Interest of J.O.

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 20, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 76In the Interest of the Guardianship of J.O.
L.O. and S.O., Petitioners
v.
K.M.E., mother, Respondent and Appellant
No. 20200194
Appeal from the Juvenile Court of Ramsey County, Northeast Judicial District,
the Honorable Lonnie Olson, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Samuel A. Gereszek, Grand Forks, ND for respondent and appellant.
Interest of J.O.
No. 20200194
VandeWalle, Justice.
[¶1] K.M.E. appealed from an order extending a guardianship over her
biological child J.O. We affirm.
I
[¶2] On October 17, 2017, L.O. and S.O. were granted guardianship of J.O.
and his stepsister, I.E., under N.D.C.C. § 27-20-30. L.O. and S.O. are J.O.’s
maternal grandparents. K.M.E. is J.O.’s biological mother, and her husband,
K.R.E., is J.O.’s stepfather and I.E.’s biological father.
[¶3] Before the petition for guardianship was filed, K.M.E. and K.R.E. left
J.O. in the care of L.O. and S.O. “for an indefinite period of time” and did not
make plans to resume physical custody. The juvenile court noted K.M.E. and
K.R.E. “failed to provide food, shelter, and medical attention to adequately
provide for the minor child’s needs since June 1, 2017.” The court took judicial
notice of four pending criminal matters with pending bench warrants against
K.M.E. and four more against her husband. The court suspended K.M.E.’s
rights of custody over J.O. “due to her lack of stability, pending criminal
charges, and inability to properly care for and nurture the minor child and to
provide a stable living environment.” The court appointed L.O. and S.O. as
guardians over J.O. for an unlimited duration under N.D.C.C. § 27-20-36. At
the same time, L.O. and S.O. sought guardianship and were appointed
guardians of I.E.
[¶4] I.E. later returned to K.M.E. and K.R.E.’s home. After K.R.E. petitioned
the juvenile court and L.O. and S.O. did not object in the related case, the
guardianship over I.E. was terminated. On March 2, 2020, K.M.E. and K.R.E.
filed an ex parte motion for termination of the guardianship over J.O., as well.
The court granted a default order terminating the guardianship before it
realized L.O. and S.O. filed a response to the motion. After realizing a response
had been filed, the court vacated the default order. The court set a hearing date
after noting a statutory change required a hearing after a year. The court noted
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the statutory change also required good cause to extend the guardianship for
more than one year and up to three years.
[¶5] At the hearing, J.O. stated he wanted to continue living with L.O. and
S.O. He also said he did not want contact with his mother. K.M.E. testified that
she works from home and is now sober. The juvenile court found she now lives
in a three-bedroom apartment with K.R.E. and three other children, including
I.E. However, the court stated it was clear J.O. “has not worked through the
anger issues arising from the deprivation and is not ready to go home.” The
court again took judicial notice of K.M.E. and K.R.E.’s criminal history of felony
convictions and misdemeanor crimes of dishonesty within the past ten years.
The court used these crimes when it weighed K.M.E. and K.R.E.’s “credibility
of sobriety and a peaceful, stable home life.” It also noted it had been a short
period of sobriety for both K.M.E. and K.R.E.
[¶6] The juvenile court acknowledged the burden was on K.M.E. “to show by
clear and convincing evidence that the circumstances that led to the
guardianship no longer exist.” The court found she did not meet this burden
and stated, “Considering their life long history of drug abuse and relapse, the
Court finds that there is not sufficient evidence of sustained sobriety to show
the causes of [J.O’s] deprivation no longer exist.”
II
[¶7] On appeal, K.M.E. makes three arguments. First, she argues the
termination of the guardianship of I.E. created a presumption that the issues
leading to J.O.’s guardianship no longer exist. Second, K.M.E. argues the
juvenile court erred when it assigned the burden of proof to terminate the
guardianship. Third, she argues the three-year extension of the guardianship
was unlawful because there was no determination of exceptional
circumstances to continue it, and that it violated N.D.C.C. § 27-20.1-17(1)
because there was no finding of good cause.
[¶8] This Court will not set aside a juvenile court’s findings of fact unless they
are clearly erroneous. Guardianship of P.T., 2014 ND 223, ¶ 5, 857 N.W.2d
367. A finding of fact is clearly erroneous “if there is no evidence to support it,
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if it is clear to the reviewing court that a mistake has been made, or if the
finding is induced by an erroneous view of the law.” Id. (quoting Akerlind v.
Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256). “On appeal, we review the files,
records, and minutes or the transcript of the evidence, and we give appreciable
weight to the findings of the juvenile court.” Id. (quoting In re B.B., 2010 ND
9, ¶ 5, 777 N.W.2d 350). “Further we give due regard to the juvenile court’s
opportunity to judge the credibility of the witnesses.” Id. “Questions of law are
fully reviewable on appeal.” Interest of N.W., 531 N.W.2d 303, 306 (N.D. 1995).
III
[¶9] K.M.E. contends when the juvenile court terminated I.E.’s guardianship
it created a presumption that the issues leading to J.O.’s guardianship no
longer exist. “Issues are not adequately briefed when an appealing party fails
to cite any supporting authority, and we will not consider them.” Frith v. N.D.
Workforce Safety and Ins., 2014 ND 93, ¶ 25, 845 N.W.2d 892. K.M.E. cites no
authority to support her argument that the termination of I.E.’s guardianship
should also create a presumption that the conditions leading to J.O.’s
guardianship no longer exist.
[¶10] Moreover, a presumption is “[a] legal inference or assumption that a fact
exists because of the known or proven existence of some other fact or group of
facts.” Presumption, Black’s Law Dictionary, 1435 (11th ed. 2019). “[A]
presumption shifts the burden of proof to the party against whom it is
directed.” In Interest of B.G., 477 N.W.2d 819, 822 (N.D. 1991). Although three
other children living with K.M.E. could arguably allow the juvenile court to
draw an inference that J.O.’s guardianship should be terminated, we refuse to
recognize a factual presumption from one guardianship termination to
another.
IV
[¶11] In her brief, K.M.E. appeared to argue the juvenile court erred when it
assigned the burden of proof to show the circumstances that led to the
guardianship no longer exist. However, at oral argument K.M.E. acknowledged
the court correctly placed the burden of proof on her.
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[¶12] Section 27-20.1-16(3)(c), N.D.C.C., allows any party to the original
guardianship proceeding to petition the juvenile court for termination of the
guardianship when “[t]he basis for the guardianship no longer exists.” Section
27-20.1-10(3), N.D.C.C., states, “The petitioner shall present the evidence in
support of any allegations of the petition not admitted.” In order for the court
to terminate the guardianship, the petitioner must show “by clear and
convincing evidence that the circumstances that led to the guardianship no
longer exist.” N.D.C.C. § 27-20.1-17(1)(a). The statutes require the court to
place the burden of proof by clear and convincing evidence to terminate the
guardianship on the petitioner. Therefore, the court did not err when it placed
the burden of proof on K.M.E.
V
[¶13] K.M.E. argues the juvenile court needed to make a finding of exceptional
circumstances to extend J.O.’s guardianship. Additionally, she claims the
three-year extension of the guardianship violated N.D.C.C. § 27-20.1-17(1)
because there was no finding of good cause.
A
[¶14] K.M.E. cites Worden v. Worden arguing the juvenile court needed to find
exceptional circumstances to extend the guardianship. 434 N.W.2d 341 (N.D.
1989). In Worden, we stated:
When there is a custody dispute between a natural parent and a
third party the test is whether or not there are exceptional
circumstances which require that in the best interest of the child,
the child be placed in the custody of the third party rather than
with the biological parent. The court cannot award custody to a
third party, rather than the natural parent, under a “best interest
of the child” test unless it first determines that “exceptional
circumstances” exist to trigger the best-interest analysis.
Id. at 342 (citations omitted). This exceptional circumstances determination is
required when the guardianship is first implemented. Id.
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[¶15] In this case, the juvenile court found exceptional circumstances when it
implemented the guardianship in 2017. It noted K.M.E.’s “lack of stability,
pending criminal charges, and inability to properly care for and nurture the
minor child and to provide a stable living environment.” K.M.E. cites no law
that would require another determination of exceptional circumstances to
continue the guardianship. As a result, the court did not err when it extended
the guardianship and made no finding of exceptional circumstances.
B
[¶16] K.M.E. argues the juvenile court needed to use the words “good cause” to
extend the guardianship under N.D.C.C. § 27-20.1-17(1). The statute states,
“An order appointing or reappointing a guardian under this chapter is effective
for up to one year unless the court, upon a finding of good cause, sets a different
time frame. An order may not be effective for more than three years.” N.D.C.C.
§ 27-20.1-17(1). Good cause is a “legally sufficient reason.” Good cause, Black’s
Law Dictionary, 274 (11th ed. 2019).
[¶17] When the juvenile court set the hearing date, it was aware it had to make
a finding of good cause to extend the guardianship. At the hearing, the court
noted its concerns about K.M.E. and K.R.E. maintaining sobriety. After raising
these concerns the court said, “As such, the Court will continue the
guardianship for up to three years from today’s date.” In its written order the
court stated, “The guardianship of [J.O.] shall continue with [L.O.] and [S.O.]
for a period of three years from June 9, 2020.” The statute does not require the
court to explicitly use the phrase. Rather, it requires the court to make a
finding rising to the level of good cause. Here, the court found issues with
sobriety in K.M.E. and K.R.E.’s home, which is a legally sufficient reason.
Therefore, the court did not err when it did not utter the phrase “good cause”
to extend the guardianship.
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VI
[¶18] We affirm the juvenile court’s order extending the guardianship of J.O.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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