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 10:45am|
|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|
|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|
|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|