Guardianship of Barros

20040255 In the Matter of Guardianship
of Steven Michael Barros, a
Minor
----------------------
Machelle Barros, Petitioner and Appellant
v.
Guy and Devra Smestad, Respondents and Appellees

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Gary A. Holum
Nature of Action: Guardian/Conservator
Counsel:
Appellant: Boughey Law Firm
Appellee: Olson & Burns P.C.
Term: 03/2005   Argument: 03/28/2005  10:45am
ND cite: 2005 ND 122
NW cite: 701 N.W.2d 402


Issues: 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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Docket entries:
109/13/2004 NOTICE OF APPEAL: 09/10/2004
209/13/2004 ORDER FOR TRANSCRIPT: 09/10/2004
309/15/2004 RETENTION OF RECORD ON APPEAL (copy of letter from Laurel Marsh to Val Weaver): 10/30/2004
409/15/2004 Copy of letter from Laurel Marsh to Lynn Boughey RE: Request for payment of trans.
510/11/2004 RECORD ON APPEAL (2 vols.) and Exhibits
610/27/2004 TRANSCRIPT DATED April 19, 2004
710/28/2004 DISK - tra of April 19, 2004
812/06/2004 MOT. EXT/TIME APPELLANT BRIEF (faxed)
912/06/2004 E-FILED MOTION (MAT)
1012/06/2004 ACTION BY CLERK (MAT). Granted: 12/20/2004
1112/20/2004 APPELLANT BRIEF
1212/20/2004 APPELLANT APPENDIX
1312/21/2004 DISK - ATB
1412/30/2004 Notice of Change of Counsel: Charles Demakis for Gary Lee & affidavit of service
1501/03/2005 Corrected TOA for ATB
1601/18/2005 APPELLEE BRIEF
1701/18/2005 Addendum of Appellees (attached to Appellee's Brief)
1801/18/2005 DISK - aeb (e-mailed)
1903/28/2005 APPEARANCES: Lynn M. Boughey; Charles G. DeMakis
2003/28/2005 ARGUED: Boughey; DeMakis (Vol. Z, Pg. 96)
2103/28/2005 The argument was not webcast at the direction of the Court
2207/13/2005 DISPOSITION (REMANDED): AFFIRMED/PT, REVERSED/PT
2307/13/2005 SPLIT OPINION: Maring, Mary Muehlen
2407/13/2005 (CONCURRING AND DISSENTING): Kapsner, Carol Ronning: CON/DIS
2507/13/2005 Costs on appeal awarded in favor of Appellant
2607/14/2005 Judgment Mailed to Parties
2707/29/2005 Notice of Entry of Judgment w/attachment & Cert. of Service
2808/04/2005 MANDATE
2908/08/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3011/08/2011 EXPUNGED - Nonpermanent record items destroyed

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