author: WORKE, Judge.

text:
    STATE of Minnesota, Appellant, v. Randy Leroy SCHMIDT, Respondent.
    No. A05-218.
    Court of Appeals of Minnesota.
    Aug. 9, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Brian D. Roverud, Faribault County Attorney, Blue Earth, MN, for appellant.
    John M. Stuart, State Public Defender, Mark D. Nyvold, Special Assistant Public Defender, St. Paul, MN; and Bradley James Peyton, Fairmont, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; KALITOWSKI, Judge; and WORKE, Judge.
   OPINION

WORKE, Judge.

The district court granted respondent’s motion to dismiss counts one and two of a four-count criminal complaint, charging respondent with one count of first-degree DWI, in violation of Minn.Stat. § 169A.20, subd. 1(1) (2002); one count of first-degree refusal, in violation of Minn.Stat. § 169A.20, subd. 2 (2002); one count of driving after revocation, in violation of Minn.Stat. § 171.24, subd. 2 (2002); and one count of open bottle, in violation of Minn.Stat. § 169A.35, subd. 3 (2002). On this appeal from the district court’s pretrial order, the state contends that the district court erred in dismissing the two felony counts and that dismissal has a critical impact on the trial. Concluding that while dismissing counts one and two has a critical impact on the trial, the district court did not err in dismissing the two felony counts. We affirm.

FACTS

On March 1, 2004, an officer with the Blue Earth Police Department received a report of an intoxicated person attempting to purchase fuel at a gas station. After observing indicia of intoxication, the officer asked respondent Randy Leroy Schmidt to perform field sobriety tests and submit to a preliminary breath test. Respondent refused, and the officer placed him under arrest for driving while impaired. The officer read respondent the Minnesota Implied Consent Advisory, and respondent refused to submit to a breath test or blood test. An opened bottle of alcohol was found in respondent’s vehicle. A check of respondent’s driving history indicated 11 DWI convictions in South Dakota from 1985-2002, one DWI conviction in Minnesota on May 25, 2000, and that respondent’s driver’s license was revoked. Under Minnesota law, respondent’s history of multiple DWI offenses permitted enhancement of his current charge.

On October 25, 2004, respondent moved to dismiss counts one and two of the complaint based on State v. Bergh, 679 N.W.2d 734 (Minn.App.2004). Respondent argued that because the prior convictions and revocations used to enhance the current charges were from South Dakota, and he was not advised of his right to counsel prior to submitting to any of the testing in South Dakota, the felony counts should be dismissed. The district court issued an order dismissing counts one and two of the complaint, and finding that respondent’s prior DWI convictions and license revocations from South Dakota could not be used to enhance his current offense because his Minnesota constitutional rights were violated when he was not given the opportunity in South Dakota to consult with an attorney prior to deciding whether to submit to a test.

ISSUE

Did the district court clearly err in dismissing counts one and two of the complaint?

ANALYSIS

1. When the state appeals a pretrial order, the district court must be affirmed unless the state demonstrates clearly and unequivocally that (1) the district court erred in its judgment, and (2) unless reversed, the error will have a critical impact on the trial’s outcome. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn.1987). Dismissal of a complaint satisfies the critical impact requirement. State v. Dendy, 598 N.W.2d 4, 6 (Minn.App.1999), review denied (Minn. Sept. 28, 1999). Thus, this court must consider whether the state met its burden of establishing that the district court clearly erred in application of law to the undisputed facts of this case. State v. Trei, 624 N.W.2d 595, 597 (Minn.App.2001).

Appellant argues that the district court erred in ruling that because respondent had no pre-testing right to counsel in South Dakota, his prior South Dakota DWI convictions and revocations cannot be used to enhance the current offense from a gross misdemeanor to a felony. Appellant does not dispute that, with the exception of one May 2000 Minnesota DWI conviction, respondents prior DWI convictions and license revocations occurred in South Dakota. Appellant also concedes that in South Dakota a driver is not entitled to assistance of counsel prior to deciding whether to submit to a chemical analysis to determine intoxication under the implied-consent law. Blow v. Commr. of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351, 354 (1969). In Minnesota, however, a driver has a limited right to consult with an attorney before deciding whether to submit to chemical testing. Friedman v. Commr. of Pub. Safety, 473 N.W.2d 828, 833 (Minn.1991). In Friedman, the Minnesota Supreme Court held that under the Minnesota Constitution the pre-testing phase of an implied-consent or DWI proceeding is a “critical stage” at which a driver has a limited right to consult with an attorney. Id. at 833-35.

Appellant contends that the district court erred in relying on State v. Bergh, 679 N.W.2d 734 (Minn.App.2004), and dismissing counts one and two of the complaint. In Bergh, a driver was charged with first-degree DWI based upon three qualified prior impaired-driving incidents, including one revocation of his Colorado driver’s license following a Colorado DWI conviction. 679 N.W.2d at 736. The Colorado DWI conviction and license revocation were based on a chemical test, and, under Colorado law, the driver was not entitled to consult with an attorney before deciding whether to submit to chemical testing. Id. The driver argued that because Colorado law violated his Minnesota constitutional right to the assistance of counsel, neither the Colorado conviction nor the revocation could be used to enhance the Minnesota offense to first-degree DWI. Id. The district court ruled that the Colorado conviction could not be used to enhance the Minnesota offense, but that the Colorado license revocation could be used for enhancement. Id. On appeal, this court held that the revocation could not be used to enhance the driver’s Minnesota offense because the driver’s Colorado license revocation depended on the driver’s chemical-test failure, and the driver was denied his right to consult with an attorney before deciding whether to submit to chemical testing. Id. at 738.

Appellant argues, however, that this case is controlled by State v. Dumas, 587 N.W.2d 299 (Minn.App.1998). In Dumas, this court determined the reach of State v. Nordstrom, 331 N.W.2d 901 (Minn.1983), in which the Minnesota Supreme Court held that a criminal conviction in which the defendant was not represented by counsel and the right to counsel was not properly waived, could not be used to enhance a subsequent DWI offense. Dumas, 587 N.W.2d at 302. The issue in Dumas was whether Nordstrom prohibited the use of any prior uncounseled finding to enhance a charge, or whether it prohibited enhancement only when the prior finding was obtained in violation of a defendants constitutional rights. Id. This court read Nordstrom as “prohibiting the use of a prior unconstitutionally obtained conviction to enhance a subsequent charge.” Id. In Dumas, the driver did not allege that the past license revocation used to enhance the current offense was unconstitutionally obtained. Id. This court held that the statutory provision enhancing DWI and test-refusal offenses on the basis that they occurred within five years of an uncounseled license revocation under the implied-consent law did not violate the defendants right to counsel. Id. at 305. But the driver in Bergh claimed that his constitutional rights were violated when he was denied pre-test assistance of counsel; the driver in Dumas did not claim any constitutional violation. Bergh, 679 N.W.2d at 737.

Appellant also contends that prior un-counseled license revocations may be used to enhance a current criminal offense because there must be a conviction before constitutional protections apply, and a conviction does not occur when a license is revoked and a driver is not exposed to the possibility of imprisonment. Bergh addressed this purported distinction between civil and criminal labels in determining enhancement issues and stated that “[i]n Minnesota, the entire constitutional focus is on the moment a motorist is asked to submit to a chemical test. At that moment, the limited constitutional right of assistance of counsel is triggered irrespective of what subsequent proceeding might ensue.” Id. at 737. As this court concluded in Bergh, in Minnesota, the pre-testing phase of an implied-consent or DWI proceeding is a “critical stage” at which a driver has a limited right to consult with an attorney. Id. The constitutional right to assistance of counsel is not dependent on whether the test is used in a criminal or civil proceeding; thus, the constitutional violation is complete at the moment assistance of counsel is denied. Id. at 737-38.

Appellant further suggests that the rule from Bergh presents equal-protection problems in two specific situations. First, appellant argues that application of this rule creates a disparity in the treatment of in-state and out-of-state license revocations. Appellant points to State v. McLellan, 655 N.W.2d 669 (Minn.App.2003), in which this court held that enhancement of a DWI charge based on a prior revocation of a driver’s Minnesota driver’s license following an uncounseled guilty plea to DWI in another state did not violate due process. In McLellan, however, the enhancement was not based on the uncounseled guilty plea to the out-of-state DWI, but rather was enhanced because the driver’s Minnesota driver’s license was revoked as a result of the DWI conviction. Id. at 671. Moreover, the driver in McLellan did not petition for judicial review under Minn. Stat. § 169A.53 (2003); therefore, the Minnesota license revocation went unchallenged. Id.

Next, appellant argues that licensed Minnesota drivers are adversely affected by the disparity in treatment in comparison to other states. Appellant suggests that when a Minnesota driver is convicted of DWI in South Dakota, the matter is referred to Minnesota, the driver’s Minnesota driver’s license is revoked, and the revocation can be used for enhancement; whereas, a driver from South Dakota charged with DWI in Minnesota escapes an aggravated charge because pri- or DWI convictions and license revocations from South Dakota cannot be used for enhancement in Minnesota. This argument is not persuasive because states have the right to interpret their own constitutions to grant a more expansive right to counsel than the right afforded by the Sixth Amendment to the United States Constitution. Friedman, 473 N.W.2d at 830-31. Additionally, when a Minnesota driver is convicted of DWI in South Dakota and that conviction is referred to Minnesota for license revocation, the driver is afforded an opportunity for judicial review. The driver’s license is automatically revoked. Minn.Stat. § 171.17(a) (2004). But the driver can petition for reinstatement. Minn.Stat. § 171.19 (2004).

2. Appellant suggests that this court should analyze this case differently from Bergh to avoid violating the principle of stare decisis that binds this court to follow its own decisions. See, e.g., State v. DeShay, 645 N.W.2d 185, 189 (Minn.App.2002), aff'd, 669 N.W.2d 878 (Minn.2003). Appellant relies on State v. Lucas, 372 N.W.2d 731 (Minn.1985), and State v. Heaney, 689 N.W.2d 168 (Minn.2004), in proposing that this court adopt an exclusionary-rule analysis in determining when to use DWI convictions and license revocations resulting from uncounseled pre-test determinations for enhancement purposes.

In Lucas, the defendant argued that the Minnesota district court erred in admitting tape recordings of phone conversations recorded in Wisconsin without a search warrant because although Wisconsin law is similar to Minnesota’s in that the taping of a conversation is lawful if one party to the conversation consents, the resulting tape is inadmissible in a Wisconsin judicial proceeding unless the taping was authorized by a search warrant. Lucas, 372 N.W.2d at 736. The supreme court concluded that although the taped conversations would be admissible in Minnesota through any one of four approaches, an exclusionary-rule analysis was appropriate to determine the admissibility of evidence obtained in another state. Id. at 736-37. The supreme court considered the policy reasons underlying an exclusionary-rule analysis and held that the district court correctly refused to suppress the evidence because neither the Wisconsin police nor the Minnesota police violated the laws of either state in recording the conversation. Id. Thus, based on the three policy reasons underlying an exclusionary-rule analysis, the evidence was admissible because excluding the tapes would not serve to deter police misconduct, admission of the tapes did not compromise judicial integrity, and admitting the evidence did not permit Minnesota courts to profit from any wrongdoing. Id. at 737. The supreme court, however, refrained from expressing an opinion regarding the appropriate analysis when evidence has been obtained in violation of the law of either the place of the search or the forum state, or both. Id.

In Heaney, a driver in a one-vehicle accident in Minnesota was charged with criminal vehicular operation resulting in death and substantial bodily harm. Heaney, 689 N.W.2d at 170-71. The district court granted, and the court of appeals affirmed, the driver’s motion to suppress alcohol-concentration evidence obtained at the Wisconsin medical center to which the driver was transported following the accident that showed his alcohol concentration was more than .10 within two hours after the accident on grounds that it violated Minnesota’s physician-patient-privilege statute. Id. at 171. While the supreme court reversed, it agreed with the lower courts that the exclusionary-rule analysis from Lucas was not appropriate for the facts in Heaney. Id. at 172. The supreme court stated that a traditional conflict-of-law analysis was appropriate to determine the admissibility of evidence obtained in another state in a criminal case. Id. at 172.

Appellant relies on the court’s discussion in Heaney stating that “[wjhere the police have engaged in illegal conduct in obtaining evidence or where, as in Lucas, police conduct was lawful but a statute concerning privacy interests renders the evidence inadmissible, an exclusionary rule analysis is appropriate.” Id. at 172. Appellant suggests that because the police conduct in South Dakota of performing uncounseled tests is not illegal in the search state, but such conduct is made illegal in the forum state rendering the evidence inadmissible, the court should perform an exclusionary-rule analysis and determine that the prior South Dakota DWI convictions and license revocations are admissible to enhance respondents current Minnesota offense. This argument is flawed because neither of the two appropriate situations for an exclusionary-rule analysis is present here. First, the South Dakota police did not engage in illegal conduct in obtaining evidence. Second, Lucas and Heaney both deal with state statutes, not the violation of constitutional rights. The language appellant relies on specifically states: “[A] statute concerning privacy interests renders the evidence inadmissible....” See Heaney, 689 N.W.2d at 172. That is not the case here when an individuals limited constitutional right to counsel in a pre-testing situation is implicated.

Here, respondent was charged with first-degree DWI and first-degree refusal after prior DWI convictions and related license revocations from South Dakota were used to enhance the current offense. Appellant concedes that South Dakota does not offer drivers a right to counsel prior to deciding whether to submit to testing. This case is controlled by Bergh because respondent’s Minnesota constitutional rights were violated when he was not permitted to consult with an attorney prior to deciding whether to submit to testing in South Dakota; therefore, the prior convictions and related license revocations that occurred in South Dakota cannot be used to enhance respondent’s current offense in Minnesota.

DECISION

Appellant has not clearly demonstrated that the district court erred in its application of the law to the undisputed facts of this case. Respondents prior South Dakota DWI convictions and license revocations cannot be used to enhance his current Minnesota offenses because the South Dakota convictions and related license revocations resulted from uncounseled chemical tests that violate respondents limited Minnesota constitutional right to counsel prior to deciding whether to submit to a chemical test.

Affirmed.

      . Since 1995, respondent has been convicted four times for DWI — three times in South Dakota (April 1995, April 1998, and November 2002) and one time in Minnesota (May 2000). Respondent also has five prior license revocations in the past .ten years.

      . Under Minnesota law "[a] person who violates section 169A.20 is guilty of first-degree driving while impaired if the person (1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents....” Minn.Stat. § 169A.24, subd. 1(1) (2002). " 'Qualified prior impaired driving incident’ includes prior impaired driving convictions and prior impaired driving-related losses of license.” Minn.Stat. § 169A.03, subd. 22 (2002). "Prior impaired driving-related losses of license” includes a driver’s-license revocation under Minn.Stat. § 171.17 (2002). Minn.Stat. § 169A.03, subd. 21(a)(1) (2002).


source: Caselaw Access Project

author: MARING, Justice. KAPSNER, Justice,

license: Public Domain

text:
    2005 ND 122
    In the Matter of GUARDIANSHIP OF Steven Michael BARROS, a Minor. Machelle Barros, Petitioner and Appellant v. Guy and Devra Smestad, Respondents and Appellees.
    No. 20040255.
    Supreme Court of North Dakota.
    July 13, 2005.

      Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for petitioner and appellant.
    Charles G. DeMakis, Olson & Burns P.C., Minot, N.D., for respondents and ap-pellees.
   MARING, Justice.

[¶ 1] Machelle Barros (“Shelly”) appeals from a trial court order that denied various motions including her motion to reconsider, motion for a new trial, motion to order visitation, motion to reconsider rulings on discovery and specifically ordered “Petitioner’s Motion and Request to Terminate the Guardianship is denied.” The motions followed the trial court’s denial of her petition to rescind the guardianship of her child, Steven Barros. We affirm the trial court’s discovery rulings, reverse the denial of the motion to terminate the guardianship, and remand for further proceedings consistent with this opinion.

I

[¶ 2] In July 2002, Shelly petitioned for a guardianship of her son, Steven Barros. In the petition, Shelly stated it was in Steven’s best interest to live with his aunt and uncle, the Smestads. After a hearing, the trial court appointed Guy and Devra Smestad guardians of Steven Barros. The trial court noted that Steven needed stability in his life, was insubordinate to his mother, failed to follow her rules, and his best interests would be served by living with the Smestads. In December 2003, Shelly petitioned to rescind the guardianship. At the hearing, Shelly presented evidence showing since the guardianship began she has obtained a new job in Chicago, is able to move into a two bedroom apartment, is secure in her finances and personal life, and has researched the availability of activities for Steven in her residential area. After the hearing, the trial court denied the petition finding there was no statutory basis for rescission and it was in Steven’s best interest to remain with the Smestads.

II

[¶ 3] Shelly argues the trial court improperly refused to terminate the guardianship, which she asserts has a practical effect similar to terminating her parental rights. The Smestads argue the trial court properly refused to rescind the guardianship because Shelly did not follow the statutorily prescribed method to terminate a guardianship.

[¶ 4] Shelly filed a “PETITION TO RESCIND GUARDIANSHIP ORDER OF AUGUST 30, 2002.” Section 30.1-27-10, N.D.C.C., states: “A guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian, or upon the minor’s death, adoption, marriage, or attainment of majority.” Any person interested in the welfare of a ward may bring a petition for resignation or removal of the guardian. N.D.C.C. § 30.1-27-12(1). The petition for removal of a guardian must be based on the grounds “that removal would be in the best interest of the ward.” Id. In a custody proceeding, the best interests and welfare of a child are determined by a court’s consideration and evaluation of several factors:

a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
I. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

N.D.C.C. § 14-09-06.2(1). A guardian of a minor “has the powers and responsibilities of a parent who has not been deprived of custody.” N.D.C.C. § 30.1-27-09. Because a guardian acts in place of a parent, the best interest factors that are used in custody determinations are also used in guardianship proceedings. See, e.g., In re Estate of Webb, 286 Ill.App.3d 99, 221 Ill. Dec. 285, 675 N.E.2d 192, 194 (1996) (applying the best interest analysis used in custody determinations to guardianship proceedings); Matter of Guardianship of Stewart, 369 N.W.2d 820, 824 (Iowa 1985) (noting the best interests must be considered in all custody matters).

Clearly, Shelly’s inartfully drawn petition did not use the statutory language for removal of a guardian. But it does specifically request that “the guardianship previously made at her request be rescinded as of the last day of the minor’s present academic school year.” The trial court erred in concluding the issue of terminating the guardianship was not properly before it. See Kaiser v. State, 417 N.W.2d 175, 177 (N.D.1987) (stating, “it is not the label which controls but, rather, the effect”). The petitioner complicated the issue by asserting that the best interests consideration was not necessary to “rescind” the guardianship, but the best interest factors were effectively tried. At the hearing, the trial court heard a large amount of testimony related to the best interest factors. Because the trial court effectively tried the best interests of the ward, it erred by failing to consider removal of the guardians, rather than rescission of the original order, and to make findings of fact based on those factors to decide whether the Smestads should be removed as guardians. We reverse the trial court’s denial of the petition. Because this is a case of first impression in this jurisdiction, we further consider the burdens of proof under the statutory framework for removal of a guardian.

Ill

[¶ 6] Shelly argues because she has a fundamental right as a parent to custody of Steven, the trial court erred by placing the burden of proving that the guardianship should be terminated on her. She argues that, after proving the circumstances leading to the guardianship have changed, the burden must shift to the Smestads to prove by clear and convincing evidence that it is in Steven’s best interests to continue the guardianship. The Smestads argue the burden of proof should be the same as custody modifications because the guardians are acting as parents. They argue the burden should be on the moving party to prove termination would be in the best interests of the child.

[¶ 7] We have not previously decided the issue of which party has the burden of proof in a proceeding to terminate a voluntary guardianship brought by a parent who has not been adjudicated unfit. Jurisdictions that have considered this issue place the burden of proof on the petitioner to prove the impediments leading to the guardianship have been removed. See, e.g., Guardianship of Simpson, 67 Cal.App.4th 914, 79 Cal.Rptr.2d 389, 401 (1998); Matter of Guardianship of M.R.S., 960 P.2d 357, 361 (Okla.1998).

[¶ 8] California applies a preponderance of the evidence standard in guardianship termination proceedings when the parent has not been adjudicated unfit. Guardianship of Simpson, 79 Cal.Rptr.2d at 401. The burden is on the parent to show “overall fitness ... sufficient to overcome the inherent trauma of removing a successful caregiver.” Id. at 400. The court noted this is usually an easy burden to prove because either the parent is released from the hospital or the trouble causing the guardianship has been removed. Id. at n. 14. In Illinois, a parent must also show a change in circumstances warranting the termination. In re Estate of Webb, 286 Ill.App.3d 99, 221 Ill.Dec. 285, 675 N.E.2d 192, 194 (1996). We conclude Shelly must initially prove, by a preponderance of the evidence, the impediments leading to the creation of the guardianship have been removed. See, e.g., Guardianship of Simpson, 79 Cal.Rptr.2d at 400-01.

[¶ 9] If the initial burden is met, then we must decide who has the burden of persuasion in applying the best interest factors. It is undisputed that parents have a fundamental right to the custody and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We have repeatedly addressed the constitutional nature of parents’ rights in raising their children.

Parents have a fundamental, natural right to their children which is of constitutional dimension. In re L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573; Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D.1981). The right is paramount. In re R.D.S., 259 N.W.2d 636, 638 (N.D.1977). A parent’s paramount and constitutional right to the custody and companionship of their children is superior to that of any other person. Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986); Hust v. Hust, 295 N.W.2d 316, 318 (N.D.1980); Boeddeker v. Reel, 517 N.W.2d 407, 409 (N.D.1994).

Hoff, 1999 ND 115, ¶ 10, 595 N.W.2d 285. However, that right is not absolute and unconditional; it may be suspended if harmful to the child. State v. Ehli, 2003 ND 133, ¶ 7, 667 N.W.2d 635.

[¶ 10] We have previously noted the superior rights parents have to the custody of their children over third parties. Worden v. Worden, 434 N.W.2d 341, 342 (N.D.1989). A majority of jurisdictions have recognized a similar form of superior right or parental preference doctrine. See Matter of Guardianship of Williams, 254 Kan. 814, 869 P.2d 661, 670 (1994) (citing cases from twenty-eight states recognizing a form of parental preference). This preference merely creates a rebuttable presumption that parental custody is in the best interests of the children and is not the end of the inquiry.

[¶ 11] In Worden, we stated:

When there is a custody dispute between a natural parent and a third party the test is whether or not there are exceptional circumstances which require that in the best interest of the child, the child be placed in the custody of the third party rather than with the biological parent. The court cannot award custody to a third party, rather than the natural parent, under a “best interest of the child” test unless it first determines that “exceptional circumstances” exist to trigger the best-interest analysis. Absent exceptional circumstances the natural parent is entitled to custody of the child even though the third party may be able to offer more amenities.

Worden, 434 N.W.2d at 342 (citations omitted). The voluntary guardianship creates an “exceptional circumstance” that triggers the best interest of the child test. Shelly voluntarily consented to the Smes-tads becoming legal guardians of Steven during a difficult time in her life. She has not been adjudicated an unfit parent. We do not want to discourage parents from seeking help in caring for their children by risking the loss of custody. See Matter of Guardianship of Nelson, 519 N.W.2d 15, 20 (N.D.1994) (Levine, J., concurring) (citations omitted) (stating, “We should encourage involvement of extended family in childcare without endangering the parent-child relationship. A young mother should be encouraged to seek reasonable help for her child from family members without the risk of losing custody to those proffering assistance.”).

[¶ 12] Shelly argues that after she proves the circumstances leading to the guardianship have changed, the burden must shift to the Smestads to prove by clear and convincing evidence that it is in the child’s best interests to continue the guardianship. Because of the presumptive right of a natural parent to custody of a child, we agree the burden must shift to the nonparent, however, we disagree that a clear and convincing standard applies.

[¶ 13] This is a guardianship termination proceeding. More specifically, this is an action to terminate a voluntarily-established guardianship of a minor. It is not an action to terminate parental rights, or to adjudicate a child deprived; both of which would require proof that is clear and convincing. Matter of Adoption of J.W.M., 532 N.W.2d 372, 377 (N.D.1995). Here, the government is not “wresting” a child from a parent against the wishes of a parent or terminating parental rights. See Guardianship of Simpson, 67 Cal.App.4th 914, 79 Cal.Rptr.2d 389, 400 (Cal.Ct.App.1998). Our legislature did not provide a standard of proof to be applied in the termination of a guardianship of a minor. See N.D.C.C. § 30.1-27-12(1). Our Court has never addressed the standard of proof necessary to support the continuation of a guardianship for a minor, and Shelly has not provided any authority supporting her argument that a clear and convincing standard should apply.

[¶ 14] The only authority this Court has found to support Shelly’s argument that a nonparent must present clear and convincing evidence that the best interests of the child will be served by granting custody to the nonparent is Matter of Guardianship of Blair, 662 N.W.2d 371, No. 2-950, 2003 WL 182981 at *5, 2003 Iowa App. LEXIS 102 at *13 (Iowa Ct. App. Jan. 29, 2003). In Matter of Guardianship of Blair, the Iowa Court of Appeals held that the nonparent bears the burden of proof to “rebut the presumption favoring parental custody by providing clear and convincing evidence of parental unsuitability.” Id. at *5. We do not find this case persuasive for several reasons.

[¶ 15] First, the decision is without a published opinion. The Iowa courts allow citation to unpublished decisions only for their persuasive value and not as controlling precedent. Iowa Appellate Rule 6.4(5)(6). Although our Court has not formally adopted such a rule, we believe such decisions should only have value for their persuasive reasoning. Such is totally lacking in Matter of Guardianship of Blair. There, the Iowa Court of Appeals applied a clear and convincing standard of proof only because their statute requires proof of necessity for a guardianship by clear and convincing evidence. Id. at *4. Our statute does not provide a standard of proof of clear and convincing evidence. See N.D.C.C. § 30.1-27-12(1). Compare N.D.C.C. § 25-03.1-19 (providing a petition for involuntary treatment must be sustained by clear and convincing evidence); N.D.C.C. § 14-09-06.2 (providing a presumption that a parent, who perpetrated domestic violence, may not be awarded sole custody of a child can only be overcome by clear and convincing evidence); N.D.C.C. §§ 27-20-29 and 27-20-44 (providing that to find a child is a deprived child requires clear and convincing evidence); and N.D.C.C. § 30.1-28-04(2)(b)(l) (providing that to impose a guardianship for an incapacitated person the court must use a clear and convincing evidentiary standard).

Our Court has never applied a clear and convincing standard of proof in our decisions addressing the test to be applied in disputes between parents and nonparents over custody of a minor. See Mansukhani v. Pailing, 318 N.W.2d 748, 751 (N.D.1982) (holding fitness as a parent is not the test; the test is whether exceptional circumstances exist which require in the child’s best interests custody be placed in nonparents rather than a parent, and recognizing a strong psychological parent relationship can constitute exceptional circumstances); Worden v. Worden, 434 N.W.2d 341, 342 (N.D.1989) (holding the test is whether exceptional circumstances exist which require that, in the best interest of the child, custody be placed in a nonparent rather than a biological parent).

[¶ 17] We do not believe the concerns that require a clear and convincing standard of proof in the termination of parental rights context apply in this situation. A guardianship is not permanent and does not lead to absolute termination of all parental rights. It does not deprive the parent of a parental role forever and allows for the establishment of visitation rights. See Hobus v. Hobus, 540 N.W.2d 158, 161 (N.D.1995) (holding “parental obligations are not dismissed by the appointment of a guardian, ... On the contrary, the appointment of a guardian should indicate to the parent a need to better fulfill parental obligations.”).

[¶ 18] Under our guardianship of minors’ law, the trial court must determine whether the welfare and best interest of the minor will be served by the appointment of the guardian. N.D.C.C. § 30.1-27-07(2). Likewise, the termination of a guardianship must be based on the ground that removal would be in the best interest of the minor. N.D.C.C. § 30.1-27-12(1). The guardianship of minors’ law applies to both voluntarily established and involuntarily established guardian-ships. Determining the best interest of the minor does not necessarily require a finding that the parent is unfit. The determination can focus on who is better fit to parent the child at that time. In her petition for guardianship, Barros stated, “[t]he child’s best interests will be served by guardianship with his aunt and uncle who can provide him with stability, care and supervision the child requires.” She further stated she could not fulfill her child’s needs. The trial court found that the welfare and best interests of the minor would be served by appointment of a guardian and “suspended” the parental rights of Barros due to these circumstances.

[¶ 19] As we previously noted, the natural parent must initially prove, by a preponderance of the evidence, that the impediments leading to the creation of the guardianship have been removed. A non-parent seeking custody then has the burden of rebutting the presumption that it is in the best interests of the child to be in the custody of the parent. The presumption can be overcome when there exist “exceptional circumstances.” We recognize today as a matter of law that a voluntarily established guardianship constitutes “exceptional circumstances.” This conclusion triggers a best interest of the child analysis as required by our guardianship of minors’ law. The burden of proof is then on the nonparent to establish it is in the best interest of the child that the guardianship continue. We conclude the evidentiary burden placed on the nonpar-ent, is a preponderance of the evidence, because there is no persuasive reason to use a clear and convincing evidentiary standard. This evidentiary burden of proof applies in all terminations of a guardianship of a minor. In determining the best interest of the child, the trial court must weigh the benefits of stability of the child’s relationship with the guardian and the benefits of the child’s relationship with the natural parent. This analysis is supported by our statutes and prior case law.

[¶ 20] Although Shelly did not follow the proper statutory method of removing a guardian, she is effectively seeking termination of that guardianship. We reverse the trial court’s denial of Shelly’s motion and remand for the trial court to consider termination of the guardianship applying this analysis.

IV

[¶ 21] Shelly argues the trial court failed to allow adequate discovery because it limited discovery to what occurred since the guardianship began and would not allow discovery of whether the guardianship was properly obtained due to Shelly’s attorney’s alleged conflict of interest in the original guardianship proceeding. Shelly asserts the conflict of interest arose because the attorney represented both her and the potential guardians during the proceedings creating the guardianship.

[¶ 22] A trial court has broad discretion regarding the scope of discovery. Smith v. Smith, 538 N.W.2d 222, 230 (N.D.1995). Absent an abuse of discretion, a trial court’s discovery decisions will not be reversed on appeal. Id. “A trial court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misapplies or misinterprets the law.” Id. Because Shelly did not appeal the original guardianship order, any documents relating to the creation of the guardianship are not relevant. The trial court properly limited discovery to what has occurred since the guardianship began; the trial court did not abuse its discretion when it limited Shelly’s access to the file of the attorney who drafted the petition for guardianship.

V

[¶ 23] Shelly argues the trial court erred by refusing to order visitation. A court establishing a guardianship has the authority to order visitation. Matter of Guardianship of Nelson, 519 N.W.2d 15, 20 (N.D.1994). In custody proceedings, a court shall grant the noncustodial parent visitation rights that will “enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child” unless the court finds that visitation will be harmful to the child. N.D.C.C. § 14-05-22(2). The record contains no allegations that Shelly is unfit or that visitation will be harmful. If the trial court denies Shelly’s motion to remove the Smestads as guardians, it must enter an appropriate visitation order to maintain a parent-child relationship that will be beneficial to the child.

VI

[¶ 24] We affirm the trial court’s rulings limiting discovery. We reverse the denial of Shelly’s motion to terminate the guardianship and remand for further proceedings consistent with this opinion. If the trial court continues the guardianship, it must consider visitation.

[¶ 25] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, JJ., concur.

KAPSNER, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion except for the standard of proof that it establishes for deciding whether the guardianship should continue. I agree with the majority opinion that because of the parental preference, the burden shifts to the nonparent; I believe, however, the standard to be applied should be the clear and convincing standard. It is undisputed that parents have a fundamental right to the custody and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66,120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The United States Supreme Court has described this interest as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65, 120 S.Ct. 2054.

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man,” and “rights far more precious ... than property rights.” “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.

Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (citations omitted). The pursuit of happiness guaranteed by the North Dakota Constitution includes “the right to enjoy the domestic relations and the privileges of the family and the home ... without restriction or obstruction ... except in so far as may be necessary to secure the equal rights of others.” Hoff v. Berg, 1999 ND 115, ¶ 10, 595 N.W.2d 285 (citation omitted); N.D. Const. art. I, § 1. This right is protected and insured by the due process clause of our Constitution. N.D. Const. art. I, § 12. We have repeatedly addressed the constitutional nature of parents’ rights in raising their children.

Parents have a fundamental, natural right to their children which is of constitutional dimension. In re L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573; Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D.1981). The right is paramount. In re R.D.S., 259 N.W.2d 636, 638 (N.D.1977). A parent’s paramount and constitutional right to the custody and companionship of their children is superior to that of any other person. Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986); Hust v. Hust, 295 N.W.2d 316, 318 (N.D.1980); Boeddeker v. Reel, 517 N.W.2d 407, 409 (N.D.1994).

Hoff, 1999 ND 115, ¶ 10, 595 N.W.2d 285.

[¶ 27] Shelly has not been proven to be an unfit parent; indeed, there is no sug-gestión in the record that she is an unfit parent. Recognizing the fundamental nature of her right to raise her child, to continue the guardianship, the Smestads must overcome the presumption that parents have a superior right to the custody of their children and must prove by clear and convincing evidence it is in the child’s best interest to continue the guardianship. I am persuaded by the reasoning of Matter of Guardianship of Blair, 662 N.W.2d 371, No. 2-950, 2003 WL 182981 at *5, 2003 Iowa App. LEXIS 102, at *13 (Iowa Ct.App. Jan. 29, 2003) that this standard is necessary to accommodate the fundamental rights of the parent under circumstances where the parent has not been adjudicated unfit.

The majority opinion indicates that because the statute does not impose a burden of proof, the standard must be the preponderance of evidence. The statute applicable to the removal of a guardian does not impose a standard of proof. N.D.C.C. § 30.1-27-10. However, the statutory conditions for appointment of a guardian and the effect of the appointment on the rights of the parent do suggest that an elevated standard of proof should apply. Under N.D.C.C. § 30.1-27-04, “[t]he court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.” The statute applicable to the termination of parental rights, N.D.C.C. § 27-20^44, does not contain an explicit directive on the burden of proof yet it is constitutionally required that courts apply a burden of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 747-78, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Section 30.1-27-09, N.D.C.C., recognizes that “[a] guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent’s minor and un-emancipated child.” Section 14-09-20, N.D.C.C., states “[t]he authority of a parent ceases: 1. Upon the appointment by a court of a guardian of the person of a child ...” The majority asserts the appointment and continuation of a guardianship is not a termination of the parental rights. But it is a clear suspension of those parental rights that the Stanley court has described as “essential,” “basic civil rights.” 405 U.S. at 651, 92 S.Ct. 1208. Where a parent has not been proven unfit, the continuing suspension of those fundamental rights requires that the burden of proof be by clear and convincing evidence that it is in the child’s best interest.

[¶ 29] Carol Ronning Kapsner


author: PER CURIAM.

text:
    2005 ND APP 10
    John J. GOSBEE, Plaintiff and Appellant v. Rob MARTINSON; Eskrawl, Inc.; Mailwiper, Inc.; Spy Deleter, Inc.; Defendants and Appellees and John and Mary Does 001 through 100; and Doe & Doe, Inc. 101-200, Defendants.
    No. 20050056CA.
    Court of Appeals of North Dakota.
    July 6, 2005.

      John J. Gosbee, pro se, Mandan, N.D.
    Mitchell D. Armstrong (argued) and Scott K. Porsborg (appeared), Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendants and appellees.
   PER CURIAM.

John Gosbee has appealed from a judgment dismissing his RICO action against Rob Martinson, Eskrawl, Inc., Ma-ilwiper, Inc., and Spy Deleter, Inc. We reverse and remand for further proceedings.

I

In March 2004, Gosbee’s computers at his home and office became infected with a spyware program. Initially, the program caused his CD-ROM disc drive drawers to open, and he heard an audible signal indicating an error had occurred. Pop-up ads appeared for a “Spy Wiper” program to remove spyware programs from the computer. One ad stated:

FINAL WARNING!!

If your cd-rom drive(s) open ...
You DESPERATELY NEED to rid your system of spyware pop-ups IMMEDIATELY!
Dangerous computer programs can control your computer hardware if you fail to protect your computer right at this moment!
Download Spy Wiper NOW!

The program also changed the homepage on Gosbee’s computer to one which included numerous ads for the “Spy Wiper” program. Gosbee alleges his computers have been infected by this spyware program on at least five separate occasions.

Gosbee eventually traced the “Spy Wiper” program to Martinson and three companies allegedly controlled by Martinson. Gosbee alleges that Martinson and his companies intentionally “highjacked” his computers in a fraudulent scheme to create sales of their “Spy Wiper” program. Gosbee sued Martinson and the three companies (hereafter collectively “Martinson”) alleging RICO violations, and sought damages, treble damages, and attorney fees. Gosbee also sought certification of the lawsuit as a class action.

Martinson moved for dismissal of the complaint under N.D.R.Civ.P. 12(b)(6) for failure to state a claim, or alternatively for summary judgment. Martinson alleged that any “highjacking” of Gosbee’s computers was caused by one of Martin-son’s marketing affiliates, and he was not responsible for the actions of the affiliate. The trial court granted Martinson’s motion for dismissal, and judgment was entered dismissing the action and awarding costs and disbursements to Martinson.

Gosbee filed written objections to the award of costs and disbursements, and also filed a separate motion for reconsideration and to amend his complaint. The trial court, without holding a hearing, summarily denied Gosbee’s objections and motion. Gosbee has appealed, alleging that the trial court erred in failing to hold a hearing on his objections and motion, and that the trial court erred in denying his motion to amend the complaint.

II

The dispositive issue on appeal is the trial court’s failure to hold a hearing on Gosbee’s objections to costs and disbursements and on the motion for reconsideration and to amend the complaint.

[¶ 7] Rule 54(e)(1), N.D.R.Civ. P., governs objections to costs and disbursements and specifically states that, if objections are filed, “the clerk shall promptly submit them to the judge who ordered the judgment” and the court “by ex parte order shall fix a time for hearing the objections.” The rule further provides that the parties may waive the right to a hearing. Gosbee filed timely objections to the costs and disbursements, did not waive his right to a hearing, and in fact requested that a hearing be set under N.D.R.Civ.P. 54(e)(1). The rule is mandatory and affords no discretion to the trial court to dispense with the required hearing, unless expressly waived by the parties. Accordingly, the trial court erred in failing to hold a hearing on Gosbee’s objections to costs and disbursements.

[¶ 8] Gosbee’s motion for reconsideration and to amend the judgment was submitted under N.D.R.Ct. 3.2, and included an express request for a hearing. Rule 3.2 provides that, if any party who has timely served and filed a brief requests oral argument, “the request must be granted.” The Supreme Court has consistently held that the language of Rule 3.2 is mandatory, and the trial court does not have discretion to refuse to hold a hearing when one has been properly requested. See, e.g., Syvertson v. State, 2000 ND 185, ¶ 10, 620 N.W.2d 362; In re Adoption of J.S.P.L., 532 N.W.2d 653, 657 (N.D.1995); In re Norman, 521 N.W.2d 395, 397 (N.D.1994); Ennis v. Berg, 509 N.W.2d 33, 38 (N.D.1993); Anton v. Anton, 442 N.W.2d 445, 446 (N.D.1989). Accordingly, if Gos-bee’s request for oral argument was properly submitted, he was entitled to a hearing and the trial court erred in refusing to provide one.

[¶ 9] Martinson argues Gosbee’s request for a hearing was incomplete because Gosbee did not secure a time for the hearing. The rule places the burden on the moving party to secure a time for the hearing and to serve notice thereof to opposing parties. See N.D.R.Ct. 3.2(a). If a party does not attempt to secure a time for oral argument, the request for oral argument is deemed incomplete. See Syvertson, 2000 ND 185, ¶¶ 10-11, 620 N.W.2d 362; J.S.P.L., 532 N.W.2d at 657; Huber v. Oliver County, 529 N.W.2d 179, 183 (N.D.1995). In this case, Gosbee contacted the clerk of court’s office on January 24, 2005, to schedule a hearing, and was told the clerk would check the judge’s schedule and call Gosbee back. Gosbee then served and filed the motion, providing a notice of hearing and stating that notice of the exact time and date would be served when the information was available. On January 25, the calendar control clerk left a message for Gosbee indicating that the judge was presently reviewing the case, “so I’m not going to be setting it up for a hearing until I hear something from him.” Gosbee did not hear back from the clerk, and a few days later the trial court denied the motion in a one-line order dated February 1, 2005.

[¶ 10] Gosbee did all he was required to do to secure the hearing. Certainly the rule does not envision that the trial court can surreptitiously deny a mandatory hearing by simply failing to provide a date for a hearing when requested by the moving party. This case is distinguishable from the eases cited by Martinson, in which the moving parties filed written requests for oral argument with their motions but never contacted the clerk of court’s office to secure a date for hearing. See Syvertson, 2000 ND 185, ¶¶ 10-11, 620 N.W.2d 362; J.S.P.L., 532 N.W.2d at 657; Huber, 529 N.W.2d at 183. Gosbee filed a proper and timely request for a hearing under Rule 3.2, and made a sufficient attempt to secure a date for the hearing. Accordingly, the trial court’s failure to provide a hearing was error.

[¶ 11] Martinson contends that, if the trial court’s failure to provide a hearing on Gosbee’s objections and motion was erroneous, the error was harmless under N.D.R.Civ.P. 61. Under the rule, the “court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” N.D.R.Civ.P. 61.

[¶ 12] We conclude the trial court’s erroneous failure to provide a mandatory hearing on Gosbee’s objections to costs and disbursements, and on his motion for reconsideration and to amend his pleadings, affected his substantial rights and was not harmless error. It is impossible to determine what effect oral argument may have had on the trial court’s exercise of its discretion in allowing costs, allowing reconsideration, or allowing amendment of the complaint. In this regard, we specifically note the Supreme Court’s prior admonitions that, because determinations on the merits are generally preferred to dismissal on the pleadings under N.D.R.Civ.P. 12(b)(6), the court’s scrutiny of the complaint must be highly deferential to the pleader and the complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no facts which would entitle him to relief. See, e.g., Rose v. United Equitable Ins. Co., 2001 ND 154, ¶ 10, 632 N.W.2d 429; Towne v. Dinius, 1997 ND 125, ¶ 7, 565 N.W.2d 762; Rolin Mfg., Inc. v. Mosbrucker, 544 N.W.2d 132, 135 (N.D.1996). When it appears that a plaintiff may have some claim, although the pleadings are inartfully drafted, leave to amend the complaint rather than dismissal under N.D.R.Civ.P. 12(b)(6) is usually a more appropriate course of action. Burke v. North Dakota Dep’t of Corr. & Rehab., 2000 ND 85, ¶ 4, 609 N.W.2d 729; Towne, at ¶ 7 n. 2; Kouba v. Febco, Inc., 543 N.W.2d 245, 248 (N.D.1996).

[¶ 13] When a trial court has erroneously failed to provide a required hearing, the appropriate remedy is a remand for a hearing. See J.S.P.L., 532 N.W.2d at 657. Accordingly, we reverse the judgment dismissing Gosbee’s complaint and remand for a hearing on the objections to costs and disbursements and on the motion for reconsideration and to amend the complaint.

[¶ 14] BRUCE BOHLMAN, S.J., EVERETT NELS OLSON, S.J., and NORMAN J. BACKES, S.J., concur.

      . Although the trial court did not expressly state whether the dismissal was for failure to state a claim under N.D.R.Civ.P. 12(b)(6) or on summary judgment under N.D.R.Civ.P. 56, the trial court’s memorandum opinion cites to N.D.R.Civ.P. 12(b)(6) and the court’s analysis is based upon failure of the pleadings to state a claim upon which relief could be granted. Accordingly, we treat it as a dismissal under N.D.R.Civ.P. 12(b)(6) for failure to state a claim.


author: WILBUR, Circuit Judge.

text:
    2005 SD 85
    James SMITH, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    No. 22924.
    Supreme Court of South Dakota.
    Argued March 22, 2005.
    Decided July 6, 2005.

      James A. Eirinberg, Sioux Falls, SD, for petitioner and appellant.
    Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, SD, for respondent and appel-lee.
   WILBUR, Circuit Judge.

[¶ 1.] James E. Smith appeals the denial of habeas corpus relief in his second habeas corpus appeal. We affirm.

FACTS

[¶ 2.] The facts underlying this case are outlined in State v. Smith, 477 N.W.2d 27 (S.D.1991). On the morning of October 16, 1989, James Elmer Smith (Smith) and Paul T. Wood (Wood) set out to rob a bank in Fairview, South Dakota. They placed various weapons in the trunk of the car. The weapons included a .32 caliber handgun and a .22 caliber handgun. The two men drove separate cars to an abandoned farmhouse north of Fairview. Smith then drove Wood and himself to Fairview in one of the vehicles.

[¶ 3.] When the men entered the bank six people were present. Smith announced, “This is a bank robbery” and ordered everyone to get on the floor. Lorraine Niemeyer, Mary Stensland, Delores Brown and her children did not comply. Smith struck Brown on the shoulder then turned toward Stensland and fired his gun, wounding her at the base of her neck. Stensland bled to death in a few minutes. Smith then jumped over the counter, leaving footprints on the countertop which matched tennis shoes taken from him after the arrest. He collected approximately $14,000 from the vault. Many of the bills were bait money with the serial numbers on file at the bank.

[¶ 4.] Sometime later, Lincoln County Sheriff Kenneth Albers received a report that the suspects were stopped west of the Missouri River driving a 1978 white and blue Dodge Aspen, which they had purchased in Mitchell earlier that day. Smith was advised of his rights and placed under arrest. His pockets contained a large amount of money and an Oklahoma driver’s license bearing the name David Ellis McCalip. Twenty-five $20 bills found in Smith’s possession had serial numbers matching bills taken from the bank in Fairview. A search of the car, pursuant to a warrant, revealed more marked money, a police equipment belt with a .357 Magnum revolver, .22 Super X long rifle bullets, a police radio call book, a police radio scanner, a stun gun and some police uniform clothing.

[¶ 5.] On March 23, 1990 Smith was tried and convicted by a Lincoln County jury of first degree murder, first degree robbery and commission of a felony while armed with firearms. After the guilt phase, the State presented evidence in support of the death penalty but the jury refused to impose it and Smith was sentenced to the South Dakota State Penitentiary for the remainder of his life. Smith filed his first application for a writ of habeas corpus in the First Judicial Circuit, Lincoln County, South Dakota (first habe-as action.) The court in the first habeas action issued a letter decision on October 12, 2000, denying Smith’s request for habe-as corpus relief. Although a certificate of probable cause was issued on October 2, 2001, Smith did not appeal the decision in the first habeas action.

[¶ 6.] On November 21, 2001 Smith filed a second petition for a writ of habeas corpus in the Second Judicial Circuit, Lincoln County, South Dakota. The court in the second habeas action issued a letter decision denying Smith habeas relief on April 7, 2003. Based upon a restricted certificate of probable cause issued by the circuit court on July 2, 2003, Smith appeals raising the following issues:

Whether the trial court’s failure to give complete accomplice instructions to the jury, and trial counsel’s failure to request the instructions merit habeas corpus relief.
Whether Smith received ineffective assistance of counsel by Attorney Golden in his first habeas action.
Wfliether Smith received ineffective assistance of counsel by Attorney Peterson in his second habeas action.

STANDARD OF REVIEW

[¶ 7.] Habeas corpus is a collateral attack on a final judgment and, therefore, our scope of review is limited. Lodermeier v. Class, 1996 SD 134, ¶ 3, 555 N.W.2d 618, 621. A habeas applicant bears the initial burden to establish a col-orable claim for relief. Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468. Accordingly, the State has only the burden of meeting the petitioner’s evidence. Davi v. Class, 2000 SD 30, ¶26, 609 N.W.2d 107, 114. The habeas court’s factual findings are reviewed under the clearly erroneous standard, while legal conclusions are reviewed de novo. Meinders v. Weber, 2000 SD 2, ¶ 5, 604 N.W.2d 248, 252 (citations omitted).

[¶ 8.] In order to succeed on an ineffective assistance of counsel claim a defendant must show: 1) that counsel’s performance was deficient; and, 2) that the deficient performance prejudiced the defense. The test for prejudice is whether there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. Hays v. Weber, 2002 SD 59, ¶ 14, 645 N.W.2d 591, 596. Furthermore, counsel is presumed competent, and that presumption must be overcome by applying.the Strickland test. Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

DECISION

[¶ 9.] Smith is not entitled to relief based upon the trial court’s failure to give complete accomplice instructions or trial counsel’s failure to request the instructions.

[¶ 10.] During the trial and at the end of the trial, the trial court instructed the jury, pursuant to pattern jury instruction 1-14-8, to view the testimony of an accomplice with caution. However, the court did not give and trial counsel did not request pattern instruction 1-14-7, which requires corroboration of an accomplice’s testimony by evidence which tends to connect the defendant with the commission of the offense. This omission, which was not noticed until Smith’s second habeas corpus proceeding, is the basis of his first claim of error and is an aspect of his ineffective assistance of counsel claims against his habeas counsel. Smith contends the error in not giving the instruction constitutes plain error. While the trial court’s failure to give the instruction was clearly error, we disagree that failure to give the instruction is plain error.

[¶ 11.] “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” SDCL 23A-44-14. “Jury instructions are satisfactory when, considered as a whole, they properly state the applicable law and inform the jury.” State v. Downing, 2002 SD 148, ¶ 26, 654 N.W.2d 793, 800 (quoting State v. Webster, 2001 SD 141, ¶7, 637 N.W.2d 392, 394). “An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.” State v. Mattson, 2005 SD 71, ¶ 50, 698 N.W.2d 538, 554 (quoting First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448).

[¶ 12.] SDCL 23A-22-8 requires an accomplice’s testimony to be corroborated in order to sustain a conviction. It states:

A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

Even absent the accomplice testimony in this case, the evidence at trial against Smith was more than sufficient to support the jury verdict.

[¶ 13.] Smith’s trial counsel testified at the first habeas hearing that the accomplice testimony was “accumulative [sic].” Counsel specifically testified, “I don’t think this case turned on — whether [the accomplice] would have testified or not, I don’t think the outcome would have been any different ... on the guilt phase.” Counsel also testified that the State’s case against Smith was strong and there was great evidence of guilt.

[¶ 14.] The great evidence of guilt included the following: When Smith was arrested, bait money from the bank was discovered on his person. A search of the trunk of the car Smith was driving at the time of his arrest revealed additional bait money as well as handguns, ammunition, a police radio call book, a radio scanner, a stun gun and police uniform clothing. The Reebok tennis shoes Smith was wearing at the time of his arrest matched a footprint left on the countertop during the robbery of the bank. There was testimony that Smith purchased a 1976 Plymouth Fury on October 13, 1989. Another witness identified a photo of the Plymouth as the vehicle she saw driving away from the bank after the robbery on October 16, 1989. Two other witnesses testified that Smith raised the subject of robbing a bank and attempted to recruit them prior to the testimony from other witnesses linking Smith to accomplice Wood both prior to and after the robbery. Finally, three witnesses, in addition to Wood, who were in the bank at the time of the robbery provided testimony which indicated Smith was the robber who had shot Mary Stensland.

[¶ 15.] This Court has reviewed similar claims of error regarding failure to properly instruct on accomplice testimony. In Grooms v. State, 320 N.W.2d 149, 152 (S.D.1982), the accomplice’s testimony was of crucial importance to the outcome of the case. The accomplice in Grrooms was the sole witness to testify about the crime and all the other witnesses presented only circumstantial evidence. Smith’s case is distinguishable in that the accomplice’s testimony was not of crucial importance. Several witnesses provided direct evidence against Smith.

[¶ 16.] In State v. Beene, 257 N.W.2d 589 (S.D.1977), the trial court gave the corroboration instruction but failed to give the cautionary instruction which is the opposite of this case. The Beene court held the failure to give the cautionary instruction was reversible error because the State’s case turned upon the accomplice’s testimony. Id. at 591-592. Here, the State’s case did not turn on the testimony of Wood.

[¶ 17.] Similarly, in Freeman v. Class, 95 F.3d 639, 641 (8thCir.1996), “[t]he only direct evidence in the record linking Freeman to the theft of the automobile [was] the testimony of the accomplice, David Pri-meaux. There were no eyewitnesses.” In Smith’s case there were several eyewitnesses.

[¶ 18.] Finally, in Hays, 2002 SD 59 at ¶¶ 8, 10 & 24, 645 N.W.2d at 594, 600, this Court found no prejudice in the trial court’s failure to give or counsel’s failure to request accomplice instructions. The record in this case, where the jury was cautioned orally during Wood’s testimony and, again, later, in writing, to view the accomplice testimony with caution, requires a similar result in light of the overwhelming evidence of Smith’s guilt at trial.

[¶ 19.] Smith urges application of plain error analysis but, under settled law, “ ‘the defendant bears the burden of showing the error was prejudicial.’ ” Rodriguez v. Weber, 2000 SD 128, ¶ 24, 617 N.W.2d 132, 141 (quoting State v. Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d 439, 443).

Plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” We invoke our discretion under the plain error rule cautiously and only in “exceptional circumstances.” Such circumstances may include cases in which “ ‘a miscarriage of justice would otherwise result,’ ” i.e., a defendant is actually innocent.

Id. (alteration in original) (internal citations omitted).

[¶ 20.] Because this is a habeas proceeding, Smith must make a greater showing to establish plain error than if the matter had been raised on direct appeal. Williams v. Calderon, 48 FSupp2d 979, 997 (C.D.Cal.1998) (citing Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)), vacated in part on other grounds by 384 F.3d 567 (9thCir.2004).

[¶ 21.] The error in this case did not affect Smith’s substantial rights because Smith’s convictions were not substantially procured by the accomplice testimony. In fact, the record indicates overwhelming evidence of Smith’s guilt completely independent of the accomplice testimony. In addition, the cautionary instruction, given orally during the trial and in writing after the conclusion of the evidence, together with the other instructions gave adequate notice regarding the accomplice testimony. Therefore, we decline to invoke our discretion under the plain error rule and conclude the error in not giving or not requesting the corroboration instruction was harmless.

[¶22.] Smith claims in his remaining issues that he received ineffective assistance of habeas counsel at his first and second habeas hearings. Under Jackson v. Weber, 2001 SD 136, ¶ 17, 637 N.W.2d 19, 23, the standard of review for ineffective habeas counsel is the Strickland standard: “[I]neffective assistance of counsel at a prior habeas proceeding is not alone enough for relief in a later habeas action. Any new effort must eventually be directed to error in the original trial or plea of guilty.” (emphasis added).

[¶ 23.] Smith raised thirty-three issues in his first habeas, all of which were rejected as grounds for habeas relief. Smith did not appeal that decision but instead opted to file a second habeas petition in which he raised several issues including, for the first time, the failure to properly instruct. Throughout these proceedings Smith has failed to establish reversible error in “the main event”, the original trial. Therefore, Smith’s claims of ineffective assistance of habeas counsel must fail. See Crutchfield v. Weber, 2005 SD 62, ¶21, 697 N.W.2d 756, 761 (applicant’s failure to show prejudice in original trial or guilty plea proceedings requires denial of subsequent application for habeas relief).

[¶ 24.] We affirm the trial court’s denial of habeas relief.

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

[¶ 26.] WILBUR, Circuit Judge, for MEIERHENRY, Justice, disqualified.

      . As a result of court reorganization Lincoln County was transferred from the First Judicial Circuit to the Second Judicial Circuit. (Supreme Court Order, Aug. 10, 1999).


author: MEIERHENRY, Justice. ZINTER, Justice

text:
    2005 SD 86
    The PEOPLE of the State of South Dakota in the Interest of O.S., Child(ren), and concerning S.E.H., Appellant, and M.S., Interested Party.
    No. 23420.
    Supreme Court of South Dakota.
    Considered on Briefs May 23, 2005.
    Decided July 13, 2005.

      Thomas M. Diggins, Pennington County Public Defender’s Office, Rapid City, South Dakota, Attorneys for appellant Mother S.E.H.
    Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
   MEIERHENRY, Justice.

[¶ 1.] This is an appeal from a Final Dispositional Order terminating Mother’s parental rights to her minor child, O.S., a member of the Cheyenne River Sioux Tribe.

FACTUAL BACKGROUND

[¶ 2.] The termination of Mother’s parental rights to O.S. was ultimately due to her alcoholism. Mother had seven children prior to O.S. and had been involved with social services in another state. Her parental rights to one of the children had been terminated. The other children were being raised by their grandmothers. Mother became aware that she was four months pregnant with O.S. during an involuntary commitment to a detoxification facility. The Department of Social Services (DSS) entered into a case plan with her to address her alcohol dependence. She was placed in an alcohol treatment facility for the remainder of her pregnancy-

[¶ 3.] She gave birth to O.S., a Native American child, in November of 2002. Fetal Alcohol Effect was suspected but not confirmed. Mother and child remained at the treatment facility until February 2003, when Mother left against the staffs advice. Within three days, Mother relapsed. She then re-entered the facility and remained there until being discharged on April 1, 2003. Within a month after her discharge, she again relapsed. She checked herself back into the detoxification facility, at which time O.S. was removed from her custody. The next several months were fraught with relapses culminating in a petition to terminate Mother’s parental rights to O.S.

[¶ 4.] On August 4, 2003, O.S. was adjudicated as an abused and neglected child. The Cheyenne River Sioux Tribe (CRST) intervened on August 11, 2003. See 25 U.S.C. § 1911(c). A number of review hearings followed. Throughout this process, the DSS social worker assigned to the case made various efforts to reunite the family, all of which were unsuccessful. A final dispositional hearing to terminate parental rights was held on July 12, 2004.

[¶ 5.] Because of O.S.’s status as a Native American, the Indian Child Welfare Act (ICWA) applied to the proceedings. Pursuant to ICWA, the testimony of a qualified expert witness was required to terminate parental rights. 25 U.S.C. § 1912(f). To meet this requirement the State offered the testimony of Sarah Trim-ble, who had been a social worker with DSS for over four years. The trial court qualified Trimble as an expert witness over the objection of Mother and CRST. Trimble testified that continued custody of O.S. by Mother would likely result in serious emotional or physical damage to O.S.

[¶ 6.] The Tribe sought to offer testimony from its ICWA expert by telephone. The Tribe’s plan to have its expert tele-phonically testify was not brought before the court until the morning of hearing. The court denied the telephonic testimony because it was untimely offered and because the judge felt it would have been difficult to judge credibility over the telephone. Ultimately, the trial court terminated the parental rights of Mother. Mother appeals and raises three issues.

ISSUES

I. Whether the trial court erred by qualifying the State’s ICWA expert.

II. Whether the trial court erred by refusing to allow the intervening Tribe’s proposed ICWA expert witness to appear telephonieally at the final disposition hearing.

III.Whether the trial court erred by finding that serious emotional or physical damage would occur if O.S. were returned to the care of Mother.

STANDARD OF REVIEW

[¶ 7.] In abuse and neglect cases where termination of parental rights is sought, the evidence must establish beyond a reasonable doubt that “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” People ex rel. M.H., 2005 SD 4, ¶ 10, 691 N.W.2d 622, 624-25 (citing 25 U.S.C. § 1912(f)). The evidence must include the testimony of a qualified expert. Id. The standard of review for a trial court’s qualification of an expert witness is abuse of discretion. In re D.M., 2003 SD 49, ¶ 19, 661 N.W.2d 768, 773. We recently stated:

We do have firm guidance as to whom shall be expert witnesses in South Dakota: A witness is an expert witness and is qualified to give expert testimony if the judge finds that to perceive, know or understand the matter concerning which the witness is to testify, requires special knowledge, skill, experience or training and that the witness has the requisite special knowledge, skill, experience or training. The qualifications and competency of a witness to give opinion evidence is primarily in the discretion of the trial court and his ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert or the trial court has proceeded upon erroneous legal standards.

People ex rel. M.H., 2005 SD 4, ¶ 10, 691 N.W.2d at 625 (quoting Matter of K.A.B.E, 325 N.W.2d 840, 843-44 (S.D.1982)).

[¶ 8.] The underlying task of the expert’s testimony in ICWA cases is to provide the court with an understanding of the social and cultural aspects of Native American families and the childrearing practices of the child’s tribe. We said:

“This testimony is to provide the court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias.” In re L.N.W., 457 N.W.2d 17, 18 (Iowa App.1990).... “One of the problems the ICWA sought to correct was the failure of welfare workers to understand Indian culture and practices concerning the raising of children.” In re D.S., 577 N.E.2d 572, 576 (Ind.1991) (reversing for failure of trial court to inquire into expert witnesses’ qualifications relating to placement of Native American Indian children). “[EJxperts should possess more than simply substantial education and experience in the area of their specialty. Rather, they should have expertise in, and substantial knowledge of, Native American families and their childrearing practices.” Matter of K.H. and K.L.E., [294 Mont. 466] 981 P.2d [1190] at 1193. Such testimony is a “prerequisite” to the termination of parental rights under ICWA. Id.

Id. ¶ 11, 691 N.W.2d at 626.

[¶ 9.]The abuse of discretion standard also applies to a trial court’s decision regarding telephonic testimony. See State v. Brown, 285 N.W.2d 843, 845 (S.D.1979) (“A trial judge is vested with considerable discretion in regulating the manner of examination of witnesses and his exercise of that discretion will not be disturbed unless it has been abused or substantial harm has improperly been done to the complaining party.”). The trial court’s findings of fact are reviewed under the clearly erroneous standard. In re T.A., 2003 SD 56, ¶ 5, 663 N.W.2d 225, 229. “Therefore, the trial court’s decision will be set aside only if after a review of all the evidence, we are left with a ‘definite and firm conviction that a mistake has been made.’ ” Id. (citing Matter of A.M., 292 N.W.2d 103, 105 (S.D.1980)).

DECISION

Qualification of the State’s ICWA Expert

[¶ 10.] Mother contends on appeal that the trial court did not have before it the necessary foundational evidence to qualify the State’s witness, Sarah Trimble, as an ICWA expert. Relying on our recent opinion in People ex rel. M.H., 2005 SD 4, 691 N.W.2d 622, Mother claims that Trimble did not exhibit sufficient knowledge of the customs and culture specific to the child’s tribe, CRST. Although challenging Trimble’s qualifications, Mother does not argue that Trimble lacked an understanding of Native American culture nor that Trimble’s description of CRST’s childrearing practices was inaccurate. Rather, she argues that the State had not sufficiently established a foundation for Trimble’s expertise because Trimble lacked experience with and knowledge of CRST specifically.

[¶ 11.] A trial court’s qualification of an expert depends on the foundational evidence presented at trial. We determined in People ex rel. M.H. that based on the evidence, the trial court had abused its discretion in qualifying the proposed ex-pert. In that case, we emphasized the importance of the expert’s foundational knowledge of the child’s tribe and its chil-drearing practices. Specifically, we determined that the expert was unable to “articulate the cultural or religious differences between the tribes he worked with and the CRST,” was unable to “identify the Lakota kinship structure or who was primarily responsible for raising the children in that structure” and was “unable to identify any services offered by the CRST.” Id. ¶ 13, 691 N.W.2d at 626-27. Additionally, the expert’s knowledge was called into question by evidence and testimony offered by the tribe disputing the accuracy and reliability of the proposed expert’s opinion and the underlying knowledge upon which that opinion was based. Id. ¶ 15 n. 7, 691 N.W.2d at 627 n. 7.

[¶ 12.] In contrast, a review of the record in the case before us shows that the State’s expert had substantial knowledge of Indian culture and childrearing practices. She had gained the knowledge through a variety of experiences throughout her career. Her experiences included participation in various ICWA training courses, some of which were conducted by Native American persons. She also had extensive experience working with Native American families. Part of the experience with Native American families was gained during the last four years in her employment as a social caseworker for DSS. Half of her cases involved Native Americans. She explained that she worked “with both parents and children on voluntary case management, as well as reunification of children in the home, connecting them up with resources and ensuring that the kids knew about their culture.” She testified that this training and experience had made her familiar with the key elements of Native American parenting techniques and childrearing practices, which she described in detail. She also had worked with Native Americans at two of her previous jobs. One of the jobs was with the Black Hills Workshop, where she worked for four years. As part of her duties at the workshop, she took clients to various powwows, hoop dances and other cultural activities. The other job was with Violence Against Women Incorporated as a sexual assault advocate for over two years. Again, approximately half of her clients were Native Americans. Her duties included supporting and advocating for the clients at the criminal proceedings and also “connecting] them up in the community if they wanted to access cultural resources.” Most of her work was with the Oglala Sioux Tribes. In addition to the familiarity with Native American culture gained from her work, she was personally familiar with the culture because she had family members who were Native American.

[¶ 13.] In preparation for her testimony in this case, she contacted the child’s Tribe to verify that her understanding of Native American childrearing practices was consistent with CRST’s practices. Trimble testified that she had contacted the Tribe via telephone and was eventually transferred to someone willing to speak to her about the childrearing practices. She verified from this conversation that CRST’s childrearing practices were similar to those with which she was familiar.

[¶ 14.] As we have consistently held, the trial court has discretion in determining the qualifications of an expert witness. Here there was substantial evidence of Trimble’s expertise in Native American culture and the childrearing practices of Native Americans. There was also evidence that her understanding of general Native American childrearing practices was in accord with CRST’s specific practices. Conversely, there was little evidence before the trial court that questioned the knowledge and accuracy of Trimble’s expertise. Considering the foundation laid by the State and the lack of any specific challenge to this expertise by Mother, the trial court did not abuse its discretion in qualifying the expert.

Exclusion of Telephonic Testimony

[¶ 15.] At the final dispositional hearing, the attorney for the Tribe offered the telephonic testimony of its own ICWA expert. The matter of the telephonic appearance was brought before the court for the first time on the morning of the hearing. The trial court refused to allow such an appearance, partly due to the difficulty in judging the credibility of telephonic testimony. Mother asserts that this refusal to allow telephonic testimony was error.

[¶ 16.] Mother cites no authority for the premise that a trial court is required to allow telephonic testimony. She concedes that it was within the trial court’s discretion to allow or exclude such testimony. The trial court’s responsibility at a disposi-tional hearing is to “consider evidence regarding proper disposition of the child best serving the interests of the child with due regard to the rights and interests of the child’s parents, guardian, custodian, other parties respondent, the public and the state.” SDCL 26-7A-90. Evidence at the dispositional phase “may include social study reports, mental and medical examination and evaluation reports, homestudy investigation reports and any other evidence related to appropriate disposition of the child.” Id. An expert’s testimony can also be offered by deposition. SDCL 26-7A-79.

[¶ 17.] Here the trial court’s exclusion of the telephonic testimony of the Tribe’s proposed expert was based on the untimeliness of the request and the court’s legitimate concern over its ability to judge the credibility of the telephonic testimony. Additionally, Mother does not indicate how she was prejudiced by the exclusion. “The trial court has broad discretion to determine the mode and manner of witness’ testimony and will be reversed only for abuse of that discretion.” State v. Alidani, 2000 SD 52, ¶ 17, 609 N.W.2d 152, 157. We cannot say that the trial court abused its discretion by excluding the testimony. See Byrd v. Nix, 548 So.2d 1317, 1319-20 (Miss.1989). See also In re Guardianship/Conservatorship of Van Sickle, 694 N.W.2d 212, 218 (N.D.2005).

Serious Emotional or Physical Damage

[¶ 18.] Under ICWA, the court must make “a determination, supported by evidence beyond a reasonable doubt, including the testimony of a qualified expert witness, 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.” 25 USC § 1912(f). We have determined that the testimony of a qualified expert witness was provided. Mother contends that despite this testimony, the evidence was insufficient to meet the ‘beyond a reasonable doubt’ burden of proof. She argues that although she does have alcohol abuse problems, the State established no causal relationship between her alcohol abuse and potential emotional and physical damage to the child. Essentially, her argument is that while there is substantial evidence of her alcohol abuse, there is little evidence that her alcohol abuse and resulting behaviors are likely to harm the child.

[¶ 19.] Initially, we emphasize that the evidence shows a very serious long-term alcohol abuse problem. It takes little imagination to foresee the negative consequences such abuse would have in respect to raising a child. More importantly, some of these foreseeable consequences had already manifested. At birth, O.S. showed signs of Fetal Alcohol Effect. There was testimony at the hearing that O.S. was behind developmentally and was very small for his age. There was also testimony that at least once prior to DSS taking custody of the child, Mother, while on an extended drinking binge, had forgotten with whom she had left O.S. Only after checking with numerous friends was Mother able to locate O.S. There was also testimony that Mother had been involved in two verbally and possibly physically aggressive altercations with O.S.’s father in the presence of O.S. Alcohol was involved and police were called to the scene on both occasions. After DSS took custody, Mother’s repeated and unsuccessful attempts at rehabilitation resulted in her spending little time with O.S. and caused O.S. to remain in the care of third parties. During these times, Mother would occasionally miss scheduled visitations due to intoxication, and on one occasion she attempted to visit O.S. while intoxicated. The trial court recognized that Mother loved her child but found that her inability to fulfill her role as a parent and guardian made anything less than termination contrary to the child’s best interests and likely to result in serious physical or emotional damage to O.S. We cannot with a definite and firm conviction say that the trial court erred.

[¶ 20.] We affirm.

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

[¶ 22.] ZINTER, Justice, concurs in result.

ZINTER, Justice

(concurring in result).

[¶ 23.] I join the Court’s opinion on all issues except the ICWA expert witness dispute. I concur in result on that issue because this Court has routinely approved the qualification of ICWA experts with equal or lesser qualifications than those presented in this record. See Matter of K.A.B.E., 325 N.W.2d 840 (S.D.1982); In re D.M., 2003 SD 49, 661 N.W.2d 768. Therefore, the trial court correctly concluded that this expert met the requirements of ICWA.

[¶ 24.] However, this Court affirms on the basis that the expert met the requirements of People ex rel. M.H., 2005 SD 4, 691 N.W.2d 622. That case imposed a new tribal specificity requirement for qualification as an ICWA expert. Because I disagree with the factual and legal analysis in M.H., I concur in result. See M.H., ¶ 26 et seq. (Zinter, J., dissenting).

[¶ 25.] The weakness of M.H. is exemplified by this case. The record reflects that this proposed expert had familiarity with Native American culture and chil-drearing practices, but had no knowledge of the Cheyenne River Sioux Tribe’s (CRST’s) specific practices. See supra at ¶¶ 12-13. However, this Court approves the expert’s qualifications on the sole basis that, in preparing to testify, the expert contacted the CRST by telephone and “was eventually transferred to someone willing to speak to her about the childrear-ing practices” of the CRST. Supra ¶ 13. Based upon this one phone call to “someone” confirming that general Native American practices were similar to those of the CRST, the Court concludes that the expert met the new tribal specificity standards of M.H.

[¶ 26.] Ironically, this “confirmation of similar practice methodology” was rejected in M.H. Moreover, this expert’s knowledge of the CRST’s specific practices is even less than what was found to be inadequate in M.H. The expert in M.H. had far more knowledge of specific cultural and chil-drearing practices based on fourteen years of work with several Tribes’ Indian people in the area of child abuse and ICWA and:

... through his knowledge of the similarity of childrearing practices among all regional tribes. His particularized knowledge was established through his experience with the Yankton Sioux Tribe and by talking with other experts. From that experience, he was aware of the differences in culture, but the similarity of childrearing practices. More specifically, with respect to culture, [the expert] indicated that he had “some insight, but ... not the particular cultural practices of the Cheyenne River Sioux Tribe.” However, he then explained, without contradiction, that the Yankton Sioux Tribe “is culturally, fairly culturally similar to the other eight Sioux tribes in South Dakota and North Dakota and I’m fairly familiar with their cultures.” Thus, even under a “particular culture” requirement, there was some record evidence of similarity sufficient to satisfy the abuse of discretion standard of review.
More importantly, even if [the expert] possessed no knowledge of cultural differences, an allegation not supported by the record, he unequivocally testified that he did have “specific knowledge of the childrearing practices.” [The expert] explained, again without contradiction, that there were not “significant differences in childrearing practices among the nine Sioux Tribes. They have different cultural practices, but the childrearing practices are essentially the same.” Consequently, even though [the expert] admitted the four deficiencies noted by this Court, he still possessed specific knowledge of the childrearing practices necessary to assist the court in making a dispositional decision under the ICWA.

M.H., 2005 SD 4, ¶¶ 35-36, 691 N.W.2d at 630-31 (Zinter, J., dissenting).

[¶ 27.] Thus, today’s decision adds more confusion to this area of the law. It does so because the disqualified expert in M.H. had substantially more familiarity with the specific childrearing practices of the CRST than the expert qualified in this case. Moreover, although the method of obtaining specific knowledge (by verifying comparative practices with other Tribes) was specifically rejected in M.H., it is approved today. These inconsistencies demonstrate why M.H. should be reconsidered. Because M.H. was not well grounded in fact or law, I decline to join that portion of today’s opinion that applies it.

      . At trial, Mother’s objection to the State's expert was a general objection devoid of the specific grounds now advocated on appeal. It should be noted that because People ex rel. M.H. was decided several months after the trial in this case, neither the trial court nor the parties had the benefit of our decision. The final dispositional hearing in this case was held on July 12, 2004. People ex rel. M.H. was decided on January 5, 2005.

      . The trial court addressed, the Tribe's request as follows:
      The first time I heard from you was this morning when you requested a telephonic conference so your expert witness could appear telephonically. Not now or no way by telephone. You're judging credibility of the witness ...., but you can’t judge it on the telephone and it's not going to happen telephonically, period.

      . Mother admits to having started drinking at age 15. She is now nearly 40 years old. She has attempted rehabilitation a number of times without success and her frequent relapses are generally severe. She discovered she was pregnant with O.S. only after she had been involuntarily committed to a detoxification facility, at which time her PBT was nearly .40, which, by comparison, would be five times the legal limit for driving.

      . Although the case involved the Lower Brule Sioux Tribe, the extent of the qualifications approved by this Court in K.A.B.E., 325 N.W.2d at 843, consisted only of the following:
      The witnesses who testified were a social worker with the South Dakota Department of Social Services and the Director of the Children’s Inn in Sioux Falls. The social worker has worked as such for over four years. She has a bachelor of arts degree in social work and has had contact with Indians on a regular basis. The Children's Inn is a shelter and resource center for children and parents involved with child abuse. The Director had a bachelor of science degree in social work and a year towards her master’s degree. Approximately 30% of the children utilizing the Children’s Inn are Indians.

      .Although the case involved the Rosebud Sioux Tribe, the extent of the qualifications approved by this Court in DM., 2003 SD 49, ¶ 20, 661 N.W.2d at 773, consisted only of the following:

        [The proposed expert's] testimony revealed that she possessed the following qualifications: she managed the child protection program for five counties in South Dakota, including an area encompassing the Pine Ridge Indian Reservation; she had been employed by DSS for approximately fifteen years; she had prior experience in handling delinquent youth; she worked with tribal court and tribal agencies; she worked with Native American clients of the child protection program; she had attended several trainings relating to issues of family violence and child services for Native American families; she had attended trainings on ICWA and had previously been qualified as an ICWA expert.

      . It is noteworthy that there is nothing in the text of ICWA that requires specialized knowledge of the child's tribe. The Act merely provides:
      No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
      25 USCA § 1912(f) (1978).