author: VANDE WALLE, Chief Justice. MARING, Justice,

text:
    2001 ND 74
    Cheryl Marie MINAR, Plaintiff and Appellee, v. Dean Leslie MINAR, Defendant and Appellant.
    No. 2000179.
    Supreme Court of North Dakota.
    April 17, 2001.

      Leslie Bakken Oliver, Vogel Law Firm, Bismarck, ND, for plaintiff and appellee.
    Chad C. Nodland, Chad C. Nodland, P.C., Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Dean Leslie Minar appealed the second amended judgment of divorce, challenging the district court’s denial of his motion to reduce child support payments. The district court temporarily suspended part of Dean’s child support payment while he pursues his education full time, instead of decreasing the child support obligation. Dean also challenges the district court’s order establishing June 2001 as the date for reinstatement of the full child support payments plus the additional monthly payment of $250 of accrued arrearage and the health' insurance obligation. We affirm the temporary suspension of part of the child support payment and reverse the determination of the child support amount and health insurance obligation. We remand for the determination of Dean’s child support obligation in accordance with N.D. Admin. Code § 75-02-04.1-07(3)(c) and for the determination of health insurance obligation for minor children in accordance with N.D.C.C. § 14-09-08.10. We remand for reconsideration of the date of reinstatement of both the full payment of child support and the additional payment of ar-rearage.

I

[¶ 2] Dean and Cheryl Minar were divorced in 1992. Cheryl was awarded custody of their three children and Dean was ordered to pay $350 per month in child support. Dean’s child support obligation was increased to $758 per month in 1994. In October 1997, Dean’s child support obligation was changed to $751 per month for the two remaining minor children. Dean has maintained health insurance coverage for the minor children since the divorce.

[¶ 3] Dean was employed as a drafter for Melroe Ingersoll Rand, Inc. (“Melroe”). On September 1, 1998, Melroe terminated Dean’s employment because they sold the division in which Dean worked. Prior to his termination, Dean earned $18.72 per hour working as a drafter.

[¶ 4] Dean started taking classes toward a degree in engineering while working for Melroe. Once he was laid off, Dean tried to find similar employment. He located three positions for drafters, in Bismarck, Dickinson, and Jamestown. Dean determined these employment opportunities were minimal because they required either additional training for new computer programs or relocation more than 100 miles from his present residence. Dean did not apply for any of these positions; rather, Dean enrolled full time at Bismarck State College. His plans are to finish his associate degree at Bismarck State College and enroll at a four-year university in another city to obtain a bachelor’s degree in mechanical engineering. His projected graduation date is the spring of 2002.

[¶ 5] Dean continued to pay his child support obligation until December 1, 1999, by utilizing money from the severance package he received from Melroe and selling some personal property. Dean filed a motion to modify his child support obligation on December 1, 1999. A hearing was held on March 16, 2000.

[¶ 6] The trial court found Dean’s gross monthly income at Melroe was $3,185 and his net monthly income was $2,569.62, resulting in a support obligation of $751 for the support of his two children. These numbers are identical to the 1996 income used as the basis for calculating the child support obligation for the previous amended judgment in October 1997. The trial court also found Dean’s earning capacity was $2,569 “by virtue of his previous employment” and his present employment status “is a result of his election to pursue his education so as to enhance his earning capacity.” The trial court also stated Dean’s present employment status was in part determined by involuntary termination and that he could secure continued employment as a drafter even though it may necessitate relocation. Although these last two statements in the order were not labeled as findings of fact, “we will recognize and consider findings of fact regardless of the label that may be placed upon them.” Rummel v. Rummel, 265 N.W.2d 230, 234 (N.D.1978).

[¶ 7] The trial court did not reduce Dean’s child support obligation but suspended part of the payment while he is attending school. The trial court ordered Dean to pay $161 per month, an amount based on a full-time minimum wage employment. The remaining $590 per month is to continue to accrue in arrears on a monthly basis, payable at the rate of $250 per month starting June 15, 2001, in addition to the regular child support payment.

[¶ 8] Finding health insurance coverage for the minor children was available through Cheryl’s employment at a “reasonable or nominal cost,” the trial court ordered Cheryl to furnish health insurance coverage for the minor children through May 2001.

[¶ 9] The trial court ordered the reinstatement of the child support and health insurance “in its entirety effective with the month of June, 2001, or the first full month subsequent to the defendant’s termination or withdrawal from his formal education program.”

II

[¶ 10] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation. Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450. As a matter of law, the trial court must clearly set forth how it arrived at the amount of income and level of support. Id. The trial court’s findings of fact in making its child support determination are overturned on appeal only if they are clearly erroneous. Richter v. Houser, 1999 ND 147, ¶3, 598 N.W.2d 193. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made. Id. Findings are adequate if we can understand from them the factual basis for the court’s determination. Jarvis v. Jarvis, 1998 ND 163, ¶ 29, 584 N.W.2d 84.

[¶ 11] Under the child support guidelines, an obligor’s ability to pay child support is not determined solely upon actual income, but also takes into account the obligor’s earning capacity. Buchholz, 1999 ND 36, ¶ 13, 590 N.W.2d 215. The trial court’s findings under the imputed income provisions of the child support guidelines must be clear, and we must be able to understand from the record how the court arrived at the amount of income and level of support. Lauer, 2000 ND 82, ¶ 9, 609 N.W.2d 450. The trial court made no finding that Dean was underemployed or unemployed, but instead found Dean had an earning capacity of a net monthly income of $2,569 “by virtue of his previous employment.” On that basis, the trial court continued the child support obligation at the same amount of $751 established in the previous amended judgment Li October of 1997.

[¶ 12] Dean concedes he is unemployed. Section 75-02-04.1-07(3) of the North Dakota Administrative Code states income must be imputed to an obligor who is unemployed and describes how to impute income based on earning capacity.

3. Except as provided in subsections 4, 5, and 9, monthly gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.
a. An amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

[¶ 13] The trial court erred by continuing the existing child support obligation established in October of 1997. At that time, Dean was employed at Melroe so the court looked at his income for 1996 and established the $751 per month obligation. Now, Dean is unemployed so income must be imputed using the greatest of N.D. Admin. Code § 75-02-04.1-07(3)(a), (b), or (c).

[¶ 14] Section 75-02-04.1-07(3)(a), N.D. Admin. Code is based on the federal minimum wage of $5.15 per hour times 167 hours per month, or $860.00 per month. Section 75-02-04.1-07(3)(b), N.D. Admin. Code is based on six-tenths of the “prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications.” In his proposed child support computation, Dean used an hourly wage of $8.98 for drafters in west central North Dakota from Job Service of North Dakota’s North Dakota Occupational Wages 1996-97, p. 48, to estimate the hourly wage of persons in the community with similar job qualifications. Multiplying $8.98 per hour by an estimated 167 hours of work per month results in a gross monthly wage of $1,499.66. Six-tenths of $1,499.66 is $899.80, the estimated gross monthly wage amount under N.D. Admin. Code § 75-02-04.1-07(3)(b).

[¶ 15] The evidence in the record is not adequate to determine Dean’s “greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court” as required by N.D. Admin. Code § 75-02-04.1-07(3)(e). However, when Dean’s employment at Melroe was terminated he was earning $18.72 per hour, which equates to $3,126.24 per month by multiplying $18.72 per hour by 167 hours per month. Ninety percent of $3,126.24 is $2,813.62. Even if the greatest average gross monthly earnings in any twelve months within the last thirty-six months is somewhat different than the amount based on $18.72 per hour, it is likely N.D. Admin. Code § 75-02-04.1-07(3)(c) will result in an income that is the “greatest of subdivisions a through c.” Therefore, N.D. Admin. Code § 75-02-04.1-07(3)(c) appears to be the correct calculation to use to impute child support obligation based on earning capacity.

[¶ 16] We direct the court to recalculate the child support obligation on the basis of N.D. Admin. Code § 75-02-04.1-07(3)(c), after obtaining complete information for income for the thirty-six months prior to December 1, 1999, in order to determine the greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court.

[¶ 17] Dean argues the exception to N.D. Admin. Code § 75-02-04.1-07(3) as provided by N.D. Admin. Code § 75-02-04.1-07(6) applies to his situation because there are no job opportunities in the community for someone with his training. Section 75-02-04.1-07(6), N.D. Admin. Code requires the use of the minimum wage amount instead of the amounts of N.D. Admin. Code § 75-02-04.1-07(3)(b) or (c) under certain circumstances of job unavailability.

6. If an unemployed or underemployed obligor shows that employment opportunities, which would provide earnings at least equal to the lesser of the amounts determined under subdivision b or c of subsection 3, are unavailable in the community, income must be imputed based on earning capacity equal to the amount determined under subdivision a of subsection 3, less actual gross earnings.

[¶ 18] The income of a drafter as calculated under N.D. Admin. Code § 75-02-04.1 — 07(3)(b) appears to be the “lesser of the amounts determined under subdivision b or c of subsection 3.” Dean claims the job openings for drafters in Bismarck, Jamestown, and Dickinson require job background, training, and skills in two computer programs which Dean lacks. Additionally, Dean argues “community” is defined as “any place within one hundred miles [160.93 kilometers] of the obligor’s actual place of residence” according to N.D. Admin. Code § 75-02-04.1-07(l)(a), and because Jamestown and Dickinson are over 100 miles from his residence, they are not available within his community.

[¶ 19] The trial court found Dean had located three positions although they required either additional training for new computer programs, or required the defendant to relocate more than 100 miles from his present residence. The trial court therefore found “[b]ecause the defendant determined such employment opportunities to be minimal, defendant has now enrolled at Bismarck State College as a full-time student seeking to continue his education towards a Bachelor’s Degree in Engineering.” The trial court did not specifically find employment opportunities were unavailable in the community; it only recognized this as the reason for Dean’s decision to not work and go back to school full time. The trial court does specifically find Dean’s present employment status “is a result of his election to pursue his education so as to enhance his earning capacity.” The trial court also states while Dean’s “employment status has in part been determined by the involuntary termination,” Dean “could secure continued employment as a drafter.”

[¶ 20] Courts do not operate in a vacuum. Richter v. Houser, 1999 ND 147, ¶ 8, 598 N.W.2d 193. The guidelines must be applied using common sense and in consideration of the circumstances. Id. Dean claims there are no job opportunities in the community for someone with his training, because the jobs in Bismarck, Jamestown, and Dickinson require some additional computer training and his residence is 101.5 miles from the Jamestown job. Dean did not apply for any of the jobs he located. In Richter, we determined because the obligor’s career as a cable lineman historically required him to relocate to places where cable needed to be laid, it was unrealistic to not look at job sites beyond the 100 mile community radius. 1999 ND 147, ¶ 11, 598 N.W.2d 193. Here Dean’s job with Melroe did not require relocation but he testified he plans to travel to the university in Grand Forks, Fargo, or to a school out of state to complete his bachelor’s degree. It is not clearly erroneous to find Dean could secure continued employment as a drafter within the community. The exception to N.D. Admin. Code § 75-02-04. l-07(3)(c) provided by N.D. Admin. Code 75-02-04.1-07(6) does not apply.

[¶ 21] Cheryl argues the trial court properly utilized the income-imputing formula set forth in N.D. Admin. Code § 75-02-04.1-07(9) which provides for the imputation of earnings without a showing the obligor is unemployed or underemployed.

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

[¶ 22] Because the trial court found Dean elected to pursue his education, Cheryl argues Dean made a voluntary change in employment. However, the trial court did not specifically find Dean had voluntarily changed his employment and acknowledges Dean’s employment status was determined in part by his involuntary termination.

[¶ 23] Section 75-02-04.1-07(9) of the N.D. Admin. Code became effective August 1, 1999 to permit imputation of one hundred percent of former income without requiring a finding the obligor is unemployed or underemployed if the obligor left the position voluntarily.

It has long been the practice in North Dakota to not allow for a reduction in a child support obligation based upon the obligor’s voluntary change of employment. However, in Nelson v. Nelson, 547 N.W.2d 741 (N.D.1996), the North Dakota Supreme Court held that the child support guidelines had the effect of terminating that practice. Because the department had not intended that outcome, this subsection was added to permit the long-standing North Dakota practice to resume. The only change is that voluntary changes in employment could affect a child support determination for no longer than 36 months after the change took place.

Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code ch. 75-02-04.1, Child Support Guidelines, p. 36 (June 14, 1999) (prepared by Blaine L. Nordwall). See Nelson v. Nelson, 547 N.W.2d 741, 748 (N.D.1996) (VandeWalle, C.J., concurring in result).

[¶ 24] Section 75-02-04.1-07(9), N.D. Admin. Code is permissive, providing the court “may” impute income when an obligor has reduced his income. Logan v. Bush, 2000 ND 203, ¶ 14, 621 N.W.2d 314. “When a court may do something, it is not mandatory but is generally a matter within the court’s discretion.” Id. Section 75-02-04.1-07(9), N.D. Admin. Code gives the trial court the discretion to impute one hundred percent of the former income without needing to show the obligor is unemployed or underemployed if the obli-gor voluntarily left his job for a lower paying job. Therefore, N.D. Admin. Code § 75-02-04.1-07(9) allows imputation where it otherwise would not be allowed. However, Dean concedes he is unemployed. Section 75-02-04.1-07(3), N.D. Admin. Code unambiguously requires imputation of earnings of an obligor who is unemployed so N.D. Admin. Code § 75-02-04.1-07(9) is not applicable to Dean’s situation.

[¶ 25] We remand for determination of Dean’s child support obligation based on N.D. Admin. Code § 75-02-04.1-07(3)(c), if applicable, as it appears to be from the evidence on record.

Ill

[¶ 26] Dean argues the trial court erred by reinstating his obligation to pay for health insurance in June 2001 or the first full month subsequent to Dean’s termination or withdrawal from school.

[¶ 27] According to N.D.C.C. § 14-09-08.10, every child support order entered in this state must address health insurance coverage for the child:

Each order entered under this code for the support of a minor child or the support of a child after majority under section 14-09-08.2 must include a provision for health insurance coverage for that child.
1. Except as provided in subsection 2, the order must require the obligor to provide satisfactory health insurance coverage whenever that coverage is available at reasonable cost or becomes available at reasonable cost.
2. If the obligee is an individual with physical custody of the child, the obligee must be required to provide satisfactory health insurance whenever that coverage is available at no or nominal cost.

[¶ 28] We recently explained in Berg v. Berg, 2000 ND 36, ¶ 13, 606 N.W.2d 895, this statute essentially creates a three-step process for determining who is responsible for health insurance coverage of the children.

First, the custodial parent must be ordered to secure coverage if it is “available at no or nominal cost.” N.D.C.C. § 14-09-08.10(2). If not, N.D.C.C. § 14-09-08.10(1) requires the noncustodial parent to provide coverage if it is “available at reasonable cost or becomes available at reasonable cost.” If neither subsection is applicable, the trial court has discretion to make other provisions for the child’s health insurance or health care costs.

[¶ 29] The trial court did not find Cheryl was able to provide the health insurance at no or nominal cost but rather found a “nominal or reasonable” cost. The only evidence of Cheryl’s cost of health insurance is a statement by Dean in his affidavit claiming Cheryl told him on October 28, 1999, she was eligible for “reasonable cost” premiums for the children’s health insurance. There is no evidence of Cheryl’s actual cost to provide health insurance for the children.

[¶ 30] We remand for determination of the cost for Cheryl to pay for the children’s health insurance. If the cost is deemed “no or nominal,” Cheryl, as the obligee with physical custody of the children, must be required to provide satisfactory health insurance. N.D.C.C. § 14-09-08.10(2). This requirement continues as long as the insurance is available to Cheryl at no or nominal cost. Id.

[¶ 31] If Cheryl’s insurance cost is not “no or nominal,” N.D.C.C. § 14-09-08.10(1) requires the obligor, Dean, to pay for health insurance if it is available at a reasonable cost or becomes available at a reasonable cost. Reasonable cost has been defined as insurance “available to the obli-gor on a group basis or through an employer or union, regardless of service delivery mechanism.” Berg, 2000 ND 36, ¶ 15, 606 N.W.2d 895. Dean testified he was currently paying for health insurance for his children at the cost of twenty-three dollars per month. Because Dean is unemployed, he is not able to pay for the health insurance on a group basis or through his employer while going to school. Therefore the court is not required to order Dean to pay for the health insurance, until it becomes available again at a “reasonable” cost.

[¶ 32] However, if neither N.D.C.C. § 14-09-08.10(1) or (2) apply, the court has the discretion to make other provisions for the children’s health insurance or health care costs. Berg, 2000 ND 36, ¶ 13, 606 N.W.2d 895. In that situation, ordering Cheryl to pay for the health insurance while Dean is in school is in accordance with the statute. Once insurance becomes available to Dean at a reasonable cost, under N.D.C.C. § 14-09-08.10(1) he is required to pay for the health insurance of the minor children.

[¶ 33] We remand for determination of the obligation to pay for health insurance of the minor children in accordance with N.D.C.C. § 14-09-08.10.

IV

[¶ 34] Dean argues the trial court clearly erred by reinstating the full child support payment in June 2001 because his anticipated graduation date is the spring of 2002.

[¶ 35] The trial court suspended $590 of the entire $751 child support obligation from December 1999 through May 2001, but the $590 is to accrue in arrears. Starting June 15, 2001, the trial court ordered the arrearage paid at the rate of $250 per month, in addition to the regular child support payment. The trial court also ordered payment of child support and health insurance that was temporarily suspended be “reinstated in its entirety effective with the month of June, 2001, or the first full month subsequent to the defendant’s termination or withdrawal from his formal education program.”

[¶ 36] We have previously approved temporary suspension of the child support payments while the obligor attended school. Henry v. Henry, 1998 ND 141, ¶ 25, 581 N.W.2d 921. It is appropriate to delay paying a portion of the support when the obligor’s income is temporarily reduced. Id. at ¶ 24.

[¶ 37] No evidence in the record supports reinstatement of the suspension or payment of the arrearage in June 2001. The temporary inability of Dean to pay the full child support amount because of his status as a full-time student is expected to continue through May 2002. It is unclear to us what the trial court intends by ordering the child support payment “reinstated in its entirety effective with the month of June, 2001, or the first full month subsequent to the defendant’s termination or withdrawal from his formal education program.” It can be interpreted to extend the date of reinstatement to the date of graduation if later than June 2001, or it could be read to establish June 2001 as the latest date of reinstatement, but provide for earlier reinstatement of the full payment if Dean discontinues his full-time education before June 2001. We affirm the suspension but remand for reconsideration of the timing of the reinstatement of the child support payments and the additional payment of arrearage.

[¶ 38] We affirm in part, reverse in part, and remand for determination and reconsideration in accordance with this opinion.

[¶ 39] SANDSTROM and NEUMANN, JJ., concur.

[¶ 40] HODNY, S.J., sitting in place of KAPSNER, J., disqualified.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 41] I concur in the majority opinion except as to Part II, which concludes N.D. Admin. Code § 75-02-04.1-07(9) is not applicable to Dean’s situation.

[lf 42] N.D. Admin. Code § 75-02-04.1-07(9) provides:

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

Dean conceded he is unemployed. The trial court found “that [Dean’s] present employment status, is a result of his election to pursue his education so as to enhance his earning capacity.” The trial court also found Dean “would have the capacity for minimum wage employment in addition to his student responsibilities” and Dean “could secure continued employment as a drafter even though such continued employment may necessitate a relocation by [Dean].” The trial court concluded Dean was liable for child support based on the imputation of one hundred percent of his former income which is justified under § 75-02-04.1-07(9) of the North Dakota Administrative Code.

[¶ 43] The majority opinion concludes subsection 9 is not applicable to Dean’s situation because Dean concedes he is unemployed and subsection 3 of § 75-02-04.1-07, N.D. Admin. Code, “requires imputation of earnings of an obligor who is unemployed.”

[¶ 44] The majority fails to recognize that subsection 3 of § 75-02-04.1-07 requires imputation of earnings of an obligor “who is unemployed or underemployed” (Emphasis added.) Subsection 9 of § 75-02-04.1-07 permits imputation “without a showing that the obligor is unemployed or underemployed” when “an obligor makes a voluntary change in employment resulting in reduction of income.” The trial court did not need to make a finding whether Dean was unemployed or underemployed. It does not matter. The trial court only needed to determine whether Dean made “a voluntary change in employment,” which reduced his income. The history of § 75-02-04.1-07(9), N.D. Admin. Code, indicates the intent was to make it clear that the trial court has discretion to inquire into the reason for the change in employment status when applying the child support guidelines. Summary of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code ch. 75-02-04.1, Child Support Guidelines, p. 36 (June 14, 1999) (prepared by Blaine L. Nordwall).

[¶ 45] Although Dean initially was unemployed involuntarily due to his termination, the evidence in the record supports the trial court’s finding that Dean voluntarily chose to remain unemployed when he was employable and employment was available. When Dean made “his election” to go to college and remain unemployed, he made “a voluntary change in employment” under subsection 9 of § 75-02-04.1-07. To interpret subsection 9 of § 75-02-04.1-07, N.D. Admin. Code, to apply only to obligors who voluntarily become underemployed means an obligor who is involuntarily terminated from a job and then chooses to remain unemployed in order to go back to school will pay less support than the obligor who works albeit at a lower paying job. This provides a big incentive to all obligors, who in the future find themselves laid off to remain unemployed and to go to school. These obligors will have child support imputed at the most at ninety percent of their greatest average monthly earnings under subsection 3 of § 75-02-04.1-07, N.D. Admin. Code, whereas the obligor who voluntarily takes a lower paying job will have child support imputed at one hundred percent of their greatest average monthly earnings under subsection 9 of § 75-02-04.1-07, N.D. Admin. Code. In addition, these ob-ligors who are laid off and go to college may get their child support suspended while they are in school and may be able to avoid paying for health insurance for their children. See Henry v. Henry 1998 ND 141, 581 N.W.2d 921. By the time Dean is finished with his college degree in May 2002, Jaden will be four months from his 18th birthday and Janea will be three months from her 14th birthday. Janea is the only child that may share in any increased earning capacity Dean achieves.

[¶ 46] Our Court has said, “A parent has a duty to support her children to the best of her abilities, not simply to her inclinations. (Citations omitted.) The guidelines represent an effort to balance an obligor’s freedom to make employment decisions with the duty to diligently and fully support her children.” (Citations omitted.) Logan v. Bush, 2000 ND 203, ¶ 15, 621 N.W.2d 314. If the result of the change in employment status is a decrease in income, the obligor who made the choice should make a greater sacrifice than his children. Id. “Section 75-02-04.1-07(9), N.D. Admin. Code, embodies these principles.” Id.

[¶ 47] I am of the opinion N.D. Admin. Code § 75-02-04.1-07(9) is applicable to Dean’s situation and would remand in order for the trial court to determine the greatest average monthly earnings in any twelve consecutive months beginning on or after the thirty-six months before commencement of the proceedings before the court.

[¶ 48] HODNY, S.J., concurs.

      . The order granting motion for second amended judgment described Cheryl's cost of health insurance as "reasonable or nominal.” The judgment used the term "reasonable and nominal.” We assume the use of "and” instead of "or” in the judgment is a typographical error.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2001 ND 82
    STATE of North Dakota, Petitioner v. The Honorable John T. PAULSON, Judge of the District Court, Southeast Judicial District, and Guardian and Protective Services, Inc., as conservator for Cornelius Hopkins, Jr., a minor, Respondents.
    No. 20000302.
    Supreme Court of North Dakota.
    May 1, 2001.

      Jean R. Mullen (argued) and Douglas A. Bahr (appeared), Assistant Attorneys General, Attorney General’s Office, Bismarck, |JD, for petitioner.
    Timothy Q. Purdon (argued) and Thomas A. Dickson (on brief), Dickson & Pur-don, Bismarck, ND, for respondent Guardian and Protective Services, Inc.
   KAPSNER, Justice.

[¶ 1] The State of North Dakota has petitioned for a supervisory writ directing the district court to vacate its order denying the State’s motion to dismiss the complaint filed by Cornelius Hopkins, Sr., and Dorian Aho on behalf of their son, Cornelius Hopkins, Jr. (“Hopkins”), a minor, for lack of subject matter jurisdiction. We conclude this is not an appropriate case in which to exercise our supervisory jurisdiction, and we deny the petition.

[¶ 2] On February 28, 1998, fourteen-year-old Hopkins, a resident of the Youth Correctional Center, attempted suicide by hanging himself. As a result of this suicide attempt, Hopkins was left in a permanent vegetative state.

[¶ 3] On September 4, 1998, an attorney retained by Hopkins’s parents mailed to the Director of the Office of Management and Budget (“OMB”) a letter to “serve as the written notice required by N.D.C.C. § 32-12.2-04(1),” advising OMB of Hopkins’s injury, advising OMB “Hopkins is currently incapacitated as a result of the injuries,” and advising OMB “[t]he amount of compensation demanded in this case is in excess of one million dollars.” In response, OMB said the Youth Correctional Center staff provided appropriate care for Hopkins, said OMB received the notice of claim “192 days after the alleged injury reasonably should have been discovered,” and denied liability.

[¶ 4] Hopkins’s parents sued the State on behalf of Hopkins. The State moved to dismiss the complaint “on the grounds the Court lacks subject matter jurisdiction because Cornelius Hopkins, Jr.’s parents failed to timely file a notice of claim as required by N.D.C.C. § 32-12.2-04(1) and failed to state a claim for relief under N.D.R.Civ.P. 12(b)(v) for a constitutional tort.” The district court denied the State’s motion to dismiss the complaint and granted a motion to replace Hopkins’s parents with Guardian and Protective Services, Inc., which has been appointed as Hopkins’s conservator, to act on behalf of Hopkins.

[¶ 5] The State petitioned this Court for a supervisory writ directing the district court to vacate the order denying the State’s motion to dismiss. The State contends the district court should have granted its motion to dismiss the case because Hopkins’s parents did not file a notice of claim under N.D.C.C. § 32-12.2-04(1) within 180 days. Hopkins contends the 180 day notice requirement does not apply because he is incapacitated by his injury from giving notice under N.D.C.C. § 32-12.2-04(1), which provides “[t]he time for giving the notice does not include the time during which a person injured is incapacitated by the injury from giving the notice.”

[¶ 6] “This Court’s authority to issue supervisory writs under N.D. Const, art. VI, § 2, and N.D.C.C. § 27-02-04 is a discretionary authority we exercise on a case-by-case basis, rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary eases in which there is no adequate alternative remedy.” State v. Haskell, 2001 ND 14, ¶ 4, 621 N.W.2d 358. In determining if this is an extraordinary case in which we should exercise our “purely discretionary” power, Patten v. Green, 369 N.W.2d 105, 106 (N.D.1985), to issue a supervisory writ to rectify an error and prevent injustice, we construe § 32-12.2-04(1), which provides:

A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded. The time for giving the notice does not include the time during which a person injured is incapacitated by the injury from giving the notice. If the claim is one for death, the notice may be presented by the personal representative, surviving spouse, or next of kin within one year after the alleged injury resulting in the death.

[¶ 7] Section 32-12.2-04(1), N.D.C.C., “requires written notice of a claim; actual notice is insufficient.” Earnest v. Garcia, 1999 ND 196, ¶ 6, 601 N.W.2d 260. Section 32-12.2-04(1), N.D.C.C., requires “[a] person bringing a claim against the state ... for an injury” to present a written notice within 180 days after the injury “is discovered or reasonably should have been discovered.” However, the statute provides: “The time for giving the notice does not include the time during which a person injured is incapacitated by the injury from giving the notice.” We must determine if the statute precludes suit by a minor who is incapacitated by the injury from giving the notice if his or her parents failed to present a written notice within 180 days of discovering the injury.

[¶ 8] Incapacity is not defined in N.D.C.C. ch. 32-12.2. ■ Incapacity to give notice is ordinarily a question of fact. Enochs v. City of Des Moines, 314 N.W.2d 378, 381 (Iowa 1982); Hestbeck v. Hennepin County, 297 Minn. 419, 212 N.W.2d 361, 367 (1973). Here, however, the State has not disputed Hopkins’s personal incapacity to give the notice, recognizing in its brief that “Hopkins was left in a permanent vegetative state.” Instead, the State argues:

[T]he only interpretation of the incapacity exception is that the injured individual, once his incapacity is lifted, has 180 days to file a notice of claim. Under any other circumstances, e.g., a guardian or a parent who is not incapacitated suing on the individual’s behalf, the notice of claim must be filed within 180 days of the injury.

[¶ 9] Questions of statutory construction are questions of law. Lende v. North Dakota Workers’ Comp. Bureau, 1997 ND 178, ¶ 11, 568 N.W.2d 755. We may resort to extrinsic aids to construe ambiguous statutory language. In re Estate of Thompson, 1998 ND 226, ¶ 7, 586 N.W.2d 847. “Where the terms of a statute are positive and unambiguous, exceptions not made by the Legislative Assembly cannot be read into the law.” Walsvik v. Brandel, 298 N.W.2d 375, 377 (N.D.1980). In Douville v. Pembina County Water Resource District, 2000 ND 124, 612 N.W.2d 270, we recently reiterated a number of other principles of statutory construction relevant to this case:

The primary purpose of statutory construction is to ascertain the intent of the legislature. In ascertaining legislative intent, we look first to the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute. (Citations omitted.)

However, when the letter of the law is clear and free of ambiguity, we need look no further than the statutory language, Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585, and “it is neither necessary nor appropriate to delve into legislative history to determine legislative intent.” Born v. Mayers, 514 N.W.2d 687, 689 (N.D.1994).

Douville, at ¶¶ 9,11.

[¶ 10] When our legislature enacted N.D.C.C. § 32-12.2-04(1) in 1995, it incorporated ah incapacity provision nearly identical to that contained in Minn.Stat. Ann. § 466.05(1), which the Minnesota Supreme Court had previously construed:

[T]he phrase “incapacitated by the injury, from giving the notice” imports that the general test for determining the applicability of the exception should be whether, on the days for which incapacity from giving notice is claimed, plaintiff was himself physically unable as a result of the injury to investigate and otherwise prepare and give legally sufficient notice of claim, and, if so, whether plaintiff was during the same time unable to cause another to do it for him.

Wibstad v. City of Hopkins, 291 Minn. 206, 190 N.W.2d 125, 127 (1971). Construing an incapacity provision-“during which the person injured is incapacitated by his injury from giving such notice”-the Iowa Supreme Court had previously addressed the incapacity of a claimant represented by her parents and attorney in 1982:

The district argues that Dezery should not be allowed a period of incapacitation because her parents and attorney were advancing her interests against the city within thirty days of the accident. However, section 613A.5 places the burden of notice directly on the injured party. Consequently, the section imposes no obligation on parents or other representatives to serve notice in order to preserve claims of minors, even though if a representative does provide notice it is effective. (Citations omitted.)

Enochs v. City of Des Moines, 314 N.W.2d 378, 380-81 (Iowa 1982). The court in Enochs held the injured minor plaintiff must be afforded an opportunity to establish she was incapacitated by her injuries from being able to counsel with her attorney.

[¶ 11] Giving the words used in N.D.C.C. § 32-12.2-04(1) their plain, ordinary, and commonly understood meaning, we conclude the statute is clear and unambiguous on its face. It excludes from the 180-day notice period any time during which an injured person is incapacitated by the injury from giving the notice, and the failure of such a person’s parents or others to present a timely notice on his or her behalf does not preclude suit by the injured person. To adopt the State’s position would require that we read into the incapacity provision of the statute an exception, which the legislature has not provided, for a person who is incapacitated by his or her injury from giving the notice, but has parents who could act on his or her behalf. We cannot create such an exception. Walsvik, 298 N.W.2d at 377; Miller v. Turner, 64 N.D. 463, 471, 253 N.W. 437, 441 (1934). We conclude the failure of the parents of an injured person “incapacitated by the injury from giving the notice” to present to OMB a notice of claim within 180 days of discovery of the injury under N.D.C.C. § 32-12.2-04(1) does not preclude the injured person from suing the State.

[¶ 12] Decisions like Morton County v. Tavis, 66 N.W.2d 201 (N.D.1954); Ward County v. Balerud, 72 N.D. 173, 5 N.W.2d 425 (1942); and Miller v. Turner, 64 N.D. 463, 253 N.W. 437 (1934), involving claims against the State Bonding Fund, do not compel a different result, as the statutes involved in those cases did not contain incapacity provisions like the one involved here. Our construction of the incapacity provision in N.D.C.C. § 32-12.2-04(1) comports with the view expressed by former Chief Justice Erickstad about the application of a notice statute to a minor in Besette v. Enderlin Sch. Dist. No. 22, 288 N.W.2d 67, 75 (N.D.1980): “[T]he Legislature has expressed its apparent belief that it would not be just to deprive a minor of access to our courts merely because its parents failed to comply with the notice requirements.” Similarly, in N.D.C.C. § 32-12.2-04(1), the legislature has expressed its apparent belief it would not be just to deprive a person who is incapacitated by an injury from giving notice of a claim from access to the courts merely because his or her parents failed to provide written notice within 180 days of the discovery of the injury.

[¶ 13] In light of our construction of N.D.C.C. § 32-12.2-04(1), we deny the petition.

[¶ 14] VANDE WALLE, C.J., and MARING, NEUMANN and SANDSTROM, JJ., concur.

      . This Court’s decision to decline to exercise its discretionary authority to issue an original or remedial writ is not an indication of our position on the merits of the issue presented. Daley v. American Family Mut. Ins. Co., 355 N.W.2d 812, 814 n. 2 (N.D.1984).

      . Section 466.05(1), Minn.Stal. Ann., dealing with, tort liability of political subdivisions, contained the following incapacity provision: "The time for giving such notice does not include the time, during which the person injured is incapacitated by the injury from giving the notice.” Section 3.736(5), Minn. Stat. Ann., dealing with tort claims against the State of Minnesota, contained a nearly identical incapacity provision: "The time for giving the notice does not include the time during which the person injured is incapacitated by the injury from giving the notice.” The 1995 Legislative Council Report at page 230 says that Senate Bill 2080, enacting N.D.C.C. ch. 32-12.2 "incorporates many of the limitations and exclusions from liability contained in North Dakota Century Code Chapter 32-12.1, relating to liability of political subdivisions and the Minnesota Claims Act.”

      . The claims involved here are those of Cornelius Hopkins, Jr., only. Any separate claims, if any, by his parents would be subject to the 180-day notice requirement. Compare Besette v. Enderlin Sch. Dist. No. 22, 288 N.W.2d 67, 75 (N.D.1980); Enochs v. City of Des Moines, 314 N.W.2d 378, 379 (Iowa 1982).


author: KAPSNER, Justice. NEUMANN, Justice,

text:
    2001 ND 83
    In the Interest of C.R.C., a child. Charles R. Sheeley, Richland County Juvenile Supervisor, Petitioner and Appellee, v. C.R.C., a child; C.A.M.C., and S.B., parents of said child, Respondents. C.A.M.C., Respondent and Appellant.
    No. 20000286.
    Supreme Court of North Dakota.
    May 1, 2001.

      Ronald W. McBeth (on brief), Assistant State’s Attorney, Wahpeton, ND, for ap-pellee.
    Janel B. Frederieksen (on brief), Wah-peton, ND, for appellant.
   KAPSNER, Justice.

[¶1] C.A.M.C. (“Connie”) appeals from a juvenile court order terminating her parental rights to C.R.C. (“Courtney”), age 7. We conclude the evidence is clear and convincing that Courtney is a deprived child; the conditions and causes of deprivation are likely to continue or will not be remedied; and Courtney is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm from the deprivation if Connie’s parental rights are not terminated. We affirm.

I

[¶ 2] In 1994, Courtney was born to Connie and S.B. (“Steve”), who were never married. Later that year, Connie married another man, S.M. (“Simon”), and they had two children together. From March to July 1996, Courtney was placed in foster care in Wilkin County, Minnesota, after police responded to a domestic violence report. From August 1996 to July 1997, Courtney was again placed in foster care in Wilkin County when Connie was arrested and taken to a treatment center. After Connie and Simon moved to Traverse County, Minnesota, Child Protection Services conducted a child protection risk assessment, concluding Connie’s children were at a high risk of abuse or neglect and were hungry, not toilet trained, and smelled; Courtney had bruises and unexplained injuries; animal feces were left on the floor in the house; the parents had poor home management skills; and the children were not properly supervised and received no affection. Subsequently, Connie and Simon voluntarily entered a Child Protection Service Plan, but the agency found little to no visible progress after four months. In September 1998, Connie voluntarily placed Courtney with the child’s paternal aunt.

[¶ 3] In November 1998, Connie’s second child was placed in foster care, where he remained until parental rights were terminated. In July 1999, Connie divorced Simon and became romantically involved with M.E. (“Michael”). After Connie and Michael were evicted from their apartment, Connie moved into the YMCA but had to leave after 30 days for not following the rules. Until October 1999, Courtney remained with the paternal aunt who had agreed to adopt Courtney but changed her mind when Courtney became too difficult to manage. During the time Courtney lived with her paternal aunt, visitation between Connie and Courtney was minimal, especially between May and October 1999 when there was no direct contact despite opportunities to visit. In November 1999, Richland County Social Services obtained custody of Courtney, after the juvenile court found the paternal aunt was no longer able to provide care; Connie intended to move Courtney to her residence where a sexual offender also lived; and Courtney lived outside Connie’s home for the last year with few visitations. In January 2000, Connie moved in with R.S. (“Richard”), whom she married after a three-week engagement. Shortly later, Connie left Richard and started seeing Michael again, intending to live with both Richard and Michael in an efficiency apartment.

[¶ 4] In January 2000, the Richland County Juvenile Supervisor filed a petition to terminate parental rights to Courtney. Subsequently, Courtney’s father, Steve, voluntarily terminated his parental rights. After a hearing, the juvenile court also terminated Connie’s parental rights upon finding: (1) Courtney is a deprived child, and her deprivation was not caused by lack of financial means; (2) the deprivation is likely to continue, and Courtney will suffer serious physical, mental, moral, or emotional harm in the future; (3) Courtney was in foster care 33 months during her 70 months of age; (4) Connie visited Courtney only minimally, with no contact from May to October 1999 despite opportunities to visit; (5) Connie was unemployed but able to be employed, yet did not budget her income to pay rent and was evicted; (6) Connie was provided a variety of assistance from agencies in Minnesota and North Dakota; (7) even with the aid of government agencies, Connie would be unable to provide physical and emotional care for Courtney. Connie appeals.

II

[¶ 5] On appeal, we review juvenile court orders terminating parental rights similar to a trial de novo, by examining the files, records, and transcript of the evidence, giving appreciable weight to the juvenile court’s findings. In the Interest of W.E., 2000 ND 208, ¶ 6, 619 N.W.2d 494. Although we are not bound by the juvenile court’s findings, we give deference to the decision of the juvenile court, which had the opportunity to observe the demeanor and candor of witnesses. In the Interest of A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853.

III

[¶ 6] Parents have fundamental and natural rights to their children which is constitutionally protected; however, their rights are not absolute or unconditional, and parents must provide care that satisfies minimum community standards. In the Interest of L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573. Due process provides certain procedural protections before the parent-child relationship may be terminated. In the Interest of A.S., 1998 ND 181, ¶ 14, 584 N.W.2d 853. Absent abandonment or consent, termination of parental rights requires satisfaction of a three-pronged test in which the State must prove by clear and convincing evidence: (1) the child is deprived; (2) the conditions and causes of the deprivation are likely to continue or will not be remedied; and (3) the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm by reason of the deprivation. In the Interest of W.E., 2000 ND 208, ¶ 7, 619 N.W.2d 494; N.D.C.C. § 27-20-44.

A

[¶ 7] Connie argues the State failed to prove by clear and convincing evidence that Courtney is a deprived child; rather, the evidence demonstrates Connie is willing and able to provide for Courtney’s care when given the opportunity and support of outside agencies. Connie claims the only testimony offered at the trial regarding observations of her parenting skills was from social services in Wil-kin, Traverse, and Cass counties, but none from Richland County which initiated the termination proceedings. Connie asserts she voluntarily entered a Child Protection Service Plan in Traverse County in an attempt to keep the children in her home; however, Richland County requested termination of parental rights based on “outdated” evaluations from other counties which do not reflect that Connie made very significant changes toward being a good mother. Connie asserts the report of the guardian ad litem only refers to Courtney’s problems adjusting to foster care, not as a result of her contact with her mother, and Connie and Courtney have a mother-daughter bond which should be preserved.

[¶ 8] A deprived child is defined as one who 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. N.D.C.C. § 27 — 20—02(8)(a); see also In the Interest of W.E., 2000 ND 208, ¶ 8, 619 N.W.2d 494.

[¶ 9] As noted by the juvenile court, the record contains significant evidence that Courtney suffered both abuse and neglect from her parents and was living in an unsuitable environment. All the social services agencies involved with this family documented continuous reports of unkempt children, domestic violence, lack of supervision, and poor parenting skills. The family service workers testified that their attempts to assist Connie with parenting skills resulted in noncompliance, as Connie would follow the service plan and checklists for a brief time and then would give up, and the family situation would deteriorate again. The family service workers testified the only way a service plan would work for Connie was to have an in-home provider every day of the week, which was not feasible and not required by law. See In the Interest of D.R., 525 N.W.2d 672, 675 (N.D.1994) (“Even if a more consistent treatment could be contrived for [the mother], the scope of the necessary increased assistance, through constant supervised care for [the mother] and her children together, would be too extravagant and is not required by law.”).

[¶ 10] The juvenile court found almost half of Courtney’s life was spent outside her family home, that is, she was six years old at the termination proceeding and had spent 33 months in either foster care or firing with a paternal aunt. Moreover, Connie did not visit Courtney when she had the opportunity, after voluntarily placing her with a paternal aunt, and only visited after termination proceedings began. See In the Interest of A.M., 1999 ND 195, ¶ 8, 601 N.W.2d 253 (terminating parental rights after finding evidence the mother and her children had been involved with child protection services several times in other jurisdictions; the mother failed to complete treatment programs; one child had spent 35 of her first 51 months in foster care and the other child spent over one-third of her fife in homes other than with her parents; and the mother had only-very limited and sporadic contact with the children); see also In the Interest of D.F.G., 1999 ND 216, ¶ 15, 602 N.W.2d 697 (commending a parent who needs temporary assistance for opting to place a child in the custody of social services, but stating a parent who repeatedly places a child in protective custody for several years may be unable or unwilling to provide adequate care for the child).

[¶ 11] The record also provides evidence that Courtney’s deprivation was not due primarily to the lack of Connie’s financial means. The juvenile court concluded Connie’s money problem was not a lack of financial resources, but rather poor money management and the inability to set priorities to take care of the children. The juvenile court found Connie spent money on unnecessary expenses, yet consistently ran short of money to pay rent, which led to eviction. The record indicated Connie was provided a variety of assistance including homemaker’s aides, parental counseling, intensive family counseling, and money management, but she has been unable or unwilling to improve her budgeting and parenting skills. Connie’s continuing unstable lifestyle and romantic relationships are not evidence of positive changes.

[¶ 12] We conclude the evidence is clear and convincing that Courtney is a deprived child lacking proper parental care, and her deprivation is not due primarily to Connie’s lack of financial means.

B

[¶ 13] Connie argues the evidence was not clear and convincing that the conditions and causes of Courtney’s deprivation are likely to continue or will not be remedied. Connie asserts she has demonstrated a willingness to work with social services and should be given another chance, especially since she has made positive changes in her life by removing herself from a dysfunctional marriage. According to Connie, Richland County failed to make reasonable efforts to transfer foster care to Cass County where Connie resided or to assist her with parenting training; rather, Richland County proceeded “head first” into the termination process.

[¶ 14] In determining whether a child’s deprivation is likely to continue or will not be remedied, we consider prognostic evidence as a basis for reasonable predictions about future behavior. In the Interest of S.F., 2000 ND 161, ¶ 10, 615 N.W.2d 511. Prognostic evidence includes reports and opinions of professionals. In the Interest of D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697. In addition, we consider the lack of parental cooperation with social service agencies, which is insufficient to establish deprivation but is pertinent to whether deprivation will continue. S.F., at ¶ 10. The amount of contact a parent has had with the child may also be considered. D.F.G., at ¶ 20.

[¶ 15] Dr. John Molstre’s evaluation of Connie in March 1999 offers prognostic evidence of her future behavior. The evaluation noted Connie’s “low average” mental ability and concluded:

[Connie] is a dependant [sic], isolated, vulnerable and in some respects inadequate person who is in a highly dysfunctional relationship and facing multiple stressors. The impact on her ability to parent is dramatic and I believe her ability at the present time to take care of her children is limited and at this point I do not believe that [she] can successfully raise, parent, or provide for her children nor provide a safe and nur-turant home for them on a long term basis.... I believe that the prognosis for neglectful or abusive behavior towards [Courtney] is very real and that [Courtney] would indeed suffer emotional and physical harm if [she] were to live with [Connie].
Ultimately, this is a situation that’s not likely to change unless [Connie] decides to leave [Simon], and even with the change, it is unlikely that she can care for her children. Termination would appear to be in the best interest of the child.

[¶ 16] Dr. Molstre also stated his evaluation and recommendation would not change based on Connie’s current lifestyle. He stated, “[I]t would suggest that the instability and the dependency and the immaturity has continued, and is basically further validated and ... would not change his opinion that [Connie’s] parental rights should be terminated.”

[¶ 17] Connie’s lifestyle has been continuously unstable in many aspects: relationships, living arrangements, and financial matters. Connie did not name any support network on which she could rely to assist her with parenting Courtney. For over four years, social services from various counties tried to make Connie a better parent by implementing a number of services, but the agencies saw little or no progress. The testimony indicated Connie would follow a parenting plan briefly, but then relapse into previous behavior. Furthermore, Connie visited Courtney only sporadically during the year Courtney was living with her paternal aunt. See In the Interest of L.F., 1998 ND 129, ¶¶ 18-24, 580 N.W.2d 573 (finding deprivation likely to continue unremedied based on the psychologist’s evaluation; failure to exercise visitation; lack of cooperation with recommended programs; and nomadic, unstable, and questionable living arrangements). Although Connie requests a second chance, we conclude she has been afforded numerous chances, and now Courtney deserves a chance at a stable environment. See In the Interest of A.S., 1998 ND 181, ¶ 29, 584 N.W.2d 853 (rejecting a mother’s request for a second chance, as unfortunately the deprived child will not be given a first chance unless immediately placed in a stable environment and given what precious little time remains to create a bonding relationship).

[¶ 18] We find ample prognostic evidence demonstrating the deprivation of Courtney is likely to continue and will not be remedied unless parental rights are terminated.

C

[¶ 19] Connie argues the evidence was not clear and convincing that Courtney was suffering or will probably suffer serious physical, mental, moral, or emotional harm from her deprivation. Connie contends Courtney’s physical and mental problems make it difficult for her to adapt to change and likely are the result of changes in her foster care dynamics, rather than from any deprivation involving Connie.

[¶ 20] To determine if the deprived child is suffering, or probably in the future will suffer, serious physical, mental, moral, or emotional harm, a showing of parental misconduct is insufficient without showing a resultant harm to the child from the deprivation. In the Interest of D.F.G., 1999 ND 216, ¶ 28, 602 N.W.2d 697. The deprivation is not required to be continuous, and the likelihood of serious mental and emotional harm to the child may be shown by prognostic evidence. Id. The best interests of the child is an important factor which also must be considered, although not the primary consideration in a termination proceeding. In the Interest of L.F., 1998 ND 129, ¶ 27, 580 N.W.2d 573.

[¶ 21] The juvenile court found the evidence showed Courtney’s development was delayed and that she suffered physically and emotionally from her deprivation. The social service assessments determined Connie’s children were at a high risk of abuse or neglect, including hunger, uncleanliness, lack of supervision, and no affection. The assessments also reported Courtney had bruises and unexplained injuries. In addition to the testimony of family service workers, mental health professionals concurred in their evaluations regarding the harm Courtney has suffered and likely will continue to suffer. Dr. Geiselhart testified Courtney suffers from reactive attachment disorder caused by a lack of a secure bonding relationship with anyone. The record shows at six years of age Courtney had spent almost half of her life outside her family home with minimal visits from Connie. When Connie finally visited Courtney at the psychiatric center, Dr. Geiselhart recommended visitation cease because of Courtney’s aggressive behavior following Connie’s visitation, and he noted Courtney’s behavior improved after Connie’s visitations ceased. Courtney also told Dr. Geiselhart she did not want to see Connie again. In addition, Dr. Molstre’s parental capacity evaluation reported Courtney “would indeed suffer emotional and physical harm if [she] were to live with [Connie].” Ultimately, Dr. Molstre concluded termination of Connie’s parental rights would be in Courtney’s best interests because it is unlikely that Connie can care for her children. See In the Interest of A.S., 1998 ND 181, ¶ 27, 584 N.W.2d 853 (emphasizing that a court need not wait fora tragic event to happen before terminating parental rights).

[¶ 22] We conclude the testimony and evaluations show Courtney has suffered and probably will suffer serious harm by reason of her deprivation.

IV

[¶ 23] Our review of the entire record demonstrates by clear and convincing evidence that Courtney is a deprived child, her deprivation is not due primarily to a lack of financial resources, the causes and conditions of her deprivation will likely continue unremedied, and Courtney is suffering or likely will suffer serious physical, mental, moral, or emotional harm. Therefore, we affirm the juvenile court’s decision to terminate Connie’s parental rights to Courtney.

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

NEUMANN, Justice,

concurring.

[¶ 25] I agree with the majority that the trial court’s judgment terminating Connie’s parental rights should be affirmed. I write separately to address my concern with the standard of review in juvenile cases.

[¶ 26] The majority opinion, at ¶ 5, employs the standard of review this Court has used for many years in juvenile cases:

On appeal, we review juvenile court orders terminating parental rights similar to a trial de novo, by examining the files, records, and transcript of the evidence, giving appreciable weight to the juvenile court’s findings. Although we are not bound by the juvenile court’s findings, we give deference to the decision of the juvenile court, which had the opportunity to observe the demeanor and candor of witnesses.

(Citations omitted.)

[¶ 27] In 1969, the North Dakota Legislative Assembly enacted the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20. Section 27-20-56(1), N.D.C.C., governs appeals of juvenile court orders to this Court and provides, “The appeal must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court.” We have consistently characterized this standard, as the majority does, at ¶ 5, as similar to a trial de novo.

[¶ 28] Until its repeal in 1971, N.D.C.C. § 28-27-32 provided the standard of review for questions of fact in appeals from all bench trial decisions. Section 28-27-32, N.D.C.C., provided, “The supreme court shall try anew the questions of fact.” This standard of review was known as “trial de novo.” See, e.g., Parker Hotel Co. v. City of Grand Forks, 177 N.W.2d 764, 772-73 (N.D.1970); see also Trengen v. Mongeon, 200 N.W.2d 50, 52 (N.D.1972) (characterizing the former standard of review, under N.D.C.C. § 28-27-32, “the so-called ‘trial de novo’ ”).

[¶ 29] Effective August 1, 1971, Rule 52, N.D.R.Civ.P., was amended to state, “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

[¶ 30] On September 7, 1971, the Court decided In re J.Z., 190 N.W.2d 27 (N.D.1971), a parental termination case. Relying on In re Walter, 172 N.W.2d 603 (N.D.1969), the Court articulated the standard of review by simply stating, “An appeal taken under the Uniform Juvenile Court Act, N.D.C.C. 27-20, is triable anew in this Court.” J.Z., 190 N.W.2d at 29. Offering a bit more guidance later in the opinion, the Court stated:

On appeal, although the findings of fact by the trial court are accorded appreciable weight, the Supreme Court is not bound thereby but has the duty to review all evidence, to find the facts anew independently of the trial court’s findings, and to apply the law to the facts as found by the appellate court.

Id. at 34. To support this articulation of the standard of review, the Court cited Verry v. Murphy, 163 N.W.2d 721 (N.D.1968); Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710 (N.D.1968); Wheat v. Patterson, 154 N.W.2d 367 (N.D.1967). Notably, these cases were all decided before the repeal of N.D.C.C. § 28-27-32 and the amendment to Rule 52. The Court failed to acknowledge this change.

[¶ 31] In 1972, in In re A.N., 201 N.W.2d 118, 120 (N.D.1972), the Court addressed the matter:

What is the scope of our review in juvenile cases? We are troubled with a seeming conflict between the Uniform Juvenile Court Act (Chapter 27-20, N.D.C.C.) and Rule 52(a) of the North Dakota Rules of Civil Procedure.

[¶ 32] After reciting Rule 52(a) and the pertinent part of N.D.C.C. § 27-20-56(1), the Court commented:

It is obvious that the adoption of Rule 52(a) in August 1971 as an amendment to the existent Rules was designed to set a new standard for reviewing questions of fact — a standard that gives the trial judge more finality of decision. The 1971 session of the Legislature (Senate Bill 2252) abolished the so-called ‘de novo’ statute. Accordingly, Rule 52(a) was amended to conform to the Federal Rule 52(a) and includes the scope of review given to findings of fact by the trial court. The Federal Rule applies to any civil action tried without a jury save for the exceptions and limitations stated in Federal Rule 81, Wright & Miller, Federal Practice and Procedure: Civil § 2572.

AN., at 121 (footnote omitted). The Court quoted N.D.R.Civ.P. 81, which specifies:

(a) Special statutory proceedings. Special statutory proceedings, whether or not listed in Table A, are excepted from these rules in so far as they are inconsistent or in conflict with the procedure and practice provided by these rules.

Table A includes N.D.C.C. ch. 27-20.

[¶ 33] The Court, in A.N., relying on the provisions of Rule 81, concluded the Juvenile Court Act prevailed over Rule 52(a) insofar as the two were inconsistent and in conflict, and opined:

Section 27-20-56, N.D.C.C., of the Act, appears to be a return, in juvenile cases, to the old de novo statute, Section 28-27-12, N.D.C.C. It provides for a type of trial anew, giving appreciable weight to the findings. As much as we would like to avoid a return to old ways and the attendant discomfiture for both appellants and trial courts, we cannot avoid the clear wording of Section 27-20-56, N.D.C.C. Such an interpretation affirms what we said in In re J.Z., supra, and the general history of Federal Rule 52(a), in that there are several special proceedings in which the Federal Rule is inapplicable.

A.N., at 121 (footnotes and citation omitted).

[¶ 34] The standard of review in juvenile cases has evolved since A.N. The standard, as articulated by the majority today, is said to be similar to trial de novo rather than actual trial de novo. Since AN., the Court has embraced de novo review in juvenile cases with varying amounts of affinity and has employed different adjectives to describe the degree of similarity to trial de novo. See, e.g., Jacobson v. V.S., 271 N.W.2d 562, 566 (N.D.1978) (characterizing the scope of review as “comparable” to trial de novo); McGurren v. S.T., 241 N.W.2d 690, 694 (N.D.1976) (characterizing the scope of review as “equivalent” to trial de novo); In re M.L., 239 N.W.2d 289, 291 (N.D.1976) (characterizing the scope of review as “much like” trial de novo).

[¶ 35] I do not write to expound on the artificial differences among the Court’s articulations of the standard of review. Rather, I write to express my opposition to the use of any de novo-like standard to review findings of fact in juvenile cases. I fail to see how the “clear wording” of N.D.C.C. § 27-20-56 is, in any respect, a “return to, in juvenile cases, the old de novo statute.” A.N., 201 N.W.2d at 121. The former de novo statute clearly stated that questions of fact were tried anew. See N.D.C.C. § 28-27-32 (repealed 1971). Under N.D.C.C. § 27-20-56(1), the Court merely reviews the files, records, and minutes or transcript of the evidence of the juvenile court. In my opinion, the plain language of N.D.C.C. § 27-20-56(1) does not require a de novo review.

[¶ 36] Rule 81, N.D.R.Civ.P., does not remove juvenile proceedings from the application of the rules. Rather, it excepts juvenile proceedings from the rules “in so far as they are inconsistent or in conflict with the procedure and practice provided by these rules.” In other words, Rule 81, N.D.R.Civ.P., does not provide a complete exception from the application of the rules of civil procedure. See Tormaschy v. Tor maschy, 1997 ND 2, ¶ 15, 559 N.W.2d 813 (stating, “Just as the Federal Courts have applied the Federal Rules to procedurally assist and fill in the gaps for excepted statutes, so too will we apply the North Dakota Rules of Civil Procedure to proceedings found in Rule 81.” (Emphasis added.)) Moreover, N.D.C.C. § 27-20-57 of the Uniform Juvenile Court Act provides: “The supreme court of this state may adopt rules of procedure not in conflict with this chapter governing proceedings under it.”

[¶ 37] I fail to see the supposed conflict, identified in A.N., between N.D.C.C. § 27-20-56(1) and Rule 52(a). I believe the rule and the statute can, and should, be read together to require a clearly erroneous standard of review based upon the files, records, and minutes or transcript of the evidence, giving appreciable weight to the findings of the juvenile court.

[¶ 38] It has been argued the issues at stake in juvenile proceedings are too important to be addressed on appeal using nothing more than a clearly erroneous standard of review. I find this argument unconvincing. We apply the clearly erroneous standard in child custody cases. See, e.g., Peek v. BeRNing, 2001 ND 34, ¶ 4, 622 N.W.2d 186 (applying the clearly erroneous standard); see also In re J.S.P.L., 532 N.W.2d 653, 662 (N.D.1995) (stating that a parent’s right to the companionship, care, custody and management of his or her children is an important interest that warrants deference and protection.) We review a criminal conviction entered upon a jury verdict of guilty by looking only to the evidence most favorable to the verdict, giving the verdict the benefit of all inferences reasonably to be drawn in its favor, to see if there is substantial evidence to support it. State v. Fraser, 2000 ND 53, ¶ 3, 608 N.W.2d 244. Although the standard of review applied to criminal jury verdicts is not the clearly erroneous standard, it is at least as deferential. Because the stakes in custody and criminal cases are as grave as the stakes involved in juvenile cases, I see no sound reason for not applying the clearly erroneous standard in juvenile cases.

[¶ 39] I acknowledge the importance of the rule of stare decisis, grounded upon the theory that when a legal principle is accepted and rights may accrue under it, security and certainty require the principle be recognized and followed thereafter. Dickie v. Farmers Union Oil Co. of LaMoure, 2000 ND 111, ¶ 13, 611 N.W.2d 168. However, “ ‘[t]he rule of stare decisis ... is not sacrosanct.’ ” Abbey v. State, 202 N.W.2d 844, 852 (N.D.1972) (quoting Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599 (1942)); see also Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (“Our precedents are not sacrosanct.”); Williams v. Florida, 399 U.S. 78, 128, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Harlan, J., concurring and dissenting) (Stare deci-sis “[w]oodenly applied ... builds a stockade of precedent that confines the law.”); Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604 (1940) (“[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.”).

[¶ 40] I believe it is injudicious to doggedly adhere to a standard of review formulated without rigorous, thoughtful analysis. In my opinion, the Court failed to conduct such an analysis in A.N. The cases after AN. failed to question the standard articulated in A.N., and the standard we have today, nearly thirty years later, is the product of mechanical adherence to - the latest decision. In my opinion, AN. and its progeny misinterpret the interplay between N.D.C.C. § 27-20-56(1) and Rule 52(a), and, to that extent, should be overruled.

[¶ 41] WILLIAM A. NEUMANN, J., concurs.

      . All names in parentheses following initials are pseudonyms.

      . Rule 52(a), N.D.R.Civ.P., currently specifies, “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

      . Presumably, the citation to N.D.C.C. § 28-27-12, was a clerical error, and the Court meanl to cite N.D.C.C. § 28-27-32.


text:
    2001 ND 84
    STATE of North Dakota, Plaintiff and Appellee, v. Blaine Douglas ELLIS, Defendant and Appellant.
    No. 20000092.
    Supreme Court of North Dakota.
    May 1, 2001.

      Wade L. Webb (argued), and Lori S. Mickelson (appeared), Assistant State’s Attorneys, Fargo, ND, for plaintiff and ap-pellee.
    Mark T. Blumer (argued), Kevin M. Miller (appeared), and Brian W. Nelson (on brief), Nelson, Blumer & Johnson, P.L.L.P., Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Blaine Douglas Ellis appealed from a conviction entered upon a jury verdict finding him guilty of attempted murder. We hold the trial court did not abuse its discretion in denying Ellis’ pretrial motion for change of venue, the court did not err in denying his request for a jury instruction on aggravated assault, and the court did not err in considering a prior conviction which was pending appeal when sentencing Ellis. We affirm.

I

[¶ 2] Ellis was charged in Cass County with attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(l)(a) for attempting to knowingly or intentionally cause the death of another person by inflicting blunt force trauma to the head of the victim. Before trial, Ellis moved for a change of venue, alleging extensive media coverage and publicity about him and the victim prevented a fair and impartial jury from being impaneled in Cass County. The trial court denied Ellis’ pretrial motion. At trial, the court denied Ellis’ request for a jury instruction on aggravated assault. A jury found Ellis guilty of attempted murder, and he appealed.

II

[¶ 3] Ellis argues the trial court abused its discretion in denying his motion for a change of venue. He argues pretrial publicity about the case was so widespread and damaging that it warranted a change of venue from Cass County.

[¶ 4] Under N.D.R.Crim.P. 21(a), the trial court shall transfer venue of a criminal action if the court finds there exists in the county in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial. A defendant seeking a change of venue under N.D.R.Crim.P. 21(a) must establish a reasonable likelihood of prejudice so pervasive that a fair and impartial jury cannot be selected in the county of original venue. State v. Erickstad, 2000 ND 202, ¶ 7, 620 N.W.2d 136; State v. Austin, 520 N.W.2d 564, 566 (N.D.1994). The trial court ultimately must decide whether it is impossible to select a fair and impartial jury in the county of original venue. Erickstad, at ¶ 7. Although prejudice to a defendant may be so obvious that a change of venue may be ordered immediately, generally a trial court should wait until voir dire to determine whether it is possible to select a fair and impartial jury. Erickstad, at ¶ 10; State v. Ellis, 2000 ND 177, ¶ 10, 617 N.W.2d 472. A motion for change of venue is addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal absent an abuse of discretion prejudicial to the defendant. Erickstad, at ¶ 7; Ellis at ¶ 10.

[¶ 5] In Austin, 520 N.W.2d at 566, we identified eight factors to guide a trial court in ruling on a motion for a change of venue under N.D.R.Crim.P. 21(a): (1) whether publicity was recent, widespread, and highly damaging to the defendant; (2) whether the prosecution was responsible for dissemination of the objectionable material; (3) the extent of inconvenience to the prosecution; (4) whether a substantially better panel could be sworn elsewhere; (5) the nature and gravity of the offense; (6) the size of the community; (7) the defendant’s status in the community; and (8) the popularity and prominence of the victim. See also Ellis, 2000 ND 177, ¶ 12, 617 N.W.2d 472.

[¶ 6] Publicity per se is not necessarily prejudicial or damaging to a criminal defendant. Before a change of venue because of pretrial publicity is proper, a defendant must show the publicity was in fact prejudicial. Erickstad, 2000 ND 202, ¶ 8, 620 N.W.2d 136; Austin, 520 N.W.2d at 567. The quantity of media coverage does not control a motion for change of venue; rather, the defendant must show there was prejudicial publicity which caused such bias that it would be impossible to select .a fair and impartial jury. Erickstad, at ¶ 9.

[¶ 7] Here, Ellis’ pretrial motion for a change of venue was supported only by arguments of his counsel. There .was no showing the media disseminated inadmissible, illegally obtained, or otherwise prejudicial information, or the coverage was sensationalized, inflammatory, or biased. See Erickstad, 2000 ND 202, ¶ 9, 620 N.W.2d 136. Ellis presented no evidence, such as qualified public opinion surveys or opinion testimony by individuals. See Erickstad, at ¶ 9; Austin, 520 N.W.2d at 566-67. Rather, at the hearing on the motion, defense counsel merely alleged, without providing evidence or proof, that media coverage had so prejudiced Ellis that it was unlikely he would be able to receive a fair and impartial trial in Cass County.

[¶ 8] Relying on Austin, the trial court denied Ellis’ pretrial motion for change of venue, concluding:

A defendant seeking a change of venue under Rule 21(a) bears the burden of demonstrating a reasonable likelihood of prejudice so pervasive that fair and impartial jurors could not be found. The ultimate question for the Court to decide is whether it is impossible to select a fair and impartial jury. On this matter the defendant bears the burden of proof and must demonstrate prejudice and bias.
On the evidence presented to the Court and on the eight factors listed in State v. Austin, it’s the determination of the Court that although there has been media coverage of this particular trial, the defendant has not demonstrated such prejudice and bias to the extent that would allow the Court to rule that selecting a fair and impartial jury in Cass County is impossible.
The mere fact that there’s been media coverage is not a basis for a change of venue. There have been two previous juries selected in other unrelated cases relating to this defendant. In one casé the defendant was acquitted. In the other case the jury selection was not out of the ordinary by any means for the type of charge involved. And there were no problems unique to this case as far as [ ] selecting a jury in that particular matter.

[¶ 9] During voir dire, counsel for Ellis and the State extensively questioned prospective jurors regarding their ability to be fair and impartial. A review of the jury selection reflects several prospective jurors indicated they had heard about the case; however, nothing in the record supports Ellis’ claim it was impossible to select a fair and impartial jury, and Ellis did not renew his motion for a change of venue after voir dire. A defendant must renew a motion for change of venue if the defendant believes comments by potential jurors during voir dire establish that an impartial jury could not be selected. Erickstad, 2000 ND 202, ¶ 10, 620 N.W.2d 136; Ellis, 2000 ND 177, ¶ 14, 617 N.W.2d 472. Ellis has failed to establish the pretrial publicity in this case created bias and prejudice in the community making it impossible to select a fair and impartial jury. Under these circumstances, we cannot say the trial court abused its discretion in denying his pretrial motion for a change of venue.

Ill

[¶ 10] Ellis argues the trial court abused its discretion in refusing to instruct the jury on the offense of aggravated assault. He argues aggravated assault is a lesser included offense of attempted murder and evidence presented at trial required the court to instruct the jury on aggravated assault.

[¶ 11] We apply a two-step process to decide whether a defendant is entitled to an instruction on a claimed lesser included offense. State v. Carlson, 1997 ND 7, ¶ 34, 559 N.W.2d 802. First, the offense must be a lesser included offense of the offense charged, and second, there must be evidence which creates a reasonable doubt as to the greater offense, but supports a conviction of the lesser included offense beyond a reasonable doubt. Id. A lesser offense is necessarily included in a greater offense if it is impossible to commit the greater offense without committing the lesser offense. Id., at ¶ 35. Section 12.1-01-04(15), N.D.C.C., defines an “included offense” as an offense “[w]hich is established by proof of the same or less than all the facts required to establish commission of the offense charged.”

[¶ 12] Ellis was charged with attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1 — 16—01(l)(a). Section 12.1-06-01, N.D.C.C., provides, in part:

1.A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A “substantial step” is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime.
3. Criminal attempt is an offense of the same class as the offense attempted, except that (a) an attempt to commit a class AA felony is a class A felony and an attempt to commit a class A felony is a class B felony;

Section 12.1-16-01(1) N.D.C.C., provides:

1. A person is guilty of murder, a class AA felony, if the person:
a. Intentionally or knowingly causes the death of another human being;

Section 12.1-17-02, N.D.C.C., says a person is guilty of aggravated assault if that person

1. Willfully causes serious bodily injury to another human being;
2. Knowingly causes bodily injury or substantial bodily injury to another human being with a dangerous weapon or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury;
3. Causes bodily injury or substantial bodily injury to another human being while attempting to inflict serious bodily injury on any human being; or
4. Fires a firearm or hurls a destructive device at another human being.

[¶ 13] In State v. Sheldon, 301 N.W.2d 604, 610 (N.D.1980), this Court said:

Aggravated assault under subsections 1, 2, and 3 of § 12.1-17-02, N.D.C.C., is not a lesser included offense to the offense of attempted murder because the elements necessary to prove commission of the offenses differ. Aggravated assault, except under subsection 4 of § 12.1-17-02, N.D.C.C., requires that a bodily injury be suffered by the victim of the offense. On the other hand, “criminal attempt” as defined in § 12.1-06-01(1), N.D.C.C., requires that the actor engage in a substantial step toward commission of the crime. The offense of attempted murder does not require that the victim of the offense suffer a bodily injury. Although a substantial step toward commission of the crime may well involve a bodily injury, it is clear that the elements of proof involved in the offenses of aggravated assault under subsections 1, 2, and 3 of § 12.1-17-02, N.D.C.C., and attempted murder differ, but not as to subsection 4 of § 12.1-17-02, N.D.C.C. This variance of proof, except as to subsection 4 of § 12.1-17-02, is fatal to the categorization of aggravated assault as a lesser included offense of attempted murder. However, aggravated assault under subsection 4 of § 12.1-17-02 can be a lesser included offense of attempted murder.

[¶ 14] Here, the trial court denied Ellis’s request for an instruction on aggravated assault:

The Supreme Court of North Dakota in State v. Sheldon has said that aggravated assault under those three potential circumstances or situations is not a lesser included offense of attempted murder because the elements necessary to prove the offenses differ. The Supreme Court in Sheldon did say that there is a potential for a lesser included under subsection (4) of the statute defining aggravated assault, which would involve firing a firearm of hurling a destructive device at another human being.
On the evidence presented in this case, the Court finds that that instruction would not apply. On the evidence presented to the Court under the circumstances of this case, the requested instruction for aggravated assault would fall under categories one, two and three and by law is not a lesser included offense.

[¶ 15] Under Sheldon and the first step of our process for deciding whether a defendant is entitled to an instruction on a claimed lesser included offense, aggravated assault is not a lesser included offense of attempted murder because, except for N.D.C.C. § 12.1-17-02(4) which involves firing a firearm or hurling a destructive device at another human being, it is possible to commit the greater offense of attempted murder without committing aggravated assault. The offense of attempted murder requires the defendant to take a substantial step toward committing the crime of attempting to intentionally or knowingly cause the death of another and does not require the victim to suffer bodily injury. Aggravated assault under N.D.C.C. § 12.1-17-02(1), (2), and (3), however, requires the victim to suffer bodily injury.

[¶ 16] The attempted murder charge against Ellis did not allege he fired a firearm or hurled a destructive device at the victim. Rather, Ellis was charged with attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(l)(a) for attempting to intentionally or knowingly cause the death of another person by inflicting blunt force trauma to the head of the victim. The State was required to prove Ellis intentionally engaged in conduct which constituted a substantial step toward the commission of the crime of knowingly and intentionally causing the death of another person and was not necessarily required to prove the victim suffered a bodily injury. Under Sheldon and our jurisprudence for lesser included offenses, we conclude the trial court did not err in refusing to give an instruction on aggravated assault.

IV

[¶ 17] Ellis argues the trial court erred in sentencing him because it considered a prior reckless endangerment conviction which was pending appeal during the sentencing proceeding. At the sentencing hearing, the trial court considered several factors in sentencing Ellis, including his prior criminal history, his failure to lead a law-abiding life, his demonstration of a callous disregard for the lives of others in this case, and a previous felony conviction which was subsequently affirmed on appeal. See Ellis, 2000 ND 177, 617 N.W.2d 472.

[¶ 18] Under N.D.C.C. § 12.1-32-04, a trial court may consider a number of factors when determining a sentence, including the defendant’s history of criminal activity. A sentencing court should acquire a thorough acquaintance with the character and history of the defendant, and the court’s decision should include favorable and unfavorable information. City of Dickinson v. Mueller, 261 N.W.2d 787, 793 (N.D.1977). A defendant’s prior criminal activity, particularly activity closely related to the crime at hand, is relevant to sentencing. Id. In Mueller, at 792-94, we said a pending charge is the type of information a sentencing court may consider in sentencing a defendant. See also State v. Ballensky, 1998 ND 197, ¶¶ 17-18, 586 N.W.2d 163.

[¶ 19] Ellis’s reliance on the definition of conviction under Title 39, N.D.C.C., relating to motor vehicles, is misplaced. See N.D.C.C. § 39-06-30. The definition of a conviction for purposes of the reporting requirements of Title 39, N.D.C.C., deals with the timing of reports of convictions to the appropriate licensing authority for purposes of license suspensions and revocations and does not define a conviction for purposes of sentencing a defendant under Title 12.1, N.D.C.C. See Holen v. Hjelle, 396 N.W.2d 290, 293 (N.D.1986) (stating purpose of N.D.C.C. §§ 39-02-27 and 39-06-30 is to deal with timing of reports of convictions to licensing authority).

[¶ 20] We conclude in sentencing Ellis the trial court properly considered a criminal conviction which was pending appeal during the sentencing hearing.

V

[¶ 21] Ellis argues the trial court erred in not giving a curative instruction about testimony regarding a bat found by law enforcement officers. He argues the State’s solicitation of testimony regarding the bat was improper prosecutorial conduct.

[¶ 22] At trial, on cross examination of investigator Dean Wawers, defense counsel asked whether the police found a bat and its location. The State had not previously questioned Wawers about the bat. On redirect, the State attempted to clarify the question that defense counsel asked regarding the bat. Defense counsel objected, and the court heard argument from counsel outside the presence of the jury. The court sustained Ellis’ objection and instructed the jury: “The defendant’s objection has been sustained. The jury will disregard the last answer of the witness. It has been ordered stricken.” When excepting to the court’s proposed jury instructions prior to closing arguments, Ellis did not ask for any further curative instructions regarding testimony about the bat.

[¶ 23] A jury is generally presumed to follow instructions given by the trial court, and an instruction to disregard certain evidence is generally sufficient to remove improper prejudice. See State v. Welch, 426 N.W.2d 550, 553 (N.D.1988). The trial court’s curative instruction was sufficient, and we conclude the court did not err in not giving a further unrequested curative instruction regarding Wawers’ testimony about the bat.

VI

[¶ 24] We affirm Ellis’ conviction.

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

      . Section 39-06-30, N.D.C.C., provides:
      Conviction — Meaning and effect. For purposes of this title the term "conviction” means a final order or judgment of conviction by the North Dakota supreme court or any lower court having jurisdiction provided that no appeal is pending and the time for filing a notice of appeal has elapsed. Subject to the filing of an appeal, a conviction includes those instances when:
      1. A sentence is imposed and suspended;
      2. Imposition of a sentence is deferred under subsection 4 of section 12.1-32-02; or
      3. There is a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court and the forfeiture has not been vacated.