Waagen v. R. J. B.

244 N.W.2d 297, 1976 N.D. LEXIS 229
CourtNorth Dakota Supreme Court
DecidedJune 24, 1976
DocketCiv. 9217
StatusPublished
Cited by6 cases

This text of 244 N.W.2d 297 (Waagen v. R. J. B.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waagen v. R. J. B., 244 N.W.2d 297, 1976 N.D. LEXIS 229 (N.D. 1976).

Opinion

PAULSON, Judge.

R.J.B., the natural mother of Baby Girl K.B., has filed a notice of appeal from the order of the juvenile division of Stutsman County District Court terminating her parental rights to such child. R.J.B.’s notice of appeal was timely filed on February 4, 1976. On March 15,1976, upon the application by counsel for R.J.B., the district court entered its order extending until May 31, 1976, the time for transmission of the record to the Supreme Court. On May 17, 1976, pursuant to Rules 26(b), 27(b), and 11(d), of the North Dakota Rules of Appellate Procedure, counsel for R.J.B. filed with this Court an ex parte “Motion for Extension of Time for Transmission of Record on Appeal”. Such motion was accompanied by the affidavit of Mr. Burt L. Riskedahl, wherein he recited the course of events which had allegedly interfered with the timely procurement of the transcript of the district court proceedings. This Court thereupon extended until June 15,1976, the time for filing the complete record on appeal, including the transcript. On May 20, 1976, counsel for the petitioner filed a return to R.J.B.’s motion for an extension of time, in which return the petitioner resisted such motion. On May 21, 1976, this Court issued its “Order to Show Cause”, directing counsel for R.J.B. to appear before this Court and show cause why this Court’s order extending until June 15, 1976, the time for the transmission of the record on appeal, should not be reconsidered, vacated, or modified. Both parties thereafter filed briefs on the question, and oral argument on R.J.B.’s request for an extension of time was held on June 11, 1976. The transcript was filed with the clerk of the district court on June 15, 1976, and was filed with the clerk of the Supreme Court on June 16, 1976.

The only issue before us is whether or not, pursuant to Rule 26(b), N.D.R.App.P., this Court should extend the time for the transmission of the record on appeal. The merits of R.J.B.’s appeal are not before us at this time.

Due to the nature of the proceeding, the record before us is incomplete. However, it appears that R.J.B. was a patient at the State Hospital at Jamestown when she gave birth to a daughter on August 12, 1975. R.J.B. was 26 years of age, unmarried, and had been a patient at the State Hospital since April of 1975.

Shortly after K.B.’s birth, the Stutsman County Social Service Board was granted temporary legal custody of K.B., and she was placed in a foster care home. On October 13, 1975, the juvenile court convened a hearing on the petition seeking termination of R.J.B.’s parental rights to K.B. Such hearing was recessed, and reconvened on January 5, 1976. R.J.B. was released from the State Hospital in mid-November, and returned to the home of her parents in Mandan. On January 5, 1976, the juvenile court entered its order terminating the parental rights of R.J.B. to the child K.B. At no time has R.J.B. had custody of the child. During the course of the juvenile court proceedings, R.J.B. was represented by counsel. However, she is now represented by a different attorney on this appeal.

On January 19, 1976, R.J.B. sought the assistance of Mr. Burt L. Riskedahl, a Bismarck attorney, for the purpose of appealing from the juvenile court’s termination order. A notice of appeal was filed on February 4, 1976.

According to the affidavit of Mr. Riske-dahl, R.J.B. informed him that she wanted to appeal the juvenile court’s order terminating her parental rights to K.B., but that she was unable to afford to pay the costs of such appeal. Mr. Riskedahl therefore prepared both a notice of appeal (which was filed on February 4, 1976) and an application for the appointment of himself as counsel on appeal for R.J.B. Such application was subsequently denied by the juvenile court, but Mr. Riskedahl continues to represent R.J.B. in this case.

*299 Two weeks after the notice of appeal was filed, R.J.B. left the State of North Dakota, and since that time Mr. Riskedahl has had difficulty in communicating with his client. The delay in ordering preparation of the transcript of the juvenile court proceedings was caused by the difficulty counsel had in maintaining contact with R.J.B., who apparently now resides in Tampa, Florida. However, Mr. Riskedahl informs us that he has been in telephone contact with R.J.B.; that she desires to continue to prosecute her appeal; and that her financial condition has improved since the time of her original contact with Mr. Riskedahl about representing her on appeal from the juvenile court’s termination order. The transcript was thus ordered by Mr. Riskedahl, despite the fact that R.J.B. has been financially unable to pay any of the costs associated with the appeal. However, because of the uncertainty created by R.J.B.’s move to Tampa, Florida, and because of her financial inability to pay the costs of the appeal, the transcript was not ordered in time to permit its completion before May 31, 1976, the deadline set by the juvenile court in its order extending the time for the transmission of the record on appeal. Mr. Riskedahl filed his motion with this Court seeking an additional extension until June 15, 1976, to permit the court reporter to prepare the necessary transcript.

The petitioner, however, resists such motion, contending that this Court should adhere to the May 81, 1976, deadline. Of course such position would mean that the evidence from which the juvenile court concluded that R.J.B.’s parental rights should be terminated would not be before this Court on appeal, because such deadline has already passed. Nevertheless, the petitioner contends that further delay is not in the best interests of the child, K.B., and that the delay which has already occurred was the result of R.J.B.’s apparent abandonment of the appeal. Consequently, the petitioner asserts that the situation was caused entirely by R.J.B.’s conduct in leaving the State and by not maintaining contact with her attorney.

R.J.B.’s motion for an extension of time is made pursuant to Rules 26(b), 27(b), and 11(d), N.D.R.App.P., which Rules provide, in pertinent part, that:

“RULE 26 — Computation and Extension of Time
“(b) Enlargement of time. The supreme court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal.”
“RULE 27 — Motions
“(b) Determination of motions for procedural orders.

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Bluebook (online)
244 N.W.2d 297, 1976 N.D. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waagen-v-r-j-b-nd-1976.