Herauf, Judge Bill
Kleven, Judge Debbie
Thompson, Judicial Referee Dale
Reich, Judge Dave
Hagburg, Mike, Staff
Hentzen, Louis, Staff
Mattson, Judge Doug
Maring, Justice Mary Muehlen
1st Agenda Item - Mike Hagburg - Introduce Rules Project
Mr. Hagburg provided background regarding North Dakota rules of court as well as other states that have juvenile rules (MN, CA) and offered a draft of preliminary North Dakota Juvenile Court Rules.
Ms. Cleveland suggested expanding the purpose to include reference to children's constitutional rights. Judge Dave Reich opposed this suggestion.
Ms. Mulhauser suggested that the last sentence of the scope and purpose section should include a phrase from the MN statute that says: "these rules shall be construed and administered to protect the best interest of children, and to address the unique character and needs of children."
Judge Kleven asked if there was a consensus regarding this suggestion. No members indicated opposition to the proposal. No other comments on proposed Rule 1.
Mr. Hagburg provided background: The Supreme Court of ND is permitted to promulgate procedural rules. This is unlike the federal system. Hence, the Supreme Court can supercede any statutes pertaining to procedural rules. Once a procedure has become a Rule, it can be then modified via petition to the Supreme Court (rather than going through the legislative process). This is a significant advantage to having rules.
Ms. Cleveland commented that it is not necessary to include reference to child's spouse, because a child who is married is not subject to the jurisdiction of the juvenile court. Remove "and of the child's spouse". Line 10 page 16.
J. Kleven asked for other comments on contents of the petition?
Ms. Mulhauser indicated it would be prudent to add reference to include circumstances where the child is in foster care. Hence, add "…whether the child is in custody and if so, whether in shelter care or detention, and the time the child was taken into custody." Line 16 page 16.
Group discussed ways that the rule could be more clear - "the officer thinks that it is in the best interest of the child and public that the proceeding be brought." The petition must be verified, but may also be on information and belief. Mike will re-draft to make this more clear - you are providing facts and that as a result of those facts, you believe that the action is prudent and necessary. The expansion will answer "what needs to be verified by the entity (whether provided by officer or neighbors)?" This is a court inquiry - the court can look to DJS/SS to provide additional information, not necessarily the responsibility of the petitioner. Group agrees that Mike can draft this section to include the group's intention that the facts be verified and to require a prayer for relief.
Judge Kleven asked if the rules should clarify who is responsible for filing and signing a petition (State's Attorneys, Social Workers?). Group agreed not at this time.
2nd Agenda Item - Presentation by Robin Huseby
Started in November of 2005, took over assignment of 10,000 cases. In 2006 there were 1,800 juvenile assignments. Ms. Huseby provided copies of draft guidelines for determining eligibility for indigent defense services.
The number one problem is "What if the parents are unwilling or unable to complete the application?" Under the UJCA, a child is not considered indigent if child's parent can pay for services. Therefore, if the parent refuses to complete the application, the court should order him/her to do so. If they do not, we just have to come up with a reasonable, common-sense solution. Sometimes we accept an application that says "parent unavailable". Sometimes it is completed by the child, a social worker, etc.
Another problem arises regarding parental assets. We'd like to get to a place where a judge will issue an order to show cause for contempt where the parent is known to have assets to pay for the child's legal services. The present guidelines are vague as to which parent's assets should be considered. The guidelines are drafted to indicate that only the custodial parent should complete the application. We are considering proposing to the 2009 legislature that both parental assets, custodial or non-custodial, are considered.
We spend time talking with clerks, counsel, juvenile authorities on these daily issues. There are a variety issues and we are continually talking about them with resources to continue to address them. We are proud of a new system where there is now a fast-track for eligibility if you are TANF, SSI, or medical assistance for the elderly.
Ms. Cleveland asked how counsel should end the relationship with the client, particularly
where the person has invoked the right to counsel but does nothing to pursue contacting the
attorney. What procedures should be followed by the attorney to satisfy his/her duty? Ms.
Huseby noted that some judges have been asked for an Order of Withdrawal. Ms. Delaney
noted that this is discussed more in the standards (criminal/juvenile) than in the guidelines.
Mr. McGeary asked for clarification on "custodial parent". Ms Delaney noted it arises not from statute but out of various cases. Ms. Huseby stated that she would believe that to be the parent that the child resides with, but notes that there is a practical conflict where the child is living with the parent who does not have legal physical custody. Ms. Huseby noted that in the Guidelines, they refer to "custodial parent" and indicated that they could review that section to insure that the intention is clear. She said that the purpose in looking toward the custodial parent is to expedite the processing of the application.
Ms. Kringlie asked if there was an exception for parents who are the victim of the crime. Ms. Huseby said no.
Judge Kleven asked if there are many Recoupment Order's received. Ms. Huseby said no. She is presently hoping to revise the recoupment statutes to make them more practical. There is not a lot of recoupment activity that occurs today.
Judge Kleven asked if, in the situation where you have to appoint right away, is it permissible to swear them in, take their financial information and bypass the application? Ms. Huseby said yes - this is appropriate at times.
Return to Rule Review
Rule 3(a)(3) change to "within sixty days of the initial REMOVAL" (instead of shelter care hearing) to comply with ASFA.
Ms. Mulhauser asked if the (a)(4) could include explanation of "good cause shown" (when there is no disposition for a deprived child at twelve months).
Ms. Cleveland suggested that the location/address of the courthouse should be included in the summons, because sometimes the juvenile court hearing is in a difference place than the juvenile court offices.
Ms. Cleveland suggested that the consequence of not attending the hearing should be
included in the summons - sanctions for non-appearance.
Minnesota Rule 25 Notice, 25.02 Content, includes in 25.02(f) a summons shall include "notice to the child and parent that a failure to appear in court could result in a warrant."
Mr. Thompson noted that under these rules, a party other than the child can waive service.
Change discussed and agreed upon:
3(e) line 36 remove "with the consent of "
Mr. Hagburg will split this Rule into two or three sections to reflect the above commentary.
Mr. Hagburg noted that this Rule is based on 27-20-23 and the question for discussion is how to align this to comport with ICWA without referencing it specifically in the rule. Observation on Rule 4 - it's a liberal rule - more liberal than federal rule 4 which most often requires service by marshals or federal process servers. The ICWA was probably intended to align more with federal rules.
Judge Kleven asked for other discussion on Rule 4. The group discussed whether or not the
term "party" should be defined here. The group's recollection was that "party" is not
defined in the statute by design, as the group agreed to reserve this for the Rules. Ms.
Cleveland suggested using the term "persons" here (when discussing notice) and Mr.
Hagburg indicated he would review Civil Rule 5 to determine if anything can be imported.
3rd Agenda Item - Set Meeting Times and Places
· November 30, 2007; Bismarck Radisson, 9am-2pm
· February 29, 2008; Fargo, 9am-2pm
· May 9, 2008, Bismarck Radisson, 9am-2pm
· August 15, 2008; Grand Forks, 9am-2pm
· November 7, 2008; Fargo, 9am-2pm
4th Agenda Item - Juvenile Policy Board Policy 112 Amendment
Changes proposed to make consistent with Statute.
Motion to submit to S. Court made by Ms. Kringlie. Mr. McGeary seconded. No opposition noted.
Meeting adjourned at 12:07pm.