In the Interest of M.M., a child
No. 20180122
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 3/13/19
2019 ND 64
In the Interest of M.M., a child
State of North Dakota, Petitioner and Appellee
v.
M.M., Child, Respondent and Appellant
and
J.G., Mother, R.M., Father, Respondents
No. 20180122
Appeal from the Juvenile Court of Burleigh County, South Central Judicial District, the Honorable Wayne D. Goter, Referee.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Tessa M. Vaagen, Assistant State’s Attorney, Bismarck, ND, for petitioner and appellee.
Interest of M.M.
No. 20180122
McEvers, Justice.
[¶1] M.M. appeals from a juvenile court order denying his motion to dismiss a juvenile petition pertaining to an underlying juvenile delinquency case after entering conditional admissions to committing delinquent acts of simple assault and contact by bodily fluids. We affirm the juvenile court’s order.
I
[¶2] On October 17, 2017, a juvenile petition was filed with the juvenile court, alleging M.M. committed simple assault and contact by bodily fluids or excrement at Home on the Range. At the time the juvenile petition was filed, M.M. resided at the Youth Correctional Center (“YCC”). The juvenile summons scheduled a hearing “for the purpose of hearing the Petition made and filed with this Court” to take place on November 7, 2017. A separate Notice of Initial Hearing, Pretrial Conference, and Trial specified that prior to the pretrial conference, “[a]ll pretrial motions shall be served and filed with the Court in such time that they may be heard not later than the date for the pretrial.” M.M. made his initial appearance on November 7, 2017, a pretrial conference was scheduled for November 14, 2017, and a trial was set for November 27, 2017. On November 21, 2017, M.M. moved to dismiss the petition, arguing the hearing on the petition was not held within the required time limits for a child in detention. M.M. simultaneously requested a continuance in order to allow him to complete discovery. The State opposed the motion to dismiss, arguing the motion itself was untimely and that M.M. was not a child in detention. The juvenile court denied M.M.’s motion to dismiss but granted his request for a continuance, delaying the trial an additional month. On January 16, 2018, M.M. admitted to the allegations of delinquent acts on a conditional basis, preserving his right to appeal.
II
[¶3] Section
III
[¶4] On appeal, M.M. argues the juvenile court erred by denying his motion to dismiss because the hearing on the petition was not held within 30 days of the filing of the petition. M.M. conceded at oral argument that he was no longer contesting a violation regarding the timing of the initial hearing on the petition.
[¶5] M.M. relies on
If the hearing has not been held within the time limit, or any extension thereof, required by subsection 1 of section 27-20-22, the petition must be dismissed.
(Emphasis added.) However,
Petition Hearing. After the petition has been filed, the court must set a hearing, except in a continued foster care matter under
N.D.C.C. § 27-20-30.1 , in which a hearing is optional.(A) Unless a continuance is granted under Rule 2(c), the hearing on the petition must not be held later than 30 days after the filing of the petition.
(B) If the child is in detention, the time for the initial hearing on the petition must not be later than 14 days after the child has been taken into custody.
(C) If a child is in shelter care, the petition must be filed within 30 days after the child has been taken into shelter care. The hearing on the petition must be held and findings made within 60 days of the initial removal.
(Emphasis added.)
[¶6] “Construction of a statute is a question of law, fully reviewable by this court.” State v. Rambousek, 479 N.W.2d 832, 834 (N.D. 1992) (citing State v. Bower, 442 N.W.2d 438 (N.D. 1989)). When interpreting a rule, we have applied principles of statutory construction to ascertain intent:
First, we determine intent by looking to the language of the rule and giving words their plain, ordinary, and commonly understood meaning. Additionally, we construe rules to harmonize related provisions to give meaning to each provision if possible. If a rule is ambiguous, we may resort to extrinsic aids, including the rule’s historical development, to construe it.
Desert Partners IV, L.P. v. Benson, 2014 ND 192, ¶ 9, 855 N.W.2d 608 (internal citations and quotations omitted). An ambiguous statute or rule is one that is susceptible to differing but rational meanings. State v. Rue, 2001 ND 92, ¶ 33, 626 N.W.2d 681. “If a rule is ambiguous, we may resort to extrinsic aids, including the rule’s historical development, to construe it.” State v. Lamb, 541 N.W.2d 457, 461 (N.D. 1996) (citation omitted). The official explanatory note for a rule has been relied upon to construe a rule. Id.
[¶7] The rule elicits confusion by stating “the court must set a hearing” followed by referencing “the hearing on the petition” in subpart A and “the initial hearing on the petition” in subpart B without further explanation regarding what distinguishes one from the other. (Emphasis added.) It is undisputed the petition was filed on October 17, 2017, and the initial hearing was held November 7, 2017. The question is whether “the hearing on the petition,” as referenced by
from the date of the petition. The State argues only the initial hearing must be held within 30 days and it occurred on November 7, 2017, within the 30 day time frame from the date of the petition. Because the term “hearing” in
[¶8] The explanatory note to
IV
[¶9] Because M.M.’s initial and adjudicative hearings were scheduled within time constraints prescribed by North Dakota Rules of Juvenile Procedure, we affirm the juvenile court order denying his motion to dismiss.
[¶10] Lisa Fair McEvers
Daniel J. Crothers
Gerald W. VandeWalle, C.J.
Jensen, Justice, dissenting.
[¶11] M.M. appeals from the juvenile court’s denial of his motion to dismiss following a determination that a hearing held in excess of 30 days from the date the petition was filed was timely under
[¶12] A petition seeking a determination that M.M. was a delinquent child was filed on October 17, 2018. The adjudicative hearing was set for November 27, 2018. On November 21, 2018, more than 30 days after the petition had been filed and prior to the scheduled adjudicative hearing, M.M. filed a motion to dismiss asserting that the failure to hold an adjudicative hearing within 30 days from the date the petition was filed violated
[¶13] The State, in its response to the motion to dismiss, did not assert
[¶14] Rule 2(a)(3), N.D.R.Juv.P., states:
Petition Hearing. After the petition has been filed, the court must set a hearing, except in a continued foster care matter under
N.D.C.C. § 27-20-30.1 , in which a hearing is optional.(A) Unless a continuance is granted under Rule 2(c), the hearing on the
petition must not be held later than 30 days after the filing of the petition. (B) If the child is in detention, the time for the initial hearing on the petition must not be later than 14 days after the child has been taken into custody.
(C) If a child is in shelter care, the petition must be filed within 30 days after the child has been taken into shelter care. The hearing on the petition must be held and findings made within 60 days of the initial removal.
(Emphasis added). The majority opinion concludes there is ambiguity in the rule and determines to apply principles of statutory construction to ascertain intent. While lower courts and litigants should apply these principles to interpret our rules, it is puzzling for this Court that adopted the rule to seek extrinsic aids to determine the intended meaning of the rule it adopted. If one of our rules is ambiguous, it is our obligation to amend it. Following statutory construction principles, the majority opinion goes outside of the rule itself to resolve the ambiguity, and then relies on time standards that are expressly prohibited from being used to determine the timeliness of court proceedings to reach its result.
[¶15] A plain reading of
the final adjudicative hearing. The majority opinion requires the reader to ignore how the phrase is used in subsection (C) of the same rule. Third, the majority opinion does not simply require a choice between two different readings of the same language. To reach the result in the majority opinion, the reader is required to insert the word “initial” in subsection (A) where it does not otherwise exist. The inappropriateness of inserting the word “initial” becomes apparent when reading the next subsection, subsection (B), which includes a reference to “the initial hearing.” The majority opinion therefore must assume when this Court adopted the rule it forgot to include the word “initial” within subsection (A) but remembered to include “initial” in the very next subsection. In my opinion, the reference to “the hearing” in subsection (A) is a reference to the final adjudicative hearing just as the phrase is used in subsection (C), and we are not required to go beyond a plain reading of the rule itself to resolve this case.
[¶16] The majority opinion’s exclusive basis for reaching its interpretation is a reference to time standards set out in Unified Judicial System Policy 409 (Juvenile Court Time Standards) (effective June 1, 2014). Policy 409 expressly excludes the time standards from being used to argue the disposition of a case was untimely and should be dismissed. It stands to reason the converse should also be true, that the time standards in Policy 409 should not be used to argue that disposition of a case was timely. Without its reliance upon Policy
[¶17] The parties agree the adjudicative hearing was not held within 30 days from the date the petition was filed. Because
[¶18] Jon J. Jensen
Jerod E. Tufte