TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 15, 2017
RE: Rule 12, N.D.R.Juv.P., Discovery
Bismarck attorney Micheal Mulloy has requested that the committee discuss amendments to Rule 12 that would make it easier to obtain discovery in minor guardianship cases. In an email, attached, Mr. Mulloy explains that after the Supreme Court issued its Guardianship of J.S.L.F. decision, the South Central Judicial District has required all minor guardianship cases to be filed in juvenile court. A copy of the J.S.L.F. opinion is attached. Mr. Mulloy says that the juvenile discovery rules are too restrictive and do not allow adequate gathering of information on whether a child is deprived, which has to be proved in a minor guardianship case.
Staff contacted Unit 2 Juvenile Court Director Karen Kringlie for background on this issue. She said that minor guardianship cases are currently being filed in juvenile court statewide. She said the most common scenario leading to a minor guardianship petition would be when a parent leaves a child with a relative or friend for temporary care and then disappears. She said proving deprivation in such circumstances is usually not difficult.
She said the main difference between these cases and other deprivation cases is that county social services is not involved or investigating because the child is being cared for. Therefore, as Mr. Mulloy notes, the investigation into deprivation is the responsibility of the party seeking the guardianship.
Rule 12(a) covers discovery in deprivation cases. The types of discoverable information are listed in Rule 12(a)(1) and are somewhat limited. Mr. Mulloy states that he has sought broader discovery under Rule 12(a)(1)(F), which allows discovery of "other evidence favorable to the requesting party and relevant to the subject matter involved in the pending action." He states that he has not been very successful in convincing referees to allow broad discovery under this provision.
As a starting point for discussion, proposed amendments to Rule 12(a)(1)(F) that would allow discovery of "any evidence relevant to the issue of whether a child is deprived" are attached.