Interest of M.B.

20050206 In the Interest of
M.B. and N.B., Children
------------------
Marlene Sorum, L.S.W., Petitioner and Appellee
v.
Director, Cass County Social
Services, K.S. (f/k/a K.B.),
I.B., M.B., N.B., and Monty Mertz,
Guardian ad Litem, Respondents
------------------
I.B., Respondent and Appellant

Appeal from: Juvenile Court, East Central Judicial District, Cass County
Judge Wade L. Webb
Nature of Action: Termination/Parental Rights
Counsel:
Appellee: Constance Louise Cleveland , Asst. State's Attorney
Appellant: Garaas Law Firm
Term: 12/2005   Argument: 12/06/2005  1:30pm
ND cite: 2006 ND 19
NW cite: 709 N.W.2d 11

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Does the Petition that seeks termination of Joseph's parental rights, even coupled with the Petitioner's affidavit, give adequate notice to Joseph of the stated grounds relied upon by the lower court to determine that Joseph's parental rights should be terminated?
2. Should this Court accept the factual findings made by the lower court when (a) they are a product of an improper delegation of judicial functions to an officer of the executive branch in violation of Joseph's due process rights or without evidentiary support, and (b) are based upon an erroneous view of the law and matters that were not placed into evidence?
3. Is there sufficient evidence to terminate Joseph's parental rights?
4. Is there sufficient prognostic evidence to establish that deprivation will likely continue if Joseph's parental rights are not terminated?
5. Is it error to terminate Joseph's parental rights without establishing Cass County Social Services has used "reasonable efforts" to preserve and reunify Joseph with his children as required by N.D.C.C.  27-20-32.2?
6. What is the proper standard to allow visitation while a termination order is being reviewed by a court?

Reply Brief Issues:
The Petitioner's statement of the "Issues Presented" does not adequately frame the issues before this Court. For example, Petitioner states that the first issue before this Court is "Whether the father had adequate notice that his parental rights were subject to termination." See, Appellee's Brief, page iv. This phraseology evidences an intent to limit the review of Joseph's due process right which requires that he be apprised, within the Petition, of "(t)he facts which bring the child within the jurisdiction of the court, ... ." See, N.D.C.C.  27-20-21(1).
Similarly, the Petitioner sets forth her second issue as being, "Whether the District Court Judge erred in the review and in affirming the juvenile referee's decision." See, Appellee's Brief, page iv. This phraseology is used by the Petitioner with clear hopes that this Court will ignore the fact that the juvenile court referee adopted verbatim an Assistant Cass County State's Attorney's Findings and Order - even though there was no evidence in the record to support all findings. This Court should be reluctant to accept Petitioner's statement of appellate issues when such statement ignores key issues raised by Joseph.

Appellee's Statement of the Issues:
I.Whether the father had adequate notice that his parental rights were subject to termination.
II.Whether the district court judge erred in the review and in affirming the juvenile referee's decision.
III.Whether the petitioner established through clear and convincing evidence termination of parental rights is justified under N.D.C.C. 27-20-44.
a.Was the child a "deprived child"
b.Is the deprivation likely to continue
c.Will there be harm to the child
IV.Whether reasonable efforts were made to preserve the parental relationship.
V.Whether visitation with the children should be provided while the matter is on review and appeal.

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Docket entries:
106/20/2005 NOTICE OF APPEAL: 06/17/2005
206/20/2005 ORDER FOR TRANSCRIPT: 06/17/2005
306/20/2005 -- THIS IS A CONFIDENTIAL CASE --
407/19/2005 RECORD ON APPEAL & orig. TRA dated 10/27, 10/28/ & 10/29/04 (Not rec'd:#12,42,43,44,45,&57-tapes)
507/19/2005 DISK - TRA (10/27, 10/28, & 10/29/04)
608/08/2005 TRANSCRIPT DATED April 15, 2005
708/08/2005 DISK - TRA (4-15-05) (e-mailed)
809/16/2005 APPELLANT BRIEF
909/16/2005 APPELLANT APPENDIX
1009/19/2005 DISK - ATB
1109/22/2005 Additional copy of Appellant's Brief
1210/17/2005 APPELLEE BRIEF
1310/18/2005 DISK - aeb
1410/25/2005 REPLY BRIEF of Appellant
1510/26/2005 DISK - ryb
1612/06/2005 APPEARANCES: David A. Garaas; Constance L. Cleveland
1712/06/2005 ARGUED: D. Garaas; Cleveland
1812/06/2005 ORAL ARGUMENT WEBCAST
1901/19/2006 Supplemental Clerk's Certificate dated 1-18-06 (Entry Nos. 72-82, w/exception of #80--Tape)
2001/31/2006 DISPOSITION: AFFIRMED
2101/31/2006 UNANIMOUS OPINION: Sandstrom, Dale V.
2202/01/2006 Judgment Mailed to Parties
2302/27/2006 MANDATE
2403/01/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 10/22/2014