text:
    Mark and Laura SLETTO, individually and as parents and natural guardians of Travis Sletto, Appellants, Katrina Sletto, Plaintiff, v. WESLEY CONSTRUCTION, INC., d/b/a Wesley Homes, Respondent, Dale Eleven, et al., Defendants, and
    Wesley Construction, Inc., d/b/a Wesley Homes, defendant and third party plaintiff, Respondent, v. Steve Johnson, d/b/a Quality Construction, Third Party Defendant, Automated Building Components, Inc., third party defendant, Respondent, SNE Enterprises, Inc., d/b/a Crestline Windows and Doors, third party defendant, Respondent.
    No. A06-1413.
    Court of Appeals of Minnesota.
    July 3, 2007.

      David D. Hammargren, Anthony W. Thompson, Hammargren & Meyer, P.A., Roger R. Roe, Jr., Best & Flanagan, LLP, Minneapolis, MN, for appellants Mark and Laura Sletto.
    Robyn N. Moschet, Cheryl Hood Lan-gel, McCollum, Crowley, Moschet & Miller, Ltd., Minneapolis, MN, for respondent Wesley Construction, Inc.
    Nicholas J. Eugster, Messerli & Kramer P.A., Minneapolis, MN, for respondent Steve Johnson.
    Jeffrey A. Magnus, Law Offices of Jeffrey A. Magnus, Edina, MN, for respondent Automated Building Components.
    Michael S. Kreidler, Stich, Angelí, Krei-dler & Dodge, P.A., Minneapolis, MN, for respondent SNE Enterprises, Inc.
    Considered and decided by LANSING, Presiding Judge; HALBROOKS, Judge; and HUDSON, Judge.
   OPINION

LANSING, Judge.

After discovering mold and water damage in their house, the homeowners filed statutory-warranty and common-law negligence claims against the homebuilder. The district court concluded that the statute limiting actions arising from real-property improvements barred the suit and granted summary judgment against all of the homeowners’ claims. Because the 2004 amendment to the statute does not extinguish the homeowners’ statutory-warranty claim, we affirm in part, reverse in part, and remand.

FACTS

Mark and Laura Sletto purchased a house in Rosemount from John and Linda Stark in 1993. The house had been built in 1990 by Wesley Construction (Wesley) and was sold to the Starks that same year.

About ten years after the Slettos’ 1993 purchase, they first noticed water damage and mold contamination in their house. The Slettos notified Wesley, vacated the house, and hired a contractor to repair the conditions.

In November 2004, the Slettos sued Wesley, raising a statutory-warranty claim under Minn.Stat. § 327A.05 (2004) and five common-law claims based on Wesley’s construction of the house. Wesley subsequently filed third-party contribution and indemnity claims against subcontractors who had worked on the construction of the house.

Wesley and the third-party defendants moved for summary judgment, arguing that the statute limiting actions arising from real-property improvements barred both the Slettos’ common-law claims and their statutory-warranty claim. The statute provides that, unless a defect is concealed through fraud, a common-law construction claim cannot “accrue more than ten years after substantial completion of the construction.” MinmStat. § 541.051, subd. 1(a) (2006). Wesley and the third-party defendants asserted that a 2004 amendment to the statute imposed a similar limitation on statutory-warranty claims. The subcontractors also argued that Wesley’s contribution and indemnity claims against them were barred by the statute.

The district court concluded that the amended statute, applied to the Slettos’ statutory-warranty claim and therefore dismissed the claim. Furthermore, because the Slettos’ common-law claims were brought more than ten years after completion of construction, the district court concluded that those claims were barred unless the defects were fraudulently concealed. The district court therefore ordered that discovery continue solely on the issue of fraud. After further discovery, the district court granted summary judgment on the fraud issue as well. As a result, all of the Slettos’ claims were dismissed. Because all of the Slettos’ claims were dismissed, the district court also dismissed Wesley’s contribution and indemnity claims against the subcontractors. The Slettos appeal the application of the amended statute and the grant of summary judgment on the fraud issue.

ISSUES
I. Does the text of the 2004 amendment to MinmStat. § 541.051 clearly and manifestly indicate that the amended statute should be applied retroactively?
II. Did the district court’s application of the amended statute to the Slet-tos’ statutory-warranty claim produce an impermissibly retroactive result?
III. Did the district court err by finding that the Slettos failed to support their common-law claims with sufficient evidence of fraudulent concealment of construction defects to withstand summary judgment?
IV. Can summary judgment be independently affirmed in favor of the third-party defendants?

ANALYSIS

I

The retroactivity of a statute presents a question of law, which we review de novo. Gomon v. Northland Family Physicians, Ltd,., 645 N.W.2d 413, 415-16 (Minn.2002). Statutes are presumptively prospective and not retroactive. Chapman v. Davis, 233 Minn. 62, 65, 45 N.W.2d 822, 824 (1951). “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Minn.Stat. § 645.21 (2006). The language of the statute must contain clear evidence of retroactive intent, “such as mention of the word ‘retroactive.’ ” Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn.1985); see also K.E. v. Hoffman, 452 N.W.2d 509, 512 (Minn.App.1990) (concluding that reference in statute to “actions pending” indicated retroactive intent), review denied (Minn. May 7, 1990). “Generally, it is immaterial in this state whether a law alters procedural or substantive rights; the legislature must still express its intention to make it retroactive.” In re Estate of Murphy v. State, Dep’t of Pub. Welfare, 293 Minn. 298, 308, 198 N.W.2d 570, 576 (1972).

Before the 2004 amendment, the statute stated, “This section shall not apply to actions based on breach of the statutory warranties set forth in section 327A.02, or to actions based on breach of an express written warranty, provided such actions shall be brought within two years of the discovery of the breach.” Minn.Stat. § 541.051, subd. 4 (2002). The 2004 amendment deleted and replaced this provision. 2004 Minn. Laws ch. 196, § 1, at 356-57. The amended statute now provides:

For the purposes of actions based on breach of the statutory warranties set forth in section 327A.02, or to actions based on breach of an express written warranty, such actions shall be brought within two years of the discovery of the breach. In the case of an action under section 327A.05, which accrues during the ninth or tenth year after the warranty date, as defined in section 327A.01, subdivision 8, an action may be brought within two years of the discovery of the breach, but in no event may an action under section 327A.05 be brought more than 12 years after the effective warranty date.

Minn.Stat. § 541.051, subd. 4 (2006). In addition, because the amendment removed the exemption for statutory-warranty claims, the limitation on accrual in subdivision 1 of the statute now applies to statutory-warranty claims. Subdivision 1(a) states:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property ... shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury ... nor[ ] in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the intended purpose.

Minn.Stat. § 541.051, subd. 1(a) (2006).

The text of the amended statute does not contain the word “retroactive” and does not contain any similar indication of retroactive intent. Therefore, the legislature has not clearly and manifestly indicated that the amended statute should be applied retroactively. In addition, the amendment made significant changes and was not merely a clarification. See Thompson Plumbing Co. v. McGlynn Cos., 486 N.W.2d 781, 785 (Minn.App.1992) (noting that acts “that merely clarify, rather than modify, existing law may be applied retroactively”). For these reasons, we conclude that the amended statute can only be applied prospectively.

II

Having established that the amended statute cannot be applied retroactively, we must now address whether the district court’s application of the statute in this case caused an impermissibly retroactive result. This question presents an issue of law, which we review de novo. See Midwest Family Mut. Ins. Co. v. Bleick, 486 N.W.2d 435, 438 (Minn.App.1992) (deciding as matter of law that application of statute was not retroactive), review denied in part, granted in part, and remanded (Minn. July 27,1992).

We begin our analysis with the text of the statute. The amended statute limits statutory-warranty claims in two ways. First, the statute provides that a statutory-warranty claim cannot “accrue more than ten years after substantial completion of the construction.” Minn.Stat. § 541.051, subd. 1(a). A statutory-warranty claim accrues when “the homeowner discovers, or should have discovered, the builder’s refusal or inability to ensure the home is free from major construction defects.” Vlahos v. R & I Const. of Bloomington, Inc., 676 N.W.2d 672, 678 (Minn.2004). Thus, the statute regulates conduct that relates directly to the homebuilder’s warranty obligations, which is primary conduct that gives rise to the litigation. Second, the statute provides that “in no event” may a statutory-warranty claim “be brought more than 12 years after the effective warranty date.” Minn.Stat. § 541.051, subd. 4. Thus, the statute also regulates the secondary, litigation-related conduct of commencing a claim. See Landgraf v. USI Film Products, 511 U.S. 244, 290-91, 114 S.Ct. 1522, 1523-24, 128 L.Ed.2d 229 (1994) (Scalia, J., concurring) (distinguishing between primary and secondary conduct and advocating retroactivity analysis based on conduct regulated).

These limitations on Minnesota statutory-warranty claims became effective on August 1, 2004. See 2004 Minn. Laws ch. 196, § 1, at 357 (indicating signing date of May 15, 2004); Minn.Stat. § 645.02 (2006) (setting default effective date of August 1 following act’s final enactment). Before the effective date of the amendment, the statute stated that “[tjhis section shall not apply tó actions based on breach of the statutory warranties ... provided such actions shall be brought within two years of the discovery of the breach.” Minn.Stat. § 541.051, subd. 4 (2002). Thus, if the 2004 amendment to the statute does not apply, the Slettos’ can proceed to trial on their statutory-warranty claim.

Because the legislation does not provide for retroactive application, the amendment’s limitation on accrual does not apply to the Slettos’ statutory-warranty claim. The Slettos’ statutory-warranty claim accrued in 2003 after they discovered the water damage and notified Wesley. See Vlahos, 676 N.W.2d at 678 (holding that claim accrues upon discovery). Thus, the accrual occurred before the effective date of the statute. Because the limitation on accrual is not retroactive, it cannot apply to claims that accrued before its effective date.

The more difficult question is whether the amendment’s limitation on commencement can be applied to the Slet-tos’ statutory-warranty claim. Although the Slettos’ claim accrued in 2003, their claim was not commenced until after the effective date of the statute of repose. Thus, the limitation on commencement was in effect when the Slettos commenced their claim. Nonetheless, we conclude for three reasons that the limitation on commencement cannot be applied to the Slettos’ claim.

First, the limitation on commencement in section 541.051 cannot be read in isolation. The statute does not simply limit the commencement of claims. Instead, the text of the limitation states:

In the case of an action under section 327A.05, which accrues during the ninth or tenth year after the warranty date, as defined in section 327A.01, subdivision 8, an action may be brought within two years of the discovery of the breach, but in no event may an action under section 327A.05 be brought more than 12 years after the effective warranty date.

Minn.Stat. § 541.051, subd. 4. Significantly, the limitation occurs after a further discussion of accrual. A statute “must be read so as to give effect to all of its provisions.” Reider v. Anoka-Hennepin Sch. Dist. No. 11, 728 N.W.2d 246, 251 (Minn.2007). Because of the statute’s preceding discussion of accrual and the content of that discussion, the statute must be read as linking accrual and the commencement of claims. Thus, the statute does not simply regulate the commencement of claims. Instead, the statute regulates the commencement of claims following accrual. Therefore, the limitation on commencement only applies if both the commencement and the accrual occur after the effective date of the statute. Because the Slettos’ statutory-warranty claim accrued before the effective date of the statute, the limitation on commencement does not apply. Thus, the legislature has, through its statutory language, limited the application of the newly-enacted commencement restriction to statutory-warranty claims that accrued after the effective date of the amendment.

Second, the limitation on commencement cannot be applied to the Slettos’ claim under existing Minnesota caselaw. In Lovgren v. Peoples Elec. Co., the supreme court considered a suit by an electrician injured in 1975. 380 N.W.2d 791, 793 (Minn.1986). The electrician brought his suit against Northern States Power Company in 1978. Id. In 1981, the electrician amended the complaint to include a claim against Peoples Electric Company. Id. Peoples Electric Company, however, claimed that a statute — which became effective on August 1, 1980, between the accident and the amendment of the complaint — barred the suit. Id. The new statute created a two-year statute of limitations on commencement of personal-injury claims related to defective or unsafe improvements to real property. Id. The district court agreed with the Peoples Electric Company’s argument and dismissed the electrician’s claim against the company. Id. at 793-94. The supreme court reversed and held that the new statute did not apply to the electrician’s claim. Id. at 795. The court reasoned that (1) the legislature did not intend that the statute would be applied retroactively and (2) applying the statute would be a retroactive application. Id. at 795-96.

We conclude that Lovgren controls our decision. As in Lovgren, this case involves a statute that became effective between the relevant events and the commencement of the claim. We can find no basis for applying the statute differently in this case. Like the statute of limitations in Lovgren, the statute in this case limits the commencement of claims. Therefore, consistent with Lovgren, the limitation on commencement does not apply because the Slettos’ statutory-warranty claim accrued before the amended statute of repose was effective.

Wesley’s attempt to distinguish Lovgren is unconvincing. Wesley is correct that the lawsuit in Lovgren was commenced in 1978, before the new statute became effective. But the electrician’s original claim was against Northern States Power Company. The relevant claim in Lovgren was made against Peoples Electric Company, a different party. Under Minn. R. Civ. P. 15.03, an amendment adding a new party will relate back to the original commencement date only if there was a mistake in the identity of the proper party. Because it does not appear that there was a mistake about the identity of the proper party in Lovgren, the 1981 amendment adding the claim against Peoples Electric Company effectively commenced a new suit after the effective date of the new statute. Furthermore, nothing in the Lovgren opinion suggests that the court was relying on the 1978 commencement date of the original complaint.

Third, although we have based our retroactivity analysis on the conduct regulated by the statute, we would reach the same result under the vested rights theory of retroactivity. Under the vested rights theory, an application of a statute is retroactive if it impairs rights that vested before the effective date of the statute. Cooper v. Watson, 290 Minn. 362, 369, 187 N.W.2d 689, 693 (1971). In this case, because the Slettos’ statutory-warranty claim accrued before the effective date of the amendment, the Slettos had a vested right to sue on their claim. Thus, the application of the amendment to their claim would be retroactive. We are disinclined to rest our analysis primarily on a “vested rights” theory because it relies on vague concepts that have been rejected in other contexts. See Milkovich v. Saari, 295 Minn. 155, 162, 203 N.W.2d 408, 412 (1973) (noting rejection of vested rights approach in choice-of-law cases). The important point, however, is that regardless of whether retroactivity is analyzed based on vested rights or the conduct regulated, the statutory amendment cannot be applied to the Slettos’ claim.

Ill

The Slettos also challenge the district court’s determination that the statute limiting actions arising from real-property improvements bars their common-law claims. Because the Slettos’ common-law claims accrued more than ten years after substantial completion of the construction, their common-law claims are barred unless the defects were concealed through fraud. Minn.Stat. § 541.051, subd. 1(a). The Slettos dispute the district court’s finding that they failed to establish a genuine issue of material fact on the existence of fraud.

On appeal from summary judgment, we review the record to determine “whether there are any genuine issues of material fact and whether a party is entitled to judgment as a matter of law.” In re Collier, 726 N.W.2d 799, 803 (Minn.2007). We view the evidence in the record “in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). A genuine issue of material fact exists if the evidence would “permit reasonable persons to draw different conclusions.” Gradjelick v. Hance, 646 N.W.2d 225, 231 (Minn.2002). No genuine issue of material fact exists if the evidence “merely creates a metaphysical doubt as to a factual issue.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997).

To prove fraudulent concealment, tolling any statute of repose or limitations, a party must show (1) the defendant made a statement that concealed plaintiffs potential cause of action, (2) the statement was intentionally false, and (3) the concealment could not have been discovered by reasonable diligence. Williamson v. Prasciunas, 661 N.W.2d 645, 650 (Minn.App.2003).

The district court granted summary judgment because the Slettos had failed to show that Wesley intentionally engaged in any affirmative act that fraudulently concealed their potential cause of action. The Slettos argue that there was no need to show any affirmative act because Wesley had a duty to disclose defects. Unless special circumstances apply, however, there is no general duty to disclose. Hommerding v. Peterson, 376 N.W.2d 456, 459 (Minn.App.1985).

Even if Wesley had a duty to disclose, the Slettos have provided no evidence that Wesley made intentionally false statements or omissions. The Slettos point to a checklist that Wesley received from the city building department. Because the checklist indicates that the windows needed flashing and flashing was not subsequently installed, the Slettos claim that Wesley must have known about the defect. The record indicates, however, that the checklist was completed in conjunction with the issuance of the building permit and was not an indication of a violation in need of correction. Similarly, the Slettos’ limited evidence about work Wesley did on other houses fails to establish any knowledge about the defects in this particular house. Thus, a reasonable jury could not conclude that Wesley knew about and then intentionally faded to disclose the alleged defects.

Because the Slettos failed to establish a genuine issue of material fact on fraudulent concealment, the statute of repose bars the common-law claims. Therefore, summary judgment was properly granted on the Slettos’ common-law claims.

IV

When the district court granted summary judgment against the Slettos, it also dismissed Wesley’s third-party contribution and indemnity claims against three subcontractors. The subcontractors argue that Wesley’s indemnity claims against them should be dismissed despite our decision to permit the Slettos’ statutory-warranty claim to proceed to trial. See Weston v. McWilliams & Assocs., Inc., 716 N.W.2d 634, 641 (Minn.2006) (affirming district court’s dismissal of homebuilder’s contribution and indemnity claim because claim had not accrued and was not brought within ten-year period). But the district court did not address the merits of the subcontractors’ motion to dismiss the contribution and indemnity claims. Instead, the district court dismissed those claims as moot based on its decision to dismiss all of the claims against Wesley. Therefore, Wesley has not had an adequate opportunity to respond to the subcontractors’ independent motion for summary judgment. Accordingly, the dismissal of Wesley’s indemnity claims against the subcontractors is reversed for consideration on remand.

DECISION

The language of the amended statute does not clearly and manifestly indicate the legislature’s intent that the statute will apply retroactively. Because the district court’s summary-judgment dismissal of the statutory-warranty claim is an impermissi-bly retroactive application of the 2004 amendment, we reverse and remand. The interrelated dismissal of Wesley’s third-party claims against the subcontractors is also reversed. The Slettos failed, however, to demonstrate any genuine issue of material fact on fraudulent concealment. Therefore, the statute was not tolled and the Slettos’ common-law claims are barred.

Affirmed in part, reversed in part, and remanded.

      . The legislature again amended section 541.051 during the 2007 legislative session. 2007 Minn. Laws ch. 105, § 4. The 2007 amendments relate to contribution and indemnity claims and do not alter the provisions of the statute that are relevant to this decision.


source: Caselaw Access Project

author: PETERSON, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Jason Michael VONDERHARR, Respondent.
    No. A06-2421.
    Court of Appeals of Minnesota.
    July 3, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, and Richard R. Maes, Lyon County Attorney, Tricia Zimmer, Assistant County Attorney, Marshall, MN, for appellant.
    Ronald R. Frauenshuh, Jr., Ortonville, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge; TOUSSAINT, Chief Judge; and COLLINS, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

PETERSON, Judge.

This pretrial prosecution appeal is from an order that requires appellant State of Minnesota to produce a records custodian at trial to provide foundation testimony for Department of Public Safety records in a prosecution for violating a restricted driver’s license. In a cross-appeal, respondent Jason Vonderharr challenges an order that denies his motions to suppress evidence and dismiss the charge against him. We reverse the order that requires the state to produce a records custodian at trial, affirm the denial of respondent’s suppression motion and motion to dismiss, and remand.

FACTS

A state trooper who responded to a report that a vehicle was stuck in the median of a state highway found the vehicle unattended. The trooper used the computer in his squad car to run a license-plate check on the vehicle, and while the trooper was at the scene, a vehicle pulled up and stopped behind the trooper’s squad car. Respondent Jason Vonderharr got out of the vehicle and approached the driver’s side of the squad car. Vonderharr told the trooper that he owned the vehicle that was stuck in the median and that he had been driving the vehicle.

Because the weather was rainy and Von-derharr was standing close to traffic on the highway, the trooper asked Vonder-harr to sit in the squad car. Vonderharr sat in the front seat of the squad car. While speaking with Vonderharr, the trooper smelled an odor of alcohol coming from Vonderharr. The trooper asked Vonderharr if he had been drinking, and Vonderharr denied drinking any alcohol. The trooper told Vonderharr that he could get his vehicle pulled out of the median, but he asked Vonderharr to return to the squad car after taking care of the vehicle.

While the trooper blocked traffic, Von-derharr got in his vehicle, and the vehicle was pulled out of the median. Vonderharr then returned to the squad car. By that time, the trooper had used the computer in his squad car to check Vonderharr’s driver’s license and had learned that Vonder-harr had a restricted driver’s license, which was invalidated by any use of alcohol. The trooper again smelled alcohol and again asked Vonderharr if he had been drinking. Vonderharr admitted drinking one beer after work. The trooper administered a preliminary breath test, which revealed an alcohol concentration of .011.

Vonderharr was charged by complaint with driving in violation of a restricted driver’s license. Vonderharr moved to (1) suppress any confessions, admissions, or statements in the nature of confessions that he had made and any evidence that had been discovered as the result of any statements that he had made; and (2) dismiss the charge for lack of probable cause. Following a hearing, the district court denied Vonderharr’s motions to suppress and dismiss, and a jury trial was scheduled. Four days before the trial was scheduled to begin, the state filed a motion in limine requesting an order allowing the state to introduce certified copies of Department of Public Safety (DPS) records about the status of Vonderharr’s driver’s license at trial without calling a records custodian as a witness.

On the day before trial was scheduled to begin, the district court issued an order requiring the state to produce a records custodian to lay foundation for the certified DPS records. The state requested a five-day stay under Minn. R.Crim. P. 28.04, subd. 2(1), to allow time to perfect an appeal from the pretrial order, arguing that the state could not secure a witness for trial and would not be able to prove its case without the records. The district court granted the stay, and to provide a complete record, the district court filed an amended order regarding the state’s request to admit the DPS records without the testimony of a custodian. The state perfected an appeal, and Vonderharr filed a cross-appeal under Minn. R.Crim. P. 28.04, subd. 3, seeking review of the district court’s denial of his motions to suppress and to dismiss the charge.

ISSUES

I. Did the district court err in requiring the state to produce a records custodian at trial to provide foundation testimony for the Department of Public Safety records?

II. Did the district court err in denying Vonderharr’s motions to suppress evidence and dismiss the charge of driving in violation of a restricted driver’s license?

ANALYSIS

I.

“[I]n reviewing pretrial prosecution appeals, this court ‘will only reverse the determination of the trial court if the state demonstrates clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.’ ” State v. Poupard, 471 N.W.2d 686, 689 (Minn.App.1991) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn.1977)). The district court concluded that admitting the DPS records without the testimony of a records custodian would violate Vonderharr’s rights under the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See U.S. Const, amend. VI (“In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him.... ”). To obtain reversal, the state must demonstrate clearly and unequivocally that the district court erred in this conclusion. Whether the admission of evidence violates a criminal defendant’s rights under tip Confrontation Clause is a question of law, which this court reviews de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn.2006).

In Crawford, the Supreme Court held that when testimonial evidence is at issue, an out-of-court statement is inadmissible unless the declarant is not available to testify at trial and the defendant has had an opportunity to cross-examine the de-clarant. 541 U.S. at 68, 124 S.Ct. at 1374. There is no dispute that the DPS records contain out-of-court statements, and Von-derharr has not had an opportunity to cross-examine the declarant. The state argues, however, that because the DPS records are not testimonial evidence, their admissibility is not affected by the Supreme Court’s decision in Crawford.

Although the rule that the Supreme Court announced in Crawford applies only to testimonial evidence, the Supreme Court did not define “testimonial” and, instead, left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. But in analyzing the historical background of the Confrontation Clause, the Supreme Court identified some examples of statements that are not testimonial. The Supreme Court explained that by 1791, several exceptions to the general rule of excluding hearsay evidence had become well established. Id. at 56, 124 S.Ct. at 1367. The Supreme Court then explained:

But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony.

Id. (footnote omitted); see also id. at 76, 124 S.Ct. at 1378 (Rehnquist, C.J., concurring in judgment) (“To its credit, the Court’s analysis of ‘testimony’ excludes at least some hearsay exceptions, such as business records and official records.”)

Citing this language in Crawford, the United States Court of Appeals for the Eighth Circuit determined “that Crawford seemingly excluded business records from the classification of testimonial statements.” United States v. Urqhart, 469 F.3d 745, 748 (8th Cir.2006). The Urqhart court then concluded that a record that the Bureau of Immigration and Customs Enforcement kept in the course of its regularly conducted business activities “is similar enough to a business record that it is nontestimonial under Crawford and presents no Confrontation Clause concerns.” Id. at 749. Based on this conclusion, the Urqhart court held that the record was properly admitted into evidence without a showing of unavailability and a prior opportunity for cross-examination. Id.

Following Urqhart, the Eighth Circuit Court of Appeals applied the same rationale to warrants of deportation in United States v. Torres-Villalobos, 487 F.3d 607, 612-13 (8th Cir.2007). The Torres-Villa-lobos court explained:

A warrant of deportation is a document that commands an immigration official to take custody of the deportee and to remove him from the United States. A signed warrant indicates that the attesting witness observed the deportee leaving the country.... [T]he government introduced the warrants of deportation to prove the element of the charged offense that Torres-Villalobos had been deported in the past. The witness who testified concerning the February 2003 warrant explained that he could not specifically recall seeing Torres-Villalobos cross the border, but that his regular practice was to sign the warrant upon seeing the alien depart the country, and that the records therefore accurately reflected the fact of his observations at the time. Because the government could not produce testimony from someone who actually recalled seeing Torres-Vil-lalobos leave the country, Torres-Villa-lobos argues that admission of the warrant of deportation denied him the right to confront his accuser.

487 F.3d at 612 (citations omitted).

The court determined:

Warrants of deportation are produced under circumstances objectively indicating that their primary purpose is to maintain records concerning the movements of aliens and to ensure compliance with orders of deportation, not to prove facts for use in future criminal prosecutions. They are properly characterized as non-testimonial official records that were prepared independent of this litigation.

Id. at 612-13 (citation omitted). Based on these determinations, the court concluded that “warrants of deportation are not ‘testimonial’ evidence that implicate the Confrontation Clause of the Sixth Amendment.” Id.

We conclude that the rationale applied by the Court of Appeals in Urqharb and Torres-Villalobos also applies to the DPS records regarding Vonderharr’s driver’s license. Just as the primary purpose of warrants of deportation is to maintain records concerning the movements of aliens and to ensure compliance with orders of deportation, the primary purpose of DPS driver’s-license records is to provide current information about the license status of drivers to ensure that only drivers with valid licenses operate motor vehicles in the state.

Citing State v. Caulfield, the district court concluded that the DPS records are testimonial evidence because the records “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 722 N.W.2d at 308 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364). In reaching this conclusion, the district court determined:

The primary purpose of the State in maintaining such a[DPS] record is to verify the driving status and to maintain and preserve such records for the purpose of criminal prosecution of those who violate the terms of the drivers license.... The clear intent of the State must be to maintain these records so that appropriate prosecutions can be undertaken.

But the DPS records are significantly different from the laboratory report that was at issue in Caulfield. The laboratory report was produced by an analyst at the Bureau of Criminal Apprehension who analyzed a substance that was seized from the defendant when he was arrested. Id. at 307. The report was prepared at the request of the police for the prosecution of the defendant. Id. at 309. Unlike the laboratory report, Vonderharr’s DPS records were not prepared for the purpose of prosecuting Vonderharr. The records were produced before Vonderharr was charged and even before the incident that lead to him being charged occurred.

Like the warrant of deportation in Torres-Villalobos, the DPS records will be used as evidence to prove an element of the offense with which Vonderharr has been charged. And it is likely that the district court was correct when it determined that it was reasonable for the person who created the DPS records to believe that the records would be available for this purpose. But it was also reasonable for the witness who created the warrant of deportation to believe that it would be available to prove facts in a later criminal prosecution, and the Torres-Villalobos court, nevertheless, concluded that the warrant of deportation was not testimonial evidence. The mere fact that the warrant of deportation could be used in a criminal prosecution did not mean that it was created for that purpose, and the mere fact that the DPS records can be used in a criminal prosecution does not mean that they were created for that purpose. Consequently, we conclude that like the warrant of deportation at issue in Torres-Villalobos, the DPS records are not testimonial evidence that implicates the Confrontation Clause of the Sixth Amendment.

The district court cited State v. Brown, 303 Minn. 114, 226 N.W.2d 747 (1975), as an additional basis for requiring a records custodian to testify to establish a foundation for the DPS records. In Brown, the supreme court held that admitting certified copies of DPS records under Minn. Stat. § 171.21 without having a records custodian appear as a witness at trial did not violate the defendant’s right to confront and cross-examine witnesses. 303 Minn. at 116-18, 226 N.W.2d at 748-49; see Minn.Stat. § 171.21 (2006) (“Copies of any of the files or records of the [DPS] certified by the commissioner as being true copies shall be received in evidence in any court in this state with the same force and effect as the originals.”). In reaching this holding, the supreme court determined that DPS records are official records under Minn.Stat. § 600.13, rather than business records under Minn.Stat. § 600.02, and noted that there is “a presumption of accuracy and trustworthiness of official records” and that “it is obviously desirable to avoid the administrative burden of requiring governmental employees or officers to testify whenever an official record is sought to be employed as evidence.” 303 Minn. at 116, 226 N.W.2d at 748. But although the supreme court held that no records custodian needed to testify in Brown, it also cautioned:

We do not hold that in a proper case where defendant offers evidence to substantiate his claim that he was unaware of the suspension of his license, or the reasons therefor, or that notice of such suspension was not given him, that a trial court could not order a state official to be called and to testify as to how the driver’s records were prepared....

Id. at 118, 226 N.W.2d at 749.

Citing this language in Brown, the district court concluded that this case can be distinguished from Brown because unlike in Brown, Vonderharr claims that he “was unaware of the restriction on his license and/or that [his] license was not restricted at the time the offense was charged.” But our review of the record persuades us that Vonderharr’s claim is insufficient to make his case a proper case for relief under the supreme court’s cautionary statement in Brown because Vonderharr did not offer evidence to substantiate his claim. In Brown, the supreme court did not suggest that a district court could order a records custodian to testify simply because a defendant claimed that he was unaware that his license was restricted. The supreme court referred to a defendant who offered evidence to substantiate his claim, and we have found no evidence that Vonderharr offered to substantiate his claim that his driver’s license was not restricted or that he was not aware that his driver’s license was restricted at the time of the incident that lead to him being charged.

II.

In a cross-appeal, Vonderharr seeks review of the district court’s order denying his motions to suppress evidence and to dismiss the charge against him. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

Vonderharr acknowledges that no seizure occurred during his initial encounter with the trooper because the encounter did not begin as the result of a traffic stop; it began when he approached the trooper. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn.1980) (holding that no seizure of vehicle occurred because vehicle was already stopped, defendant did not try to drive away, and officer had a right to walk up to vehicle, which is where officer was when he observed marijuana). Vonder-harr contends that a seizure occurred when the trooper conducted a “second investigation” by asking Vonderharr a second time whether he had consumed alcohol and then requesting a preliminary breath test (PBT). Vonderharr argues that this “second investigation clearly was a stop and the officer was investigating a crime without probable cause.” Therefore, Von-derharr concludes, the district court erred in denying his motions to suppress evidence and dismiss the charge against him.

But “[a] brief investigatory stop requires only reasonable suspicion of criminal activity, rather than probable cause.” State v. Pike, 551 N.W.2d 919, 921 (Minn.1996). “The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” Id. at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). “A limited investigative stop is lawful if the state can show the officer to have had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Id. at 921 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

The facts available to the trooper when he asked Vonderharr a second time whether he had been drinking established a particularized and objective basis for suspecting Vonderharr of criminal activity. The trooper smelled alcohol and knew that Vonderharr had been driving and had a license restriction that prohibited the consumption of alcohol. And when the trooper asked Vonderharr if he had been drinking and Vonderharr admitted that he had consumed alcohol, the trooper had a basis for requesting that Vonderharr submit to a PBT. See State v. Vievering, 383 N.W.2d 729, 730 (Minn.App.1986) (holding that, to request PBT, officer needs only articulable facts supporting belief that DWI violation occurred, not probable cause), review denied (Minn. May 16, 1986).

Vonderharr also argues that the district court erred in concluding that he was not entitled to receive a Miranda warning before the trooper asked questions during the “second investigation.” “Statements made by a suspect during custodial interrogation are generally inadmissible unless the suspect is first given a Miranda warning.” State v. Edrozo, 578 N.W.2d 719, 724 (Minn.1998) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). “Miranda warnings are required in order to protect a defendant’s Fifth Amendment privilege against self-incrimination.” Id. But an officer’s general on-site questioning during an investigative stop, even if the questioning occurs in a patrol car, is not custodial interrogation requiring a Miranda warning. State v. Herem, 384 N.W.2d 880, 883 (Minn.1986); State v. Kline, 351 N.W.2d 388, 390 (Minn.App.1984). And requesting a PBT is not a custodial interrogation under Miranda. Kline, 351 N.W.2d at 390.

Vonderharr asserts that he “did not feel he was free to leave because the officer had already asked the same question.” But a Miranda warning was not required because Vonderharr was not subjected to “treatment which can fairly be characterized as the functional equivalent of formal arrest.” Herem, 384 N.W.2d at 883. The trooper only asked Vonderharr general questions about his alcohol consumption and requested a PBT, which did not rise to the level of a custodial interrogation.

Finally, Vonderharr argues that he was denied the protections to which he was entitled under State v. Askerooth, 681 N.W.2d 353 (Minn.2004). In Askerooth, the supreme court held that

Article I, Section 10 of the Minnesota Constitution requires that each incremental intrusion during a traffic stop be tied to and justified by one of the following: (1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry. Furthermore, the basis for the intrusion must be individualized to the person toward whom the intrusion is directed.

681 N.W.2d at 365.

We see no violation of this principle. No seizure occurred during Vonderharr’s initial encounter with the trooper. When the trooper asked Vonderharr a second time whether he had been drinking, the trooper had a particularized and objective basis for suspecting Vonderharr of criminal activity, and investigating this possible criminal activity was the original legitimate purpose for stopping Vonderharr. Everything that the trooper did was justified by this original legitimate purpose for stopping Vonderharr.

DECISION

Because certified copies of Department of Public Safety records about the status of a driver’s license that were not prepared for the purpose of prosecuting the driver are not testimonial evidence that implicates the Confrontation Clause of the Sixth Amendment, we reverse the district court’s order requiring the state to produce a records custodian at trial to provide foundation for admitting those records, and remand for further proceedings. Because the trooper did nothing that violated Vonderharr’s constitutional rights, we affirm the district court’s order denying Vonderharr’s motions to suppress and dismiss.

Affirmed in part, reversed in part, and remanded.

      . The complaint was later amended to add a charge of failure to provide proof of insurance, but the additional charge was dismissed following the omnibus hearing.

      . In a previous order, this court determined that “the state has shown that the district court’s order has a critical impact on the outcome of this prosecution.” State v. Vonderharr, No. A06-2421 (Minn.App. Feb.27, 2007) (order). Therefore, we will not further address critical impact. See Minn. R. Civ. App. P. 140.01 ("No petition for rehearing shall be allowed in the Court of Appeals.”).


author: SANDSTROM, Justice.

text:
    2007 ND 102
    In the Interest of D.C.S.H.C., a child Tamera Ressler, L.S.W., Petitioner and Appellee v. K.C., Respondent and Appellant J.B., J.D., B.C., and Dixie Evans or designee, Lay Guardian ad Litem, Respondents.
    Nos. 20060337, 20060338.
    Supreme Court of North Dakota.
    June 26, 2007.

      Constance L. Cleveland, Assistant State’s Attorney, Fargo, N.D., for petitioner and appellee.
    Joe A. Johnson, Fargo, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] K.C., the mother, appeals the order adopting the judicial referee’s findings and order terminating K.C.’s parental rights to D.C.S.H.C., the child. Concluding that K.C. was given a meaningful opportunity to be heard through her appearance by telephone at the termination hearing while she was in prison in Minnesota, we affirm.

I

' [¶ 2] In 2005, the child was born while her mother was involuntarily committed at the North Dakota State Hospital and her father was in jail in Cass County. On the same day as the birth, a social worker petitioned for a finding that the child was deprived. A judicial referee issued an emergency order temporarily removing the child from her parents’ custody and placing her with Cass County Social Services. After the birth, the mother was released from the State Hospital. Less than a week after the birth, the referee found probable cause that the child was deprived, largely because of her parents’ drug and alcohol abuse and extensive criminal history. Sometime after her release from the State Hospital, K.C. was incarcerated in Stutsman County, North Dakota. On February 17, 2006, the referee issued a writ of habeas corpus ad testifi-candum requesting that K.C. be transported from Stutsman County to Cass County for the termination hearing scheduled for March 15-17, 2006. According to K.C.’s case manager’s testimony at the termination hearing, K.C. was incarcerated at the correctional facility at Shakopee, Minnesota, on March 3, 2006. On March 13, 2006, the judicial referee amended the writ to include the same transportation request for the Director of the Minnesota Department of Corrections. The Minnesota Department of Corrections did not release K.C. for the hearing. On March 15, K.C. appeared by telephone at the termination hearing and requested the hearing be rescheduled so she could appear in person. She did not ask for a specific future date. The Shakopee case manager testified that K.C.’s anticipated release date was July 31, 2006; however, he also testified that K.C. had a pending felony charge in Stearns County, Minnesota. The referee denied her request and reminded K.C. that she would be represented by “very conscientious counsel” throughout the proceedings. The referee did allow her to testify by telephone whenever officials at Shakopee would allow her to use a telephone during the three-day hearing. The referee ordered the parents’ rights terminated. The mother requested a juvenile court review of the referee’s decision.

[¶ 3] In November 2006, the juvenile court adopted the referee’s order and terminated both parents’ rights to the child. The court also concluded the mother was not denied her right to a full and fair hearing, because she was represented by counsel and she appeared by telephone at the hearing. Only K.C. appeals.

[¶4] The juvenile court had jurisdiction under N.D.C.C. § 27-20-03(l)(b). The district court judge had jurisdiction under N.D. Sup.Ct. Admin. R. 13(11) to review the referee’s findings and order. The notice of appeal was timely under N.D.C.C. § 27-20-56(1). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 5] K.C., the mother, contends the juvenile court abused its discretion by denying her request to postpone the termination proceeding so that she could appear in person at the hearing. She also contends her sporadic participation by telephone at the termination hearing denied her due process.

A

[¶ 6] A motion for a continuance “will be granted only for good cause shown, either by affidavit or otherwise.” N.D.R.Ct. 6.1(b). “We will not reverse a trial court’s decision to deny a continuance absent an abuse of discretion.” State v. Hilgers, 2004 ND 160, ¶ 38, 685 N.W.2d 109 (citation omitted). “A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586.

[¶ 7] The juvenile court concluded the referee properly denied K.C.’s motion for a continuance:

The Respondent was in the Shakopee prison facility at the time of the hearing. The North Dakota Supreme Court has held that prisoners do not have a constitutional due process right to personally appear at a proceeding for termination of parental rights, and their due process rights are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique. [Adoption of J.M.H.], 1997 ND 99, ¶ 18, 564 N.W.2d 623 (holding where defendant testified at the termination hearing by telephone and was represented by court-appointed counsel during the proceeding there was no due process violation). Here, Respondent also testified at the termination hearing by telephone and was represented by court-appointed counsel. As such, the Respondent’s claim fails.

(Emphasis added.)

[¶ 8] In St. Claire v. St. Claire, we concluded that a parent-prisoner has a limited right to appear in person at a termination of parental rights hearing:

[A] prisoner’s right to appear personally at a civil proceeding is limited. Walbert v. Walbert, 1997 ND 164, ¶ 8, 567 N.W.2d 829. In the context of parental rights termination there is a statutory right to counsel under N.D.C.C. § 27-20-26, and “[prisoners’ due process rights generally are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique.” In re Adoption of J.M.H., 1997 ND 99, ¶ 18, 564 N.W.2d 623. Generally, “[p]rocedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.” Walbert, at ¶ 9 (quoting In re Adoption of J.W.M., 532 N.W.2d 372, 377 (N.D.1995)). A person’s right to appear may be satisfied by allowing appearance via telephone. Cf. id.; see also State v. Valentine, 190 Ariz. 107, 945 P.2d 828, 831 (Ct.App.1997) (“We therefore hold, as have other states, that appearance by telephone is an appropriate alternative to personal appearance”).

St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175 (emphasis added).

[¶ 9] Because prisoners do not have a constitutional right to appear in person at a termination-of-parental-rights hearing and because children should not be kept in limbo between foster care and permanent placement, see Interest of D.M., 2007 ND 62, ¶ 17, 730 N.W.2d 604, KC.’s motion for a continuance was properly denied.

B

[¶ 10] K.C. contends her limited participation by telephone at the termination hearing violated her right to procedural due process.

[¶ 11] Under the Fourteenth Amendment, no State may “deprive any person of life, liberty or property, without due process of law....” U.S. Const, amend. XIV, § 1. Article I, section 12 of the North Dakota Constitution also provides: “No person shall ... be deprived of life, liberty or property without due process of law.” “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)).

[¶ 12] This Court has held that a “prisoner’s due process rights are generally satisfied if the prisoner is represented at the termination hearing by counsel and has an opportunity to appear by deposition or other discovery technique.” Adoption of J.W.M., 532 N.W.2d 372, 376 (N.D.1995), overruled on other grounds, Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913 (overruling those cases that apply a de novo review under the Revised Uniform Adoption Act). We have also held there is no denial of due process when the defendant testified at the termination hearing by telephone and was represented by court-appointed counsel during the proceeding. Adoption of J.M.H., 1997 ND 99, ¶ 19, 564 N.W.2d 623. Within this framework we consider our prior holdings and the facts of this case as we can discern them.

[¶ 13] “A parent’s relationship with a biological child is entitled to constitutional protection, but that relationship is neither absolute nor unconditional.” Adoption of S.A.L., 2002 ND 178, ¶ 10, 652 N.W.2d 912 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26-27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Adoption of K.A.S., 499 N.W.2d 558, 567 (N.D.1993)). “A court, however, cannot irrevocably sever a parent’s relationship with a biological child without first granting the parent certain procedural protections afforded by due process.” Adoption of S.A.L., at ¶ 10.

[¶ 14] A court must apply a three-part balancing test to analyze whether the procedures pass constitutional muster:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Adoption of S.A.L., 2002 ND 178, ¶ 11, 652 N.W.2d 912 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)); see, e.g., Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (“In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight .... use of a ‘fair preponderance of the evidence’ standard in such proceedings is inconsistent with due process.”); Adoption of J.W.M., 532 N.W.2d 372, 377-80 (N.D.1995) (applying the Eldridge factors and concluding the denial of a parent’s request for a transcript of the adoption hearing for review and cross-examination of adverse witnesses “did not result in an unacceptable risk of an erroneous factual decision”).

[¶ 15] Here, the alleged due process violation is KC.’s sporadic participation by telephone at the termination hearing. Whether the risk of error from this telephonic appearance is so substantial as to offend due process is analyzed under the three Eldridge factors.

1

[¶ 16] The first Eldridge factor is “the private interest that will be affected by the official action.” Eldridge, 424 U.S. at 335, 96 S.Ct. 893; Adoption of S.A.L., 2002 ND 178, ¶ 11, 652 N.W.2d 912.

Lassiter declared it “plain beyond the need for multiple citation” that a natural parent’s “desire for and right to ‘the companionship, care, custody, and management of his or her children’ ” is an interest far more precious than any property right. 452 U.S., at 27, 101 S.Ct. 2153 quoting Stanley v. Illinois, 405 U.S., at 651, 92 S.Ct. 1208. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. “If the State prevails, it will have worked a unique kind of deprivation.... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” 452 U.S., at 27, 101 S.Ct. 2153.

Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388 (emphasis added).

[¶ 17] Here, the private interest is the mother’s fundamental liberty interest; the father voluntarily relinquished his parental rights and is not participating in this appeal. “[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.” Santosky, 455 U.S. at 760-61, 102 S.Ct. 1388. Therefore, given that the private interest in termination proceedings is “a commanding one,” see id. at 759, 102 S.Ct. 1388, this factor weighs in favor of allowing a parent-prisoner to appear by telephone for the entire proceeding.

2

[¶ 18] The second Eldridge factor is “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Eldridge, 424 U.S. at 335, 96 S.Ct. 893; Adoption of S.A.L., 2002 ND 178, ¶ 11, 652 N.W.2d 912.

[¶ 19] The procedures used in K.C.’s termination hearing closely resemble those in Santosky, which the United States Supreme Court likened to a criminal trial:

The Commissioner of Social Services charges the parents with permanent neglect. They are served by summons. The factfinding hearing is conducted pursuant to formal rules of evidence. The State, the parents, and the child are all represented by counsel. The State seeks to establish a series of historical facts about the intensity of its agency’s efforts to reunite the family, the infrequency and insubstantiality of the parents’ contacts with their child, and the parents’ inability or unwillingness to formulate a plan for the child’s future. The attorneys submit documentary evidence, and call witnesses who are subject to cross-examination. Based on all the evidence, the judge then determines whether the State has proved the statutory elements of permanent neglect by a fair preponderance of the evidence.

Santosky, 455 U.S. at 762, 769, 102 S.Ct. 1388 (internal citations omitted).

[¶ 20] Not only is K.C. one of the natural parents, but she is also an out-of-state prisoner. As we have previously noted, “the district court does not have authority to order a Minnesota prison to allow [the Respondent] to appear in a civil case.” St. Claire v. St. Claire, 2004 ND 39, ¶ 8, 675 N.W.2d 175. Additional or substitute procedural safeguards were largely unavailable in this case. The warden of the Minnesota Correctional Facility at Shako-pee controls K.C.’s liberty, including her access to telephones, as evidenced by the following excerpt from the transcript of the first day of the termination hearing:

[K.C.]: And I’m sorry, please if the Court would excuse me, my caseworker here is telling me he must go, he has another appointment, which means that I’m going to have to go for today. I’m not going to be available to even take notes or to hear testimony. I’m sorry for interrupting ... there’s nothing that I can do at this time to — other than interrupt .... if Mr. Nesheim, if you can call and speak with my caseworker at some point this afternoon and maybe perhaps speak with me, I have some issues I need to discuss with you .... if the Court would accept my apologies, but I had no choice but to wait for a break in testimony because he has an appointment and there’s nothing that can be done at this point.
THE COURT: Okay. [K.C.], listen, your counsel will be speaking with you later today, so don’t worry about that. And he is taking notes....
MR. NESHEIM: I just wanted to clarify that I will try to speak to her later today.
THE COURT: Well, yes.
MR. NESHEIM: It will be up to her case manager. I will talk to him later today.
THE COURT: Yes. Again, these things are out of our control. That’s the whole point.
[K.C.]: Right. Right.

A review of the hearing transcript reveals that K.C. was present for a portion of the hearing on the first day and on the last day when she testified. In the morning on the second day of the hearing, the referee twice asked KC.’s counsel if she would be available by telephone for the day’s proceedings. K.C.’s counsel explained that he thought she would be available at 1:30 p.m.; however, attempts to contact K.C. on that day were unsuccessful:

MS. CLEVELAND: I would ask that the Court further elaborate on the record the status of our efforts to contact and make available for period of time the Respondent, [K.C.]. We commenced — or I believe that the Court commenced calling at about 1:30. It is now 10 to 2:00, and the staff has been diligently in contact with their facility, has in fact been on the phone with their facility, and for reasons that are not being explained to us she is — well, that I — that are not clear to me she is not at the phone. And at this point they’re not providing exact information as to why that is. But Ms. Frier indicated that she would continue to be in contact with them throughout the afternoon. So if that changes my guess she’ll let us know and we can deal with that at the time.
THE COURT: Yeah. And it’s good to have it on the record. We have not done anything that I’m aware of to preclude her presence here by telephone. It has been entirely at the direction of her facility and we have had nothing to do with that. As far as we were concerned we were glad to have her participate.

At the end of the second day of the hearing, the referee again inquired about K.C.’s availability:

THE COURT: I wanted to give sort of a little caveat to this, too. I do expect her to be present to testify if she intends to. And if she is not present I want to know why.
MR. NESHEIM: Okay.
THE COURT: Because, you know, we just can’t go on indefinitely. And we just don’t do this in these proceedings. If they want to testify, fine, but—
MR. NESHEIM: I understand.
THE COURT: If there’s a reason that the facility will not allow her to I want to know what it is. Because if it’s her behavior that’s causing it then we’ll just go without it. And that’s as simple as I can be about it.
MS. CLEVELAND: Just so — sorry. What we anticipate her to appear by telephone and testify tomorrow; is that kind of the plan maybe?
MR. NESHEIM: That’s what I discussed with [K.C.’s case manager].

[¶ 21] On March 17, the final day of the hearing, K.C. appeared by telephone and was questioned by both sides and by the guardian ad litem. She addressed her many suicide attempts, which she said were only attempts to manipulate the criminal justice system to get a reduced sentence. She was allowed to explain her plan for caring for the child, including the various classes and therapy sessions she has completed or intends to complete. She disputed the allegation that she had intentionally tried to injure herself while pregnant. She admitted drinking “a few sips” of alcohol while she was pregnant. She admitted having exposed the child to cocaine prenatally. She testified that she was participating in Alcohol and Narcotics Anonymous. She explained that she had good jobs waiting for her, as well as a trailer in Grafton, and only a small amount of unpaid restitution. She testified that she has her bachelor’s degree and plans on getting her master’s degree. She also was able to address her disorderly behavior while incarcerated, which she claimed was the product of being repeatedly humiliated by jail staff.

[¶ 22] K.C. was able to provide an alternate version of the facts that would support her opposition to the termination of her parental rights. The court was then left with the task of resolving any conflicting testimony. We conclude K.C. was afforded a meaningful opportunity to be heard in this case.

[¶ 23] This factor weighs in support of the juvenile court’s conclusion that K.C.’s right to procedural due process was not violated.

3

[¶ 24] The final Eld/ridge factor is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Eldridge, 424 U.S. at 335, 96 S.Ct. 893; Adoption of S.A.L., 2002 ND 178, ¶ 11, 652 N.W.2d 912. “Two state interests are at stake in parental rights termination proceedings — [an] interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.” Santosky, 455 U.S. at 766, 102 S.Ct. 1388.

[¶ 25] In this case, K.C. was incarcerated in Shakopee, Minnesota. The limitation on K.C.’s participation was beyond the court’s control, because Minnesota correctional officials controlled her access to the telephone. As discussed previously, the additional procedural safeguard of a continuance to allow K.C. to appear in person was also not an option because she was a prisoner, incarcerated in another state. The court could have reasonably found that the cost of transportation, meals, and lodging would have been significant. The court could have also reasonably found that K.C. posed a substantial threat to the security of the proceeding. The juvenile court found K.C.’s “suicide attempts were used to manipulate to get out of jail,” and she has had “approximately twenty-four total felony and misdemeanor convictions,” as well as “six incidents in the Shakopee facility, including one major disorderly conduct infraction.” Furthermore, she “has also harmed, or attempted to harm, [the child] while shp was pregnant ... she would run into walls [and] beat[] her stomach.” “She attempted suicide four times, three times while she was pregnant.”

[¶ 26] This factor weighs in favor of the juvenile court’s decision.

C

[¶ 27] Because a prisoner does not have a constitutional right to appear in person at a termination-of-parental-rights hearing, the motion for a continuance to allow K.C. to appear in person was properly denied.

[¶ 28] On this record, the mother’s “commanding” interest in the accuracy and justice of the decision to terminate her parental rights was outweighed by the procedural safeguards available and used as well as the State’s interest in reducing the fiscal and administrative burdens of the proceeding. Whether a parent-prisoner’s rights to procedural due process are satisfied by a limited appearance by telephone does not lend itself to a bright-line rule; instead, a case-by-case balancing of the Eldridge factors must be conducted to ensure that notice and a meaningful opportunity to be heard exist in every case in which a parent-prisoner’s appearance is so limited.

Ill

[¶ 29] We affirm the order adopting the judicial referee’s findings and order terminating K.C.’s parental rights to D.C.S.H.C.

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