role of representing the child’s best interest throughout the TPR process, with the judge appointing counsel at petition for TPR. She expressed that this will ensure continuity and support for the child through the TPR process.
Louis Hentzen shared that a survey was done across states and results were that some states are appointing a legal representative at age 14. In North Dakota there has been a practice that an attorney is appointed at termination petition, ending GAL involvement. Judge Kleven agreed that this has been the practice as directed by Court Administration, but is not presently reflected in the statute. Mr. Hentzen added that this is not the practice consistently across the state, and that a chasm exists, as in some districts, the GAL quits before the TPR, and the new attorney starts, causing a break in continuity.
Discussion ensued regarding resources, including how many TPR’s were done in North Dakota last year. Mr. Hentzen said that there were 80+ TPR’s recorded in Cass County alone, but that there may be some inconsistency in coding as between contested and uncontested TPR’s.
Ms. Muhlhauser said she is concerned about residual TPR issues relative to ICWA. It is her hope to better resolve these issues prior to TPR so that ICWA issues are resolved by TPR, permitting permanency for the child and adoptive family. Ms. Muhlhauser noted concern regarding inheritance rights particularly as to tribal rights. She noted that having an attorney in that setting provides peace of mind. Judge Bruce Romanick and Judge Kleven noted that this is the practice in their jurisdictions presently. Ms. Muhlhauser indicated that the GAL should be the check and balance all along the process, getting family and relatives out of the woodwork well before TPR. She noted that there are presently 160+ kids in long-term care, that is, children that have been in foster care post-TPR for two years or longer.
Discussion ensued as to whether this expectation should be in a statute or a rule. Judge Kleven suggested it be put in the rules, as Ms. Huseby merely wants an explanation of the process so that she can support and enforce it. It was agreed that a child is a party to a TPR, and that the language of 27-20-26 is acceptable.
Note: Per Ms. Muhlhauser, Dixie Evans, current director of the GAL program, is leaving her position and the search for her replacement is underway. The job description indicates a preference for a Juris Doctor degree.
Mr. Freed asked the group to consider the process for appointment of an attorney – can it be quicker? Automatic? Mr. Freed suggested that it is not necessary to wait for the court appearance to appoint an attorney, but rather one could be appointed upon petition for TPR. Karen Kringlie noted that there is presently a form (Robin’s) that permits appointment at the shelter care hearing.
2nd Agenda Item: Juvenile Officers’ Responsibilities in Deprivation Cases:
Judge Kleven asked Ms. Kringlie to summarize the issue. Ms. Kringlie indicated that
upon distribution of the Juvenile Court Officers’ Best Practices Manual, an issue arose regarding the “services required” section. It became known at this point that one area of
the state was doing informal adjustments in deprivation actions. Upon being informed that informal adjustments are not to be done as pertaining to deprivation actions, that particular state’s attorney sent an e-mail to all state’s attorney’s reiterating (incorrectly)
that no informal adjustments could be done at all.
Discussion ensued to clarify the matter, and a background of the informal adjustment process was reviewed. Formerly, the informal adjustment process preceded the initiation of the petition process. Dave McGeary and Ms. Kringlie formerly provided information as to “services required” orders to parents, which is no longer done. Ms. Muhlhauser said there may be a disconnect with partners. She added that this is an “old role”, dating back to when the 1975 Child Abuse and Neglect Law went into effect. Ms. Muhlhauser suggested there be a middle ground – some cooperation between the court system and social services. Judge Kleven expressed discomfort with putting the court’s employees in a position of being a witness for the state. Mr. McGeary added that this question really goes to the heart of the matter – what is the juvenile court officer’s role in deprivation matters? Judge Kleven again expressed concern that this situation causes an unacceptable blurring of the judicial and executive branches. Judge Romanick asked why we are allowing this practice for delinquency and not for deprivation. Mr. Hentzen expressed concern with judicial officers investigating, preparing, and presenting to the court. Justice Mary Maring and Judge Kleven agreed.
Judge Kleven asked for suggestions in addressing this issue. Mr. Kringlie indicated that the manual presently says that the state’s attorney presents the case. The group agreed this is appropriate. The group further agreed that the process will be outlined in the delinquency code, and absent from the deprivation code, which will address the problem.
Ms. Muhlhauser added that she had proposed a special attorney general for juvenile matters to assist the state’s attorney with complex TPR cases, or where the state’s attorney was unwilling to go forward. She noted this has not been approved, but has been proposed.
Ms. Kringlie presented proposed additions to the Best Practices Manual (See AttachmentA). She indicated that the committee continues to meet on forms and intend to provide examples of forms for common usage.
3rd Agenda Item: Continued review of Uniform Juvenile Court Act beginning with 27-20-38:
27-20-38:
Discussion ensued as to the definition of “placement” as it is contained in the Code at Section 27-20-32.1. If a child goes back home before thirty days, is another hearing required? The group concluded that today, the practice may be inconsistent, but a hearing should be required. Ms. Kringlie indicated the Best Practices Manual indicates a hearing is required, and most places are doing this already.
Justice Maring asked if there will be education and training on the Juvenile Court Best
Practice Manual. Mr. McGeary said that at the next (juvenile court) meeting it will be reviewed, and that it is presently available online but not published yet. Ms. Muhlhauser agreed that Dept. of Juvenile Services and state’s attorneys could benefit from education.
A question was presented as to whether social services workers do affidavits for removal. The group agreed that they do, and Ms. Muhlhauser indicated she would take care of this.
27-20-39:
Judge Kleven asked what the practice is presently. The group agreed that work is done through the Interstate Compact to transfer. As such, the group agreed this section should be stricken and re-drafted to reflect process similar to the adult Interstate Compact. Per
Mr. Sorenson, there is a new North Dakota Interstate Compact Act contained in Title 12. North Dakota is the first state to adopt, and will go into effect upon the ratification of the Act by 35 states. North Dakota continues to operate under the old Interstate Compact
Act. Pam Helbling is the Interstate Compact Coordinator for North Dakota.
27-20-40:
The group agreed this section should be stricken and re-drafted to reflect process similar to the adult Interstate Compact.
27-20-41:
The group agreed this section should be stricken and re-drafted to reflect process similar
to the adult Interstate Compact.
27-20-42:
The group agreed this section should be stricken and re-drafted to reflect process similar to the adult Interstate Compact.
27-20-43:
The group agreed this section should be stricken and re-drafted to reflect process similar to the adult Interstate Compact.
27-20-44:
Michelle Kommer summarized the content of her law review article. Conversation ensued as to the merits of the proposal for a revised statute explicitly providing for expedited termination of parental rights in aggravated circumstances, including where a parent is involved in methamphetamine. It was agreed that discussion would continue at the next committee meeting on April 24.
Mr. Freed asked for clarification as to practice relative to 27-20-44.1(c) which states that written consent of the parent must be acknowledged before the court regarding involuntary terminations. He indicated that it had become known to him that Cass County is not requiring a court appearance or acknowledgment before the court. Discussion ensued as to whether this example pertained to civil/adoption terminations, or TPR’s under this section. The group agreed that civil/adoption terminations should be filed under Chapter 14. Mr. Freed suggested that to remedy this inconsistency, the statute should include the language “personally appear” and/or “a” court (not “the” court).
27-20-45.2(a)
The group discussed the possibility of replacing “Uniform Parentage Act” with “state law or equivalent statute of another state”.
A question was raised as to whether the juvenile court officer should be approving TPR petitions where a parent retains a private attorney to terminate the other parents’ rights (this is the current practice). An additional question was raised as to whether the juvenile court officer should be approving deprivation petitions in a gatekeeper role. The group’s consensus was that juvenile court officers should not be signing these petitions, but that private attorney’s should be proceeding under Chapter 14.
27-20-45.4
Ms. Cleveland asked what effect a TPR has on a pre-existing guardianship that was established by the order of a court in another state. For example, where a grandparent was appointed as guardian in a South Dakota court, subsequently deprives the child in
Fargo, absconds (leaving the child in county custody), and Cass County moves to TPR, what effect does this have on the guardianship? How is the guardianship effectively extinguished? Judge Kleven suggested that the appropriate process would be to contact the judge where the guardianship was filed, forward to the judge a certified copy of this
state’s order Terminating Parental Right, and receive full faith and credit, thus terminating the guardianship in the court of origin.
Judge Kleven concluded by indicating that discussion regarding 27-20-44 TPR will continue at the April 24 committee meeting. Also at that meeting, the committee will review the standard forms proposed for the Best Practices Manual.
Mr. Hentzen noted that the deadline for drafting changes is July 24, 2006.