text:
    2006 ND 30
    In the Interest of D.D., a Child In the Interest of K.D., a Child Tamera Ressler, L.S.W., Petitioner and Appellee v. Director, Cass County Social Services, R.S., C.D., D.D., K.D., and Kathy Kassenborg, Lay Guardian ad Litem, Respondents R.S., Respondent and Appellant. In the Interest of D.D., a Child In the Interest of K.D., a Child Tamera Ressler, L.S.W., Petitioner and Appellee v. Director, Cass County Social Services, R.S., C.D., D.D., K.D., and Richard Edinger, Guardian ad Litem, Respondents R.S., Respondent and Appellant.
    Nos. 20050176, 20050177.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Constance Louise Cleveland, Fargo, N.D., for petitioner and appellee.
    Douglas W. Nesheim, Johnson, Ramstad & Mottinger, PLLP, Fargo, N.D., for respondent and appellant.
   MARING, Justice.

[¶ 1] R.S. (“Rhonda”) appealed a juvenile court order affirming a judicial referee’s order terminating her parental rights to her two children, D.D. (“Debra”) and K.D. (“Karen”). We hold the juvenile court did not clearly err in finding clear and convincing evidence Debra and Karen are deprived, the causes and conditions of deprivation are likely to continue, and as a result of the continued deprivation, Debra and Karen will probably suffer serious physical, mental, or emotional harm if Rhonda’s parental rights are not terminated. We affirm.

I

[¶ 2] Rhonda and the father of the two children, C.D. (“Charles”), have been involved in a relationship for several years, but have never been married. At times they have resided together in the states of Washington, Minnesota, and North Dakota. Debra was born in 1997, and Karen was born in 2000. In May 2003, Cass County Social Services initiated a child protection assessment after receiving a report of suspected child abuse or neglect of Debra and Karen, and determining that Rhonda had been intoxicated and unable to care for her children. In her investigation, Tamera Ressler, a social worker with Cass County, discovered a long history of child protection problems dating back to 1998, and involving two other jurisdictions — Clay County, Minnesota, and the state of Washington.

[¶ 3] While in Washington, Rhonda pled guilty to a 1998 charge of perpetrating domestic violence against Charles. She also apparently failed to comply with a domestic violence evaluation or treatment and re-offended while on probation. Further, in October 2002, Rhonda pled guilty to reckless endangerment for an incident involving the children, in which she was intoxicated and entrusted them to a registered sex offender. Rhonda left Washington without completing court-ordered treatment.

[¶ 4] In November 2001, while Rhonda and Charles were living in Moorhead, Minnesota, Debra and Karen were the subject of a protective supervision order in Clay County. Clay County Social Services had been involved with the family in 2000 and 2001. The Clay County order granted the County protective services and required the family to participate in home services. Although Rhonda completed a chemical dependency examination, she did not complete the recommended treatment and follow-through. Rhonda also did not complete a parental capacity examination, and ultimately, in-home services were terminated due to her lack of participation. Rhonda’s Clay County social worker last saw Rhonda in January 2002, when she was reportedly moving to West Fargo to stay with relatives. The Clay County social worker subsequently contacted Cass County Social Services to notify them of the Clay County court order involving the family.

[¶ 5] Subsequent to the May 2003 report of suspected child neglect in Cass County, Cass County received a July 2003 child protection report that the children had been placed in protective custody following Rhonda’s arrest for driving under the influence and reckless endangerment. Rhonda was found driving erratically and intoxicated with the children in her car. Cass County then filed formal deprivation proceedings regarding the children. In September 2003, the children were adjudicated to be deprived.

[¶ 6] Cass County retained custody of the children after September 2003, and the children were placed in the care of relatives. After developing a plan for services, treatment, and family preservation, the children were reunified with Rhonda and Charles in December 2003. On New Year’s Eve in 2003, however, there was a domestic violence incident in which Charles had been drinking and fought with, and physically abused, Rhonda in the presence of the children. As a result, Charles was charged criminally, and the children were again briefly placed with relatives. In early January 2004, a meeting was held with Rhonda to assess the children’s safety. Rhonda denied drinking during the New Year’s Eve confrontation. She then indicated her relationship with Charles was over, and the children were returned to her. At that time, Charles was again in jail and had a one year no-contact order with Rhonda.

[¶ 7] In April 2004, however, Rhonda voluntarily had the no-contact order lifted, and Charles returned to the home. In May 2004, Cass County received another report from treatment providers that Rhonda was suspected of drinking, which Rhonda denied. In July 2004, Charles was arrested and charged with driving under the influence and reckless endangerment. During this incident, Charles had picked up Rhonda from a party and an argument ensued as they were driving home. When Rhonda attempted to leave the car, Charles ran over her with the vehicle. Rhonda was hospitalized with her injuries. Although Charles indicated a neighbor was watching Debra and Karen, the children were home alone when a relative was sent to pick them up.

[¶ 8] In September 2004, Cass County received another child protection report from a treatment provider who suspected Rhonda had been drinking. Then, in late September 2004, Rhonda was again arrested for driving under the influence and incarcerated, and the children were returned to the care of relatives. Earlier in September, Cass County had a team meeting with Rhonda and mental health service providers in an attempt to develop a successful combination of services because none of the services offered to that point appeared to be working. In November 2004, Rhonda’s probation from earlier convictions was also revoked, and she was sentenced to prison for a period of eighteen months with credit for time served, which continued through the trial of this case.

[¶ 9] At trial, Pat Podoll, a Cass County Social Services supervisor, testified the children had repeatedly been taken out of the parental home beginning with the initial placement with relatives from July 13, 2003, to December 23, 2003. , According to Podoll, the children were also out of the parental home from January 2, 2004, to January 5, 2004, from July 26,- 2004, to August 2, 2004, and from late September 2004, up to and beyond the February 2005 trial of this case. Most of the children’s time out of the parental home was due to Rhonda’s incarceration.

[¶ 10] While it is unnecessary to list here the entire array of services and assistance offered to Rhonda and attempted during the time of her involvement with Cass County, the record is replete with evidence of those services. Notably, Rhonda received treatment from Bruce Worner, a licensed addiction counselor at Southeast Human Service Center. According to Worner, Rhonda met the criteria for a diagnosis of an addictive disorder and warranted treatment. Worner testified Rhonda had some mental health problems that also needed treatment. A treatment plan was developed; however, Rhonda’s progress was sporadic because, according to Worner, she did not believe she had a problem that warranted any treatment and resisted the treatment process. Worner testified that unless Rhonda made some significant changes in attitude and receptivity to treatment, success in dealing with her chemical addiction was not likely. Worner also testified Rhonda had a very poor prognosis for long-term sobriety.

[¶ 11] Rhonda received services in early 2003 from Kathleen Moraghan, a clinical nurse specialist with Southeast Human Service Center, who has a master’s degree in adult psychiatric mental health nursing and 20 years of experience. Moraghan testified that she was involved in the assessment and evaluation of Rhonda as part of a team at Southeast and that Rhonda was diagnosed with panic disorder, agoraphobia, and major depression, in addition to alcohol dependence and cluster B personality traits. Moraghan testified the recommended treatment was medication, which had already been prescribed by .a primary care doctor. After initial treatment, Rhonda did not show up for a medications review in April, and Moraghan had no further contact from Rhonda for approximately six months. Rhonda did not resume treatment with Moraghan until November 2003. However, even then Rhonda was not forthcoming with information, and she failed to attend appointments with Moraghan.

[¶ 12] Rhonda had also been referred to Melissa Longtine, a counselor at the Rape and Abuse Crisis Center, to address problems relating to domestic violence. Longtine testified that after their initial meeting Rhonda attended two additional counseling sessions, but did not complete counseling or therapy.

[¶ 13] There was also testimony at trial from Dr. Tim Wenstrom, a clinical psychologist specializing in children. Dr. Wenstrom testified he had met with both Rhonda and Debra to address reported behavioral problems with Debra. Based upon Rhonda’s descriptions and medical history, Dr. Wenstrom made an initial diagnosis of ADHD, Oppositional Defiant Disorder, along with adjustment disorder with mixed disturbance of emotions and conduct. Dr. Wenstrom developed a behavioral plan with Rhonda including structured consistency and positive reinforcement at home for Debra, but Dr. Wenstrom also was concerned about descriptions of physical altercations witnessed by Debra in the home. Dr. Wenstrom testified that his observations during sessions with Debra were not consistent with the behavior descriptions given by Rhonda. Dr. Wenstrom testified that Rhonda insisted she was implementing the behavioral plan, but she did not feel it was working. Rhonda instead asked Dr. Wenstrom to increase certain medications for Debra, which he could not approve because he was not licensed to prescribe or dispense medication. Although Dr. Wenstrom recommended additional appointments for treatment, Rhonda did not follow through.

[¶ 14] In October 2004, Tamera Res-sler petitioned to terminate the parental rights of Rhonda and Charles. Ressler also moved for a permanency hearing and review of custody based upon the finding of deprivation. The proceedings were consolidated and tried before a judicial referee in February 2005. Charles consented to the termination of his parental rights, and Rhonda proceeded to trial. On March 16, 2005, the judicial referee issued an order terminating parental rights of Rhonda and Charles.

[¶ 15] In terminating parental rights, the judicial referee found a history of child protection involvement dating back to 1998 and spanning three states. The judicial referee found Rhonda had failed to address mental health, chemical use, and chemical use dependency issues, which compromised her ability and availability as a parent and repeatedly compromised the safety of the children. Further, the judicial referee found Rhonda had been provided extensive services for those issues, but she had not modified her behavior in any meaningful way and had not actively participated in any of the services. The judicial referee specifically stated:

In this particular ease, the children have been involved in child protection matters since shortly after birth. The mother has been criminally convicted of subjecting the children to danger in two states, first by permitted [sic] a known sex offender to have contact with the children, and secondly by driving while intoxicated with the children in the car. The incarceration and unavailability, coupled with the chemical addiction of the mother, is likely to continue.
The father has requested that his parental rights be terminated.
There is no reason to believe the deprivation of the children is not likely to continue, in fact, it is likely to continue, as even when the mother is released from incarceration, her behaviors are likely to repeat, if history is any indicator. As a result, the children have and are likely to continue to suffer serious physical, mental, or moral, or emotional harm if they are not afforded the stability necessary to form appropriate emotional bonds with their care providers or if they are forced to linger in foster care until the mother is available or able to establish herself in an appropriate parental role.
It is not in the children’s best interests to continue in foster care in order to determine whether these options will ever materialize.

[¶ 16] Rhonda requested review of the judicial referee’s decision by the juvenile court. The juvenile court adopted the referee’s findings and made additional findings. Specifically, the juvenile court also found that Rhonda has unaddressed mental health, chemical use and chemical dependency issues, which have compromised her parenting ability and availability and the children’s safety. Although the juvenile referee in her findings did not go into great detail regarding Rhonda’s mental health problems, the record contains evidence of these continuing problems and the juvenile court made additional findings of sufficient particularity. The court found ample evidence to suggest deprivation is likely to continue and the children are suffering, and are likely to suffer, serious physical, mental, moral, or emotional harm. The court stated that Rhonda “[had] not made reasonable efforts to work toward reunification and her compliance and progress has not been satisfactory, specifically with regard to her mental health and chemical dependency.”

[¶ 17] The court further found, “Services have been provided to [Rhonda] in an attempt to remedy the causes of the deprivation and that these attempts have been active and reasonable, but [Rhonda] has not invested herself in the process and her participation has been sporadic. There is no basis to believe that there will be any significant improvement in the ability of [Rhonda] if given more time. Several of [Rhonda’s] service providers stated that her past behavior is the best predictor of future behavior.” The court concluded it is likely the causes of deprivation will not end and cannot be remedied in a reasonable time frame. Finally, the court found clear and convincing evidence that Debra and Karen would be harmed if parental rights were not terminated, and termination was in the best interests of the children for a safe, stable environment.

II

[¶ 18] Under N.D.C.C. § 27-20 — 44(l)(b)(l), parental rights may be terminated if there is clear and convincing evidence: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future, probably suffer serious physical, mental, moral or emotional harm. Interest of T.F., 2004 ND 126, ¶ 7, 681 N.W.2d 786. Effective March 1, 2004, N.D.R.Civ.P. 52(a) was amended to provide that findings of fact in juvenile matters shall not be set aside by this Court unless they are clearly erroneous. Interest of T.F., at ¶ 8. “A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law.” Interest of B.J.K., 2005 ND 138, ¶ 10, 701 N.W.2d 924. “We give ‘due regard to the juvenile court’s opportunity to judge the credibility of witnesses.’ ” Id.

A

[¶ 19] Rhonda does not claim the juvenile court clearly erred in finding her children were deprived as defined by N.D.C.C. § 27-20-02(8). She argues, however, the juvenile court erred in finding there was clear and convincing evidence to support a finding of deprivation that was likely to continue and that the children would likely suffer harm absent a termination of parental rights. She argues the juvenile court erred because the children’s best interests would have been better served by a guardianship arrangement rather than termination. She also asserts reasonable efforts were not made to reunify the family.

[¶ 20] In determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough. Interest of E.R., 2004 ND 202, ¶ 7, 688 N.W.2d 384. There also must be prognostic evidence that forms the basis for a reasonable prediction of continued or future deprivation. Id.; Interest of T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38. “Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, the probability of serious mental and emotional harm to the child may be established by prognostic evidence that a parent’s current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent’s rights are not terminated.” Interest of E.R., at ¶ 8 (citing In re T.F., 2004 ND 126, ¶ 12, 681 N.W.2d 786). Additionally, failure to follow the recommendations for addiction recovery “demonstrates a serious indifference toward [one’s] responsibilities and obligations as a parent.” Interest of S.F., 2000 ND 161, ¶ 11, 615 N.W.2d 511 (internal quotation marks omitted).

[¶ 21] Rhonda’s history of unresolved mental health problems and ongoing alcohol abuse does not indicate the children’s deprivation will cease in any reasonable amount of time. By Rhonda’s own admission and demonstrated behavior, she continues to relapse into patterns which endanger her children. Rhonda claims her association with Charles contributes to her inability to stay with the services and plans provided. However, she has continued over a long period of time to associate with Charles, even to the extent of having no-contact orders lifted. It is her own voluntary association with Charles, willingness to expose her children to domestic violence, failure to follow through with treatment, and continued abuse of alcohol that serves as prognostic evidence in this case. “When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency and stability in her life.” Interest of E.R., 2004 ND 202, ¶ 9, 688 N.W.2d 384; see also Interest of C.R., 1999 ND 221, ¶ 12, 602 N.W.2d 520. There is clear and convincing evidence to support the juvenile court’s finding that the children’s deprivation is likely to continue. We are not left with a definite and firm conviction the juvenile court made a mistake in finding the children’s deprivation was likely to continue, and we conclude that finding is not clearly erroneous.

B

[¶ 22] Rhonda argues there is not clear and convincing evidence the children would likely suffer harm absent termination of her parental rights. The juvenile court, however, specifically found clear and convincing evidence that, absent the termination, the children would be harmed.

[¶ 23] To terminate parental rights, evidence must show that as a result of the continued deprivation, the child is suffering, or will in the future probably suffer physical, mental, moral, or emotional harm. Interest of E.R., 2004 ND 202, ¶ 10, 688 N.W.2d 384. “Assisting a parent to establish an adequate environment for the child by offering long term and intensive treatment is not mandated if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.” Id. at ¶ 11; see also Interest of T.K., 2001 ND 127, ¶ 15, 630 N.W.2d 38; Interest of L.F., 1998 ND 129, ¶28, 580 N.W.2d 573. The record supports the juvenile court’s finding there is clear and convincing evidence Debra and Karen would likely suffer harm if termination is not granted, and we conclude that finding is not clearly erroneous.

HI

[¶ 24] Rhonda argues reasonable efforts were not made to prevent removal of the children and to reunify the family. Rhonda also asserts more intensive, inpatient services should have been offered.

[¶ 25] Absent aggravated or other specified circumstances, reasonable efforts must be made to preserve and reunify families. See N.D.C.C. § 27-20-32.2(2). “Reasonable efforts” means the exercise of due diligence, by the agency granted authority over the child under N.D.C.C. ch. 27-20, to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent the removal of the child from the child’s family or, after removal, to use appropriate or available services to eliminate the need for removal and to reunite the child and child’s family. N.D.C.C. § 27-20-30.2(1). There is evidence in the record that Cass County made reasonable efforts to reunite and preserve the family; however, Rhonda’s failure to follow through with provided services and her subsequent incarceration hindered any plans for reunification.

[¶26] It is not enough that a parent indicates a desire to improve behavior; rather, the parent must be able to demonstrate present capacity, or capacity within the near future, to be an adequate parent. McBeth v. M.D.K., 447 N.W.2d 318, 322 (N.D.1989). There is sufficient evidence in the record showing that extensive assistance and plans were offered. Rhonda’s own actions and voluntary conduct in failing to complete treatment and in violating the law, thereby endangering her children and resulting in her own incarceration, prevented a successful reunification. We reject Rhonda’s claims that reasonable efforts and sufficient services were not made available to her.

IV

[¶ 27] We hold the juvenile court’s finding that there is clear and convincing evidence to support the termination of Rhonda’s parental rights to both Debra and Karen is not clearly erroneous. The order is affirmed.

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

      . The parties’ names are pseudonyms.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2006 ND 24
    LeRoy Kenneth WHEELER, Plaintiff and Appellant v. Gary A. GARDNER, Grand Forks County Correctional Center, Defendants and Appellees.
    No. 20050166.
    Supreme Court of North Dakota.
    Jan. 31, 2006.
    Rehearing Denied Feb. 23, 2006.

      LeRoy Kenneth Wheeler, Bismarck, ND, pro se.
    Linda E. Bata (argued) and Ronald F. Fischer (on brief), Pearson Christensen Cahill & Clapp, P.L.L.P., Grand Forks, ND, for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] LeRoy Wheeler appeals from a district court summary judgment dismissing his declaratory judgment lawsuit challenging, the withdrawal of funds from his inmate account to pay for dental services. We affirm, concluding the district court did not err in determining North Dakota law authorized withdrawal of the full amount of the dental services provided to Wheeler.

I

[¶ 2] In late 2004, Wheeler was an inmate at the Grand Forks County Correctional Center awaiting trial on pending state criminal charges. In November 2004 Wheeler complained of a toothache and requested dental services. He was transported to a local dental office to have a tooth extracted on December 15, 2004. The dentist billed Wheeler $197, including a $78 “after hours” fee.

[¶ 3] The Correctional Center provided a copy of the bill to Wheeler and also a statement indicating the balance was due and owing. Wheeler filed three separate grievances, claiming that the Correctional Center could not charge his inmate account the full $197 for the dental services. Each of the grievances was denied, and Wheeler’s inmate account was charged $197.

[IT 4] Wheeler then brought a declaratory judgment action in district court against the Correctional Center and its administrator, Gary Gardner, alleging that the Correctional Center was not authorized to charge his inmate account for the dental services. The district court granted the motion of the Correctional Center and Gardner for summary judgment dismissing the complaint, concluding that North Dakota law authorized collection of the full $197 dental bill from Wheeler’s inmate account.

[¶ 5] An order granting the motion for summary judgment dismissing the complaint was entered on May 9, 2005. On that same date, Wheeler filed a notice of appeal from the order. On May 18, 2005, a judgment was entered dismissing Wheeler’s complaint with prejudice.

II

[¶ 6] Although an order granting summary judgment is not appealable, an attempted appeal from the order will be treated as an appeal from a subsequently entered consistent judgment, if one exists. See, e.g., Riemers v. Grand Forks Herald, 2004 ND 192, ¶1 n. 1, 688 N.W.2d 167; Schuck v. Montefiore Pub. Sch. Dist. No. 1, 2001 ND 93, ¶ 1 n. 1, 626 N.W.2d 698. Accordingly, we will treat Wheeler’s attempted appeal 'from the order granting summary judgment as an appeal from the May 18, 2005, judgment.

[¶ 7] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-23-01. Wheeler’s appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. §§ 28-27-01 and 32-23-07.

Ill

[¶ 8] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. Miller v. Diamond Res., Inc., 2005 ND 150, ¶8, 703 N.W.2d 316; Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45. Whether the trial court properly granted summary judgment is a question of law that we review de novo on the entire record. Miller, at ¶ 8; Johnson, at ¶ 9.

[¶ 9] In this case there are no disputed genuine issues of material fact, or disputed inferences to be drawn from the undisputed facts. The issues presented are purely questions of law requiring interpretation of the statutory provisions governing inmate accounts and withdrawal of funds for an inmate’s medical expenses.

[¶ 10] Interpretation of a statute is a question of law, fully reviewable on appeal. Johnson, 2005 ND 112, ¶ 13, 699 N.W.2d 45; In re Estate of Kimbrell, 2005 ND 107, ¶ 9, 697 N.W.2d 315; Pratt v. Altendorf, 2005 ND 32, ¶ 12, 692 N.W.2d 115. Our primary duty in construing a statute is to ascertain the intent of the legislature, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. § 1-02-02. If the wording of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute and the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05.

[¶ 11] The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). We presume the legislature did not intend an unreasonable result or unjust consequences. N.D.C.C. § 1-02-38(2). Statutes must be construed to give effect to all of their provisions, so that no part of the statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-38(2) and (4).

IV

[¶ 12] Inmate accounts and an inmate’s responsibility for medical and dental expenses are governed by N.D.C.C. § 12-44.1-12.1, which provides in pertinent part:

1. The correctional facility administrator shall establish an inmate account for each inmate.
2. The correctional facility administrator may withdraw funds from an inmate’s account to meet the inmate’s legitimate financial obligations, including child support and restitution. The correctional facility administrator may withdraw funds from the inmate’s account to pay for the inmate’s medical, dental, and eye care costs while the inmate is incarcerated in the correctional facility. Before the funds may be withdrawn, the inmate must first receive written notice and be provided a hearing with the right to correctional facility staff assistance and the right to review by the correctional facility administrator. No written notice or hearing is required if the withdrawal of funds is being made to meet the inmate’s child support obligation.
3.A correctional facility administrator may collect fees from inmates to offset health care costs as follows:
a. For a medical visit, up to ten dollars per medical visit made at the request of an inmate.
b. For self-inflicted injuries, the total amount of medical costs incurred.
c. For necessary health care services, the correctional facility may seek reimbursement from the inmate up to the total amount of health care costs incurred. If the inmate has health insurance coverage, a medical or health care provider must file a claim for reimbursement from the health insurance coverage carrier. A correctional facility may not assess an inmate for any costs associated with an intake health care assessment and related testing or for an examination of an inmate made at the request of the facility.
d. For elective health care requested by an inmate and as allowed by correctional facility policy, the inmate is responsible for the amount of the costs incurred.
e. Á correctional facility may not deny necessary and nonelective medical and health care to an inmate who does not have health insurance or does not have the ability to pay the costs of the medical or health care.

[¶ 13] The statute authorizes withdrawals from an inmate’s account for certain medical expenses. Subsection (1) of N.D.C.C. § 12-44.1-12.1 requires the creation of an account for each inmate. Subsection (3) of the statute provides that an inmate is responsible for certain medical and health care expenses, and that the Correctional Center may collect fees from the inmate to cover those expenses. Subsection (2) of the statute authorizes the administrator of the Correctional Center to withdraw funds from an inmate’s account to cover the inmate’s financial obligations, including medical, dental, and eye care expenses.

A

[¶ 14] Wheeler contends that N.D.C.C. § 1244.1-12.1(3)(a) creates a maximum charge to the inmate of $10 for any medical visit made at the request of the inmate. Thus, he contends, the Correctional Center could not assess his inmate account the full amount of his dental visit, but was limited to withdrawing only $10.

[¶ 15] The illogical reading of the statute urged by Wheeler would lead to absurd results and would render the remainder of N.D.C.C. § 12-44.1-12.1(3) superfluous. Other provisions in subsection (3) authorize the Correctional Center administrator to collect from the inmate “the total amount of medical costs incurred” for self-inflicted injuries, “the total amount of health care costs incurred” for necessary health care services, and “the amount of the costs incurred” for elective health care requested by the inmate. It is beyond dispute that any health care visit will result in fees and expenses in excess of $10. If, as Wheeler suggests, the maximum charge to the inmate for any medical visit is $10, the remainder of the provisions in subsection (3) authorizing collection of the total amount of the medical costs incurred would be rendered wholly inoperative and meaningless. See Ridl v. EP Operating Ltd. P’ship, 553 N.W.2d 784, 787 (N.D. 1996). It is presumed that the legislature acts with purpose and does not perform idle acts. Bickel v. Jackson, 530 N.W.2d 318, 320 (N.D.1995); see also N.D.C.C. § 1-02-38(2) (“[i]n enacting a statute, it is presumed that ... [t]he entire statute is intended to be effective”).

[¶ 16] The logical interpretation of N.D.C.C. § 1244.1-12.1(3)(a), when read in context with the entire statute, is that it authorizes an additional charge of $10 for each medical visit made at the request of the inmate. The inmate remains liable for the full amount of the actual medical costs incurred. The legislature’s inclusion in N.D.C.C. § 12-44.1-12.1(3) of other provisions authorizing reimbursement for the total amount of medical costs incurred is a clear expression of the legislature’s intent that the $10 fee in N.D.C.C. § 1244.1-12.1(3)(a) is not a maximum charge, but rather is an additional fee for each requested medical visit. The statute thereby allows the Correctional Center to recoup some of the expense of arranging and transporting the inmate to an outside appointment or providing on-site health care services, and also serves to deter inmates from excessive and frivolous requests for medical visits.

[¶ 17] We conclude that N.D.C.C. § 12-44.1-12.1(3)(a) does not limit the charge to an inmate’s account for a medical visit to a maximum of $10, but the Correctional Center may seek to collect from the inmate, the entire amount incurred for certain medical visits plus an additional $10 fee.

B

[¶ 18] Wheeler also contends the $78 “after horn’s” fee billed by the dental office was not a medical or health care expense, and therefore he was not responsible for that amount.

[¶ 19] Under N.D.C.C. § 12-44.1-12.1(3)(c), the Correctional Center was authorized to seek reimbursement, and charge Wheeler’s inmate account, for the total amount of “health care costs” incurred. Reading this provision in context, and giving the statutory language its plain, ordinary, and commonly understood meaning, we conclude an “after hours” fee charged for dental services provided outside normal office hours is a “health care cost” under the statute. We believe it is commonly understood that any item directly related to, and billed by the health care provider as, a medical or dental service is a “health care cost.”

[¶ 20] We conclude the district court did not err in determining that the withdrawal of the full $197 from Wheeler’s inmate account was authorized.

V

[¶ 21] We have considered the remaining issues and arguments raised by the parties and find them either unnecessary to our decision or without merit. We affirm the summary judgment dismissing Wheeler’s declaratory judgment action.

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


author: CROTHERS, Justice.

text:
    2006 ND 10
    STATE of North Dakota, Plaintiff and Appellee v. Randy BERTRAM, Defendant and Appellant.
    Nos. 20050035, 20050036, 20050037.
    Supreme Court of North Dakota.
    Jan. 31, 2006.
    Rehearing Denied Feb. 23, 2006.

      Nicole Elian Foster, State’s Attorney, Williston, N.D., for plaintiff and appellee.
    Eric P. Baumann (on brief), Slorby Law Office, Minot, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Randy Bertram (“Randy”) appeals from a district court judgment entered upon jury verdicts finding him guilty of violating a disorderly conduct restraining order, criminal trespass, and contact by bodily fluids. We affirm the convictions.

I

[¶ 2] On January 16, 2004, Joan Bertram (“Joan”) and Randy were divorced by a default divorce decree that awarded Joan the parties’ residence. On January 29, 2004, Joan obtained a temporary disorderly conduct restraining order against Randy, and the Williams County Sheriffs Department served that order on him. The order prohibited Randy from having any contact with Joan except through an attorney and from coming within 100 feet of her residence or place of employment. At about 8:00 a.m. on February 8, 2004, Randy entered Joan’s residence through a window and spoke with her. According to Randy, he was attempting to get business and tax records for his construction business, which were in an office in the residence.

[¶ 3] The State charged Randy with violating the disorderly conduct restraining order under N.D.C.C. § 12.1-31.2-01 for allegedly entering Joan’s home and speaking to her and with criminal trespass under N.D.C.C. § 12.1-22-03(1) for allegedly entering her home, knowing he was not licensed or privileged to be in the home. While Randy was in custody on those charges, he allegedly spit on Gaylen Anderson, a correctional officer with the Williams County Sheriffs Department, while Officer Anderson was attempting to administer medications to him. The State charged Randy with contact by bodily fluids under N.D.C.C. § 12.1-17-ll(l)(b) and (3) for allegedly spitting on Officer Anderson, while Anderson was acting in the scope of his duties. In September 2004, a jury convicted Randy of criminal trespass and of violating the disorderly conduct restraining order, and in October 2004, a second jury convicted him of contact by bodily fluids.

II

[¶ 4] Randy argues the district court erred in denying his motion for judgment of acquittal based on insufficiency of the evidence.

[¶ 5] In State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819 (citations omitted), we outlined our standard of review for challenges to sufficiency of the evidence:

In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.

[¶ 6] A person is guilty of criminal trespass if, knowing he is not licensed or privileged to do so, he enters or remains in a dwelling. N.D.C.C. § 12.1-22-03(1). “[P]rivilege is the freedom or authority to act and to use property.’ ” State v. Morales, 2004 ND 10, ¶10, 673 N.W.2d 250 (quoting State v. Ronne, 458 N.W.2d 294, 297 (N.D.1990)). A person is privileged if he naturally may be expected to be on the premises often and in the natural course of his duties or habits. Morales, at ¶ 10. A person is licensed to be on property if the entry was consensual. State v. Purdy, 491 N.W.2d 402, 410 (N.D.1992).

[¶ 7] A person acts knowingly if “when he engages in the conduct, he knows or has a firm belief, unaccompanied by a substantial doubt, that he is doing so, whether or not it is his purpose to do so.” N.D.C.C. § 12.1 — 02—02(1)(b). A person’s knowledge need not be absolute, but must be only a firm belief unaccompanied by a substantial doubt. State v. Kaufman, 310 N.W.2d 709, 713 (N.D.1981). A person’s knowledge depends on all the surrounding facts and circumstances and is a factual question that may be established by circumstantial evidence. Id. at 713-14.

[¶ 8] Randy argues he was not guilty of criminal trespass because he entered a dwelling he had resided in for the last 11 to 14 years. He argues the default divorce judgment, which gave possession of the dwelling to Joan, was an illegal judgment and was subsequently determined to be invalid. He claims he entered the house to retrieve property that even the illegal judgment recognized as his. He argues that before he entered the house, he had been told by three lawyers that he could enter it, and based on that legal advice, he claims he believed he was entitled to enter the house. He asserts the State failed to prove beyond a reasonable doubt that he was not in fact both licensed and privileged to enter the house, much less that he actually knew he was not licensed or privileged.

[¶ 9] Randy admitted he received the divorce decree, which awarded Joan the parties’ home, before February 8, 2004. Joan testified she informed Randy he could not come to the house without her approval, and Randy admitted he had been told not to come to the house without her approval. Joan testified she had changed the locks on the house. According to Randy, he attempted to call Joan on his cell phone from her garage before he entered her house through a window, but there was no answer. Joan testified she did not receive a phone call from Randy on the morning of February 8, 2004, but awoke and discovered Randy in her residence. She testified she called the police and she found an opened window and a crowbar in the television room in her house. Randy admitted he entered the house through the window.

[¶ 10] Williston Police Officer Darren Cody testified he arrived at Joan’s house and discovered Randy inside. Officer Cody testified Randy took off running through the house, shutting doors behind him and eventually fled to the garage where he nailed the door shut. Officer Cody testified he saw a crowbar in the television room and an open window with footprints in snow outside the window.

[¶ 11] We conclude the evidence and reasonable inferences from the evidence, viewed in the light most favorable to the verdict, are such that a rational fact finder could find Randy knew he was not licensed or privileged to enter Joan’s house. We reject Randy’s claim that he was entitled to rely on the advice of attorneys. Legal advice generally is not a defense to a criminal prosecution, but in some circumstances may be used to negate the requisite mens rea. State v. Thorstad, 261 N.W.2d 899, 904-06 (N.D.1978). See generally 21 Am.Jur.2d Criminal Law § 156 (1998). Here, Randy was not precluded from testifying that he relied upon the legal advice of attorneys in entering the house, and the jury nevertheless assessed all the surrounding facts and circumstances and determined he knew he was not licensed or privileged to be on the premises. We also reject Randy’s claim he was entitled to be in the house because the default divorce judgment was later reopened. In other contexts, this Court has said an invalid order must be obeyed until stayed or reversed by orderly review. State v. Zahn, 1997 ND 65, ¶ 14, 562 N.W.2d 737. The divorce decree had not been reopened when Randy entered the house, and the later proceedings on that judgment do not, as a matter of law, relieve him from criminal liability for criminal trespass.

[¶ 12] In assessing claims about the sufficiency of the evidence, we do not weigh conflicting evidence or judge the credibility of the witnesses. Noorlun, 2005 ND 189, ¶20, 705 N.W.2d 819. Under our standard of review of jury verdicts, we conclude sufficient evidence existed for the jury to find Randy knew he was not licensed or privileged to enter Joan’s house. We therefore uphold Randy’s conviction for criminal trespass.

Ill

[¶ 13] Randy argues simultaneous prosecutions for criminal trespass and violation of the disorderly conduct restraining order were for the same offense and violated the double jeopardy clauses of the state and the federal constitutions.

[¶ 14] A similar argument was made in City of Fargo v. Hector, 534 N.W.2d 821, 823-24 (N.D.1995), where this Court applied the “same elements” or “Blockburger” test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the “same elements” test a court determines “ ‘whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution.’ ” Hector, at 823 (quoting United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). Importantly, in Hector, at 824, we rejected defendant’s argument that some of the “same evidence” used to prosecute him for exhibition driving also was used to convict him for driving under the influence. We recognized the United States Supreme Court had expressly rejected a “same evidence” test, and neither a common episode nor the same evidence determines double jeopardy. Id. (citing Grady v. Corbin, 495 U.S. 508, 512, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).

[¶ 15] Here, Randy was charged with two separate offenses. The criminal trespass charge required proof Randy entered or remained in a dwelling knowing he was not licensed or privileged to be in the dwelling. The violation of the disorderly conduct restraining order charge required the additional element of proof that Randy knew about the restraining order, which prohibited him from contacting Joan or being within 100 feet of her home, and he violated that order by entering her home and speaking with her. Contrary to Randy’s claim, the charge for violation of the disorderly conduct restraining order involved more than Randy entering Joan’s residence. The criminal information and the jury instructions confirm these additional proof requirements. Although entering Joan’s house was involved factually in both crimes, the two crimes each contained an element not included in the other. We therefore conclude Randy’s prosecutions for criminal trespass and for violation of the disorderly conduct restraining order did not violate the double jeopardy clauses of the state and the federal constitutions.

IV

[¶ 16] Randy argues the district court obviously erred by failing to instruct the jury that “willful” culpability was required to prove a violation of the disorderly conduct restraining order.

[¶ 17] Randy did not object at trial to the jury instruction for violation of a disorderly conduct restraining order, and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the district court’s failure to instruct the jury was obvious error affecting his substantial rights. See State v. Olander, 1998 ND 50, ¶ 11, 575 N.W.2d 658. This Court’s authority to notice obvious error is exercised cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice. Id. at ¶ 12. A defendant has the burden of establishing obvious error by showing error that is plain and affects substantial rights. Id. at ¶ 15. An error is not obvious unless there is a “clear deviation from an applicable legal rule under current law.” Id. at ¶ 14. A clear deviation from an applicable rule also must affect substantial rights, which requires that the defendant show the error was prejudicial, or affected the outcome of the proceedings. Id. at ¶ 15. Once an accused establishes an obvious error affects substantial rights, an appellate court has discretion to correct the error and should correct it if it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at ¶ 16 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

[¶ 18] Jury instructions must correctly and adequately advise the jury of the applicable law and must not mislead or confuse the jury. Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658. A person may not be convicted of a criminal offense unless each element of the offense is proven beyond a reasonable doubt. State v. Bohl, 317 N.W.2d 790, 792 (N.D.1982). Section 12.1-01-03(1), N.D.C.C., defines “element of an offense” to mean the forbidden act, the attendant circumstances specified in the definition and grading of the offense, the required culpability, any required re-suit, and the nonexistence of any applicable defenses.

[¶ 19] A person is guilty of violating a disorderly conduct restraining order if the person knows about the existence of the order and violates a provision of the order. N.D.C.C. § 12.1-31.2-01(8). The district court instructed the jury on the essential elements of a violation of a disorderly conduct restraining order:

In order to prove that the defendant committed the offense of Violation of a Disorderly Conduct Restraining Order, the prosecution must prove, beyond a reasonable doubt, each of the following essential elements:
1. That the Defendant Randy Lee Bertram had knowledge of the Disorder Conduct Restraining Order;
2. That the offense was committed on or about February 8, 2004, in Williams County, North Dakota;
3. That the offense was committed by the Defendant, Randy Lee Bertram; and
4. That the defendant violated one or more provisions of the disorderly conduct restraining order, specifically that he entered the home of Joan Bertram and spoke with her.

[¶ 20] We conclude the district court’s instruction on the violation of a disorderly conduct restraining order was not erroneous. The court instructed the jury on the essential elements of the offense in language tracking N.D.C.C. § 12.1-31.2-01(8), which required the State to prove beyond a reasonable doubt that Randy had knowledge of the order and that he violated one or more provisions of the order, specifically that he entered Joan’s home and spoke with her. A defendant’s knowledge of the order satisfies the culpability requirement for violation of a disorderly conduct restraining order, and we reject Randy’s claim that the court erred in instructing the jury on the violation of a disorderly conduct restraining order.

V

[IT 21] Randy argues the State’s failure to allege all the essential elements of contact by bodily fluids in the amended information requires reversal of that conviction. The State’s amended information charged Randy with a class C felony violation of N.D.C.C. § 12.1 — IT—ll(l)(b) and (3) for knowingly causing “blood, emesis, excrement, mucus, saliva, semen, vaginal fluid, or urine to come in contact with an employee of a correctional facility acting in the scope of employment; to wit: Randy Bertram spit on Deputy Gaylen Anderson when Deputy Anderson was acting in the scope of his duties.” The information did not include the following underscored language from N.D.C.C. § 12.1 — 17—ll(l)(b), which prohibits contact by bodily fluids with “an employee of a correctional facility or the department of corrections and rehabilitation acting in the scope of employment unless the employee does an act within the scope of employment which requires or causes the contact.” Randy argues the underscored language is a necessary element of the offense and was not alleged in the information. He claims the information was facially deficient and his conviction must be reversed.

[¶ 22] In pretrial proceedings, the State resisted Randy’s request for an amendment to the information to include the phrase “unless the employee does an act within the scope of employment which requires or causes the contact.” The district court denied the request to amend the information, but included the disputed language in its instruction on the essential elements of contact by bodily fluids. During a subsequent pretrial discussion about potential defenses, the court indicated the disputed language encompassed an essential element of the offense. In opening statements to the jury, Randy’s counsel said:

In the course of complying with 'the orders of the guard, it was Deputy Anderson who caused any contact, if there was any, and we’re not contesting that there was an incident. We’re not contesting that Deputy Anderson was working that day. We’re not contesting the fact that there was some type of incident between Deputy Anderson and my client, Mr. Bertram.
What we are contesting is that if there was any contact which again we submit there was not, that it was at the direct requirement and at the direct request of Deputy Anderson.
It was Deputy Anderson’s demands while performing his duties that caused any of this alleged contact.

[¶ 23] An information must contain a “ ‘written statement of the essential elements of the offense.’ ” State v. Frankfurth, 2005 ND 167, ¶ 7, 704 N.W.2d 564 (quoting State v. Gwyther, 1999 ND 15, ¶ 15, 589 N.W.2d 575). In Frankfurth, at ¶ 7 (citing N.D.C.C. § 12.1-01-03(1)), this Court recognized the legislature has established that “elements of an offense” means (1) the forbidden conduct, (2) the attendant circumstances specified in the definition and grading of the offense, (3) the required culpability, (4) any required result, and (5) the nonexistence of a defense as to which there is evidence sufficient to give rise to a reasonable doubt on the issue. In Frank-furth, at ¶ 6, we said technical defects in an information are not fatal to its validity, and notice requirements are satisfied if an information is sufficiently specific to provide the defendant with notice of the pending . charges to enable the defendant to prepare a defense.

[¶ 24] In Frankfurth, 2005 ND 167, ¶ 2, 704 N.W.2d 564, the information charged Frankfurth with gross sexual imposition under N.D.C.C. § 12.1-20-03 for allegedly engaging in a sexual act at. a time when the victim was unaware that a sexual act was being committed on her. A jury returned a guilty verdict. Frankfurth, at ¶ 2. Frankfurth moved for arrest of judgment under N.D.R.Crim.P. 34, arguing the information failed to specifically allege his knowledge of his victim’s unawareness that a sexual act was being perpetrated on her. Frankfurth, at ¶ 3 (citing N.D.C.C. § 12.1-20-03(l)(c)). The district court granted Frankfurth’s motion for arrest of judgment, dismissing the charge without prejudice. Frankfurth, at ¶ 4.

[¶ 25] We concluded ■ the information was defective because the defendant’s knowledge of the victim’s unawareness was a legislatively established essential element of the offense and could not be inferred from the information. Frankfurth, at ¶ 10. We said the defective complaint failed to charge Frankfurth with an offense and was a valid ground for arrest of judgment under N.D.R.Crim.P. 34. Frankfurth, at ¶¶ 18-19. We said an analysis under the obvious error provisions of N.D.R.Crim.P. 52 was not required because it would be tantamount to a repeal of N.D.R.Crim.P. 34. Frankfurth, at ¶¶ 24-26. A concurring opinion agreed that the district court did not err when it granted the defendant’s motion for arrest of judgment, but stated this Court’s decision should not preclude district courts from applying a harmless error analysis to the failure to include an essential element in an information. Id. at ¶ 31 .(Kapsner, Justice, concurring).

[¶ 26] Section 12.1-17-11, N.D.C.C., proscribes contact by bodily fluids and provides:

1. An individual is guilty of an offense if the individual causes blood, emes-is, excrement, mucus, saliva, semen, vaginal fluid, or urine to come in contact with:
a. A law enforcement officer acting in the scope of employment;
b. An employee of a correctional facility or the department of corrections and rehabilitation acting in the scope of employment unless the employee does an act within the scope of employment which requires or causes the contact;
c. Any person lawfully present in a correctional facility who is not an inmate;
d. Any person lawfully present in the penitentiary or an affiliated facility of the penitentiary who is not an inmate; or
e. Any person who is transporting an individual who is lawfully detained.
2. Subsection 1 does not apply to a mentally ill person as defined in section 25-03.1-02 who has been detained pursuant to chapter 25-03.1.
3. The offense is a class C felony if the individual knowingly causes the contact and is a class A misdemeanor if the individual recklessly causes the contact.

[¶ 27] Section 12.1-17-ll(l)(a) and (b), N.D.C.C., both include language requiring the victim of contact by bodily fluids to be “acting in the scope of the employment,” but subdivision (b) includes an additional requirement precluding criminal liability if the victim, an employee of a correctional facility or the department of corrections and rehabilitation, “does an act within the scope of employment which requires or causes the contact.” In order to convict a person of contact by bodily fluids under N.D.C.C. § 12.1-17 — ll(l)(b) the State must prove the employee was acting in the scope of employment but did not commit “an act within the scope of employment which requires or causes the contact.”

[¶ 28] The record here shows Deputy Anderson was administering medications when contacted by Randy’s saliva. In turn, the essence of Randy’s defense to this charge was that if his bodily fluids came into contact with Deputy Anderson, such contact was the result of Anderson acting in the course of his employment. The omission of the omitted language from the criminal information is not a technical defect in the information and is equivalent to the nonexistence of a defense, which is a legislatively established “element of the offense” under N.D.C.C. § 12.1-01-03(1) and our decision in Frankfurbh.

[¶29] We decline, however, to expand Frankfurbh beyond the circumstances of that case, in which the issue about the validity of the information was not raised until a post-trial motion under N.D.R.Crim.P. 34 for arrest of judgment. In that case, the State argued dismissal of the information was an inappropriate remedy because the district court did not conduct a harmless error analysis under N.D.R.Crim.P. 52. Frankfurth, 2005 ND 167, ¶ 20, 704 N.W.2d 564. We said an “analysis [under N.D.R.Crim.P. 52] was not required and will not be imposed by this Court as it would be tantamount to a repeal of N.D.R.Crim.P. 34.” Frankfurbh, at ¶ 26. The result in Frankfurbh was based primarily on the interplay between N.D.R.Crim.P. 34 and N.D.R.Crim.P. 52.

[¶ 30] Here, the issue was raised during trial, there was no timely motion under N.D.R.Crim.P. 34 for arrest of judgment, and the State claims any defect in the information was harmless error. We conclude Frankfurbh is not controlling and a harmless error analysis is appropriate under these circumstances.

[¶ 31] Under N.D.R.Crim.P. 52(a), “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” The harmless error doctrine “ ‘recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.’ ” Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). The harmless error doctrine “ ‘serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.’ ” Neder, at 19 (quoting Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Even most constitutional errors can be harmless and do not automatically require reversal. Neder, at 8,119 S.Ct. 1827.

[¶ 32] In the absence of any evidence that Randy relied on the information to his detriment or was otherwise prejudiced, we conclude the error in this case, the drafting of an insufficient charging document, is subject to a harmless error analysis. Under the circumstances of this case, we further conclude the defect in the information is harmless. A “primary purpose of a criminal complaint or information is to fairly inform the accused of the charges against him to enable him to prepare for trial.” City of West Fargo v. Hawkins, 2000 ND 168, ¶8, 616 N.W.2d 856. The information in this case cited N.D.C.C. § 12.1-17-ll(l)(b), the specific subsection which includes the language “unless the employee does an act within the scope of employment which requires or causes the contact.” The State resisted Randy’s pretrial request for an amendment to the information to include the phrase “unless the employee does an act within the scope of employment which requires or causes the contact.” The district court denied Randy’s request, but included that language in its instruction on the essential elements of contact by bodily fluids. During opening statements to the jury, Randy’s counsel said that any contact “was at the direct requirement and at the direct request of Deputy Anderson. It was Deputy Anderson’s demands while performing his duties that caused any of this alleged contact.” Based on proper jury instructions that included all of the essential elements of contact by bodily fluids, a unanimous jury found Randy guilty. Randy does not argue he was misled or confused by the omission of the disputed language from the information. Moreover, on this record, any argument to that effect is not persuasive, and we conclude it would be a waste of judicial resources to retry a defendant who has not demonstrated prejudice or harm. We hold the error in the information did not affect Randy’s substantial rights and is harmless.

VI

[¶ 33] Randy argues the prosecutor’s misstatement to the jury regarding the classification of the charge of contact by bodily fluids is reversible error. In the district court’s opening instructions to the jury, the court correctly informed the jury that the charge for contact by bodily fluids was a class C felony. The prosecutor then read the amended information to the jury and erroneously stated the charge was a class B felony. Randy concedes his trial counsel did not object to the misstatement. He argues, however, the misstatement constitutes obvious error requiring reversal, because it imposed improper considerations upon the jury’s deliberations, misinformed the jury of the seriousness of his alleged misconduct, and confused the jury.

[¶ 34] The prosecutor’s statement about the classification of the charge for contact by bodily fluids appears to be have been an accidental misstatement in reading the information to the jury, see N.D.C.C. § 29-21-01(1), and was not repeated during trial.. In its final instructions, the court instructed the jury that statements by counsel were not to be considered evidence. Randy has not demonstrated how the prosecutor’s misstatement prejudiced him, or affected the outcome of the proceeding.

[¶ 35] We conclude any error was corrected by the district court’s subsequent instruction that counsel’s statements were not to be considered as evidence. We hold the prosecutor’s misstatement did not affect Randy’s substantial rights and does not rise to the level of obvious error.

VII

[¶ 36] Randy argues the district court’s failure to inform counsel in writing of a jury instruction on contact by bodily fluids violated N.D.R.Crim.P. 30(b) and constituted reversible and obvious error. During a discussion about jury instructions immediately before trial, the court decided to instruct the jury on the language from N.D.C.C. § 12.1 — 17—11 (l)(b) that was not included in the information, and before reading the instructions to the jury, the court orally informed both counsel that it would add that language. The State argues Randy did not object to the court’s procedure at trial, and there was no obvious error affecting his substantial rights.

[¶ 37] Randy asked for the instruction as part of his claim about a defective information. The court complied with his request, but the record does not establish that the court informed counsel in writing. See N.D.R.Crim.P. 30(b). Randy did not object to the lack of written notification about his request for the additional language, and the court orally granted his request. Randy has not demonstrated how the court’s failure to provide a written notification was prejudicial, or affected the outcome of the proceeding. We conclude the procedure employed by the court did not affect Randy’s substantial rights and does not rise to the level of obvious error.

VIII

[¶ 38] Randy argues he was denied his right to effective assistance of counsel under the state and the federal constitutions at his trials for violation of a disorderly conduct restraining order and for contact by bodily fluids.

[¶ 39] Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction proceeding under N.D.C.C. ch. 29-32.1, so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s claim. State v. Palmer, 2002 ND 5, ¶ 12, 638 N.W.2d 18. When a claim for ineffective assistance of counsel is argued on direct appeal, we review the record to decide if the assistance of counsel was plainly defective. Id. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim. Id. Representations and assertions of appellate counsel are not enough to establish a claim of ineffective assistance. Id. To successfully claim ineffective assistance of counsel, a defendant must establish counsel’s representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel’s deficient performance. Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454.

[¶40] Randy argues his trial counsel was ineffective at the trial for violation of a disorderly conduct restraining order, because counsel did not object to the lack of a culpability requirement in the instruction on the elements of violation of a disorderly conduct restraining order. Because we held above that the district court’s instruction correctly informed the jury on the law for violation of a disorderly conduct restraining order, we conclude Randy’s claim of ineffective assistance of counsel in that regard is without merit.

[¶ 41] Randy argues his trial counsel was ineffective at the trial for contact by bodily fluids, because (1) counsel did not object and obtain a clarifying instruction or mistrial after the prosecutor’s misstatement that contact by bodily fluids was a class B felony; (2) counsel did not object to the addition of a witness in an amended information; and (3) counsel questioned Deputy Anderson about his past relationship with Randy, which Randy claims opened the door to issues about past relationships between him and law enforcement officers and precluded him from testifying at trial.

[¶ 42] On this record, we cannot conclude Randy’s trial counsel’s representation fell below an objective standard of reasonableness, or that Randy was prejudiced. We affirm Randy’s conviction for contact by bodily fluids without prejudice to him to pursue an ineffective assistance of counsel claim at a post-conviction proceeding.

IX

[¶ 43] We affirm the convictions.

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


author: CROTHERS, Justice.'

text:
    2006 ND 26
    Charles D. DUNN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050336.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Thomas E. Merrick, Jamestown, N.D., for petitioner and appellant.
    Gary Lee Delorme (argued), Assistant State’s Attorney, Jamestown, N.D., and Jodi Lynn Colling (on brief), Legal Services of North Dakota, Bismarck, N.D., for respondent and appellee.
   CROTHERS, Justice.'

[¶ 1] Charles D. Dunn appeals from a judgment summarily dismissing his petition for post-conviction relief. We affirm the judgment of the district court.

I

[¶ 2] Dunn became involved in a conspiracy to “beat up” or kill another inmate while imprisoned at the James River Correctional Center on unrelated charges. Dunn sat on the inmate while Dunn’s co-conspirators hit and twisted the inmate’s neck.

. [¶ 3] At the preliminary hearing on the conspiracy and attempt charges, Dunn’s attorney stated Dunn .claimed to be schizophrenic, was medicated, and had appeared to have difficulty understanding the proceedings. A continuance was granted, and Dunn’s counsel obtained a review from the correctional center’s Special Assistance Unit addressing Dunn’s mental state. The review indicated Dunn had “[m]uch preoccupation with his religious strivings, which includes statements implying his omnipotence.” It additionally indicated Dunn admitted lying about seeing things and hearing voices to get drugs because he was “looking for a high.” Dunn’s counsel discussed the review with Dunn and, relying on the report and their discussion, decided not to seek a psychiatric evaluation.

[¶ 4] Dunn subsequently stated his desire to admit his wrongdoing in the conspiracy and to be sentenced. At sentencing, Dunn informed the court he was on psychotropic drugs but claimed they did not affect his ability to understand the proceedings.. He gave an account of the conspiracy to form a factual basis, and his guilty plea was accepted.

[¶ 5] Dunn filed a pro se motion for post-conviction relief and requested counsel. After the court appointed counsel, Dunn’s attorney moved to amend the application for post-conviction relief and moved for an order allowing him to conduct discovery. The State responded to Dunn’s motions and requested summary dismissal of the post-conviction relief action. The district court denied Dunn’s motion to amend the application, and though it did not directly address the discovery motion, effectively denied it by summarily dismissing the post-conviction relief claim.

[¶ 6] Dunn appeals, arguing he was entitled to an evidentiary hearing for his post-conviction relief claim on the issue of ineffective assistance of counsel.

II

[¶ 7] A post-conviction relief proceeding is civil in nature and governed by the North Dakota Rules of Civil Procedure. Johnson v. State, 2005 ND 188, ¶ 6, 705 N.W.2d 880.

[¶ 8] The Uniform Post-Conviction Procedure Act allows for two types of dismissal. First, the State may move for dismissal of an application under N.D.C.C. § 29-32.1-06(2), which is similar to a motion under N.D.R.Civ.P. 12(b)(vi) or (c). Johnson, 2005 ND 188, ¶9, 705 N.W.2d 830. Such a motion is based on the pleadings alone and allows the plaintiff ten days to respond in accordance with Rule 3.2(a), N.D.R.Ct. Johnson, at ¶ 14. The second type permits either party to move for summary disposition of an application under N.D.C.C. § 29-32.1-09(1), which is akin to summary judgment under Rule 56, N.D.R.Civ.P. Mertz v. State, 535. N.W.2d 834, 835 (N.D.1995).

[¶ 9] Here, the State moved for summary dismissal under N.D.C.C. § 29-32.1-09(1), attaching with its motion numerous affidavits and exhibits supporting its position that no genuine issue of material fact existed. It further indicated Dunn was bound by a ten-day response time under N.D.R.Ct. 3.2(a). However, because the State clearly intended the court to go beyond the pleadings, the motion-is analogous to a Rule 56, N.D.R.Civ. P., motion and should have been subject to a thirty-day response time. See Johnson, 2005 ND 188, ¶ 15, 705 N.W.2d 830.

[¶ 10] We have established the procedure following a motion for summary disposition under' N.D.C.C. § 29-32.1-09(1):

The party opposing a motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. However, once the moving party has initially shown there is no genuine issue of material fact, the burden shifts to' the opposing party to demonstrate that there is a genuine issue of material fact. The party opposing' the motion may not merely rely upon thé pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.

Mertz, 535 N.W.2d at 836 (citations omitted).

[¶ 11] Following the State’s motion, which was accompanied by evidentiary support establishing a lack of disputed material fact, Dunn’s response consisted of a brief containing a reiteration of the facts and his argument, and a short transcript excerpt. He failed to supply any competent evidence showing an issue of material fact.

[¶ 12] Summary dismissal is normally inappropriate for post-conviction relief claims arguing ineffective assistance of counsel because such claims typically require development of a record in an evidentiary hearing. Abdi v. State, 2000 ND 64, ¶ 31, 608 N.W.2d 292. In spite of this general rule, the summary judgment rules regarding burdens and burden shifting apply even in ineffective assistance of counsel post-conviction relief cases. Summary dismissal remains appropriate if the petitioner fails to raise a genuine issue of material fact. Mertz, 535 N.W.2d at 838. Therefore, Dunn’s failure to appropriately respond to the State’s motion is fatal, and the district court’s dismissal of the action was appropriate.

Ill

[¶ 13] Embedded in Dunn’s appeal are issues regarding the unanswered discovery request and the State’s failure to notify Dunn of the appropriate response time.

[¶ 14] Dunn made a motion for an order permitting discovery on the ineffective assistance of counsel claim. The district court did not respond directly; rather, it summarily dismissed the proceeding. Although we are troubled by this ignored discovery motion, there is no evidence in the record that Dunn was unable to respond to the motion for summary dismissal or that he required discovery in order to properly do so, as would be indicated in a pleading akin to a motion and affidavit under N.D.R.Civ.P. 56(f). Because Dunn failed to establish how the discovery was needed or relevant in light of the State’s motion for summary dismissal, we cannot and will not speculate whether Dunn was prejudiced. We therefore conclude based on the record before us that any error, if indeed it was error, was harmless.

[¶ 15] We are also concerned about the State’s failure to notify Dunn of the appropriate time to respond to its motion for summary dismissal. The State’s notice of motion stated Dunn was allowed only ten days to respond, but because the State’s motion asked the court to go beyond the pleadings, Dunn actually was entitled to a thirty-day response time. Johnson, 2005 ND 188, ¶ 16, 705 N.W.2d 830. Although we do not condone the State’s error, because Dunn timely responded and gave no indication that more time was required, the error was harmless.

IV

[¶ 16] No issue of material fact was presented by Dunn to the district court or is reflected in the record on appeal. Therefore, the district court’s judgment summarily dismissing Dunn’s post-conviction relief action is affirmed.

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


text:
    2006 ND 29
    Gail SIMON, Plaintiff v. Quentin SIMON, Defendant. State of North Dakota, by and through the Foster County Social Service Board; Plaintiff and Appellant and Gail M. Simon, Plaintiff v. Quentin Simon, Defendant and Appellee.
    Nos. 20050279, 20050356.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Mark Samuel Douglas, Child Support Enforcement Unit, Jamestown N.D., for plaintiff and appellant.
    Quentin Simon, defendant and appellee; no appearance.
   SANDSTROM, Justice.

[¶ 1] The State of North Dakota (“the State”), through the Foster County Social Service Board, appeals from a district court judgment interpreting the offset provisions of the split custody and equal custody regulations of the child support guidelines. We affirm, concluding the offset provisions apply to all split custody and equal custody cases, including those where one parent assigns the right to receive child support to the State.

I

[¶ 2] Gail Simon and Quentin Simon were divorced in 2002. The divorce judgment awarded them joint legal and physical custody of their two children. In March 2003, both children began living with Gail Simon and she began receiving benefits on behalf of herself and the two children under Temporary Assistance to Needy Families (“TANF”). By applying for TANF, Gail Simon assigned all rights to support, that she or any member of her family may have, to the State under N.D.C.C. § 50-09-06.1. As a result, in March 2003, the State filed a separate action against Quentin Simon for child support. He did not answer the State’s complaint.

[¶ 3] In June 2003, Gail Simon moved to modify custody and child support. In September 2003, the district court awarded Gail Simon primary physical custody of one child and awarded Quentin Simon primary physical custody of the other child. The court did not set the parents’ child support obligations at that time. After the custody modification, Gail Simon continued to receive TANF benefits through July 2005, on behalf of herself and the child in her physical custody.

[¶ 4] In January 2004, the State moved to consolidate its action against Quentin Simon with the Simons’ divorce proceeding and asked the court to order child support. The district court granted the State’s motion to consolidate. In March 2004, the State moved for default judgment in its action against Quentin Simon. The State submitted a proposed order that set each parent’s child support obligation under the split and equal custody provisions of the child support guidelines. N.D. Admin. Code §§ 75-02-04.1-03 and 75-02-04.1-08.2. The State argued the offset provisions of the split and equal custody regulations did not apply to the parties’ support obligations during the periods when Gail Simon was receiving TANF benefits, because she assigned the right to receive the child support to the State. The State claimed when one parent assigns the right to receive support to the State, each parent should pay the actual amount of his or her support obligation instead of the offset amount. The State therefore asserted it was entitled to reimbursement from Quentin Simon for the entire amount of his support obligation and not for only the offset amount.

[¶ 5] The district court entered an amended judgment setting Gail Simon’s child support obligation at $168 a month and Quentin Simon’s child support obligation at $330 a month. The court rejected the State’s assertion that the offset provisions did not apply during the periods when Gail Simon received TANF benefits and she had assigned the right to receive child support to the State. The court offset the parents’ obligations and ordered Quentin Simon to pay the net difference of $162 a month from September 2003 through July 2005 when Gail Simon was receiving TANF benefits and had assigned the right to receive support to the State.

[¶ 6] The district court also decided the parents’ child support obligations under the equal custody provision in N.D. Admin. Code § 75-02-04.1-08.2, for the seven months from March 2003 to September 2003, when both children were living with Gail Simon. For that time period, Quentin Simon’s support obligation was set at $441 per month, and Gail Simon’s support obligation was set at $200 per month. The court offset those amounts and ordered Quentin Simon to pay the net difference of $241 per month for those seven months.

[¶ 7] The district court interpreted N.D. Admin. Code §§ 75-02-04.1-03 and 75-02-04.1-08.2 to require an offset in the parents’ support obligations in all equal and split custody cases, regardless of whether one parent assigns the right to receive child support to the State. The district court’s interpretation means Gail Simon’s assignment of. her rights to the State entitled the State to receive only the net difference between the parents’ child support obligations and not Quentin Simon’s entire child support obligation.

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

II

[¶ 9] The only issue on appeal involves the interpretation of N.D. Admin. Code §§ 75-02-04.1-03 and 75-02-04.1-08.2, and whether the offset in the parents’ child support obligations applies when one parent has assigned the right to receive support to the State. The State contends the offset provisions of those regulations do not apply when one parent assigns the right to receive support to the State, and the State is entitled to reimbursement for the entire support obligation of the other parent.

[¶ 10] Child support determinations involve questions of law subject to the de novo standard of review, findings of fact subject to the clearly erroneous standard of review, and may involve matters of discretion subject to the abuse of discretion standard of review. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines established by the Department of Human Services. Id.

[¶ 11] Administrative regulations are derivatives of statutes and are construed using well established principles of statutory construction. Gofor Oil, Inc. v. State, 427 N.W.2d 104, 108 (N.D.1988). Statutory interpretation is a question of law subject to full review upon appeal. GO Comm. ex rel. Hale v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865.

[¶ 12] The primary objective in interpreting a statute is to determine the intent of the legislature by first looking at the language of the statute. Amerada Hess Corp. v. State ex rel. Tax Comm’r, 2005 ND 155, ¶ 12, 704 N.W.2d 8. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined in the code or unless the drafters clearly intended otherwise. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-09.1. If the language of a statute is clear and unambiguous, “the letter- of the statute cannot be disregarded under the pretext of pursing its spirit.” N.D.C.C. § 1-02-05. A statute is ambiguous if it is susceptible to different, rational meanings. Amerada, at ¶ 12. If the language is ambiguous or doubtful in meaning, the court may consider extrinsic aids, such as legislative history, to determine legislative intent. N.D.C.C. § 1-02-39.

A

[¶ 13] Parents have a mutual duty to support their children. N.D.C.C. § 14-09-08. In this case, the parents have split custody of their two children and a support obligation has been set for each child. Split custody occurs when parents have more than one child in common and each parent has physical custody of at least one child. N.D. Admin. Code § 75-02-04.1-01(11). Section 75-02-04.1-03, N.D. Admin. Code, sets out the procedure for determining each parent’s child support obligation when split custody is ordered:

Determination of child support obligation — Split custody. A child support obligation must be determined for the child or children in each parent’s custody. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation.

The language of the regulation does not support the State’s position that the offset does not apply when one parent assigns the right to receive support to the State. Section 75-02-04.1-03, N.D. Admin. Code, applies in all split custody cases to determine the parents’ child support obligation and does not provide an exception when a parent assigns the right to receive support to the State.

[¶ 14] Even if we were to agree with the State that the provision is ambiguous, the rulemaking history does not support the State’s position. Section 75-02-04.1-03, N.D. Admin. Code, was amended in 2003, before that amendment, it .provided:

Determination of support amount — Split custody. A support amount must be determined for the child or children in each parent’s sole custody. The lesser amount is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation.

[¶ 15] The history for the 2003 amendment is particularly relevant. The regulation was amended to clarify that each parent has a “child support obligation” and that the “amount owed” was not the sole obligation. Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, p. 13 (May 29, 2002). Before the regulation was amended there was some confusion about whether the “amount owed” was the sole child support obligation. Id. at 13-14. The Child Support Guidelines Drafting Committee (“the Committee”) recognized that in split custody cases both parents owe a support obligation and the monthly “amount owed” is not the sole obligation. Id. at 14. The Committee also recognized the offset is used simply for the convenience of the parents. Id.

[¶ 16] While considering revision of the language of the split custody regulation to clarify that both parents have a child support obligation, the Committee was aware that problems may arise when one parent assigns the right to receive child support to the State in exchange for TANF benefits. Id. at 13. The Committee knew the regulation did not specifically address the situation and that there may be some confusion in determining the parents’ child support obligations during the time when one parent receives TANF benefits. Id. at 13-14. The Committee considered recommending adoption of language that would have provided for an exception to the offset provision when one parent assigns the right to receive support to a “governmental entity.” Id. at 15; Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, p. 2 (June 6, 2002). The Committee decided not to recommend that language because of possible problems when the offset is not applied, including the fluctuating monthly amounts of child support the parents would pay, how parents would receive notice of the change in the monthly payment, and the consequences when one parent could not pay his or her obligation. Id. at 3-4.

[¶ 17] “It must be presumed that the Legislature intended all that it said, and that it said all that it intended to say.” Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993). If the Committee had intended to preclude application of the offset when one party assigns the right to receive support, the Committee would not have rejected the assignment language, or the Committee would have clarified that the regulation already addressed the assignment issue. The Committee’s rejection. of the assignment language supports a conclusion that the drafters of the regulation intended that the offset provision apply to all split custody cases.

[¶ 18] The State’s position also is not consistent with historical application of the regulation. Before the regulation was amended, the offset was applied in all split custody cases, whether or not one parent assigned the right to receive support. Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, p. 3 (June- 6, 2002). The 2003 amendment was specifically intended to clarify that each parent has a child support obligation and the difference in the amount owed was not the sole obligation; there is no indication that the drafters of the amended regulation intended to change the application, of the rule. In fact, the Committee specifically rejected language that would have provided an exception to the offset provision. COiitinuing to apply the offset when one parent -assigns to the State the right to support allows for consistency in application of the regulation.

[¶ 19] The State also argues deference should be given to the agency’s reasonable interpretation of its own regulation. An administrative agency’s interpretation of a statute is entitled to deference if the statute is complex and technical in nature, or if the statute is reenacted after a contemporaneous and continuous construction of the statute by the administrative agency. State ex rel. Clayburgh v. American West Community Promotions, Inc., 2002 ND 98, ¶ 7-9, 645 N.W.2d 196. Neither of these conditions exist in this case. The administrative regulation is not complex and technical in nature, and the regulation was not reenacted after contemporaneous and continuous construction by an administrative agency. In this case, the agency interpretation is given much less weight, because the question is purely one of interpretation of the regulation dependent only on accurate comprehension of legislative intent. Id. at ¶ 7.

[¶ 20] We conclude the offset provision of N.D. Admin. Code § 75-02-04.1-03 applies in all split custody cases, regardless of whether one parent has assigned the right to receive support to the State as reimbursement for TANF benefits. '

B

[¶ 21] Section 75-02-04.1-08.2, N.D. Admin. Code, adopted in 2003, outlines the method for determining child support when parents have equal custody:

Equal physical custody — Determination of child support obligation. A child support obligation must be determined as described in this section in all cases in which a court orders each parent to have equal physical custody of their child or children. Equal physical custody means each parent has physical custody of the child, or if there are multiple children, all of the children, exactly fifty percent of the time. A child support obligation for each parent must be calculated under this chapter assuming the other parent is the custodial parent of the child or children subject to the equal physical custody order. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation. Each parent is an obligee to the extent of the other parent’s calculated obligation. Each parent is an obligor to the extent of that parent’s calculated obligation.

[¶ 22] The Committee recommended adoption of this section in response to this Court’s conclusion that the chüd support guidelines failed to address child support obligations when parents have equal custody. Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, p. 17-18 (June 6, 2002); see Knutson v. Knutson, 2002 ND 29, ¶ 20, 639 N.W.2d 495 (stating the guidelines did not address equal custody). The Committee used the split custody regulation as a guide for drafting the recommended equal custody regulation and decided the same procedure for calculating support obligations should be used in both cases to provide consistency in the guidelines. Minutes of the Department of Human Services Child Support Guidelines Drafting Advisory Committee, p. 6 (June 11, 2002). The Committee based the offset provision of N.D. Admin. Code § 75-02-04.1-08.2 on the offset provision of N.D. Admin. Code § 75-02-04.1-03 and intended the sections be applied in a consistent manner. We therefore construe the provisions similarly, and we conclude the offset provision of N.D. Admin. Code § 75-02-04.1-08.2 applies in all equal custody cases, including cases when one parent receives TANF benefits and assigns the right to receive child support to the State.

Ill

[¶ 23] We hold the offset provisions of N.D. Admin. Code §§ 75-02-04.1-03 and 75-02-04.1-08.2 apply to the parents’ child support obligations when one parent assigns the right to receive child support to the State as reimbursement for the TANF benefits received. We therefore conclude the district court correctly applied the child support guidelines, and we affirm the district court’s judgment.

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