L.O. v. K.M.E. (In re J.O.)

958 N.W.2d 149

In the INTEREST OF the GUARDIANSHIP OF J.O.

L.O. and S.O., Petitioners

v.K.M.E., mother, Respondent and Appellant

No. 20200194

Supreme Court of North Dakota.

FILED APRIL 20, 2021

Rehearing Denied May 6, 2021

Samuel A. Gereszek, Grand Forks, ND for respondent and appellant.

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 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. In re 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, 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.

[¶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

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