915 N.W.2d 685
N.D.2018Background
- In 2015 parents D.L. (mother) and T.S. (father) stipulated that their daughters were deprived and voluntarily placed guardianship of the children with their eldest daughter B.Y.; juvenile court appointed B.Y. guardian until the children turned 18.
- In late 2016–2017 the mother sought review and then termination of the guardianship for her younger daughter G.L.; hearings occurred July–August 2017.
- The juvenile court found the mother had remedied the original impediments (stable housing, employment, addiction recovery, improved mental health).
- The court then shifted the burden to the guardian, made findings under the statutory best-interest factors, continued the guardianship, added the guardian’s husband as co-guardian, and authorized the guardian (with input from the child’s therapist and guardian ad litem) to set visitation.
- Mother appealed, arguing the court failed to find the required "exceptional circumstances" before applying the best-interest test and improperly delegated visitation scheduling.
Issues
| Issue | Plaintiff's Argument (D.L.) | Defendant's Argument (Guardian) | Held |
|---|---|---|---|
| Whether court must first find "exceptional circumstances" before applying best-interest analysis to continue a voluntary guardianship | Juvenile court erred by failing to expressly find exceptional circumstances before evaluating best-interest factors | A voluntarily established guardianship constitutes "exceptional circumstances" as a matter of law (Barros), so no separate finding was needed | Reversed: court must make an explicit finding of exceptional circumstances; Barros and Hartleib to the extent they held voluntariness establishes exceptional circumstances as a matter of law are overruled |
| Allocation of burdens and proof after parent shows impediments removed | Mother met her burden showing impediments removed; presumption favors parental custody and nonparent must rebut by preponderance with exceptional circumstances to trigger best-interest analysis | Guardian relied on earlier precedents assigning burdens and on voluntariness doctrine | Court reaffirmed that once impediments are removed a presumption in favor of parental custody arises; exceptional circumstances must be found to reach best-interest analysis |
| Whether the juvenile court violated law by delegating visitation scheduling to guardian, therapist, and GAL | Visitation scheduling cannot be delegated; court must retain authority and only limit visitation on a showing it would endanger the child | Guardian maintained therapist/GAL input appropriate given child’s needs | Reversed: delegation was impermissible; court must determine and retain authority over visitation and may only restrict visitation after finding danger to child's physical or emotional health |
Key Cases Cited
- Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285 (recognizing parental custody as a fundamental constitutional right)
- Worden v. Worden, 434 N.W.2d 341 (N.D. 1989) (court cannot award custody to third party absent exceptional circumstances)
- Interest of Barros, 2005 ND 122, 701 N.W.2d 402 (previously recognized voluntary guardianship as establishing exceptional circumstances as a matter of law)
- Hartleib v. Simes, 2009 ND 205, 776 N.W.2d 217 (discussing presumption favoring parental custody after impediments removed)
- Paulson v. Paulson, 2005 ND 72, 694 N.W.2d 681 (trial court cannot delegate custody/visitation decision-making; visitation restrictable only upon showing it would endanger child)