Opinions

Interest of J.P. and D.P. (CONFIDENTIAL)(Consolidated w/20030118) 2004 ND 25
Docket No.: 20030117
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: Under state law, a juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer, serious physical, mental, moral, or emotional harm.
Under the Indian Child Welfare Act, a petitioner for termination of parental rights must (1) demonstrate by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful, and (2) prove continued custody of a child by a parent or Indian custodian is likely to result in serious emotional or physical damage to the child by proof beyond a reasonable doubt.

Gross v. ND Dept. of Human Services (cross-reference w/20020086) 2004 ND 24
Docket No.: 20030224
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The Dept. of Human Services may place a Medicaid recipient in the lock-in program for excessive utilization of medical services from more than one provider when those excessive medical services may increase the possibility of adverse affects to the recipient's health or may result in a decrease in the overall quality of care to the recipient and when there is little or no evidence of a medical need.

State v. Roth 2004 ND 23
Docket No.: 20030102
Filing Date: 1/28/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Irrelevant information in an affidavit for a search warrant will not negate a magistrate's finding of probable cause, if there is also enough other information in the affidavit to support the finding of probable cause. It is the duty of the magistrate to filter out the non-probative information and examine the remaining information to determine whether probable cause exists for issuance of the search warrant.
There was no violation of defendant's right to be free from unreasonable searches and seizures when, in executing a valid search warrant with an invalid no-knock provision, officers functionally excised the invalid portion of the search warrant by knocking and announcing their presence prior to entering the residence.

Chapman v. Chapman 2004 ND 22
Docket No.: 20030094
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A party is entitled to have a court decide the merits of a dispute only after demonstrating standing to litigate the issues placed before the court.
Only parties may appeal district court decisions.
Issues may not be raised for the first time on appeal.

Winer v. Penny Enterprises, Inc., et al. 2004 ND 21
Docket No.: 20030114
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Personal Injury
Author: Neumann, William

Highlight: A dismissal without prejudice is appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
A state district court lacks subject-matter jurisdiction over an action brought by a non-Indian plaintiff against Indian defendants for damages resulting from a motor vehicle accident on a state highway within the exterior boundaries of an Indian reservation.

Wohlwend v. Wohlwend 2004 ND 20
Docket No.: 20030243
Filing Date: 1/28/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division in a divorce is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Judicial Vacancy in District Judgeship No. 3, East Central Judicial Dt 2004 ND 19
Docket No.: 20040029
Filing Date: 1/28/2004
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Matter of Edwardson (CONFIDENTIAL) 2004 ND 17
Docket No.: 20030331
Filing Date: 1/20/2004
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer Debra K. Edwardson transferred to incapacitated status.

Zuger v. State 2004 ND 16
Docket No.: 20030170
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Summary judgment is appropriate if the information available to the trial court does not establish a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
Factual assertions in a brief do not raise an issue of material fact satisfying N.D.R.Civ.P. 56(e).
The elements of an action for intentional infliction of emotional distress are extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress.

Tank v. Tank 2004 ND 15
Docket No.: 20030111
Filing Date: 1/20/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: On appeal, a trial court's denial of an evidentiary hearing on a motion to modify custody is reviewed de novo.
A party seeking a change of child custody is entitled to an evidentiary hearing if the party presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if proved, would support a change in custody.
Potential endangerment to a child's physical or mental health or a mature child's reasonable preference to live with one parent may be a significant change of circumstances supporting custody change.
A custodial parent's willful and consistent denial or interference with the non-custodial parent's visitation may also be a significant change warranting custody change, if the denial or interference affects the child's best interests.