author: ZINTER, Justice.

text:
    2005 SD 120
    In the Matter of S.A., A.A., E.A., and A.A., Alleged Abused/Neglected Children.
    Nos. 23473, 23488.
    Supreme Court of South Dakota.
    Argued Oct. 3, 2005.
    Decided Dec. 7, 2005.

      Amanda M. Wileoxon, Minnehaha County Public Defender’s Office, Sioux Falls, for appellant Mother H.A.
    Richard L. Johnson, Sioux Falls, for appellant Father H.A. (E.A., Sr.).
    Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, James E. Carlon, Special Assistant Attorney General, Pierre, for appellee State of South Dakota.
    Cynthia A. Howard, Minnehaha County Office of the Public Advocate, Sioux Falls, for appellee Minor Children.
   ZINTER, Justice.

[¶ 1.] The circuit court adjudicated S.A., A.A., E.A. Jr., and A.A. abused and neglected children. After dispositional hearings, the circuit court terminated the parental rights of H.A. (Mother) and H.A. (Father). Father appeals the trial court’s determination that the children were abused/neglected. Both Mother and Father appeal the trial court’s termination of their parental rights. We affirm.

Facts and Procedural History

[¶ 2.] Mother and Father are the parents of four children: S.A. (daughter, age 11), A.A. (daughter, age 9), E.A. Jr. (son, age 9), and A.A. (daughter, age 5). On February 21, 2003, E.A. Jr.’s school principal, Jackie McNamara, observed marks on E.A. Jr.’s neck behind his ears and on his back. When Ms. McNamara asked about the marks, E.A. Jr. responded that Mother hit him when he did not want to go to bed.

[¶ 3.] Ms. McNamara called the Department of Social Services (DSS). Liana Van Ormer, along with police officers Johnson and Colwill, photographed the injuries and interviewed E.A. Jr. He told Ms. Van Ormer that the injuries were caused by Mother hitting him. Dr. Kaplan later examined E.A. Jr. and opined that E.A. Jr.’s injuries were consistent with the child’s hitting explanation. However, Dr. Kaplan thought the injuries were caused by a “geometric object,” rather than a hand.

[¶ 4.] The police placed the children in protective custody at the Children’s Inn, a domestic abuse shelter. While at the Children’s Inn, the children were interviewed and participated in counseling. During the interviews and counseling sessions, the three older children shared numerous stories of other abuse, indicating that they had been hit with belts, flyswatters, and spatulas.

[¶ 5.] At the adjudication hearing, both Mother and Father denied that they used any type of physical discipline with their children. Father also relied on the testimony of Mariann Johnson, a family friend and daycare provider. Both Johnson and Father stated that they did not notice marks on E.A. Jr.’s neck on the morning in question. The trial court, however, after hearing all of the evidence, found clear and convincing evidence that the children were abused/neglected.

[¶ 6.] After the adjudicatory hearing, and while still in protective custody, the children continued to disclose further instances of abuse and neglect in the home. The children disclosed not only instances of child abuse but also abuse between the parents. Furthermore, S.A. told one of the counselors that she babysat the youngest child A.A. “a lot” and had to watch for the police while Mother and Father shoplifted. S.A. also revealed that Father had told her to keep the fighting between Mother and Father and the abuse of the children a secret.

[¶ 7.] Another disclosure occurred when S.A. and Tara Olson-Larson, a licensed children’s therapist, were looking at a book regarding foster care, abuse, and the legal system. During this counseling session, S.A. turned the book back to a page on sexual abuse and asked, “what if this happened to me?” S.A. then told Ms. Olson-Larson that when S.A. was about- eight or nine, Father came home intoxicated while she was getting ready to take a bath, and he touched her in her private area. After making this statement, Colleen Brazil, a forensic interviewer, talked with S.A. In a videotaped interview, S.A. told Brazil the same story, indicating that Father got on his knees and touched her with his tongue on her skin and inside her private area.

[¶ 8.] Notwithstanding the children’s numerous allegations, Mother and Father denied that they ever physically abused the children. They also denied that there was any abuse between them or that they fought in front of the children. DSS, however, established a history of domestic abuse. One incident occurred in 2001 when Mother actually called the Children’s Inn, reported domestic abuse by Father, and stated that he hit her and was angry all the time. Further, on October 3, 2003, while this case was pending, Mother and her attorney met with DSS and the Children’s Inn. On this occasion, Mother indicated that Father was emotionally, verbally, and physically abusive for the last 10 years and that she was scared but felt “stuck.” She also suggested that Father caused the injuries to E.A. Jr. but felt the children were blaming her because they were afraid of him. Significantly, even after being confronted with documented evidence of domestic abuse, Mother and Father continued to deny all allegations of physical abuse between them and claimed the police reports were false. Mother even denied the 2003 incident at the Children’s Inn, claiming DSS and the Children’s Inn “misunderstood” her.

[¶ 9.] After the trial court found the children abused and neglected, DSS attempted to work with the parents to return the children to the home. Although Mother and Father completed many of the necessary requirements, the professionals that provided the services indicated that the parents were being untruthful. The professionals recommended that Mother and Father’s parental rights be terminated.

[¶ 10.] At the dispositional hearing, Mother and Father claimed that they were not given a fair opportunity to demonstrate what they had learned through the counseling sessions and other services. The trial court, however, found that DSS had already made reasonable but unsuccessful efforts to rehabilitate the family. The court relied in part upon the parents’ untruthfulness in denying any physical abuse between the two of them and with the children even when confronted with overwhelming evidence to the contrary. Therefore, the court found the conditions that led to the removal of the children remained with little likelihood that they would be remedied. The court ultimately found that termination of parental rights was the least restrictive alternative and in the best interests of the children. On appeal, Father raises the following issue:

(1) Whether the trial court’s finding of abuse and neglect was supported by clear and convincing evidence.

Mother and Father jointly raise the following issues:

(2) Whether the trial court erred in admitting hearsay statements of the children; and
(3) Whether termination of parental rights was the least restrictive alternative and in the best interests of the children.

Analysis and Decision

Finding of abuse and neglect

[¶ 11.] We review the trial court’s findings of fact under the clearly errone-

ous standard; therefore, they will not be set aside unless “we are left with a definite and firm conviction that a mistake has been made.” People ex rel. Jr., 2005 SD 3, ¶ 12, 691 N.W.2d 611, 615 (citing In re T.H., 396 N.W.2d 145, 148 (S.D.1986)). We also give due regard to the trial court’s opportunity “to judge the credibility of the witnesses.” Matter of D.H., 354 N.W.2d 185, 188 (S.D.1984).

[¶ 12.]-The State has the burden of proving that the children were abused or neglected by clear and convincing evidence. People ex rel. D.T., 2003 SD 88, ¶ 5, 667 N.W.2d 694, 697 (citing Matter of J.A.H., 502 N.W.2d 120, 123 (S.D.1993)). Father contends that because of inconsistencies in the testimony there was not clear and convincing evidence that the children were abused and neglected. Although there was inconsistent evidence presented at the adjudicatory hearing, those inconsistencies were considered by the trial court. Furthermore, the trial court’s findings were based on the credibility of the parents and other witnesses. The trial court specifically noted that it was able to judge the credibility of the parents who testified and was able to view E.A., Jr.’s videotaped interview with Ms. Brazil. The trial court ultimately found that “[t]he videotape of [E.A., Jr.] giving his version of the events to Ms. Brazil [was] ultimately ... the most compelling piece of evidence presented. In it, the Court ha[d] the opportunity to judge for [itself, E.A., Jr.’s] credibility in giving his story.”

[¶ 13.] After • reviewing the record and giving due regard to the trial court’s opportunity to judge the credibility of these witnesses, we cannot conclude that the trial court’s findings were clearly erroneous. Rather, the marks on E.A. Jr., his volunteered statement to his principal, the statements of the other children, the testimony of the professional service providers, and E.A. Jr.’s videotaped interview all support the finding of abuse/neglect.

Hearsay Statements of the Children

[¶ 14.] Mother and Father argue that because the children’s statements were introduced through counselors and interviewers, they were denied the opportunity to cross-examine the children. Although the parents concede that the statements were admissible under the rules of evidence, they contend that admitting the children’s hearsay statements violated their constitutional right to due process because they did not have the opportunity to cross-examine the children. A violation of a constitutionally protected right at trial presents a question of law, which is reviewed de novo. State v. Carothers, 2005 SD 16, ¶ 7, 692 N.W.2d 544, 546 (citations omitted).

[¶ 15.] The United States Supreme Court has clearly stated that natural parents have a fundamental liberty interest in the care, custody, and management of their children. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640, 649-50 (1981); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606. As a result, parents are guaranteed procedural rights under the Fourteenth Amendment when parental rights are subject to termination:

If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky, 455 U.S. at 753-54, 102 S.Ct. at 1395, 71 L.Ed.2d at 606.

[¶ 16.] Parents argue that use of the children’s “testimonial” hearsay was fundamentally unfair. They rely upon the Supreme Court’s recent restriction on the use of testimonial hearsay in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford held that under the Confrontation Clause of the Sixth Amendment, “[w]here .testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U.S. at 68-69, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.

[¶ 17.] However, the parents’ reliance on Crawford is misplaced because Crawford only interpreted the Sixth Amendment right to confrontation in criminal cases: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him .... ” U.S. Const, amend. VI (emphasis added). And, “[pjrocedures determining the custody of dependent children are not criminal, are not quasi-criminal, but instead constitute a civil action, or a special proceeding of a civil nature.” People in Interest of G.R.F., 1997 SD 112, ¶ 17, 569 N.W.2d 29, 33 (quoting In re C.J.H., 371 N.W.2d 345, 349 (S.D.1985)). Therefore, the Crawford analysis involving the Sixth Amendment right of confrontation in criminal cases is not applicable in this civil abuse and neglect proceeding.

[¶ 18.] Although the Sixth Amendment right of confrontation does not apply, parents argue that they were impermissi-bly denied the right to confront and cross-examine the children under the Due Process Clause of the Fourteenth Amendment. However, it is unnecessary to undergo a due process analysis because these parents were not denied the opportunity to cross-examine the children. Instead, the lack of cross examination was due to their decision not to question the children.

[¶ 19.] In this case, the State gave the parents pretrial notice of its intent to use the hearsay statements in accordance with SDCL 19-16-39. Thereafter, although both Mother and Father had the opportunity to subpoena the children at the adjudicatory hearing, neither chose to do so. Furthermore, the parents were obviously aware of their “opportunity” to cross-examine because Mother did subpoena the children at the dispositional hearing. However, the parents only chose to question S.A. and voluntarily declined the court’s offer to question the other children. Although the trial court did limit the topics that S.A. could be questioned on, neither Mother nor Father objected to the trial court’s limitations.

[¶20.] When confronted with a similar failure to exercise the opportunity to challenge hearsay through cross examination, a Minnesota Court of Appeals observed:

The right to cross-examine witnesses is part of the general guarantee of due process. In re Welfare of J.W., 391 N.W.2d 791, 794 (Minn.1986) (citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). But ‘it is an established element of trial court discretion in personal welfare cases to admit written materials as hearsay evidence, provided thát the affected parties have an opportunity to dispute the material, either by calling the authors of those reports as witnesses or otherwise responding.’ In re Welfare of D.J.N., 568 N.W.2d 170, 175 (Minn.App.1977) (citing Stanford v. Stanford, 266 Minn. 250, 258, 123 N.W.2d 187, 192-93 (1963)). The record establishes that mother was aware before trial that the CFASD intended to offer the exhibits. She could have subpoenaed the authors as witnesses. Therefore, mother has failed to establish that admitting the exhibits based on foundation provided by social workers deprived mother of her right to cross-examine the authors of the exhibits.

In re Children of L.D., 2005 WL 526734, *8 (unpublished opinion). Similarly, in this case, both Mother and Father were aware before the adjudicatory and disposi-tional hearings that the State intended to offer the hearsay statements. Thereafter, parents could have called the children to cross-examine them but chose not to do so. Therefore, they were not deprived of the opportunity to cross-examine.

The Least Restrictive Alternative Available in the Best Interests of the Children

[¶ 21.] Mother and Father finally argue that termination of parental rights was not the least restrictive alternative available in the best interests of the children. “Our standard of review is ‘whether the trial court’s ultimate finding — that clear and convincing evidence indicated termination was the least restrictive alternative commensurate with the child’s best interests — waá clearly erroneous.’” In re A.S., 2000 SD 94, ¶ 19, 614 N.W.2d 383, 386 (quoting In re J.Y., 502 N.W.2d 860, 862 (S.D.1993)). The trial court’s determination as to “the- least restrictive alternative commensurate with the best interests of the child is an issue of fact.” Matter of A.H., 421 N.W.2d 71, 75 (S.D.1988) (citing People in Interest of K.C., 414 N.W.2d 616, 620 (S.D.1987)). “Although it is necessary for the trial court to enter its final determination of the least restrictive alternative (in the best interests of the child) as a conclusion of law, it is nonetheless an ultimate finding, subject to [the] clearly erroneous standard of review.” Id. (citing People in Interest of K.C., 414 N.W.2d at 620).

[¶ 22.] We first consider the best interests of the children. In this case, there is substantial evidence that the children were abused. E.A. Jr. told numerous counselors and interviewers that his mother hit him inappropriately. Additionally, S.A. and A.A. reported incidents of abuse at the hands of their parents. The parents, however, denied that abuse ever took place, denied there was any current domestic abuse between the two of them, and maintained their denial even when confronted with DSS’s irrefutable evidence.

[¶23.] Furthermore, all of the professionals involved in this case believed that it would not be in the best interests of the children to return to the home. For example, Ms. Olson-Larson believed that the parents’ continued denial, despite the children’s repetitive statements of abuse, would have a negative impact as it would send a message to the children that they are liars. The parents’ denial also prevented Ms. Olson-Larson from conducting family therapy with the parents and the children. This inability to talk about the abuse within the family also prohibited the children from reporting any further incidents because, as Ms. Olson-Larson opined, the abuse would be seen as a secret to be kept in the family. Finally, the continued denials prevented the parents from learning from the numerous services that would help them become a healthier family.

[¶ 24.] Consequently, Dr. Sivesind, Mr. Patzlaff, and DSS witnesses opined that it was not in the children’s best interests to be returned to the home. Although Dr. Sivesind initially stated that there was no reason why Mother and Father could not be successful parents in the future, this statement was made without the knowledge of the family’s substantial history of domestic abuse, S.A.’s allegation of sexual abuse, and the parents’ unstable marriage. After becoming aware of these facts, Dr. Sivesind changed his opinion and stated that further services would not be beneficial and that DSS should not place the children back in the unsafe home. Similarly, Dr. Pribyl recommended that Father should not regain custody of the children especially considering his denial of S.A.’s sexual abuse allegation, which he believed would put S.A. at risk for further abuse that she would not report. Mr. Patzlaff opined that the children would be in “great danger” if they were returned to the parents as their steadfast denial prohibited them from engaging in any real healing. Mr. Patzlaff concluded “that the only viable option” for the safety of the children was to terminate parental rights. Finally, a DSS witness indicated that the parents’ denial prevented them from providing a stable home and meeting their basic needs. The DSS witness further indicated that the abuse would likely continue in light of Mother’s statement that this was all E.A. Jr.’s fault and when the children got home, Mother was going to sit down with them and find out why they were lying and who told them to lie. Considering all of the evidence, we agree with the trial court that it would not be in the best interest of the children to return them to a home where the physical abuse was denied, the parents believed their conduct was acceptable, the parents were unable to improve their skills, and the unacceptable conduct was likely to continue.

[¶ 25.] With respect to the least restrictive alternative, Mother and Father contend that they complied with all of DSS’s requirements but were not given the opportunity to demonstrate what they had learned from the counseling and therapy sessions. Thus, they argue that DSS did not make reasonable efforts to return the children to the home as required by SDCL 26-8A-21. Although this statute requires DSS to make reasonable efforts, “[e]xhaustion of every possible form of assistance is not required.” People in Interest of T.G., 1998 SD 54, ¶21, 578 N.W.2d 921, 924 (citations omitted). Rather, “[i]n the event that counseling and therapy fail to improve parenting skills, termination of parental rights is justified.” Matter of A.H., 421 N.W.2d at 76 (citations omitted). Furthermore, “[w]hen all reasonable attempts and assistance fail, no narrower alternative remains.” Id. (citation omitted).

[¶ 26.] Here, unlike some abuse and neglect cases, Mother and Father did cooperate with DSS in fulfilling a vast majority of the requirements imposed upon them. However, due to their denials, they were unable to benefit from the counseling and other services offered. For example, parents completed two anger management assessments, but both assessments indicated the parents were being untruthful. Similarly, after being placed in the Family Violence Project (FVP), they told DSS that the classes did not help because they did not abuse their children or each other. Most importantly: 1) Dr. Sivesind, who administered the psychological evaluations, testified that in his opinion classes and therapy would not provide any assistance to Mother and Father as they were without a basis to start from because they would not be truthful in regard to their prior abusive conduct; 2) Dr. Pribyl testified that while he could not be certain, he believed that S.A.’s sexual abuse allegation was truthful; 3) Ms. Ritzman, a therapist at the Rape and Domestic Abuse Center, believed that Mother was minimizing Father’s abuse and Ms. Ritzman was very concerned about Mother not believing S.A.’s sexual abuse allegation; 4) Ms. Ko-nyek, who counseled the joint marriage sessions, testified that the parents denied current domestic abuse; 5) Mr. Patzlaff, who the trial court described as “a clinical social worker with over 20 years of working with families and children and a bias toward thinking families should be reunified if at all possible,” testified that due to the parents’ steadfast denial of abuse, the parents would continue to engage in the same behaviors; 6) Ms. Kleinschmidt, the family’s DSS ease manager, found that the parents were dishonest and failed to make a good faith effort to change their behavior for the safety of their children; and 7) all of the professionals that provided their services to the parents shared Mr. Pat-zlaff s concern that the parents’ steadfast denial prohibited them from engaging in any real healing.

[¶ 27.] Considering the foregoing evidence, the parents’ denials made the offered services unsuccessful, and “[germination is appropriate where services are unaccepted or unsuccessful.” People in Interest of T.G., 1998 SD 54, ¶22, 578 N.W.2d at 924 (citation omitted). Because the evidence reflects that the numerous offered services would not reduce the risk of abuse, there was no less restrictive alternative that would ensure the well-being of the children.

[¶ 28.] Affirmed.

[¶ 29.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Mother and Father argue that the children’s statements are inconsistent with the allegations of abuse. First, S.A. revealed that Father had smashed A.A.'s glasses, and A.A. agreed even though she did not have prescription glasses or sunglasses. Also, when E.A. Jr. voluntarily told Betty Lundgren, a counsel- or at the Children's Inn, that his mother hit him and lifted his shirt to show his bruises, S.A. and A.A. began laughing. Ms. Lundgren described the laughter as "almost like hysterical laughing.”

      . Although S.A. revealed abuse during the counseling sessions, as the dispositional hearing grew near, S.A. told Ms. Olson-Larson that if she went home and was abused again, she would not tell anyone about it as she would rather be home and abused than separated from her family.

      . Other incidents of abuse documented by DSS included:
      1) An incident on 1/22/95 where [Father] hit [Mother] in the mouth, apparently because she was unable to get one of their children to stop crying. [Father] was arrested and convicted of simple assault. He received a suspended 180 day jail sentence.
      2) A report made on 7/13/95 in Denison, Iowa, where [Mother] went to the police station to complain that [Father] assaulted her, hit her in the eye and jaw, and pulled her hair. [Father] was again arrested, pled guilty, and was sentenced to 30 days in jail, with 27 suspended.
      3) On 3/6/96, [Mother] called 911 in Deni-son, Iowa, to report several assaults in the previous week, including being kicked, pushed, and shoved down the steps of her ... house. [Father] was arrested but the charges were dismissed.
      4) On 3/7/98, a domestic assault was reported in Marshall, Minnesota, but DSS was unable to get any information about the details.

      .Mother and Father completed two anger management assessments, which noted that the parents were untruthful. Mother and Father also denied that there was any domestic abuse problem. Dr. Scott Pribyl, a psychologist specializing in sexual abuse, opined that Father was lying in denying S.A.'s sexual abuse allegations, although he could not be completely sure. All of the professionals believed that the children should not be returned to the home. Even Morris Patzlaff, an independent social worker, concurred. He observed one of the parental visitations and reviewed the file. He opined that Mother may have been subconsciously associating E.A., Jr. with Father because E.A., Jr. was born during a period of abuse between the parents, E.A., Jr. resembled Father in appear-anee, and he had Father's name. This association and E.A., Jr.'s Attention Deficit Hyperactivity Disorder led Mr. Patzlaff to believe that E.A., Jr. would continue to be a victim of abuse if he were returned to the home.

      . For example, see supra n. 1.

      . At the adjudicatory hearing, Father objected to the testimony of Officer Johnson and Principal McNamara regarding E.A. Jr.'s statements about his injuries. Father also objected to the testimony of Ms. Van Ormer regarding E.A. Jr. and S.A.’s statements about Mother and Father abusing E.A. Jr. At the dispositional hearing, Father objected to Ms. Brazil's testimony concerning S.A.’s statements of physical and sexual abuse and to Ms. Olson-Larson's testimony concerning the statements E.A. Jr., S.A., and A.A. made during counseling.

      . At oral argument, Father's attorney was asked if the trial court erred in applying the evidentiary rules of hearsay. He responded: I think under thé hearsay rules, the rules of evidence, that there is a statute that allows these statements in.... [S]o my only objection and my only ‘problem with it is the parents did not have the right to confront. I think it is a separate issue.

      . Several recent cases have reached the same conclusion. See In re April C., 131 Cal. App.4th 599, 611, 31 Cal.Rptr.3d 804, 811-12 (2005) (stating "the Sixth Amendment right to confrontation does not apply to parties in civil proceedings, including juvenile dependency proceedings”); In re C.M., 351 Ill.App.3d 913, 916-17, 286 Ill.Dec. 839, 842, 815 N.E.2d 49, 52 (2004) ("This court has previously held that a proceeding under the Juvenile Act constitutes a civil proceeding- — meaning that no sixth amendment right to confront witnesses is implicated.”); Commonwealth v. Given, 441 Mass. 741, 747, n. 9, 808 N.E.2d 788, 794 n. 9 (2004) (“The Crawford case has no direct bearing on this case, because, as we have made clear, the confrontation clause does not apply to civil commitment proceedings.”) (citation omitted); In re Children of L.D., 2005 WL 526734, *7 n. 3 (Minn.Ct.App.) (unpublished opinion) (reasoning that termination proceedings are civil proceeding, thus, Crawford does not apply); In re D.R., 616 S.E.2d 300, 303 (N.C.Ct.App.2005) (explaining that "the Sixth Amendment is not applicable to this [termination of parental rights hearing] as it is a civil action”).

      . Mother's Attorney: ... Obviously, I don’t have the children here. They are kept out of this process by statute of [SDCL] 19 — 16— 39. You can take their hearsay statements and they can be admitted but only if the Court also finds that the statements have sufficient indicia of reliability....
      The Court: I was interested in your comment about the children were excluded by statute. There is nothing to prevent either the State or the parents here from calling the child as a witness, is there?
      Mother's Attorney: I guess I meant that the statute allows them to be excluded by letting the hearsay in. I don’t know of a law that says you can't bring them in here although I have never seen that.
      The Court: I probably wouldn’t bring a three-year-old in most cases but a nine or ten-year-old might be old enough to come to court to testify certainly. I have had them testify in my court before.
      Mother's Attorney: Well, if the Court wants to hear from [E.A. Jr.], I certainly wouldn’t oppose recessing for additional evidence. The Court: Just as I told the State this was their opportunity to present their evidence, this was your opportunity to present evidence.

      . Mother and Father argue that they were not able to demonstrate what they learned because DSS did not provide any home based services. While home based services may be useful in some cases, the parents’ denial of any misconduct and half-hearted effort to learn from the services DSS provided would have made any effort to provide the home based services futile. It was highly unlikely that, given the parents' denials, services provided in the home in the presence of the parents would have provided a different outcome.

      . SDCL § 26-8A-21 further provides, in pertinent part:
      Reasonable efforts to prevent the necessity for removal of a child from the home of the child’s parents, guardian, or custodian and reasonable efforts to return the child to the home mean provision by the department of any assistance or services that:
      (1)Are appropriate for the child's parents, guardian, custodian, or any other caretaker family of the child existing at the time of removal or possible return of the child, including instruction on parenting;
      (2) Are available pursuant to the comprehensive plan of preventive services of the department;
      (3) Could be made available without undue financial burden on the department; or
      (4) Would have a significant likelihood of protecting the child from substantial danger to the child's physical health or from severe emotional damage while enabling the child to remain in the home or to be returned to the home.


source: Caselaw Access Project

author: TIMM, Circuit Judge.

license: Public Domain

text:
    2006 SD 4
    Suzanne KORZAN, Joan Schulz, Betty Heidinger, Lucille Geisler and Gladys Sebastian, Plaintiffs and Appellants, v. CITY OF MITCHELL, Defendant, and Roman Catholic Church of Holy Family of Mitchell, Intervenor and Appellee.
    No. 23591.
    Supreme Court of South Dakota.
    Argued Nov. 8, 2005.
    Decided Jan. 4, 2006.

      Timothy W. Bjorkman, Mike C. Fink of Bjorkman & Fink, Bridgewater, SD, for appellants.
    John F. Cogley of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, SD, appellee.
   TIMM, Circuit Judge.

[¶ 1.] Korzan appeals from the circuit court’s findings that the City of Mitchell had complied with SDCL 1-19A-11.1 and that application of SDCL 1-19A-11.1 created a substantial burden on Holy Family in violation of the Religious Land Use and Institutionalized Persons Act of 2000. We Affirm.

Facts and Procedural History

[¶ 2.] The Appellants seek to prevent the demolition of Notre Dame Academy, a building that is listed on the National and State Registers of Historic Places. The Notre Dame Academy (School) is located on the one block campus of the Holy Family Catholic Church (Holy Family). The School, a three story structure, was built in 1912. Additions were constructed in 1922 and 1955. The School, church and a rectory, also located on the campus, were listed on the National Register of Historic Places in 1974 and subsequently placed on the South Dakota Register.

[¶ 3.] In 1995 Holy Family received a report from the State Fire Marshall’s Office whose inspection of the School revealed a number of building and fire code violations as well as other unsafe conditions that required correction. Holy Family, along with Holy Spirit (the other Catholic Church in Mitchell) formed a task force to study the educational facilities at both locations with the initial goal of preserving the School. The task force and the two Parishes met on numerous occasions and eight options were studied. The task force ultimately recommended that the old school be demolished, a new school be built at Holy Family, and that the school at Holy Spirit be added on to and remodeled. Members of both Parishes met in September of 1998. All options were explained and discussed. A strong majority approved the recommended option of demolishing the School.

[¶ 4.] In May of 1999 Holy Family announced plans to demolish the School and initiated the process with the City of Mitchell (City) to obtain a demolition permit. The State Office of History (SOH) was notified on May 19, 1999, of the proposed project in accordance with SDCL 1-19A-11.1. SOH determined that the project would have an adverse effect on a historic building and requested a case report on June 1, 1999. A case report was prepared. The Mitchell City Council (City Council) considered the project in lengthy discussions at a meeting on May 17, 1999. The Case Report was considered by the Mitchell Historic Preservation Commission (Historic Commission) on July 6, 1999. The Historic Commission voted to unanimously agree with the findings of the Case Report that there were no feasible and prudent alternatives to the demolition of the School and that the report included all possible planning to minimize the harm to the historic property.

[¶ 5.] The City Council considered the matter again on July 6, 1999; and voted unanimously to adopt the Case Report and issue the demolition permit. The City Council found that based on the consideration of all relevant facts, there were no feasible and prudent alternatives to the proposal to demolish the School and that the project included all possible planning to minimize harm to historic property. Korzan appealed to the Sixth Judicial Circuit on July 16, 1999. On October 25, 2001, the circuit court remanded the matter back to the City Council for further proceedings only after the SOH had the opportunity to comment on the project. The circuit court determined that SDCL 1-19A-11.1 did not permit the City Council to make its final findings regarding feasibility and alternatives prior to comment from SOH.

[¶ 6.] The application for a demolition permit lay dormant from the date of the circuit court’s remand in 2001 well into 2003. During that time, Holy Family and Holy Spirit made the decision to construct a new school at Holy Spirit. The question of what to do with the School at Holy Family remained under study. Evolving needs of the Parish came into play, i.e., the need for a handicap accessible entrance to the Church and more off-street parking. Holy Family also considered several other options for the School. These options included renovation of the School for use as gathering space, a small chapel and offices or converting the School to housing for the elderly. In evaluating these options, it was determined that having a housing complex and the Church in such close proximity would not be compatible. It was also determined that renovating the School would not be suitable for the needs of the Parish. Holy Family concluded that the occupied space could be used in a more efficient manner for a new structure and off-street parking. Thus, in 2003 Holy Family again sought a demolition permit from the City Council.

[¶ 7.] A supplement to the Case Report was prepared and sent to the SOH. The Historic Commission held a hearing on August 20, 2003, and received testimony from proponents and opponents. They again considered the matter on August 23 and October 22, 2003. At both of these meetings the Historic Commission heard proposals and testimony from both sides.

[¶ 8.] On October 28, 2003, the Historic Commission having reviewed both the original Case Report and the Supplement, considered the testimony of proponents and opponents, and examined the old school, voted five to two in favor of a motion to agree with the findings of both the original Case Report and Supplement that there were no feasible and prudent alternatives to demolition of the School.

[¶ 9.] The City Council received a response from SOH on December 3, 2003. In this response SOH concluded that several feasible and prudent alternatives to demolition existed including: 1) doing a less than full scale renovation of the original building for use as a chapel with a handicapped accessible entrance with the rest of the building being “mothballed” for future renovations; and, 2) supporters of the School be given the opportunity to raise money to pay the difference, if any, between the cost of renovating the building and the cost of demolishing the current building and constructing a new building.

[¶ 10.] The City Council considered the request on December 15, 2003. After reviewing the original Case Report, the Supplement, the response from SOH and hearing testimony from both sides, the City Council unanimously adopted a resolution. This resolution acknowledged the Case Report, the Supplement and the decision of the Historic Commission and stated, based on consideration of all relevant factors, that there were no reasonable and prudent alternatives to the .demolition of the School. The City Council also found that the project included all possible planning to minimize harm to the historic property resulting from the demolition.

[¶ 11.] Korzan appealed again to the Sixth Judicial Circuit. The circuit court affirmed the decision of the City Council in all respects. The court also concluded that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 USC § 2000ce et seq., prohibits a governmental body from imposing or implementing a land use regulation in a manner that would substantially burden the religious exercise of a person or institution. The court further held that as it was being applied in this case, SDCL 1-19A-11.1 was a “land use regulation” as defined in RLUIPA and that the statutory prerequisites of RLUIPA were satisfied. Finally, the court found that RLUIPA prohibited the application of SDCL 1-19A-11.1, as the effect of the statute was to deny Holy Family the ability to develop its property as it desires in accord with its religious teachings. Korzan appeals raising the following issues:

1. Whether the trial court erred in finding that the Mitchell City Council had complied with SDCL 1-19A-11.1.
2. Whether application of SDCL 1-19A-11.1 created a substantial burden on Holy Family’s religious exercise and is thus barred under RLUI-PA.

Standard of Review

[¶ 12.] We review an agency’s decision the same as the circuit court, “unaided by any presumptions of the correctness of the circuit court’s determination.” In re B.Y. Development Inc., 2000 SD 102, ¶ 6, 615 N.W.2d 604, 607. Our review is confined to the record. SDCL 1-26-35. Questions of law and statutory construction are fully reviewable. B.Y. Development, 2000 SD 102, ¶ 6, 615 N.W.2d at 608. This Court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. SDCL 1-26-36. The court may reverse or modify the decision if the administrative findings, inference, conclusions, or decisions are clearly erroneous in light of the entire evidence in the record or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Id.

Analysis and Decision

[¶ 13.] 1. Whether the trial court erred in finding that the Mitchell City Council complied with SDCL 1-19A-11.1.

[¶ 14.] Korzan contends that the City Council did not comply with the requirements of SDCL 1-19A-11.1. This statute provides in relevant part:

The state or any political subdivision of the state, or any instrumentality thereof, may not undertake any project which will encroach upon, damage or destroy any historic property included in the national register of historic places or the state register of historic places until the Office of History has been given notice and an opportunity to investigate and comment on the proposed project. The office may solicit the advice and recommendations of the board with respect to such project and may direct that a public hearing be held thereon. If the office determines that the proposed project will encroach upon, damage or destroy any historic property which is included in the national register of historic places or the state register of historic places or the environs of such property, the project may not proceed until:
(1) The Governor, in the case of a project of the state or an instrumentality thereof or the governing body of the political subdivision has made a written determination, based upon the consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to the historic property, resulting from such use; and
Any person aggrieved by the determination of the Governor or governing body may appeal the decision pursuant to the provisions of chapter l-26[.]

SDCL 1-19A-11.1. Specifically, Korzan contends that the City Council failed to consider all relevant factors and failed to evaluate whether there were any feasible and prudent alternatives to the proposed demolition.

[¶ 15.] The City Council was informed by the SOH that the proposed demolition of the School would destroy historic property. Thus, under SDCL l-19Arll.l the City Council could not' issue the demolition permit until it made a written determination, after reviewing all relevant factors, that there were no feasible and prudent alternatives and all possible planning to minimize harm to the historic property had been considered. This Court has held that a city “is not required to consider as ‘relevant factors’ any and all alternatives, but only those supported by sufficient facts to indicate they are feasible and prudent.” B.Y. Development, 2000 SD 102, ¶ 16, 615 N.W.2d at 610.

[¶ 16.] Holy Family, the City Council, and the Historic Commission considered several alternatives to demolishing the School, either in whole or just the 1922 and 1955 additions. Each time, Holy Family, the Historic Commission and the City Council determined that none of the alternatives were feasible. The last two alternatives considered by the City Council were provided by the SOH. These alternatives were: 1) a less than full scale renovation of the original building and “mothballing” the remaining portion of the building; and, 2) allowing supporters of the building the opportunity to raise money to pay the difference in costs between demolishing and building a new building to renovating the current building. As the trial court correctly pointed out, “mothballing” the School is neither feasible nor prudent. The trial court recognized that mothballing the structure would leave many unanswered questions: how long must the Church wait, who would pay for stabilization of the roof to prevent further deterioration of the building, who would pay the cost of maintenance, who would decide when a use was found and when the search was over? The determination by the City Council that the first alternative was not feasible was not clearly erroneous.

[¶ 17.] The other alternative provided by SOH, allowing Korzan an opportunity to raise money, is also not feasible or prudent. Holy Family, the Historic Commission, and the City Council have already determined that the needs of the church cannot be met unless the building is torn down. Raising money, an enterprise that may or may not succeed and could take several years, does not address this concern and it does not give Holy Family the space it needs. What it does give them is a building they do not want. The City Council was not clearly erroneous in determining this option was not feasible.

[¶ 18.] This Court’s function is to “decide from the record whether the [City Council] took a hard look at the prudent and reasonable alternatives using relevant factors and based its decision on evidence. The weight to be given the individual factors is for the [City Council] to decide.” B.Y. Development., 2000 SD 102, ¶ 17, 615 N.W.2d at 611. The record reveals that extensive consideration has been given to this project, a project that has been ongoing for nearly six years. A Case Report detailing options and the feasibility of those options was prepared and reviewed by both the Historic Commission and City Council. Both bodies determined that, after considering all relevant factors, no feasible and prudent alternatives to the demolition of the School existed. This Case Report was sent to the SOH as required under SDCL 1-19A-11.1. A Supplement to the original Case Report was prepared, describing what had transpired from the time of the first appeal to the present. The Supplement set out the alternatives to demolition that had been considered and the reasons why they had not been pursued. The Supplement was reviewed by the Historic Commission and the City Council. Again the Historic Commission determined, after reviewing all relevant factors that no feasible and prudent alternatives to the proposed demolition of the School existed.

[¶ 19.] The City Council reviewed and approved the Supplement and the recommendations of the Historic Commission. This Supplement was then forwarded to the SOH for comment as per SDCL 1-19A-11.1. The City Council received and reviewed those comments from the SOH. At a meeting on December 15, 2003, the City Council also heard testimony and presentations from proponents and opponents of the project. At the conclusion of this meeting, the City Council passed a Resolution in which they acknowledged the hearings they had held and those held by the Historic Commission. They acknowledged the vote in favor of demolition by the Historic Commission. They acknowledged the comments provided by SOH and that they had considered them. Finally, the City Council concluded that upon consideration of all relevant factors, there were no feasible and prudent alternatives to the demolition of the School and the project included all possible planning to minimize harm to the historic property.

[¶ 20.] Based on the record, it is clear that the City Council took a ‘hard look’ at this project. All options and proposals against demolition were presented by proponents and opponents to both the Historic Commission and the City Council on several occasions. Twice, after taking a ‘hard look’ both the Historic Commission and the City Council determined that no feasible and prudent alternatives to demolition of the School existed.

[¶ 21.] On this record, the trial court did not err in concluding that the City Council’s determination was not clearly erroneous or arbitrary or capricious.

[¶ 22.] 2. Whether application of SDCL 1-19A-11.1 to this case creates a substantial burden on Holy Family’s religious exercise and is thus barred under RLUIPA.

[¶ 23.] Because we have held the trial court ruled correctly on the first issue, the second issue need not be addressed.

[¶ 24.] Affirmed.

[¶ 25.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 26.] TIMM, Circuit Judge, sitting for ZINTER, Justice, disqualified.

      . The School is located less than 100 feet from the Church.

      . Although the parties engage in an extended discussion of authority from another jurisdiction, (Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948 (1990) and Lawrence Preservation Alliance v. Allen Realty Inc., 16 Kan.App.2d 93, 819 P.2d 138 (1992)), the result in this case is controlled by B.Y. Development, 2000 SD 102, 615 N.W.2d 604. Consequently, we do not address that authority-


author: VOGEL, J.

text:
    John MONTGOMERY, Petitioner-Appellee, v. Angela WELLS, Respondent-Appellant.
    No. 04-1853.
    Court of Appeals of Iowa.
    Nov. 9, 2005.

      Jeffrey A. Smith, Oskaíoosa, for appellant.
    Gregory G. Milani of Orsborn, Bauerle, Milani & Grothe, L.L.P., Ottumwa, for ap-pellee.
    Considered by HUITINK, P.J., and . VOGEL and ZIMMER, JJ.
   VOGEL, J.

Angela Wells appeals the order of the district court, establishing the name of her minor child as Bradyn Briar John Montgomery. We affirm.

Background facts and proceedings.

Angela Wells and John Montgomery were involved in a romantic relationship for approximately one and a half years, resulting in the birth of their son Bradyn in June 2003. The couple was never married, nor did they live together at the time of Bradyn’s birth. Although John is not shown on the birth certificate, a paternity test indicated he was Bradyn’s father. In September 2003, John filed a petition to establish paternity, custody, support and visitation. Prior to trial, all issues had been resolved except for two: (1) the specifics of summer visitation and (2) whether Bradyn’s surname should be changed from “Wells” to “Montgomery.” Trial on these matters was held in August 2004, with the court setting visitation and ordering Bra-dyn’s name established as Bradyn Briar John Montgomery. Angela appeals the court’s order on the surname issue, contending that (1) the court did not have authority to determine Bradyn’s surname, and (2) the court’s changing of Bradyn’s surname from Wells to Montgomery is not in his best interests.

I. Scope of Review.

Our scope of review in an equitable action, including a surname dispute, is de novo. ’ Iowa R.App. P. 6.4; In re Marriage of Gulsvig, 498 N.W.2d 725, 727-28 (Iowa 1993); In re Staros, 280 N.W.2d 409, 410 (Iowa 1979). In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court but is not bound by them. Iowa R.App. P. 6.14(6)(<7).

II. Challenging of Minor Child’s Surname

A. Initial Name Determination versus Name Change.

We first must clarify the issue being raised on appeal. Angela asserts that the district court did not have the authority to change Bradyn’s surname in this case. Our appellate courts have addressed the question of surname changes in prior cases. See generally, Matter of Quirk, 504 N.W.2d 879, 882-83 (Iowa 1993); Gulsvig, 498 N.W.2d at 726; Staros, 280 N.W.2d at 410-11; Gail v. Winemiller, 464 N.W.2d 697, 698 (Iowa Ct. App.1990). We note, however, that.this challenge to the naming of a child is not a request for a name change but rather is a challenge to the initial determination of a surname. When a parent unilaterally chooses a child’s name, the other parent may request the court to examine the name issue — as “the mother does not have the absolute right to name the child because of custody due to birth. Consequently, [she] should gain no advantage from her unilateral act in naming [the child].” Gulsvig, 498 N.W.2d at 729 (citations omitted). Therefore, when the court first entertains an action between the parents to determine their legal rights and relationships with each other and the child, the court may also consider the legitimacy of the child’s original naming as part of its determination of the child’s legal status and custody. See Gulsvig, 498 N.W.2d at 733 (Snell, J. dissenting); Quirk, 504 N.W.2d at 882-83 (Carter, J. concurring specially); Id. at 884 (Snell, J. dissenting) (“This case, like Gulsvig, is not a change of name case; it is a name case ab initio. The child was not legally named on the birth certificate.”) In this ease, Bradyn’s surname was given to him, following Angela’s unilateral supplying of a name on the birth certificate. It is therefore not an action to change Bradyn’s surname but a challenge to the initial determination of the name Angela chose to record on the birth certificate. It is on this foundation, within the framework of the authority discussed below, that we address the issues on appeal.

B. The District Court’s Authority over a Surname Dispute.

John brought this action under Iowa Code chapter 600B (2003) seeking to establish paternity, custody, support and visitation. At some point, Bradyn’s surname became enmeshed with the issues presented to the court for resolution, without a written pleading or assertion of any legal authority. Nonetheless, the issue was raised, and decided by the district court, preserving it for our review. Meier v. Senecaut, 641 N.W.2d 532, 537-38 (Iowa 2002).

Angela asserts that the district court, in ruling on the petition brought under Iowa Code chapter 600B, may not draw its legal authority from Iowa Code section 598.41. Moreover, Angela argues that nowhere in section 598.41 does the legislature give authority to change the name of a child. Issues of the jurisdiction, authority, and venue of the district court are legal issues reviewed on error. In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995).

Contrary to Angela’s assertions, the Iowa Code provides an avenue upon which a child’s surname may be changed as a determination of surname incidental to custody decisions under Iowa Code chapter 598. Gulsvig, 498 N.W.2d at 727-29 (sanctioning the district court’s authority to adjudicate a name-change issue in dissolution proceedings under chapter 598 as being incident to the child’s legal status). Because the case before us involves unmarried parties, brought on a petition for paternity, custody, visitation and support under Iowa Code chapter 600B, we must determine whether the court’s equitable powers inferred under chapter 598 can be applied to an action under chapter 600B.

Iowa Code chapter 600B confers subject matter jurisdiction upon the district court to decide cases of paternity, custody, visitation and support between unmarried parties. See generally Iowa Code §§ 600B.1, et seq. (2003). Specifically, section 600B.40 grants the district court authority to determine matters of custody and visitation as it would under Iowa Code section 598.41:

In determining the visitation or custody arrangements of a child born out of wedlock, if a judgment of paternity is entered and the mother of the child has not been awarded sole custody, section 598.41 shall apply to the determination, as applicable, and the court shall consider the factors specified in section 598.41, subsection 3, including but not limited to the factor related to a parent’s history of domestic abuse.

Iowa Code § 600B.40 (2008).

Our Supreme Court has held that determinations of custody under section 598.41 encompass initial determinations of a child’s surname, as one’s surname is indicative of one’s legal status:

When we examine our custody statute, Iowa Code section 598.41, we believe that authority to change a child’s name may be inferred. Section 598.41 provides the court with broad discretion in determining custody and the physical care of a child and expresses a preference for joint custody. Each custodian has equal participation in decisions affecting “the child’s legal status.” Iowa Code § 598.41(2). We believe an infant child’s name is an incident of the child’s “legal status.” Accordingly, we hold the trial court possessed subject matter jurisdiction in this respect.

Gulsvig, 498 N.W.2d at 728. Although Gulsvig is distinguishable because it was a dissolution action between married parties, the Iowa General Assembly has granted the district court equal authority in an action between unmarried parties by enacting section 600B.40. “The criteria governing custody decisions are the same regardless of whether the parties are dissolving their marriage or are unwed.” In re Purscell, 544 N.W.2d 466, 468 (Iowa Ct.App.1995). See also Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988).

We therefore hold that the district court does have authority under Iowa Code section 600B.40, as it does in section 598.41, to consider and enter a ruling on a child’s legal status, including the determination of a child’s surname.

IV. Best Interests of the Child.

Angela next contends that it is not in Bradyn’s best interests to have his surname changed from Wells to Montgomery. We begin by observing that neither parent has a superior right in determining the child’s last name. Gulsvig, 498 N.W.2d at 729. Moreover, our Supreme Court has specifically rejected the historical tradition of using a father’s surname for a child in Gulsvig, 498 N.W.2d at 729:

We agree with the holdings of other jurisdictions that the presumption that a child bears the surname of his father is outdated and therefore rejected. This conclusion is similar to our repudiation of the inference that the best interests of young children are served by placing the children in their mother’s custody. We observed that the “real issue is not the sex of the parent.” The trial court correctly determined that the real issue is the best interest of the child.

(citations omitted).

Ultimately, our focus is the best interests of the child in custody and legal status proceedings under section 598.41 to determine a child’s last name. Gulsvig, 498 N.W.2d at 729; see also Iowa Code § 600B.40. There is no fixed list of factors to consider when gauging the best interest of the child in an initial name dispute. However, several jurisdictions in addition to Iowa have formulated a non-exhaustive list of considerations, including the following:

(1) Convenience for the child to have the same name as or a different name from the custodial parent. In re Marriage of Schiffman, 28 Cal.3d 640, 169 Cal.Rptr. 918, 922-23, 620 P.2d 579 (1980); Gulsvig, 498 N.W.2d at 728-30; Gubernat v. Deremer, 140 N. J. 120, 657 A.2d 856, 868 (1995); Block v. Bartelt, 580 N.W.2d 152, 154 (S.D.1998); Keegan v. Gudahl, 525 N.W.2d 695, 699 (S.D.1994); In re Guthrie, 45 S.W.3d 719, 725-726 (Tex. App.2001).
(2) Identification of the child as part of a family unit. Schiffman, 169 Cal.Rptr. at 922-23, 620 P.2d 579; Gulsvig, 498 N.W.2d at 728-30; Gubernat, 657 A.2d at 868; Keegan, 525 N.W.2d at 699; Guthrie, 45 S.W.3d at 725-726; In re C.B.M., 14 S.W.3d 855, 862 (Tex.App. 2000).
(3) Assurances by the mother that she would not change her name if she married or remarried if the child maintains the mother’s surname. Gulsvig, 498 N.W.2d at 728-30; State ex rel. Spence-Chapin Servs. to Families & Children v. Tedeno, 101 Misc.2d 485, 421 N.Y.S.2d 297, 300 (N.Y.Sup.Ct.1979); Guthrie, 45 S.W.3d at 725-726.
(4) Avoiding embarrassment, inconvenience, or confusion for the custodial parent or the child. Gubernat, 657 A.2d at 868; Guthrie, 45 S.W.3d at 725-726.
(5) The length of time the surname has been used. Schiffman, 169 Cal.Rptr. at 922-23, 620 P.2d 579; Gubernat, 657 A.2d at 868; Block, 580 N.W.2d at 154; Keegan, 525 N.W.2d at 699-700; Guthrie, 45 S.W.3d at 725-726.
(6) Parental misconduct, such as support or nonsupport or maintaining or failing to maintain contact with the child. Block, 580 N.W.2d at 154; Keegan, 525 N.W.2d at 699-700; Guthrie, 45 S.W.3d at 725-726; G.K. v. K.A., 936 S.W.2d 70, 73 (Tex.App.1996).
(7) The degree of community respect associated with the present or changed name. D.R.S. v. R.S.H., 412 N.E.2d 1257, 1263 (Ind.Ct.App.1980); Guthrie, 45 S.W.3d at 725-726.
(8) A positive or adverse effect a name change may have on the bond between the child and either parent or the parents’ families. Schiffman, 169 Cal.Rptr. at 922-23, 620 P.2d 579; In re Marriage of Nguyen, 684 P.2d 258, 260 (Colo.Ct. App.1983), cert. denied, 469 U.S. 1108, 105 S.Ct. 785, 83 L.Ed.2d 779 (1985); Gulsvig, 498 N.W.2d at 728-30; Block, 580 N.W.2d at 154; Keegan, 525 N.W.2d at 699-700; Guthrie, 45 S.W.3d at 725-726.
(9) Any delay in requesting or objecting to name change. Guthrie, 45 S.W.3d at 725-726.
(10) The preference of the child if the child is of sufficient maturity to express a meaningful preference. Gubernat, 657 A.2d at 868; Guthrie, 45 S.W.3d at 725-726.
(11) Motivation of the parent seeking the change as an attempt to alienate the child from the other parent. Guthrie, 45 S.W.3d at 725-726.
(12) And any other factor relevant to the child’s best interest.

Thus, the determination of the child’s best interest in a name dispute should be resolved by identifying and weighing various factors specific to each case. Guthrie, 45 S.W.3d at 725-726.

While the district court did not consider all of the matters in the nonexclusive list included above, the district court did engage in the following best interest analysis when considering the request to establish Bradyn’s surname as Montgomery as opposed to Wells:

John lists as his reasons for the Court changing Bradyn’s surname to Montgomery 1) that his (John’s) name will always be Montgomery; 2) Angela’s last name may change from “Wells” in the event she remarries. Angela, in fact, testified that she plans to marry a man by the name of Beals in the near future and will change her last name to Beals; 3) that it will be in Bradyn’s best interest for him to have the last name Montgomery; and 4) that it will give Bradyn a sense of belonging to have the Montgomery last name.
Angela cites as her reasons for the Court to maintain Bradyn’s last name as Wells to include 1) Bradyn’s last name is now Wells; 2) Bradyn’s last name of Wells is already on several records and documents, including his Social Security card, birth certificate and medical records; 3) it would give Bradyn a sense of belonging to the Wells’ family; 4) that there is no real reason to change Bra-dyn’s name; and 5) Angela’s concern that John “might not always be there” for Bradyn.
At Bradyn’s tender age [14 months] he has no present concept of his last name and would not be adversely affected by a change of that name.
Angela testified that she will be marrying in the near future and will be changing her last name to Beals. In that event, Bradyn will not have the same last name of his mother, stepfather or any new siblings that might arrive. It appears that Angela made the decision to give Bradyn the last name of Wells, without input from John.
The name a child carries is one of the first and most fundamental decisions that parents make. A child’s name reflects tradition, heritage, and family pride. It is often a means of honoring loved ones and a way of giving a sense of belonging to the child.

Keegan v. Gudahl, 525 N.W.2d 695, 697 (S.D.1994). Both Angela and John wish to have that sense of family tradition, heritage and pride be reflected in Bradyn’s last name, yet only one may prevail. As the district court noted, this is a very close question.

We agree with the district court that it is in Bradyn’s best interest to carry the surname “Montgomery.” First, we echo the district court’s finding that because of his young age, a best interests’s analysis does not include Bradyn’s familiarity with or appreciation of his current surname. We also consider that neither party has acted at all times with Bradyn’s best interests in mind. Angela testified that she would prefer that John not be involved in Bradyn’s life, as she alleged that John acted abusively toward her during her pregnancy and had a problem with alcohol consumption. To her credit, Angela has modified her position, realizing the importance to Bradyn of having contact with his father. While John did not legally acknowledge paternity or pay child support for the first months of Bradyn’s life he did attend several prenatal medical appointments with Angela, and came to the hospital as soon as he was notified of Bradyn’s birth. A few months later, John filed a petition to establish paternity, custody, support and visitation, taking a positive step toward his responsibilities to Bradyn. As the district court found, both Angela and John are now willing to promote Bra-dyn’s best interests.

John and Angela each assert that having his or her last name will benefit Bradyn by giving him a sense of belonging to their separate extended families. John also believes that because he is the non-custodial parent, Bradyn should have his surname to help preserve his parental bond and relationship with his son. Of concern is that at the time of trial, Angela was expecting another child by another man, whom she planned on marrying and taking his last name. This would result in Bradyn having a different last name than Angela, the stepfather, and any children of that marriage. Cf. Gulsvig, 498 N.W.2d at 729 (where the court relied on mother’s assurance to retain her present surname, which was the surname of the child, in the event she remarried). If Bradyn carries John’s surname, he will at least have a familial-name identity to one of his parents. Therefore, upon review of all of the evidence presented, weighing the best interests considerations set forth above, and giving weight to the district court’s fact and credibility findings, we conclude that the best interests considerations support “Montgomery” as Bradyn’s surname.

AFFIRMED.

      . Where subject matter jurisdiction exists, it does not necessarily follow that a court has authority to act in a specific case included within that general class. Holding v. Franklin County Zoning Bd. of Adjustment, 565 N.W.2d 318, 319 (Iowa 1997). While the authority of the district court may be subject to waiver, consent or estoppel, State v. Mandicino, 509 N.W.2d 481, 483 (Iowa 1993), John does not raise this issue and we proceed to the merits of Angela’s authority claim.


author: /s/Alan C. Page Associate Justice

text:
    Mary Beth SKIC, Relator, v. BEVERAGE TRANSPORTATION CORP., Uninsured, Respondent, and Special Compensation Fund, Respondent.
    No. A05-2178.
    Supreme Court of Minnesota.
    Jan. 30, 2006.
    Mary Beth Skic, Lino Lakes, MN, pro se Relator.
    Mike Hatch, Attorney General, Rory H. Foley, Assistant Attorney General, St. Paul, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 6, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/Alan C. Page Associate Justice


author: PAUL H. ANDERSON, Associate Justice.

text:
    Stephen C. LaPANTA, Relator, v. MYRON’S CARDS & GIFTS, INC., and CNA Insurance Co., Respondents, and Myron’s Cards & Gifts, Inc., and Pharmacists Mutual Ins. Co., administered by Douglas Claims Services, Respondents.
    No. A05-2183.
    Supreme Court of Minnesota.
    Jan. 31, 2006.
    Mark A. Wagner, Steven E. Sullivan, Johnson & Condon, P.A., Minneapolis, MN, for Respondents Myron’s Cards and Pharm. Mutual.
    Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for Respondents Myron’s And CNA.
   ORDER

PAUL H. ANDERSON, Associate Justice.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 14, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).


author: PER CURIAM.

text:
    2006 ND 3
    In the Matter of the DISCIPLINARY ACTION AGAINST Eugene F. BURESH, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Eugene F. Buresh, Respondent.
    No. 20060023.
    Supreme Court of North Dakota.
    Jan. 25, 2006.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On January 23, 2006, an Application for the Interim Suspension of Eugene F. Buresh, a member of the Bar of North Dakota, with supporting documents, was filed under N.D.R. Lawyer Discipl. 3.4. Buresh was admitted to practice law on October 10, 1979, and is currently licensed to practice law in the courts of North Dakota.

[¶ 2] A complaint has been filed against Buresh which alleges a check for $30,956.45, drawn on the Buresh Law Trust Account, was returned for non-sufficient funds (NSF). The trust account records supplied by Buresh indicate the trust account had a balance of $2,544.10 on December 28, 2005, leaving the trust account short by $28,406.35 of the funds necessary to pay the NSF check.

[¶ 3] Buresh admits to the NSF check, explains the shortage of funds occurred because trust account moneys were used “to ward off a temporary financial office crisis” and further acknowledges the NSF check has not been paid. The evidence implies a violation of N.D.R. Prof. Conduct 1.15(a), Safekeeping Property.

[¶ 4] Under N.D.R. Lawyer Discipl. 1.2(A)(2), a lawyer may be disciplined for committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer through a violation of N.D.C.C. § 12.1-23-08, Misapplication of Entrusted Property. Further, under N.D.R. Lawyer Discipl. 1.2(A)(3), a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

[¶ 5] Under N.D.R. Lawyer Discipl. 3.4(B), the court may enter an interim order, at any stage of any proceeding, immediately suspending the lawyer pending final disposition of the proceeding predicated upon the conduct causing harm to the public or may order such other action as deemed appropriate. This rule also provides that upon request by counsel or the lawyer after entry of an interim suspension order, the court shall within ten days provide an opportunity for the lawyer to demonstrate that the order should not remain in force.

[¶ 6] ORDERED, Eugene F. Buresh’s license to practice law is SUSPENDED effective January 30, 2006, and until further order of this Court, pending final disposition of a disciplinary proceeding predicated upon the complaint.

[¶ 7] FURTHER ORDERED, Eugene F. Buresh comply with N.D.R. Lawyer Discipl. 6.3.

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

[¶ 9] The Honorable DANIEL J. CROTHERS, being unavoidably absent, did not participate in this decision.


text:
    2006 ND 4
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 1, with Chambers in Bismarck, North Dakota, South Central Judicial District.
    No. 20060004.
    Supreme Court of North Dakota.
    Jan. 27, 2006.
   PER CURIAM.

[¶ 1] On January 5, 2006, Governor John Hoeven officially notified the Supreme Court that the Honorable Burt L. Riskedahl, Judge of the District Court, with chambers in Bismarck, South Central Judicial District, is retiring on March 31, 2006. Judge Riskedahl’s impending retirement will create a vacancy under Section 27-05-02.1, N.D.C.C.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] Under N.D. Sup.Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the South Central Judicial District was posted January 13, 2006, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through January 24, 2006. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., this procedure is sufficient for determining the disposition of this vacancy.

[¶ 4] A Report containing population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, was filed January 23, 2006, by the South Central Judicial District.

[¶ 5] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has considered all submissions received by the Court and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court determines that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship No. 1 at Bismarck in the South Central Judicial District be filled in the manner provided in N.D.C.C. Chapter 27-25.

[¶ 8] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, JJ., concur.


author: KAPSNER, Justice.

text:
    2006 ND 27
    Aaron LENTZ, Petitioner and Appellant v. David SPRYNCZNATYK, Director, North Dakota Department of Transportation, Respondent and Appellee.
    No. 20050234.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Tom P. Slorby, Slorby Law Office, Minot, ND, for petitioner and appellant.
    Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Aaron Lentz appeals from a district court judgment affirming a North Dakota Department of Transportation hearing officer’s decision to suspend Lentz’s commercial driving privileges for ninety-nine years. Lentz argues the statute authorizing a lifetime suspension of his commercial driver’s license should not be applied retroactively by considering his first driving-under-the-influenee (“DUI”) offense that occurred before the enactment of the statute. We affirm, concluding the commercial driver’s license suspension statute is properly interpreted as including past DUI offenses as long as the triggering offense occurred after the effective date of the statute.

[¶ 2] Lentz received his commercial driver’s license in 1998. Effective August 1, 2003, the North Dakota Legislative Assembly enacted a statute providing for the suspension of a commercial driver’s license for life upon the accumulation of two DUI offenses. See N.D.C.C. § 39-06.2-10(8); 2003 N.D. Sess. Laws ch. 322, § 5. On February 20, 2001, Lentz was convicted in North Dakota of driving a noncommercial vehicle while he was under the influence of alcohol on September 5, 2000. On November 17, 2003, after the effective date of the suspension statute, Lentz received his second DUI offense while driving a noncommercial vehicle in Iowa on September 4, 2003.

[¶ 3] Th& Department informed Lentz that it intended to suspend his non-commercial driving privileges for 365 days and his commercial driving privileges for ninety-nine years under N.D.C.C. § 39-06.2-10. Lentz requested a hearing to challenge his license suspension. Following the hearing, a hearing officer determined that Lentz’s commercial driving privileges could properly be suspended for ninety-nine years because the “ ‘triggering’ offense was the Petitioner’s conviction on November 17, 2003 ... which is subsequent to [the] effective date of the amendments to the statute.” Thus, because Lentz’s second DUI occurred after August 1, 2003, the statute’s effective date, the statute was being applied prospectively and not retroactively. A district court judge reviewed and affirmed the hearing officer’s decision.

[¶ 4] We are asked to determine the appropriate interpretation of the commercial driver’s license suspension statute. We review the decision of the administrative agency in the same manner as the district court. N.D.C.C. § 28-32-49. We defer to the agency’s findings of fact if they are supported by a preponderance of the evidence, and we do not make independent findings. Gray v. N.D. Game & Fish Dep’t, 2005 ND 204, ¶7, 706 N.W.2d 614. We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record. Eriksmoen v. N.D. Dep’t of Transp., 2005 ND 206, ¶7, 706 N.W.2d 610. But on legal questions, such as an interpretation of a statute, an agency’s decision is fully renewable on appeal. Bjerklie v. Workforce Safety & Ins., 2005 ND 178, ¶ 9, 704 N.W.2d 818. Our primary objective in the interpretation of a statute is to ascertain the intent of the legislature, which must be sought initially from the language of the statute. Harter v. N.D. Dep’t of Transp., 2005 ND 70, ¶ 7, 694 N.W.2d 677. In construing a statute, words are to be understood in their ordinary sense. N.D.C.C. § 1-02-02.

[¶ 5] Lentz argues on appeal his commercial license should not be suspended for ninety-nine years. He does not question the reasonableness of the length of his license suspension. Instead, Lentz believes the statute authorizing a lifetime suspension of his commercial driver’s license cannot be used against him because the statute was not effective until August 1, 2003, and one of his DUI’s occurred before the statute went into effect. The State argues the statute was properly interpreted as not being a retroactive law because the second DUI conviction occurred after the effective date of the statute.

[¶ 6] Our legislature has expressed a presumption against retroactive application of statutes: “No part of this code is retroactive unless it is expressly declared to be- so.” N.D.C.C. § 1-02-10. A retroactive statute extends “in scope or effect to matters that have occurred in the past.” Black’s Law Dictionary 1343 (8th ed.2004). “A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.” Smith v. Baumgartner, 2003 ND 120, ¶ 11, 665 N.W.2d 12.

[¶ 7] Here, N.D.C.C. § 39-06.2-10(8) became effective August 1, 2003. Section 39-06.2-10(8), N.D.C.C., provides:

For a second conviction of driving while under the influence or being under the influence of a controlled substance or refusal to be tested while operating a noncommercial motor vehicle, a commercial driver’s licenseholder must be disqualified from operating a commercial motor vehicle for life.

[¶ 8] Lentz’s second DUI conviction occurred in Iowa after the effective date of N.D.C.C. § 39-06.2-10(8), and his commercial driver’s license was suspended for ninety-nine years. Lentz argues that since his first DUI conviction occurred before the statute became effective, the Department should have disqualified him from operating a commercial motor vehicle for only one year. Section 39-06.2-10(7), N.D.C.C., provides:

For a first conviction of driving while under the influence of alcohol or being under the influence of a controlled substance or refusal to be tested while operating a noncommercial motor vehicle, a commercial driver’s licenseholder must be disqualified from operating a commercial motor vehicle for one year.

[¶ 9] Lentz argues the ninety-nine year suspension of his commercial driver’s license violates the legislative presumption against retroactive statutes. He claims that because the statute does not have express retroactivity language in the same subsection, it should not be applied retroactively to him. But in two analogous cases, Rott v. N.D. Dep’t of Tramp., 2000 ND 175, 617 N.W.2d 475 and State v. Haverluk, 432 N.W.2d 871 (N.D.1988), we rejected similar arguments that an increased penalty, based partially on actions occurring before a statute was effective, created an illegal retroactive law.

[¶ 10] In Rott, we held the enactment of a change of consequence in Rott’s driving privileges did not amount to a retroactive application of the statute. Rott, at ¶ 12. On October 14, 1999, the minor Rott committed a traffic offense resulting in six points assessed against her driving record. Id. at ¶ 2. Section 39-06-01.1, N.D.C.C., which became effective August 1, 1999, provided for the cancellation of a minor’s driver’s license or permit upon an accumulation of a point total in excess of five points. Id. at ¶ 10. Rott argued that because she held a class D driver’s license nearly two years before the effective date of N.D.C.C. § 39-06-01.1, and because N.D.C.C. § 39-06-01.1 affected her right to her driver’s license by changing her driver’s license status, the statute was applied retroactively. Id. at ¶ 8. We stated that Rott’s argument was “without merit” because a statute is only applied retroactively if it operates on transactions that have already occurred, or on rights existing before its enactment. Id. at ¶¶ 7, 10 (citing Glaspie v. Little, 1997 ND 108, ¶ 5, 564 N.W.2d 651). Rott’s offense, which resulted in the loss of her driving privileges, occurred after the effective date of the statute. Rott, at ¶ 2.

[¶ 11] In the same vein, we held in Haverluk that a statute providing increased penalties for repeat DUI offenders was not applied retroactively merely because the prior offense occurred before the effective date of the statute, when the current offense occurred after that date. Haverluk, 432 N.W.2d at 873-74. While a criminal case and not a civil license suspension case, Haverluk dealt with an enhanced penalty for a fourth DUI conviction in a seven-year period. Id. at 872. An amendment to N.D.C.C. § 39-08-01 that became effective on July 1, 1983, had enhanced the penalty for a fourth or subsequent DUI conviction in a seven-year period to a class A misdemeanor. Id. at 873. Haverluk subsequently was charged with his fourth DUI in 1987 and convicted of a class A misdemeanor. Id. at 872. On appeal, Haverluk argued that because his prior DUI’s occurred before the 1983 amendment to N.D.C.C. § 39-08-01, they could not be used to enhance the penalty for his 1987 DUI conviction. Id. at 872-73. We disagreed noting that because the class A misdemeanor charge arose from an incident that occurred in 1987, after the effective date of the statutory amendment in 1983, Haverluk’s conviction was not an unconstitutional ex post facto violation. Id. at 873.

[¶ 12] Other state jurisdictions have similarly held that the use of a prior drunk driving conviction to increase punishment for a subsequent drunk driving offense that is committed after the effective date of a statute providing for increased penalties, does not constitute an ex post facto application of the statute and does not violate a state’s prohibition against retroactive statutes. See, e.g., Sims v. State, 262 Ark. 288, 556 S.W.2d 141, 142 (1977) (defendant’s third DUI conviction was not ex post facto law simply because habitual criminal and traffic offender act was triggered that included two offenses that were committed before effective date of the act); State v. Sedillos, 279 Kan. 777, 112 P.3d 854, 856 (2005) (prior DUI convictions considered in current punishment did not violate due process, ex post facto, or state’s retroactivity statute); State v. Willis, 382 N.W.2d 180, 185 (Minn.1983) (“The use of prior convictions to increase punishment for an underlying substantive offense committed after the effective date of a statute providing for increased penalties does not violate the ex post facto provisions of either the state or federal constitutions”); Alexander v. DOT, Bureau of Driver Licensing, 583 Pa. 592, 880 A.2d 552, 561 (2005) (department of transportation’s consideration of two prior DUI convictions as predicate offenses for purposes of determining defendant’s status as a recidivist offender was not in error).

[¶ 13] The Department’s application of N.D.C.C. § 39-06.2-10(8) cannot be said to be retroactive merely because Lentz’s first DUI conviction in 2000 occurred before the effective date of the subsection. It was Lentz’s second DUI offense, an offense that occurred after the effective date of the subsection in 2003, that triggered the ninety-nine year driver’s license suspension.

[¶ 14] The district court’s judgment affirming the Department’s decision to suspend Lentz’s commercial driver’s license for ninety-nine years is affirmed.

[¶ 15] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


author: SANDSTROM, Justice.

text:
    2006 ND 28
    Gerard Joseph SCHWAN, Plaintiff and Appellee v. Paul FOLDEN, Defendant and Appellant.
    No. 20050185.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Tom P. Slorby of Slorby Law Office, Minot, for defendant and appellant.
    Steven M. Bitz of Bucklin, Klemin & McBride, Bismarck, for plaintiff and appel-lee.
   SANDSTROM, Justice.

[¶ 1] Paul Folden appeals the district court’s grant of default judgment against him. After conducting a trial on the merits, the district court granted a motion for default judgment. In doing so, we conclude, the district court abused its discretion. We reverse and remand so that the case may be decided on the merits. Although we rule in favor of Folden, he may not tax the costs of this appeal against Gerard Schwan, because Folden has violated the North Dakota Rules of Appellate Procedure.

I

[¶ 2] This case comes before us in an unusual procedural posture. The case began when Schwan filed a claim affidavit in small claims court on December 15, 2004. The claim was for breach of contract and misrepresentations arising out of the purchase of a boat and two motors from Fol-den. Folden answered and removed the case to district court. By stipulation of the parties, Schwan served a more specific complaint on Folden on January 24, 2005, which he contends included new breach of warranty claims. Folden did not file an answer until April 8, 2005.

[¶ 3] Schwan served a set of interrogatories and requests for admission on Folden on March 1, 2005. According to Folden, he replied to the discovery by improperly serving unsigned and un-nota-rized answers on Schwan on April 6.

[¶4] Schwan moved for default judgment against Folden on April 8. Trial was already set for April 11. On April 11, the district court held a bench trial on the merits of the case. At the beginning of the trial on April 11, the district court stated it would allow Folden an opportunity to respond to Schwan’s motion for default judgment. At the close of the trial, rather than arguing the merits of his case, Schwan reargued his motion for default judgment, contending that Folden was late in filing his answer and did not properly respond to discovery. The court granted default judgment for Schwan, finding that those allegations in the amended complaint and requests for admission not properly answered were deemed admitted. At the close of trial, the court commented “this case should have stayed in Small Claims Court.” Folden completed a response to Schwan’s motion on April 15. Schwan filed a reply brief on April 18. The court’s findings of fact, conclusions of law, and order granting default judgment for Schwan were entered on April 25, 2005.

[¶ 5] Small claims court had jurisdiction under N.D.C.C. § 27-08.1-01. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 6] The district court has discretion on whether to grant a default judgment, and its decision will not be overturned unless there has been an abuse of discretion. Citibank (South Dakota) NA v. Reikowski, 2005 ND 133, ¶ 6, 699 N.W.2d 851. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law.” Id.

[¶ 7] Rule 55(a), N.D.R.CivJP., provides, in part:

If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the fact is made to appear by affidavit or otherwise, the court may direct the clerk to enter an appropriate judgment by default in favor of the plaintiff and against the defendant....

In United Accounts, Inc. v. Lantz, this Court adopted the general rule that if a plaintiff does not move for default judgment after the default has accrued or within a reasonable time after the default has accrued, and the answer is subsequently filed, the plaintiff waives its right to default judgment for a defendant’s failure to appear. 145 N.W.2d 488, 491 (N.D.1966) (citing 30A Am.Jur. Judgments § 203 (1940)). The Court stated:

The entry of a default against defendant is merely a privilege which may or may not be exercised by plaintiff, and which is waived by his proceeding with the cause without taking advantage of the default in the proper time and manner, unless he was ignorant of the default at the time.

Id. (citing 49 C.J.S. Judgments § 203 (1955)).

[¶ 8] Other jurisdictions have held that litigants also waive their right to default judgment by proceeding with a trial rather than securing a default judgment. Ewing v. Johnston, 175 Ga.App. 760, 334 S.E.2d 703, 707 (1985) (“Acts which have been held to constitute waiver include: ... going to trial on the merits, or announcing ready for trial and introducing evidence on the merits.”) (citations omitted); Johnson v. Gib’s W. Kitchen, Inc., 338 N.W.2d 872, 873 (Iowa 1983) (“We conclude that the court did not abuse its discretion in overruling plaintiffs motion for a default judgment made during trial at the close of plaintiffs case.”); Kuykendall v. Circle, Inc., 539 So.2d 1252, 1254 (La.Ct.App.1989) (“Kuykendall, having proceeded to trial on the merits without confirming his preliminary default, waived his right to a default judgment.”); Barber & McMurry, Inc. v. Top-Flite Development Corp., 720 S.W.2d 469, 472 (Tenn.Ct.App.1986) (“the plaintiff, by going to trial without timely pursuing a default judgment as to this defendant prior to trial, waived the right to rely upon Delozier’s failure to answer as a basis for judgment”).

[¶ 9] This Court has a strong preference for deciding cases on their merits rather than by default judgment. Filler v. Bragg, 1997 ND 24, ¶ 14, 559 N.W.2d 225. The rule that a litigant waives its right to default judgment when it proceeds with a trial corresponds with our preference to decide a case on its merits. It is illogical to proceed with trial, hear evidence from each party, and expend judicial resources, only to decide the case with a default judgment. The preference would be to decide this case on the merits, because the merits have already been heard. We hold that a litigant who proceeds to trial rather than pursuing a default judgment waives its right to default judgment.

[¶ 10] The district court held a bench trial on the merits of the case. At the beginning of trial, the district court stated that it would allow Folden an opportunity to respond to Schwaris motion for default judgment but that it wanted to hear the merits of the case at that time. Folderis counsel stated at the trial that he would not push Schwan to proceed with the merits if Schwan was not ready. Counsel for Schwan replied, “I guess Your Honor, we’re ready to proceed with the case. We were just moving forward with the assumption that the damages issues, that we were going to be focusing in on the damages issue being, you know, we had admissions of fact, but we will proceed with the case.” By proceeding with the case, Schwan and Folden presented the district court with the evidence it needed to decide the case on the merits. By proceeding- to trial, Schwan waived his claim for default judgment, and the district court abused its discretion by granting Schwan’s motion for default judgment rather than deciding the case on the merits.

[¶ 11] Counsel for Folden argued at oral argument that even if the default judgment was in error, the judgment could still be enforceable as a judgment on the merits. This argument ignores the language of the district court’s findings of fact, conclusions of law, and order for judgment, which states, “The Court need not reach a decision on the merits of the case, as Defendant is in default.” The district court made no decision on the merits, so the judgment is unenforceable.

Ill

[¶ 12] Ordinarily, under Rule 39(a)(3), N.D.R.App.P., “if a judgment is reversed, costs are taxed against the appellee.” Rule 13, N.D.R.App.P., however, provides, “The supreme court may take appropriate action against any person failing to perform an act required by rule or court order.”

[¶ 13] Here, Folden’s appendix contains items not in the record before the district court. “Only items in the record may be included in the appendix. The author’s signature on the brief, under N.D.R.App.P. 32, certifies compliance with this rule.” N.D.R.App.P. 30(a)(1). This rule prohibits parties from trying to sway this Court with materials and information that were not before the district court. Therefore, we exercise our sanction power provided for in N.D.R.App.P. 13, and hold that Folden may not tax any costs for this appeal against Schwan.

IV

[¶ 14] Schwan waived his right to default judgment when he proceeded to try the case on its merits. The district court abused its discretion when it granted default judgment. The district court’s default judgment is reversed, and this case is remanded for a decision on the merits.

[¶ 15] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, ' and CAROL RONNING KAPSNER, JJ„ concur.