RULE 10. PRESENCE, DEFAULT
1 (a) Presence.
2 (1) Child. The child has the right to be present at all delinquency,
3 unruly child and continued foster care hearings. The court may allow the child to
4 be present at other hearings. The child waives the right to be present if the child
5 voluntarily and without justification is absent after the hearing has commenced or
6 if the child disrupts the proceedings.
7 (2) Counsel. If the child has counsel, counsel must be present at all
8 hearings. Counsel for the state must be present or available for all hearings unless
9 excused by the court.
10 (3) Parent, Guardian or Custodian.
The Except in a
continued foster care
11 matter under N.D.C.C. § 27-20-30.1, the parent, guardian or custodian of a child
appear be present at all hearings unless excused by
the court. If such person
13 fails to attend a hearing with the child without excuse, the court may order a law
14 enforcement officer to take the person into custody and bring the person before the
15 court. The court may hold the person in contempt. The court may proceed if it is in
16 the best interests of the child to do so even if the parent, guardian, or custodian
17 fails to appear.
18 (b) Default.
19 (1) If after being properly served with a summons or notice a parent,
20 guardian or custodian fails to appear at a hearing, the court may receive evidence
21 in support of the petition or reschedule the hearing.
22 (2) If the petition is proved by the applicable burden of proof, the court may
23 enter an order granting the relief sought in the petition.
24 (c) Presence by Reliable Electronic Means. Presence permitted by
25 contemporaneous audio or audiovisual transmission by reliable electronic means
26 is presence for the purposes of this rule.
27 EXPLANATORY NOTE
28 Rule 10 was adopted effective March 1, 2010; amended, effective ____.
29 Subdivision (a) was amended, effective________________, to clarify that
30 the child has the right to be present at hearings in continued foster care matters
31 under N.D.C.C. § 27-20-30.1, but the parents, guardian, or custodian of the child
32 are not required to appear at these hearings. Continued foster care matters involve
33 children over the age of 18 who can legally act on their own behalf.
34 Subdivision (c) was added, effective ________________, to allow any
35 person to be present by contemporaneous audio or audiovisual transmission using
36 reliable electronic means if the court permits. Any appearance by electronic means
37 must be consistent with the standards set by N.D. Sup. Ct. Admin. R. 52, which
38 governs the use of contemporaneous transmission by reliable electronic means in
39 court proceedings.
40 Sources: Juvenile Policy Board Minutes of September 5, 2014, page 4;
41 February 20, 2009; December 5, 2008; August 8, 2008; May 9, 2008; February
42 29, 2008; September 21, 2007; April 20, 2007. Joint Procedure Committee
43 Minutes of January 29-30, 2015, pages____; September 25-26, 2014, pages 6-12.
44 Statutes Affected:
45 Superseded: N.D.C.C. § 27-20-22.
46 Considered: N.D.C.C. § 27-20-30.1.
47 Cross Reference: N.D. Sup. Ct. Admin. R. 52 (Contemporaneous
48 Transmission by Reliable Electronic Means).