Guardianship of Barros
In the Matter of Guardianship
of Steven Michael Barros, a
Machelle Barros, Petitioner and Appellant
Guy and Devra Smestad, Respondents and Appellees
North Central Judicial District,
Judge Gary A. Holum
|Nature of Action:||Guardian/Conservator|
|Term:||03/2005  Argument: 03/28/2005|
|ND cite:||2005 ND 122|
701 N.W.2d 402
Appellant's Statement of the Issues:|
1. The trial court erred in not terminating the guardianship due to Shelly's superior rights as the parent to raise her child; the trail court improperly placed the burden on Shelly in regards to the termination of the guardianship; and the trial court improperly refused to terminate the guardianship, thus resulting in a de facto termination of Shelly's parental rights.
2. The trial court failed to allow proper discovery in regards to whether the original guardianship was properly obtained and failure to allow Shelly access to her attorney's complete file, including the two pages of Carol Larson's notes that were sent to the Court sealed.
3. The trial court failed to grant visitation to Shelly as she requested at the hearing and failed to address Shelly's right of visitation since the guardianship was not terminated.
4. The trial court improperly limited evidence to evidence following the appointment of the guardianship and refused to allow in any evidence regarding whether the guardianship was properly obtained and the intent of the parties in regards to the guardianship being a temporary guardianship, as well as evidence relating to Shelly's understanding that Carol Larson was only her attorney when in fact Attorney Larson has subsequently stated that she represented both parties, which is a clear conflict of interest.
Appellee's Statement of the Issues:
1. The trial court did not err in refusing to rescind the guardianship as there is no procedure for recision of a guardianship and guardianship is not limited and does not serve as a de facto termination of parental rights.
2. The trial court properly placed the burden of proof on Machelle Barros, Appellant, hereafter Shelly, in regards to rescinding the guardianship of her minor child.
3. The trial court properly refused to enter any visitation schedule on Shelly's motion to reconsider as visitation was not properly before the court on the initial issue of this case, and the issue of visitation is not properly before this Court on appeal.
4. The trial court properly denied discovery of Attorney Larson's file.
5. The trial court properly limited evidence as to the appointment of guardianship and its status as permanent, as well as evidence of Shelly's understanding that Attorney Larson was her attorney.
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|1||09/13/2004 NOTICE OF APPEAL: 09/10/2004|
|2||09/13/2004 ORDER FOR TRANSCRIPT: 09/10/2004|
|3||09/15/2004 RETENTION OF RECORD ON APPEAL (copy of letter from Laurel Marsh to Val Weaver): 10/30/2004|
|4||09/15/2004 Copy of letter from Laurel Marsh to Lynn Boughey RE: Request for payment of trans.|
|5||10/11/2004 RECORD ON APPEAL (2 vols.) and Exhibits|
|6||10/27/2004 TRANSCRIPT DATED April 19, 2004|
|7||10/28/2004 DISK - tra of April 19, 2004|
|8||12/06/2004 MOT. EXT/TIME APPELLANT BRIEF (faxed)|
|9||12/06/2004 E-FILED MOTION (MAT)|
|10||12/06/2004 ACTION BY CLERK (MAT). Granted: 12/20/2004|
|11||12/20/2004 APPELLANT BRIEF|
|12||12/20/2004 APPELLANT APPENDIX|
|13||12/21/2004 DISK - ATB|
|14||12/30/2004 Notice of Change of Counsel: Charles Demakis for Gary Lee & affidavit of service|
|15||01/03/2005 Corrected TOA for ATB|
|16||01/18/2005 APPELLEE BRIEF|
|17||01/18/2005 Addendum of Appellees (attached to Appellee's Brief)|
|18||01/18/2005 DISK - aeb (e-mailed)|
|19||03/28/2005 APPEARANCES: Lynn M. Boughey; Charles G. DeMakis|
|20||03/28/2005 ARGUED: Boughey; DeMakis (Vol. Z, Pg. 96)|
|21||03/28/2005 The argument was not webcast at the direction of the Court|
|22||07/13/2005 DISPOSITION (REMANDED): AFFIRMED/PT, REVERSED/PT|
|23||07/13/2005 SPLIT OPINION: Maring, Mary Muehlen|
|24||07/13/2005 (CONCURRING AND DISSENTING): Kapsner, Carol Ronning: CON/DIS|
|25||07/13/2005 Costs on appeal awarded in favor of Appellant|
|26||07/14/2005 Judgment Mailed to Parties|
|27||07/29/2005 Notice of Entry of Judgment w/attachment & Cert. of Service|
|29||08/08/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|30||11/08/2011 EXPUNGED - Nonpermanent record items destroyed|