Opinions

Barros v. ND Dept. of Transportation 2008 ND 132
Docket No.: 20080066
Filing Date: 6/26/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department of Transportation is not required to call all persons who have handled a blood sample to establish a chain of custody for the sample. To establish chain of custody and introduce the results of a blood test, the Department's must show that the sample tested is the same one originally drawn from the defendant.

Interest of K.L. and M.S. (CONFIDENTIAL)(consolidated w/20070310) 2008 ND 131
Docket No.: 20070309
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: A juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
The State cannot rely on past deprivation alone, but must provide prognostic evidence, Ademonstrating the deprivation will continue.
A claim for ineffective assistance of counsel in termination proceedings is recognized, but the necessary evidence of the claim must appear on the face of the record and a case will not be remanded for the purpose of developing a record to support the claim.

Matter of E.W.F. (Confidential) 2008 ND 130
Docket No.: 20080037
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard and will be affirmed unless the district court's order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.
In addition to the three requirements contained in the plain language of the statute governing sexually dangerous individual commitments, substantive due process rights require the individual facing commitment must be shown to have serious difficulty controlling his behavior.
In a civil proceeding, a party's failure to offer evidence refuting or otherwise explaining the opposing party's witness testimony warrants the inference that the opposing party's witness's statements were true and correct.

Laib v. Laib 2008 ND 129
Docket No.: 20070079
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When the district court in a divorce proceeding has made specific findings that the domestic violence presumption against an award of custody has been triggered and the perpetrator has failed to rebut the presumption, the court may not later change custody to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted.
A motion for relief from a judgment is not a substitute for an appeal.

Adoption of C.D. (CONFIDENTIAL) 2008 ND 128
Docket No.: 20070171
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Adoption
Author: VandeWalle, Gerald

Highlight: An Indian tribe's determinations of its own membership and eligibility for membership are binding and conclusive in a proceeding under the Indian Child Welfare Act ("ICWA").
The burden of proof is upon the party asserting ICWA's applicability to present evidence that the child is an "Indian child" as defined in 25 U.S.C. section 1903(4).
Allegations in pleadings, motions, or briefs are not evidence.
For purposes of applying ICWA, membership in a tribe is not synonymous with enrollment as a member of a tribe, and a party may be a member of a tribe without being enrolled in the tribe.
ICWA applies only to tribal Indians, and does not extend to ethnic Indians who are not eligible for membership in a federally recognized Indian tribe.

Allen v. State 2008 ND 127
Docket No.: 20080025
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

State v. Everett 2008 ND 126
Docket No.: 20070074
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

O'Connor v. Jensen 2008 ND 125
Docket No.: 20080035
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Amended judgment modifying child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Murphy v. State 2008 ND 124
Docket No.: 20070375
Filing Date: 6/26/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Ernst (Cross-reference 20040117 & 20060250) 2008 ND 123
Docket No.: 20070359
Filing Date: 6/26/2008
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).