author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Clay Carl CLARK, Appellant.
    No. A04-1101.
    Court of Appeals of Minnesota.
    June 28, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; TOUSSAINT, Chief Judge; and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

In this appeal from conviction of four felonies, Clay Clark challenges the district court’s denial of his requests to substitute appointed counsel, appoint advisory counsel, and rescind self-representation. Because the district court did not abuse its discretion and properly applied the law in denying Clark’s requests, we affirm.

FACTS

Clay Clark fled from police officers in a car that had been reported stolen. After police took him into custody, the Hennepin County Attorney charged him with receiving stolen property, fleeing a police officer in a motor vehicle, possession of a firearm by a prohibited person, and theft of a motor vehicle. Clark pleaded not guilty, demanded a speedy trial, and expressed his intent to retain private counsel. Approximately one month later, Clark advised the district court that he was unable to retain private counsel and would proceed with the appointed public defender.

On the second day of jury voir dire, Clark told the district court that he wanted a different attorney. Clark explained that he was dissatisfied because the appointed public defender had never come to see him, did not provide him with paperwork, told him that the evidence he believed would prove his innocence was inadmissible at trial, and recommended that he accept the plea offer because his case was “open and shut.” After listening to Clark’s reasons, the district court reviewed with Clark the effect of his previous requests for time to obtain private counsel and for a speedy trial. The district court allowed the public defender an opportunity to respond, which she declined, and the court then denied Clark’s request, stating that “[u]nder the rules, [Clark] would not be reassigned a different lawyer from the Public Defender’s Office.”

On the same day, after completion of jury selection, Clark told the district court that he wanted to represent himself. In response to this request, the district court advised Clark of the responsibilities of self-representation: that no delay would be allowed to accommodate Clark’s trial preparation; that if Clark was not prepared for trial, he should continue with the public defender because she was skilled and trained as an attorney and was prepared for trial; that Clark would not be provided with “standby” counsel if he represented himself; that Clark would not be allowed to change his mind; and that Clark would be bound by the same rules as any attorney and would be required to make an opening statement, question witnesses, and make relevant objections without the assistance of the court. Clark reaffirmed his decision to represent himself.

The district court then proceeded through a formal waiver inquiry in which it ascertained that Clark had received a copy of the complaint, understood the charges against him, understood that the maximum penalty for the crimes charged was up to fifteen years in prison and a $30,000 fine, was medically competent to represent himself, and understood that he had an absolute right to be represented -by an attorney. After providing Clark an opportunity to discuss his decision with the public defender, the district court granted Clark’s request and dismissed the public defender. The jury was empanelled, and the state gave its opening statement and began examination of its first witness.

On the following day Clark told the district court that he was a “layperson” and was “not qualified to represent himself.” He said he had less than twenty-four hours to prepare, did not have any sleep, was feeling stressed, and had made a mistake. He also asserted that he thought his public defender would assist him at trial and that it was his constitutional right to have her present. The district court reminded Clark that during the previous day’s proceeding, he waived his right to have an attorney represent him and that it had been repeatedly explained that the public defender would not assist at trial if he decided to represent himself. The state argued that Clark’s request was untimely and that, because witnesses had already been called, the request should be denied.

The district court denied Clark’s request to rescind self-representation or to have the public defender present to assist him. The judge explained that Clark had waived his right to counsel, that witnesses had been called, that jeopardy had attached, and that the court had told him prior to his waiver that the public defender would not act as standby counsel if Clark proceeded with self-representation.

The jury found Clark guilty of all charges. The district court sentenced him to concurrent prison terms, the longest of which was sixty months. Clark appeals his conviction.

ISSUES

I.Did the district court abuse its discretion in denying Clark’s request to substitute counsel?

II. Did the district court err in denying Clark’s request to have a public defender act as advisory counsel?

III. Did the district court abuse its discretion in denying Clark’s request to rescind self-representation?

ANALYSIS

I

The United States and Minnesota Constitutions provide a criminal defendant the right to have the assistance of counsel in his or her defense. U.S. Const, amend. VI; Minn. Const, art. I, § 6. The right to counsel includes a fair opportunity to secure an attorney of choice, but an indigent defendant’s right to representation does not include the right to choose which attorney will provide the representation. State v. Gassler, 505 N.W.2d 62, 70 (Minn.1993); State v. Vance, 254 N.W.2d 353, 358 (Minn.1977). A court will grant an indigent’s request for substitute counsel “only if exceptional circumstances exist and the demand is timely and reasonably made.” Vance, 254 N.W.2d at 358. The decision whether to grant a request for substitute counsel lies within the district court’s discretion. State v. Worthy, 583 N.W.2d 270, 279 (Minn.1998).

A defendant has the burden of showing the existence of exceptional circumstances. Id. Exceptional circumstances “are those that affect a court-appointed attorney’s ability or competence to represent a client.” State v. Gillam, 629 N.W.2d 440, 449 (Minn.2001). “General dissatisfaction or disagreement with counsel’s assessment of the case does not constitute ... exceptional circumstances.” Worthy, 583 N.W.2d at 279. Personal tension between defendant and counsel during trial preparation also does not constitute exceptional circumstances when it does not relate to counsel’s ability or competence to represent a defendant. State v. Voorhees, 596 N.W.2d 241, 255 (Minn.1999). Requests for substitute counsel are not timely when made “on the morning of trial” after jury voir dire has begun. Worthy, 583 N.W.2d at 278-79.

Clark requested substitute counsel the morning of trial, on the second day of jury voir dire. At that point, his request was not timely. In part, Clark’s stated reason was dissatisfaction with his appointed counsel’s opinion on what evidence would be admissible and her assessment of the strength of his case. These reasons do not constitute exceptional circumstances that affect counsel’s ability or competence to represent Clark. Although Clark told the court that his appointed attorney had “never” come to see him, the record shows that the appointed counsel who represented Clark at the beginning of his trial was present with him at a court appearance two months earlier. At a minimum, Clark and his appointed attorney had an opportunity to discuss his case at that appearance. At an appearance a month later, Clark told the district court that he was unable to retain private counsel and would proceed with the appointed attorney. Because Clark’s request was not timely and his allegations do not establish exceptional circumstances, we conclude that the district court did not abuse its discretion in denying the request for substitute counsel.

Clark also contends that he is entitled to a new trial because the district court incorrectly stated that “[u]nder the rules, [Clark] would not be reassigned a different lawyer from the Public Defender’s Office.” We agree that it would be an incorrect statement of the law to say that a criminal defendant may not have a different public defender under any circumstances. See State v. Lamar, 474 N.W.2d 1, 3 (Minn.App.1991) (noting district court’s statement that defendant could not have different public defender under any circumstances was inaccurate), review denied (Minn. Sept. 13, 1991). Nevertheless, in these circumstances, the statement was not inaccurate because Clark’s request was untimely and he failed to demonstrate exceptional circumstances. Because any overstatement in the court’s explanation of the law was harmless and Clark does not challenge the sufficiency of the evidence against him, Clark is not entitled to a new trial. See id. (concluding inaccuracy of district court’s explanation of law regarding substitution of counsel was harmless error).

II

On the third day of trial, Clark made two simultaneous requests: that he be allowed to rescind self-representation and that the district court appoint the previously dismissed public defender as his advisory counsel. In support of the latter request, Clark argued that he had a “constitutional right” to have the public defender present at trial. On appeal, Clark contends that Minn. Const, art. I, § 6, should be interpreted to establish the right of advisory counsel. We review issues of constitutional interpretation de novo. Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn.2004).

“Minnesota has a long tradition of assuring the right to counsel.” Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 831 (Minn.1991); see also Minn. Const, art. I, § 6 (providing that “[i]n all criminal prosecutions the accused shall enjoy the right ... to have the assistance of counsel in his defense”). The purpose of the right to counsel is to protect the layperson who lacks the skill and knowledge for self-representation. Friedman, 473 N.W.2d at 833. In Minnesota, this right has been expanded beyond criminal prosecution to those contexts that “present[] the same dangers that gave birth initially to the right itself.” Id. (quotation omitted). For example, the right to counsel extends to proceedings such as police interrogations, State v. Schabert, 218 Minn. 1, 9, 15 N.W.2d 585, 589 (1944), and circumstances in which a driver has been asked to submit to a chemical test under the implied-consent law. Friedman, 473 N.W.2d at 833. But the Minnesota Constitution has not been interpreted to establish a right to advisory counsel when a defendant exercises the right to self-representation, and we reject Clark’s argument that this case warrants such an interpretation for three reasons: (1) Clark knowingly, intelligently, and voluntarily waived his right to counsel; (2) the United States Constitution, which is substantially similar to our own in its provision for a right to an attorney, has not been interpreted to provide for the right to advisory counsel; and (3) the supreme court, in its promulgated rules of criminal procedure, has provided only for the discretionary appointment of advisory counsel.

First, Minnesota recognizes that the right to counsel can be waived and that criminal defendants have “a corollary constitutional right to choose to represent themselves in their own trial.” Worthy, 583 N.W.2d at 279 (citing Faretta v. California, 422 U.S. 806, 819-21, 95 S.Ct. 2525, 2533-34, 45 L.Ed.2d 562 (1975)). A defendant seeking to waive the right to counsel “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Id. at 276 (quotations omitted). To determine whether a waiver of the right to counsel is knowing, voluntary, and intelligent, district courts “ ‘should comprehensively examine the defendant regarding the defendant’s comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver.’ ” Id. (quoting State v. Camacho, 561 N.W.2d 160,173 (Minn.1997)); see also Minn. R.Crim. P. 5.02, subd. 1(4) (stating district court “shall ensure that a voluntary and intelligent written waiver ... is entered in the record.”); Melinda A. Nicholson, comment, The Constitutional Right to Self-Representation: Proceeding Pro Se and the Requisite Scope of Inquiry When Waiving Right to Counsel, 79 Tul. L.Rev. 755, 762-772 (2005) (discussing comprehensive inquiry methods that ensure defendant’s waiver is knowing, voluntary, and intelligent).

The record shows that the district court conducted a comprehensive examination of Clark to determine that he wished to waive his right to counsel. This inquiry included an examination of Clark’s comprehension of the charges against him, the maximum possible punishment, and his absolute right to be represented by an attorney. The court inquired into Clark’s mental competency. The court also discussed what would be required of Clark while representing himself, the benefits of being represented by counsel, and the consequences of self-representation. The district court repeatedly stressed that Clark would not have the assistance of standby counsel if he proceeded with self-representation. Finally, the district court provided time for Clark to discuss this matter with the appointed public defender. After approximately twenty pages of transcripted discussion and examination, the district court accepted Clark’s waiver. The record shows that Clark made a knowing, intelligent, and voluntary waiver of his right to counsel, and Clark’s waiver was made with the understanding that the public defender would not serve as advisory counsel if Clark exercised his right to self-representation.

Second, we recognize that our constitution is substantially similar to the United States Constitution. Compare U.S. Const, amend. VI (providing criminal defendant the right “to have the assistance of counsel for his defense” (emphasis added)), with Minn. Const, art. I, § 6 (providing criminal defendants the right “to have the assistance of counsel in his defense” (emphasis added)). Federal courts have not found a right to advisory counsel under the United States Constitution. See United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir.1998) (noting there is no constitutional right to standby counsel when defendant exercises constitutional right to self-representation). And, contrary to Clark’s argument on appeal, this state’s constitution is readily distinguishable from those state constitutions that have been interpreted to include a right to standby counsel or hybrid representation. See Hill v. Commonwealth, 125 S.W.3d 221, 225-26 (Ky.2004) (interpreting Kentucky Constitution, providing criminal defendant right to be heard “by himself and counsel,” to include right to proceed pro se with assistance of advisory counsel); State v. Sanders, 269 S.C. 215, 237 S.E.2d 53, 54 (1977) (recognizing right to assistance of counsel, even when criminal defendant exercises right to self-representation, because South Carolina Constitution provides for right of defendant to be heard “by himself or counsel, or both”).

Third, we note that, under former rules of criminal procedure, this court has recognized that advisory counsel was mandatory in felony and gross-misdemeanor cases when criminal defendants exercised their right to self-representation. See, e.g., State v. Savior, 480 N.W.2d 693, 694-95 (Minn.App.1992) (recognizing, under Minn. R.Crim. P. 5.02, subd. 1, counsel must be appointed for defendant financially unable to afford counsel in felony or gross-misdemeanor cases even if defendant exercises right to refuse assistance of counsel). But under the current rule, the district court’s decision to appoint advisory counsel is discretionary. See Minn. R.Crim. P. 5.02, subd. 2 (stating district court “may appoint ‘advisory counsel’ to assist the accused who voluntarily and intelligently waives the right to counsel”). Because Minnesota courts have the obligation to interpret our state constitution, a supreme court rule that provides for discretionary appointment of advisory counsel creates a reasonable inference that advisory counsel is not constitutionally required.

Clark also contends that the district court erred by not exercising its discretion to appoint advisory counsel under Minn. R.Crim. P. 5.02, subd. 2. At trial, when requesting advisory counsel, Clark told the district court that it was his expectation that the appointed public defender would assist him during his self-representation. But under MinmStat. § 611.26, subd. 6 (Supp.2003), public defenders “must not serve as advisory counsel.” Because the statute precludes appointment of a public defender to serve as advisory counsel, the district court was not required to exercise its discretion under rule 5.02, subdivision 2, to determine whether an attorney who was not a public defender should have been appointed as Clark’s advisory counsel.

Ill

Finally, Clark contends that the district court abused its discretion in denying his request to rescind self-representation. After waiving one’s right to counsel, a defendant does not have an absolute right to relinquish the right of self-representation. State v. Richards, 552 N.W.2d 197, 206 (Minn.1996). A defendant shall not be permitted to relinquish self-representation unless the request is timely and reflects extraordinary circumstances. Id. In exercising its discretion, the district court balances the request “against the progress of the trial to date, the readiness of standby counsel to proceed, and the possible disruption of the proceedings.” Id. at 206-07.

During the state’s case-in-chief, the third day after jury voir dire began, Clark told the district court that he was a “layperson” who was “not qualified to represent himself,” and he requested that the public defender be reappointed to represent him. After listening to arguments by Clark and the prosecuting attorney, the district court denied the request because Clark had waived his right to counsel with the understanding that advisory counsel would not be appointed, witnesses had been called, and jeopardy had attached. The transcript demonstrates that the district court properly exercised its discretion by considering the progress of the trial to date, possible disruption of the proceedings, and readiness of advisory counsel to take over. The district court did not abuse its discretion in denying Clark’s request.

DECISION

Criminal defendants have a constitutional right to be represented by an attorney and a corollary constitutional right to self-representation. Minnesota, however, does not recognize a right under our state constitution to advisory counsel when the right of self-representation is exercised. The district court made a substantial effort to ensure that Clark’s waiver of his right to counsel was made knowingly, intelligently, and voluntarily. The district court properly applied the law and did not abuse its discretion in denying Clark’s requests for substitute counsel, advisory counsel, and rescission of self-representation.

Affirmed.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    TIMELINE, LLC, petitioner, Appellant, v. WILLIAMS HOLDINGS # 3, LLC, Respondent.
    No. A04-2189.
    Court of Appeals of Minnesota.
    June 28, 2005.

      Douglas J. Dehn, Barna, Guzy & Stef-fen, Ltd., Coon Rapids, MN, for appellant.
    Kevin J. Dunlevy, Beisel & Dunlevy, P.A., Minneapolis, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s grant of partial summary judgment in favor of respondent, arguing that the district court erred by concluding that the redemption by respondent’s predecessor of a foreclosed residential property had substantially complied with the express requirements of Minn.Stat. § 580.25 (2002). Appellant also argues that respondent sought to obtain title to the property in question based upon an illegal mortgage prohibited by Minn.Stat. § 58.13, subd. 1(13) (2002). Finally, citing the equitable unclean-hands doctrine, appellant argues that respondent should not be allowed to benefit from its actions. Because we conclude that respondent complied with the express requirements of Minn.Stat. § 580.25 and because appellant is not authorized to prosecute an illegal-mortgage claim nor entitled to equitable relief, we affirm.

FACTS

In June 1995, Cheri Martin purchased residential property in Hennepin County and, over a two-year period, executed two mortgages against the property. A senior mortgage, initially held by Lakeland Mortgage Corporation, was assigned to Nor-west Mortgage, Inc., now known as Wells Fargo Home Mortgage, Inc. (Wells Fargo), soon after the property was purchased. Approximately two years later, Martin executed a junior home-equity mortgage, first held by BrooksAmerica Mortgage Corporation and subsequently assigned to Chase Manhattan Bank, now known as JP Morgan Chase Bank (JP Morgan), as trustee.

Because Martin had failed to make timely mortgage payments, Wells Fargo commenced foreclosure proceedings in the spring of 2003. On June 18, 2003, Wells Fargo foreclosed its senior mortgage, giving Martin six months — until December 18, 2003 — to redeem the property. On July 10, JP Morgan filed a notice of intent to redeem as a junior creditor on the second mortgage. In October and November, the Chesshire Home Owners Association (Chesshire) filed and recorded a lien statement and notice of its intent to redeem, claiming debts of $3,238.50 against the Martin property for unpaid fees. In December, Chesshire assigned its lien to appellant Timeline, LLC.

On December 18, 2003, Martin executed two promissory notes and two $500 mortgages in favor of respondent Williams Holdings # 3 (Williams # 3). With these mortgages, Williams # 3 filed its own notice of intent to redeem. Martin entered into the agreement with Williams # 3 because she was “without the financial ability to redeem from the [foreclosure and [was] in danger of [losing] the [property to foreclosure.” On December 23, 2003, JP Morgan assigned its second mortgage to Williams Holdings # 4 (Williams # 4). In this assignment, Residential Funding Corporation (Residential Funding) was listed on the document as JP Morgan’s attorney-in-fact.

On December 26, Timeline redeemed from the foreclosure of the first Wells Fargo mortgage as a junior creditor through Chesshire’s assignment of its lien. On December 31, Williams # 4 presented documents to redeem the property from Timeline. On January 5, 2004, the county sheriff issued a certificate of redemption to Williams # 4, certifying that it had redeemed the property on December 31. On January 8, Williams # 3 did the same and was also issued a certificate of redemption by the county sheriff.

Two weeks later, Timeline attempted to reject Williams #4’s redemption by returning to the county sheriff the money that it had received from the redemption. In a letter to the sheriff, Timeline stated that Williams #4 did not establish its right to redeem because it had “failed to produce certified copies” of documents evincing (1) a corporate name change by Chase Manhattan to JP Morgan and (2) a written power-of-attorney from Chase Manhattan to Residential Funding. Williams # 3 then sued to quiet title to the property in its favor, claiming that it was a lien creditor with a right to redeem from the sale of Martin’s home and asserting a slander-of-title claim. Timeline answered and counterclaimed to quiet title in its favor, claiming that Williams # 4 had failed to follow Minn.Stat. § 580.25 (2002), which sets forth the statutory requirements for a proper redemption. Williams # 3 moved for partial summary judgment, asserting that Williams #4’s redemption substantially complied with the statutory requirements. The district court determined that Williams # 4 had substantially complied with the statute and granted partial summary judgment on that claim. Following dismissal of Williams # 3’s slander-of-title claim, final judgment was entered. This appeal follows.

ISSUES

1. Did the district court err by granting summary judgment to Williams # 3 based on its conclusion that Williams # 4’s redemption had substantially complied with Minn.Stat. § 580.25 (2002)?

2. Can Timeline assert that Williams # 3 acquired title through use of an illegal mortgage created for the purpose of acquiring title?

3. Did the district court abuse its discretion by denying Timeline’s request for equitable relief?

ANALYSIS

Whether summary judgment was properly granted is a question of law, which we review de novo. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002). In doing so, we consider whether any genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence will be viewed in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Questions of statutory construction are also reviewed de novo. Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 702 (Minn.1999). When we interpret a statute, we look to see “whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (citation and quotation omitted). If the language in a statute is clear, we will rely on its plain meaning. Minn.Stat. § 645.16 (2004); Correll v. Distinctive Dental Servs., 607 N.W.2d 440, 445 (Minn.2000).

I.

Timeline argues that Williams # 3’s acquisition of property title is invalid because its predecessor, Williams #4, did not properly conform to the statutory requirements of Minn.Stat. § 580.25 (2002). Timeline asserts that the redemption was invalid because (1) there was no evidence of a corporate name change from Chase Manhattan to JP Morgan and (2) JP Morgan had not appointed Residential Funding as its attorney-in-fact. According to Timeline, without such an appointment, Residential Funding would not have had the authority to assign JP Morgan’s interest in the second mortgage to Williams #4.

The district court held that Williams # 4 had substantially complied with the redemption requirements of Minn.Stat. § 580.25. It observed, “Although Williams # 4 apparently provided evidence of neither Chase Manhattan Bank’s name change nor a written power of attorney from JP Morgan Chase Bank to Residential Funding, the court holds that a plain reading of Section 580.25(2) does not require such evidence.” The court also noted that Timeline failed to cite authority showing that “certificate^] evidencing a name change or a written power of attorney are anything more than formal requirements, if at all, of Section 580.25.”

As the district court correctly observed, the validity of a redemption depends on whether the party redeeming has substantially complied with the statutory redemption procedures. Sieve v. Rosar, 613 N.W.2d 789, 792 (Minn.App.2000). In order to promote certainty and predictability in real-estate transactions, the redemption statute is interpreted strictly according to its terms. In re Petition of Brainerd Nat’l Bank, 383 N.W.2d 284, 289 n. 7 (Minn.1986). But strict construction does not preclude redemption when formal defects do not prejudice the rights of junior lienors. Sieve, 613 N.W.2d at 792-93. Moreover, “[w]hile the essential elements of the statute must be strictly adhered to, failure to comply with the more formal requirements may be overlooked.” Id. at 793.

To establish the right to proceed with redemption, a lienor must record a notice of intent to redeem during the six-month redemption period. Minn.Stat. § 580.24 (2002). Once the mortgagor’s redemption period ends, each creditor with a legal or equitable lien has a successive seven-day period for redemption, proceeding by order of seniority. Id. To effectuate redemption during the appropriate period, a creditor must pay the appropriate amount to either the sheriff or the immediate senior creditor. Minn.Stat. § 580.25 (2002). The procedural requirements for creditors redeeming from a mortgage foreclosure is set forth by statute:

The person desiring to redeem shall pay to the person holding the right acquired under such sale, or for that person to the sheriff who made the sale, or a successor in office, the amount required by law for such redemption, and shall produce to such person or officer:
(1) a copy of ... the deed or mortgage ... certified by the officer in whose custody such ... files shall be, or the original deed or mortgage, with the certificate or record endorsed thereon;
(2) any assignment necessary to establish the person’s claim, verified by the affidavit of that person or a subscribing witness thereto, or some person acquainted with the signature of the assignor....;
(3) an affidavit of the person or the person’s agent, showing the amount then actually due on the person’s lien.

Id. These documents must be recorded within 24 hours after the redemption. Id. The recorder then completes a certificate of redemption, which must also be recorded. Minn.Stat. § 580.26 (2002). Once the certificate is recorded, the claims of all senior lienors or mortgagees are extinguished. Brainerd Nat’l Bank, 383 N.W.2d at 288-89.

A. Corporate Name Change

Williams # 4 did not present a certificate of name change at the time it presented its redemption documents to the sheriff. Citing Minn.Stat. § 507.411 (2002), Timeline contends that this omission constitutes a lack of substantial compliance with the statutory-redemption procedures of Minn.Stat. § 580.25. The district court held that such evidence was not expressly required by the statute. Even though Timeline did not address this issue in its brief, the issue was raised in its reply brief. Normally, issues not raised or argued in an appellant’s brief are waived and cannot be revived in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n. 2 (Minn.App.1990), review denied (Minn. Sept. 28, 1990); see also Minn. R. Civ.App. P. 128.02, subd. 3 (“The reply brief must be confined to new matter raised in the brief of the respondent.”). We will, however, review this issue in the interest of justice. See Minn. R. Civ.App. P. 103.04 (appellate court has discretion to review any matter that the interest of justice requires).

Minn.Stat. § 580.25, itself, does not require a certificate of name change in order to effectuate a redemption. But Minn.Stat. § 507.411 provides in part:

When a change in the name or identity of a corporate mortgagee or assignee of the mortgagee is caused by or results from a merger, consolidation, amendment ... or conversion ..., a mortgage assignment, satisfaction, or release that is otherwise recordable and that specifies in the body of the instrument the merger, consolidation, amendment, or conversion event causing the change in name or identity is in recordable form. The assignment, satisfaction, or release is entitled to be recorded in the office of the county recorder or filed with the registrar of titles, without further evidence of corporate merger, consolidation, amendment, or conversion. For purposes of assigning, satisfying, or releasing the mortgage, the assignment, satisfaction, or release is prima facie evidence of the facts stated in it with respect to the corporate merger, consolidation, amendment, or conversion, and the county recorder and the registrar of titles shall rely upon it to assign, satisfy, or release the mortgage.

(Emphasis added.) While this particular statutory provision has never been interpreted in Minnesota, its plain meaning is clear enough — documentation of a name change need not be recorded, so long as the information is present on the filed underlying document itself. As one commentator notes, “[a] corporate merger assignment, satisfaction or release reciting a merger, consolidation or charter amendment is prima facie evidence of the facts stated on the assignment, satisfaction or release, thus eliminating the need to file the supporting documentation.” 6A Richard S. Gillman, Minnesota Practice § 48.24 (Supp.2004) (emphasis added).

The assignment-of-mortgage document filed in this instance was signed by Residential Funding as attorney-in-fact for “JP MORGAN CHASE BANK AS TRUSTEE, C/O RESIDENTIAL FUNDING CORP., FKA CHASE MANHATTAN BANK AS TRUSTEE, C/O RESIDENTIAL FUNDING CORP.” (Emphasis added.) For the limited purposes of redemption, further evidence of the corporate name change from Chase Manhattan Bank to JP Morgan Chase Bank need not have been submitted to the sheriff in order to redeem. Requiring corporate-name-change documentation in the redemption context is exactly the kind of “more formal requirement[] [that] may be overlooked.” Sieve, 613 N.W.2d at 793.

B. Attorney-in-Fact

Timeline next argues that Williams # 4 failed to provide supporting documentation to prove that Residential Funding was Chase Manhattan’s attorney-in-fact. The district court held that Minn.Stat. § 580.25 does not require the filing of such documentation in order to effectuate a valid redemption. Timeline maintains that while such evidence is not explicitly mandated by Minn.Stat. § 580.25, it is required under Minnesota law governing power of attorneys. Thus, the ultimate question is whether Williams # 4 was required to file evidence that Residential Funding was attorney-in-fact for JP Morgan in order to effectuate a valid redemption under Minn. Stat. § 580.25.

For contextual purposes, Minn.Stat. § 523.01 (2002) explains when one party is authorized to serve as another’s attorney-in-fact:

A person who is a competent adult may, as principal, designate another person or an authorized corporation as the person’s attorney-in-fact by a written power of attorney. The power of attorney is validly executed when it is dated and signed by the principal and, in the case of a signature on behalf of the principal, by another, or by a mark, acknowledged by a notary public. Only powers of attorney validly created pursuant to this section or section 523.02 are validly executed powers of attorney for the purposes of sections 523.01 to 523.24.

Id. (emphasis added). The document at issue here — JP Morgan’s assignment of the mortgage to Williams # 4 — was signed by an officer of Residential Funding, and “acknowledged by a notary public.” Id. “If the exercise of the power of attorney requires execution and delivery of any instrument which is recordable, the power of attorney and any affidavit authorized under sections 523.01 to 523.24 when authenticated for record in conformity with section 507.24, are also recordable.” Minn. Stat. § 523.05 (2002). Under Minn.Stat. § 507.24, subd. 1 (2002), “[t]o entitle any conveyance, power of attorney, or other instrument affecting real estate to record, it shall be executed, acknowledged by the parties executing the same, and the acknowledgment certified, as required by law.” Id.

But the Minnesota Supreme Court has explained that the very “purpose of redemption is to allow junior creditors to preserve their interests, which would otherwise be extinguished by foreclosure of senior liens. The record notice required in the redemption procedure is essential to preserving these rights and we have required strict compliance with the notice provisions of the statute.” Brainerd Nat’l Bank, 383 N.W.2d at 289 (citation omitted); see also Taber v. Raihbun, 168 Minn. 370, 372, 210 N.W. 95, 96 (1926) (“The purpose of the statute requiring the affidavit is to make a record for the information of subsequent lienholders who may desire to redeem.”); Tinkcom v. Lewis, 21 Minn. 132, 140-41 (1874) (“The purpose of the provision ... [is] to furnish the sheriff with evidence of the right of the assignee or creditor to redeem.... ”).

In Sieve v. Rosar, we addressed the procedural requirements necessary in order to effectuate a valid redemption. 613 N.W.2d 789. We reversed a district court’s grant of summary judgment on the ground that the respondent did not make payment to the proper party within the time limitation set forth in Minn.Stat. § 580.25 (1998). Id. at 794-95. Enforcing the positive terms of Minn.Stat. § 580.25, we concluded that “the payment must be received by the proper party within the redemption period.” Id. at 794.

We do not see such noncompliance here. Given the very purpose of redemption and the affirmative requirements set forth in Minn.Stat. § 580.25, to require supporting documentation of Residential Funding’s status as JP Morgan’s attorney-in-fact would be exactly the kind of “more formal requirement!] [that] may be overlooked.” Sieve, 613 N.W.2d at 793; see also Tinkcom, 21 Minn. at 141 (“Merely formal deviations or irregularities may be overlooked; but there must be a substantial compliance with the express requirements of the statute, in order to [effect] a valid redemption.”) (emphasis added); cf. Morrison v. Mendenhall, 18 Minn. 232, 241, 18 Gil. 212, 227 (1872) (concluding that the power to execute an assignment by an attorney-in-fact need not be recorded because the foreclosure statute “requires no such record ... [and such record] is not a prerequisite to the right to foreclose”).

Notably, Minn.Stat. § 580.25 does not require proof of attorney-in-fact status. Here, Williams # 4 — as the “person desiring to redeem” — needed to submit the following items: (1) payment in the amount required by law for the redemption, (2) a copy of the mortgage, (3) a copy of “any assignment necessary to establish the person’s claim, verified by the affidavit of that person or a subscribing witness thereto,” and (4) an affidavit of the person or his/her agent, showing the amount then actually claimed due on the person’s lien and required to be paid on the lien in order to redeem from the person. Minn.Stat. § 580.25. On December 31, 2003, the record reflects that Williams #4 presented (1) a cashier’s check, (2) a copy of the home-equity mortgage, (3) a copy of the assignment, and (4) an affidavit of amount due in order to redeem the property. Thus, the express requirements of the statute were met.

While this controversy might have been avoided had Williams # 4 attached an affidavit to provide definitive proof of Residential Funding’s status as JP Morgan’s attorney-in-fact, we cannot say that this technical oversight invalidates the redemption before us. An assignment-of-mortgage document in the record shows that JP Morgan was assigned the second home-equity mortgage from BrooksAmerica and that Residential Funding was JP Morgan’s attorney-in-fact. The document was drafted by Residential Funding’s counsel, who is also Williams # 3’s counsel on this appeal. But there is no reason to assume that Residential Funding was not JP Morgan’s attorney-in-fact for redemption purposes. In its brief, Timeline seems to impliedly doubt the authenticity of the assignment-of-mortgage document, claiming that Residential Funding might not have been authorized to act as JP Morgan’s attorney-in-fact, and therefore, that its redemption was invalid. But at oral argument, Timeline conceded that the procedure employed here was not a “hoax.” And while it explained that no evidence of Residential Funding’s attorney-in-fact status had ever been produced, it also acknowledged that such evidence had never been requested throughout this litigation.

Importantly, and as the district court noted, Timeline has failed to offer conclusive authority to show that such proof is required to redeem. Nor has Timeline offered any evidence to call Residential Funding’s attorney-in-fact status into question. Were such evidence before us, we would have a very different question to resolve. The very purpose of the redemption statute is “to furnish the sheriff with evidence of the right of the assign-ee or creditor to redeem.” Tinkcom, 21 Minn, at 141. Williams #4 has done as much. Thus, for the limited purpose of effectuating a valid redemption in Minnesota, we conclude that proof of attorney-in-fact status is not expressly required and we will not disturb the redemption of Martin’s foreclosed residential property by Williams #4. Accordingly, Timeline does not have a valid interest in the property because its rights in the property were satisfied by William # 4’s redemption.

II.

Timeline also argues that Williams # 3 attempted to acquire title by using an illegal mortgage created for the purpose of acquiring title to Martin’s property. The district court ruled that the statute prohibiting such transactions does not create a private cause of action and that any relief sought under the statute must be pursued through Minn.Stat. § 8.31, subd. 3a (2002), commonly referred to as the “private attorney general statute.”

Minn.Stat. § 58.13, subd. 1(13) (2002), provides:

No person acting as a residential mortgage originator or servicer ... shall:
(13) make or assist in making any residential mortgage loan with the intent that the loan will not be repaid and that the residential mortgage originator will obtain title to the property though foreclosure.

The district court relied upon an unpublished decision of a federal district court for the proposition that a violation of Minn. Stat. § 58.13 (2002) must be brought pursuant to the private-attorney-general statute, Minn.Stat. § 8.31, subd. 3a. Davis v. U.S. Bancorp, No. Civ. 02-505, 2003 WL 21730102, *4 (D.Minn.2003). We agree and note that such rights are only given “to those claimants who demonstrate that their cause of action benefits the public.” Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000). We therefore conclude that, because the transaction at issue here is a private one, Timeline is barred from pursuing a claim under the private-attorney-general statute.

III.

Finally, citing the unclean-hands doctrine, Timeline argues that because Williams # 3 acted inequitably in this case, it should not benefit from such actions. The doctrine of unclean hands is reflected in the equitable maxims that “he who seeks equity must do equity and that he who comes into equity must come with clean hands.” Johnson v. Freberg, 178 Minn. 594, 597, 228 N.W. 159, 160 (1929). It is within the district court’s discretion to grant equitable relief and “[o]nly a clear abuse of that discretion will result in reversal.” Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979).

Timeline maintains that because it was Williams #3’s intention to obtain title to the Martin property through foreclosure and that Minn.Stat. § 58.13, subd. 1(13), prohibits such actions, the district court should not have granted relief to a party with “unclean hands.” But Williams # 3 did not admit such nefarious motives. In fact, during discovery Williams # 3 specifically denied “that its intent was to obtain title to Cheri Martin’s home.” The district court’s decision not to grant equitable relief to Williams # 3 on this record was not an abuse of discretion.

DECISION

Because the district court correctly held that Williams #4 substantially complied with the essential elements of Minn.Stat. § 580.25 (2002), and did not need to provide evidence of a corporate name change or attorney-in-fact status, we affirm. In addition, the district court did not err by denying relief to Williams # 3 under Minn. Stat. § 58.13, subd. 1(13) (2002), or abuse its discretion by denying equitable relief to Timeline.

Affirmed.

      . In 2004, the redemption statute was amended. See 2004 Minn. Laws ch. 234, § 5 (amending Minn.Stat. § 580.25). When rights affected by an amended law vest prior to the change in the law, we apply the law in effect at the time of the transactions at issue. Interstate Power Co. v. Nobles County Bd. of Comm'rs, 617 N.W.2d 566, 575 (Minn.2000). Accordingly, we cite the 2002 version of the Minnesota Statutes, which were in effect at the time of the transaction at issue here.

      . While the seniority of the liens has not been challenged here, we note that seniority is usually determined by the chronological order in which liens or mortgages are recorded. United States v. Dairy Farm Leasing Co., 747 F.Supp. 1335, 1338 (D.Minn.1990).

      . In addition, the junior home-equity mortgage lists Residential Funding as its servicer. The mortgage was first held by BrooksAmeri-ca Mortgage Corporation and was later assigned to Chase Manhattan Bank — now known as JP Morgan — as trustee.

      . In addition, this court has recently noted that the Department of Commerce has jurisdiction over enforcement of the Minnesota Residential Mortgage Originator and Servicer Licensing Act, Minn.Stat. §§ 58.01-58.17 (2002), which includes Minn.Stat. § 58.13, subd. 1(13). See Pomrenke v. Comm’r of Commerce, 677 N.W.2d 85, 91 (Minn.App.2004).


author: STONEBURNER, Judge.

text:
    In the Matter of the Child of A.S. and A.M., Parents.
    Nos. A04-2344, A04-2357.
    Court of Appeals of Minnesota.
    July 5, 2005.

      David G. Kuduk, Jessica L. Sterle, Legal Aid Service of Northeast Minnesota, Grand Rapids, MN, for appellant A.S.

      Daniel L. Griffith, Griffith Law Office, International Falls, MN, for appellant A.M.
    Jennifer J. Hasbargen, Koochiching County Attorney, Rodney Otterness, Assistant County Attorney, International Falls, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge; STONEBURNER, Judge; and DIETZEN, Judge.
   OPINION

STONEBURNER, Judge.

In this consolidated appeal, a mother and father challenge the termination of their parental rights, asserting that the district court erred by applying the presumption of palpable unfitness in Minn. Stat. § 260C.301, subd. 1(b)(4) (2004), to each of them. Mother and father also argue that the record as a whole rebuts any presumption of unfitness. Father also challenges venue in Koochiching County. Because (1) the district court did not apply the presumption of palpable unfitness to father and did not err in applying the presumption to mother; (2) the record does not rebut the presumption of mother’s unfitness; (3) the record is sufficient to support the termination of parental rights as to father; and (4) venue was appropriate, we affirm.

FACTS

Appellant A.M. (father) is a registered sex offender, who was convicted in Hawaii in 1997 of two counts of sexual assault in the third degree for, in 1995, placing his hand on the vagina of a child who was less than 14 years old. The district court found that this crime would constitute criminal sexual conduct in the second degree under Minn.Stat. § 609.343, subd. 1(a) (2004), and that finding is not disputed on appeal. Father moved to Koochiching County, where his parents reside, and supervision of his probation was transferred to Koochiching County. Father successfully completed sex-offender treatment in Minnesota on January 4, 2001, and was discharged from probation on January 28, 2002.

In June 2003, the district court transferred permanent legal and physical custody of three children of appellant A.S. (mother) to her mother and step-father (maternal grandparents). Mother consented to the transfer on the record, on the day a permanency trial was scheduled to begin, in exchange for Koochiching County Social Services’ agreement not to seek a TPR. Mother agreed that the entire record in that proceeding, which was incorporated by reference into the district court’s findings and disposition order, established the necessary statutory criteria for permanent transfer of custody.

Mother and father met through mother’s then-husband, Chad Story. Story and father met in sex-offender treatment that both were attending as a condition of probation for sexual offenses against children. Mother became pregnant by father and delivered a daughter on June 4, 2004, in Duluth, where mother had gone for medical treatment related to the pregnancy. Because of prior involvement with mother and concern about father’s prior conviction, the county obtained an order for emergency protective care of appellants’ newborn daughter, removed her from the hospital in Duluth, and placed her in foster care in Koochiching County. The county then initiated a CHIPS action' and a petition for TPR, asserting both that mother is palpably unfit to be a party to the parent and child relationship under Minn.Stat. § 260C.301, subd. 1(b)(4) (2004), and that father had been convicted of a crime that falls under the definition of egregious harm under MinmStat. § 260C.301, subd. 1(b)(6).

At the TPR trial, father and mother both asserted a Fifth Amendment privilege against self-incrimination and declined to testify. Mother did not present any evidence. Father presented one witness on his behalf.

The district court concluded that the presumption of palpable unfitness in Minn. Stat. § 260.301, subd. 1(b)(4), applies to mother and was not rebutted. The district court also concluded that father poses a serious threat to the physical and sexual safety of the child due to having inflicted egregious harm on a child, as defined in MinmStat. § 260C.007, subd. 14(10) (2004). The district court found that it is in the best interests of the child to terminate mother’s and father’s parental rights. These appeals followed and were consolidated by this court.

ISSUES

I. Was venue appropriate in Kooc-hiching County?

II. Did the district court err by finding that the transfer of permanent custody of mother’s other children pursuant to an agreement between mother and the county was an involuntary transfer, triggering the presumption of palpable unfitness under Minn. Stat. § 260.301, subd. 1(b)(4) (2004), that was not rebutted?

III.Did the district court err by terminating father’s parental rights?

ANALYSIS

I. Venue

Father argues that the Koochiching County District Court lacked jurisdiction because appellants and the child were in St. Louis County when the child was removed from appellants’ care. Father relies on Minn.Stat. § 260C.303 (2004), which provides that venue for TPR proceedings “is either in the county where the child resides or is found,” unless a protective order is in force at the time a petition for TPR is filed, in which case “the court making the order shall hear” the TPR proceeding unless it transfers the proceeding. But in this case, a protective CHIPS order issued by Koochiching County was in force at the time the petition for TPR was filed. And Minn.Stat. § 260C.121, subd. 1 (2004), provides that “[w]hen it is alleged that a child is in need of protection or services, venue may be in the county where the child is found, in the county of residence, or in the county where the alleged conditions causing the child’s need for protection or services occurred.” Although the child was born in Duluth, the record demonstrates that mother and father are residents of Koochiching County and that is where they intended to reside with the child. Appellants have not challenged the district court’s finding that the parties were only in St. Louis County for medical purposes. We find no merit in father’s argument that venue of the TPR was not appropriate in Koochiching County-

II. Standard of review

An appellate court reviews a TPR to determine whether the district court’s “findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.” In re Welfare of Child of W.L.P. 678 N.W.2d 703, 709 (Minn.App.2004). Parental rights may only be terminated for “grave and weighty reasons.” Id. We defer to the district court’s findings, but exercise “great caution” in proceedings to terminate parental rights and examine the evidence to determine whether it is clear and convincing. Id. “Considerable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn.1996). The paramount consideration is the best interests of the child, and these interests are balanced against parental rights. In re Welfare of M.D.O., 462 N.W.2d 370, 378 (Minn.1990).

The county must prove its case by clear and convincing evidence. Minn. R. Juv. Protect. P. 39.04. But when a parent is determined to be palpably unfit under Minn.Stat. § 260C.301, subd. 1(b)(4) (2004), the burden shifts to the parent to prove that he or she is fit to parent the child. W.L.P., 678 N.W.2d at 709.

III. Presumption of palpable unfitness as applied to mother

A district court may terminate parental rights on the basis of one or more of the nine grounds listed in Minn.Stat. § 260C.301, subd. 1(b). One of the statutory grounds for TPR is

that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child. It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated or that the parent’s custodial rights to another child have been involuntarily transferred to a relative under section 260C.201, subdivision 11, paragraph (e), clause (1), or a similar law of another jurisdiction.

Minn.Stat. § 260C.301, subd. 1(b)(4).

Mother argues that because she consented to the transfer of permanent custody of her other children, the transfer was not involuntary, and the district court erred by applying the presumption of palpable unfitness to her. We disagree.

The juvenile court may voluntarily terminate the rights of a parent to a child “with the written consent of a parent who for good cause desires to terminate parental rights.” Minn.Stat. § 260C.301, subd. 1(a). Under caselaw, good cause for voluntary termination exists under a variety of circumstances usually related to the best interests of the child. See W.L.P., 678 N.W.2d at 712 (citing eases finding good cause based on best interests of child but holding good cause did not exist when sole motivation was avoiding financial burden of supporting children). There is no specific statutory provision for voluntary transfer of permanent legal and physical custody to a relative but 'because such a transfer of custody is a statutorily approved permanency disposition, we conclude that a parent may voluntarily transfer custody to a relative for good cause.

In W.L.P., we rejected a blanket rule that an admission to an involuntary TPR petition converts the petition into a voluntary petition. Id. at 712. We noted that circumstances that justify involuntary termination under section 260C.301, subd. 1(b), do not necessarily justify voluntary termination under section 260C.301, subd. 1(a), and we stated that there are “at least” two procedures parents can utilize to convert an involuntary petition into a voluntary petition. Id. We said parents can;

(1) file a new petition supported by a factual basis articulating good cause and cite to Minn.Stat. § 260C.301, subd. 1(a), as the statutory authority for the petition; or (2) formally amend the original petition to cite to Minn.Stat. § 260C.301, subd. 1(a), as the statutory basis for the petition.

Id. We conclude that the same reasoning applies to a permanent transfer of custody, which is an alternative permanency placement to TPR. See Minn.Stat. § 260C.201, subd. 11(d). Therefore, mother’s consent to the transfer did not automatically change the transfer from involuntary to voluntary, and we look to the record to see if there is any support for a conclusion that transfer of custody was voluntary and for good cause.

On appeal in this case, mother proposes several reasons that would show “good cause” for mother’s voluntary transfer of custody, but the only evidence in the record is that mother acknowledged that the record before the district court established the statutory criteria for an involuntary transfer, and she consented to the transfer to avoid termination of her parental rights as to these children. As the district court noted in its findings, mother took no affirmative steps to indicate that she was voluntarily terminating her custodial rights as opposed to admitting that statutory grounds for terminating custodial rights existed, and mother specifically agreed that the record supported the county’s petition for an involuntary transfer of custody. Both at the time of the transfer and in the case now before us, the district court made specific findings that statutory grounds for the transfer existed, and the conditions that led to out-of-home placement of the children had not been corrected despite reasonable efforts by the county. Because mother stipulated that the record supported an involuntary transfer of custody and failed to assert that her agreement constituted a voluntary transfer, we conclude that clear and convincing evidence supports the district court’s finding that the transfer of permanent custody of mother’s three older children was involuntary, making the presumption of palpable unfitness in section 260C.301, subd. 1(b)(4), applicable to her.

We take this opportunity to caution counsel and the district courts to make a clear record to transform a petition for involuntary permanency placement into a voluntary relinquishment of parental rights for good cause. Without clear evidence that an agreement relinquishing parental rights is voluntary and for good cause and is not merely an admission of ground for an involuntary placement, the presumption of palpable unfitness may not be avoided.

In the case before us, the county was required to file a TPR as to mother’s rights to her child with father under Minn. Stat. § 260C.301, subd. 3(a) (2004), which provides that the county attorney shall file a TPR petition within 30 days after a determination that a parent is the subject of an order involuntarily transferring permanent legal and physical custody of another child to a relative under section 260C.201, subd. 11(d)(1). And application of the presumption of palpable unfitness relieved the county of the duty to make reasonable efforts to reunite the child with mother. Minn.Stat. § 260.012(a)(l)(iv) (2004). Application of the presumption of unfitness also shifted the burden of proof to mother to rebut the presumption. In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn.App.2003) (holding that because of the presumption of mother’s unfitness, the district court need not establish independent reasons for termination, rather, it is mother’s burden to establish the existence of conditions that show her fitness to parent).

Despite her failure to present any evidence or witnesses and her invocation of the Fifth Amendment, mother argues that the record as a whole rebutted the presumption of her unfitness. We disagree. There is little evidence in the record that mother has remedied any of the conditions that led to permanent transfer of custody of the three older children. Significantly, mother was unable to ensure that the older children would not have unsupervised contact with convicted child-sex-offender Chad Story, and mother did not present any plan to protect her newborn child from potential harm by convicted child-sex-offender father. The presumption of palpable unfitness was not rebutted, and the district court did not err in terminating mother’s parental rights to the child she had with father.

IV. Termination of father’s parental rights

Father argues that the district court erroneously applied a presumption of palpable unfitness to him. We disagree. The record is clear that a presumption of palpable unfitness under Minn.Stat. § 260C.301, subd. 1(b)(4), was not applied to father. The district court properly relieved the county of efforts to “reunify” father and child because father had inflicted egregious harm on another child in his care.

The statute provides for TPR if:

a child has experienced egregious harm in a parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent’s care....

Minn.Stat. § 260C.301, subd. 1(b)(6). “Egregious harm” is defined as

the infliction of bodily harm to a child or neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care. The egregious harm need not have occurred in the state or in the county where a termination of parental rights action is otherwise properly venued. Egregious harm includes, but is not limited to ... conduct toward a child that constitutes criminal sexual conduct under sections 609.342 to 609.345.

Minn.Stat. § 260C.007, subd. 14 (2004). The statute does not require that the parent has inflicted egregious harm on his own child, but rather, that a child has experienced egregious harm in the parent’s care, which demonstrates the parent’s grossly inadequate ability to provide minimally adequate parental care to any child. In re Welfare of A.L.F., 579 N.W.2d 152, 155-56 (Minn.App.1998).

In this case, it is undisputed that father was convicted of the equivalent of a violation of Minn.Stat. § 609.343, subd. 1(a) (2004), for the act of placing his hand on the vagina of a young child. In addition, the record contains detailed information about father’s admitted sexual acts with other children as young as six months who were in his care and descriptions of his fantasies involving babies.

Due to father’s conviction, the county was required to file a TPR under Minn. Stat. § 260C.301, subd. 3(a), and was relieved of reunification efforts under Minn. Stat. § 260.012(a)(l)(i) (2004). The county presented substantial evidence supporting its case. Witnesses who had worked with father extensively when he was in court-ordered sex-offender treatment testified at length. Each testified about father’s sexual activities with, and sexual fantasies about, young children and babies; his or her concerns about father being around children without adequate supervision; and the ongoing need for father to maintain a safety plan and support system.

Father chose not to testify and presented only limited evidence in an attempt to rebut the county’s evidence that he poses a danger to his child. The record reflects that, to his credit, father completed sex-offender treatment, was discharged from probation that resulted from his criminal conviction, and has not been reconvicted. But father conceived a child with mother, who, at the time, was married to Story, a diagnosed pedophile and convicted child sex offender, and had demonstrated an inability to ensure proper supervision for the children in Story’s presence. Father has failed to make any effort to update his safety plan to take into consideration his changed circumstances since he left sex-offender treatment and father has failed to follow his existing safety plan by keeping a dog despite the prohibition in the plan to having a dog, which was designed to minimize triggering events for his propensity toward bestiality.

Father’s one witness, a psychologist who had administered the MMPI and met with father for approximately one and a half hours, testified that despite father’s history, she believed he could be in a position to parent, but acknowledged that spending a lot of time alone with children could be a trigger for re-offending. This witness advised father to update his safety plan and offered to work with him, but there is no evidence that father has followed through with this offer and no testimony as to how the witness proposed to provide accessible ongoing services to father.

The county’s witnesses, who had worked extensively with father in the court-ordered sex-offender treatment program, expressed concern about father’s failure to update his safety plan, his violation of the plan by keeping a dog, and the import of his comment to a visitation supervisor that his infant daughter was “batting her eyes” at him, suggesting father’s ongoing sexual-ization of infants. All of these witnesses opined that father is not able to be an appropriate parent to a young child. One psychologist testified that despite the fact that father has not previously been diagnosed as a pedophile, he meets all of the DSMV-IV criteria for such a diagnosis.

In addition, the county social worker testified about her concern that mother and father planned to live with the baby in a trailer in Big Falls, where few support services are available for father, especially in light of mother’s demonstrated inability to maintain boundaries between her former sex-offender husband and her older children. Although father’s parents also live in Big Falls, the social worker expressed concern over their minimizing of father’s sexual behavior and lack of understanding about how mother came to lose custody of her older children.

The record fully supports the district court’s finding that father “poses a serious threat to the physical and sexual safety of this child and will continue to pose such a threat into the undetermined future and that [mother] is incapable of providing the necessary supervision and care to assure the safety of this child around [father].” The record also supports the district court’s explicit findings that father inflicted egregious harm on other children and is palpably unfit to parent this child, independent grounds that support the determination to terminate father’s parental rights.

DECISION

This case was properly venued in Kooc-hiching County. Because mother failed to transform the petition for involuntary permanent placement of her three older children to a voluntary placement, and the district court properly applied a presumption of palpable unfitness to mother. Mother failed to rebut the presumption of palpable unfitness, and the district court did not err in terminating her parental rights. Clear and convincing evidence supports the district court’s findings that father inflicted egregious harm on another child and is palpably unfit to parent, warranting termination of his parental rights.

Affirmed.

      . Two of these children were fathered by mother’s husband, Chad Story, a convicted child sex offender, who also agreed to the custody transfer. One child was fathered by Matthew Schrum, also a convicted sex offender.

      . The factual bases for the transfer were mother's failure to prevent unsupervised visits by Story and her failure to correct the unsanitary and unlivable condition of the home despite the county’s reasonable efforts.

      .Mother subsequently divorced Chad Story and, after the trial that is the subject of this appeal, married father.

      . The district court correctly noted that the reference in the statute to Minn.Stat. § 260C.201, subd. 11(e)(1) (2004) should be a reference to Minn.Stat. § 260C.201, subd. 11(d)(1) (2004). As we have noted in an unpublished opinion, a 2001 amendment to section 260C.201 moved the contents of paragraph (e) to paragraph (d), but section 260C.301, subd. 1(b)(4) was not amended to reflect this change. See In re Welfare of Children of Meyer, No. C6-02-1968, 2003 WL 21061213 *3 n. 1 (Minn.App.), review denied (Minn. June 25, 2003) (concluding that intent of legislature is for section 260C.301, subd. 1(b)(4) to reference Minn.Stat. § 260C.201, subd. 11(d)(1)).

      . W.L.P. involved TPR, so the petition referred to in that case was a termination petition. 678 N.W.2d at 706. The presumption also applies, however, to a transfer of custody. In the case involving mother’s other children, the county petitioned for TPR and, in the alternative, permanent transfer of custody. Mother agreed to transfer of custody to avoid TPR.


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 111
    Cheryl Ann BRANDNER, Plaintiff and Appellee v. Allan Michael BRANDNER, Defendant and Appellant.
    No. 20040236.
    Supreme Court of North Dakota.
    June 22, 2005.

      William D. Schmidt, Schmitz & Schmidt, Bismarck, N.D., for plaintiff and appellee.
    Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Allan Michael Brandner appealed from a judgment granting Cheryl Ann Brandner a divorce, dividing their marital property, and setting his child support obligation for their two children. Cheryl cross-appealed from the part of the judgment setting the effective date of Allan’s child support obligation. We conclude the trial court did not err in setting the effective date of Allan’s child support obligation. We further conclude, however, the trial court erred as a matter of law in treating Allan’s business debts as non-marital property and erred as a matter of law in calculating Allan’s child support obligation. We affirm in part, reverse in part, and remand for reconsideration of the property distribution and for recalculation of Allan’s child support obligation.

I

[¶ 2] Cheryl and Allan, ages 48 and 51 respectively at the time of trial, were married on October 5, 1985, in Herried, South Dakota. During the marriage, the couple had two children who were born in August 1987 and June 1990. When they married, Allan was working for the Soo Line Railroad where he had been employed since 1971. The couple lived in Aberdeen, South Dakota, and Allan commuted to work. In 1991, Allan became employed with DMVW Railroad as manager of right-of-way maintenance and the family moved to Bismarck. In 1995, Allan left his $38,000 per year job with the railroad and became employed with R & R Railroad Construction at an annual salary of $50,000. However, Allan left the railroad construction job after a few months and began working at a Bismarck livestock company. He later entered into a business relationship with and worked at East River Livestock in Linton, a livestock sales barn that eventually failed. At the time of trial, Allan had potential debts from this failed business venture in excess of $600,000. The debts included personal loans, a bond obligation and a small business loan for the sales barn. In the meantime, Cheryl had been working at a medical clinic in Bismarck since 1992 and had been doing part-time transcription work at home since 1996.

[¶ 3] Financial problems became a concern for the couple. Cheryl testified that Allan was primarily responsible for handling the family’s financial affairs and Allan would not share any of his business information with her. Allan testified that when he attempted to discuss his business dealings with Cheryl, she refused and avoided the subject. Cheryl commenced this divorce action in April 2003 and learned that Allan had not filed the family’s tax returns for the 1995 through 2003 tax years. Allan explained that he failed to file the tax returns because he “couldn’t get all the documentation from Cheryl on her checking account” for purposes of claiming tax deductions. Cheryl contacted an accountant and filed tax returns for herself back to 1999, the earliest year allowed. Allan testified he was currently living with his parents on their farm in South Dakota and was receiving about $400 per month in income from them. After Cheryl commenced the divorce action, Allan provided no financial support for Cheryl or the children.

[¶ 4] In June 2004, the trial court granted the divorce. The court awarded Cheryl marital property with a net value of $43,747, and Allan marital property with a net value of $24,325. The court also awarded each party 50 percent of Allan’s Tier II railroad retirement benefits of $450 per month when he retires or reaches retirement age. The court further found that “most of Allan’s business debts were not related to the marital estate and are his own responsibility,” and allocated those potential debts of $659,771 to Allan. The court awarded custody of the children to Cheryl and ordered Allan to pay child support in the amount of $723 per month. In calculating the child support obligation, the court found that Allan “is underemployed and that he is capable of earning $38,000 per year.” Although Cheryl requested retroactive child support, the court ordered that, “[g]iven the debts Allan will be paying ... it [is] in the best interests of all concerned that the child support payments will begin with the month of June, 2004.”

II

[¶ 5] On appeal, Allan argues the trial court’s property and debt distribution was inequitable and erroneous because it was based on inappropriate factors.

[¶ 6] Under N.D.C.C. § 14-05-24(1), when a divorce is granted, the trial court must make an equitable distribution of the property of the parties. All of the marital assets and debts must be included for the court to distribute the marital assets under the Ruff-Fischer guidelines. Horner v. Horner, 2004 ND 165, ¶ 9, 686 N.W.2d 131. Under these guidelines, the court considers:

The respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.

Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462.

[¶ 7] Courts generally start with the view that marital property should be divided equally, and although the division need not be exactly equal to be equitable, the trial court must explain any substantial disparity. Reiser v. Reiser, 2001 ND 6, ¶ 10, 621 N.W.2d 348. Although a long-term marriage generally supports an equal division of property, economic fault is also a proper factor for the court to consider in dividing marital property. Horner, 2004 ND 165, ¶¶ 12, 16, 686 N.W.2d 131. A party’s dissipation of assets can be a “particularly relevant factor” in the determination. Halvorson v. Halvorson, 482 N.W.2d 869, 871 (N.D.1992).

[¶ 8] A trial court’s decision on division of marital property is a finding of fact reversible on appeal only if clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 14, 665 N.W.2d 672. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Walker v. Walker, 2002 ND 187, ¶ 7, 653 N.W.2d 722.

[¶ 9] In dividing the marital property and debts, the court explained:

Cheryl is 48 and Allan is 51. They both have years left to work to provide for themselves and their children. Cheryl is established and hard-working in two jobs. Allan has chosen to be underemployed, although he is capable of earning $38,000 per year. Their marriage is one of long duration of more than eighteen years. While Cheryl can be faulted for turning a blind eye to Allan’s financial management, Allan’s conduct has since 1995 been very detrimental to both of them and their children financially and emotionally. Their stations in life are modest, but their circumstances and necessities are different. Cheryl has worked steadily and taken care of quite a few debts during the interim and she is well established in her career and part-time job. Allan is adrift and he needs to get himself and his life squared away soon. Cheryl’s health is not an issue, but Allan states he has back problems, but that has not kept him from working in the past. They have a modest amount of real and personal property, as well as marital debts, but their financial circumstances are precarious due to the enormous debt Allan accumulated on his own without Cheryl’s knowledge or consent. The[ir] property has no extraordinary value and very little income producing capacity.
As Allan ran up all of his heavy debts, he did not share any financial information with Cheryl, which is a pattern he followed throughout their marriage. In fact, he had received from Cheryl her W-2s every year, but he filed no tax returns since 1995. Cheryl thought he had been signing her name as he had done before, but when she discovered the problem, she filed taxes for years as far back as she could and received the tax refunds on the income she had earned.
The Court is going to require Allan to take responsibility for his business debts in connection with his East River Livestock company. He has been considering bankruptcy, which is something Cheryl wants to avoid. Given the fact the mar[it]al debts seem to be manageable, Allan will be left to decide the question of bankruptcy for himself, but the Court specifically finds he should not be allowed bankruptcy as to any marital debts on which Cheryl might also be liable.
The Court is aware Allan has been contemplating bankruptcy, which is probably the best thing for him given his financial situation with his non-marital debts of $659,771. The Court has assigned no value to Allan’s non-marital contingent claim for $108,385. The Court has considered his potential bankruptcy in arriving at the unequal, yet equitable distribution of the marital estate. Hopefully this distribution of the assets will allow Allan to go bankrupt without impacting Cheryl.

[¶ 10] The trial court erroneously treated Allan’s $659,771 business debts accumulated during the marriage as “non-marital debts.” In dividing the marital estate, the trial court must determine the net marital worth by considering all property and debt accumulated by the parties and by using “the elementary accounting equation of assets minus liabilities to determine the net worth of the marital property.” Neidviecky v. Neidviecky, 2003 ND 29, ¶ 11, 657 N.W.2d 255. A trial court may consider which of the parties has incurred particular debts, and the purposes for which those debts were incurred, in determining an equitable allocation of the responsibility for repayment, but those debts nevertheless remain a part of the marital estate. Id. The trial court granted Cheryl marital property worth $125,582 and allocated to her $81,835 in marital debt for a net award of $43,747. The court granted Allan marital property worth $70,732 and allocated to him $46,407 in marital debt for a net award of $24,325. The court’s allocation of the $659,771 “non-marital” business debts to Allan results in Allan’s share of the marital estate being minus $635,446.

[¶ 11] The trial court did not apply the correct law in determining and distributing the marital estate. Given the substantial amount of debts excluded from the marital estate in this case, we cannot be sure the court would have reached the same result in allocating the assets and debts had it correctly included the business debts as part of the marital estate before allocating the debts between the parties. Neidviecky, 2003 ND 29, ¶ 13, 657 N.W.2d 255. The parties are entitled to a division of their property under a correct application of the law by the trial court. Id. at ¶ 12; Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 622 (N.D.1994); Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985). We express no opinion whether the property distribution would have been equitable if the trial court had included Allan’s business debts in the marital estate and allocated those debts to him for the reasons stated by the trial court.

[¶ 12] We reverse and remand for reconsideration of the property distribution.

Ill

[¶ 13] Allan argues the trial court erred in computing his child support obligation.

[¶ 14] Child support determinations involve questions of law subject to a de novo standard of review, findings of fact subject to a clearly erroneous standard of review, and may involve matters of discretion subject to an abuse of discretion standard of review. Interests of A.M.S., 2005 ND 64, ¶ 5, 694 N.W.2d 8.

[¶ 15] Allan argues the trial court erred in finding that he was underemployed. The record establishes that Allan was earning $38,000 before he left his job with the railroad. Allan testified that from January through June of 2003, he earned approximately $17,000 in salary and commissions from East River Livestock. Allan testified he was living with his parents, was “helping my folks,” and was receiving $400 per month compensation from them. At the time of trial, Allan had no plans for changing his employment situation. The determination of whether an individual is underemployed for purposes of establishing a child support obligation is within the discretion of the trial court. Torgerson v. Torgerson, 2003 ND 150, ¶ 10, 669 N.W.2d 98. We conclude the trial court did not abuse its discretion in finding that Allan is underemployed.

[¶ 16] Allan argues the trial court used an incorrect method of imputing income in this case. When a child support obligor is underemployed, the court is permitted under the guidelines to impute income to the obligor. Orvedal v. Orvedal, 2003 ND 145, ¶ 11, 669 N.W.2d 89. In a case of underemployment, N.D. Admin. Code § 75-02-04.1-07(3) requires the use of whichever of three methods of measuring earning capacity results in the greatest imputed income. Knoll v. Kuleck, 2004 ND 199, ¶ 6, 688 N.W.2d 370. With exceptions, N.D. Admin. Code § 75-02-04.1-07(3) states:

[G]ross 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. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross 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.

[¶ 17] In determining Allan’s child support obligation, the trial court reasoned:

[Allan] was making $38,000 annually with the railroad. He next worked for a railroad construction business for $50,000 per year, but he only stayed with that job for ninety days. He worked at a Bismarck livestock company before his involvement in the now defunct East River Livestock in Linton. While he was involved in that business, he accumulated substantial debts. He was paid $1,600 per month plus a commission of $0.75 per head, and the first six months of 2003 his commission was $7,500. At $1,600 per month for six months he made $9,600, which when added to his six months’ commission of $7,500 equals $17,100 for six months. If you double that amount for the whole year, Allan would make $34,200. At the time of the hearing, Allan lived with his parents on their ranch and they paid him $400 per month plus board and room, and he would buy and sell cattle for them. The Court finds he is underemployed and that he is capable of earning $38,000 per year.

The court applied allowable deductions based on the $38,000 figure, found Allan’s monthly net income to be $2,500, and used the applicable child support amount of $723 under N.D. Admin. Code § 75-02-04.1-10.

[¶ 18] The trial court’s method of calculating Allan’s imputed income does not comport with any of the three methods outlined in N.D. Admin. Code § 75-02-04.1-07(3). Nor does the method used comply with the exception set forth in N.D. Admin. Code § 75-02-04.1-07(9) allowing imputation of income when the obli-gor makes a voluntary change in employment. We have held N.D. Admin. Code § 75-02-04.1-07(9) requires the court to calculate imputed income based on the ob-ligor’s actual income in a prior twelvemonth period, and a court cannot use income earned during less than the twelvemonth period and “extrapolate that to a twelve-month figure.” Logan v. Bush, 2000 ND 203, ¶ 21, 621 N.W.2d 314; see also Christoffersen v. Giese, 2005 ND 17, ¶ 8, 691 N.W.2d 195. We recognize that the parties were of little assistance in providing evidence to enable the court to impute Allan’s income correctly. Nevertheless, a court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor’s child support obligation. Knoll, 2004 ND 199, ¶ 5, 688 N.W.2d 370.

[¶ 19] We conclude the trial court erred as a matter of law in computing Allan’s child support obligation.

rv

[¶ 20] Cheryl argues the trial court erred in establishing Allan’s child support obligation effective June 2004, rather than retroactive to April 2003, the month she commenced the divorce action.

[¶ 21] A trial court’s decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion. McDowell v. McDowell, 2003 ND 174, ¶ 27, 670 N.W.2d 876; cf. Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237 (holding “a modification of child support generally should be made effective from the date of the motion to modify, absent good reason to set some other date,” and the “court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained”).

[¶ 22] The trial court refused to make Allan’s child support obligation retroactive to the date of filing because of the substantial “debts Allan will be paying.” The court found it “in the best interests of all concerned” that the payments begin in June 2004. We cannot say the trial court abused its discretion. However, because the case must be remanded for reconsideration of the property distribution and for recalculation of Allan’s child support obligation, the court may also reconsider the effective date for payments to begin if it wishes to do so.

V

[¶ 23] We affirm the effective date of Allan’s child support obligation, reverse the property distribution and child support award, and remand for reconsideration of the property distribution and for recalculation of Allan’s child support obligation.

[¶ 24] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 25] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


text:
    2005 ND 110
    David C. BERLIN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050030.
    Supreme Court of North Dakota.
    June 22, 2005.

      Jeff A. Bredahl (argued) and Tracy Andrew Gompf (on brief), Bredahl, Frisk & Gompf, Fargo, ND, for petitioner and appellant.
    Aaron Grayson Birst, Assistant State’s Attorney, Fargo, ND, for respondent and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] David Berlin appealed from an order summarily dismissing his application for post-conviction relief. We hold Berlin has raised genuine issues of material fact entitling him to an evidentiary hearing on his post-conviction application. We, therefore, reverse and remand for further proceedings.

I

[¶ 2] At a hearing on November 13, 2003, Berlin, with the assistance of court-appointed counsel, pled guilty to class C felony theft of property in violation of N.D.C.C. § 12.1-23-02 and class A misdemeanor fleeing or attempting to elude a police officer in violation of N.D.C.C. § 39-10-71. In an amended criminal judgment, entered on December 22, 2003, Berlin was sentenced to two years incarceration on the theft of property violation and was sentenced to one year incarceration on the conviction for fleeing a police officer, with the sentences to run concurrently.

[¶ 3] On July 21, 2004, Berlin filed a pro se application for post-conviction relief. The State submitted a response, and indigent defense counsel was appointed and filed a notice of appearance on August 19, 2004. Through appointed counsel, Berlin requested additional time to supplement the application for post-conviction relief, which was granted by the district court. A supplemental application for post-conviction relief was filed with the assistance of counsel, which included a request for an evidentiary hearing and the same three allegations on the merits as contained in the original pro se petition: (1) the prosecution failed to disclose evidence favorable to Berlin, because a complaint by the alleged victim was never filed; (2) Berlin was compelled to be a witness against himself in pleading guilty to the charges; and (3) Berlin received ineffective assistance of counsel, because his attorney told Berlin he would receive a four-month sentence rather than the two-year sentence imposed by the court. The district court, on its own motion and without granting an evidentiary hearing, summarily denied Berlin’s application for post-conviction relief.

II

[¶ 4] On appeal, Berlin asserts the district court committed error by denying his petition without first granting him an evi-dentiary hearing. Berlin claims there are genuine issues of material fact, especially regarding his ineffective assistance of counsel claim, for which he should be given an evidentiary hearing:

It has been suggested by various individuals, including the District Court Judges, prosecutors, and defense attorneys, as well as officials at Thompkins Center that treatment at Thompkins can result in a reduction of time served on a sentence. However, this is not based on any statute, rule, or policy known to counsel. Therefore, it would be speculation that Appellant Berlin would actually serve four (4) months on a two (2) year straight-time sentence. An evidentiary hearing would shed light on this issue to determine if, in fact, Appellant Berlin was told that he would serve four (4) months, which he relied upon as an inducement to plead guilty.

[¶ 5] The State asserts Berlin’s issues are without merit, and the district court did not err in summarily dismissing the petition.

[¶ 6] The explicit purpose of the Uniform Post-Conviction Procedure Act under N.D.C.C. ch. 29-32.1 is to provide a method to develop a complete record to challenge a criminal conviction. Eagleman v. State, 2004 ND 6, ¶ 4, 673 N.W.2d 241. Under N.D.C.C. § 29-32.1-09, the district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law:

1. The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
2. If an evidentiary hearing is necessary, the court may determine which issues of material fact are in controversy and appropriately restrict the hearing.

We review an appeal from a summary denial of post-conviction relief as we review an appeal from a summary judgment. Whiteman v. State, 2002 ND 77, ¶ 7, 643 N.W.2d 704. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Id.

[¶ 7] The statute does not expressly allow the court to dismiss on its own motion an application for post-conviction relief. It says the court “may grant a motion by either party for summary disposition.” However, a summary dismissal of a post-conviction application is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted. In such cases, we have held that a trial court may, on its own initiative, and in the cautious exercise of its discretion, dismiss a complaint for failure to state a valid claim under Rule 12(b). Isaac v. State Farm Mut. Auto. Ins., 547 N.W.2d 548, 550 (N.D.1996). We have warned this power must be exercised sparingly and with great care to protect the rights of the parties, and the court should dismiss under Rule 12(b) only when certain it is impossible for the plaintiff to prove a claim for which relief can be granted. Ennis v. Dasovick, 506 N.W.2d 386, 389 (N.D.1993). The power of the court to dismiss a claim on its own motion under Rule 12(b) derives from the court’s inherent authority to dismiss a meritless claim. See Albrecht v. First Fed. Sav. & Loan Ass’n, 372 N.W.2d 893, 894 (N.D.1985). We hold the trial court possesses the same inherent authority under N.D.C.C. § 29-32.1-09 to summarily dismiss an application for post-conviction relief when the statutory triggering conditions are met, i.e., there is no genuine issue as to any material fact and the party in whose favor the dismissal is entered is entitled to judgment as a matter of law.

[¶ 8] Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case. State v. Palmer, 2002 ND 5, ¶ 12, 638 N.W.2d 18. An applicant for post-conviction relief need not provide evidence or proof with the application, but must set forth a concise statement for each ground of relief and specify the relief requested. Eagleman, 2004 ND 6, ¶ 11, 673 N.W.2d 241. For the court to summarily dismiss the application under N.D.C.C. § 29-32.1-09, there must be no dispute as to either the material facts or the inferences to be drawn from undisputed facts and the State must be entitled to judgment as a matter of law. Id.

[¶ 9] Berlin’s claims present a problem for summary dismissal because the district court did not conclude they were facially invalid. In its order denying relief the district court stated:

Berlin claims relief because the prosecution failed to disclose evidence favorable to petitioner in that a complaint by the alleged victim was never actually filed; he received ineffective assistance of counsel because petitioner was told that he would receive a four month sentence and instead received a sentence of two years; and petitioner asserts that his Fifth Amendment rights were violated, in that he was compelled to be a witness against himself. After reviewing the record, the Court concludes that a complaint was filed, the petitioner voluntarily pled guilty after he was informed of the charges, and his Fifth Amendment rights were not violated. Petitioner provides no evidence to support his claims.

Rather than deciding the claims were facially invalid, the court merely concluded “[petitioner provides no evidence to support his claims.” However, as we have already noted, under Eagleman, 2004 ND 6, ¶ 11, 673 N.W.2d 241, a petitioner need not provide evidence with an application. Furthermore, in its written response to Berlin’s petition, the State implies there is an evidentiary question relating to Berlin’s ineffective assistance of counsel claim:

In this case, the Petitioner also alleges a Constitutional violation because his court appointed counsel violated the Petitioner’s Constitutional rights by telling him “I do 4 months ... but got 2-years.” At the sentencing hearing, the petitioner was advise[d] the court could impose any sentence it wanted. Additionally, the Petitioner’s court appointed attorney would dispute that he promised the petitioner that he would receive the sentence the petitioner now alleges.

(Emphasis added.) Thus, the State’s response indicates the existence of a genuine issue of material fact precluding a right to judgment as a matter of law.

[¶ 10] To be successful in pursuing a claim of ineffective assistance of counsel, a defendant must first show counsel’s performance was deficient and then must show the deficient performance prejudiced the defendant. See State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18. Berlin claims that his attorney told him he would receive a four-month sentence upon pleading guilty rather than the two-year sentence of incarceration imposed by the district court. Although we have held counsel’s alleged ineffective assistance did not constitute reversible prejudice where the record showed the defendant’s guilty plea was voluntary, the defendant in that case was afforded an evidentiary hearing on his claim for post-conviction relief. Greywind v. State, 2004 ND 213, ¶ 4, 689 N.W.2d 390. An evidentiary hearing would allow Berlin the opportunity to demonstrate whether he was wrongfully misled by his defense attorney and whether his attorney’s conduct fell below the acceptable standard of representation. In a case where the court finds an allegation of deficient performance by counsel is facially invalid, a summary dismissal similar to a judgment on the pleadings may be appropriate. Here, however, the district court said that it had reviewed the record and had found “no evidence” to support Berlin’s claims, rather than concluding the claims were facially invalid.

III

[¶ 11] We hold the district court erred in summarily dismissing Berlin’s claims without affording Berlin an evidentiary hearing. We, therefore, reverse the court’s order summarily dismissing the post-conviction application and remand for further proceedings.

[¶ 12] CAROL RONNING KAPSNER, DALE V. SANDSTROM and MARY MUEHLEN MARING, JJ., concur.

      . In requesting additional time to supplement the original petition, court-appointed counsel stated he intended "to supplement the initial Application after a thorough examination of the record and after an opportunity to obtain additional transcripts or other evidence, if necessary.” The subsequent amended petition, while including a request for an eviden-tiary hearing, in essence stated the same issues on the merits as contained in the original pro se petition, without additional supplementary material, and this may have misled the district court when deciding whether an evi-dentiary hearing was necessary or warranted.