RULE 10. PRESENCE, DEFAULT
Effective Date: 7/1/2021
(a) Presence.
(1) Child. The child has the right to be present at all delinquency and continued foster care hearings. If the child is of sufficient age and competence. a child has the right to be present at all child in need of protection proceedings. The court may allow the child to be present at other hearings. The child waives the right to be present if the child voluntarily and without justification is absent after the hearing has commenced or if the child disrupts the proceedings.
(2) Counsel. If the child has counsel, counsel must be present at all hearings. Counsel for the state must be present or available for all hearings unless excused by the court.
(3) Parent, Guardian or Custodian. Except in a continued foster care matter under N.D.C.C. § 27-20.3-16, the parent, guardian or custodian of a child must be present at all hearings unless excused by the court. If such person fails to attend a hearing with the child without excuse, the court may order a law enforcement officer to take the person into custody and bring the person before the court. The court may hold the person in contempt. The court may proceed if it is in the best interests of the child to do so even if the parent, guardian, or custodian fails to appear.
(b) Default.
(1) If after being properly served with a summons or notice a parent, guardian or custodian fails to appear at a hearing, the court may receive evidence in support of the petition or reschedule the hearing.
(2) If the petition is proved by the applicable burden of proof, the court may enter an order granting the relief sought in the petition.
(c) Presence by Reliable Electronic Means. Presence permitted by contemporaneous audio or audiovisual transmission by reliable electronic means is presence for the purposes of this rule.
Rule 10 was adopted effective March 1, 2010; amended effective May 1, 2015; July 1, 2021.
Subdivision (a) was amended, effective May 1, 2015, to clarify that the child has the right to be present at hearings in continued foster care matters under N.D.C.C. § 27-20.3-16, but the parents, guardian, or custodian of the child are not required to appear at these hearings. Continued foster care matters involve children over the age of 18 who can legally act on their own behalf.
Paragraph (a)( 1) was amended, effective July 1, 2021, to clarify that, if a child is of sufficient age and competence, a child has the right to be present at all child in need of protection proceedings.
Subdivision (c) was added, effective May 1, 2015, to allow any person to be present by contemporaneous audio or audiovisual transmission using reliable electronic means if the court permits. Any appearance by electronic means must be consistent with the standards set by N.D. Sup. Ct. Admin. R. 52, which governs the use of contemporaneous transmission by reliable electronic means in court proceedings.
Rule 10 was amended, effective , to update terminology and statutory references consistent with the July 1, 2021, amendments to the Juvenile Court Act, N.D.C.C. chs. 27-20.2, 27- 20.3, and 27-20.4.
SOURCES: Juvenile Policy Board Minutes of June 11, 2021; September 5, 2014, page 4; February 20, 2009; December 5, 2008; August 8, 2008; May 9, 2008; February 29, 2008; September 21, 2007; April 20, 2007. Joint Procedure Committee Minutes of January 29-30, 2015, page 7; September 25-26, 2014, pages 6-12.
STATUTES AFFECTED:
Considered: N.D.C.C. § 27-20.3-16.
Cross Reference: N.D. Sup. Ct. Admin. R. 52 (Contemporaneous Transmission by Reliable Electronic Means).