Matter of L.Z.N.
2017 ND 137
| N.D. | 2017Background
- Child L.Z.N. (born 2014) born to Charlotte Jackson-Narvais and Shawn Narvais; parents divorced in 2015.
- Jackson petitioned to change the child’s surname to match her and maternal relatives and to avoid stigma from Narvais’s criminal convictions (sex-offense related) and because Narvais had been largely absent and sought a paternity test.
- District court set a hearing; Narvais was incarcerated and sought a court order compelling the Department of Corrections to permit a telephonic appearance; the court declined to order DOC but offered telephonic/ITV participation if Narvais arranged it; Narvais did not appear.
- After hearing testimony and evidence (including an unopposed document requesting paternity testing), the district court granted the name change.
- Narvais appealed, arguing improper best-interest factors, defective notice, and denial of due process for failing to secure his telephonic appearance; the Supreme Court of North Dakota affirmed.
Issues
| Issue | Plaintiff's Argument (Jackson) | Defendant's Argument (Narvais) | Held |
|---|---|---|---|
| Whether the district court relied on improper factors in assessing child’s best interest | Court may consider stigma/harm from father’s convictions and other family cohesion reasons favoring name change | Court improperly relied on Narvais’s paternity-test request and his required sex-offender registration as harmful to the child | Affirmed: court may consider these matters; use of those factors was not erroneous; best-interest consideration was sufficient under §32-28-02 |
| Whether the court was required to analyze the §14-09-06.2(1) best-interest factors | §32-28-02 requires consideration of child’s best interest but not a step-by-step §14-09-06.2 factor checklist | District court erred by not applying each statutory parenting best-interest factor | Affirmed: no requirement to apply §14-09-06.2 factors verbatim; proper and reasonable cause standard applies |
| Whether statutory notice was defective (publication/mailing) | Notice was properly published and mailed to Narvais at penal institution | Publication was only online; penitentiary did not provide local paper to him, so notice was inadequate | Affirmed: Jackson provided required publication in both counties and mailed notice to Narvais; notice met §32-28-02(4) requirements |
| Whether due process required the court to order DOC to ensure Narvais’s telephonic/ITV appearance | Offering telephonic/ITV and placing arrangement burden on incarcerated party satisfied due process | Court violated due process by refusing to order DOC to facilitate appearance, depriving him of meaningful hearing | Affirmed: due process requires notice and an avenue to be heard; court need not compel DOC to ensure presence and may require the incarcerated party to arrange participation |
Key Cases Cited
- In re Berger ex rel. K.C.F., 778 N.W.2d 579 (N.D. 2010) (name-change for minor requires consideration of child’s best interests)
- Hartleib v. Simes, 776 N.W.2d 217 (N.D. 2009) (district court need not recite §14-09-06.2 factors when considering best interests for name change)
- Curtiss v. Curtiss, 886 N.W.2d 565 (N.D. 2016) (trial court may allow telephonic appearance but is not required to order DOC to ensure prisoner’s presence)
- St. Claire v. St. Claire, 675 N.W.2d 175 (N.D. 2004) (telephone appearance can satisfy a prisoner’s opportunity to be heard)
- Interest of F.H., 283 N.W.2d 202 (N.D. 1979) (factors trial courts may consider when deciding whether an incarcerated person should personally appear)
- Stone v. Morris, 546 F.2d 730 (7th Cir. 1976) (discusses considerations and discretion in permitting prisoner’s in-person appearance)