author: MARING, Justice. SANDSTROM, Justice, CROTHERS, Justice,

text:
    2008 ND 5
    CITY OF GRAND FORKS, Plaintiff and Appellee v. Clinton Bernard MITCHELL, Defendant and Appellant.
    No. 20070153.
    Supreme Court of North Dakota.
    Jan. 17, 2008.
    Rehearing Denied Feb. 21, 2008.

      Jay D. Knudson and Alexander F. Reic-hert (argued), Reichert Armstrong Law Office, Grand Forks, N.D., for defendant and appellant.
    Tressie C. Brazil, (argued), Assistant City Prosecutor, and Kristen S. Pettit, City Prosecutor, Grand Forks, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Clinton Mitchell appeals the district court’s criminal judgments entered on a conditional plea of guilty after the district court denied his motion to suppress evidence obtained during a traffic stop on the basis that the stop of his vehicle was not justified by a reasonable and articula-ble suspicion he was violating motor vehicle registration laws. Mitchell’s vehicle bore no license plates but did have a Montana temporary registration certificate printed on a white sheet of paper with an expiration date written in black marker posted in its rear window. We affirm because under the circumstances of this stop, the officer had reasonable and articu-lable suspicion of a violation of the motor vehicle registration law.

I

[IT 2] Two Grand Forks police officers stopped Mitchell’s vehicle on October 1, 2006. The district court found that the officers noticed the vehicle did not have license plates and observed a white sheet of paper in the vehicle’s rear window. After stopping the vehicle, the officers noticed some writing on the paper, but it did not look like a North Dakota temporary registration certificate. The paper was a temporary registration certificate issued by the state of Montana on an 8½ x 11 sheet of paper with the expiration date written in black marker.

[¶ 3] The record reveals that, as one of the officers approached the driver’s side of the vehicle, he noticed Mitchell smelled of alcohol and had bloodshot, watery eyes. The officer proceeded by reading Mitchell his Miranda warning and administering field sobriety tests, a breathalyzer test, and an Intoxilyzer test. Mitchell failed each of the tests. Mitchell’s alcohol concentration was measured at .15. Mitchell was cited for driving under the influence, driving under suspension, and driving without liability insurance. Mitchell moved to suppress the evidence obtained during the traffic stop.

[¶ 4] The district court denied Mitchell’s motion to suppress. The district court determined that the officers had reasonable and articulable suspicion to believe that a violation was occurring because they could not tell whether Mitchell displayed a temporary registration certificate, and, if he did, whether the certificate was forged. The district court stated that the officer reasonably believed the paper was not a valid temporary registration because the driver could have created the certificate himself.

[¶ 5] Mitchell entered conditional pleas of guilty to the charges of driving under the influence, driving without liability insurance, and an amended charge of no license in possession pending appeal of his suppression motion. Mitchell appeals, requesting reversal of the district court’s denial of his motion to suppress.

II

[¶ 6] After resolving conflicting evidence in favor of affirming a district court decision on a motion to suppress, we affirm the 'district court decision unless there is insufficient evidence to support the decision or the decision goes against the manifest weight of the evidence. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478. We accord great deference to district court findings of fact in suppression matters. Id. Questions of law are, however, fully reviewable on appeal. State v. Johnson, 2006 ND 248, ¶ 5, 724 N.W.2d 129.

[¶ 7] The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” For purposes of the Fourth Amendment, seizures occur only when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478. Automobile stops constitute “seizures” under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Police officers may stop individuals for investigative purposes if a reasonable and articulable suspicion exists that criminal activity is afoot. Anderson v. Director, Dept. of Transp., 2005 ND 97, ¶ 8, 696 N.W.2d 918. This standard is objective and based on the totality of the circumstances. Johnson, 2006 ND 248, ¶9, 724 N.W.2d 129.

[¶ 8] “An investigative stop of a moving vehicle must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and mere curiosity, suspicion, vague hunches, or other non-objective facts will not suffice.” Salter v. N.D. Dept. of Transp., 505 N.W.2d 111, 114 (N.D.1993). The United States Supreme Court has held that an officer’s ulterior motive does not prohibit law enforcement officers from engaging in behavior that is objectively justifiable under the Fourth Amendment. Whren, 517 U.S. at 812, 116 S.Ct. 1769. As long as a traffic violation has occurred, a police officer’s subjective intentions in making the stop will not render the stop constitutionally unreasonable. Id. at 813, 116 S.Ct. 1769. “ ‘As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.’ ” State v. Oliver, 2006 ND 241, ¶ 6, 724 N.W.2d 114 (quoting Whren, at 810, 116 S.Ct. 1769).

Ill

[¶ 9] Mitchell argues that the officers’ stop of his vehicle was not supported by a reasonable and articulable suspicion criminal activity was afoot. The City argues that the district court’s denial of Mitchell’s motion to suppress was appropriate.

[¶ 10] Chapter 39-04, N.D.C.C., is North Dakota’s motor vehicle registration law. Section 39-04-17, N.D.C.C., provides that possession of a temporary registration certificate is prima facie evidence of compliance with ch. 39-04. In the last two years, we have examined three factually distinctive investigative stops of vehicles without license plates to determine whether law enforcement officers had reasonable and articulable suspicion the driver may have been violating N.D.C.C. ch. 39-04 to justify the stops. See Oliver, 2006 ND 241, 724 N.W.2d 114; Johnson, 2006 ND 248, 724 N.W.2d 129; State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786.

[¶ 11] In the first of these cases, State v. Oliver, we upheld a district court denial of a defendant’s motion to suppress evidence seized during a traffic stop. 2006 ND 241, 724 N.W.2d 114. The officer in Oliver stopped the defendant because the defendant’s vehicle had no license plates in possible violation of state law. Id. at ¶ 3. A temporary registration certificate was on the rear window of the vehicle, but was faded. Id. We held that the “faded temporary registration certificate with no visible printing was indicative of a temporary certificate that was more than thirty days old and constituted an objective fact giving the officer a right to stop [the defendant] to check its validity.” Id. at ¶ 7. The faded tag was an indication that a violation had been, and was, occurring. See id. at ¶ 9 (quoting Kennedy v. State of Texas, 847 S.W.2d 635, 636 (Tex.App.1993)).

[¶ 12] The second related decision is State v. Johnson, 2006 ND 248, 724 N.W.2d 129. In Johnson, a highway patrolman initiated a traffic stop of a vehicle that did not have license plates but did have a temporary registration certificate in the back window. Id. at ¶ 2. Unlike the faded registration certificate observed by the officer in Oliver, there was nothing unusual about the registration certificate in Johnson. See id. The officer in Johnson stopped the vehicle only because he believed many people drive vehicles with temporary registration certificates beyond the allowable thirty-day period. Id. We held that the officer’s hunch that the defendant may have been in violation of a vehicle registration statute was not enough to authorize the stop. Id. at ¶ 8. We reversed the district court’s denial of the defendant’s motion to suppress. Id. at ¶ 13.

[¶ 13] Finally, we recently upheld a district court’s denial of a motion to suppress in State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786. In Skarsgard, an officer stopped a vehicle because it had no license plates or visible temporary registration certificate, and the officer recognized the driver as a suspended driver from a past call. Id. at ¶ 2. We held, “[w]hen a law enforcement officer observes a vehicle with no license plates and no viewable registration certificate, the officer has reasonable grounds to stop the driver and check if the driver has a valid certificate in his possession.” Id. at ¶ 8.

[¶ 14] Mitchell maintains this case is more like Johnson than Oliver. He stresses that his registration certificate was not faded, and the expiration date on the certificate was written in large, readable print. The City maintains that, unlike the registration certificate in Johnson, the Montana-issued permit was unusual because it was an 8½ x 11 plain sheet of paper, while North Dakota permits are smaller, pre-printed forms.

[¶ 15] We hold that this 8½ x 11 sheet of paper in the rear window of Mitchell’s vehicle, which was without license plates, provided reasonable and articulable suspicion that Mitchell was not complying with motor vehicle registration laws. This suspicion did not arise just because Mitchell’s registration was from another state. This suspicion arose because a reasonable officer who sees a vehicle without license plates and with an 8⅜ x 11 white sheet of paper in the rear window that the officer does not recognize as an authentic temporary registration certificate would have reasonable grounds to stop the driver and check if the driver has a valid temporary registration certificate in his possession in accordance with state law. An 8½ x 11 sheet of paper with a date written in black marker is objectively more akin to the faded registration certificate in Oliver than the certificate in Johnson, which the officer identified as a North Dakota certificate with no unusual characteristics. Although Mitchell’s certificate was not faded, the form did not resemble any type of temporary registration with which the officer was familiar. The officer had reasonable grounds to further investigate whether the paper was a valid or fictitious registration certificate.

[¶ 16] Mitchell also argues the testimony of the officer that he stops each vehicle bearing a temporary permit to investigate the permit’s validity means the officer’s actions were a mere subterfuge. The officer’s subjective intent, however, is not germane for purposes of the objective inquiry used to determine whether a reasonable and articulable suspicion existed that Mitchell was violating registration laws. We do not hold that an officer is justified in stopping every vehicle bearing a temporary registration certificate. However, in accordance with our previous decisions in Johnson, Oliver, and Skarsgard, we do hold this particular temporary registration certificate under these particular circumstances did give rise to a reasonable and articulable suspicion that Mitchell may have been in violation of registration laws, justifying the officers’ investigatory stop of Mitchell’s vehicle.

IV

[¶ 17] Mitchell further argues that, even if the officers did have a reasonable and articulable suspicion to justify the initial stop, once the officers saw the date on the temporary registration certificate indicating it was a valid Montana temporary registration certificate, the reasonable and articulable suspicion that any criminal activity was afoot was dispelled, and the officers should not have made the further intrusion of approaching the driver’s door to speak to Mitchell. The City argues that Mitchell did not properly raise this issue at the trial court level. The record establishes that this issue was not briefed for the district court proceeding and was not addressed by the district court. We have previously stated that we will not consider issues raised for the first time on appeal. Bay v. State, 2003 ND 183, ¶ 14, 672 N.W.2d 270.

V

[¶ 18] We conclude that the unlicensed vehicle, with only the 8 ½ x 11 sheet of paper in the rear window, provided a reasonable and articulable suspicion to justify stopping the vehicle. We, therefore, affirm the district court’s criminal judgments.

[¶ 19] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 20] I agree with the result reached by the majority opinion. I write separately to note apparently erroneous premises and dicta.

[¶ 21] There are two underlying premises of the appellant’s argument on appeal:

1. The record establishes that appellant’s vehicle displayed a valid Montana temporary registration certificate.
2. The appellant was entitled to operate his vehicle in North Dakota with a valid Montana temporary registration certificate.

Neither premise appears to be correct.

I

[¶ 22] The record simply does not establish that the appellant was displaying a valid Montana temporary registration certificate. He was displaying what purported to be a Montana temporary registration certificate (actually, it apparently purported to be a “MONTANA TEMPORARY WINDOW STICKER” and “40 DAY PERMIT ONLY (1) PER VEHICLE SALE”). The appellant testified that he was displaying a Montana temporary registration certificate. The officer testified that it purported to be a Montana temporary registration certificate but that he doubted its authenticity. No competent, admissible evidence was presented that a temporary registration certificate had even been issued in Montana. See N.D.R.Ev. 902 and 1005.

II

[¶ 23] The law does not establish that the appellant was entitled to operate his vehicle in North Dakota with a valid Montana temporary registration certificate.

[¶ 24] “Because the operation of a motor vehicle is a privilege, the legislature of each state may, in the exercise of the police power, enact reasonable regulations requiring the licensing or registration of motor vehicles....” 7A Am.Jur.2d Automobiles and Highway Traffic § 59 (1997) (footnotes omitted).

[¶ 25] “It is well settled that the police power of a state to regulate the use of motor vehicles on its highways extends to nonresidents as well as residents, and that a state may prohibit the use of its highways by a foreign motor vehicle unless and until it is licensed in accordance with state laws. While states may allow nonresidents to use vehicles in-state for limited periods of time without complying with their licensing or registration laws, but as a pure matter of state power, a state can stop a nonresident motorist at its boundaries and require him or her, as a condition of operating the motor vehicle on the highways of the state, to pay a reasonable license fee.” 7A Am.Jur.2d Automobiles and Highway Traffic § 60 (1997) (footnotes omitted).

[¶ 26] For an indication of the general state of state laws, we may look at the National Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code, 2000 (“UVC”). Under UVC §§ 3-402, 1-120, 3-407, temporary permits are valid in a state only if issued by the motor vehicle department of that state. And under UVC § 3-403, a nonresident owner of any foreign vehicle may operate the vehicle in a state without registering in that state if a number of conditions are met, including “displays upon it a valid registration card and registration plate or plates issued for such vehicle in, the place of residence of such owner.” (Emphasis added.)

[¶ 27] North Dakota law follows this pattern. Under N.D.C.C. § 39-04-11:

Except as otherwise specifically provided, a person may not operate or drive a vehicle on the public highways of this state unless the vehicle has a distinctive number assigned to it by the department, and two number plates, bearing the distinctive number conspicuously displayed, horizontally and in an upright position, one on the front and one on the rear of the vehicle, each securely fastened ....

[¶ 28] Under N.D.C.C. § 39-04-18(2): “The following motor vehicles may be operated upon the highways, roads, and streets of this state without being registered, under such limitations as are herein specified;” subject to further specified limitations:

e. Passenger motor vehicles registered in any other state or territory; provided, however, that such motor vehicles have displayed thereon the current license plates issued by the state or territory in which they are registered and provided further that the owners or operators thereof are not residents of this state for any purpose and are not gainfully employed or stationed in this state.

(Emphasis added.)

[¶ 29] Thus, the specific statutes require “foreign” vehicles to display current license plates.

[¶ 30] The majority opinion appears to suggest that N.D.C.C. § 39-04-17, relating to temporary certificates, may apply here. It does not and cannot for several reasons. The specific provision of N.D.C.C. § 39-04-18 would apply over the general. And under the plain language of N.D.C.C. § 39-04-17, it applies only to North Dakota-issued certificates. Section 39-04-17, N.D.C.C., provides:

The possession of a certificate made out by a notary public or an authorized agent of a licensed vehicle dealer who took the acknowledgment of the application when the vehicle was first registered or required to be registered under the laws of this state, where such certificate shows the date of application, the make, registered weight, and year model of the motor vehicle, the manufacturer’s number of the motor vehicle which such application describes, and further shows that such notary public, or authorized agent of a vehicle dealer, personally mailed the application with the remittance fee, is prima facie evidence of compliance with motor vehicle law with reference to the vehicle therein described, for a period of thirty days from the date of such application. Any violation of this section is an infraction punishable by a fine of not less than fifty dollars.

[¶ 31] By its terms, N.D.C.C. § 39-04-17 is limited to vehicles “registered or required to be registered under the laws of this state.” Additionally, the displayed “certificate” was not executed by the required person under the statute. It was not issued by a notary public and the seal of the notary. It was not issued by an authorized agent of a licensed vehicle dealer. A licensed vehicle dealer is one licensed under N.D.C.C. ch. 39-22. A licensed vehicle dealer must maintain a place of business in North Dakota. N.D.C.C. § 39-22-15. Further, such a certificate is valid only “for a period of thirty days from the date of such application.” The purported Montana certificate purported to be valid for more than thirty days, and the purported certificate reflected that it was more than thirty days past issuance. The application referenced in N.D.C.C. § 39-04-17 must be to the North Dakota Motor Vehicle Department under N.D.C.C. § 39-04-02.

Ill

[¶ 32] In conclusion, the record does not establish a valid Montana temporary registration certificate; there appears to be no right to operate a motor vehicle in North Dakota under a temporary registration certificate from Montana; and no one — not the appellant, not the majority, and not the dissent — has cited contrary authority.

[¶ 33] DALE V. SANDSTROM

CROTHERS, Justice,

dissenting.

[¶ 34] I respectfully dissent.

[¶ 35] By upholding the stop in this case, the majority is saying the Fourth Amendment to the United States Constitution provides no protection to drivers of vehicles bearing non-North Dakota temporary registrations. I cannot agree with that conclusion for the reasons stated by this Court in State v. Oliver, 2006 ND 241, ¶ 10, 724 N.W.2d 114, and State v. Johnson, 2006 ND 248, ¶¶8-12, 724 N.W.2d 129.

[¶ 36] Here, the arresting officer testified he decided to stop Mitchell’s car as soon as he noticed the lack of front or rear license plates. The officer testified he stops all cars with temporary registrations.

[¶ 37] Setting aside that the officer was wrong in his belief he could lawfully stop all cars with North Dakota temporary registrations, Johnson, 2006 ND 248, ¶ 8, 724 N.W.2d 129, the majority opinion confirms the officer’s assertion he can stop all other vehicles simply because they display temporary registrations. The majority opinion must be read that way because the officer testified that, before the stop, Mitchell’s temporary registration was clearly visible in the car’s rear window and that he observed that the registration was different than North Dakota’s temporary registration.

[¶ 38] Given our holdings in Oliver and Johnson, it is significant that the registration was not a blank white sheet of paper, as is suggested by the majority. Majority Opinion at ¶ 18. Instead, the officer testified the registration had “10-10-2006” written in two-inch-high-bolded numbers across a standard-sized sheet of paper. The officer also testified that Mitchell’s temporary registration appeared valid on its face and that he did not take further steps to confirm the validity either before or after the stop.

[¶39] I believe the officer’s testimony reveals this stop was very much like that in Johnson, 2006 ND 248, 724 N.W.2d 129, and nothing like the stop in Oliver, 2006 ND 241, 724 N.W.2d 114.

[¶ 40] In Johnson, the officer “was parked on an approach facing the eastbound lanes of Interstate 94 in Fargo.” 2006 ND 248, ¶ 2, 724 N.W.2d 129. The officer observed Johnson’s vehicle as it passed and saw it lacked a front license plate. Id. The officer “drove onto the highway and caught up with Johnson’s vehicle, noting the vehicle had no rear license plate.” Id. The vehicle had a paper temporary registration sticker in the back window. Id. The officer testified it was difficult to see the temporary registration sticker at the normal distance between two vehicles, but nothing about the sticker appeared unusual. Id. The officer in Johnson “initiated a traffic stop solely to check the temporary sticker because of a belief [that] many people drive beyond the thirty days allowed by the temporary registration.” Id.

[¶ 41] Here, the officer stopped Mitchell upon seeing no license plates. We determine the existence of reasonable articu-lable suspicion when the officer decides to stop and detain, and not at some later time after which the officer may have had the opportunity to gather additional information. State v. Boyd, 2002 ND 203, ¶ 15, 654 N.W.2d 392 (“To determine whether an officer has a reasonable and articulable suspicion, we examine the information known to the officer at the time of the stop. The reasonable-and-articulable-sus-picion standard requires the officer justify the stop ‘with more than just a vague “hunch” or other non-objective facts; and ... the articulable facts must produce, by reasonable inference, a reasonable suspicion of unlawful conduct.’ ” (Citations omitted.)).

[¶ 42] The officer here had a hunch— which he admitted was not verified before or after the stop — that Mitchell’s car was not properly registered, irrespective of the state of registration. The Oliver and Johnson decisions tell us this stop would have been unlawful if Mitchell had possessed a North Dakota temporary registration. By chance, Mitchell’s temporary registration was from Montana rather than in North Dakota. From this fact alone, the majority concludes the stop somehow complies with the Fourth Amendment protections against an unreasonable seizure. As a result, the majority allows police to stop many out-of-state travelers for no reason other than their vehicle registrations appear different. I am concerned that this is a dangerous precedent to set and that it erodes our holdings in Oliver and Johnson.

[¶ 43] On the undisputed facts of this case, I would conclude the officer did not have reasonable and articulable suspicion of unlawful conduct. Without it, the district court misapplied the law when holding this case is more like Oliver than Johnson. All evidence obtained as a result of the stop should have been suppressed, and I would reverse and remand to the district court for further proceedings.

[¶ 44] DANIEL J. CROTHERS


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2008 ND 9
    In the Interest of J.S., a child. In the Interest of J.G., a child. Carrie Smith, L.S.W., Petitioner and Appellee v. J.G., Mother, Respondent and Appellant and J.S., a child, J.G., a child, D.S., Father of J.S., John Doe, Father of J.G., and Kathy Kassenborg, Lay Guardian ad Litem, Respondents.
    No. 20070123.
    Supreme Court of North Dakota.
    Jan. 17, 2008.

      Constance L. Cleveland, Assistant State’s Attorney, Fargo, ND, for petitioner and appellee; submitted on brief.
    Douglas W. Nesheim, Fargo, ND, for respondent and appellant; submitted on brief.
   CROTHERS, Justice.

[¶ 1] J.G. (“Mother”) appeals the juvenile court’s order terminating parental rights to her two minor children, J.S. (“Sam”) and J.G. (“George”). We conclude the juvenile court did not err in finding the children have been deprived, the causes and conditions of deprivation are likely to continue, and, as a result of the continued deprivation, Sam and George have suffered or will probably suffer serious physical, mental or emotional harm if Mother’s parental rights are not terminated. Further, the juvenile court did not err in finding reasonable efforts were made to preserve and unify the family prior to termination of Mother’s rights. We affirm.

I

[¶ 2] Mother has three children: Sally, born September 2001; Sam, born July 2003; and George, born September 2004. Sally was removed from Mother’s home by Cass County Social Services because Sally was not receiving sufficient care. Sally is currently placed with her father and is not part of this termination action.

[¶ 3] Mother began working with social services voluntarily in August 2003. At that time, she, Sam, and Sam’s father, D.S., lived together in an apartment. A parent aide was assigned to assist Mother with Sam, who was one month old. The aide helped Mother with her parenting skills, focusing primarily on keeping the family’s apartment clean. In September 2003, D.S. struck Sam and was later convicted of child abuse. After the incident, Mother and Sam moved into her parents’ home. D.S. no longer has contact with Sam.

[¶ 4] Social services assessed the family’s living situation at the grandparents’ home in December 2003 and found it lacking. The house was dirty and covered in dog hair from the family’s two German shepherds. The baby bottles were “dirty and moldy,” and Sam smelled of urine. Sam was placed in foster care while Mother worked with social services to improve the home environment. Mother also began seeing a psychiatrist. On May 6, 2004, Sam was adjudicated a “deprived child” due to poor household conditions, poor hygiene, lack of a regular feeding schedule, Mother’s failure to address her mental health issues and her “demonstration] of poor judgment with regard to [Sam’s] health and safety.”

[¶ 5] While Sam was in foster care, George was born. The identity of George’s father is unknown. Social services continued working with Mother to improve her parenting skills. Mother obtained her own apartment within this time frame, though the conditions of the home continued to be a problem. Nonetheless, Sam was returned to the home from foster care in April 2005. Mother continued working with social services, and a speech therapist worked with Sam. Social services monitored Sam until August 2005.

[¶ 6] On September 23, 2005, both Sam and George were placed in foster care because of the condition of the apartment. They were adjudicated deprived children on January 10, 2006. A treatment plan for the family was developed, including treatment of Mother’s mental illness, parenting classes, homemaking assistance and daycare for the children so Mother could work on improving her life skills. The children were returned to Mother’s care on January 3, 2006. Mother took Sam to see a psychiatrist in February 2006 because of his hitting and biting behaviors; he was prescribed mood-stabilizing medication.

[¶ 7] In June 2006, licensed social worker Carrie Smith received a report of problems at Mother’s home. Smith and two law enforcement officers went to the home on June 14, 2006 to investigate. Mother was told in advance that Smith would be visiting the home. Upon entering the apartment, Smith noticed a strong odor she characterized as “feces and also like a stale smoke, garbage kind of smell.” Sam and George were found in their bedroom, where several areas of the wall had been smeared with feces. Sam was eating loose cereal off the floor which was next to feces stains on the carpet. George was found in his crib, which had only a bare mattress and no bedding. He was eating loose cereal off the crib mattress. Both children were dressed only in diapers that appeared not to have been changed that morning. Sam’s diaper was fastened with duct tape. No toys, books or play items were available to the children. All such items were stored in containers out of the children’s reach. During the visit, Smith witnessed George putting pennies in his mouth. Other parts of the apartment were in a similar state with cigarette butts and food products on the floor. One of the officers who accompanied Smith described the home:

“I didn’t think [the family] should be living there to be blunt. The place was filthy.... It was a mess. The carpet probably hadn’t been cleaned since they moved in. There was food all over.... There was garbage piled up all over the residence. It appeared to be a cleaning solution in a bucket that was on the floor that could be easily accessible to a child- [T]he T.V. that was in the bedroom was on but there was no picture on it. It was a snowy picture and the children appeared to be watching it as if there was a cartoon on.... The house was disgusting.”

During the visit, Mother told Smith she had been “spring cleaning.” The police officers took photos of the home which were entered into evidence. Sam and George were taken into protective custody.

[¶ 8] Sam and George entered foster care on June 14, 2006, and a petition for termination of parental rights was filed on June 30, 2006. On January 8, 2007, a judicial referee terminated Mother’s parental rights to both Sam and George. The children’s fathers’ rights were also terminated. The referee’s findings of fact were (1) Mother has mental health issues and has refused the mental health services made available to her through social services; (2) Mother complains of numerous physical ailments, including back problems, psoriasis, connective tissue disorder, irritable bowel syndrome, stress and exercise induced asthma, stress induced hives, reflux disorder, ovarian cyst and seizures, but has not sought consistent medical treatment; (3) Mother “fail[s] to maintain the home at or above minimum community standards!,] has failed to appropriately address the hygiene needs of the children and [has] demonstrated poor judgement with regard to the health and safety of the children”; (4) Mother has been offered extensive services including intervention, referrals and education to help her improve her family’s situation, yet was “unable to maintain any consistent minimal level of care for extended periods of time [which] has resulted in an environment that is unsafe for the children”; and (5) Mother is unable to provide appropriate developmental care for the children, and since entering foster care, the children’s developmental delays have disappeared. In sum, the referee determined the time needed to create a stable home for Mother’s children is too long and found by clear and convincing evidence the children are deprived and would be harmed without terminating her parental rights. Sam and George were placed into the custody of the Department of Human Services.

[¶ 9] In January 2007, Mother requested a review of the referee’s factual findings and order. On April 5, 2007, the juvenile court adopted the referee’s factual findings and order. Mother appeals the juvenile court’s order.

II

[¶ 10] “To terminate a person’s parental rights, the petitioner must prove the child is deprived; the conditions and causes of the deprivation are likely to continue or will not be remedied; and, that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” In re T.A., 2006 ND 210, ¶10, 722 N.W.2d 548. These elements must be proven by clear and convincing evidence. Id. “Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true.” Id.

[¶ 11] This Court will not overturn a juvenile court’s decision to terminate parental rights unless the decision is clearly erroneous. In re E.G., 2006 ND 126, ¶ 7, 716 N.W.2d 469. “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.” Id.

[¶ 12] Mother appears to concede the children were deprived, but argues insufficient evidence exists to support the finding that deprivation was likely to continue. She also challenges the finding that the children would likely suffer harm absent a termination of parental rights and argues that reasonable efforts to reunify her family have not been made.

A

[¶ 13] A deprived child lacks “proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” N.D.C.C. § 27-20-02(8)(a). “Proper parental care is met by exhibiting minimum standards of care that the community will tolerate.” T.A., 2006 ND 210, ¶ 12, 722 N.W.2d 548. Mother has not argued in juvenile court or on appeal the referee’s deprivation finding was made in error. Our review is “limited to issues litigated below and the arguments presented upon appeal. Where a party fails to provide supporting argument for an issue listed in his brief, he is deemed to have waived that issue.” State v. Obrigewitch, 356 N.W.2d 105, 109 (N.D.1984). Based on the record before us, we affirm the juvenile court’s conclusion that the children are deprived.

B

[¶ 14] Mother argues the juvenile court erred in finding evidence that the conditions and causes of the children’s deprivation are likely to continue or will not be remedied. Mother cites no law supporting this assertion and simply argues the evidence provided by petitioner did not prove clearly and convincingly that deprivation is likely to continue. This Court may only overturn the juvenile court’s decision if it finds no evidence to support the finding or if, “on the entire record, we are left with a definite and firm conviction a mistake has been made.” In re D.M., 2007 ND 62, ¶ 6, 730 N.W.2d 604. Based on this record, we conclude the juvenile court did not err.

[¶ 15] Mother’s conduct plus “[p]rognostic evidence, including reports and opinions of the professionals involved” may be used to form the determination deprivation will continue. T.A., 2006 ND 210, ¶ 15, 722 N.W.2d 548. A parent’s lack of cooperation with social services can be evidence that deprivation is likely to continue. In re T.F., 2004 ND 126, ¶ 19, 681 N.W.2d 786. The juvenile court acknowledged that from the time Mother began working with social services in August 2003 until the final removal in June 2006, numerous services were provided to the family, including parenting education, welfare checks, parent aide services, homemaker services, day care services, case management services, a chemical dependency evaluation, a parental capacity evaluation, counseling services, infant development counseling, speech and occupational therapy for Sam, financial and medical assistance and supervised visitation. Despite all this assistance, Mother missed appointments, refused treatment for her physical and mental ailments and ultimately did not improve her parenting.

[¶ 16] Particularly relevant is the testimony of an in-home care support specialist assigned to Mother. The support specialist provided weekly housekeeping help and attempted to establish a cleaning routine. Mother did not follow through. The support specialist testified she and Mother would clean, but the next week she would find the home in disorder. The support specialist suggested Mother keep the home picked up and rinse the dirty dishes, but Mother did not comply. While a lack of cleanliness of the home alone does not provide a sufficient showing of deprivation necessary to terminate parental rights, parents must at least provide care “that satisfies the minimum community standards.” In re M.S., 2001 ND 68, ¶ 12, 624 N.W.2d 678. Sam and George have been removed from Mother’s home twice before this incident due to deprivation. Upon the children’s return home, the unhealthy and unsafe living situation did not improve. Placement in foster care followed by reunification has become a cycle for this family. The juvenile court’s determination that deprivation would continue is not clearly erroneous.

C

[¶ 17] Termination of parental rights requires clear and convincing evidence that “the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27 — 20—44(l)(c)(l). The risk of future harm may be based on evidence of previous harm. See In re M.B., 2006 ND 19, ¶ 18, 709 N.W.2d 11. Here, the referee found the children will be harmed if Mother’s parental rights are not terminated. “To terminate parental rights, a court need not await the happening of a tragic event.” In re T.K., 2001 ND 127, ¶ 17, 630 N.W.2d 38. Sufficient evidence exists showing the children have been harmed by Mother’s lack of care. For example, Mother told her social worker the children were anaemic, and when asked what she had been feeding them, she referenced only cereal and macaroni. As a result, George is substantially underweight. Mother’s home was littered with choking hazards, such as the pennies George put into his mouth during the social worker’s visit. A registered nurse who provides in-home visits to assess safety issues stated:

“The thing that I was thinking about, you know, were the soiling and the dirty environment and crawling, children always put their hands in their mouth and to be crawling — crawling up things and the bacteria, infection, those kinds of things as well as the cluttering and tripping, falling.”

[¶ 18] Furthermore, Sam has exhibited delayed language and motor skills. A speech language pathologist worked with Sam when he was living with Mother and later when he was placed in foster care. The pathologist testified Sam’s progress was slight while living with Mother. Since foster care placement, Sam has improved enough to have “closed the gap” in his developmental delay. The pathologist attributes this improvement to Sam’s “consistent attendance and consistency in his life.” Given the extensive assistance Mother received and the small impact it made on the family’s living situation, the juvenile court did not err in its assessment that Mother will likely be unable to provide a safe, healthy environment for the children in the future. Sufficient evidence - exits supporting the juvenile court’s finding that the children are likely to be harmed if Mother’s parental rights are not terminated. The juvenile court’s factual findings are not erroneous.

D

[¶ 19] Finally, Mother argues reasonable efforts were not made to preserve and unify her family as required prior to termination of parental rights. See N.D.C.C. § 27-20-32.2(2). Reasonable efforts are defined as the “exercise of due diligence, by the agency ... to use appropriate and available services to meet the needs of the child and the child’s family.” N.D.C.C. § 27-20-32.2(1) (emphasis added). Mother was given numerous resources to help her provide a better environment for her family. A social worker reviewed Mother’s case plan prior to the children’s placement in foster care in June 2006. This social worker testified there were no more services available that could be offered to Mother. Moreover, the district court noted Mother’s participation in these services was “sporadic” and she can-celled or missed numerous appointments. The agency does not have to exhaust every potential solution before termination of parental rights. The juvenile court did not err in finding reasonable efforts had been made to preserve and unify this family prior to termination of Mother’s rights.

Ill

[¶ 20] The juvenile court’s factual findings with regard to deprivation, likelihood of future harm and reasonable efforts to preserve and unify the family are not clearly erroneous. The juvenile court’s order terminating Mother’s parental rights to Sam and George is affirmed.

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

      . The parties' names are pseudonyms.


author: VANDE WALLE, Chief Justice.

text:
    2008 ND 3
    STATE of North Dakota, Plaintiff and Appellee v. Gregory EMERY, Defendant and Appellant.
    No. 20070147.
    Supreme Court of North Dakota.
    Jan. 17, 2008.

      Christopher J. Nyhus, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Danny L. Herbel, The Regency Business Center, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Gregory Emery appealed from a motion to correct his sentence after a jury found him guilty of driving under the influence (“DUI”). We reverse the district court order denying Emery’s motion to correct his sentence and remand for resen-tencing in accordance with this opinion.

I.

[¶ 2] In April 2007, Emery was found guilty in a jury trial of DUI. During sentencing, the State told the district court it took into account a prior DUI within the five-year look-back period in formulating a sentence recommendation. In discussing the prior DUI, the State referred to Emery’s driving abstract from the Department of Transportation, but did not offer the abstract into evidence. When questioned by the district court on whether he had pled guilty or was convicted of a DUI within the past five years, Emery nodded his head. Emery was sentenced to thirty days in jail with twenty-five days suspended, $1000 in fines with $500 suspended and two years of supervised probation. He was also ordered to surrender his license plates. The order issued by the district court listed the DUI as Emery’s second offense within five years.

[¶ 3] Emery filed a motion to correct his sentence, arguing his sentence was illegally enhanced by his prior DUI without proper evidence to support enhancement. The district court denied Emery’s motion, stating the offense was not enhanced and was within the maximum sentence limits for a first offense DUI, a class B misdemeanor. On appeal, Emery argues his sentence was enhanced and the enhancement was improper because there was no evidence he waived his right to counsel in the prior DUI proceeding.

II. First Offense or Second Offense Sentence?

[¶ 4] A district court is allowed the widest range of discretion in sentencing a convicted defendant. State v. Skarsgard, 2007 ND 160, ¶ 25, 739 N.W.2d 786 (citation omitted). Appellate review of the sentence itself focuses only on whether the district court acted within the limits prescribed by statute, or substantially relied on an impermissible factor. Id. (quoting State v. Wardner, 2006 ND 256, ¶ 27, 725 N.W.2d 215). A sentence, as any other judgment, is construed in its entirety according to the usual rules of construction so as to give effect to the intent of the sentencing court. Davidson v. Nygaard, 78 N.D. 141, 150, 48 N.W.2d 578, 588 (1951). “If two constructions of a judgment are possible that one which maintains the jurisdiction of the court and gives effect to the intent of the judge who imposed it must be preferred.” Id. at 141, 48 N.W.2d at 579 Syllabus ¶ 5.

[¶ 5] The maximum penalty for a class B misdemeanor is thirty days’ imprisonment, a fíne of one thousand dollars, or both. N.D.C.C. § 12.1-32-01(6). Here, the length of imprisonment is within the parameters of a first offense DUI, but confusion arises because the district court’s order listed the DUI as Emery’s second offense within five years. Significantly, Emery was ordered to surrender his license plates. The previous version of N.D.C.C. § 39-08-01 authorized a district court to order the surrender of license plates for a first offense DUI, but the current version in effect in this case requires a license plate surrender for a second or subsequent DUI offense. There is no authority for the district court to order Emery to surrender his license plates for a first offense except under N.D.C.C. § 39-06^42, an inapplicable statute dealing with driving under suspension. Further, no amended order was issued explaining the labeling of the offense as Emery’s second DUI within five years. The confusion regarding Emery’s sentence leads this Court to conclude Emery’s sentence was enhanced to reflect a second DUI offense within five years because there is no authority for a judge to require surrender of license plates for a first offense DUI.

III. Waiver

[¶ 6] A DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge. State v. Johnson, 376 N.W.2d 15, 16 (N.D.1985). See also State v. Orr, 375 N.W.2d 171, 178-79 (N.D.1985). A prior uncounseled conviction without waiver of counsel is an impermissible factor which may not be substantially relied on by a trial judge in sentencing a defendant. State v. Cummings, 386 N.W.2d 468, 469 (N.D.1986). A trial court errs in presuming a defendant validly waived the right to counsel when the record does not affirmatively indicate such a waiver. Orr, at 174. Once the reliability of the prior convictions is established by showing the defendant had counsel, the burden shifts to the defendant to affirmatively show the convictions were deficient under N.D.R.Crim.P. 11. State v. Berger, 1999 ND 46, ¶ 10, 590 N.W.2d 884. This Court has held a record with certified judgments from three prior DUI convictions indicating the defendant had the benefit of counsel was sufficient to shift the burden to the defendant to show otherwise. State v. Haverluk, 432 N.W.2d 871, 875 (N.D.1988).

[¶ 7] At sentencing, the State referred to Emery’s certified driving abstract from the Department of Transportation but apparently did not offer the abstract into evidence and the record does not contain a copy of the abstract. There was no reference to counsel or waiver of the right to counsel by Emery in the prior DUI proceeding. The district court asked Emery if he had pled guilty or was found guilty of a prior DUI within five years and Emery nodded his head. However, the district court did not ask whether Emery was represented by counsel or whether he waived his right to counsel in the prior DUI proceeding. At the hearing on Emery’s motion to correct his sentence, the State again refers to Emery’s driving abstract to recite conviction dates, but did not indicate the abstract showed Emery was represented or had waived his right to counsel in the proceeding.

[¶ 8] The record before us does not contain evidence of a prior counseled conviction within five years nor of a waiver of counsel by Emery in the prior DUI proceeding. Therefore, Emery’s sentence could not be enhanced to a second DUI offense within five years. Emery requests we reverse his sentence and remand this matter to the district court with instructions that he be sentenced without regard to the prior DUI conviction and be sentenced as other first offenders in Morton County, North Dakota. Emery argues a standard sentence for a first DUI offense in Morton County does not include jail time nor does it include supervised probation. There is no evidence of the standard sentence in the record before us other than Emery’s contentions. Furthermore, a sentencing judge has discretion in sentencing when acting within the limits prescribed by law, State v. Skarsgard, 2007 ND 160, ¶ 25, 739 N.W.2d 786, and we will not require a judge to impose any specific sentence. The district court should sentence Emery as a first-time DUI offender in accordance with N.D.C.C. § 39-08-01 within the parameters of N.D.C.C. § 12.1-32-01(6).

IV.

[¶ 9] We reverse the district court order denying Emery’s motion to correct his sentence and remand for resentencing in accordance with this opinion.

[¶ 10] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, J., concurs in the result.


author: STREIT, Justice.

text:
    David Paul DOHRN, Appellant v. MOORING TAX ASSET GROUP, L.L.C., Layne Pershing, Jason Rathje and Shawn Rathje, d/b/a RPR Partnership, Appellees. Layne Pershing, Jason Rathje and Shawn Rathje, d/b/a RPR Partnership, Cross-Appellants, v. Mooring Tax Asset Group, L.L.C., Cross-Appellee.
    No. 06-0031.
    Supreme Court of Iowa.
    Jan. 25, 2008.

      T. Randy Current of Frey, Haufe & Current, P.L.C., Clinton, for appellant Dohrn.
    James D. Bruhn of Farwell & Bruhn, Clinton, for cross-appellant RPR Partnership.
    Stephen P. Wing of Dwyer & Wing, P.C., Davenport, for appellee Mooring Tax Asset Group.
   STREIT, Justice.

David Dohrn lost forty acres to a tax sale for failure to pay his real estate taxes. In an action to void the tax deed, he claims the notice of redemption period has not expired because his tenants were not served with notice of redemption. We find the tenants should have been given notice of their right to redemption. Consequently, the tax deed is void and the redemption period remains open. Iowa Code section 448.16 does not bar an action challenging a void tax deed. The district court erred by finding Dohrn’s action untimely.

I. Facts and Prior Proceedings.

David Dohrn filed a claim in equity seeking to void a tax deed for forty acres of farmland and restore title to him. The property was purchased by the Mooring Tax Asset Group at a tax sale conducted by the Clinton County Treasurer on July 19, 2000, for delinquent 1998 second half real estate taxes in the amount of $428, plus interest. Mooring received a certificate of purchase and paid subsequent taxes accruing on the property.

On January 28, 2003, Mooring served a Notice to Redeem from Tax Sale on Dohrn, Wesley Rose, the City of Clinton, and Clinton County. The notice was sent by certified mail with return receipt requested. The notice provided in part, “the right to redemption will expire and a deed for said parcel will be made unless redemption from said tax sale is made within ninety (90) days from the completed service of this Notice.” Mooring examined a title report to determine persons shown by public record to have any leasehold or other right of possession in the forty-acre tract.

At the time the notice to redeem was served, Dohrn, age forty-six, owned the forty acres at issue and the property was taxed in his name. The forty acres were part of a 312-acre farm Dohrn inherited from his father approximately ten years earlier. In 1996, Dohrn rented most of the tillable portion, approximately 230 acres, to Wesley Rose. Rose recorded the lease with the Clinton County Recorder on March 15,1996. The tillable portion of the forty-acre tract (approximately thirty-five acres) was included in the rental agreement. Following the 1999 crop year, Dohrn and Rose terminated the lease by mutual agreement. Neither Dohrn nor Rose recorded a notice of termination. Dohrn testified he was unaware Rose had recorded the lease.

In 2000 Dohrn leased the same acres to RPR Partnership, which consisted of Layne Pershing, Jason Rathje, and Shawn Rathje. This lease was never recorded.

On February 7, 2003, Mooring filed an affidavit of service in the office of the Clinton County Treasurer showing the manner and completion of the service of notice to redeem. No one redeemed the forty acres within the ninety days following the filing of the affidavit of service. The Clinton County Treasurer issued a tax deed to Mooring on May 20, 2003. Mooring filed a “120-day affidavit” on June 4, 2003 in the office of the Clinton County Recorder. The affidavit stated in part:

Any person claiming any right, title, or interest in or to the parcel adverse to the title or purported title by virtue of the tax deed referred to shall file a claim with the recorder of the county where the parcel is located, within one hundred twenty days after the filing of this affidavit, the claim to set forth the nature of the interest, also the time and manner in which the interest claimed was acquired.

(Emphasis added.) No one filed a claim with the recorder during the 120-day period. Thereafter, Mooring sold the forty acres to RPR.

At trial, Dohrn said he was an alcoholic. He has been convicted twice of operating while intoxicated and did not have a driver’s license at the time of trial. Dohrn contended his alcoholism contributed to his failure to pay his real estate taxes.

Dohrn admitted to receiving notices of real estate taxes due from the Clinton County Treasurer. He acknowledged receiving the notice of the right to redeem the property from the tax sale via certified mail and recalled signing the return receipt. He claimed he never opened the envelope.

Melissa Dohrn, Dohrn’s daughter, was appointed Dohrn’s conservator in part because of this incident. Melissa acknowledged her father understood the nature and extent of his business affairs, but made some “bad choices” because of his alcohol problem.

The district court found Dohrn’s action challenging Mooring’s tax title untimely and barred by Iowa Code sections 448.15 and 448.16 (1999) (the provisions allowing for a 120-day affidavit). Dohrn appealed. He alleged that because persons in possession of the forty acres were not served notice of the right to redeem, sections 448.15 and 448.16 do not bar his claim. He also claimed title should be restored to him based on general equitable principles. RPR cross appealed, claiming the district court erred by not ordering Mooring to pay its attorney fees and costs incident to defending Dohrn’s claims. Additionally RPR requested, in the event we reverse the district court, that we remand this case for further proceedings regarding RPR’s cross-claim against Mooring for breach of warranty, breach of contract, and unjust enrichment.

For the reasons that follow, we find the tax deed void and Dohrn’s claim timely. Moreover, we find RPR was not entitled to recover its litigation expenses.

II. Scope of Review.

Since this is a case in equity, our review is de novo. Burks v. Hedinger, 167 N.W.2d 650, 652 (Iowa 1969). We give weight to the district court’s findings of fact but we are not bound by them. Id.

III. Merits.

A. Mooring was required to give RPR notice of redemption. Tax sales are governed by chapter 446 of the Iowa Code. When a property owner fails to pay his or her taxes, the county treasurer shall sell the property “for the total amount of taxes, interest, fees, and costs due.” Iowa Code § 446.7. The purchaser receives a “certificate of purchase” from the county treasurer. Id. § 446.29. The certificate represents an inchoate right or lien and not an interest in the property. Patterson v. May, 239 Iowa 602, 610, 29 N.W.2d 547, 552 (1947). The property owner has two years to redeem the property by paying the county treasurer the amount for which the property was sold as well as the amount of any taxes the certificate holder may have paid for subsequent years plus two percent per month interest. Iowa Code § 447.1. If the property is not redeemed, the certificate holder is entitled to a tax deed. Id. § 448.1.

However, before the county treasurer may issue a tax deed, the certificate holder is required to provide notice of the expiration of the right of redemption to “the person in possession of the parcel” and “the person in whose name the parcel is taxed.” Id. § 447.9. Section 447.9 provides in pertinent part:

After one year and nine months from the date of sale, ... the holder of the certificate of purchase may cause to be served upon the person in possession of the parcel, and also upon the person in whose name the parcel is taxed, a notice signed by the certificate holder or the certificate holder’s agent or attorney, stating the date of sale, the description of the parcel sold, the name of the purchaser, and that the right of redemption will expire and a deed for the parcel be made unless redemption is made within ninety days from the completed service of the notice.

(Emphasis added.) The ninety-day period does not begin until “service is complete.” Id. § 447.12. Once service of notice is completed and ninety days have passed, the county treasurer shall issue a tax deed upon the return of the certificate of purchase. Id. § 448.1.

Dohrn contends the time for redemption has not expired because RPR was not served with notice of redemption. Mooring argues it was reasonable for it to rely on the public record and only provide notice to Dohrn and Rose. Moreover, RPR claims it was not necessary for Mooring to serve RPR notice because RPR had “actual notice” of the tax sale and in any event waived its right to notice. Thus, we must first address whether RPR was entitled to notice, and if so, whether the notice requirement may be waived or excused.

Iowa Code section 447.9 requires all persons in possession of the parcel to be served with notice of the expiration of the redemption period. Our case law defines “possession” as “conduct that gives notice to the holder of the certificate of purchase in determining whether a party is in possession.” Pendergast v. Davenport, 375 N.W.2d 684, 690 (Iowa 1985) (citing Burks, 167 N.W.2d at 655). “Frequently, that conduct has been actual entry onto the land or some objectively observable use or care made of the land.” Nelson v. Forbes, 545 N.W.2d 576, 580 (Iowa Ct.App.1996) (citing Jamison v. Knosby, 423 N.W.2d 2, 5 (Iowa 1988)).

It is undisputed RPR was in possession of thirty-five of the forty acres when Mooring served notice of redemption on Dohrn and Rose. Mooring concedes this point. See Callanan v. Raymond, 75 Iowa 307, 308, 39 N.W. 511, 512 (1888) (person growing corn on farmland entitled to notice of redemption). However, Mooring claims a tax certificate holder need only make a “good faith effort” to identify and serve those persons entitled to notice and “need not actually succeed in having the [persons] receive that notice.” In support of this contention, Mooring notes the legislature amended section 447.9 in 1999 so that personal service is no longer required. Instead, “[t]he notice shall be served by both regular mail and certified mail to the person’s last known address and such service is deemed completed when the notice by certified mail is deposited in the mail and postmarked for delivery.” Iowa Code § 447.9.

We disagree this amendment excuses a tax certificate holder’s failure to identify the persons in possession. Our case law makes clear the onus is on the tax certificate holder to identify who is in possession of the property. See, e.g., Pendergast, 375 N.W.2d at 691 (holding telephone company who maintained a pay phone on the property entitled to notice); Burks, 167 N.W.2d at 654 (maintaining a pile of lumber and some broken down furniture behind an uninhabited home sufficient for possession and entitled to notice); Thompson v. Chambers, 229 Iowa 1265, 1272, 296 N.W. 380, 384 (1941) (a neighbor who went every other day to the house in an attempt to exterminate vermin and another neighbor, tenant of the barn on the premises, were both deemed to be in possession and each entitled to notice of redemption); Sapp v. Walker, 66 Iowa 497, 498-99, 24 N.W. 13, 14 (1885) (notice required on plaintiff who demonstrated possession of empty city lot by cutting weeds and hauling dirt from the property); Ellsworth v. Low, Adams & French, 62 Iowa 178, 179-80, 17 N.W. 450, 451 (1883) (notice required to one removing timber from an uncultivated wood lot). This amendment does not effectively overrule our prior holdings as Mooring alleges. At most, the amendment may permit a court to excuse a certificate holder’s failure to locate a possessor. We need not determine what due process requires under those circumstances. In the present case, Mooring simply relied on the public record to determine who was entitled to notice. However, we have previously held that alone is not sufficient. See Pendergast, 375 N.W.2d at 690 (stating “[o]ne may not presume that the owner is in possession as the possession ‘contemplated by the statute is actual, as distinguished from that which the record might show.’ ” (quoting Callanan, 75 Iowa at 309, 39 N.W. at 512)). Moreover, it was not reasonable for Mooring to rely on the lease because it was impossible to determine from the language of the lease whether any of the forty acres was included in the lease agreement. The lease agreement provided the legal description of Dohrn’s 312 acres and then stated the lease only pertained to the 230 acres of tillable ground “exclusive of dwelling and buildings.” It turns out only thirty-five of the forty acres were tillable and the remaining five acres included buildings and pasture. Dohrn allowed his cousin to use the pasture and Dohrn and others stored personal property in and around the buildings. With the exception of Dohrn, none of these people were given notice of redemption. Had Mooring visited the property, it would have been apparent the lease did not pertain to the entire forty acres.

Mooring contends the terminated lease was its only means to identify who was in possession of the property because it served notice “during the middle of winter” when the land was bare. However, we adhere to our case law which makes clear neither the time of year nor the use of the property is an excuse for failing to identify who was in possession of the land. See, e.g., Thompson, 229 Iowa at 1273, 296 N.W. at 384 (“ ‘It was not important that the acts indicating possession should be exercised at the season of the year when the deed was to issue. It was only necessary to do such acts as the nature of the particular occupancy required.’” (quoting Cahalan v. Van Sant, 87 Iowa 593, 596, 54 N.W. 433, 434 (1893))); Burks, 167 N.W.2d at 655 (“Actual possession evidently results even if one cannot tell who is in possession from an observation of the premises.” (Emphasis added.)). Mooring was required to conduct a diligent investigation, which may have required an on-site inspection and even contacting neighbors or others in the community. See, e.g., Burks, 167 N.W.2d at 655 (“No reason is apparent why inquiry from the next-door neighbor ... would not have disclosed this use of the premises was being made by Lorenzo Duke.”). Mooring failed to perform an adequate investigation, which would have revealed RPR’s leasehold interest.

B. Notice may not be waived or excused. Mooring and RPR argue even if notice to RPR was required, Mooring’s failure to provide proper statutory notice is irrelevant because RPR had “actual notice” and also waived notice. RPR learned about the tax sale when Mooring’s realtor visited the property in late April or early May 2003. At the time, Lane Pershing (one of the RPR partners) was planting his crop. The realtor asked Pershing if he was Dohrn. Pershing said he was Dohrn’s tenant. The realtor explained Dohrn no longer owned the forty acres because Mooring had bought that portion of the farm at a tax sale. A few days later, Shawn Rathje, another RPR partner, offered to pay the amount Dohrn owed for the taxes so that Dorhn could keep the land. The realtor told Rathje it was too late and the land was for sale.

We doubt one can have actual notice if he was unaware of the right to redeem until after such right had expired or was about to expire. In any event, “[w]e have consistently held that the requirement of serving notice of redemption is an absolute, and the statutory provisions as to notice must be strictly complied with before parties are deprived of their property.” Pendergast, 375 N.W.2d at 691; see also Burks, 167 N.W.2d at 655; Thompson, 229 Iowa at 1272, 296 N.W. at 384; Murphy v. Hatter, 227 Iowa 1286, 1289, 290 N.W. 695, 696 (1940); Comoy v. Wetmore, 92 Iowa 100, 104, 60 N.W. 245, 246 (1894).

Although the owner has been served with a notice of redemption, he or she may take advantage of the certificate of purchase holder’s failure to notify a person in possession. The failure to serve a party in possession prevents the service from becoming complete and the right of redemption does not expire. Even if a court sitting in equity has deemed the compliance with the statute to be substantial and further notice unnecessary, the courts have no authority to dispense with the positive requirements of the statute.

Pendergast, 375 N.W.2d at 691 (citations omitted). Therefore, actual notice is not sufficient and RPR may not waive its right to notice. Lack of proper notice to RPR alone is enough to prevent the redemption period from expiring. Under section 448.1, the county treasurer is only authorized to issue a tax sale deed once all of the necessary parties have been served with notice of redemption and at least ninety days have passed. Since RPR has not been served with notice of redemption, the tax sale deed issued to Mooring is void. Id.; Thompson, 229 Iowa at 1272, 296 N.W. at 384; Smith v. Huber, 224 Iowa 817, 823, 277 N.W. 557, 560 (1938).

C. Section 448.16 does not bar Dohrn’s claim. Mooring claims that even if it did not satisfy the notice of redemption requirements found in Iowa Code section 447.8, Dohrn’s action was still untimely and therefore barred under sections 448.15and 448.16. After the tax deed is issued by the county treasurer, section 448.15allows the holder of the deed to file an affidavit with the county recorder which shall describe the property and explain a tax deed was issued. It shall state:

Any person claiming any right, title, or interest in or to the parcel adverse to the title or purported title by virtue of the tax deed referred to shall file a claim with the recorder of the county where the parcel is located, within one hundred twenty days after the filing of this affidavit, the claim to set forth the nature of the interest, also the time and manner in which the interest claimed was acquired.

Iowa Code § 448.15.

Section 448.16 states:

When the affidavit described in section 448.15is filed it shall be notice to all persons, and any person claiming any right, title, or interest in or to the parcel described adverse to the title or purported title by virtue of the tax deed referred to, shall file a claim with the county recorder of the county in which the parcel is located within one hundred twenty days after the filing of the affidavit, which claim shall set forth the nature of the interest, the time when and the manner in which the interest was acquired.
At the expiration of the period of one hundred twenty days, if no such claim has been filed, all persons shall thereafter be forever barred and estopped from having or claiming any right, title, or interest in the parcel adverse to the tax title or purported tax title, and no action shall thereafter be brought to recover the parcel, and the then tax-title owner or owner of the purported tax title shall also have acquired title to the parcel by adverse possession.

(Emphasis added.)

We have previously said Iowa Code section 448.16 is a statute of limitation. Simeon v. City of Sioux City, 252 Iowa 779, 785, 108 N.W.2d 506, 509-10 (Iowa 1961); Modern Heat & Power Co. v. Bishop Steamotor Corp., 239 Iowa 1267, 1278, 34 N.W.2d 581, 587 (1948); Patterson, 239 Iowa at 613, 29 N.W.2d at 553; Swanson, 238 Iowa at 697, 27 N.W.2d at 23. However, this characterization is inaccurate in light of the fact chapter 448 contains a three year statute of limitations. Iowa Code section 448.12, which is entitled “Limitation of actions,” states “[a]n action for the recovery of a parcel sold for the nonpayment of taxes shall not be brought after three years from the execution and recording of the county treasurer’s deed.... ” Sections 448.15 and 448.16 simply provide a quick and low-cost alternative to bringing an action to quiet title. After the holder of the tax deed files an affidavit with the county recorder, section 448.16 cuts the amount of time to bring an action adverse to the tax title from three years to 120 days. Thus, it is only fair to require the tax deed holder to have a valid deed before he may use sections 448.15 and 448.16 to cut off another’s right in the property. Larsen v. Cady, 274 N.W.2d 907, 909 (Iowa 1979) (holding sections 448.15 and 448.16 do not bar an action to set aside a void tax deed); see also Smith, 224 Iowa at 826-27, 277 N.W. at 562 (stating because no notice of redemption was given, the tax deed was invalid, the property was subject to redemption, and the five-year bar created by Iowa Code section 7295 (a predecessor to section 448.12) did not apply). To hold otherwise would in some circumstances “deny a potential claimant all opportunity to protest” and violate due process. Larsen, 274 N.W.2d at 909. As we said in Larsen, one cannot “make a void deed valid by a self-serving affidavit.” Id.

In the present case, it is undisputed Mooring filed an affidavit with the county recorder which comported with section 448.15 and no one filed a claim within 120 days. However, we have already determined the tax sale deed issued to Mooring was void because Mooring failed to provide proper notice of redemption to RPR. Therefore, sections 448.15 and 448.16 do not bar Dohrn’s action. The district court should have set aside the tax deed issued to Mooring. If the property is not redeemed within ninety days of completed service of notice of redemption, then the county treasurer may properly issue a tax deed.

D. RPR is not entitled to attorney fees. RPR claims the special warranty deed Mooring delivered to RPR entitled RPR to recover its litigation expenses against Mooring (regardless of the outcome of this case). The special warranty deed provided “Grantors do Hereby Covenant with Grantees and successors in interest to Warrant and Defend the real estate against the lawful claims of all persons claiming by, through or under them, except as may be above stated.” There were no exceptions to the foregoing warranty language set out in the deed.

Although this case is based on a defect in the tax deed for which Mooring is responsible, we find the district court correctly denied RPR’s request for attorney fees and expenses because Mooring adequately protected RPR’s interests in this lawsuit. In Peters v. Lyons, 168 N.W.2d 759, 769 (Iowa 1969) (quoting Corbin on Contracts), we said:

If the plaintiff can show that the defendant’s breach of contract has caused litigation involving the plaintiff in the payment of counsel fees, court costs, and the amount of a judgment, and shows further that such expenditure is reasonable in amount and could not have been avoided by him by reasonable and prudent effort, he can recover damages against the defendant measured by the amount of these expenditures.

(Emphasis added.) RPR’s participation in the lawsuit was duplicative of Mooring’s efforts and therefore unnecessary. Moreover, RPR never requested Mooring to defend RPR in the action based on the special warranty deed. The district court correctly denied RPR’s request for attorney fees.

IV. Conclusion.

The tax deed issued to Mooring was void because RPR, who was in possession of the property, was not properly notified of its right to redemption. Consequently, sections 448.15 and 448.16 do not bar Dohrn’s claim. It was error for the district court to hold otherwise. Mooring must start again with its notice of redemption. The district court correctly denied RPR’s request for attorney fees. We remand for further proceedings regarding RPR’s cross-claim against Mooring for breach of warranty, breach of contract, and unjust enrichment.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Dohrn also claims other persons who either stored personal property on the forty acres or used two to three acres of pasture were also entitled to notice of redemption. See Pendergast v. Davenport, 375 N.W.2d 684, 689 (Iowa 1985) (recognizing more than one person may be in possession of the property and entitled to notice of redemption). Because we find failure to serve notice to RPR prevented the redemption period from expiring, we need not determine whether these other persons were entitled to notice.

      . We note the legislature has amended section 447.8 so that "A person shall not be entitled to maintain [an equitable action to redeem the property after a tax deed has been delivered] by claiming that a different person was not properly served with notice of expiration of right of redemption, if the person seeking to maintain the action, or the person’s predecessor in interest, if applicable, was properly served with the notice.” This amendment took effect on April 19, 2005. It is not applicable to this action because the tax sale took place in 2000. See Iowa Code § 447.14 (stating ''[t]he law in effect at the time of tax sale governs redemption”).

      . We need not decide for purposes of this appeal whether the mechanism provided by sections 448.15 and 448.16 conforms to due process if the tax deed is valid. However, we do note these sections do not provide the same protections as an action to quiet title. For example, the tax deed holder is not required to serve notice of the 120-day affidavit upon those persons who were entitled to the notice of redemption. Instead, the only notice provided is constructive notice via the filing of the affidavit with the county recorder. Moreover, the tax deed holder is not required to take possession of the property before filing the 120-day affidavit. See Iowa Code § 448.15.


author: VOGEL, P.J.

text:
    In the Interest of A.S., Minor Child, D.S., Father, Appellant.
    No. 07-1710.
    Court of Appeals of Iowa.
    Dec. 12, 2007.

      Jesse A. Macro, Jr., Des Moines, for appellant father.
    Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee State.
    Cathleen Siebrecht, Des Moines, for ap-pellee mother.
    Rachael Seymour, Juvenile Public Defender, Des Moines, guardian ad litem for minor child.
    Considered by VOGEL, P.J., and MAHAN and ZIMMER, JJ.
   VOGEL, P.J.

A father appeals from the order terminating his parental rights to a son. We affirm.

I. Background Facts and Proceedings.

David and Gail are the parents of A.S., who was born in December of 2006. In the months preceding A.S.’s birth, the parents had their parental rights with respect to five other children terminated. These terminations were brought on by the parents’ mental health issues, resulting in sexual abuse, and extreme physical abuse of the children. Thus, the Iowa Department of Human Services (DHS) was involved immediately when A.S. was born. An order of temporary removal was filed on January 16, 2007, and A.S. was placed in foster care. A petition alleging A.S. to be a child in need of assistance (CINA) was filed the following day, and on February 7, 2007, A.S. was adjudicated as CINA under Iowa Code sections 232.2(6)(b) and (c)(2) (2007). After the parents failed to make sufficient progress to safely parent A.S., the State filed a petition seeking to terminate David’s and Gail’s parental rights. Following an August 2007 hearing, the court granted the State’s request. It terminated David’s rights under sections 232.116(l)(d), (g), and (h). Gail consented to the termination of her rights. Only David has appealed from this order.

II. Scope and Standards of Review.

We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App.1995). Our primary concern in termination proceedings is the best interests of the child. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).

III.Claims on Appeal.

David first contends that the district court erred in determining the State established the grounds for termination under any of the sections alleged in the termination petition. Second, he asserts the termination was not in A.S.’s best interests. Third, he argues the court erroneously admitted certain evidence. Finally, he contends the State did not make reasonable efforts geared toward reunification, in particular, increased visitation.

A. Grounds for Termination.

Upon our de novo review of the record, we concur in the district court’s determination that David’s parental rights should be terminated under section 232.116(l)(d), which requires proof that the child has been adjudicated CINA, the court previously adjudicated another child in the same family, the parent has been offered services to correct the situation leading to the adjudication, and the circumstances continue in spite of those services. The primary danger presented to A.S. was David’s ongoing contact with Gail, who has historically physically, sexually, and emotionally abused her children. However, David is not without fault as he participated in some of this abuse, and stood by while Gail perpetrated other acts of abuse.

While David claims to be leading a life apart from Gail, the evidence did not bear this out. A DHS worker reported David and Gail considered their separation as a “divorce of convenience” to pave the way for David to regain custody of A.S. As the juvenile court aptly noted, “David’s argument [against termination] hinges on the necessity that he convince me his plan to protect A.S. from his mother by divorcing her is real.” The transparency of the couples’ separation was noted by the court in its conclusion “that David has no intention of really separating from Gail.” Like the juvenile court, we believe the evidence is clear David is having and will continue to have substantial contact with Gail. If A.S. were in David’s care, any contact at all with Gail in the future would have a high likelihood of placing A.S. in physical danger. David’s testimony as to his claimed separation from Gail was found to be highly suspect and simply incredible by the juvenile court. We defer to this quite specific and strong adverse credibility finding. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).

B. Best Interests.

We also find the termination of David’s parental rights is in AS.’s best interests. David is not able to separate himself from the woman who contributed to the termination of his parental rights to other children, and who seriously abused her own children. Despite years of services, it is apparent David is unable to place the interests of his child above his interest in continuing his relationship with Gail. Moreover, A.S. is in need of a safe and nurturing home. It appears that his foster home, where he has lived since removal, is providing him just that.

C. Admissibility of Phone Records.

At trial, David testified generally as to his very limited contact with Gail following their purported separation. The guardian ad litem later presented impeachment evidence of David’s cell phone records, which reflected his contact with Gail was much greater than David had claimed earlier in his testimony. David asserts that because notice of the subpoenaed phone records was not served on him, the records should have been excluded from trial. Iowa Rule of Civil Procedure 1.1701(6) provides in part:

Prior notice of any commanded production of documents ... shall be served on each party ... in a manner reasonably calculated to give all parties an opportunity to object before the commanded production or inspection is to occur.

Our Iowa Rules of Civil Procedure do not automatically apply to juvenile proceedings. In re A.G., 558 N.W.2d 400, 402 (Iowa 1997) (citing In re J.R., 315 N.W.2d 750, 752 (Iowa 1982)). Under Iowa Code chapter 232, Division IV, pertaining to termination of parental rights (sections 232.104 through 232.120), there is no mention of evidentiary rules to be followed. However, our case law has long held that juvenile proceedings should be conducted in an informal manner. In Henderson, which involved a combined dependency and delinquency proceeding under the 1972 Code, the court noted that juvenile proceedings are to be conducted so as “to provide an informal, efficient hearing with regard to the allegations of the petition.” In re Henderson, 199 N.W.2d 111, 116, 120 (Iowa 1972); see also, In re Hewitt, 272 N.W.2d 852, 859 (Iowa 1978) (holding that a rule relating to special appearances for purposes of challenging jurisdiction is inapplicable to such proceeding);compare In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding same rule applies to CINA proceedings) and In re A.R., 316 N.W.2d 887, 889 (Iowa 1982) (holding former rule 179(b), now 1.904(2), applies to juvenile court termination proceedings).

Under 232.99(2) relating to dispositional hearings, “all relevant and material evidence shall be admitted.” Permanency hearings under 232.104(l)(c) are to be similarly conducted. Iowa’s court rules also appear to express this sentiment for informality. Iowa Court rule 8.1 expresses a desire for “full and free” discovery in juvenile proceedings in order to protect the rights of all parties and effectuate the goals of the juvenile justice system. Rule 8.3 additionally states a preference for “informal discovery methods.”

However, set against that backdrop of informality, wise policy still suggests that certain rules of procedure and evidence should be adhered to for the orderly and fair administration of CINA and termination proceedings. Iowa Code section 232.96(3), the CINA adjudicatory section, provides that “[o]nly evidence which is admissible under the rules of evidence applicable to the trial of civil cases shall be admitted, except as otherwise provided by this section.” In addition, rule 8.3 provides that Iowa Rules of Civil Procedure, divisions V (Discovery and Inspection) and VII (Depositions and Perpetuating Testimony), “shall apply” to CINA and termination proceedings. Rule 1.1701(6), regarding subpoenas, resides in division XVII of the Iowa Rules of Civil Procedure, and thus is not expressly made applicable to juvenile proceedings by Iowa Court Rule 8.3. Nonetheless, subpoena power under rule 1.1701, as an instrument of discovery, should be followed in CINA and termination proceedings. Rule 1.1701 gives the parties not only the power to obtain information but also remedies, should the request be unreasonable or burdensome. Rule 1.1701(2). Fundamental fairness as well as the orderly and fair administration of justice dictates that noncompliance should result in the inadmissibility of the evidence obtained thereby.

However, even the erroneous admission of this evidence will not result in reversal unless it is prejudicial. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 183 (Iowa 2004). Surveillance of David’s home provided the district court with essentially the same information as the cell phone records. The district court found:

Surveillance arranged for by the child’s guardian ad litem establishes unequivocally that David’s testimony about the amount of time he and Gail spent together after separating their households was false.... [Ejven if I do not consider the cell phone records I reach the same result. By the end of his direct and cross examination the quality of David’s testimony convinced me that he was not credible.... It was so inconsistent with itself that it did not deserve serious consideration.

Given that substantial other evidence of David and Gail’s apparent continuing relationship was already in the record, we find David did not suffer any prejudice from the erroneously admitted cell phone records. See, e.g., State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (holding no prejudice would be found due to erroneously admitted hearsay where it was merely cumulative).

D. Adequacy of Services.

Finally, we reject David’s contention he was not offered reasonable services when he was denied the opportunity to have increased visitation with A.S. DHS rejected David’s requests due to his ongoing contact with Gail, and their concern for A.S.’s safety. Any further unsupervised visitation may well have led to contact between A.S. and Gail, thus setting the stage for more abuse. This concern, fully justified by the past conduct of Gail as well as David, reasonably informed DHS’s decision in not granting David increased visitation. As the district court concluded, David was offered a plethora of services in order to “grow into [his] responsibilities,” yet he failed to do so. We affirm the termination of David’s parental rights.

AFFIRMED.

      . These five children included three of Gail’s daughters from previous relationships, David’s son from a previous marriage, and a son born to the couple.


author: MEYER, Justice.

text:
    Donald Albin BLOM, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-782.
    Supreme Court of Minnesota.
    Dec. 27, 2007.
    Rehearing Denied Feb. 7, 2008.
    Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, Thomas H. Pertler, Carlton County Attorney, Carlton, MN, for Respondent.
   OPINION

MEYER, Justice.

Appellant Donald Albin Blom appeals from the summary denial of his petition for postconviction relief. We affirm.

On August 16, 2000, following a trial at the Saint Louis County Courthouse in the City of Virginia, Minnesota, a jury found Blom guilty of first-degree murder committed in the course of a kidnapping, in connection with the disappearance and death of Kathlyn Poirier. State v. Blom, 682 N.W.2d 578, 588 (Minn.2004). Blom was sentenced to life in prison, without the possibility of parole, id., and is currently serving his sentence out of state.

Blom appealed his conviction, and then requested a stay of his appeal while he sought posteonviction relief. Id. at 605-06. In that first posteonviction petition, Blom sought relief on the grounds that he had been denied his rights to effective assistance of trial counsel, to self-representation, to a fair trial (because of excessive media coverage), to present exculpatory evidence, to a second change of venue, and against self-incrimination (because his statement was not voluntary). Id. at 606. The posteonviction court held a hearing in June 2002 for the purpose of receiving evidence regarding Blom’s ineffective assistance of counsel claim. Id. Blom’s petition was denied. Id. at 607.

Blom’s direct appeal was consolidated with his appeal of the posteonviction court’s order, and this court affirmed both in its July 2004 opinion. Id. at 626. In July of 2005, Blom filed a second petition for posteonviction relief, which the district court denied without an evidentiary hearing. That decision was not appealed. Blom asserts that the court failed to notify him of the order.

In January 2007, Blom filed a “Motion to Compel,” asking that the district court grant his petition for posteonviction relief. The district court treated the motion as a third petition for posteonviction relief, and denied it without an evidentiary hearing, finding that all matters therein were Knaffla-b&rred. In this appeal, Blom appears to make five different claims: (1) that the district court did not apply the appropriate standard when reviewing his pro se petition for posteonviction relief; (2) that because his confession was coerced, its admission into evidence violated • his Fifth and Fourteenth Amendment rights; (3) that the district court improperly asserted subject matter jurisdiction over federal charges by misleading him into believing that his confession would result in resolution of federal firearms charges, and by issuing orders interfering with Blom’s access to his federal public defender; (4) that he has been improperly denied the opportunity to develop evidence demonstrating his actual innocence, evidence about “coordinate jurisdiction,” and a trial record of “illegal collusion” and “[j judicial dishonesty”; and (5) that he is being improperly held out of state to prevent him from perfecting his appeal.

When a person convicted of a crime petitions for posteonviction relief, the posteonviction court must hold an evi-dentiary hearing unless the “files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2006). The petitioner bears the burden of establishing by a fair preponderance of the evidence facts that warrant reopening the case. Minn.Stat. § 590.04, subd. 3 (2006). When reviewing a posteonviction court’s denial of relief, this court examines whether the findings are supported by the evidence. Perry v. State, 731 N.W.2d 143, 146 (Minn.2007). The decision to grant or deny a new trial will not be disturbed absent an abuse of discretion. Id.

Claims asserted in a second or subsequent posteonviction petition are procedurally barred under this court’s Knaffla rule if they were raised in a direct appeal or a previous posteonviction petition, or if they could have been raised in either. Id.; State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). There are two exceptions to this rule. A claim may be considered despite the Knaffla bar if it is so novel that its legal basis was unavailable on direct appeal, or if the interests of justice require its consideration. Perry, 731 N.W.2d at 146 (citing White v. State, 711 N.W.2d 106, 109 (Minn.2006)). The second exception applies when fairness requires review and the petitioner did not deliberately and inexcusably fail to raise the claim on direct appeal. Id.

We have reviewed each of Blom’s claims in this, his third petition for post-conviction relief, and conclude that they are Knaffla-b&rred. The exceptions to- the Knaffla rule do not apply. Therefore, we conclude that the postconviction court did not abuse its discretion in denying Blom’s petition without an evidentiary hearing.

Affirmed.

      . A comprehensive statement of the facts can be found in our decision on direct appeal.


author: /s/ Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Samuel Steven JOHNSON, a Minnesota Attorney, Registration No. 273168.
    No. A08-87.
    Supreme Court of Minnesota.
    Feb. 1, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action seeking reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR), based on an order of the North Dakota Supreme Court suspending respondent Samuel Steven Johnson for 60 days commencing on January 21, 2008. Disciplinary Bd. v. Johnson, 2007 ND 203, 743 N.W.2d 117. The suspension was issued based on respondent’s false statements, made in a letter to a district court and in the course of disciplinary proceedings.

The Director and respondent have entered into a stipulation under which respondent admits the allegations of the petition for reciprocal discipline, admits his actions violated Minn. R. Prof. Conduct 3.3(a), 4.1, 4.4, 8.1(a), and 8.4(d), and waives his procedural rights under Rule 12(d), RLPR. The parties jointly recommend that the appropriate reciprocal discipline is a 60-day suspension; that respondent be required to successfully complete the professional responsibility portion of the state bar examination within one year of the date of filing of this order; and that respondent be reinstated following the expiration of the suspension, provided that, at least 15 days before the expiration of the suspension period, respondent files an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with continuing legal education requirements, has fully complied with Rules 24 and 26, RLPR, and has satisfactorily completed all other conditions imposed by this order.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Samuel Steven Johnson is suspended from the practice of law for 60 days, effective as of the date of filing of this order, subject to the conditions set forth above. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals). Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Gemma E. GRAHAM, a Minnesota Attorney, Registration No. 142086.
    No. A08-94.
    Supreme Court of Minnesota.
    Feb. 1, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Gemma E. Graham committed professional misconduct warranting public discipline, namely, that she engaged in the unauthorized practice of law for a period of more than 20 years while on restricted status for failing to submit the affidavits of continuing legal education (CLE) compliance required by Rule 9 of the Rules of the Minnesota State Board of Continuing Legal Education, in violation of Rules 5.5 and 8.4(d), Minn. R. Prof. Conduct.

Respondent admits her conduct violated the Rules of Professional Conduct, waives her procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director under which they jointly recommend that the appropriate discipline is a public reprimand and two years of unsupervised probation.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Gemma E. Graham is publicly reprimanded and placed on two years of unsupervised probation effective as of the date of filing of this order. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/ Alan C. Page Associate Justice

GILDEA, J., took no part in the consideration or decision of this case.