author: VANDE WALLE, Chief Justice.

text:
    2004 ND 81
    Barry Caesar GARCIA, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20030162, 20030307.
    Supreme Court of North Dakota.
    April 13, 2004.
    Rehearing Denied May 5, 2004.

      Richard J. Henderson, Nilles, Hansen & Davies, Ltd., Moorhead, MN, for petitioner and appellant.
    Birch Peterson Burdick, State’s Attorney, Fargo, for respondent and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Barry Caesar Garcia appealed from judgments denying his applications for post-conviction relief. We affirm.

I

[¶ 2] In West Fargo on November 15, 1995, Cherryl Tendeland was sitting in the front passenger seat of a car when she was shot and killed by a young man who fired a sawed-off shotgun through the front passenger window of the vehicle. Her husband, Pat Tendeland, was driving the vehicle, and Connie Guler, a friend, was in the backseat. Pat Tendeland was wounded in the shooting. The State arrested Garcia, then sixteen years old, and three other young men for the crime. Garcia was transferred from juvenile court to the district court and convicted of murder and aggravated assault. He was sentenced to life in prison without parole for the murder conviction and five years imprisonment for the aggravated assault conviction. On appeal, we affirmed the trial court’s decision. See State v. Garcia, 1997 ND 60, 561 N.W.2d 599.

[¶ 3] In March 1998, Garcia filed an application for post-conviction relief, contending he received ineffective assistance from his trial counsel during various stages of the trial. Specifically, Garcia contended trial counsel was ineffective during voir dire; ineffective for failing to sequester Mr. Tendeland, a prosecution witness, during the trial; ineffective for failing to adequately respond to alleged juror misconduct; and ineffective for failing to investigate potential witnesses and present mitigating evidence during sentencing. The trial court denied Garcia’s claims. Garcia appealed, and we temporarily remanded the case to allow the trial court to act on Garcia’s second application for post-conviction relief filed in May 2003.

[¶ 4] In Garcia’s second application for post-conviction relief, he contended trial counsel was ineffective during cross-examination of Mr. Tendeland. The trial court denied Garcia’s second application, finding it was a “misuse of process and/or res judicata” because it should have been raised in Garcia’s first application. Garcia appealed, and we consolidated the two appeals. On appeal, Garcia claims the trial court erred in denying his applications for post-conviction relief and seeks reversals of the judgments. He requests a new trial or, in the alternative, a new sentencing hearing.

II

[¶ 5] The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156. To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Robertson, 502 N.W.2d 249, 251 (N.D.1993). “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240 (quoting Strickland, at 688). Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. Id. (quoting Lange v. State, 522 N.W.2d 179, 181 (N.D.1994)).

The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Syvertson v. State, 2000 ND 185, ¶ 22, 620 N.W.2d 362. “A criminal defendant has the ‘heavy,’ ‘demanding’ burden of proving counsel’s assistance was ineffective,” Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995), and a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18.

McMorrow v. State, 2003 ND 134, ¶ 10, 667 N.W.2d 577. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, at 694. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. at 697.

[¶ 6] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Varnson v. Satran, 368 N.W.2d 533, 536 (N.D.1985). “The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this court. However, a trial court’s findings of fact in actions for post-conviction relief will not be disturbed unless clearly erroneous, pursuant to N.D.R.Civ.P. 52(a).” Breding v. State, 1998 ND 170, ¶ 4, 584 N.W.2d 493 (citing Falcon v. State, 1997 ND 200, ¶ 21, 570 N.W.2d 719, and Frey v. State, 509 N.W.2d 261, 263 (N.D.1993)).

A.

[¶ 7] Garcia argues trial counsel provided ineffective assistance during voir dire. Prior to trial, Garcia made a motion to change the venue of the trial, claiming a fair trial before an impartial jury was not possible in Fargo because of pretrial publicity and racial bias against Hispanic people. The trial court took the motion under advisement, stating it would wait until voir dire was completed before deciding whether an impartial jury could be selected. See State v. Ellis, 2000 ND 177, ¶ 10, 617 N.W.2d 472 (quoting State v. Norman, 507 N.W.2d 522, 526 (N.D.1993)). During voir dire, Garcia claims trial counsel asked perfunctory questions, failed to ask follow-up questions, and tried to rehabilitate jurors who expressed bias or preconceived ideas about Garcia’s guilt. At the evidentiary hearing, Garcia presented testimony from Dr. Ann Burnett regarding trial counsel’s performance during voir dire. She testified that some members of the venire panel were not questioned regarding their feelings about Garcia’s guilt, trial counsel failed to strike a juror who indicated she associated Hispanic individuals with juvenile gangs, and failed to make sure a potential juror who came to the case with preconceived notions of Garcia’s guilt would not be biased. Garcia argues the only way to rectify the inadequate voir dire is to grant him a new trial because prejudice can be inferred. The trial court found trial counsel’s method of conducting voir dire did not fall below an objective standard of reasonableness.

■ [5,6] [¶ 8] Counsel’s actions during voir dire are considered matters of trial strategy. Miller v. Francis, 269 F.3d 609, 615 (6th Cir.2001). “An unsuccessful trial strategy does not make defense counsel’s assistance defective, and we will not second-guess counsel’s defense strategy through the distorting effects of hindsight.” Breding, 1998 ND 170, ¶ 9, 584 N.W.2d 493. After reviewing the record, we are convinced trial counsel’s representation during voir dire did not fall below the objectively reasonable standard established by Strickland. Voir dire was conducted through the use of jury questionnaires and questioning by the court and counsel. It is reasonable to conclude trial counsel reviewed and evaluated the questionnaires because, prior to conducting voir dire of the venire panel, he sought and received the dismissal of three potential jurors based upon their answers in the questionnaires. Trial counsel testified he used the questionnaires and the questionnaires “went into ethnic biases and prejudices, some questions about gang activity, that type of thing.” Although the questionnaires were not used by the parties during the post-conviction relief proceedings, the questionnaires of the potential jurors dismissed before voir dire of the whole panel are a part of the entire record for review on appeal. The questionnaires contained inquiries regarding whether the potential jurors believed race affects the likelihood that a person will commit crimes and addressed whether the potential jurors had heard or read about crimes involving criminal street gang activity in the Fargo area.

[¶ 9] Trial counsel also filed an affidavit, in which he indicated that he uses jury selection as an “education process.” He testified that he approaches voir dire in highly publicized cases such as Garcia’s to “try and get through to [the jurors] that they have to base their ultimate deliberation on what they heard from the witness stand, not what they read in the newspapers before court.” Regarding biases and prejudices in cases involving minorities, he stated, “If [potential jurors] have those prejudices or biases, you have to try and determine whether or. not they would be able to put them aside and decide the case on a fair and impartial basis.”

[¶ 10] We agree with the Sixth Circuit that “criminal defense lawyers should be given broad discretion in making decisions during voir dire. Few decisions at trial are as subjective or prone to individual attorney strategy as juror voir dire, where decisions are often made on the basis of intangible factors.” Miller, 269 F.3d at 620. Trial counsel in this case did not ask all prospective jurors the same questions, but each member of the final jury panel essentially indicated they could be fair and impartial. We agree that

[t]o hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Hughes v. United States, 258 F.3d 453, 459 (6th Cir.2001) (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). To hold that trial counsel’s assistance fell below an objective standard of reasonableness in this case would impose a similarly impossible standard upon criminal defense lawyers.

[¶ 11] Garcia’s trial counsel did not simply “go through the motions” in voir dire. He sought a change of venue, was successful in having potential jurors dismissed before voir dire based on then-responses to the questionnaires, challenged jurors for cause during voir dire, and exercised five peremptory challenges. These strategic decisions were made based on his goal to educate the jury and choose a fair, impartial jury which would not be influenced by the publicity surrounding the case or by racial prejudice. This is not an unreasonable goal in choosing a jury, and trial counsel’s strategy in reaching that goal was not objectively unreasonable. We conclude the district court did not err as. a matter of law and it was not clearly erroneous for it to find trial counsel’s representation did not fall below an objective standard of reasonableness.

B.

[¶ 12] Garcia contends trial counsel was ineffective because he failed to sequester Pat Tendeland, a prosecution witness, during, the trial. In a statement to police prior to trial, Mr. Tendeland was unable to remember the color of the assailant’s jacket. But, after attending the trial and observing other witnesses’ testimony, he testified the assailant had been wearing a green jacket. Garcia claims the prejudice caused by Mr. Tendeland’s testimony can only-be cured by a new trial. The trial court found there was no prejudice to Garcia by failing to sequester Mr. Tendeland because his inconsistent testimony likely harmed his credibility in front of the jury and there was plenty of other evidence upon which to convict Garcia.

[¶ 13] After reviewing the record of the criminal trial, we agree with the trial court’s finding that there was ample evidence presented at trial concerning Garcia’s guilt. Further, trial counsel stated in his affidavit that he did not object to Mr. Tendeland attending the trial because his testimony was “ ‘locked’ in,” and trial counsel pointed out on cross-examination that Mr. Tendeland previously stated the assailant had been wearing a dark-colored jacket. To claim Garcia was somehow prejudiced by witness testimony that was inconsistent with a prior statement made to the police is highly speculative. “Counsel’s decision to have witnesses sequestered falls in the area of trial strategy,” Fernandez v. United States, 553 F.Supp. 260, 266 (S.D.N.Y.1982), and we conclude Garcia’s trial counsel was not ineffective for failing to sequester Mr. Tendeland during the criminal trial. See State v. Tiessen, 354 N.W.2d 473, 477 (Ct.App.Minn.1984) (“There is no merit to the suggestion of ineffective counsel simply because counsel failed to request sequestration of witnesses”).

C.

[¶ 14] Garcia contends trial counsel was informed that at least one juror was seen talking with non-jurors during breaks in the trial and that there was no objectively reasonable basis not to bring this to the trial court’s attention. He argues prejudice may be presumed when counsel fails to take appropriate action in response to juror misconduct, or that a new trial is required because he was deprived of an opportunity to show actual prejudice. In its order dated July 31, 2000, the trial court found Garcia’s claim of ineffective assistance of counsel on this issue to be without merit based on the affidavits of trial counsel and Jill Johnson-Danielson.

[¶ 15] Garcia relies on Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), for the proposition that prejudice may be presumed when counsel fails to take appropriate action in response to juror misconduct. In Rem-mer, the United States Supreme Court stated, “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.” 347 U.S. at 229, 74 S.Ct. 450 (emphasis added) (evaluating a remark made to a juror that he could profit by returning a verdict in favor of the petitioner). The evidence presented did not indicate any communication between the jury and non-jurors regarding Garcia’s trial. Without an allegation or any proof that the communication was related to the trial or somehow prejudiced Garcia, the district court did not err in dismissing Garcia’s claim on this issue.

D.

[¶ 16] Garcia claims his trial counsel was ineffective during the sentencing phase of trial. The Strickland test for ineffective assistance of counsel applies during capital sentencing proceedings because they are sufficiently similar to a trial. 466 U.S. at 686, 104 S.Ct. 2052. The Strickland Court declined to apply its standard to ordinary sentencing proceedings “which may involve informal proceedings and standardless discretion in the sentencer.” Id. However, the standard has been applied in cases involving claims of ineffective assistance of counsel that did not involve capital offenses. E.g. Lindsey v. United States, 310 F.3d 606, 607 (8th Cir.2002) (applying the Strickland test to petitioner’s claim of ineffective assistance of counsel during sentencing on drug-related charges). “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

[¶ 17] At sentencing, the trial court evaluated the sentencing factors set forth in section 12.1-32-04, N.D.C.C. That section provides the following factors shall be accorded weight in sentencing an individual to imprisonment:

1. The defendant’s criminal conduct neither caused nor threatened serious harm to another person or his property.
2. The defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property.
3. The defendant acted under strong provocation.
4. There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant’s conduct.
5. The victim of the defendant’s conduct induced or facilitated its commission.
6. The defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury which was sustained.
7. The defendant has no history of pri- or delinquency or criminal activity, or has led a law-abiding life for a substantial period of time before the commission of the present offense.
8. The defendant’s conduct was the result of circumstances unlikely to recur.
9. The character, history, and attitudes of the defendant indicate that he is unlikely to commit another crime.
10. The defendant is particularly likely to respond affirmatively to probationary treatment.
11. The imprisonment of the defendant would entail undue hardship to himself or his dependents.
12. The defendant is elderly or in poor health.
13. The defendant did not abuse a public position of responsibility or trust.
14.The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise cooperated.

N.D.C.C. § 12.1-32-04. The trial judge also considered other factors, stating,

There are a couple of other factors that the Court deems to be significant. The first is Mr. Garcia’s youth. All human beings possess certain inalienable attributes. And one of these is the possibility of redemption or rehabilitation. It is possible for a person to undergo, as a result of a life-changing circumstance, youth, spiritual, and personal change. These types of changes are more likely to occur in young people than they are in older people because, in young people, their personalities are still in formation.
However, in order for this to be accomplished, the person must be willing to admit the wrongfulness of their conduct, their powerlessness to change what has already happened, and to express a real willingness to make amends to the fullest extent possible.
In this case, Mr. Garcia has not demonstrated that he understands the seriousness of his crime or that he has changed as a result of his experiences.
My personal philosophy is that particularly young people are capable of changing, they are capable of reforming their lives, that they are capable of starting anew.
I came to this case, looking for some reason, some justification, some excuse, to hand down a sentence less than the maximum. Mr. Garcia has given me no alternative, he has given me no opportunity.

[¶ 18] In Garcia’s appeal from his criminal convictions, he asserted his due process rights were violated and he received a cruel and unusual sentence because the court did not inquire into mitigating factors not articulated by trial counsel or the presentence investigation report. Garcia, 1997 ND 60, ¶¶ 54-55, 561 N.W.2d 599. In holding that the trial court did not have a constitutional duty to affirmatively seek out mitigating circumstances, we observed that “Garcia was given an opportunity to offer evidence of mitigating circumstances during the pre-sentence investigation and during the sentencing hearing,” but neither he nor his lawyer offered any. Id. at ¶ 58. Garcia now asserts his trial counsel was ineffective for failing to interview potential character witnesses and present mitigating evidence relating to Garcia’s troubled childhood.

[¶ 19] Garcia relies on Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), to support his claim that counsel was ineffective during sentencing. In Wiggins, the United States Supreme Court held that Wiggins’ counsel were ineffective in their investigation of mitigating evidence in Wiggins’ life history. 123 S.Ct. at 2541-42. The Court concluded the mitigating evidence already known to Wiggins’ counsel would have lead a reasonable' attorney to investigate further and present the powerful mitigating evidence that should have been discovered, and had this evidence been presented to the jury, there was a reasonable probability Wiggins would have received a different sentence. Id. at 2538, 2542^43. Wiggins is distinguishable from Garcia’s case in two material aspects. First, Wiggins involved a capital sentencing proceeding in front of a jury. Id. at 2532. In Garcia’s case, sentencing was held before a judge who was presented with a presentence investigation report, which included Garcia’s family history and other relevant information. Second, the petitioner in Wiggins provided the following extensive evidence regarding information that was not discovered by his trial counsel:

According to [a licensed social worker’s] report, [Wiggins’] mother, a chronic alcoholic, frequently left Wiggins and his siblings home alone for days, forcing them to beg for food and to eat paint chips and garbage. Mrs. Wiggins’ abusive behavior included beating the children for breaking into the kitchen, which she often kept locked. She had sex with men while her children slept in the same bed and, on one occasion, forced [Wiggins’] hand against a hot stove burner — an incident that led to [his] hospitalization. At the age of six, the State placed Wiggins in foster care. [His] first and second foster mothers abused him physically, and, as [Wiggins] explained to [the social worker], the father in his second foster home repeatedly molested and raped him. At age 16, [Wiggins] ran away from his foster home and began living on the streets. He returned intermittently to additional foster homes, including one in which the foster mother’s sons allegedly gang-raped him on more than one occasion. After leaving the foster care system, Wiggins entered a Job Corps program and was allegedly sexually abused by his supervisor.

Id. at 2533. Garcia did not provide such sufficient evidence in support of his application for post-conviction relief.

[¶ 20] Instead, the most relevant portions of Garcia’s life history, which he now asserts as mitigating evidence, were presented to the trial court in the presen-tence investigation report. Garcia claims at least eight witnesses offered to give favorable testimony about his character and background at the sentencing hearing. The potential witnesses’ testimony at the post-conviction hearing and their respective affidavits indicate that they would have generally testified that Garcia had a troubled childhood, his mother had been murdered, his father was in prison, he was a good friend and family member, and that he could be repentant and reform himself. The evidence regarding his childhood and family history was presented to the trial court in the presentence investigation report, and a review of the sentencing transcript does not indicate Garcia was prejudiced by the absence of the remaining purported testimony because the trial court was looking for some evidence that Garcia had accepted responsibility for his crime or that he had changed as a result of his experiences. Given the unprovoked, brutal nature of the crimes and Garcia’s history of violent crimes and probation violations evidenced in the presentence investigation report, there is no reasonable probability that the purported witness testimony would have changed the sentence imposed. See Strickland, 466 U.S. at 700, 104 S.Ct. 2052 (stating “at most this evidence shows that numerous people who knew respondent thought he was generally a good person”). Assuming Strickland applies to the sentencing phase of Garcia’s trial, we conclude the trial court did not err in finding Garcia was not prejudiced by trial counsel’s representation during sentencing.

E.

[¶21] In his second application for post-conviction relief, Garcia contended trial counsel was ineffective in cross-examining Mr. Tendeland. The trial court denied the second application for post-conviction relief because it found it was a variation of Garcia’s ineffective assistance of counsel claim raised in his first application, and there did not appear to be any excuse for failing to raise the particular issue in the first petition.

[¶ 22] Section 29-32.1-12, N.D.C.C., provides:

1. An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.
2. A court may deny [postconviction] relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postcon-viction proceeding; or
b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.
3. Res judicata and misuse of process are affirmative defenses to be pleaded by the state. The burden of proof is also upon the state, but, as to any ground for relief which, by statute or rule of court, must be presented as a defense or objection at a specified stage of a criminal prosecution, the applicant shall show good cause for noncompliance with the statute or rule.

“A defendant ‘... misuse[s] the post-conviction process’ by initiating a subsequent application raising issues that could have been raised in an earlier proceeding.” Silvesan v. State, 1999 ND 62, ¶ 10, 591 N.W.2d 131(quoting State v. Johnson, 1997 ND 235, ¶ 12, 571 N.W.2d 372); see also Murchison v. State, 2003 ND 38, ¶ 13, 658 N.W.2d 320 (holding that defendant could not raise ineffective assistance of counsel in a subsequent application for post-conviction relief because he inexcusably failed to raise the issue in his initial post-conviction application). A defendant must show an excuse, such as newly discovered evidence, which could not have been raised in the first application for post-conviction relief. See Berlin v. State, 2000 ND 206, ¶ 15, 619 N.W.2d 623. Likewise, a defendant is not entitled to repetitious post-conviction relief when the contentions raised on appeal are simply variations of previous arguments. State v. Johnson, 1997 ND 235, ¶ 13, 571 N.W.2d 372. We have not found, and Garcia has not specified, any reason why this claim could not have been raised in his first application for post-conviction relief, and we conclude the trial court did not err in denying Garcia’s second application for post-conviction relief.

F.

[¶23] Garcia argues that even if trial counsel’s individual acts or omissions are insufficient to establish he was prejudiced, the cumulative effect was substantial enough to meet Strickland’s test. See Williams v. Washington, 59 F.3d 673, 682 (7th Cir.1995) (“In making this showing, a petitioner may demonstrate that the cumulative effect of counsel’s individual acts or omissions was substantial enough to meet Strickland’s test”); but see Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir.1990) (“cumulative error does not call for habeas relief, as each habeas claim must stand or fall on its own”). If we were to accept Garcia’s position that ineffectiveness of counsel may be proven cumulatively, our confidence in trial counsel’s overall performance and in the result of the trial has nevertheless not been undermined.

[¶ 24] For the reasons stated, the judgments of the district court are affirmed.

[¶ 25] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2004 ND 80
    Robert KELLER, Plaintiff and Appellee, v. Mildred BOLDING, individually and as Trustee of the Kamrath Family Trust, Defendant and Appellant.
    No. 20030221.
    Supreme Court of North Dakota.
    April 13, 2004.

      Ronald A. Reichert, Reichert & Herauf, P.C., Dickinson, for plaintiff and appellee.
    James D. Gion, Gion Law Office, Regent, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Mildred Bolding, individually and as Trustee of the Kamrath Family Trust appealed from a judgment entered in Robert Keller’s action for intentional interference with his farm lease contract. We conclude the trial court’s findings that Bolding wrongfully terminated Keller’s lease and that Keller was entitled to recover $20,000 for lost profits are not clearly erroneous. We affirm.

I

[¶ 2] On November 1, 1999, Keller leased from Bolding farmland he had previously leased from Bolding’s parents for 16 years. The lease covered 402 acres, of which 343 were subject to cultivation, specified a term running from December 1, 1999, and ending December 1, 2002, and fixed an annual cash rent of $7,000. The lease, which was copied from the one Keller had with Bolding’s parents, (1) required Keller “to well and faithfully till and farm the same in a good and farmer-like manner, according to the usual course of good husbandry” according to specified terms and conditions; (2) provided that Keller was to leave 100 acres of summer fallow at the end of the lease or pay $10 for each acre less than 100 or receive $10 for each acre over 100 acres; (3) provided Keller “may not sub-lease the cultivated acreage”; and (4) provided Bolding could terminate the lease if Keller should “fail to do and perform any of the conditions of this lease.”

[¶ 3] Bolding observed hunters on the land on October 17, 2001, and met with Keller the next day. On October 19, 2001, Bolding gave Keller a written notice terminating the lease “effective immediately, based upon your failure to control noxious weeds, [and] to faithfully till and farm ... in a good and farmer-like manner.” That same day, Bolding executed a habitat agreement with Cannonball Company and placed no hunting signs on the land.

[¶ 4] Keller sued, alleging, in part, that “Bolding terminated the Lease so that she and other family members could share in the income from the property, especially the hunting fees and income,” and that Bolding’s recision of the lease was an intentional interference with his contract. Bolding answered the complaint, denying the lease was terminated to share in income from the property and denying interference with Keller’s contract. Bolding also counterclaimed, alleging, in part:

3. In the late summer of 2001, the Trust, through Bolding as Trustee, became aware of the Plaintiffs fee hunting operation being conducted upon the described property.
6. Upon reviewing the leased property, an infestation of noxious weeds was noted, as well as unharvested grain left standing, both in contravention of the terms of the lease.
7. Bolding met some unknown hunters when she went to look at the property on or about October 18. In a discussion with the hunters, she was informed by them that the Plaintiff was charging each hunter a fee of $150.00 per day per gun.
8. Bolding scheduled a meeting with the Plaintiff to discuss the problems with his operation, of the property and his fee hunting operation, but the Plaintiff refused to address the basic concerns of Bolding.
9. The actions of the Plaintiff were in violation of the terms of the lease in that the Plaintiff failed to “faithfully till and farm the same in a good and farmer-like manner according to the usual course of good husbandry.”
10. The Plaintiffs fee hunting operation was in violation of paragraph 4(C) of the lease which prohibited the sublease of any of the cultivated acreage. In addition, the fee hunting operation was beyond the scope of the agreement in that the lease was for agricultural purposes. The Plaintiff thereby converted the use of the property for hunting purposes to his own uses.

. [¶ 5] On -April, 4, 2002, the trial court granted Keller’s motion for partial summary judgment, explaining:

Since the lease fails to address hunting, it is subject to the general rule and the plaintiff, as tenant, had the right to control the hunting upon the land which he possessed pursuant to a lease.

[¶ 6] After a trial, the trial court found Bolding wrongfully terminated Keller’s lease and found Keller was entitled to recover damages of $20,000 for lost profits. Judgment was entered accordingly, and Bolding appealed.

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

II

[¶ 8] Bolding contends the trial court failed to address her contention “that the reason for termination of the lease was Keller’s breach of the provision requiring Keller, in the course of good husbandry, to control noxious weeds.”

[¶ 9] Mildred Bolding testified: (1) on October 17, 2001, she saw hunters on the land; (2) “after we were explained to about the hunting program that had started in the last few years and it had become big business then we were concerned as the time went on”; (3) Keller was charging for hunting on the land and “we thought that was subletting the land”; (4) Cannonball Hunting paid Bolding $15 per bird after Bolding cancelled Keller’s lease; (5) she issued a notice of cancellation of the lease on October 19, 2001, “because there were people out on the land that we didn’t feel had the right to be out there”; (6) “we also ... saw all those weeds that were out in there and the land had not been farmed”; (7) at a meeting on October 18, Keller said he had not sprayed for weeds; (8) there were Canada thistles along the creek, the farmland, and the fence, and there were other weeds; (9) “that termination was for the way the crop land looked with all the noxious weeds on the land”; (10) “when we got out there we saw the condition of the ground, we saw the weeds that were at least two-combine widths wide all the way along the sides of the property, the grain was still standing out there, the ground looked like it hadn’t been tilled, the weed[s] were just all over the place”; (11) “the farming should have been in a good farmer like way”; and (12) leaving some grain lying around would be a good thing to do if you are trying to raise pheasants.

[¶ 10] Keller testified: (1) he has had fee hunting the last ten years; (2) to make the land suitable for hunting, he planted food plots, and he fed birds in the wintertime; (8) he left grain unharvested; (4) pheasants like thistle, which is habitat for them, and they eat part of the thistle; (5) wheat is habitat for pheasants; (6) his 5-year average profit was $20,763; (7) he never received any complaints from the weed board or neighbors while he rented the land from the Trust; (8) he sprayed for weeds in 2001; (9) he collected insurance proceeds in years he had no crop; and (10) he made more money in dry years than in others.

[¶ 11] Dale Wegh testified: (1) he rented the land for $8,040 and started farming it in 2002; (2) he farms other land nearby and was familiar with the land; (3) about 90 to 100 acres were infested with Canada thistle; (4) he sprayed the land twice for Canada thistle; (5) he sprays all his land for Canada thistle every year, and it is his practice to spray twice a year; (6) there was standing grain on the land when he took it over; (7) land generally rents for $28 to $32 per tillable acre in the area; (8) he would pay $28 per acre for this land; and (9) his lease on this land contains no restrictions on the manner of cropping, does not require any insurance, and has no summer fallow requirement.

[¶ 12] There was testimony that Keller planted food plots to make the land suitable for hunting, that Keller left grain standing for pheasants, that Canada thistle was growing on the farm, that pheasants like thistle, which is habitat for them, and that pheasants eat part of the thistle. Keller testified he did not receive any complaints from neighbors or the weed board while he rented the farm from the Kam-rath Family Trust. The tenant now farming the land testified he farms other nearby land and was familiar with this land before he rented it. The new tenant also testified he does not allow hunting on the land, he sprays all his land for Canada thistle, and it is his practice to spray twice a year.

[¶ 13] Construing the lease provisions requiring Keller “to well and faithfully till and farm the same in a good and farmer-like manner, according to the usual course of good husbandry,” the trial court found:

First, I am convinced that where no lease language prevents or reserves it, the lessee has the absolute right to hunt game and charge others for the privilege. Secondly, the restrictive lease language quoted above does not necessarily prevent lessee from engaging in farming practices designed to foster and nurture a thriving pheasant population. Raising ringneck roosters and raising wheat need not be mutually exclusive even though the vigorous pursuit of one might inhibit or retard the other. Rather, it is finding that balance of both to which rooster/wheat producers aspire. It appears to me that the plaintiff strove to achieve just that balance. He could have farmed more vigorously, i.e., from fence line to fence line, but that would have destroyed the natural cover for wildlife, and a food source as well. The phrase “good-husbandry” includes preventing waste, augmenting production and adapting the land use so as to not deplete its production capacity. I find that is what the plaintiff did.

[¶ 14] We presume the trial court considered the evidence presented to it. Olson v. Olson, 2000 ND 120, ¶ 7, 611 N.W.2d 892. From our review of the record, we conclude the trial court considered the evidence in light of Bolding’s contention that Keller’s failure to control noxious weeds breached the good husbandry provisions of the lease. Further, we conclude the trial court found that Keller practiced good husbandry.

[¶ 15] “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Dixon v. McKenzie County Grazing Ass’n, 2004 ND 40, ¶ 18, 675 N.W.2d 414. Under N.D.C.C. § 63-01.1-01, it is “the duty of every person in charge of or in possession of land in this state ... to eradicate or to control the spread of noxious weeds on those lands.” Under N.D.C.C. § 63-01.1-02(3), “ ‘[c]ontrol’ means to prevent the spread of any noxious weed.” Under N.D.C.C. § 63-01.1-02(7), “ ‘[eradicate’ ... means to destroy a plant.” Section 7-06-01-02(2) of the North Dakota Administrative Code declares Canada thistle is a noxious weed. Thus, it is against the public policy declared by our legislature for one in possession of land to willfully fail to destroy or prevent the spread of Canada thistle on land in the person’s possession. We conclude, therefore, the trial court’s finding that Keller practiced good husbandry was induced by an erroneous view of the law and is clearly erroneous.

Ill

[¶ 16] Bolding contends terminating the lease was the only reasonable remedy for Keller’s breach of good husbandry.

[¶ 17] Bolding testified she saw hunters on the land on October 17, 2001, met with Keller on October 18, 2001, and issued a notice of cancellation of the lease on October 19, 2001, “because there were people out on the land that we didn’t feel had the right to be out there.” Bolding also testified “that termination was for the way the crop land looked with all the noxious weeds on the land.” The court found that “abruptly and summarily firfing]” Keller “as a renter” was a “wrongful termination of his interest in the leasehold,” which entitled Keller to recover damages. “Whether a party has breached a lease is a finding of fact.” Peterson v. Front Page, Inc., 462 N.W.2d 157, 158 (N.D.1990). “A trial court’s findings of fact on appeal are presumed to be correct, and the complaining party bears the burden of demonstrating a finding is clearly erroneous.” Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256.

[¶ 18] “Equity and the law abhor forfeitures.” Ehrman v. Feist, 1997 ND 180, ¶ 16, 568 N.W.2d 747. We do not favor forfeitures under leases:

“Whether a contract should be canceled for breach depends upon the facts of each case.” Forfeitures of estates under leases are not favored. “A condition involving a forfeiture must be interpreted strictly against the party for whose benefit it is created.” “[T]he granting of relief against forfeitures is one of the most favored heads of equity jurisdiction.”

Helm Bros., Inc. v. Trauger, 389 N.W.2d 600, 603 (N.D.1986) (citations omitted). We have held that before a court will order forfeiture for breach of an implied covenant, “ ‘the lessor must first give notice of the breach and demand that the terms of the implied covenant be complied with within a reasonable time.’” Ridl v. EP Operating Ltd. P’ship, 553 N.W.2d 784, 788 (N.D.1996) (quoting Olson v. Schwartz, 345 N.W.2d 33, 40 (N.D.1984)). Although this is an expressed condition, not an implied covenant, we have held, “[a] contract cannot be arbitrarily terminated under a provision authorizing termination.” Fargo Foods, Inc. v. Bernabucci, 1999 ND 120, ¶ 12, 596 N.W.2d 38. Viewing the evidence and the trial court’s finding that “abruptly and summarily fir[ing]” Keller “as a renter” was a “wrongful termination of his interest in the leasehold,” which entitled Keller to recover damages in that light, we are unable to conclude Bolding has met her burden to establish that the finding is clearly erroneous.

rv

[¶ 19] The trial court found Keller’s lost farm profit for the last year of the lease:

Cross-examination suggests some minor flaws in [Keller’s] calculation of the five-year average so I will adjust his numbers downward somewhat and thereby find and conclude that [Keller] is entitled to $20,000 in lost profits from his small grain production for the final and deprived year of the lease.

Because Keller had no written records from his hunting operation, the court found profits too speculative, and did not award any damages for lost hunting income.

[¶ 20] Bolding contends the trial court erred in determining the amount of damages Keller should recover for wrongful termination of his lease, arguing the evidence was uncertain and there were flawed calculations.

[¶ 21] Evidentiary imprecision on the amount of damages does not preclude recovery. As this Court said in the syllabus in North Am. Pump Corp. v. Clay Equip. Corp., 199 N.W.2d 888, 891 (N.D.1972):

6. Where damages obviously have been suffered and there is no definite evidence available for an exact determination of the amount of damages resulting from a breach of contract, the best evidence which the circumstances will permit is all the law requires.
7. The uncertainty which prevents recovery of damages is the uncertainty of the fact of damages, not the uncertainty of the amount. Where it is reasonably certain that substantial damages have resulted, mere uncertainty as to the exact amount will not preclude recovery.

“In a case where the amount of damages may be hard to prove, the amount of damages is to be left to the sound discretion of the finder of facts.” B.W.S. Investments v. Mid-Am Restaurants, Inc., 459 N.W.2d 759, 764 (N.D.1990).

[¶ 22] A trial court’s determination of the amount of damages caused by a breach of contract is a finding of fact subject to the clearly erroneous standard of review. Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶ 17, 608 N.W.2d 279. “We do not reverse the trial court's factual findings merely because we may view the evidence differently, and a choice between two permissible views of the weight of the evidence is not clearly erroneous.” Krank v. Krank, 2003 ND 146, ¶6, 669 N.W.2d 105. “In reviewing findings of fact, we give due regard to the trial court’s opportunity to assess the credibility and observe the demeanor of the witnesses.” Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555. We view the evidence in the light most favorable to the findings, and we do not reweigh evidence or reassess credibility if there is evidence to support the trial court’s findings. Eberhardt v. Eberhardt, 2003 ND 199, ¶ 5, 672 N.W.2d 659.

[¶ 23] Keller testified his five-year average profit was $20,763. He also testified he made more money in dry years, when he collected insurance proceeds, than in others. Keller testified 2000 was a drier year, and he estimated, “in a conservative manner,” that his loss for 2002 was $25,000. Bolding testified that when she cancelled the lease, she understood “Keller would not be able to receive any profit from farming that land for the year 2002.” It is clear that “damages obviously have been suffered,” North Am. Pump Corp., 199 N.W.2d at 891, Syllabus ¶ 6, from Bolding’s wrongful termination of the lease, although the amount of damages is not mathematically certain.

[¶24] As in Hopkins v. McBane, 427 N.W.2d 85, 95 (N.D.1988), our review has left us unable to give a safe ground upon which we can say that the damage award is so excessive as to justify our interference with it. From our review, we conclude there is evidence to support the trial court’s finding that Keller was entitled to $20,000 in lost profits resulting from the wrongful termination of his lease. We are not left with a definite and firm conviction a mistake has been made in making that finding, which is presumed correct, and Bolding has not met her burden of overcoming the presumption of correctness we accord to the trial court’s finding of fact. We therefore conclude the trial court’s finding of $20,000 in lost profits is not clearly erroneous.

V

[¶ 25] The judgment of the trial court is affirmed.

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


author: KONENKAMP, Justice (on reassignment). SABERS, Justice ZINTER, Justice

text:
    2004 SD 41
    The DEPARTMENT OF SOCIAL SERVICES OF the STATE of South Dakota, ex rel. Julienne C. WRIGHT, Plaintiff and Appellant, v. Bret J. BYER, Defendant and Appellee.
    No. 22609.
    Supreme Court of South Dakota.
    Considered on Briefs April 28, 2003.
    Reassigned July 24, 2003.
    Decided March 31, 2004.
    Rehearing Granted May 7, 2004.
    Wm. Mark Kratochvil, Brookings County Deputy State’s Attorney, Brookings, SD, for plaintiff and appellant.

      Donald M. McCarty of McCann, Rib-stein, Hogan & McCarty, Brookings, SD, for defendant and appellee.
   KONENKAMP, Justice (on reassignment).

[¶ 1.] In this appeal, we are confronted with an instance where the presumption of legitimacy resulted in a child not receiving financial support from either her presumed father or her putative father. Because the mother was pregnant .at the time of the divorce and the husband’s paternity was in doubt, the parties agreed that genetic testing would later resolve the issue. The child was born within ten months of the dissolution of the marriage, and the genetic testing later established that the former husband was not the father. In the action against the putative father to establish his paternity, the circuit court granted summary judgment dismissing the case and refusing to order a blood test. The court ruled that the action was not commenced within the sixty-day statutory period allowed to contest paternity. We conclude that this statute of limitations violates the equal protection guarantees of the South Dakota and United States Constitutions. Thus, it is unconstitutional because it improperly discriminates between children with presumed fathers and children without presumed fathers. We are left, therefore, with both the presumption of legitimacy and the presumption of paternity from genetic testing, which create conflicting presumptions here. We reverse and remand for the circuit court to consider the best interests of the child in resolving the conflict.

Background

[¶ 2.] Julienne Wright and Stephen Stein married on June 24, 1994. Four years later, they became estranged, and Wright moved out of the home. From August to October 1998, she lived with defendant, Bret J. Byer. On February 4, 1999, Wright and Stein divorced. The divorce decree incorporated their stipulation, which provided for joint legal and physical custody of their two sons. The decree also ordered that because custody was to be shared equally neither party would pay any child support. In addition, the stipulation provided: “considering the plaintiff is currently pregnant, the parties agree that a paternity test will be performed after the child is born. If [Stein] is determined [to be] the biological father of the child, the visitation schedule for the minor child will be the same schedule as for the other children, as set forth in this provision.... ” A girl, K.S., was born on May 2, 1999. Stein was listed as the father on her birth certificate, and she was given Stein’s name. Neither Wright nor Stein brought an action to determine paternity within sixty days of the child’s birth.

[¶ 3.] Sometime thereafter, the mother received public assistance for K.S. from the State of South Dakota. Consequently, almost three years later, on March 9, 2002, a paternity action was commenced by the Department of Social Services, seeking to have defendant Bret J. Byer declared KS.’s father and requesting an order for child support. In her affidavit, Wright alleged that while she was still married to Stein, she was living with Byer when K.S. was conceived. She asserted that the issue of Stephen Stein’s paternity had been disputed since the divorce, but recent paternity testing had excluded him as the biological father of K.S.

■ [¶4.] Relying on In re Support Obligation of Do Rego, 2001 SD 1, 620 N.W.2d 770, the trial court reluctantly dismissed the action because it had not been brought before the limitations period expired. In granting summary judgment, the court stated, “the statutes do have a reason and a purpose, and once in awhile they fail in that reason and purpose.” Thus, the court ruled, “I’m afraid I’m going to have to hold my nose and grant[.]”

[¶ 5.] Under his divorce decree, Stein is not presently obligated to pay any child support for his two sons or K.S. From the sparse record, we cannot determine if any effort has been made to modify the decree to provide for the support of his presumed daughter, KS. There is only the stipulation, with its tentative recognition that he may not be KS.’s father.

Analysis and Decision

[¶ 6.] Our standard of review for summary judgments has been recited in numerous cases and need not be repeated here. See Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635. There are two statutes applicable to these proceedings. First, SDCL 25-8-57 provides:

Any child born in wedlock, or born within ten months after dissolution of the marriage, is presumed legitimate to that marriage even if the marriage is subsequently declared to be null and void, or subsequently dissolved by divorce. This rebuttable presumption of legitimacy can only be disputed by the husband or wife, or a descendant of one or both of them.

Second, SDCL 25-8-59 provides:

Any action contesting a rebuttable presumption of paternity as established by §§ 25-8-50 to 25-8-58, inclusive, shall be commenced in circuit court either sixty days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child including proceedings to establish a support obligation in accordance with § 25-8-52, whichever occurs earlier, except in eases where there are allegations of fraud, duress, or material mistake of fact. In cases involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within three years after the creation of any presumption. The burden of proof shall be upon the moving party and the payment of child support, or any other legal responsibilities of the parties, may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party.

[¶ 7.] In this case, Byer, the putative father, successfully raised the presumption of legitimacy in SDCL 25-8-57 and the limitations period in SDCL 25-8-59 to avoid taking a blood test to determine his paternity. Thus, he escaped an obligation to pay support for the child he is alleged to have fathered. The presumption of legitimacy was intended to protect children from the stigma of illegitimacy and to preserve society’s interest in family unity. Neither of these goals was fulfilled here. The former husband is not the father and apparently is not supporting the child and the putative father escaped before any paternal duty could be imposed. Now the child faces the prospect of having no father to support her.

A. Unconstitutional Statute of Limitations

[¶ 8.] The United States Supreme Court in Clark v. Jeter applied the intermediate scrutiny standard to decide whether a paternity statute that treated illegitimate children differently than it treated legitimate children violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 486 U.S. 456, 461-62, 108 S.Ct. 1910, 1914-15, 100 L.Ed.2d 465 (1988). There, the Court ruled that a statute that required an illegitimate child to bring a paternity and support action within six years after the child’s birth but did not similarly restrict a legitimate child’s right to bring a support action was not substantially related to an important governmental objective. Id. at 462-65,108 S.Ct. at 1914-16.

[¶ 9.] The Supreme Court wrote that the six-year period did “not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child.” Id. at 468, 108 S.Ct. at 1915. The Court recognized that the mother may not be willing or able to present the child’s claim because of her relationship with the natural father or because of the emotional and financial strain of having an illegitimate child. Id. at 463-64, 108 S.Ct. at 1915-16. The Court reasoned that the six-year limitation was not substantially related to a state’s governmental interest in preventing stale and fraudulent claims from being presented because, in other circumstances, the law allowed litigants to bring paternity and support claims later than six years after the child’s birth. Id. at 464, 108 S.Ct. at 1915-16. The decision further discounted the problem of stale and fraudulent claims being initiated by stating that, with the increased sophistication of genetic testing, the problem was less prevalent. Id. at 465,108 S.Ct. at 1916.

[¶ 10.] In a case strikingly similar to our own, the Montana Supreme Court relied on the Clark decision to determine the case of State of Arizona v. Sasse, 245 Mont. 340, 801 P.2d 598, 601 (1990). In Sasse, the mother was married when she had sexual relations with a man who-was not her husband. Id. at 599. She gave birth to a child, and the mother’s husband was presumed to be the father. When the child was twelve years old, a paternity action was commenced on behalf of the mother and the child against the man with whom the mother had extramarital sex. Id.

[¶ 11.] Montana had a statute providing that a child with a presumed father had to bring an action within five years after the child’s birth to declare the nonexistence of the father-child relationship. Id. Montana also had a statute allowing a child with no presumed father to have up to two years after the child reached the age of majority to bring an action. Id. The Montana Supreme Court agreed with the district court’s conclusion that the statutes created a “classification which distinguishes for disparate treatment children with presumed fathers and children without presumed fathers.” Id.

[¶ 12.] Montana’s discriminatory classification was “based on the state’s interest in maintaining stable families and in the prevention of stale or fraudulent claims.” Id. at 601. The Montana Supreme Court noted that the five-year limitation may not be adequate because a mother may not be willing to commence an action on her child’s behalf during the limitation period. Id. The Court recognized that other Montana statutes allowed paternity and support claims to be brought much later than five years after the child’s birth and that the advances in genetic testing have removed “much of the fear of false or fraudulent claims of paternity.” Id. Relying on these findings, the Montana Supreme Court declared that the five-year limitation was unconstitutional because the limitation was not substantially related to an important governmental objective. Id. at 602. See also In re the Marriage of K.E.V., 267 Mont. 323, 883 P.2d 1246 (1994) (expanding ruling in Sasse, declaring statute unconstitutional for all purposes).

[¶ 13.] The South Dakota Legislature requires a child with a presumed father to bring a claim within sixty days after the child’s birth to declare that the father-child relationship does not exist, otherwise paternity is unassailably presumed in the absence of fraud. SDCL 25-8-59. This type of action is necessary before the child may establish that another man is his natural father. A child without a presumed father, however, may bring an action to establish paternity “at any time before the eighteenth birthday of the child.” SDCL 25-8-9. Like the Montana statutes discussed in Sasse, South Dakota’s statutory scheme discriminates between children with presumed fathers and children without presumed fathers. To comply with the equal protection guarantees, the classification must be substantially related to an important governmental objective.

[¶ 14.] What more vital governmental interest can there be than safeguarding children’s rights to support? Children have a fundamental right to be supported by their parents. We do not know the financial status of the presumed father here, other than that he has a court order in hand declaring that he has no support obligation. Perhaps that order may be amended in some future hearing. Yet, one need not imagine too expansively to see the mischief our sixty day limitation period can wreak on children. What if the presumed father became incompetent or died? Under our statute, the natural father could still avoid any obligation to support his child by asserting that the child is presumed legitimate and that the dead or incompetent presumed father’s paternity cannot by challenged because the sixty day limitations period has expired. For children who do not have presumed fathers, no such limitation exists. Our statute is discriminatory on its face.

[¶ 15.] This Court may address constitutional issues sua sponte. State v. Beck, 2000 SD 141, ¶ 15, 619 N.W.2d 247, 252; State v. Baker, 440 N.W.2d 284, 293 (S.D.1989); Bayer v. Johnson, 349 N.W.2d 447, 449 (S.D.1984). In a case like this, it is vitally important that we do so because this “constitutional question is a matter of considerable importance to the public policy of the state.” Soever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 751 (S.D.1995). Child support is just such a vital concern. “In such circumstances, it is entirely appropriate for this Court to address the issue sua sponte even if the objection before the trial court was inartful or otherwise insufficient to preserve the error for review.” Beck, 2000 SD 141, ¶ 15, 619 N.W.2d at 252 (citations omitted). We need go no further than to state that the sixty-day limitation period in SDCL 25-8-59 is unconstitutional. Next, we must consider the two conflicting presumptions that remain.

B. Conflicting Presumptions

[¶ 16.] In Do Rego, the mother married while she was pregnant with another man’s child. 2001 SD 1, ¶ 3, 620 N.W.2d at 770. Thus, the child was born into an existing marital relationship. The purpose of the statute was fulfilled, and the child was presumed to be a child of the marriage. To declare the child illegitimate in order to obtain support from the biological father would not have served the best interests of the child. On the other hand, to apply the presumption statute here is to ignore reality and, worse, to ignore the best interests of the child. The presumption of paternity was asserted not by a family member to preserve family unity, but by a stranger to the family who asserted the presumption only to avoid a support obligation.

[¶ 17.] No matter how scrupulously we may cleave to the literal words of a statute, under no reading of South Dakota’s comprehensive laws dealing with families and children could it ever be deduced that the Legislature intended the result here. A possibility that the biological father and the presumed father might both evade a duty to pay support, leaving the child unsupported by either, is precisely the kind of absurd result we have always said our statutory interpretation should avoid. Other courts have dealt with this dilemma and from them we take guidance.

[¶ 18.] Several jurisdictions have held that the presumption of legitimacy was never intended to shield biological fathers from their support obligations. State on Behalf of J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165, 172 (1992). See also Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997) (refusing to apply common law presumption of paternity to relieve biological father of support obligation). In fact, our Legislature enacted a contrary presumption, which we must factor into our decision. Genetic testing is presumed to establish paternity.

Genetic test results establishing a threshold probability of paternity of ninety-nine percent or more shall create a rebuttable presumption of paternity and allow the department of social services to establish a support obligation in accordance with the provisions of §§ 25-7A-5 to 25-7A-8, inclusive, without requiring any further proceedings to establish paternity.

SDCL 25-8-58. It is our duty to reconcile statutes as best as reasonably possible. Karlen v. Janklow, 389 N.W.2d 322, 323 (S.D.1983). The Legislature obviously enacted this section in furtherance of the public policy that parents should be identified and made to provide support for their children. In no event should one be able to escape parental obligations by leaning on the fiction that a child is better off legitimate than supported.

[¶ 19.] The presumption is based on the policy of advancing the best interests of children. Dep’t of Health and Rehab. Serv. v. Privette, 617 So.2d 305, 307 (Fla.1993) (citation omitted). This policy ought to be the guiding principle informing our actions in this complex and sensitive area. We must never forget that it is always the child who has the most at stake in a paternity case. State v. Santos, 104 Wash.2d 142, 702 P.2d 1179, 1180 (1985).

[¶ 20.] With the sparse record before us, we cannot assume that the former husband, Stein, can or will be responsible for paying child support simply because the law presumes him to be the father. It is unclear whether Stein received any notice of these proceedings. From what little can be found in the scant record, it appears that this child received some type of public assistance and South Dakota seeks to recover it from Byer. The child faces the danger of conflicting decisions if Stein has no legal obligation per a court order to pay support. By giving notice of his right to appear, a judgment here will be binding on him for the purposes of res judicata and estoppel. In re Paternity of J.R.W., 814 P.2d 1256 (Wyo.1991).

[¶ 21.] Many other jurisdictions require, either by precedent or by statute, that the child’s best interests be fully considered in resolving competing presumptions. See N.A.H. v. S.L.S., 9 P.3d 354 (Colo.2000) (statute and court rule); In re Paternity of B.J.H., 573 N.W.2d 99 (Minn.Ct.App.1998) (best interests of the child part of analysis for resolving conflicting presumptions); In re Paternity of Adam, 273 Mont. 351, 903 P.2d 207 (1995); Privette, 617 So.2d at 307 (court rule); M.F. v. N.H., 252 N.J.Super. 420, 599 A.2d 1297 (App.Div.1991) (statute); In re Paternity of C.A.S., 161 Wis.2d 1015, 468 N.W.2d 719 (1991) (state statutes explicitly direct courts to consider the best interests of the child); Ban v. Quigley, 168 Ariz. 196, 812 P.2d 1014, 1018 (Ct.App.1990) (court rule); C.C. v. A.B., 406 Mass. 679, 550 N.E.2d 365 (1990) (court rule); In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989) (statute); McDaniels v. Carlson, 108 Wash.2d 299, 738 P.2d 254 (1987) (statute).

[¶ 22.] Because K.S. can have only one legal father, we believe that the best way to resolve the competing presumptions afforded to Stein and Byer is to consider the best interests of the child. South Dakota law is replete with the requirement that the child’s best interests be considered. As the Colorado Supreme Court noted in a conflicting presumption case, “[s]ome states have set out exhaustive lists of factors to be considered in determining the best interests of the child. Other states have left the determination largely to the discretion of the trial judge. We believe the latter course is the wiser.” N.A.H. and A.H, 9 P.3d at 364 (citations omitted). We agree. Whether Byer can successfully assert the presumption of paternity should be determined by gauging KS.’s best interests. The best interests criteria protects children in cases where rebutting the marital presumption would adversely affect the child’s interest in continuing a relationship with his or her presumed father. For example, if the child is being supported by the presumed father, then that would suggest that it is not in the child’s interests to attempt to establish paternity in a putative father.

[¶ 23.] Other jurisdictions have held that even if the facts of the case appear to point to terminating the presumed father’s rights and vesting parental rights in the biological father, courts should err on the side of caution and receive input from the child’s guardian ad litem before making a determination. See M.R.D. v. F.M., 805 P.2d 1200, 1203 (Colo.Ct.App.1991); Lechner v. Whitesell, 811 S.W.2d 859, 861 (Mo.Ct.App.1991) (requiring appointment of guardian ad litem to represent child in paternity action because child’s interests may conflict with mother’s).

[¶ 24.] Between two men not wishing to pay support, someone needs to look out for the interests of the child. To accomplish this, courts must balance conflicting presumptions in an effort to protect the child. Otherwise, K.S. may have no father to support her, not her putative father and not her presumed father.

[¶ 25.] We reverse the summary judgment and remand to the circuit court to consider the best interests of the child. At the close of the case, at least one of the two, the presumed father or the putative father, should be required to support the child.

[¶ 26.] Reversed and remanded.

[¶ 27.] MEIERHENRY, Justice, concurs.

[¶ 28.] SABERS, Justice, concurs specially.

[¶ 29.] GILBERTSON, Chief Justice and ZINTER, Justice, dissent.

SABERS, Justice

(concurring specially).

[¶ 30.] A child, brought into this world through no action of her own, clearly has the right to be supported by a parent. The South Dakota Legislature has so provided in many ways on many occasions. See e.g. SDCL 25-5-18.1 (parents of a child are under a legal duty to support the child until the child is eighteen or until child turns nineteen if he or she is a full-time student in a secondary school); SDCL 25-7-6.1 (parents jointly and severally obligated for necessary maintenance, education and support of the child); SDCL 25-7-7.1 (duty of support continues if child is placed with DSS for custody, guardianship or care and placement); SDCL 25-7-8 (stepparent is liable for support and maintenance of child, but that liability does not absolve the natural or adoptive parent of support obligation); SDCL 25-7-10 (third person supplying necessaries for a child may recover for the reasonable value thereof from the parent); SDCL 25-7-16 (nonsupport of child by parent is a misdemeanor; felony where parent leaves the state). The constitutions prohibit the denial of life, liberty or property without due process of law.

[¶ 31.] The South Dakota Legislature has expressly provided to all minors the right to sue to establish their rights throughout their minority and, if they are attending school, until their 19th birthday. See SDCL 26-1-1; SC: 26-1-3; SDCL 25-5-18.1. These rights include the right to be supported by one’s parent. Given our constitutions, it is highly questionable whether the Legislature could take away these rights even assuming that was their intention. Obviously, there is no such intent expressed in Chapter 25-8.

[¶ 32.] Therefore, I concur specially in the writing of Justice Konenkamp.

ZINTER, Justice

(dissenting).

[¶ 33.] Today this Court, on its own motion, declares that a statute of limitations violates equal protection guarantees. This Court also adopts a new test in this jurisdiction for resolving conflicts in paternity presumptions. Neither issue was raised before the circuit court or briefed and argued before this Court. While this Court may address issues sua sponte, “the invocation of this doctrine has been used most sparingly and then only in important cases of permanent state wide implication.” State v. Beck, 2000 SD 141, ¶ 26, 619 N.W.2d 247, 254 (Gilbertson, J., dissenting). However, neither the Department of Social Services nor Wright suggests that this is such a case. Indeed, their only argument before the trial court and this Court was that the divorce stipulation extended the statute of limitations sufficiently to maintain this action. Moreover, a resolution of these new. issues requires a balancing of a number of conflicting policy considerations. Therefore, in my view, we should decline to decide such issues without the opportunity to hear the “other view.”

[¶ 34.] The majority opinion addresses these issues for the laudatory goal of safeguarding children’s rights to support. See supra ¶ 14. The Court asks “[w]hat more vital governmental interest can there be than safeguarding children’s rights to support?” Id. However, there are more considerations involved in the calculus than child support. Consideration must also be given to competing governmental interests in maintaining the stability of families, as well as public policy relating to maternal and paternal motivations to establish paternity, marital rights and obligations, the putative father’s rights and obligations, the biological father’s rights and obligations, and the best interests of the children. Because the outcome of both new issues is dependent upon all such governmental interests, we should not decide this case solely upon a child support consideration. We should consider both issues only after we have been presented with all of the competing governmental policies and objectives supporting the statutes involved.

[¶ 35.] Because no one challenged the rebuttable presumption of legitimacy nor the constitutionality of the sixty day statute of limitations at any level of this proceeding, we have been denied the benefit of a “properly developed record and the benefit of proper briefing and appellate argument.” Beck, 2000 SD 141, ¶ 26, 619 N.W.2d át 254 (Gilbertson, J., dissenting). This omission has specifically deprived us of the opportunity to consider the opposing view raised by the dissent in the Montana case upon which this Court relies. See Sasse, 801 P.2d at 604 (dissent distinguishing opposing authority and pointing out that the classification only involves children that already have presumed fathers, and presumed fathers are still legally required to support their children).

[¶ 36.] Moreover, the Attorney General has not had the required notice of the Court’s constitutional challenge to SDCL 25-8-59. See SDCL 15-6-24(c).

Ordinarily, we will not rule on the constitutionality of a statute unless the Attorney General has been notified because when an adjudication of unconstitutionality may seriously affect the general public, it is proper for the Attorney General to appear on behalf of the Legislature and the people.

West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687 (citations omitted). This is particularly significant in this case because again, the Montana authority upon which this" Court relies involved a case in which the Montana Attorney General was given notice and an opportunity to appear and defend the constitutional challenge. Sasse, 801 P.2d at 599.

[¶ 37.] Finally, it must be noted that the majority opinion and special concurrence are premised on the supposition that this child has no father to look to for support. In fact, the Court opens its opinion with the wholly unsupported assumption that this is “an instance where the presumption of legitimacy resulted in a child not receiving financial support from either her presumed father or her putative father.” Supra ¶ 1. While common sense and human nature may suggest that possibility in- some cases, it must be recognized that there is absolutely no evidence to support that occurrence in this record. Obviously, in reviewing this case, we are constrained to a review of what is in the record. Because there is no evidence that the presumed father will not support this child, we are only left to speculate concerning Stein’s and Byer’s future likelihood of providing support. Moreover, we must remember that under the record we have today, Stein is the child’s legal farther; and therefore, Stein is charged with the duty of supporting her. SDCL 25-5-18.1; SDCL 25-8-57; SDCL 25-7-6.1.

[¶ 38.] Therefore, while I do not disagree with the reasoning and result of the Court, I would not, considering the facts and posture of this case, raise and analyze these issues sua sponte. I would certainly not attempt to choose the best method of analyzing conflicting paternity presumptions without the opportunity to consider the alternatives. I must therefore dissent.

[¶ 39.] GILBERTSON, Chief Justice, joins this dissent.

      . The court repeats this unfounded assumption speculating that Stein "apparently is not supporting the child....” Supra ¶ 7.


author: PER CURIAM.

text:
    2004 SD 39
    The PEOPLE of the State of South Dakota, ex rel. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, in the Interests of A.D., Minor Child, and Concerning D.S.Y., Respondent.
    No. 22947.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 17, 2004.
    Decided March 31, 2004.

      Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, South Dakota, for appel-lee State of South Dakota.
    Rick A. Ribstein of McCann, Ribstein, Hogan & McCarty, Brookings, South Dakota, for appellant D.S.Y.
   PER CURIAM.

[¶ 1.] D.Y. (father) appeals the termination of his parental rights over his ten-year-old daughter. The only question of merit in this appeal is whether the filing of a Korth brief is appropriate in an abuse and neglect appeal. We conclude that it is and affirm.

FACTS

[¶ 2.] Father is thirty-eight years of age and currently resides in Sioux Falls. He was never married to child’s mother although they did live together for a time and had a volatile relationship. Child was born in 1993 and lived with mother and two older step-siblings in Flandreau. Mother was a chronic alcoholic unable to maintain steady employment or a suitable residence. She fell in and out of unstable personal relationships with men involving alcohol and substance abuse and these relationships led to numerous incidents of domestic violence. Mother’s problems resulted in ongoing child neglect and the children’s exposure to domestic violence and possible sexual abuse.

[¶ 3.] Abuse and neglect proceedings were commenced with the filing of a petition in January 2000. The children were adjudicated abused or neglected as to mother in March. Father was incarcerated in the state penitentiary at that time for DUI. Because of father’s incarceration, DSS’s early efforts at maintenance of a family unit were directed at mother. Mother, however, proved unable to maintain her sobriety or to provide the necessities for her children’s livelihood. In October, the children were removed from her custody and placed with DSS when mother was homeless and had no place to care for them. Although father had recently been paroled and was living in a half-way house, he was not considered a suitable placement option for child. While he did express an interest in obtaining custody of child, he failed to follow through with requirements to exercise visitation. Moreover, in addition to his legal problems, father had his own history of neglect of child and a record of drug and alcohol abuse and domestic violence issues. Father was also violating his parole in numerous respects. He was using marijuana with other parolees, was not maintaining steady employment, was behind on his rent, was in denial as to his substance abuse problems and was refusing participation in drug and alcohol aftercare. Father was described as “one step away” from going back to the penitentiary and, in January 2001, his parole was revoked for his marijuana use. As a result, father returned to the penitentiary to finish serving his sentence.

[¶ 4.] DSS efforts to work with mother continued well into 2001, but her problems persisted and her parental rights over all of her children were ultimately terminated in September. By that time, child had also been adjudicated abused or neglected as to father, but the trial court ordered that DSS investigate the possibility of placing child in father’s custody. Father was not released from the penitentiary until June 2002. In August, the trial court conducted a hearing and entered an order directing DSS to work toward a permanent living arrangement for child other than with father and to establish visitation guidelines for father. The order did not terminate father’s parental rights, but did reserve the right to do so in the future upon entry of sufficient findings.

[¶ 5.] After entry of the trial court’s order, DSS set forth written guidelines for father to follow to obtain visitation with child. Notwithstanding guideline requirements, father failed to pursue aftercare, failed to attend AA or NA meetings, denied that he needed áftercare, ignored his counselor’s recommendations and broke off contact with his counselor. Father exercised only sporadic visitation with child that tapered off in early 2003. By that time, DSS had suspended father’s visitation rights pending his compliance with the visitation guidelines. Father made no effort to comply with the guidelines and, consequently, by the time of the disposi-tional hearing, had not exercised visitation for some time. Moreover, father was unemployed for extended periods, had no suitable housing for a child and fell behind in the rent on his apartment. Father also resisted DSS efforts to consult with him on child’s special needs. A telephone conference between father and child’s counselor and therapist had to be terminated because of father’s insistence that child had no special needs. By March 2003, father had ceased contact with DSS, had failed to undergo required counseling and aftercare and had failed to follow through with family counseling recommendations.

[¶ 6.] The dispositional hearing as to father was held in May 2003. In July, the trial court entered findings of fact, conclusions of law and an order terminating father’s parental rights. Father appeals.

ISSUE ONE

[¶ 7.] Whether court-appointed counsel in an appeal of a termination of parental rights case is permitted to file a “Korth brief’ conceding a lack of arguably meritorious issues for appeal and submitting only those issues requested by the client?

[¶ 8.] In State v. Korth, 2002 SD 101, 650 N.W.2d 528, this Court adopted an alternative briefing procedure for criminal appeals where court appointed counsel identifies no “arguably meritorious” issues for appeal. The procedure requires bifurcated briefing in which counsel indicates in Section A of the brief that he has not identified any arguably meritorious issues for appeal and submits, in Section B of the brief, any claim of error requested by the client. Father’s court appointed counsel has submitted his brief as a “Korth brief.” The State argues that the Korth procedure is reserved for criminal appeals and is inapplicable in appeals from civil proceedings to terminate parental rights. Accordingly, the State contends that father’s brief should be stricken and that the decision of the trial court should be affirmed.

[¶ 9.] The Korth procedure was adopted by this Court to safeguard a criminal defendant’s right to appellate counsel as required by the United States Supreme Court’s decision in Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See also Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)(states are not bound by the steps outlined in Anders and may adopt different procedures so long as they adequately safeguard a defendant’s right to appellate counsel). Thus, Korth is applicable in any case in which Anders requirements are applicable. Although jurisdictions are split on the issue of Anders’ applicability to appeals in termination of parental rights cases, the majority appear to support such application. See J.K v. Lee County, 668 So.2d 813 (Ala.Civ.App.1995); Jones v. Department of Human Resources, 155 Ga.App. 371, 271 S.E.2d 27 (1980); Matter of Keller, 138 Ill.App.3d 746, 93 Ill.Dec. 190, 486 N.E.2d 291 (1985); Morris v. Lucas County Children Serv. Bd., 49 Ohio App.3d 86, 550 N.E.2d 980 (1989); In Re V.E., 417 Pa.Super. 68, 611 A.2d 1267 (1992); In Re K.S.M., 61 S.W.3d 632 (Tex.App.2001); L.C. v. State, 963 P.2d 761 (Utah Ct.App.1998). Contra Denise H. v. Arizona Dept. of Economic Sec., 193 Ariz. 257, 972 P.2d 241 (App.1998); In Re Sade C, 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716 (1996); N.S.H. v. Florida D.C.F.S., 843 So.2d 898 (Fla.2003); In Re Harrison, 136 N.CApp. 831, 526 S.E.2d 502 (N.C.Ct.App.2000). See also In Re Welfare of Hall, 99 Wash.2d 842, 664 P.2d 1245 (1983)(absent client consent, withdrawal of counsel on appeal in a child deprivation proceeding will never be permitted).

[¶ 10.] A succinct analysis of the divergent views on the applicability of Anders to termination of parental rights cases appears in K.S.M., 61 S.W.3d at 633-34:

The case before us differs from an An-ders case because appeals from orders terminating parental rights are civil rather than criminal. The minority jurisdictions, which we cited above, argue that the right of concern in Anders is the federal constitutional right to counsel in criminal cases. In contrast, the right involved in a parental termination case is based solely in state law. We find this argument unpersuasive. Like indigent criminal appellants, indigent appellants challenging an order terminating them parental rights enjoy a right to counsel on appeal, [citing Texas statutes and case law].
In addition, the difference in the nature of the case, i.e., civil rather than criminal, makes no difference in the duties court-appointed counsel owes his or her client. From counsel’s perspective, counsel’s duty to competently and diligently represent the client is exactly the same in a civil appeal from an order terminating parental rights as in an appeal from a criminal conviction. Moreover, in both criminal and parental termination cases, counsel may conclude, after thoroughly and conscientiously examining the case, that a case lacks any non-frivolous issues for appeal. Despite the civil or criminal nature of the appeal, counsel in such a situation faces the same dilemma of having to diligently represent the indigent client who wants to appeal while still complying with counsel’s other ethical duties as a member of the Bar. For these reasons, we hold that when appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file an Anders-type brief, (citations omitted).

[¶ 11.] We find these views to be in accord with the objectives served by requiring the appointment of counsel for the parents in termination of parental rights cases. See SDCL 26-7A-31 (appointment of attorney for indigent parents in juvenile cases). Adhering to Anders in these cases merely provides additional protection for the indigent appellant’s right to the assistance of counsel. As noted by the Alabama Court of Civil Appeals in coming to a similar conclusion in J.K., 668 So.2d at 816, “if the procedure outlined in Anders passes muster in criminal cases, it certainly should be adequate in [the termination of parental rights] context.”

[¶ 12.] Based upon the foregoing, it would appear to be the majority view that Anders should be held applicable to appeals in termination of parental rights cases. Because Korth, supra defines the Anders process in South Dakota, counsel’s submission of a Korth brief in this termination of parental rights case was procedurally appropriate and the State’s arguments to the contrary are rejected.

SECTION B ISSUES

[¶ 13.] Counsel raises four issues requested by father in Section B of his brief: that the trial court inappropriately used past domestic abuse charges and prison sentences against father in arriving at its disposition; that father disagreed with DSS guidelines requiring him to attend aftercare, NA, AA and counseling in order to see his daughter; that the trial court stated it did not like father; and, that father’s counselor stated he must attend church in order to continue counseling and thereby violated his right to freedom of religion.

[¶ 14.] Father’s issues lack merit. SDCL 26-7A-34 requires a dispositional hearing to be conducted “to inform the court fully of the exact status of the child and to ascertain the history, environment and past and present physical, mental and moral condition of the child and of the child’s parents, guardian or custodian.” (emphasis added). Father’s past domestic abuse charges and prison sentence were certainly relevant in this inquiry.

[¶ 15.] With regard to the conditions imposed on father’s visitations with child, SDCL 26-7A-19(2) permits the Court to grant visitation to a parent in a manner in keeping with the best interests of the child and SDCL 26-8A-21 requires DSS to make reasonable efforts to return a child to a parent’s home. In view of father’s history of substance abuse and domestic violence, the conditions that he attend aftercare, NA, AA and counseling in order to see child were clearly consistent with child’s best interests and constituted reasonable preliminary steps toward reunification of child with father.

[¶ 16.] Father’s allegation that the trial court stated it did not like him is not supported by the record. Even if it was:

[judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.... [Further], [n]ot establishing bias or partiality ... are, expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women ... sometimes display.

Cain v. Department of Corrections, 451 Mich. 470, 548 N.W.2d 210, 222, n. 30 (1996)(quoting Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)).

[¶ 17.] Father’s contentions over church attendance also are not supported by the record. The record reflects that church attendance was merely a suggestion by father’s counselor as an exercise toward “building a supportive community for himself’ and child. Father initially agreed to attend church and repeatedly pledged to follow through with the suggestion but then stopped scheduling counseling appointments. There is no indication whatsoever in the record that church attendance was ever imposed as a condition of counseling or that counseling was ever withheld because father had some objection to attending church.

[¶ 18.] Based upon the foregoing, the termination of father’s parental rights is affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . The department of social services.

      . There appears to be no dispute that Anders is applicable to appeals in juvenile delinquency cases. As explained in Denise H., 972 P.2d at 243:
      Although a juvenile delinquency proceeding is designated a civil proceeding, it nevertheless accuses a juvenile of committing a crime and may result in the juvenile's being deprived of his or her liberty. For that reason, pursuant to the Equal Protection Clause, indigent juveniles adjudicated delinquent have the right to file an Anders brief.

        See also Gilliam v. State, 305 Ark. 438, 808 S.W.2d 738 (1991); Com. v. Heron, 449 Pa.Super. 684, 674 A.2d 1138 (1996); In Re D.A.S., 973 S.W.2d 296 (Tex.1998).


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellant, v. Kris Eugene PETERSEN, Appellee.
    No. 03-0912.
    Supreme Court of Iowa.
    April 7, 2004.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Marci Prier, County Attorney, for appellant.
    Joseph J. Hrvol, Council Bluffs, for ap-pellee.
   WIGGINS, Justice.

The State filed a complaint charging Kris Petersen with assault with intent to commit sexual abuse. Petersen moved to dismiss the charge alleging the complaint and affidavit failed to establish probable cause that a crime was committed. Before the district court held a hearing on Petersen’s motion, the court approved and the State filed the trial information. After the State filed the trial information, the district court conducted a hearing on Petersen’s motion to dismiss. The district court dismissed the trial information, because it found that the complaint and affidavit failed to establish probable cause a crime had been committed. Because we conclude the district court should not have dismissed the trial information, we reverse its decision.

I. Background Facts and Proceedings.

On September 20, 2002, an eight-year-old female spent the night at a Mend’s house, the daughter of Petersen. Upon returning home, she told her mother that during the night, while sleeping in the basement with her friend and her friend’s little brother, Petersen lay down between her and her Mend. Petersen then removed her bed sheet, lifted his shirt, lay on top of her sideways, and did what she described as' a “belly wave.” Petersen then proceeded to lick his finger and rub her inner thigh. The victim’s mother reported Petersen’s alleged conduct to the authorities.

On December 3, 2002, the State charged Petersen with indecent contact with a child, in violation of Iowa Code section 709.12 (2001). A magistrate held a preliminary hearing on December 23, 2002. On January 9, 2003, the magistrate dismissed the charge finding no substantial evidence to support a finding that Petersen acted with specific intent to arouse or satisfy the sexual desires of himself or the child.

On March 28, 2003, the State filed a second complaint against Petersen charging him with assault with intent to commit sexual abuse in violation of Iowa Code sections 708.1 and 709.11. Strangely, the affidavit attached to this complaint indicated the notary notarized the affidavit on September 21, 2002, even though the affidavit set forth events that took place on September 20, September 21, September 23, and October 16, 2002. Despite this obvious defect, a different magistrate from the one who dismissed the previous charge issued a warrant for Petersen’s arrest.

On April 3, 2003, Petersen filed a document entitled “motion to dismiss and notice to the district court.” In his motion, Petersen asked the court to dismiss “this matter” because the affidavit indicated it was notarized on September 21, 2002, but it alleged events that occurred after that date; the second charge was substantially similar to the charge previously dismissed; and the officer who presented the affidavit to the magistrate failed to advise the magistrate that a similar charge was dismissed at a preliminary hearing. Petersen requested a hearing on the motion before approval of the trial information.

The district court approved the trial information on April 14, 2003. The State filed the trial information and minutes of testimony on the same day. On April 16 the court administrator set the motion to dismiss and notice to the district court for hearing on April 28. On the day of the hearing, the State filed a resistance to Petersen’s motion. The resistance contended that the act of filing the trial information extinguished Petersen’s right to a preliminary hearing; that any errors in the complaint and affidavit became moot upon filing the trial information; and double jeopardy did not attach, because the second offense charged was not a lesser-included offense of the first offense charged.

In ruling on the motion, the district court found the affidavit attached to the complaint was defective because of the discrepancy between the date of its notarization and the date of the acts contained in the affidavit. For this reason, the district court concluded the complaint and affidavit failed to establish probable cause to charge or arrest Petersen and dismissed the trial information. The State appeals this order.

II. Issues.

The State claims the district court erred in dismissing the trial information where the complaint and affidavit allegedly failed to establish probable cause that a crime was committed. Petersen contends the district court had authority to dismiss the trial information under Iowa Rule of Criminal Procedure 2.11(2)(a) “based on defects in the institution of the prosecution.” Alternatively, Petersen asserts the court had authority on its own motion to dismiss the trial information under the last sentence of Iowa Rule of Criminal Procedure 2.5(4). Finally, Petersen argues Iowa Rule of Criminal Procedure 2.11(6)(a) allows the court to dismiss the trial information and minutes of evidence when the trial information and minutes of evidence do not constitute the offense charged in the trial information.

III. Scope of Review.

A review of a district court’s decision to dismiss a trial information is for errors at law. State v. Wells, 629 N.W.2d 346, 351 (Iowa 2001).

IV. Analysis.

Petersen did not make a motion attacking the trial information filed in his case. Petersen based his motion on defects in the complaint and affidavit, not on any defects in the trial information or minutes. Even if we assume the district court considered Petersen’s motion as a motion to dismiss the trial information, Petersen’s motion failed to raise any grounds that would warrant dismissal of the trial information.

Petersen first argues the district court was correct in dismissing the trial information under rule 2.11(2)(a), which allows a defendant to make a pretrial motion “based on defects in the institution of the prosecution.” We have allowed a defendant to raise a claim of double jeopardy by a rule 2.11(2)(a) motion. State v. Harrison, 578 N.W.2d 234, 237 (Iowa 1998). We have never decided the issue of whether a rule 2.11(2)(a) motion will allow the court to dismiss the trial information, when the complaint and affidavit fail to establish probable cause that a crime was committed.

Petersen’s argument confuses the separate functions of the complaint and the trial information. The filing of the complaint is necessary for the court to issue an arrest warrant for a defendant. Iowa Code § 804.1; State v. Henderson, 268 N.W.2d 173, 176 (Iowa 1978). A preliminary hearing is required in order to determine the legality of detaining a person accused of a felony or an indictable misdemeanor before the State files a charge by a trial information or a grand jury indictment. State v. Franklin, 163 N.W.2d 437, 439 (Iowa 1968). If the preliminary hearing reveals there is no probable cause to believe that an offense has been committed or that the defendant committed it, the court dismisses the complaint and discharges the defendant from custody. Iowa R.Crim. P. 2.2(4)(e).

The filing of the trial information is necessary to charge a defendant with an indictable offense. Iowa R.Crim. P. 2.5(1). The State can file charges by trial information without first filing a complaint. State v. Collins, 260 Iowa 1366, 1369, 152 N.W.2d 612, 614-15 (1967). Once the State files the trial information, a preliminary examination is unnecessary. State v. Rouse, 290 N.W.2d 911, 912-13 (Iowa 1980); State v. Dowell, 297 N.W.2d 93, 97 (Iowa 1980); Henderson, 268 N.W.2d at 176; State v. Montgomery, 232 N.W.2d 525, 526 (Iowa 1975). When the court approves the trial information, it determines whether there is probable cause to detain the defendant to answer the charge. State v. Shank, 296 N.W.2d 791, 792 (Iowa 1980). A violation in the complaint stage of the proceedings does not affect the merits of the charge, but only affects the legality of the detention of the accused to answer the charge prior to the filing of the information. Dowell, 297 N.W.2d at 97.

When the district court approved the trial information, it determined there was probable cause to detain Petersen and require him to answer to the charge of assault with intent to commit sexual abuse. Once filed, the trial information was the pleading formally charging Petersen with a crime. At that point in the proceedings, any defect in the affidavit attached to the complaint was moot and not grounds for dismissal of the trial information as a defect in the institution of the prosecution of the action.

Petersen also argues the district court had authority to dismiss the trial information under the last sentence of rule 2.5(4), which allows a judge at any time on its own motion, after approval and prior to trial, to order the trial information set aside and the case submitted to the grand jury. The flaw with this argument is that the district court dismissed the trial information without ordering the case submitted to the grand jury. Thus, the record does not support Petersen’s claim that the district court dismissed the trial information under rule 2.5(4).

Finally, Petersen argues rule 2.11 (6)(a) allows the court to dismiss the trial information and minutes of evidence when the trial information and minutes of evidence do not constitute the offense charged in the trial information. Petersen did not raise this issue in the district court. The district court did not have the opportunity to review the trial information under rule 2.11(6)(a). We have consistently held that on reviewing matters, such as motions to dismiss, we will not decide a case based on a ground not raised in the lower court. DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002). Therefore, we will not consider this issue for the first time on appeal.

V. Disposition.

Because we conclude the district court should not have dismissed the trial information simply because the complaint and affidavit failed to establish probable cause a crime had been committed, we reverse the decision of the district court and remand this case for further proceedings consistent with this opinion.

REVERSED AND CASE REMANDED.