text:
    Marilynn PODRUCH, individually and on behalf of all others similarly situated, Appellant, v. STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, et al., Respondents.
    No. A03-809.
    Court of Appeals of Minnesota.
    Feb. 10, 2004.

      Neil Peter Thompson, John J. Curi, Minneapolis, MN, for appellant.
    Steven B. Liss, Nancy J. Joyer, Assistant Attorneys General, St. Paul, MN, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge; KLAPHAKE, Judge; and ANDERSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This lawsuit challenges the fee charged by the respondent Commissioner of Public Safety for parking privileges for the physically disabled under Minn.Stat. § 169.345, subd. 3 (2000). Appellant alleges that the fee is an unfair discriminatory practice under the Minnesota Human Rights Act (MHRA), specifically Minn.Stat. § 363.03, subd. 3 (2000). In two separate orders, the district court ruled that (a) the fee violated the MHRA but no injunction was necessary because the state had ceased to charge the fee; and (b) the state and the commissioner were not liable because they were protected by official and vicarious official immunity. Because we conclude that imposition of the fee was a discretionary act and legally reasonable, we affirm the district court’s decision to dismiss the action on the basis of official and vicarious official immunity.

FACTS

Appellant Marilynn Podruch brought this action on August 2, 2002, alleging that the fee charged for a disability parking certificate for permanently disabled individuals violated the Minnesota Human Rights Act (MHRA), specifically Minn. Stat. § 363.03, subd. 3 (2000), and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 (2002). Podruch later withdrew the ADA claim, leaving only the MHRA claim, and stated to the district court that the case could be decided “solely on state law.”

Podruch originally paid five dollars for a six-year permanent disability parking certificate in October 1993. By displaying the certificate, Podruch could park in designated parking spaces for disabled persons and in certain metered and non-metered parking spaces without the obligation to pay the meter fee and, in some cases, without time restrictions. See Minn.Stat. § 169.345, subd. 1 (2000). Twice Podruch paid five dollars for a replacement certificates, once in 1997 and once in 2001.

The five dollar fee was initially imposed by the Director of Driver and Vehicle Services of the Minnesota Department of Public Safety in 1987. See 1987 Minn. Laws ch. 355, § 7. The Minnesota State Council for the Handicapped, now known as the Minnesota Disability Council, sponsored the legislation allowing for imposition of the fee for the purpose of strengthening the state’s preferential parking program for persons with a disability by imposing a six-year expiration date on the certificates. Effective February 1, 2002, respondent Commissioner of Public Safety discontinued charging a fee for certificates and replacement certificates issued to persons with permanent disabilities.

On the parties’ cross-motions for summary judgment, the district court ordered summary judgment for Podruch on her claim that the disability parking certificate fee violated the MHRA, but denied her request for injunctive relief because respondents had already ceased to charge the fee. Subsequently, the court determined Podruch’s motion for class certification was moot, denied her motion for sanctions, and granted respondents’s motion to dismiss on the basis of official and vicarious official immunity. The district court denied Podruch’s motion to reconsider. Podruch appealed, and respondents filed a notice of review.

ISSUES

Did the district court correctly conclude that the Commissioner of Public Safety and the State of Minnesota were protected from the Minnesota Human Rights Act claim based on official and vicarious official immunity?

ANALYSIS

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. Here, the material facts are undisputed.

The district court granted summary judgment for respondents Commissioner of Public Safety and State of Minnesota on the basis of official and vicarious official immunity. Podruch argues that the court’s ruling that respondents violated the Minnesota Human Rights Act (MHRA), specifically Minn.Stat. § 363.03, subd. 3 (2000), by charging the fee precludes the official immunity defense.

The applicability of immunity is a question of law, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn.1996). The party asserting immunity has the burden of showing particular facts that indicate entitlement to immunity. Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 209 (Minn.App.2001), review denied (Minn. Dec. 11, 2001).

Official immunity may apply to claims under the MHRA, depending on the nature of the governmental duty being discharged by the defendants. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn.1994). The doctrine of official immunity protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a willful or malicious wrong. Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn.1988). Official immunity primarily is “intended to insure that the threat of potential personal liability does not unduly inhibit the exercise of discretion required of public officers in the discharge of their duties.” Holmquist v. State, 425 N.W.2d 230, 233 n. 1 (Minn.1988).

Podruch concedes that the commissioner’s decision to charge a fee for disability parking certificates was a discretionary act. The statute authorizing the contested fee, Minn.Stat. § 169.345, subd. 3 (2000), has provided since 1987 that the commissioner “may charge a fee of $5” for a disability parking certificate. 1987 Minn. Laws ch. 355, § 7. Nevertheless, Podruch contends that the commissioner’s decision to impose the fee constituted a willful or malicious wrong.

In deciding whether an official has committed such a wrong, the court will examine “whether the official has intentionally committed an act that he or she had reason to believe is prohibited.” Beaulieu, 518 N.W.2d at 571-72. When an official shows that the conduct was objectively legally reasonable, there is no malice. See Rico v. State, 472 N.W.2d 100, 108 (Minn.1991); see also Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309 (Minn.App.1997) aff'd in part, 582 N.W.2d 216 (Minn.1998) (official immunity does not bar suit if official acted without legal reasonableness and violated known right).

Podruch argues that respondents should have known that imposition of a fee “post-1992” was illegal after Congress enacted the Americans with Disabilities Act, 42 U.S.C. § 12101(ADA), and the Minnesota Legislature codified a part of the ADA in the MHRA, Minn.Stat. § 368.03, subd. 3. We conclude the commissioner had no reason to believe that the fee was prohibited or that the legislature lacked authority to allow a fee.

Since 1975, the disabled have been a protected class under the MHRA and it has been an unfair discriminatory practice to deny “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of ... [a] disability.” 1975 Minn. Laws ch. 206, § 2. In 1973, the legislature expressly protected from the broad anti-discrimination prohibitions of MHRA “any program, service, facility, or privilege afforded to a person with a disability which is intended to habi-litate, rehabilitate, or accommodate that person.” 1973 Minn. Laws ch. 729, § 2 (codified at Minn.Stat. § 363.02, subd. 5 (2002)). This disability exemption provision ensures that the state may engage in preferential practices intended to accommodate the disabled. While the parties dismiss this exemption provision as inapplicable, we conclude it exempts programs, such as the state’s parking privileges program for the disabled, from attack as an unfair discriminatory practice.

Provisions in the ADA, specifically 42 U.S.C. § 12182(b), and identical provisions codified in the MHRA, Minn.Stat. § 363.03, subd. 3(b), also exempt from the general prohibitions against discrimination those programs necessary to provide accommodations as effective to the disabled as those available to the general public. The statutes state that it is discriminatory to: (1) subject the disabled to a denial of the opportunity to benefit from services, facilities, and accommodations; (2) afford the disabled with the opportunity to benefit from services, facilities, and accommodations “that are not equal to those afforded to other individuals”; and (3) provide the disabled with services, privileges, and accommodations that are different or separate from those provided to other individuals. 42 U.S.C. § 12182(b)(1)(A)®, (ii) & (iii); Minn.Stat. § 363.03, subd. 3(b)(1)®,(ii) & (iii). Reservation of the closest parking spaces to public accommodations to guarantee access to those accommodations by the disabled cannot be construed as one of the first two types of discriminatory practices. The program does not constitute either (1) a “denial of the opportunity ... to participate in or benefit from” facilities or accommodations or (2) an opportunity to participate in or benefit from “accommodations that are not equal to those afforded to other individuals.” See Minn.Stat. § 363.03, subd. 3(b)(1)®, (ii); Minn.Stat. § 645.17 (2002) (stating that legislature does not intend absurd result). Although the reserved parking spaces fall within the third type of discriminatory practice, because they are accommodations “different and separate from those provided to other individuals,” such “discriminatory” accommodations are specifically allowed where necessary to provide the disabled with “goods, services, facilities, privileges, advantages, or accommodations or other opportunities that are as effective as those provided to others.” Id., subd. 3(b)(l)(iii). Read in conjunction, Minnesota’s laws providing for parking privileges for the disabled and prohibiting unfair acts of discrimination do not clearly prohibit the five dollar fee charged by the commissioner. Accordingly, it was legally reasonable for the commissioner to charge the fee.

Despite Podrueh’s dismissal of all federal claims from this action, she urges this court to follow ADA caselaw and regulations to conclude the fee charged by the commissioner was a clear violation of an established right. Absent a claimed constitutional violation or statutory violation of the ADA, there is no basis for delving into federal law to resolve this state law immunity issue. Podruch’s heavy reliance on an ADA decision, Dare v. State of California, 191 F.3d 1167 (9th Cir.1999), is, in any event, misplaced. The Dare court held that California’s six dollar surcharge on disability parking placards violated the ADA. At issue, however, was an ADA provision that was not adopted in the MHRA. See Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn.2002) (stating that Minnesota courts may depart in interpretations when provisions of state and federal laws are not similar). Similarly, the Dare court’s holding pertained to access to public buildings, not access to public accommodations as alleged in this lawsuit. Id. at 1172-73.

As the record contains no facts showing malice, this action against the commissioner was barred under the doctrine of official immunity. Whether to apply official immunity vicariously is a policy question. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn.1992). Generally, when official immunity applies to the employee, vicarious. official immunity applies to the employer. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316(Minn.1998). Here, there is no reason for treating the state differently from the commissioner. Both should be allowed to exercise their discretion to maintain a disability parking certificate program without threat of an action attacking their performance. Therefore, the district court did not err in its ruling that the state was immune from liability.

DECISION

Because the commissioner’s decision to impose a fee for the disability parking certificate was discretionary and without malice, the commissioner had official immunity from this MHRA action. For the same reasons, immunity for the state was vicarious. Because the commissioner and state were immune from liability, appellant’s MHRA claim is barred, and we need not decide whether imposition of the fee violated the MHRA.

Affirmed.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2004 ND 25
    In the Interest of J.P. and D.P., Children Ruby Knoll, L.S.W., Petitioner and Appellee v. K.B., Respondent and Appellant P.P., J.P., D.P., Three Affiliated Tribes, and Monty Mertz, Guardian ad Litem, Respondents.
    Nos. 20030117, 20030118.
    Supreme Court of North Dakota.
    Jan. 28, 2004.

      Susan Lynne Bailey, Assistant State’s Attorney, Cass County Social Services, Fargo, N.D., for petitioner and appellee.
    Douglas W. Nesheim, Fargo, N.D., for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] K.B. appeals a juvenile court order affirming a juvenile court referee’s order terminating her parental rights with respect to J.P. and D.P. We affirm.

I

[¶ 2] K.B. is the mother and P.P. is the father of J.P. and D.P., who are Indian children born in 1997 and 1998. In April 2001, K.B. and P.P. admitted the children were deprived and a juvenile court referee found they were deprived, due to a history of child protection involvement since 1997, chemical dependency of both parents, whose chemical use had been detrimental to the children, and KB.’s conviction of a violent crime and resulting incarceration. The children were placed in the legal custody of Cass County Social Services and in the physical custody of P.P. Both parents were ordered to cooperate with treatment plans.

[¶ 3] In July 2001, the proceedings were transferred to Three Affiliated Tribes. P.P. returned care of the children to K.B. in August 2001. The children were removed from K.B.’s care on October 25, 2001. In an order issued January 18, 2002, a juvenile court referee again found the children were deprived, ordered the children “removed from their own home and placed into the full care, custody and control of the County Director of the Cass County Social Services Board,” and ordered the parents to comply with treatment plans in an effort to reunite them with the children. On February 4, 2002, K.B.’s probation was revoked and she was incarcerated.

[¶ 4] On May 31, 2002, Ruby Knoll, an employee of Cass County Social Services, filed a petition for termination of the parental rights of K.B. and P.P. with respect to J.P. and D.P. After a hearing, a juvenile court referee found, among other things:

5. The children ... have been most recently in foster care continuously since October 25, 2001. [J.P.] and [D.P.] have been in foster care for more than 450 of the previous 660 nights.
7. Numerous family service plans to remedy the deprivation [were] developed with the mother and the father by Cass County Social Services toward the goal of reunification. Parents’ compliance or progress has not been satisfactory. Active efforts have been made to reunify these children with their parents.
10. There is clear and convincing evidence that [J.P.] and [D.P.] are deprived children in that [K.B.] is currently incarcerated and unavailable to parent the children, that [K.B.] has mental health, chemical dependency, and anger/behavior/domestic violence issues that have not been satisfactorily resolved and which currently and in the foreseeable future adversely affect her ability to adequately parent the children ... this deprivation is likely to continue; and that the deprivation will continue to cause harm to the child.
12. There is clear and convincing evidence that Ward County Social Services, Cass County Social Services, and Three Affiliated Tribes’ Social Services have provided services to the parents in an attempt to remedy the causes of the deprivation, that these attempts have not only been active and reasonable, but have exhausted all that is available and appropriate. That there is no basis to believe that there will be any significant improvement in the ability of the parents if given more time. That it is likely that the causes of the deprivation will not end and cannot be remedied in a time frame that is reasonable to make these children wait.
13. The state has proven, by clear and convincing evidence, all of the necessary elements for the termination of parental rights of the parents [K.B.] and [P.P.] with respect to [J.P.] and [D.P.].
14. The state has proven beyond a reasonable doubt that the continued custody of the children, [J.P.] and [D.P.], by [K.B.] and/or [P.P.] will likely result in serious emotional or physical damage to the children.

[¶ 5] On February 14, 2003, the juvenile court referee ordered termination of K.B.’s parental rights with respect to J.P. and D.P. K.B. requested judicial review of the referee’s order. On March 18, 2003, the juvenile court issued an order affirming the referee’s order. K.B. appealed, contending (1) the petitioner failed to prove by clear and convincing evidence that the deprivation, was likely to continue; (2) the evidence does not support the finding that there is no reasonable doubt the children would likely suffer harm if her parental rights were not terminated; (3) there was not clear and convincing evidence that active efforts were made to preserve this Indian family; and (4) the district court erred in deciding termination was justified because the children had been placed outside their home for 450 of the previous 660 nights.

II

[¶ 6] Section 27-20-44(l)(b), N.D.C.C., authorizes the juvenile court to terminate a person’s parental rights with respect to a child, if:

The child is a deprived child and the court finds:
(1) The conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; [or]
(2) The child has been in foster care, in the care, custody, and control of the department, or a county social service board ... for at least four hundred fifty out of the previous six hundred sixty nights.

Section 27-20-02(8)(a), N.D.C.C., defines a deprived child as a child “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” Because J.P. and D.P. are Indian children, the parental termination proceeding is also subject to 25 U.S.C. § 1912, a part of the Indian Child Welfare Act, which provides, in part:

(d) Remedial services and rehabilitative programs; preventative measures
Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
(f) Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

[¶ 7] Those state and federal provisions create a dual burden of proof for a party seeking to terminate the parental rights of a parent of an Indian child. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678. “Under N.D.C.C. § 27-20-44(1)(b)(1) the juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm.” In re D.Q., 2002 ND 188, ¶ 19, 653 N.W.2d 713. A party seeking termination of parental rights must prove all the necessary elements by clear and convincing evidence. Id. Under 25 U.S.C. § 1912(d), a petitioner must demonstrate, “by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful.” In re M.S., at ¶ 18. Under 25 U.S.C. § 1912(f), a petitioner must prove continued custody of a child by a parent or Indian custodian is likely to result in serious emotional or physical damage to the child by proof beyond a reasonable doubt. Id. at ¶ 4.

[¶ 8] “ ‘A judicial referee’s conclusions of law are fully reviewable in the district court, and the district court’s conclusions of law are fully reviewable upon appeal to this Court.’ ” In re A.B., 2003 ND 98, ¶ 4, 663 N.W.2d 625 (quoting In re D.Q., 2002 ND 188, ¶ 8, 653 N.W.2d 713). Under N.D.C.C. § 27-50-56, our review of a juvenile court’s order is similar to a trial de novo. In re A.B., 2003 ND 98, ¶ 4, 663 N.W.2d 625, petition for cert. filed, 72 USLW 3393 (2003). We independently review the evidence, affording the juvenile court’s findings appreciable weight, although we are not bound by them. Id.

Ill

[¶ 9] KB. contends there is not clear and convincing evidence the deprivation was likely to continue or that active efforts were made to preserve this Indian family, and she contends the determination that continued custody of the children by KB. was likely to result in serious emotional or physical damage to the children was not supported by evidence beyond a reasonable doubt. We reject KB.’s contentions.

[¶ 10] Jane Austenson, a domestic violence counselor, testified: (1) In April 2001, she did an assessment of K.B. and recommended “extensive and intensive therapy”; (2) ‘Without extensive, intensive counseling and therapy [domestic violence and assaultive behavior] will not change”; and (3) “[0]ur program for domestic violence counseling is a minimum of twenty four weeks, two hours a week.”

[¶ 11] Ruby Knoll, a licensed social worker for Cass County Social Services, testified: (1) She has “been the case manager while the children have been in foster [c]are”; (2) The children first came into foster care in March of 2001, when K.B. “became intoxicated and hit a parked car, resulting in her being put in jail”; (3) K.B. was placed on probation; (4) “When she got out of jail she maintained semi-regular visitation” between March and July of 2001; (5) On October 25, 2001, KB. “had been involved in a domestic violence situation ... and she was incarcerated”; (6) Between October 25, 2001, and April 5, 2002, K.B. had three visits with the children; (7) There were no more face-to-face visits at the James River Correctional Center after April 5, 2002, because “[t]he children’s therapist recommended because of their behavior that was exhibited in therapy sessions as well as in the foster homes that no further face to face visits at that time take place”; (8) It is very rare for a person to address chemical dependency issues without assistance or programing; (9) J.P. and D.P. have been in custody of Cass County Social Services continuously since October 25, 2001; and (10) “It was just difficult to work with K.[B.], because she was not always forthright.”

[¶ 12] Sandra Webster, a licensed addiction counselor, testified she did a chemical dependency evaluation of K.B. on April 10, 2001, and worked with her until June 26, 2001. She testified K.B. “has an addiction here with cannabis dependence, cocaine dependence in remission, alcohol dependence and nicotine dependence. And there was also a prior diagnosis of major depressive disorder” and “also a couple of personality disorders that was diagnosed, anti-social personality disorder, avoidance disorder.”

[¶ 13] Holly Hegstad, a clinical psychologist, testified: (1) “I conducted psychological testing and review and history of collateral interviews. I wasn’t able to finish the interview portion of the evaluation” because K.B. missed an interview and didn’t reschedule; (2) “[I]f you want to find out if an individual is going to be able to follow through in treatment you look at their treatment history”; (3) For K.B. “to be able to be the sole custodial parent of her small children,” would require “com-pletfing] the treatment that she had not completed, psyehiatrically following through with the medication ... [following through with the addiction after care ... [following through with the parenting issues with social services so she can improve her parenting skills,” and “addressing the anger so she can learn how to communicate in conflicts without reverting to violence or passive/aggressive behaviors”; and (4) “[F]or most people incarceration is a very different experience than trying to maintain sobriety and manage the responsibilities of life outside of jail or prison.”

[¶ 14] Rachelle Wallick, who became KB.’s probation officer on September 18, 2000, when K.B. was on probation for aggravated assault, testified: (1) K.B. also was convicted of disorderly conduct on July 24, 2000, in a domestic violence incident; (2) “Following through with probation requirements was really not something that was of a high priority to her.... [S]he would not attend any anger management sessions of assault resolution. ... She also stated she was involved in a jobs program at social services, but wasn’t looking .for any employment”; (3) She was arrested in Cass County for driving under the influence of alcohol on March 3, 2001; (4) Between June 2000 and March 30, 2001, K.B. did not complete a chemical dependency evaluation, although that was one of the conditions of her probation; (5) Between March 30 and July 25, 2001, KB. did complete a chemical dependency evaluation; (6) From the time she got out of prison in June of 2000, until June 2001, KB. “made very little to no progress on the terms of her probation”; (7) On October 25, 2001, K.B. was arrested for disorderly conduct arising from a domestic dispute with her brother while they were consuming alcohol; and (8) After a probation revocation hearing on February 4, 2002, K.B.’s probation was revoked and she was remanded to the Department of Corrections for two years.

[¶ 15] Noreen Hoots, a Cass County Social Services licensed social worker, testified: (1) She was involved with K.B. from March 2001 to June 2002; (2) There was a treatment plan in place from July through October 2001, but KB. “was very uninvolved with social services”; and (3) K.B. was being provided the following services in the summer and fall of 2001:

She would attend [chemical dependency] treatment at Southeast two times a week beginning July 2nd ... she would undergo intensive individual therapy with Southeast on a weekly basis ... that she would work with a parent aide with Cass County Social Services on a regular basis in regards to parenting education, demonstrating and learning proper parenting techniques involving home rules ... and she would participate in a parental capacity.

KB. failed to follow through with the services.

[¶ 16] Bonnie Erickson, a case manager in the alcohol and drug unit at Southeast Human Services and a licensed social worker, testified: (1) From July 2001 until December 2001, she co-facilitated a relapse prevention group K.B. was in; (2) Relapse prevention groups met two days a week and people were expected to attend every meeting; (3) K.B. attended 10 of 23 group sessions from July 2001 through December 2001; and (4) K.B. did not “successfully complete relapse prevention.”

[¶ 17] Denise Duke, a licensed psychologist, testified she has worked as a therapist for J.P. and D.P. since February 2002, meeting with them at least every two weeks. Duke testified: (1) She did an assessment of J.P. when J.P. was 4 years and 9 months old, and found “factors of depression, anxiety and thought confusion were in the clinical range”; J.P. “tends to be, needs to be bossier, in control of the situation,” with “sometimes quite a bit of pouting and difficulty, irritability, moodiness at times, explosiveness” and J.P. “would kind of scream at the top of her lungs if either an adult or even the brother didn’t respond fairly quickly to her. And that level of screaming again is somewhat immature and unusual for a child her age”; (2) J.P. “needed a very consistent and stable home life situation”; (3) J.P. likely has experienced post-traumatic stress disorder and a reactive-attachment disorder; and (4) “[S]he will continue to need fairly intensive work ... in the area of both post-traumatic disorder, as well as the reactive attachment disorder. And also in regards to the mood disorder.... I would likely perceive her needs through adulthood.”

[¶ 18] Duke testified she assessed D.P. when he was about 3½ years old, finding D.P. “was extremely cautious, guarded” and “serious for a child his age,” and “had kind of this blood curdling scream” if he did not get his way, was “aggressive in his interactions” and “has had quite a significant difficultly in day care settings and with other children.” She diagnosed D.P. with “mood disorder, not otherwise specified, with anxiousness and depressed features ... reactive attachment disorder, inhibited type,” and “post traumatic stress disorder.” She further testified: ■

In regard to D.[P.] ... its more likely or its likely that mood difficulties and even explosive behaviors and other difficulties will likely follow him into his elementary school year, likely into adolescence ... there is going to need to be intensive attachment disorder work for him.... And that I would imagine he could also be a candidate who would need to have psychiatric follow through. And there are children with this background at such an early age it isn’t unusual that sometime in their lives as either a child or adolescen[t] they could end up needing inpatient hospitalization or residential treatment. So we would need to expect that there is a, that he and J.[P.], are actually both at high risk for the need for fairly intensive work throughout their childhood.

Duke testified J.P. and D.P. would be harmed by a return to an unstable environment; and “it would be to the. children’s advantage to remain currently in their setting and establish further stability and consistency in their treatment.”

[¶ 19] Ruth Denton-Graber, KB.’s primary therapist from August 2000 until August 2001, at Southeast Human Services Center, testified: (1) K.B. met with a psychiatrist, but only for medication management, not therapy; (2). “Over the period of a year we had nine appointments scheduled. She attended four of them. She attended two additional ones, but her children were along, and its very difficult to do therapy with children present”; and (3) Throughout her relationship with K.B., KB. did not successfully address any issues.

[¶ 20] Joelyn Foote, who is employed by the Three Affiliated Tribes Social Services Program, and is the Indian Child Welfare Act Specialist, testified: (1) The Tribe was first notified of custody issues involving the, children in 2000 in Ward County; (2) In March of 2001, the Tribe intervened in foster care proceedings in Cass County; (3) When a new proceeding was started in Cass County, the Tribe did not move to intervene; (4) The Tribe has been satisfied with the children’s placement; (5) “The patterns'of behavior of the parents, and the child rearing” are not “consistent with approved- traditions or customs of the Tribe.”

[¶ 21] Renae Rousseau, a former Tribal Judge and retired Director of the Child Protection Program for the Sisseton-Wah-peton Sioux Tribe, testified: (1) She was first asked to be a consultant on this case in June 2002; (2) She did an independent investigation, reviewed documents, and heard the testimony in this proceeding; (3) “Cass County Social Services made active efforts to provide remedial services to the parents, in accordance. with ICWA”; (4) The parents have not “availed themselves of all the services offered to them,” and “to effectuate a reunification there would have to be efforts made on the part of the parents”; (5) The behavior of the parents did not comport with Tribal customs; (6) Returning custody of the children to KB. “is likely to result in serious emotional harm to the children”; (7) “These children need to be in a stable home environment. I[] believe if they were returned to the parents that the trauma they have been exposed to will continue.... And because its not our tradition, its not in our culture to victimize and traumatize our children”; (8) These parents have been provided ample opportunities to address their issues and shortcomings as parents and have not demonstrated that they are willing to work on their addictions and put the children ahead of their addictions; and (9) The parents have not had any sustained follow through with any of the programs.

[¶ 22] K.B. testified: (1) Her maximum release date from incarceration is January 24, 2004; (2) She has completed an anger management class and is in a domestic violence and survivor’s group; (3) The anger management class she completed was 8 or 10 weeks and was required by her sentencing; (4) She is currently in a domestic violence program; (5) “I have a diagnosed avoidance personality disorder. I have major depressive disorder and antisocial personality disorder. I have anxiety problems”; and (6) She is in a domestic violence program dealing with perpetrators.

[¶ 23] Thus, there was evidence about K.B.’s conduct and incarceration, evidence about existing harm sustained by the children and their present needs, prognostic evidence relevant to determining the likelihood of the children’s continuing deprivation in K.B.’s care, prognostic evidence about the children’s future treatment needs, evidence about unsuccessful efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of this family, and evidence about the likelihood of serious emotional or physical harm to the children with continued custody by K.B. Those kinds of evidentiary subjects are relevant considerations in a proceeding to determine if an individual’s parental rights should be terminated. See, e.g., In re D.Q., 2002 ND 188, 653 N.W.2d 713; In re M.S., 2001 ND 68, 624 N.W.2d 678.

[¶ 24] We conclude there was clear and convincing evidence “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful,” 25 U.S.C. § 1912(d), and “[t]he conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the ehild[ren][are] suffering or will probably suffer serious physical, mental, moral, or emotional harm,” N.D.C.C. § 27-20-44(l)(b)(l). We further conclude the foregoing evidence supports the referee’s determination “[t]he state has proven beyond a reasonable doubt that the continued custody of the children” by K.B. “will likely result in serious emotional or physical damage to the children,” as required by 25 U.S.C. § 1912(f).

IV

[¶ 25] In light of our conclusions that unsuccessful active efforts to prevent the breakup of the Indian family were made and the deprivation was likely to continue were proved by clear and convincing evidence, and that K.B.’s continued custody of J.P. and D.P. will likely result in serious emotional or physical damage to the children was proved by evidence beyond a reasonable doubt, we need not determine if the juvenile court erred in determining termination of KB.’s parental rights with respect to J.P. and D.P. was justified under alternative grounds because the children had been placed outside KB.’s home for 450 of the previous 660 nights.

V

[¶ 26] The juvenile court order affirming the juvenile court referee’s order terminating KB.’s parental rights with respect to J.P. and D.P. is affirmed.

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

      . The order also terminated the parental rights of P.P., but he is not a party in this appeal.


author: SANDSTROM, Justice.

text:
    2004 ND 30
    STATE of North Dakota, Plaintiff and Appellee v. Brian BOLLINGBERG, Defendant and Appellant.
    Nos. 20020348-20020350.
    Supreme Court of North Dakota.
    Jan. 28, 2004.

      Kathleen K. Trosen, State’s Attorney, Fessenden, N.D., for plaintiff and appellee.
    Steven M. Light of Larivee & Light, Grand Forks, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Brian Bollingberg is appealing from a Southeast Judicial District Court criminal judgment and commitment after a jury convicted him of a class A misdemeanor and two class B felonies for deceptive writings. Brian Bollingberg argues the district court erred in denying his motion to suppress evidence he claims was obtained in violation of the Fourth Amendment. He also argues the district court erred in denying his motion for judgment of acquittal on the misdemeanor count. Because Bollingberg’s motion to suppress was properly denied, we affirm.

I

[¶ 2] In January 2001, two separate complaints were filed, each charging Brian Bollingberg with deceptive writings. In April 2001, another complaint was filed, charging Bollingberg with the same. The charges against Bollingberg arose from his separate dealings with two individuals. His felony charges arose from dealings with Delmer Sukut, who had filed a civil suit against Bollingberg regarding missing cattle he had left at Bollingberg’s place. Bollingberg’s answer to the civil suit included two bills of sale listed as exhibit A and exhibit B, now State’s exhibits 3 and 4. These documents were signed; however, the signatures were forged. The documents purported to be signed by Sukut; however, he testified he had not signed these documents.

[¶ 3] The misdemeanor charge arose from dealings with Alan Klain and Jayson Walker. Klain and Walker purchased thirty head of cattle from Bollingberg for $875 per head and were informed the cattle should all give birth in May 2000. A bill of sale was given in exchange for the payment. Eight of the cows did not give birth, and Bollingberg told Klain and Walker he would exchange the cows for cow-calf pairs. Klain and Walker dropped off their cows but did not receive the cow-calf pairs. They did, however, receive $550 for each cow they returned. A signed bill of sale was sent with this payment. The bill of sale contained what purported to be Klain’s signature; however, Klain testified he had not signed the bill of sale.

[¶ 4] In June 2001, Fred Frederikson, the East River Fieldman for the North Dakota Stockmen’s Association, applied to the Southeast Judicial District Court for a search warrant to search the premises, outbuildings, vehicles, and curtilage at Brian Bolhngberg’s residence (15 County Highway 5, Bremen, County of Wells, North Dakota); to search for all books and records relating to the sale or lease of cattle, including computer records and branding irons and tags; and to search for all evidence relating to the creation of deceptive, traced, forged, or altered writings. Frederikson investigates illegal activities relating to livestock within the State of North Dakota.

[¶ 5] In his affidavit, Frederikson alleged he received a complaint from Sukut about missing cattle kept at Bollingberg’s farm. The affidavit alleged Bollingberg failed to make contract payments to Sukut and a civil collection action was pending between the parties. Frederikson further alleged that Sukut claimed his signatures on several exhibits attached to Bolling-berg’s answer in the civil action were forged. He alleged these documents had been submitted to a handwriting expert who concluded it was probable they were traced forgeries. He alleged he has been in the personal residence of Bollingberg and has observed cattle business records at the residence on prior occasions. He stated that he believed there was probable cause’to search the premises, outbuildings, vehicles, and curtilage at Bollingberg’s residence.

[¶ 6] The search warrant stated there was probable cause to believe the property so described was being concealed at the outbuildings, vehicles, and curtilage at Brian Bollingberg’s residence, and it authorized a search of the same. The probable cause and command portions of the search warrant did not mention premises.

[¶ 7] On June 27, 2001, Frederikson and numerous other law enforcement officers searched Bollingberg’s house, and several items of evidence were taken, including State’s exhibit 14, a bill of sale signed by Alan Klain; State’s exhibit 16, a blank bill of sale; State’s exhibit 17, Boll-ingberg’s computer; State’s exhibit 53, a brand release book; and State’s exhibit 54, a brand release book.

[¶ 8] On March 26, 2002, Bollingberg moved to suppress the evidence found in his house. On April 4, 2002, a suppression hearing was held, and Bollingberg’s motion to suppress was denied. During the trial on the charges for deceptive writings, Boll-ingberg moved for a judgment of acquittal on the.misdemeanor charge because he felt a reasonable person could not conclude his conduct exhibited intent to deceive or intent to harm. Bollingberg’s motion was denied. The jury found Bollingberg guilty of all charges. This appeal followed.

[¶ 9] The trial 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(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 10] Bollingberg argues the district court erred in denying his motion to suppress evidence found during the search of his house, because the search warrant did not provide for such a search and because the good-faith exception to the exclusionary rule did not apply in this case.

[¶ 11] The State argues Bolling-berg did not properly preserve this issue on appeal, because he misstated the date of the search and did not include a copy of the brief in support of the motion to suppress in his appendix. The State does not cite any authority to support its argument. An argument without relevant authority or citation is assumed to be without merit. Peters-Riemers v. Riemers, 2002 ND 49, ¶ 7, 641 N.W.2d 83. Further, a teleconference was held on April 4, 2002, during which the district court had an opportunity to intelligently rule on this issue. “ ‘One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.’ ” State v. Anderson, 2003 ND 30, ¶ 6, 657 N.W.2d 245 (quoting State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205). We conclude this issue was properly preserved.

[¶ 12] Bollingberg argues the search of his house exceeded the scope of the search warrant, because the command line did not provide for a search of his premises or the equivalent.

[¶ 13] When reviewing the district court’s decision on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts of testimony in favor of affirmance. State v. Tognotti, 2003 ND 99, ¶ 5, 663 N.W.2d 642. The district court’s decision is affirmed unless there is no sufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. Id. This standard recognizes the importance of the district court’s opportunity to observe the witnesses and assess their credibility, and great deference is given to the district court in suppression matters. State v. Matthews, 2003 ND 108, ¶ 8, 665 N.W.2d 28. If the review involves a question of law, it is fully reviewable on appeal. Id.

[¶ 14] The Fourth Amendment provides protection from unreasonable searches and seizures. U.S. Const. amend. IV. A search and seizure has occurred if a person has a reasonable expectation of privacy in an area searched or in materials seized. Matthews, 2003 ND 108, ¶ 10, 665 N.W.2d 28. Warrantless searches inside a person’s house are presumptively unreasonable. Id. (citing Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Generally, a search authorized by a search warrant is limited to the place described in the warrant and does not include additional or different places. State v. Erickson, 496 N.W.2d 555, 560 (N.D.1993).

[¶ 15] In this case, a search warrant was requested to search Bollingberg’s house; however, the command line of the warrant did not authorize such a search. Further, the warrant did not state there was probable cause to search the house. The search warrant stated that Frederik-son had alleged in his affidavit that the premises, outbuildings, vehicles, and curti-lage at Bollingberg’s residence contained evidence of the number and brands of cattle located at the premises; books and records relating to the sale or lease of cattle, including computer records and branding irons and tags; and evidence relating to the creation of deceptive, traced, forged, or altered writings, including computer records, which constituted evidence of a criminal offense.

[¶ 16] The search warrant stated there was probable cause to believe the property described was being concealed at the outbuildings, vehicles, and curtilage at Bollingberg’s residence. The search warrant also authorized a search of the outbuildings, vehicles, and curtilage at Boll-ingberg’s residence. The search warrant further authorized the seizure of all documents and computers relating to the foregoing for examination by law enforcement personnel.

[¶ 17] The district court concluded that the search warrant was not invalid and that a typographical error was likely the reason “premises” was not on the command line of the warrant. The court said it would have been reasonable for the officers to understand from the four corners of the document that something else needed to be searched. The district court explained that the second paragraph of the command portion of the warrant authorized seizure of computers and documents and that one would not likely find these things in outbuildings, vehicles, or curti-lage. The district court stated an officer could reasonably assume, given the top portion of the search warrant and the second paragraph of the command, that premises was implied.

[¶ 18] A court may look to other parts of the warrant to determine whether the command portion of the warrant suffers from a clerical error. State v. Delarosa, 2003 Wash.App. Lexis 2505, *4. In Delarosa, the court considered an argument similar to Bollingberg’s. Delarosa argued his motion to suppress evidence found on his person and his premises was improperly denied, because the search warrant authorized only the search of a vehicle. Id. at ⅜2. The court reasoned there was no indication of any logical reason why the court would prohibit such a search. Id. at *4-5. It stated the inference existed that the body of the warrant supported such a search and that a clerical error prevented the proper description of the premises to be searched. Id.

[¶ 19] In Bollingberg’s case, the body of the search warrant explained that the premises contained the items the authorities were to look for, including documents and computer records. The search warrant specifically authorized the seizure of all documents and computers. Also, there is no indication in the warrant to provide a logical reason to prohibit the search of the premises. These facts indicate a clerical error. The affidavit of Ted Seibel, the Wells County State’s Attorney at the time, further supports that a clerical error was made. His affidavit states he inadvertently forgot to type in premises when creating the warrant. Because the omission of “premises” from the probable-cause portion of the search warrant and from the command line was clearly a technical error, we conclude the district court did not err in concluding the search warrant was valid.

[¶ 20] Because we conclude the search warrant was valid, we need not address the good-faith exception or the State’s inevitable-discovery and harmless-error arguments.

Ill

[¶ 21] Bollingberg also argues the district court erred in failing to grant his motion for judgment of acquittal on the misdemeanor.

[¶ 22] “The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.” N.D.R.CrimJP. 29(a).

[IT 23] “In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), we do not resolve conflicts in the evidence or reweigh the credibility of the witnesses.” State v. Weaver, 2002 ND 4, ¶ 10, 638 N.W.2d 30. On appeal, this Court determines only whether there is evidence that would have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Id.

[¶ 24] “A person is guilty of an offense if, with intent to deceive or harm the government or another person, or with knowledge that he is facilitating such a deception or harm by another person, he knowingly issues a writing without authority to issue it or knowingly utters or possesses a deceptive writing.” N.D.C.C. § 12.1-24-03(1). Deception is defined as:

Creating or reinforcing a false impression as to fact, law, status, value, intention, or other state of mind; or obtaining or attempting to obtain public assistance by concealing a material fact, making a false statement or representation, impersonating another, concealing the transfer of property without adequate consideration, or using any other fraudulent method; but deception as to a person’s intention to perform a promise may not be inferred from the fact alone that the person did not substantially perform the promise unless it is part of a continuing scheme to defraud.

N.D.C.C. § 12.1-23-10(2)(a).

[¶ 25] “The term ‘deception’ does not, however, include falsifications as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.” N.D.C.C. § 12.1 — 23—10(2)(g). Harm means “loss, disadvantage, or injury to the person affected, and includes loss, disadvantage, or injury to any other person in whose welfare he is interested.” N.D.C.C. § 12.1-01-04(14).

[¶ 26] The misdemeanor charge in this case arose from dealings with Alan Klain and Jayson Walker. Klain and Walker purchased thirty head of cattle from Boll-ingberg for $875 per head, and were informed the cattle should all give birth in May 2000. A bill of sale was given in exchange for the payment. Eight of the cows did not give birth, and Bollingberg indicated he would exchange the cows for cow and calf pairs. Klain and Walker dropped off their cows but did not receive the cow-calf pairs. They did, however, receive $550 for each cow they returned. A bill of sale sent with this payment contained the forged signature of Alan Klain. The bill of sale differed from the previous bills of sale in that it did not say bred cows and indicated the sale was “as is.”

[¶ 27] Bollingberg argues a reasonable person could not conclude that he intended to create or reinforce a false impression. Bollingberg first argues a reasonable person could not conclude he intended to create or reinforce a false impression because Klain would know whether or not he had signed the document. We conclude this argument is without merit because the forged bill of sale was an attempt both to convince Klain the cattle were all paid for and to discourage claims for the cattle.

[¶ 28] Bollingberg also claims the bill of sale could not be seen by a reasonable person to have pecuniary significance because it did not alter the agreed-upon terms of the parties. The evidence, however, shows that Bollingberg relied on this document when trying to pay Klain and Walker the value for open cows instead of bred cows. Bollingberg also claims a reasonable person could not conclude there was intent to harm. The evidence, however, shows that Bollingberg was trying to get out of paying the full price for the cattle sold to Klain and Walker.

[¶ 29] We conclude these arguments are without merit.

[¶ 30] Bollingberg also argues that if this Court reversed his misdemeanor conviction because of insufficient evidence, his felony convictions should be reversed and remanded. Because there is sufficient evidence to sustain his misdemeanor conviction, we do not need to address whether Bollingberg was subjected to unfair prejudice in his felony convictions.

[¶ 31] Because the search warrant was valid as to Bollingberg’s premises, we conclude the district court did not err in denying Bollingberg’s motion to suppress. We therefore affirm the judgment of the district court.

[¶ 32] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: MARING, Justice.

text:
    2004 ND 28
    Jenese A. PETERS-RIEMERS, Plaintiff and Appellee v. Roland C. RIEMERS, Defendant and Appellant.
    No. 20030081.
    Supreme Court of North Dakota.
    Jan. 28, 2004.
    Rehearing Denied Feb. 25, 2004.

      Roland C. Riemers, pro se, Grand Forks, N.D., defendant and appellant.
    Jason W. McLean (argued) and Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Roland C. Riemers appeals a trial court order finding him in contempt for failure to pay $23,465.84 in child and spousal support, ordering him jailed for thirty days if he did not pay the arrears, ordering entry of a money judgment, and ordering him to pay attorney’s fees. We reverse the contempt order and the money judgment and remand for further proceedings because Roland was not informed of his right to counsel when the contempt proceedings could have resulted in incarceration. See Peters-Riemers v. Riemers, 2003 ND 96, 663 N.W.2d 657 (2003).

I

[¶ 2] Roland and Jenese were divorced in May of 2001. Previous to this appeal, Roland has appealed three post-divorce orders. See Peters-Riemers v. Riemers, 2002 ND 49, 641 N.W.2d 83 (2002) (“Peters-Riemers I”); Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197 (2002) (“Peters-Riemers II"); Peters-Riemers, 2003 ND 96, 663 N.W.2d 657 (2003) (“Peters-Riemers III"). On December 21, 2001, Jenese filed an Application For Order to Show Cause In Re Contempt requesting the trial court take judicial notice of the computerized ledger of the Clerk of Court evidencing Roland was in child and spousal support arrears and requesting remedial sanctions under N.D.C.C. § 27-10-01.4. The trial court issued an Order to Show Cause. On November 20, 2002, the trial court, on its own motion, issued an Order to Show Cause why Roland should not be found guilty of civil contempt for failure to pay spousal and child support. The contempt hearing for both the December 21, 2001, and November 20, 2002, Orders to Show Cause was not heard until January 27, 2003. Roland appeared "without counsel and represented himself.

[¶ 3] At the conclusion of the hearing, the court asked Jenese’s counsel to draft a proposed order of contempt. Roland submitted objections to the proposed order. The trial court found Roland in contempt in its order dated February 3, 2003, and ordered him to pay $23,465.84 in spousal and child support arrears and $1,124.50 in attorney’s fees. In addition, if Roland did not pay the arrears by March 28, 2003,-Jenese could obtain a writ of attachment and Roland would be imprisoned for 30 days. Jenese filed a request for entry of a money judgment on February 4, 2003, .together with an affidavit of identification and nonmilitary service under N.D.C.C. § 14-08.1-05.

[¶ 4] The trial court ordered the entry of a money judgment as part of its contempt order, and a money judgment for $24,590.34 was entered on February 4, 2003. The money judgment included $23,465.84 in child and spousal support and $1,124.50 in attorney’s fees. A certified copy of the payment records maintained under N.D.C.C. § 50-09-02.1 included in the record as Plaintiffs exhibit number two, reflects that the $23,465.84 included $13,885.48 in child support arrears and $9,580.36 in spousal support arrears.

II

[¶ 5] Roland argues the Order of Contempt punishment was punitive not remedial. Roland made an identical argument in Peters-Riemers III, and we concluded his contempt punishment was remedial. Peters-Riemers, 2003 ND 96, ¶ 20, 663 N.W.2d 657. We stated:

A remedial sanction is one which “includes a sanction that is conditioned upon performance or nonperformance of an act required by court order.” N.D.C.C. § 27-10-01.1(4). Remedial sanctions can be payment of money, forfeitures, or imprisonment. N.D.C.C. § 27-10-01.4(1). A prison sentence is remedial only if it is conditional and the “contemnors carry ‘the keys of their prison in their own pockets....’” Punitive sanctions, however, are unconditional. Thus, a punitive sanction is “a sanction of imprisonment if the sentence is for a definite period of time ...” or a sentence which “is not conditioned upon performance or nonperformance of an act....” N.D.C.C. § 27-10-01.1(3). The ■most -important factor which makes a sanction punitive is its unconditional nature; if the contemnor cannot purge the contempt by performance, the charge is punitive.

Id. (quoting Endersbe v. Endersbe, 555 N.W.2d 580, 582 (N.D.1996) (citations omitted)). In Peters-Riemers III, we concluded that “[bjecause Roland’s release from incarceration was conditioned upon the performance of various acts .which the trial court apparently found he had the current ability to perform, it appears the sanction imposed was remedial.” Peters-Riemers, at ¶20. Roland’s ■ incarceration for 30 days was conditioned upon his payment of $23,465.84, which the trial court found he had the ability to pay. Therefore, this contempt order is remedial.

Ill

[¶ 6] Roland argues the trial court violated his constitutional due process right when it failed to inform him of his right to be represented by counsel in a contempt proceeding where incarceration is a possible punishment. In Peters-Riemers III, we adopted the procedural requirements outlined- by the Wisconsin Supreme Court and applied them to all contempt proceedings unless the court makes it clear to the defendant that incarceration will not be imposed as a sanction. Peters-Riemers, 2003 ND 96, ¶ 23, 663 N.W.2d 657. “When a trial court has failed to inform a pro se defendant of his constitutional right to appointed counsel in a contempt proceeding in which the defendant faces potential incarceration, we will not attempt to discern whether the error was harmless.” Id. at ¶ 24 (citations omitted). We concluded that “a trial court’s failure to inform a pro se defendant of the right to counsel -is fatal to a finding of contempt as well as to orders related to that finding.” Id. (citation omitted). In this appeal, the trial court found Roland in contempt for failure to pay child and spousal support, but the record does not show that the trial court informed Roland of his right to be represented by counsel.

[¶ 7] Jenese argues that Roland had counsel of record and could not be both pro se and have counsel of record. However, the authority she cites is distinguishable on the facts. See, e.g., McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); State v. Hart, 1997 ND 188, 569 N.W.2d 451; Logan v. State, 846 So.2d 472 (Fla.2003); State v. Spivey, 357 N.C. 114, 579 S.E.2d 251 (2003). Those cases involve situations where both counsel and the client were attempting to act as an attorney, often at the exact same time. In this contempt proceeding, Roland never appeared with counsel. His only attorney of record appeared when Roland was jailed for contempt and on appeal in Peters-Riemers III.

[¶ 8] Because Roland was not advised of his right to counsel, we must reverse the contempt order and the money judgment and remand for further proceedings. Under N.D.C.C. § 14-08.1-05(l)(a), any ordered child support payment becomes a judgment by operation of law “on and after the date it is due and unpaid.” See Baranyk v. McDowell, 442 N.W.2d 423, 425, 426 (N.D.1989) (concluding that with N.D.C.C. § 14-08.1-05 the “legislature intended past-due child support obligations to be treated as judgments under state law[,]” which have the “full force and effect of a judgment of the district court”). To enforce this judgment under the statute, it must be placed on the judgment docket, but the judgment creditor must first submit a “written request accompanied by a verified statement of arrearage or certified copy of the payment records maintained under section 50-09-02.1 and an affidavit of identification of the judgment debtor.... ” N.D.C.C. § 14-08.1-05(l)(a).

[¶ 9] We conclude, however, Jenese did not satisfy the requirements of the statute. She requested a “money judgment” be entered by the trial court under N.D.C.C. § 14-08.1-05. The statute does not require a request for a money judgment from the trial court. It requires that the judgment ordering payment of child support be entered in the judgment docket upon filing by the judgment creditor or his assignee of a written request accompanied by a verified statement of arrears or certified copy of payment records maintained under N.D.C.C. § 50-09-02.1 and an affidavit of identification of the judgment debtor. N.D.C.C. § 14 — 08.1—05(l)(a); see Ruscheinsky v. Ulrich, 2000 ND 133, ¶¶ 6-9, 612 N.W.2d 283 (setting forth the legislative history of N.D.C.C. § 14-08.1-05 from 1987 through 2000). Jenese sought a formal money judgment for the accumulation of arrears rather than merely complying with N.D.C.C. § 14-08.1-05(l)(a). In addition, her request was not accompanied by a verified statement of arrearage or a certified copy of the payment records maintained under N.D.C.C. § 50-09-02.1. Jenese’s right to proceed under N.D.C.C. § 14-08.1-05, however, is not prejudiced by this opinion.

IV

[¶ 10] We conclude Roland’s remaining arguments are without merit. Therefore, we reverse the contempt order and the money judgment and remand for further proceedings.

[¶ 11] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RON-NING KAPSNER, JJ., concur.