author: MARING, Justice. SANDSTROM, Justice, NEUMANN, Justice,

text:
    2004 ND 126
    In the Interest of T.F. and T.F., Children Stuart A. Larson, Petitioner and Appellee v. Director, Traill County Social Services, J.F., N.K., T.F., T.F., and Jared Simonson, Guardian ad Litem, Respondents J.F., Respondent and Appellant.
    No. 20030236.
    Supreme Court of North Dakota.
    June 30, 2004.

      Stuart A. Larson, State’s Attorney, Hillsboro, N.D., for petitioner and appel-lee.
    Douglas W. Nesheim (argued) and Steven D. Mottinger, Fargo, N.D., for respondent and appellant.
   MARING, Justice.

[¶ 1] J.F. (“John”) appealed from an order of the juvenile court terminating his parental rights to his six-year-old son, T.C.F. (“Ted”), and his four-year-old daughter, T.M.F. (“Tina”). We hold there is clear and convincing evidence warranting termination of John’s parental rights and there is evidence beyond a reasonable doubt that John’s continued custody of the children is likely to result in serious emotional or physical harm to them, and we affirm.

I

[¶ 2] In January 2001, Ted and Tina were taken into protective custody by Traill County Social Services as a result of allegations that John had been physically abusive toward Ted. Since that time, the children’s mother has had no personal contact with the children and has written each of them only one letter. Her parental rights were also terminated, but she has not appealed from that decision.

[¶ 3] In May 2001, John pled guilty to aggravated assault as a result of charges that he had sex with his live-in girlfriend’s ten-year-old daughter while the girlfriend was working out of the home. John claims that these charges were fabricated and that he pled guilty to aggravated assault so he would not have to be involved with the girlfriend again.

[¶ 4] Traill County Social Services reunited the children with John, placing them in his physical custody on February 26, 2002. The agency provided assistance to John and implemented various programs to improve John’s parenting skills and to have him deal with anger management and other related issues. The program required that John obtain steady employment and that he refrain from using alcohol or illegal drugs. John did not fully comply with the program requirements. After the children were reunited with him, he continued to smoke marijuana and was charged with driving under the influence of intoxicating beverages. John testified that he did not seek treatment for drug or alcohol abuse because “I think I went through treatment when I was 18 years old.... I haven’t had drug or alcohol problems, I guess, that stopped me from being a parent.” In spite of this testimony, John’s probation was revoked because of his use of drugs and alcohol. He was reincarcerated, resulting in the children again being removed from his custody on July 9, 2002. John is currently serving a seven-year-sentence with a parole release date of June 6, 2007. After this latest separation, the children were placed by social services in the home of an aunt. The current agency plan is for these children to be adopted by the aunt, upon termination of their mother and father’s parental rights.

[¶ 5] A petition was filed to terminate parental rights, and a hearing was held on March 26, 2003, and continued to June 9, 2003. After the hearing, a judicial referee granted the petition, finding the children were deprived, the deprivation would likely continue, and that, unless parental rights were terminated, the children would suffer serious physical, mental, moral, or emotional harm.

II

[¶ 6] On appeal, John asserts that the court erred in finding there was clear and convincing evidence the children are deprived and that such deprivation is likely to continue. He also asserts there is insufficient evidence to support a finding that there is no reasonable doubt the children will likely suffer serious harm unless parental rights are terminated.

[¶ 7] The juvenile court may terminate parental rights providing: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral or emotional harm. N.D.C.C. § 27-20-44(l)(b). A party seeking termination of parental rights must prove all elements by clear and convincing evidence. In re D.Q., 2002 ND 188, ¶ 19, 653 N.W.2d 713. In addition to our state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912 must be met, because these children are members of an Indian tribe. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678. Relevant to this case, 25 U.S.C. § 1912(f) provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Also relevant, 25 U.S.C. § 1912(d), provides:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

These state and federal provisions create a dual burden of proof on the party seeking termination of parental rights to an Indian child, whereby the elements of our state law must be proven by clear and convincing evidence and the federal requirement, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, must be satisfied with proof beyond a reasonable doubt. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678.

[¶ 8] Rule 52(a), N.D.R.Civ.P.,' was amended, effective March 1, 2004, to provide that findings of fact in juvenile matters shall not be set aside by this Court unless they are clearly erroneous. It is solely within the discretion of the Supreme Court to determine the effective date of a rule of procedure not affecting substantive rights. Paxton v. Wiebe, 1998 ND 169, ¶ 22, 584 N.W.2d 72. This Court has followed the practice that as existing rules of procedure are amended or new rules are added they will apply to actions then pending unless their application would not be feasible or would work an injustice. Id.

[¶ 9] In this case, John elected not to request a review by the district court believing that this Court would conduct a de novo review of the referee’s decision. When a party requests a review of the referee’s findings and order by the district court, it is a review on the record “unless the court orders a hearing of the proceeding.” N.D. Sup.Ct. Admin. R. 13. Only when the district court’s review is on the record, must it accept - the referee’s findings unless they are clearly erroneous. See In re A.B., 2003 ND 98, ¶4, 663 N.W.2d 625. Consequently, in foregoing a district court review, John waived the potential right to have an evidentiary hearing and de novo decision by the district court. Under this circumstance, we conclude fairness and justice warrant that we apply the standard of review under N.D.R.Civ.P. 52(a) in effect prior to the March 1, 2004 amendment, which is similar to a trial de novo. In re D.R., 2001 ND 183, ¶ 2, 636 N.W.2d 412. Under the trial de novo standard wfe review the files, records, and transcript of the evidence in the juvenile court, and, although we are not bound by the findings of the juvenile court, we give those findings appreciable weight and give deference to the juvenile court’s decision, because that court had an opportunity to observe the candor and demeanor of the witnessfes. • Id.

A. Deprivation

[¶ 10] A deprived child is statutorily defined under N.D.C.C. § 27-20-02(8)(a) as one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” The juvenile court found these were deprived children, because they are without proper parental control in that the mother has had no personal contact with the children since their first placement in foster care in January 2001, and their father is incarcerated and unable to care for them. The court also found the children had been placed in foster care for 450 of the previous 660 nights.

[¶ 11] At the time of the terminatipn proceedings, neither parent was available to provide the necessary care or control of these children. The children’s mother has voluntarily removed herself as a significant factor in the children’s lives. John voluntarily violated conditions of his .probation and, as result, is incarcerated and not able to provide for the children’s care for a considerable time. He is not scheduled for possible release until June 2007. The definition of a deprived child is broad enough to encompass a child whose parent is shown to be presently incapable of providing proper parental care for the child. In re C.R., 1999 ND 221, ¶ 6, 602 N.W.2d 520. The definition of a deprived child also encompasses a child who has been in foster care or in the care, custody or control of social services for “at least four hundred fifty out of the previous six hundred sixty nights.” N.D.C.C. § 27-20-44(1)(b)(2). Having reviewed the record, we conclude there is clear and convincing evidence these are deprived children.

B. Continued Deprivation

[¶ 12] John asserts there is not clear and convincing evidence that the deprivation of these children is likely to continue. Evidence of a parent’s background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue. In re D.R., 2001 ND 183, ¶ 11, 636 N.W.2d 412. While incarceration, by itself, does’ not establish abandonment of a child for purposes of terminating parental rights, a probability of serious mental and emotional harm to the child may be established by prognostic evidence that a parent’s current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent’s rights are not terminated. In re C.R., 1999 ND 221, ¶ 10, 602 N.W.2d 520.

[¶ 13] Dr. Leland Lipp, a practicing psychologist in Grand Forks, testified that the continued absence of Ted’s mother and father -will result in serious emotional harm to Ted. He testified the boy “needs to be in a safe, secure environment for a long period of time.” He also testified that Ted has had adjustment difficulties caused by his being emotionally harmed in the past. Dr. Lipp testified that Ted told him he had been “hurt by his father” and he was “afraid of his father.” Dr. Lipp testified it would be in Ted’s best interest to not have further contact with his father.

[¶ 14] Tammy Ness, a social worker with the North Central Human Service Center, testified that Tina has had at least five primary care placement changes in her four-and-one-half years of life. She testified that Tina needs to be “taken out of this state of limbo. She needs to be in a secure, long term, final placement.”

[¶ 15] Janice DuBois DeLorme, a social worker with the Turtle Mountain Child Welfare and Family Services Unit in Bel-court, testified that she believes beyond a reasonable doubt the deprivation of these children cannot be avoided or corrected. She testified that John, upon his reunification with the children, failed to follow through on recommendations of the social service workers. DeLorme also testified that John’s conduct is likely to cause serious physical, mental, or emotional harm to the children if their relationship is allowed to continue. DeLorme gave her opinion that these children need a permanent home and a stable environment, and she said the Indian tribe supports termination of parents rights and placement of these children with their aunt or other relatives.

[¶ 16] John has contributed significantly to the instability in the lives of these children. They were removed from his care in 2001 when he was arrested and taken into custody. Social service workers reunited John with the children in 2002, and after only a few months, he voluntarily chose to violate his conditions of probation, resulting in him again being incarcerated and not able to care for the children’s needs. Although the record shows that John has made some attempts to comply with social service programs aimed at improving his parenting abilities and providing a stable home environment for the children, he did not follow all of the rules and, by violating his probation, did not complete the goal of providing a safe, stable, and permanent environment for these children.

[¶ 17] John’s past conduct presents a troubling picture. John has two older children who were placed in foster care and then permanently placed after John relinquished his parental rights to those children. John pled guilty to aggravated assault after his former girlfriend accused him of multiple incidents of sexual abuse toward her pre-teen daughter. John was also previously charged with physically abusing a minor child, and his son, according to the testimony of Dr. Lipp, has indicated that John had hurt him in the past and that he was afraid of John. John’s conduct demonstrates a serious indifference toward his responsibilities and obligations as a parent. When a parent, through voluntary actions, makes himself unavailable to care for and parent a child, without reasonable justification, a young child should not be expected to wait or assume the risk involved in waiting for permanency and stability in his or her life. In re C.R., 1999 ND 221, ¶ 12, 602 N.W.2d 520. Based upon our review of this record, we conclude there is clear and convincing evidence the deprivation of Ted and Tina is likely to continue and not be remedied.

C. Harm to the Children

[¶ 18] To terminate parental rights the evidence must show by clear and convincing evidence that, as a result of the continued deprivation, the child is suffering, or will in the future probably suffer physical, mental, moral, or emotional harm.' In Interest of L.F., 1998 ND 129, ¶ 27, 580 N.W.2d 573. Under the Indian Child Welfare Act there is an additional requirement that the evidence show beyond a reasonable doubt the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

[¶ 19] Each of the experts who testified emphasized that these children have not had stability in their lives and that they desperately need- both permanency and stability. That is something that John cannot now or in the near future give them. Although it is impossible to be certain what might occur in the future, any prediction of the future requires some reflection into the past conduct of the parties. In re D.Q., 2002 ND 188, ¶ 21, 653 N.W.2d 713. John’s past conduct leaves considerable doubt about his ability to parent these children if and when he is released in June 2007, or thereafter. In the past, John has been unable or unwilling to refrain from conduct which results in his being separated from these children and unable to provide for their care. John has also demonstrated a lack of cooperation with social service agencies, which may be insufficient by itself to establish deprivation, but is pertinent to the question whether deprivation will continue in the future. Id.

[IT 20] Dr. Leland Lipp testified that the continued absence of Ted’s parents in his life will result in serious emotional harm to Ted. Janice DuBois DeLorme testified thát John’s conduct of inconsistent parenting and repeated absences from the children will likely cause serious physical, mental, or emotional harm to the children. After reviewing the record, we conclude there is clear and convincing evidence that, as a result of the continued deprivation, it is likely these children are suffering and will in the future suffer serious physical, mental, moral, or emotional harm. We further conclude there is evidence beyond a reasonable doubt that the continued custody of these children by John is likely to result in serious emotional or physical damage to the children.

D. Efforts to Preserve Indian Family '

[¶ 21] Under 25 U.S.C. § 1912(d) any party seeking to terminate parental rights to an Indian child must satisfy the court that active efforts have been made, without success, to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family. John asserts there is not clear and convincing evidence to support a finding that active efforts were made to preserve this Indian family. We disagree.

[¶ 22] The record shows the social service workers provided assistance to this family in an effort to keep John and the children together. They established a program for him to participate in parenting and anger management classes and they also provided support in helping him obtain housing. The program required that John demonstrate he could maintain steady employment and housing, that he refrain from inappropriate behavior in his parenting, and that he refrain from abusing alcohol or using illegal drugs. The record shows that while John attempted to comply with the program in some respects he utterly failed in others. Especially troublesome is John’s continued use of alcohol and drugs, with the consequence that he is now incarcerated and unavailable to care for his children.

[¶23] Valerie Ladwig, the director of Traill County Social Services, testified that John has lacked follow through on recommendations for services and on his need to improve his behavior. Relevant to John’s cooperation and attitude she also testified:

[John] loves his children deeply and certainly has made that known and made the effort where he can from jail to visit with his children, his parenting ability is compromised by what is going on with him in his personal life. Related to substance abuse, related to an ongoing inability to follow through with recommendations made by the Court for him to get his children back. And also the fact that while he’s on probation, while he’s been given a chance by the Court in South Dakota for a very aggravated offense related to a minor, he then is unwilling to follow through with their request that he not engage in substance abuse. And then, as we know, got the DWI and admits to regular daily use of alcohol and also use of marijuana.
The fact that he worked with us in a very abrasive manner made it difficult at time and again, that was due to his disagreement about some decisions we were making that we felt were in the best interests of'the children based upon good clinical practices in the field of social work.
So there were many times a contentious relationship between [John] and our department.

We conclude there is clear and convincing evidence that active efforts were made to preserve this Indian family, ■ but John’s attitude and lack of cooperation thwarted those efforts.

Ill

[¶ 24] We hold there is clear and convincing evidence that Ted and Tina are deprived children, the conditions and causes of the deprivation are likely to continue and, as a result, the children will likely suffer serious physical, mental, and emotional harm if John’s parental rights are not terminated. We also hold there is evidence beyond a reasonable doubt that the continued custody of these children by John is likely to result in serious emotional or physical damage to the children. The order of the juvenile court terminating John’s parental rights is affirmed.

[¶ 25] GERALD W. VANDE WALLE, C.J., concurs.

SANDSTROM, Justice,

concurring specially.

[¶ 26] Concluding the clearly erroneous standard of review should apply in this case because application of the amended Rule 52(a), N.D.R.Civ.P., would not work an injustice, I nevertheless concur in the result reached by the majority, because the result would be the same under a clearly erroneous standard of review.

[¶ 27] Effective March 1, 2004, an amended Rule 52(a), N.D.R.Civ.P., changed the standard of review in juvenile matters from “similar to the former trial de novo” to “clearly erroneous.” Although in some circumstances amended or new procedural rules might not apply to pending actions, I disagree with the majority’s conclusion that the circumstances in this case warrant our applying the standard of review in effect'prior to the March 1, 2004, amendment.

[¶ 28] Our order adopting the rule change ordered it effective March 1, 2004. As the Court said in Craig v. Herzman, 9 N.D. 140, 81 N.W. 288, 288 (1899), Syllabus by the Court:

2. Such provision, as it relates to procedure only, may be applied in any case tried after its enactment, although the cause of action arose before the enactment. The rule requiring statutes to be given prospective operation only does not apply to statutes relating to procedure.

In In re Foster’s Estate, 89 N.W.2d 112, 116 (N.D.1958), this Court said:

When an amendment to a procedural law becomes effective during the pen- ■ dency of a suit the validity of proceedings had is determined under the old provisions but future procedure is governed by the amendment unless a contrary legislative intent appears. M & M Working Company v. Chambers, Or., 217 Or. 161, 317 P.2d 920; Marks v. Crow, 14 Or. 382, 13 P. 55.
“Pending cases are only affected by general words as to future proceedings from the point reached when the new law becpmes operative.” Sutherland Statutory Construction,. 3rd Ed,, Sec. 2212.

[¶ 29] When North Dakota adopted the federal rules of civil procedure in 1957, it did not adopt the clearly erroneous standard articulated in those rules. It was not until 1971 that the trial de novo was repealed and North Dakota amended N.D.R.Civ.P. 52(a) to provide for the clearly erroneous standard for reviewing a trial court’s findings of fact. At the time of the amendment, N.D.R.Civ.P. 86(a) was in effect, which provides:

[The rules of civil procedure] will take effect on July 1, 1957. They govern all proceedings and actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event the procedure existing at the time the action was brought applies.

N.D.R.Civ.P. 86(a) (emphasis added). This Court did not discuss Rule 86(a), however, when determining whether to apply the amended Rule 52(a), N.D.R.Civ.P., to pending proceedings.

[¶ 30] When appeals were taken after the effective date of the rule, this Court applied the new rule. See Gajewski v. Bratcher, 221 N.W.2d 614, 621 (N.D.1974); Brusegaard v. Schroeder, 201 N.W.2d 899, 903-04 (N.D.1972) (not empowered to review matter de novo when repeal was effective prior to time appeal taken). When judgments in an action were entered after the effective date of the rule, this Court also applied the new rule. See McNaught v. MacArthur, 209 N.W.2d 639, 640 (N.D.1973). The new rule has even been applied when the trial began before the rule’s effective date. See Trengen v. Mongeon, 200 N.W.2d 50 (N.D.1972). In Trengen, this Court explained that the right to appeal does not attach at the time of trial, but after the judgment is entered. Id. at 52-53.

[¶ 31] When the notice of appeal was served and filed before the date of repeal of the trial de novo, this Court held that the appellant was entitled to trial de novo on appeal from the judgment. See Automobile Club Ins. Co. v. Hoffert, 195 N.W.2d 542, 545 (N.D.1972); Northern Plumbing Supply, Inc. v. Gates, 196 N.W.2d 70, 71 (N.D.1972); East Grand Forks Federal Savings and Loan Association v. Mueller, 198 N.W.2d 124, 126 (N.D.1972) (citing Hoffert, 195 N.W.2d at 545).

[¶ 32] Although these cases seem to suggest a trial de novo should be held if at the time the appeal was filed the appellant was entitled to a trial de novo, none of these cases discuss N.D.R.Civ.P. 86 or its application. It was not until the decision in City of Wahpeton v. Drake-Henne, Inc., 215 N.W.2d 897, 902 (N.D.1973), that this Court recognized that Rule 86(a) permitted the application of amended Rule 52(a) “retroactively.” In City of Wahpeton the appeal was taken in December 1968, prior to repeal of the trial de novo. The Court stated that although Rule 86(a) permitted the application of amended Rule 52(a) “retroactively,” it would not apply it to this case because it had not applied it in the past. Id.

[¶ 33] This Court again interpreted Rule 86 in Holloway v. Blue Cross of North Dakota, 294 N.W.2d 902 (N.D.1980). This Court applied a rule of procedure that became effective four days after a class action was filed, finding the rule adequately protected the interests of all the parties. Id. at 906. This Court recognized, “This practice should be maintained as the existing rules are amended or new rules are added because it establishes a uniform pattern which civil actions can follow but still permits the court to apply prior rules in pending cases where fairness and justice so warrant.” Id.

[¶ 34] This Court, in Paxton v. Wiebe, 1998 ND 169, ¶ 22, 584 N.W.2d 72, again recognized that Rule 86 applies when determining whether new rules of procedure apply to pending cases. In Paxton, this Court concluded it would work an injustice to apply new rules of procedure that would make a post-judgment motion untimely when the motion would have been timely under the procedural rules that applied when the motion was filed. Id. at ¶ 23. In Paxton, this Court stressed that the amendments to rules should be given “retroactive” application to the maximum extent possible. Id. at ¶ 22 (emphasis added). This Court also noted “that an appellate court will apply amended rules in effect at the time the appeal is decided” unless it would work a manifest injustice. Id. (emphasis added); see also Parker v. McGaha, 294 Ala. 702, 321 So.2d 182, 184 (1975) (application of the former rules of procedure should be the exception rather than the rule).

[¶ 35] The 1971 order to amend Rule 52(a) provided: “the Amendments to the Rules of Civil Procedure so adopted and promulgated shall take effect and be in force from and after August 1, 1971.” Supreme Court Order of Adoption of Amendments to the North Dakota Rules of Civil Procedure, June 28, 1971 (emphasis added). If this was the reason this Court did not apply amended Rule 52(a) “retroactively,” this reason was not articulated in any of the opinions. The 2004 amendment does not contain similar language. Legislative history says nothing to indicate how the transition was to occur, nor are there any references in the legislative history to a statute affecting the transition. There are no Joint Procedure Committee comments about the 1971 amendment, and there was no petition to the Supreme Court to amend Rule 52(a).

[¶ 36] Although the order to amend Rule 52(a) stated the effective date would be from and after August 1, 1971, this Court acknowledged in 1973 that it could apply Rule 52(a) “retroactively.” See City of Wahpeton v. Drake-Henne, Inc., 215 N.W.2d 897, 902 (N.D.1973). In 1980, this Court did apply a new rule of procedure “retroactively.” Holloway v. Blue Cross of North Dakota, 294 N.W.2d 902, 906 (N.D.1980). In 1998, this Court stressed that new rules must be applied in pending litigation unless to do so would work an injustice. Paxton v. Wiebe, 1998 ND 169, ¶ 22, 584 N.W.2d 72.

[¶ 37] The notice of appeal in this case was filed on August 11, 2003, prior to the effective date of the new procedural rule requiring a clearly erroneous review of juvenile matters on appeal. The appellant argues that because his trial date was pri- or to the effective date of the new rule, the old rule should apply. He asserts he should get a trial de novo. He argues that had he known the new rule applied, he probably would have asked for review in the district court and gotten a trial de novo review by a district judge. It is not at all clear that the appellant would have received a de novo review by a district judge prior to March 1, 2004. See Interest of A.B., 2003 ND 98, ¶¶ 5-10, 663 N.W.2d 625. He-argues it is not fair to apply the new rule in this case. He argues that the rules should apply to decisions made in the lower court after March 1, 2004, but not prior to March 1, because decisions had to be made with clients about whether to' request review. He argues that the' rules in effect at the time of the lower court’s decision should apply to that decision. This Court has recognized that the right to appeal does not attach at the time of trial but rather after the judgment is entered. Trengen v. Mongeon, 200 N.W.2d 50, 52-53 (N.D.1972). This Court has also recognized that rules in effect at the time an appeal is decided (not at the time the decision is made in the lower court) should apply unless it would work a manifest injustice. See Paxton, 1998 ND 169, ¶ 22, 584 N.W.2d 72.

[¶ 38] The appellant also argues that procedural rules that affect due process cannot be retroactively applied. He argues that at the time the decision was made, he had a right to a de novo review, and that by choosing to appeal with this Court and not asking for review in the district court, he gave up a right to de novo review that he did not know he would lose. In State v. Flohr, 301 N.W.2d 367, 370 (N.D.1980), this Court recognized that any rule of procedure can affect substantive rights and thus violate the ex post facto laws-and that the court can prevent such retroactive application:

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Supreme Court declared that “even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” The ban against laws ex post facto “was intended to secure substantial personal rights against arbitrary and oppressive legislation ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” [Emphasis added.] Dobbert, supra, 97 S.Ct. at 2298, quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925).
Any rule of procedure can have substantive consequences. Thus determining whether a procedural change violates the ex post facto clause is necessarily an ad hoc process of line drawing. Beazell, supra, 46 S.Ct. at 69. Certainly, Rule 12.1 is procedural. It is found in a compilation entitled “North Dakota Rules of Criminal Procedure.” Its purpose is to provide an orderly means by which evidence of alibi is adduced at trial. Further, we do not believe its modification represents an arbitrary and oppressive encroachment upon a defendant’s substantial personal rights. The exclusionary sanction is not new — it was not created by the amended rule. The change in the rule’s provision for penalty benefits defendant by ending the mandatory exclusion of alibi testimony. That the defendant must now initiate the discovery process is no basis for an ex post facto argument. Such a change contrasts with those appearing in cases like Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), where the prejudicial effects of the new laws were both new and beyond the control of the defendants. Here, Flohr’s failure to give notice, not the independent working of the rule, was the direct cause of the evidence being barred. We conclude that the amendment of Rule 12.1 is procedural in the sense that it will not ground a challenge based on the ex post facto clause.

[¶ 39] Although North Dakota has not yet addressed whether thére is a vested right in the type of appellate review received, other courts have addressed this question. In Perez v. Marshall, 946 F.Supp. 1521, 1530 (S.D.Cal.1996), the court found that no vested right existed in a statutory scheme that defined the scope of relief and that applying a law that changes the type of review does not divest a person of a vested constitutional right. The court found that only the standard of review had changed and that the court still reviewed the matter. Id. It also explained that the change in the standard of review affects only the decision-making process and not the rights of the parties. Id. In Fowler v. State of Texas, 991 S.W.2d 258, 261 (Tex.Crim.App.1999), the court found that although the right to appeal constitutes a vested and substantive right, the procedure for review is not a vested and substantive right. In United States v. Daychild, 357 F.3d 1082, 1106 (9th Cir.2004), the court found that reliance on a former standard of review when making the decision whether to appeal is not substantive enough to warrant protection under the Due Process Clause. When new rules effect only a remedy and not a vested right, they may be applied to pending litigation. See Gibson v. Miami Valley Milk Producers, Inc., 157 Ind.App. 218, 299 N.E.2d 631, 641 (1973).

[¶ 40] The majority opinion states that under the circumstances in this case, fairness and justice warrant that a de novo standard of review be applied. The opinion, at ¶ 8, states it would be unjust to apply the amended rule because the appellant “elected not to request a review by the district court[,] believing that this Court would conduct a de novo review of the referee’s decision.” The opinion does not cite to any cases holding that this type of situation would work an injustice, nor does the opinion explain what factors are considered in determining whether application of a new rule would be unjust.

[¶ 41] In Perez v. Marshall, 946 F.Supp. 1521, 1530-31 (S.D.Cal.1996), the court considered three factors in determining whether “retroactive” application of a rule changing the scope of review would result in a manifest injustice: 1) the nature and identity of the parties, 2) the nature of the rights affected, and 3) the nature of the impact of the change of law on those rights. Perez, 946 F.Supp. at 1530-31 (citing Bradley v. School Bd. of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)). In applying the first factor, the court found it favored retrospective application because the case was between individuals and was not of great national concern. Id. at 1530. This case is similarly not of great national concern. In applying the second factor, the court noted that retrospective application is prohibited when it would deprive a person of an unconditional right. The court found that changing the standard of review does not infringe upon an unconditional right but simply changes the scope of the court’s review. Id. at 1530-31. In looking at factor three, the court found that a deferential standard of review did not impose new and unanticipated obligations on the appellant. Id. at 1531. The court found no manifest injustice. Id. Other factors to be considered when assessing whether a manifest injustice would occur if new rules are applied include the substance of the rule involved and the timing of plaintiffs actions, plaintiffs obvious gamesmanship or lack thereof, and plaintiffs reliance or lack of reliance on the rules as they existed at the time he made pertinent decisions in the case. Reitmeyer v. Schultz Equipment & Parts Co., 2001 WL 633679 *1 (Mich.Ct.App.).

[¶ 42] In this case, the appellant elected not to request a review by the district court, believing that this Court would conduct a de novo review of the referee’s decision. The appellant argues that had he known the rule would change, he would have sought review in the district court, hoping for a de novo review. He is essentially arguing that he was relying upon a de novo review in the appellate court when he decided not to seek review in the district court. I conclude this is not enough to work an injustice. See United States v. Daychild, 357 F.3d 1082, 1106 (9th Cir.2004) (reliance on a former standard of review when making the decision whether to appeal is not substantive enough to warrant protection under the Due Process Clause); see Gibson v. Miami Valley Milk Producers, Inc., 157 Ind.App. 218, 299 N.E.2d 631, 641 (1973) (when new rules affect only a remedy and not a vested right, they may be applied to pending litigation); Fowler v. State of Texas, 991 S.W.2d 258, 261 (Tex.Crim.App.1999) (the procedure for review is not a vested and substantive right); Perez v. Marshall, 946 F.Supp. 1521, 1530-31 (S.D.Cal.1996) (no manifest injustice, because changing the standard of review does not infringe upon an unconditional right but simply changes the scope of the court’s review, and because a deferential standard of review does not impose new and unanticipated obligations on the appellant). Although the appellant filed his appeal and the parties completed their briefing before March 1, 2004, believing that this Court would conduct a de novo review of the referee’s decision, this is not enough to warrant our applying the standard of review under N.D.R.Civ.P. 52(a) in effect prior to the March 1, 2004, amendment. See Fowler v. State of Texas, 991 S.W.2d 258, 262-63 (Tex.Crim.App.1999).

[¶ 43] Because amended Rule 52(a), N.D.R.Civ.P., is a procedural rule that does not affect any substantive rights of the appellant, and because application of the rule would not work an injustice, I conclude that a clearly erroneous standard of review should be applied in this case.

[¶ 44] CAROL RONNING KAPSNER, J., concurs.

NEUMANN, Justice,

concurring specially.

[¶ 45] I concur in much of the majority opinion. I would not reach the issue of the standard of review to be applied by us, because under either standard of review I would affirm.

[¶ 46] William A. Neumann

      . The names of the parties are pseudonyms.

      . Although this Court in Paxton found it would work an injustice under the circumstances of that case to apply the new rules of procedure, two justices signed the main opinion, one concurred in the result, and two dissented.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 129
    James E. TIBBETTS, Jr., Plaintiff and Appellee v. Marybeth DORNHEIM formerly known as Marybeth Dornheim Tibbetts, Defendant and Appellant.
    No. 20030267.
    Supreme Court of North Dakota.
    June 30, 2004.

      Ronald I. Galstad (argued) and Patti J. Jensen, Galstad, Jensen & McCann, PA, East Grand Forks, MN, for plaintiff and appellee.
    Steven Kraft (argued) and Patrick R. Morley, Morley Law Firm, Ltd., Grand Forks, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Marybeth Dornheim (“Dorn-heim”) appealed from a district court order “signed by the Honorable Karen Bra[a]ten denying her motion to modify the visitation provisions of a final divorce Judgment and from all interim Orders signed by the Honorable Deborah Eleven during the pendency” of the proceedings. We affirm.

I

[¶ 2] James E. Tibbetts, Jr., (“Tib-betts”) sued Dornheim for a divorce in 1998. A judgment entered on December 10, 1998, granted Tibbetts a divorce and awarded him the marital home, while reserving for later decision the matters of “distribution of personal property, division of debts, child custody and visitation, and child support.” An amended judgment was filed on January 27, 2000. It (1) granted physical custody of the parties’ two children to Dornheim; (2) granted specified visitation rights to Tibbetts; (3) fixed Tibbetts’ child support obligation at $667 per month “until the child attains the age of eighteen (18) years or ... until the child’s graduation from high school;” (4) fixed the parties’ responsibilities for the children’s dental and orthodontic care; and (5) divided the parties’ marital property. A second amended judgment with no substantial changes relevant to this appeal was filed on February 3, 2000. A third amended judgment was filed on August 16, 2001. It changed Tibbetts’ child support obligation to $808 per month.

[¶ 3] Dornheim moved for appointment of a guardian ad litem on September 27, 2001. A hearing on the appointment of a guardian ad litem was fyeld on October 17, 2001. On November 1, 2001, the court (Judge Eleven) issued an order appointing a guardian ad litem.

[¶ 4] On August 15, 2002, Tibbetts filed a motion to amend the third amended judgment to modify his child support obligation because the parties’ oldest child had turned 18 and had graduated from high school. On September 25, 2002, the court issued an order reducing Tibbetts’ child support obligation to $524 per month, based on Tibbetts’ affidavit and tax return. That order was reflected in a fourth amended judgment filed on October 28, 2002.

[¶ 5] On April 1, 2003, the State filed a deprivation petition in Juvenile Court, alleging the child was deprived under N.D.C.C. § 27-20-02(8)(a) because of parental alienation and exposure to adult conflicts from the parents’ divorce. On April 25, 2003, Dornheim filed a motion to modify the fourth amended judgment with respect to visitation and to implement the recommendations of a custody investigator. On April 28, 2003, Dornheim notified Tibbetts that a hearing on her motion would be held on May 12, 2003. On April 29, 2003, the court, Judge Braaten, issued an order providing, in part:

IT IS HEREBY ORDERED that hearing on the defendant’s Motion To Modify Visitation be stayed pending completion of the deprivation petition which is pending in Juvenile Court of Grand Forks County. The hearing on the motion scheduled by the defendant’s attorney to take place May 12, 2003 at 2:30 p.m. is hereby canceled and may be rescheduled once proceedings in the deprivation petition have been completed.

On August 13, 2003, the court, Judge Braaten, issued an order denying Dorn-heim’s April 25, 2003, motion to modify visitation and implement the recommendations of a custody investigator. The court noted the issues raised in the motion were covered in a Juvenile Court order giving custody of the parties’ youngest child to the North Dakota Department of Human Services “with [the child] remaining in his mother’s home subject to specific visitation rights by his father.”

[¶ 6] Dornheim filed a notice of appeal from Judge Braaten’s order denying her motion to modify the visitation provisions of the divorce judgment and from all interim orders signed by Judge Eleven. ■

II

[¶ 7] Dornheim raised a number of issues on appeal. Rather than presenting arguments on each of the individual issues raised, Dornheim has presented them in groups denominated as “POINT I” and POINT 2.”

[¶ 8] Under “POINT I,” Dornheim argues, with regard to a hearing held on October 17, 2001:(1) the court should not have taken any testimony at the hearing, and should not thereafter have appointed a guardian at litem; (2) the court should not have made some of the statements it made at the hearing; (3) the court should not have taken judicial notice of other files at the hearing, and should not have made those files available to the guardian ad litem and a court-appointed psychologist; (4) the court erred in not permitting a witness at the hearing to correct evidence attributed to him in files of which the court took judicial notice; (5) the court erred in not sequestering witnesses at the hearing; (6) the court improperly delegated “its authority over domestic violence allegations to social services;” and (7) the court made statements that were not supported by evidence. Dornheim concluded her argument under “POINT I”: “WHEREFORE, the order appointing a guardian ad litem together with all the interim orders resulting from motions made by the guardian ad litem should be vacated.”

[¶ 9] Under “POINT 2,” Dornheim argues: (1) the court should have held a hearing before granting Tibbetts’' August 15, 2002, motion to modify his child support obligation; (2) the court should have held a hearing on Dornheim’s motion to modify the visitation provisions of the fourth amended judgment, and the court erred in canceling the scheduled hearing; and (3) “[i]t was also an error because it improperly mixed the ‘divorce’ action with a deprivation action.” Dornheim concluded her argument under “POINT 2”: “WHEREFORE, the Orders granting á reduction in child support and canceling a hearing on modification of the visitation provisions of the divorce judgment should be reversed and remanded for hearings on those issues.”

Ill

[¶ 10] A judgment is appealable under N.D.C.C. § 28-27-01. Certain orders may be carried to this Court under N.D.C.C. § 28-27-02. None of the interlocutory orders or rulings Dornheim complained of in “POINT I” of her argument in this appeal or with regard to Tibbetts’ August 15, 2002, motion to modify his child support obligation, complained of in “POINT 2,” fall within the ambit of either N.D.C.C. § 28-27-01 or N.D.C.C. § 28-27-02. Thus, those matters are not independently appealable, and the appeal of those matters is dismissed.

[¶ 11] Generally, interlocutory orders in an action are'merged into the final judgment and may be reviewed on appeal of that judgment. Berg v. Dakota Boys Ranch Ass’n, 2001 ND 122, ¶ 10, 629 N.W.2d 563. Rule 35(a)(2), N.D.R.App.P., authorizes review of some orders that are not independently appealable:

Upon an appeal from a judgment, the court may review any intermediate order or ruling which involves the merits and affects the judgment appearing upon the record.

“ ‘In fact, most intermediate orders which are non-appealable may be reviewed as an incident to or a part of the final action of the court.’ ” Berg, at ¶ 6 (quoting Stormon v. Dist. Court of Pierce County, 76 N.D. 713, 718, 38 N.W.2d 785, 787 (1949)). All of the issues between parties are merged in the final judgment. Cokins v. Frandsen, 136 N.W.2d 377, 380 (N.D.1965). Any of the intermediate rulings and orders specifically challenged by Dornheim on appeal that occurred before entry of the fourth amended judgment, involved the merits, and affected the judgment, might have been reviewable under N.D.R.App.P. 35(a)(2) upon a timely appeal from the fourth amended judgment. The time for appealing the fourth amended judgment, which was filed on October 28, 2002, expired without an appeal, and intermediate orders and rulings preceding entry of the fourth amended judgment may not now be reviewed.

IV

[¶ 12] Dornheim asserted in her conclusion to the arguments she presented in “POINT I,” that “all the interim orders resulting from motions made by the guardian ad litem should be vacated.” On April 15, 2003, the court, Judge Eleven, issued an order that, among other things, ordered a referral to Family Court and terminated the appointments of a custody investigator and the guardian ad litem. “We have previously said ‘a party waives an issue by not providing supporting argument,’ and ‘without supportive reasoning or citations to relevant authorities, an argument is without merit.’ ” Haley v. Dennis, 2004 ND 96, ¶ 19, 679 N.W.2d 263 (quoting Kautzman v. Kautzman, 2003 ND 140, ¶ 15, 668 N.W.2d 59 (quoting dander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 27, 643 N.W.2d 29)). On this issue, Dornheim has provided neither supportive reasoning nor citations to relevant authorities, and her argument is, therefore, without merit.

[¶ 13] The only other issue not precluded by allowing the time for appealing the fourth amended judgment to pass without appealing the judgment is the issue Dornheim has raised in this appeal from the court’s August 23, 2003, order denying Dornheim’s motion to modify the visitation provisions of the fourth amended judgment. The court canceled a scheduled hearing on the motion and ordered the hearing stayed until resolution of a pending deprivation proceeding. When the deprivation proceeding was adjudicated, the court ruled that “the ruling and order of the Court in the Juvenile Court proceedings covers the issues raised by the defendant’s Motion To Modify Visitation,” and denied Dornheim’s motion. Dornheim contends the court erred in canceling the hearing because she had established a pri-ma facie case, and “because it improperly mixed the ‘divorce’ action with a deprivation action.”

[¶ 14] The record reflects that the visitation proceedings and the adjudication of the deprivation proceedings were conducted separately. The record also reflects that the order in the deprivation proceedings addressed, for practical purposes, the issues raised in defendant’s motion to modify visitation. A court does not operate in a vacuum. Minar v. Minar, 2001 ND 74, ¶ 20, 625 N.W.2d 518; Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 8, 583 N.W.2d 377. From the arguments presented, we are unable to conclude either that the trial court improperly mixed the visitation proceedings in the parties’ divorce action with the deprivation proceeding, or that it erred in canceling the scheduled hearing on Dornheim’s visitation motion until resolution of the deprivation proceedings.

V

[¶ 15] The appeal of rulings and orders issued before entry of the fourth amended judgment is dismissed. The other orders appealed from are affirmed.

[¶ 16] GERALD W. YANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur..

      . The October 17, 2001, hearing was on Dornheim’s application for a protection order and on a motion for appointment of a guardian ad litem. The court appointed a guardian ad litem on November 1, 2001.

      . In its September 25, 2002,- order granting Tibbetts' August 15, 2002, motion to modify his child support obligation and reducing the obligation to $524 per month, the court noted "the only evidence before the Court as to Plaintiff's earnings is his 2001 income tax return.”


author: KAPSNER, Justice.

text:
    2004 ND 139
    STATE of North Dakota, Plaintiff and Appellee v. George Frances DECOTEAU, Defendant and Appellant.
    No. 20030271.
    Supreme Court of North Dakota.
    June 30, 2004.

      Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Steven Balaban, Bismarck, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] George Decoteau appealed from an amended judgment of conviction for possession of marijuana with intent to deliver and possession of drug paraphernalia. We affirm, concluding the arresting officer had reasonable suspicion to stop Deco-teau’s vehicle.

I

[¶2] On "October 20, 2002, Officer Marks of the Bismarck Police Department recognized Decoteau driving a vehicle. Officer Marks had stopped Decoteau one week previously and during that stop learned Decoteau’s license had been suspended. Officer Marks initiated a traffic stop of Decoteau’s vehicle. He did not run a computer check on Decoteau’s license status or observe any driving violations before stopping the vehicle.

[¶ 8] During the stop, Officer Marks asked Decoteau whether his license was still suspended, and Decoteau admitted it was. Officer Marks then ran a computer check to confirm Decoteau’s suspended status, and arrested Decoteau for driving under suspension. A search incident to arrest produced marijuana, empty baggies, and a scale. Decoteau admitted he used the scale to weigh marijuana and that he occasionally sold marijuana. He also admitted the vehicle was uninsured. Deco-teau was eventually charged with possession of marijuana with intent to deliver, possession of drug paraphernalia, driving under suspension, and driving without insurance.

[¶ 4] Decoteau moved to suppress all evidence resulting from the stop, arguing Officer Marks did not have a reasonable and articulable suspicion of criminal activity sufficient to support the stop. When the State failed to file a response to the motion, Decoteau filed a “Request for Default” seeking suppression of the evidence and dismissal of the charges. The State then immediately filed a response to the motion to suppress and requested a hearing.

[¶ 5] At the hearing on the motion to suppress, the State conceded its response to the suppression motion was two days late because the assistant states attorney had erroneously believed there was an additional three days to respond after service by mail. Decoteau’s suppression motion had been served personally, not by mail. The trial court advised counsel that, as a sanction for the State’s tardy response, the State would be bound by the facts as outlined in Decoteau’s brief, but the State could submit a brief arguing the legal effect of those facts. The court also allowed the State to submit a brief challenging its holding limiting the facts to those in Deco-teau’s brief. Officer Marks was allowed to testify as an offer of proof in the event the court changed its mind about limiting the facts.

[¶ 6] The State filed a brief, arguing that the court had discretion to permit a late response to a suppression motion and that the officer had reasonable suspicion to stop Decoteau’s vehicle. On May 7, 2003, the trial court entered an order denying the motion to suppress, not on the merits, but because Decoteau had failed to file a factual affidavit in support of the motion. On May 28, 2003, Decoteau entered a conditional plea of guilty, reserving the right to appeal the denial of the motion to suppress. A sentencing hearing was held on September 5, 2003. Decoteau filed a notice of appeal on September 5, 2003. A criminal judgment was filed on September 12, 2003, and an amended criminal judgment was filed on October 2, 2003.

II

[¶ 7] Decoteau’s notice of appeal states the appeal is taken from the order denying his motion to suppress. An order denying a motion to suppress is not an appealable order under N.D.C.C. § 29-28-06. State v. Guscette, 2004 ND 71, ¶ 4, 678 N.W.2d 126; State v. Klodt, 298 N.W.2d 783 n. 1 (N.D.1980). After denial of the motion to suppress, Decoteau entered a conditional plea of guilty, with the trial court and the State acknowledging at the change of plea hearing that Decoteau was reserving the right to appeal the denial of the motion to suppress. A subsequent judgment and amended judgment consistent with the order denying the motion to suppress were entered. Under these circumstances, we will treat Deco-teau’s attempted appeal from the order denying the motion to suppress as an appeal from the subsequently entered consistent amended judgment. See Guscette, at ¶ 4; State v. Keilen, 2002 ND 133, ¶ 9, 649 N.W.2d 224; Klodt, at 783 n. 1.

III

[¶ 8] Decoteau initially raises challenges to the procedure employed by the trial court in resolving the motion. He alleges the trial court erred in allowing the arresting officer to testify at the hearing after already determining the matter would be decided based upon the facts as outlined in Decoteau’s brief and in basing its denial of the motion on Decoteau’s failure to file a factual affidavit. We find it unnecessary to resolve these procedural issues because we conclude that, even if only the facts presented in Decoteau’s brief in support of the motion to suppress are considered, the officer had a reasonable and articulable suspicion of unlawful activity sufficient to stop Decoteau’s vehicle.

IV

[¶ 9] Decoteau contends that, considering only .the facts included in his brief to the trial court, Officer Marks did not have a reasonable suspicion of unlawful activity when he stopped Decoteau’s vehicle.

[¶ 10] In his brief in support of the motion to suppress, Decoteau conceded that Officer Marks had stopped him one week earlier , and that Officer Marks discovered that Decoteau’s license was suspended at the time of the first stop. One week later Officer Marks recognized Deco-teau driving his vehicle and stopped him without observing any other traffic violations or running a computer check to determine if Decoteau’s license was still suspended. Thus, the issue presented is whether an officer may stop a vehicle on the basis of the officer’s knowledge that the driver’s license was suspended when stopped by the same officer one week earlier.

[¶ ,11] In State v. Corum, 2003 ND 89, ¶ 10, 663 N.W.2d 151 (citations omitted), we outlined the standards employed when considering whether a vehicle stop was proper: •

To stop a moving vehicle for investigative purposes, an officer must have a reasonable and articulable suspicion that a law has been or is being violated. The reasonable suspicion standard is less stringent than probable cause. Although the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, it does require more than a “mere hunch.” In determining whether an investigative stop is valid, we employ an objective standard and look to the totality of the circumstances. Reasonable suspicion for a stop exists when a reasonable person in the officer’s position would be justified by some objective manifestation to believe the defendant was, or was about to be, engaged in unlawful activity.

An officer may stop a vehicle if he has a reasonable suspicion that the driver’s license is suspended. See State v. Gregg, 2000 ND 154, ¶¶ 27-28, 615 N.W.2d 515.

[¶ 12] Decoteau asserts the officer’s knowledge that Decoteau’s license was suspended a week earlier was insufficient to create a reasonable suspicion that his license was still suspended. Decoteau argues the officer in this case acted on a “mere hunch,” and that the officer was required to verify Decoteau’s suspended status through a computer check before stopping the vehicle.

[¶ 13] Decoteau’s argument confuses reasonable suspicion to conduct an investigatory stop with probable cause for an arrest. If the officer recognizes the driver and a computer check verifies that the driver’s license is suspended, the officer has more than a reasonable suspicion of unlawful activity; he has probable cause to arrest for the offense. See State v. Mische, 448 N.W.2d 412, 414-15 (N.D.1989). Probabilities, not hard certainties, are used in determining reasonable suspicion. Lapp v. North Dakota Dep’t of Transp., 2001 ND 140, ¶ 13, 682 N.W.2d 419; Kappel v. Director, North Dakota Dep’t of Transp., 1999 ND 213, ¶ 10, 602 N.W.2d 718. When an officer observes a person driving a vehicle, and the driver’s license was suspended when the officer stopped him one week earlier, it is far from a “mere hunch” to suspect the driver’s license is still under suspension.

[¶ 14] The officer’s suspicion is not rendered unreasonable merely because the driver’s license may have been reinstated in the intervening week. The reasonable suspicion standard does not require an officer to rule out every possible innocent excuse for the behavior in question before stopping a vehicle for investigation. Hanson v. Director, North Dakota Dep’t of Transp., 2003 ND 175, ¶ 15, 671 N.W.2d 780; Lapp, 2001 ND 140, ¶ 13, 632 N.W.2d 419; Kappel, 1999 ND 213, ¶ 10, 602 N.W.2d 718. The fact that a driver’s license was suspended when he was stopped by the officer one week earlier would justify a reasonable person in the officer’s position to believe that the driver was engaged in unlawful activity when driving again one week later.

[¶ 15] Appellate courts in other jurisdictions have consistently held that an officer’s knowledge that a driver’s license was suspended at some relatively recent time is sufficient to create reasonable suspicion of unlawful activity and support an investigatory stop of the vehicle. See United States v. Lutz, 207 F.Supp.2d 1247, 1255 (D.Kan.2002) (officer knew defendant’s license had been suspended and defendant had a prior conviction for driving under suspension); Stone v. State, 856 So.2d 1109, 1112 (Fla.Dist.Ct.App.2003) (officer knew driver’s license had been suspended four or five weeks prior to the current stop); State v. Wade, 673 So.2d 906, 907 (Fla.Dist.Ct.App.1996) (officer had conducted a records check less than two weeks before the current stop which showed driver’s license was suspended); State v. Leyva, 599 So.2d 691, 693 (Fla.Dist.Ct.App.1992) (officer had four-to-five-week-old knowledge the driver’s license was suspended); State v. Carrs, 568 So.2d 120, 121 (Fla.Dist.Ct.App. 1990) (officer had cited the driver for driving with an expired license within the past week); State v. Harris, 286 Ga.App. 525, 513 S.E.2d 1, 3-4 (1999) (officer learned a “few weeks” prior to the stop that the driver’s license was suspended); State v. Brown, 733 So.2d 1282, 1287 (La.Ct.App. 1999) (officer had run a records check one day before the stop showing driver’s license was suspended); Commonwealth v. Deramo, 436 Mass. 40, 762 N.E.2d 815, 817 (2002) (officer had learned two months earlier that driver’s license was suspended); State v. Duesterhoeft, 311 N.W.2d 866, 867-68 (Minn.1981) (officer had learned one month earlier that driver’s license was suspended); City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365, 368-69 (1975) (officer had run a license check one month earlier showing suspected driver’s license was suspended); State v. Bue, 985 S.W.2d 386, 390 (Mo.Ct.App.1999), overruled on other grounds by State v. With-row, 8 S.W.3d 75 (Mo.1999) (officer knew driver’s license had previously been revoked and driver had driven without a valid license in the past); State v. Yeargan, 958 S.W.2d 626, 633 (Tenn.1997) (officer had learned six months earlier that driver’s license had been suspended for one year); State v. Gibson, 665 P.2d 1302, 1304-05 (Utah 1983) (officer had learned four months earlier that driver’s license was suspended); State v. Howk, 2004 WI App. 88, 679 N.W.2d 928 (Table) (officer had run a records check thirteen days earlier showing driver’s license was revoked); State v. Kassube, 260 Wis.2d 876, 659 N.W.2d 499, 500-01 (2003) (officer knew driver had not had a license for many years, and driver had told officer within the prior eleven months that he did not have a license). We agree with the rationale of the Supreme Court of Minnesota that, in cases such as these, “[t]he stop was not the product of whim or caprice or desire on the part of the officer to harass the defendant,” but “[r]ather, the officer believed that defendant’s license was still under revocation.” Duesterhoeft, at 868.

[¶ 16] We recognize that, at some point, the length of time which has passed may render knowledge of a prior suspension too stale to support a reasonable suspicion of unlawful activity. See Moody v. State, 842 So.2d 754, 757-58 (Fla.2003) (officer’s knowledge that driver’s license was suspended three years earlier was too stale to provide a basis for an investigatory stop); Boyd v. State, 758 So.2d 1032, 1035 (Miss.Ct.App.2000) (officer’s knowledge that driver’s license had been suspended eight years earlier was too stale to create a reasonable suspicion); Commonwealth v. Stevenson, 832 A.2d 1123, 1130-31 (Pa.Super.2003) (officer’s knowledge that driver’s license was suspended three years earlier was too stale to provide a basis for an investigatory stop). In this case, however, the officer’s knowledge that Decoteau’s driving privileges were suspended at the time of a prior stop only one week earlier was not stale and created a reasonable suspicion of unlawful activity.

V

[¶ 17] We conclude Officer Marks had a reasonable and articulable suspicion of unlawful activity sufficient to justify an investigatory stop of Decoteau’s vehicle, and therefore the trial court did not err in denying the motion to suppress. We have considered the remaining issues and arguments raises by the parties and they are either unnecessary to our decision or are without merit. The amended judgment of conviction is affirmed.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


text:
    2004 ND 125
    STATE of North Dakota, Plaintiff and Appellee v. Edward Martin EHLI, Defendant and Appellant.
    No. 20030327.
    Supreme Court of North Dakota.
    June 30, 2004.
    Brian D. Grosinger (on brief), Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.

      Edward Martin Ehli (on brief), pro se, Metairie, LA, defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Edward Ehli appeals from an order amending the conditions of his probation which prohibit contact with children under 18 and prohibit him from accessing the Internet. We affirm.

I.

[¶ 2] In 1999, Ehli pleaded guilty to continuous sexual abuse of a minor under N.D.C.C. § 12.1-20-03.1, a class A felony. Ehli was sentenced to twelve years in prison, with seven years suspended. Ehli’s suspended sentence included conditions of probation which prohibited Ehli from having contact with minor children under the age of 18 and prohibited Ehli from having access to the Internet.

[¶ 3] On'February 14,'2003, Ehli made a request to the district court to amend the conditions of his probation to allow him to see his minor children and to allow him use of the Internet because his occupation involved computers and access to the Internet. The State failed to respond to Ehli’s request, and the district court granted his request to amend his probation on March 4, 2003.

[¶ 4] On March 20, 2003, the State moved to reconsider the district court’s order to amend Ehli’s probation. The district court granted the State’s motion on March 25, 2003, and vacated the order amending Ehli’s probation conditions. Ehli appealed to this Court. In State v. Ehli, 2003 ND 133, ¶ 1, 667 N.W.2d 635 (Ehli I), this Court reversed the district court’s order vacating the March 4, 2003, order on procedural grounds.

[¶ 5] In Ehli I, this Court held the district court did not comply with N.D.R.Ct. 3.2(a), because the district court issued the order reversing the-March 4, 2003, order before it received Ehli’s response brief. The opinion did not preclude the State from seeking reinstatement of the original conditions of probation.

[¶ 6] The State sought reinstatement of the original conditions of probation. The district court issued an order on October 29, 2003, reinstating the original probation conditions which -precluded Ehli from having contact with minor children and using the Internet. Ehli appealed to this Court.

II.

[¶ 7] Ehli argues he has a constitutional right to see his children and the conditions of his probation prevent him from doing so. Ehli argués the district court order reinstating his probation conditions is a de facto termination of parental rights and therefore, unconstitutional. Although he does not say so éxplicitly, Ehli appears to argue his due process rights were violated. Ehli does not raise any procedural issues in this appeal regarding compliance with N.D.R.Ct. 3.2.

[¶ 8] Ehli argues access to his children is of “constitutional dimension.” Ehli also argues the State circumvented proper procedure for termination of parental rights because the conditions of his probation prohibit him from seeing his minor children. Ehli argues this constitutes a de facto termination of Ehli’s parental rights.

[¶ 9] In Ehli I, this Court recognized the parent-child relationship is of “constitutional dimension.” Ehli I, at ¶ 7. In the same opinion, this Court also noted “[t]hat right is not, however, absolute and unconditional, and it may be curtailed or suspended if harmful to the child.” Ehli I, at ¶ 7 (citing In re B.N., 2003 ND 68, ¶ 19, 660 N.W.2d 610; In re Adoption of S.A.L., 2002 ND 178, ¶ 10, 652 N.W.2d 912; In re T.K., 2001 ND 127, ¶ 12, 630 N.W.2d 38). Ehli’s rights concerning visitation of his children are not absolute. If the district court determined continued contact could harm the children, Ehli does not necessarily have the right to visitation or contact.

[¶ 10] Section 12.1-32-07, N.D.C.C., governs the district court’s authority to impose conditions when placing a defendant on probation. State v. Bender, 1998 ND 72, ¶ 9, 576 N.W.2d 210 (citing State v. Shepherd, 554 N.W.2d 821, 823 (N.D.1996); State v. Sahr, 470 N.W.2d 185, 193 (N.D.1991)). The implementation of conditions on a defendant’s probation is purely a matter of discretion. Bender, at ¶ 9. “The only statutory limitation upon the imposition of conditions of probation is the requirement in N.D.C.C. § 12.1-32-07(2) that the conditions be ‘reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the defendant to do so.’ ” Id. at ¶ 10 (citing Shepherd, 554 N.W.2d at 823). In Bender, this Court ruled “a condition of probation is valid if it is reasonable and is related to the defendant’s reformation and rehabilitation in light of the offense committed.” Bender, at ¶ 10 (citing Shepherd, 554 N.W.2d at 823).

[¶ 11] In its order vacating the March 4, 2003, order amending Ehli’s conditions of probation, the district court found “that there is good cause for the motion.” We agree. In this case, Ehli pleaded guilty to continuous sexual abuse of a seven-year-old female. He was living with the child’s mother and developed a father-daughter relationship with the child. He took care of her at night while her mother was working and she called him “dad.” Additionally, Ehli used pornography from the Internet to “instruct” the child on certain adult sexual acts. The conditions of probation preventing him from having contact with his minor children and prohibiting him from using the Internet were reasonable and related to the offense committed. See Bender, at ¶ 11 (holding alcohol treatment and anger management as conditions of probation are reasonable and related to the offenses committed); see also Nelson v. Jones, 944 P.2d 476, 481 (Alas.1997)(rul-ing that conditioning contact with a child upon completing a sex offender treatment program is not a de facto termination of parental rights).

[¶ 12] In Nelson, the trial court conditioned the defendant’s contact with his minor child upon the defendant’s completion of a sex offender treatment program. Nelson, at 478. During the course of the program, Nelson refused to admit he committed sexual abuse against his child and treatment was terminated by the counsel- or. Id. Nelson argued that although the trial court did not formally terminate his parental rights, it functionally terminated his parental rights by depriving him of all visitation with his daughter for ten years. Id. at 479. The Nelson court held Nelson’s parental rights had not been constructively terminated because the key to changing the conditions of his probation were within Nelson’s control. Id. at 480.

[¶ 13] Similarly, in its brief, the State acknowledged proof of rehabilitation could be a step toward modification of Ehli’s conditions of probation. The State also acknowledged Ehli did not appear to be progressing toward any rehabilitative goals. In his numerous letters and various motions before the district court, Ehli’s attitude regarding his crime indicated a failure to acknowledge the seriousness of his crime. Conditions on probation are subject to modification. N.D.C.C. § 12.1-32-07(7). The power to change the conditions of probation lies within Ehli’s control. If Ehli could demonstrate to the district court genuine rehabilitation, Ehli could move the district court for modification of his probation conditions.

[¶ 14] Ehli argues the State .has failed to follow proper procedures to terminate his parental rights, which constitutes a due process violation. In his brief, Ehli appears to argue his constitutional rights have been violated. A party asserting a constitutional claim must fully brief the basis for his constitutional claim or expect that it will not be reviewed. Grand Forks Prof'l Baseball v. N.D. Workers Comp. Bureau, 2002 ND 204, ¶ 17, 654 N.W.2d 426 (citing State v. Kensmoe, 2001 ND 190, ¶ 19, 636 N.W.2d 183).

[¶ 15] Ehli’s argument that the imposition of the probation conditions is a de facto termination of parental rights is without merit. He offers no case law or other authority in his brief to support his contention that probation conditions constitute a de facto termination of parental rights. “Without citations to relevant authority or supportive reasoning, an argument is assumed to be without merit.” Snyder v. N.D. Workers Comp. Bureau, 2001 ND 38, ¶ 20, 622 N.W.2d 712 (citing Friedt v. Moseanko, 484 N.W.2d 861, 863 (N.D.1992)).

[¶ 16] The conditions for Ehli’s probation were originally imposed at the time of his sentencing. Ehli did not appeal the conditions after the original sentencing. Ehli has shown no reason why those conditions are less related to his rehabilitation in light of the offense for which he was convicted than those conditions were when originally imposed. ■

[¶ 17] The district court order is affirmed.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


text:
    2004 ND 140
    STATE of North Dakota, Plaintiff and Appellee v. Paul SMESTAD, Defendant and Appellant.
    No. 20030335.
    Supreme Court of North Dakota.
    June 30, 2004.

      Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Paul H. Myerehin, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Paul Smestad appeals from a judgment entered following a conditional guilty plea to forgery, a class C felony. We affirm.

I.

[¶ 2] Constance Couch and Smestad were introduced by a mutual acquaintance in late December 2002. Couch and Smes-tad dated for less than a month and were married on January 19, 2003.

[¶ 3] Prior to their marriage, Smestad informed Couch he wanted to purchase a new pickup for her as a wedding present. On January 17, 2003, Smestad persuaded Couch to write a check to Stan Puklich Chevrolet for approximately $32,000 to purchase a new pickup. On the same day, Smestad wrote Couch two personal checks, one for $35,000 to cover the cost of the pickup and one for $5,000. Couch attempted to deposit the checks in her personal account, but the bank would not allow her to make the deposit. Smestad claimed he would have his accountant deposit the checks for Couch. Smestad drove Couch to a business called Route 94 Marketing. Couch waited in the vehicle while Smestad went into the business, stating he would have his accountant make the necessary arrangements to have the checks deposited immediately.

[¶ 4] Smestad never made arrangements to have the checks deposited in Couch’s account, and the $82,000 check Couch wrote for the purchase of the new vehicle was returned for insufficient funds, along with several other checks written by Couch. Smestad told Couch he had a “big settlement” coming, and he was a Major in the armed forces with a sizeable income. Smestad made numerous other misrepresentations to Couch as to his employment and financial status.

[¶ 5] Eventually, Couch began to doubt Smestad’s honesty. On March 4, 2003, Couch contacted the Mandan police department and informed an officer several checks were missing out of her checkbook and she suspected Smestad of taking them. The checks were written out to various businesses in the Bismarck-Mandan area. Two of those checks, written in Morton County, are the subject of this appeal.

[¶ 6] Smestad was charged with forging two checks on Couch’s checking account in Morton County. The first check was written to Dan’s Supermarket on February 13, 2003, in the amount of $111.20. The second check was written at Stage Stop Liquors on February 22, 2003, in the amount of $73.90. Trial was set for July 8, 2003. On July 8, 2003, Smestad made a motion in limine to limit testimony of Couch and to allow the defense to impeach Couch on a misdemeanor conviction resulting from the bad check she wrote to Stan Puklich Chevrolet for the pickup. The district court refused to limit Couch’s testimony because the forgery statute requires the prosecution to demonstrate a scheme or intent to defraud. The district court refused to allow the defense to impeach Couch on the misdemeanor bad check conviction stating it was not a crime involving dishonesty. The record only reflects the State’s Attorney’s reference to Couch being prosecuted for a class A misdemeanor involving writing checks without sufficient funds; however, the record fails to specify under which statute she was prosecuted and convicted.

[¶ 7] Smestad entered a conditional guilty plea on July 8, 2003, and appealed the district court’s ruling on his motion in limine.

II.

[¶ 8] The first issue raised by Smestad on appeal is whether the district court abused its discretion when it declined to limit Couch’s testimony about the events surrounding the checks Smestad wrote on Couch’s account.

[¶ 9] The prosecution sought to allow Smestad’s wife of five weeks, Constance Couch, to testify to a scheme perpetrated by Smestad in an effort to take money from Couch and others. The State argued it was essential to show Couch was deceived by Smestad and that Smestad stole checks from Couch with intent to commit forgery. The district court ruled it would permit Couch’s testimony about prior events with a verbal warning to the State not to stray from the essential elements of the crime. The district court also instructed the defense it would have the opportunity to object at trial, if and when it was necessary.

[¶ 10] Smestad argues the district court abused its discretion when it determined Couch’s testimony would be allowed in order to give context to the events giving rise to the two forged checks. Smestad argues the essential elements of the forgery statute require the defendant to have “intent to deceive or harm the government or another person.” N.D.C.C § 12.1-24-01. The statute provides:

1. A person is guilty of forgery or counterfeiting if, with intent to deceive or harm the government or another person, or with knowledge that he is facilitating such deception or harm by another person, he:
a. Knowingly and falsely makes, completes, or alters any writing; or
b. Knowingly utters or possesses a forged or counterfeited writing.
2. Forgery or counterfeiting is:
b. A class C felony if:
(5) The offense is committed pursuant to a scheme to defraud another or others of money or property of a value in excess of one hundred dollars.

N.D.C.C. § 12.1-24-01.

[¶ 11] “Relevant evidence” is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. Relevant evidence is generally admissible, whereas evidence that is not relevant is generally inadmissible. N.D.R.Ev. 402. Relevant evidence may be excluded at the discretion of the district court if the prejudicial nature of the evidence outweighs its probativeness:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

N.D.R.Ev. 403.

[¶ 12] “Under N.D.R.Ev. 401-403, a trial court is vested with broad discretion to decide if evidence is relevant and if its probative value substantially outweighs the danger of unfair prejudice.” State v. Steinbach, 1998 ND 18, ¶ 9, 575 N.W.2d 193 (citing State v. Carlson, 1997 ND 7, ¶ 8, 559 N.W.2d 802). This Court will reverse a district court’s decision in admitting evidence only if the court has abused its discretion by acting in an arbitrary, unconscionable, or unreasonable manner. Steinbach, at ¶ 9.

[¶ 13] The district court’s explanation for allowing Couch’s testimony was subsection 2(b)(5) of the forgery statute required the prosecution prove a scheme or intent to defraud others. At the hearing on Smestad’s motion in limine, the district court stated:

Well, I’m going to allow the testimony to come in, even though it appears that it’ll be probative. I don’t think the prejudicial value will outweigh the probative nature of those statements.
Obviously, Mr. Grosinger, I want you to be careful and, Mr. Bolinske, obviously wanting to object in regards to, I guess, going afloat into other county’s charges.
And my reasoning, Mr. Bolinske, is the statute does indicate “with intent to deceive or harm,” so there is a portion there that the State has to prove. And, obviously, the jury can make a leap with just checks and you don’t have authorization to write. But given a husband or spousal relationship, obviously, puts the State’s need for evidence maybe a little bit more greater than just your average somebody stole my checks from a stranger and forged them or wrote them at a later time. So I’m going to allow the information in.

[¶ 14] The district court examined the nature of the statutory language and determined Couch’s testimony was necessary for the prosecution to establish the essential elements of the crime. The statute requires the prosecution to demonstrate a scheme to defraud. N.D.C.C. § 12.1-24-01(2)(b)(5). Because these checks were written on the account of a spouse, the district court recognized that the State might need to show more to rebut any assumption Smestad had authority to write checks on his wife’s account. In order to demonstrate there was a scheme with intent to defraud, the prosecution would have to elicit facts from the witness as to Smestad’s actions causing financial harm to Couch. The essential elements of the statute required the prosecution to offer evidence to give context to the events surrounding the crime.

[¶ 15] The district court did not abuse its discretion when it ruled Couch could testify to the events surrounding the forgery charges against Smestad.

III.

[¶ 16] The second issue raised by Smestad on appeal is whether the district court abused its discretion when it ruled it would not allow the defense to impeach Couch with a misdemeanor conviction involving issuing a check without sufficient funds. The district court stated,

[w]ell, I’m going to rule it is not admissible, Mr. Bolinske. Part of — the main reason for that is it’s only an A Misdemeanor, it’s not a felony and it’s not a charge involving dishonesty such as Theft, Theft by Deception, et cetera.
So any reference to a Class A Misdemeanor NSF by Ms. Couch or Smestad will not be allowed.

The district court has discretion whether to allow a party to impeach a witness with a felony conviction; however, if the district court determines a conviction is one involving dishonesty or false statement, then the district court does not have discretion and the conviction may be used to impeach a witness. State v. Eugene, 340 N.W.2d 18, 31 (N.D.1983).

[¶ 17] The ability of a party to impeach a witness is governed by N.D.R.Ev. 609(a), which provides:

For the purpose of attacking the credibility of a witness, (i) evidence that a witness other than an accused has been convicted of a crime must be admitted, subject to Rule 403, if the crime was punishable by death or .imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a "crime must be 'admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused; and (ii) evidence that any witness has been convicted of a crime must be admitted if it involved dishonesty or false statement, regardless of the punishment.

Rule -609(a)(i) does not apply in this case because Smestad alleges Couch was convicted of a class A misdemeanor of writing bad checks; therefore, Rule 609(aj(ii) applies.

[¶ 18] The record on this issue is incomplete and was not properly developed before the district court. “Issues or contentions not adequately developed and presented at trial are not properly before this Court. The purpose of an appeal is to review the action§.,of the trial court, not to grant the appellant the opportunity to develop new theories of the case.” Hansen v. Winkowitsch, 463 N.W.2d 645, 646 (N.D.1990) (citing Edwards v. Thompson, 336 N.W.2d 612 (N.D.1983)). “Requiring a party to first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.” Mahoney v. Mahoney, 1997 ND 149, ¶ 13, 567 N.W.2d 206 (citing In Interest of A.G., 506 N.W.2d 402, 403-04 (N.D.1993)). Smestad failed to adequately show Couch’s crime was one which qualified for impeachment under N.D.R.Ev. 609(a)(ii).

[¶ 19] The record does not reflect the crime of which Couch was convicted and with which Smestad wanted to impeach her. The only evidence contained in the record is a comment by the Morton County State’s Attorney in which he indicates Couch told him she had been convicted of a misdemeanor bad check charge. This scant record does not provide this Court with an adequate basis to determine Couch’s crime was one which involves dishonesty under the applicable rule of evidence. Smestad has not demonstrated the district court’s ruling was incorrect.

[¶ 20] The district court is affirmed.

[¶ 21] GERALD W. YANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.