text:
    In the Interest of J.N., A Child, Appellant.
    No. 99-1711.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Larry F. Woods, Oelwein, for appellant.
    Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, and Joel Dryer, Assistant County Attorney, for appellee-State.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   NEUMAN, Justice.

This appeal concerns a delinquent teenager, J.N., whose failure to successfully complete community-based treatment programs and services prompted the juvenile court to transfer him to the State Training School at Eldora. The question is whether J.N.’s placement at the training school accords with Iowa Code section 232.52(2)(e) (Supp.1997). We conclude that because J.N.’s failures did not include a new adjudication of delinquency, the statutory requirements for placement at the training school cannot be met. We therefore reverse and remand for further proceedings.

The facts are undisputed. A delinquency petition, as amended, charged twelve-year-old J.N. with nine crimes occurring in four separate incidents during the late summer and fall of 1997. Pursuant to plea negotiations, the State dismissed charges for criminal mischief, attempted burglary and interference with official acts in exchange for J.N.’s guilty pleas to two counts of simple assault, disorderly conduct, assault causing bodily injury, assault with intent to commit serious injury involving a weapon, and public intoxication. Following a combined adjudicatory and disposi-tional hearing on all the charges, the court ordered J.N. placed “in foster group care in a comprehensive or community residential facility designed with programming for conduct-disordered and substance-abusing youth.”

J.N.’s initial placement at a youth shelter in Ames was unsuccessfully terminated as a result of his physical and verbal aggression. He was then transferred to the Hillcrest Shelter for a short time before being enrolled in a residential treatment program at the Annie Wittenmyer facility in Davenport. J.N. completed that program and, in March 1999, his disposition was modified to permit a return home while participating in a day/evening treatment program under continuing probation supervision. He violated the terms of his probationary status by running away in May 1999. He was on the run until July 1999, when he was returned to detention.

Following a thirty-day evaluation, the court held a modification hearing pursuant to Iowa Code section 232.54 to determine whether a more restrictive placement for J.N. would be appropriate. The State recommended placement at the State Training School. The evaluation received by the court indicated that J.N. “has not benefited from previous residential treatments or outpatient interventions” and the training school would provide structure and programs to address J.N.’s ongoing substance abuse, behavioral, and educational issues. J.N. resisted placement at the training school, arguing he did not fit the statutory requirements for admission and, further, it was not the least restrictive placement available.

The juvenile court initially expressed concern about whether J.N. qualified for placement at the training school. But the court ultimately determined none of the less-restrictive alternative dispositions could address J.N.’s needs in a secure setting. The court therefore entered an order placing him at the training school for a period of three years. J.N. now appeals.

I. Scope of Review.

We review de novo both the juvenile court’s factual findings and its conclusions of law. In re C.T., 521 N.W.2d 754, 756 (Iowa 1994).

II. Issue on Appeal.

The question on appeal is whether, as J.N. suggests, the court erred as a matter of law when it placed him at the State Training School. Both the State and J.N. agree that the governing statute is Iowa Code section 232.52(2)(e). The statute provides, in pertinent part, that placement at the training school is permitted if three of the following four conditions exist:

(1) The child is at least fifteen years of age....
(2) The child has committed an act which is a crime against a person and which would be an aggravated misdemeanor or a felony if the act were committed by an adult.
(3) The child has previously been found to have committed a delinquent act.
(4) The child has previously been placed in a treatment facility outside the child’s home or in a supervised community treatment program established pursuant to section 232.191, subsection 4, as a result of a prior delinquency adjudication.

Iowa Code § 232.52(2)(e) (emphasis added). Because J.N. was barely fourteen at the time of the court’s modified disposition order, all three of the remaining conditions must be satisfied to lawfully justify his placement at the training school. There is no dispute that the second condition is satisfied by J.N.’s plea to an assault which, were he an adult, would be an aggravated misdemeanor. That leaves for our consideration the applicability of conditions (3) and (4).

The question boils down to whether the statutory terms “previously” and “prior” refer to delinquency adjudications other than the one prompting the challenged disposition or whether, as the juvenile court apparently found, the terms pertain to events occurring as part of this adjudication but at an earlier time. The distinction is not abundantly clear, as this court found in In re G.J.A., 547 N.W.2d 3, 6 (Iowa 1996). We determined there that the statute is ambiguous and must be construed in light of its evident legislative purpose. G.J.A., 547 N.W.2d at 6.

We held in G.J.A. that section 232.52(2)(e)(3) requires “a finding that the child has been found to have committed two or more delinquent acts” before placement at the training school is permitted. Id. The State relies heavily on this holding to support the juvenile court’s ruling here, mindful that J.N. committed no less than six delinquent acts. The issue before us, however, is not the same as the one facing us in G.J.A. There the child had been adjudicated of only one delinquent act. Id. Because a disposition always follows an adjudication, every adjudication would be previous to some disposition, making the term “previously” in condition (3) superfluous unless it meant something more. Id. Legislative history suggested an intent to view placement at the training school as a last resort. We thus construed the statute to require, at a minimum, more than one adjudication of delinquency before placement at the school was authorized. Id.

The case before us prompts us to look at the statutory words “previously” and “prior” with greater regard to their temporal significance. If the legislature had been concerned solely about the number of delinquent acts committed, to the exclusion of their sequence, condition (3) would state “The child has committed more than one delinquent act.” Instead the legislature used the phrase “has previously been found to have committed a delinquent act.” Iowa Code § 232.52(2)(e)(3). “Previous” is commonly defined as “going before in time or order.” Webster’s Ninth New Collegiate Dictionary 933 (1986). This leads us to conclude condition (3) refers to an adjudication of delinquency that predates the adjudication prompting the disposition under review. It also prompts us to reject the State’s claim that J.N.’s multiple adjudications on a single date necessarily satisfy the statutory test.

Our view is only reinforced when we consider the final requirement of section 232.52(2)(e). Subsection (4) requires that “[t]he child has previously been placed in a treatment facility outside the child’s home or in a supervised community treatment program ... as a result of a prior adjudication.” J.N. arguably meets the threshold requirement, having been placed in two out-of-home treatment facilities and one day/evening treatment program for substance abuse. But the “prior adjudication” requirement poses another timing problem. “Prior” means “earlier as in time or order.” Webster’s Ninth New Collegiate Dictionary 936 (1986). J.N.’s only adjudication is the one before us. The juvenile court essentially read the word “prior” out of the statute, contrary to the rule that a legislature presumptively enacts each part of the statute for a purpose. G.J.A., 547 N.W.2d at 6.

As we observed in G.J.A., the purpose of this statutory scheme is “to restrict the population of the school, both for its own sake, and as part of an effort to emphasize community-based placements in juvenile court dispositions.” Id. Although we are sympathetic to the juvenile court’s belief that the training school would provide the most secure and effective programming to meet J.N.’s needs, the legislature in its wisdom placed restrictions on that alternative. Had J.N. been adjudicated for another delinquent act following the ones for which he is presently under supervision and treatment, then section 232.52(2)(e) would have permitted his placement at the training school. But under the record before us, J.N. does not meet that qualification. Accordingly, we reverse the disposition order entered by the juvenile court and remand for further proceedings regarding an appropriate placement for this juvenile.

REVERSED AND REMANDED.

McGIVERIN, S.J., participates in place of LARSON, J., who takes no part.


source: Caselaw Access Project

author: McGIVERIN, Senior Judge.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS & CONDUCT, Complainant, v. Robert M. SHERMAN, Respondent.
    No. 00-919.
    Supreme Court of Iowa.
    Nov. 16, 2000.
    Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Robert M. Sherman, Fort Dodge, respondent, pro se.
   McGIVERIN, Senior Judge.

The Iowa Supreme Court Board of Professional Ethics and Conduct (Ethics Board) filed a complaint with our Grievance Commission against respondent, RobT ert M. Sherman, alleging that he had violated several provisions of the Iowa Code of Professional Responsibility. A division of our Grievance Commission found that the Ethics Board had proved certain of the alleged ethical violations and recommended that Sherman be publicly reprimanded. Our review is required by Court Rule 118.10.

We agree with the Commission’s findings of misconduct and with the sanction recommended by the Commission.

I. Background facts and proceedings.

Robert M. Sherman was admitted to the practice of law in Iowa in 1980. He is a solo practitioner and maintains a law office in Webster City, Iowa.

A. Neglect of client’s legal matter.

The present disciplinary proceeding arose out of Sherman’s representation of Vickie Kolthoff Bradley in a domestic relations matter. Vickie Bradley and her father met with Sherman in his office in August 1997. At that time, Vickie had been eohabitating with Dennis Goodrich for eighteen years and the couple had three children together. Their fifteen-year-old daughter now lived with Dennis and the other two children lived with Vickie. Although Vickie and Dennis had never married, Vickie considered herself to be married and wanted Sherman to file a petition for dissolution of marriage for her. During the meeting, Sherman explained that Vickie could file such a petition, but that it may be difficult to prove Vickie and Dennis were legally married. Proof of a common law marriage would be necessary to get a property division. Proposed evidence was conflicting concerning whether Vickie and Dennis had held themselves out as husband and wife. In the alternative, Sherman explained that Vickie could file a petition for legal separation or file a petition for custody, visitation, and support concerning the children.

At the end of the meeting, Vickie’s father wrote a check for $80 payable to the Hamilton County clerk of court for a filing fee and a check for $400 payable to Sherman as a retainer fee. No written fee agreement was presented to or signed by Vickie.

Vickie was supposed to contact Sherman later about how she wanted to proceed in the case. Vickie, however, apparently did not see Sherman after the August 1997 meeting until June 1998. Neither Vickie nor Sherman took any action in the case. Frustrated with Sherman’s failure, Vickie eventually hired another attorney in June 1998 to represent her. Vickie then contacted Sherman and asked him to return the retainer fee and filing fee to her. Sherman complied with her request by returning the check for $80 and by writing her a check for $400 drawn on his firm’s account as reimbursement for the retainer fee.

B. Failure to cooperate with the Ethics Board.

Thereafter, on September 22, 1998, Vickie filed a complaint against Sherman with our Ethics Board. On October 22, 1998, the Ethics Board sent Sherman notice that Vickie had filed a complaint against him and asked for a written response to her allegations. Sherman asked for and was granted until December 15, 1998, to make such a response. This deadline was then extended to December 21. Later, Sherman told the Ethics Board he would respond by February 3, 1999. Despite further notices from the Ethics Board of his duty to respond to the ethical complaint against him, Sherman still had made no such response by January 2000.

On January 24, the Ethics Board filed a complaint with our Grievance Commission. Sherman was served with a copy of the complaint and request for admissions from the Ethics Board. Sherman filed answers to the request for admissions. A hearing was held in April 2000.

II. Standard of review.

We review the findings and recommendations of the Grievance Commission de novo. Ct.R. 118.10. We give respectful consideration to the findings and recommendations of the Commission, but are not bound by them. Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). Misconduct must be proven by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof l Ethics & Con duct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996).

III. Ethics violations.

The Commission concluded that Sherman’s conduct in connection with Vickie’s case violated several provisions of the Code. Specifically, the Commission determined that due to his neglect in handling Vickie’s case, and through his admissions, Sherman violated disciplinary rules concerning neglect of a client’s legal matter, DR 6-101(A)(3), and rules concerning failure to carry out a contract of employment, DR 7-101(A)(2). The Commission also found that due to his failure to file a written response with the Ethics Board in a timely manner, Sherman violated disciplinary rules which prohibit an attorney from engaging in conduct that is prejudicial to the administration of justice, DR 1-102(A)(5), and that adversely reflects on the fitness to practice law, DR 1-102(A)(6).

We believe the record shows that the source of the client’s complaint in this case is the breakdown in communication between the attorney and the client. In particular, Vickie testified at the hearing before the Grievance Commission that Sherman canceled several appointments.

Sherman, on the other hand, testified before the Commission that he explained Vickie’s options to her during the meeting in August 1997, and that Vickie was supposed to get back to him about what action she wanted to take in the case. He also stated that following the meeting, he drafted a petition for legal separation, but that Vickie phoned him in December 1997, telling him that she did not want to take any action in the case at that time of the year. Sherman told her she would need to take some action and to contact him after she had determined whether her fifteen-year-old daughter would be living with her.

Sherman also stated that Vickie rescheduled or canceled certain appointments. Sherman further explained that his caseload significantly increased in the spring of 1998 after the local public defender’s office closed and that he also ran for county attorney at that time. Sherman admitted, however, in his response to requests for admissions, and during the hearing before the Grievance Commission, that due to his increased caseload, he took no action concerning Vickie’s case from April to June 1998. Additionally, Sherman commented that the practice of law has become very stressful for him and that he plans to leave it.

The evidence in the record, along with Sherman’s admissions, shows that a convincing preponderance of the evidence supports the Commission’s findings, that in failing to respond to the Ethics Board’s inquiry, Sherman violated DR 1-102(A)(5) (“A lawyer shall not ... [ejngage in conduct that is prejudicial to the administration of justice.”), and DR 1-102(A)(6) (“A lawyer shall not ... [ejngage in any other conduct that adversely reflects on the fitness to practice law.”). Additionally, the record supports the findings that Sherman, in his handling of Vickie’s case, violated DR 6-101(A)(3) (“A lawyer shall not ... [njeglect a client’s legal matter.”), and DR 7-101(A)(2) (“A lawyer shall not intentionally ... [fjail to carry out a contract of employment....”).

IV.Discipline.

We must now determine the proper sanction, based on Sherman’s violations of the Code. The appropriate sanction in an attorney disciplinary case is based upon the particular facts and circumstances of each case. Lemanski, 606 N.W.2d at 13. In determining the proper sanction, we consider the nature of the violations, the need for deterrence, protection of the public, maintenance of the reputation of the Bar as a whole, and the violator’s fitness to continue to practice law. Id. at 14.

The prior disciplinary history of an attorney is a factor we consider in imposing sanctions for disciplinary rule violations. Id. We note the record shows that in February 1991, by order of this court, Sherman was admonished for his neglect of several appellate matters and was barred from handling appellate cases in Iowa for a period of two years. Later, in October 1991, our court issued an order of public reprimand for Sherman’s failure to respond to repeated requests from the Ethics Board for information about a complaint. The order further admonished Sherman for his failure to file a bankruptcy petition in a timely manner for a client.

Upon our consideration of all the evidence presented to the Grievance Commission, we give weight to and agree with the recommendation of the Commission. Respondent Robert M. Sherman is hereby publicly reprimanded for his most recent misconduct.

Costs of this action are taxed to respondent pursuant to Court Rule 118.22.

ATTORNEY REPRIMANDED.

McGIVERIN, Senior Judge, participates in place of LARSON, J., who takes no part.

       Retired Justice serving as senior judge by order pursuant to Iowa Code section 602.9206 (1999).


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Scott E. SELMER, an Attorney at Law of the State of Minnesota.
    No. C8-93-1638.
    Supreme Court of Minnesota.
    Nov. 29, 2000.
   ORDER

In 1997, this court suspended Scott E. Selmer from the practice of law for 12 months for professional misconduct. See In re Selmer, 568 N.W.2d 702 (Minn.1997). The court conditioned reinstatement on compliance with Rules 18 and 26, Rules on Lawyers Professional Responsibility (RLPR). See id. at 705.

On October 24, 2000, Selmer filed a petition for reinstatement. However, there is no indication that he has complied with the requirements of Rules 18 and 26, RLPR.

NOW, THEREFORE, based on the records, files, and proceedings herein,

IT HEREBY IS ORDERED that Scott E. Selmer’s petition for reinstatement is denied. Selmer may file a new petition for reinstatement as provided by Rule 18, RLPR.

BY THE COURT

Alan C. Page Associate Justice

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


author: STONEBURNER, J.

text:
    Julienne GOINS, Appellant, v. WEST GROUP Respondent.
    No. CX-00-706.
    Court of Appeals of Minnesota.
    Nov. 21, 2000.

      Joni M. Thome, Attorney at Law, Bloomington, for appellant.
    Patricia A. Bloodgood, Susan E. Elling-stad, Lockridge, Grindal, Ñauen, P.L.L.P., Minneapolis, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, FOLEY, Judge, and MULALLY, Judge.

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

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

   OPINION

STONEBURNER, J.

Appellant Julienne Goins challenges the district court’s grant of summary judgment to her employer on her claims of intentional sexual orientation discrimination and hostile work environment under the Minnesota Human Rights Act. Because the district court erred in its application of the law to the sexual orientation discrimination claim and because material questions of fact exist with regard to the hostile work environment claim, we reverse. We also reverse the district court’s order compelling Goins to answer questions regarding her anatomy because such discovery is not relevant to her claims.

FACTS

When appellant Goins was born on April 15, 1973 she was designated “male” on her birth certificate. Through childhood and adolescence Goins was considered male, but she was confused about her sexual identity. In 1994 after counseling, she began taking female hormones. By the summer of 1995 Goins began to consistently present herself as female. In October 1995 a Texas court granted her petition to legally change her name from Justin Travis Goins to Julienne Hannah Goins. The Texas court order states that it constitutes authority for a change of gender from “genetic male” to “reassigned female” on any and all documents, including but not limited to Goins’s birth certificate and Texas driver’s license. Although Goins has not had elective surgery to alter any part of her anatomy, the parties do not dispute that Goins sincerely and consistently identifies herself as female.

In May 1997 Goins began working for West Group in Rochester, New York, where she worked for five months without incident. During the summer of 1997 she visited West’s Eagan facility on four occasions. She agreed to relocate to Minnesota and began working at the Eagan facility on October 6,1997.

Before Goins started work at Eagan, a group of approximately four women told Lewis Freeman, Director of Shared Services Human Resources for the Eagan facility, that they were uncomfortable with Goins using the women’s restroom because of their belief that Goins is biologically male. There is no evidence that any of the complainants have ever been in the women’s restroom at the same time as Goins. No one has ever alleged any inappropriate conduct by Goins in the restroom or elsewhere.

In response to the expressed concerns and Freeman’s own belief that Goins is biologically male, Freeman immediately told Goins that she could not use the women’s restrooms. She was directed to use either of the facility’s two single-occupancy restrooms, which are not designated as men’s or women’s restrooms. One of these restrooms is located in the lobby of the building where Goins worked and the other is in a nearby building.

Goins opposed the directive and voiced her disagreement. She proposed education and communication with co-workers to address their concerns. She refused to use the designated restrooms, partially in protest and partially because she found the restrooms inconvenient and dirty. Goins refrained from eating or drinking during the day to avoid having to use any restroom. Occasionally Goins used the women’s restroom. In November 1997 Freeman warned Goins that if she continued to use the women’s restroom she would be disciplined. Freeman also told supervisors that it was incumbent upon them to enforce the restroom policy.

Goins wrote to a West Human Resources representative in Rochester, New York that she felt harassed at the Eagan facility because of the restroom policy. The Rochester representative referred her back to the Eagan supervisors, who were already aware of the policy and to whom she had already expressed her complaints of discrimination and harassment.

West does not dispute that Goins was qualified to perform her work. In fact, on January 12, 1998 West offered Goins a promotion and a $4,000 raise. But Goins, who had received another job offer on the same day, declined and submitted her resignation. In her written resignation Goins stated that although she left her employment with West voluntarily, she resigned because of the unwelcome, stressful environment created by the restroom policy.

Goins brought this lawsuit against West alleging sexual orientation discrimination and hostile work environment in violation of the Minnesota Human Rights Act. The district court granted West’s motion to compel Goins to answer discovery regarding her genitals and later granted West’s motion for summary judgment on the discrimination and hostile work environment claims. Goins appeals the grant of summary judgment to West and the order compelling discovery.

ISSUES

1. Did the district court err in granting West’s motion for summary judgment on Goins’s intentional sexual orientation discrimination claim under the Minnesota Human Rights Act?
2. Did the district court err in granting West’s motion for summary judgment on Goins’s hostile work environment claim under the Minnesota Human Rights Act?
3. Did the district court abuse its discretion in granting West’s motion to compel Goins to respond to discovery about her genitals?

ANALYSIS

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). This court will affirm a grant of summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn.App.1995).

I.

Goins contends that the district court erred in granting summary judgment on her sexual orientation discrimination claim because it misapplied the relevant law. We agree. The Minnesota Human Rights Act (MHRA) prohibits an employer from discriminating against an employee in terms, conditions, facilities, or privileges of employment based on sexual orientation. Minn.Stat. § 363.03, subd. l(2)(c) (1998). The statute defines sexual orientation to include:

having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.

Minn.Stat. § 363.01, subd. 46 (1998). The parties agree that Goins is a member of this protected class.

The district court rejected an analysis of a direct claim of discrimination and used the McDonnell Douglas v. Green formula for establishing a prima facie case of indirect discrimination. The' district court concluded that, in order to make a prima facie case of indirect discrimination, Goins had to show: (1) that she is a member of a protected class; (2) that she was qualified to use the women’s restroom; and (3) that adverse employment action was taken against her based on her status as a member of the protected class. See McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Diez v. Minnesota Mining & Mfg., 564 N.W.2d 575, 580 (Minn.App.1997), review denied (Minn. Aug. 21,1997).

In applying McDonnell Douglas, the district court focused on whether Goins is “qualified” to use the women’s restroom. After a thorough discussion of non-jurisdictional case law on same-sex marriage, the district court found that a person’s sex remains as designated on the birth certificate, based on genital assessment at birth. See M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 210-11 (Ct.App.Div.1976); Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499, 500 (N.Y.Sup.Ct.1971); In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828, 832 (Prob.Ct.1987); Littleton v. Prange, 9 S.W.3d 223, 230-31 (Tex.App.1999). The district court reasoned that because Goins was designated male on her birth certificate and admits she has not undergone surgery, she must be biologically male, and therefore “unqualified” to use the women’s restroom despite her undisputed female self-image. Finding her unqualified to use the women’s restroom, the district court concluded West had not taken adverse action against Goins based on her status as a member of a protected class and that, therefore, Goins failed to make a prima facie case of indirect discrimination. The district court erred by applying the formula for indirect discrimination because Goins has established a direct claim of discrimination under the MHRA.

The MHRA is unique in prohibiting employment discrimination on the basis of self-image or identity not traditionally associated with one’s biological maleness or femaleness. See Minn.Stat. § 363.01, subd. 45. The statute prohibits discrimination on the basis of the inconsistency between anatomy and self-image. West denied Goins use of the women’s restroom in disregard of her undisputed female self-image. The district court agreed with West and held that, as a matter of law, anatomy alone makes Goins a man and that her self-image is irrelevant to the issue of restroom use. The district court’ held that Goins can only use the women’s restroom by demonstrating anatomy consistent with self-image. The MHRA, however, does not require an employee to eliminate an inconsistency between self-image and anatomy; it protects the employee from discrimination based on such an inconsistency. Goins has made a prima facie case of direct discrimination under the MHRA by showing that she was denied the use of a workplace facility based on the inconsistency between her self-image and her anatomy. The burden-shifting framework of McDonnell Douglas was not reached by the district court but was addressed by the parties. Once Goins made a prima facie case, the burden shifted to West to articulate a legitimate, nondiscriminatory reason for denying Goins’s use of the women’s restroom. West asserts that it has a legitimate, nondiscriminatory reason to prohibit Goins from using the women’s restroom. West argues that Goins is a man and that an employer may legitimately segregate restrooms by sex. See Minn.Stat. § 363.02, subd. 4 (1998) (excepting restrooms from prohibition against sex discrimination in a place of public accommodation). Even if the exception for sex discrimination regarding restroom use applies to restrooms in the workplace, the exception is for sex discrimination, not for sexual orientation discrimination. West argues that it legitimately discriminated on the basis of sex. But Goins argues that West illegally discriminated on the basis of sexual orientation. Given the unambiguous wording of the MHRA, West has failed, at this stage of the litigation, to present a non-discriminatory, legitimate defense to Goins’s prima facie case of sexual orientation discrimination.

West argues that it is not required to accommodate Goins’s desire to use the women’s restroom, relying on dictum in Cruzan v. Special School District No. 1, Department of Human Rights, File No. 31706 (August 26, 1999). This administrative decision, while not precedent, expresses the enforcement agency’s view that an employer who allows restroom use based on self-image rather than anatomy does not thereby commit a violation as to other workers. The MHR Commission dismissed the claim of a coworker who objected to use of the women’s restroom by an employee who had changed self-identity from male to female. In dictum, the MHR Commission stated that the MHRA “does not require accommodation because of sexual orientation.” Neither Goins nor the subject of the complaint in Cruzan requested an accomodation from the employer. The Commission did not elaborate on the issue of accommodation. West and the district court incorrectly interpreted this dictum as a ruling by the Commission that an employer can deny use of the women’s restroom to an employee who has changed identity from male to female. Cruzan does not provide West with a legitimate basis for denying Goins use of the women’s restroom facility.

Because Goins made a prima facie case of direct sexual orientation discrimination in the workplace and West failed to assert a legitimate nondiseriminatory reason for its policy, summary judgment was inappropriate.

II.

The district court’s grant of summary judgment on the hostile work environment claim was based primarily on the erroneous conclusion that Goins failed to make a prima facie case of sexual orientation discrimination, which led the district court to conclude that Goins failed to make a prima facie case of hostile work environment.

The elements of a prima facie case of hostile work environment are: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment was based on sexual orientation; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take timely and appropriate remedial action. See Williams v. Metropolitan Waste Control Comm’n, 781 F.Supp. 1424, 1426 (D.Minn.1992).

The conduct must be so severe or pervasive that it alters the conditions of employment and creates an abusive work environment. Johns v. Harborage I, Ltd., 585 N.W.2d 853, 861 (Minn.App.1998). The work environment must be “one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so,” Id. (quotation omitted). The totality of the circumstances, including the “nature, frequency, intensity, location, context, duration, and object or target” of the conduct, determines whether the severity of the conduct rises to a hostile environment. Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App.1986), review denied (Minn. Feb. 13, 1987), reversed on other grounds by Cummings v. Koehnen, 568 N.W.2d 418 (Minn. 1997). The district court found as a matter of law that West’s conduct was not sufficiently severe to create a hostile work environment. This conclusion was based, in part, on the district court’s factual determination that West acted reasonably.

Goins disagrees that the policy of excluding her from the women’s restroom was reasonable and alleges that West stigmatized her in the workplace by denying her use of the women’s restroom. It is undisputed that coworkers monitored and reported on Goin’s restroom use and discussed her biological status. Goins states that she worked in an environment of “frequent staring and glaring.” West threat"ened Goins with discipline if she continued to use the women’s restroom and required supervisors to monitor her restroom use. Goins alleges that she refrained from eating or drinking during the workday to avoid using the restroom and that she eventually sought and accepted other employment to escape the hostile environment at West. The evidence in this cáse raises a genuine issue of material fact of whether the harassment was sufficient to give rise to a hostile work environment, making summary judgment inappropriate. See Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1379 (8th Cir.1996) (finding genuine issue of material fact in harassment case precluded summary judgment); see also Strauss v. Thome, 490 N.W.2d 908, 911 (Minn.App.1992), review denied (Minn. Dec. 15, 1992) (“If reasonable persons might draw different conclusions from the evidence presented, summary judgment should be denied.”) (citation omitted).

The district court also found that Goins did not report the harassment to her supervisors and therefore West could not have known that Goins considered the working environment hostile. See Johns, 585 N.W.2d at 862. An employer is liable for sexual harassment if the employer had actual or constructive knowledge of a hostile working environment and took no prompt and adequate remedial action. Id. There is evidence in the record that West had actual knowledge that Goins considered the work environment hostile. West knew that employees discussed Goins’s biological identity and monitored her bathroom use. Goins alleges that she was outspoken in her complaints to management about the restroom policy. There is at least a genuine issue of material fact as to whether West had actual or constructive knowledge of a hostile work environment, making summary judgment inappropriate.

III.

Goins contends that the district court erred in granting West’s motion to compel her to answer discovery regarding her genitals and to provide her medical history. “[T]he trial judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.” Shetka v. Kueppers, Kuep-pers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn.1990). Information which can have no possible bearing on the determination of the action on its merits is not discoverable. Jeppesen v. Swanson, 243 Minn. 547, 560, 68 N.W.2d 649, 657 (1955). The parties agree that Goins’s female self-image is inconsistent with her anatomy. The MHRA does not place a burden on employees to prove consistency between self-image and anatomy, it protects an employee from discrimination based on the inconsistency. The district court found the requested discovery relevant because it held that only by proving she had female genitals (or at least an absence of male genitals) could Goins qualify to use the women’s restroom. Because we have rejected that standard for establishing a pri-ma facie case, the discovery relating to Goins’s genitals is irrelevant and the discovery order is reversed.

DECISION

An employee who is denied use of a workplace restroom facility because of an inconsistency between the employee’s female self-image and the employee’s anatomy states a prima facie case of sexual orientation discrimination under the Minnesota Human Rights Act. Material fact questions exist concerning the employee’s claim of a hostile work environment. Summary judgment on the discrimination claim and the order compelling discovery are inappropriate.

Reversed and remanded for trial.

      . This court does not decide whether the Texas court order granting Goins a name change is determinative of her legal sex, but considers the order as evidence that Goins has self-identified as a woman since 1995.

      . The legislature has clearly stated that the prohibition on sexual orientation discrimination contained in the MHRA shall not be construed to authorize same-sex marriage. Minn.Stat. § 363.021(4) (1998). Right-to-marry cases rely primarily on the definition of marriage as an institution solidified by reproductive and sexual functioning tenets, and are not relevant to the determination of restroom use in the workplace under the MHRA.

      . The district court referenced an employer’s need to regulate misconduct and voyeurism as justification for basing restroom use on genital anatomy rather than self-image. There is no evidence, however, to support a conclusion that employees whose self-image conflicts with anatomical male or female features are likely to be voyeurs or commit inappropriate acts. There is no evidence of any misconduct, questionable motivation or doubt about Goins's true self-identity. Goins is not presenting herself as a man who merely likes to dress as a woman. The presumptions relied on by the district court illustrate the need for a more fully developed evidentiary record.

      . Neither party disputes an employer's right to maintain separate men and women's restrooms in the workplace.


author: KAPSNER, Justice.

text:
    2000 ND 207
    Keith JONES, Plaintiff and Appellee, v. Jackie BARNETT, Defendant and Appellant.
    No. 20000140.
    Supreme Court of North Dakota.
    Dec. 7, 2000.

      Carl 0. Flagstad, Minot, ND, for plaintiff and appellee.
    Jackie Barnett, pro se, Minot, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Jackie C. Barnett appeals from the trial court’s judgment prohibiting her from entering property to which she has only a mineral interest and grant of summary judgment concluding her action to rescind a quitclaim deed is barred by the statute of limitations, as she failed to submit evidence that she did not discover until years later she had been fraudulently induced to convey property. We affirm.

I

[¶ 2] In April 1991, Jackie C. Barnett and Keith J. Jones purchased 109 acres of farm real estate located in McHenry County, North Dakota. They were both real estate agents and had bought and sold three other properties together. On June 18, 1991, Barnett conveyed her interest in the McHenry County property to Jones by quitclaim deed, reserving a mineral interest. In 1999, Jones filed a complaint against Barnett, seeking quiet enjoyment and possession of the property on which he claimed Barnett was trespassing because she only had mineral rights, not possesso-ry rights. Barnett answered and counterclaimed, seeking to rescind her conveyance of the property to Jones because he allegedly fraudulently induced her to deed the property. Jones made a motion for summary judgment, asserting he was entitled to judgment as a matter of law since there were no issues of material fact in his action to remove Barnett from the property, as her answer admitted she deeded the property to him and her fraud claim was barred by the statute of limitations. Barnett replied, again alleging fraud and deceit in the inducement of the deed, but she did not support her allegations with any affidavits.

[¶ 3] On February 24, 2000, the district court granted summary judgment, concluding the alleged fraud inducing Barnett to convey the property necessarily occurred prior to her conveyance by quitclaim deed on June 18, 1991. Barnett’s first claim of fraud was filed December 1999 in her answer to Jones’ complaint, more than eight years after she signed the quitclaim deed and well past the six-year statute of limitations. The district court found Barnett submitted nothing to substantiate her claim she was not aware of the alleged fraud until years after the property conveyance. The judgment of the district court prohibited Barnett from entering the McHenry County property. Barnett appeals.

II

[¶4] Summary judgment is a procedural device, under Rule 56, N.D.R.Civ.P., for properly disposing of a lawsuit without trial, if the trial court finds there is no genuine issue of material fact, after viewing the evidence in the light most favorable to the party opposing the summary judgment, or if the only issues to be resolved are questions of law. Dan Nelson Const., Inc. v. Nodland & Dickson, 2000 ND 61, ¶ 13, 608 N.W.2d 267. Factual issues become appropriate for summary judgment “when reasonable minds can draw but one conclusion from the evidence.” Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101.

[¶ 5] The party seeking summary judgment has a burden of clearly showing there is no genuine issue of material fact, and in response the party opposing the motion must present competent admissible evidence, by affidavit or other comparable means, which raises an issue of material fact. Stout v. Fisher Indus., Inc., 1999 ND 218, ¶ 7, 603 N.W.2d 52. The party opposing summary judgment cannot simply rely on factual assertions in a brief or pleadings and cannot rely on unsupported allegations; such conclusory assertions are insufficient to raise an issue of material fact. Id.

[¶ 6] On appeal of a district court’s grant of summary judgment, questions of law are fully reviewable, and we assume the truth of factual assertions made by the party opposing the motion for summary judgment and draw all favorable inferences for that party. Id. A district court’s determination of when a cause of action has accrued for purposes of applying a statute of limitations is a question of fact which will not be overturned on appeal unless clearly erroneous. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 129 (N.D.1990).

[¶ 7] Section 28-01-16, N.D.C.C., governs the statute of limitations for claims of fraud:

The following actions must be commenced within six years after the claim for relief has accrued:
6. An action for relief on the ground of fraud in all cases both at law and in equity, the claim for relief in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.

[¶ 8] We have interpreted such discovery as meaning that notice of facts, which would put a person of ordinary intelligence on inquiry, is equivalent to knowledge of all of the facts a reasonable diligent inquiry would disclose. Schmidt, 460 N.W.2d at 129. This interpretation is consistent with our belief that, after acquiring knowledge of the facts, a party has a responsibility to promptly find out what legal rights result from those facts, and failure to do so will be construed against the party. Id.

A

[¶ 9] Barnett argues summary judgment was inappropriate because the district court did not allow her to show how she was “frauded into” selling her share of the McHenry County property. Barnett contends her claim is not barred by the statute of limitations because the district court “misunderstood the total scope of [Jones’] frauding ways clearly into the year 2000.” Barnett alleges Jones fraudulently induced her to sell by (1) repeatedly assuring her the property would not produce any income and would not qualify for payments from government programs, (2) promising to give her “wandering rights” on the land for her lifetime, and (3) agreeing he would never sell the property. Later, however, the land did produce income, and Jones charged her with trespassing on the property and also offered it for sale to a golf course. Barnett claims Jones was a farmer and cattleman, and he knew alfalfa crops could be grown on the property and bring a good income. Barnett admits she and Jones were both real estate agents, but she only had dealt with sales of small 15-acre farms.

[¶ 10] Because it is Barnett who misunderstood the discovery rule regarding fraud, rather than the district court, we affirm the court’s determination that the statute of limitations has run and bars Barnett’s fraud claim. Barnett’s own pleadings indicate she discovered the alleged fraud only three or four months after signing the quitclaim deed on June 18, 1991. For example, in Barnett’s initial response to Jones’ complaint, she stated:

So low [sic] and behold 3 or 4 months after [Barnett] quit claim deeded the land to [Jones], [Barnett] came to realize that this “hay land” was an alfalfa crop and it produced good income.... Please see alfalfa sales from 1991 to 1994 as [Barnett] kept records for [Jones].... [Barnett] told [Jones] as soon as she realized there was income from land, she would never have sold her ½ if he’d told her [the] truth.

And in Barnett’s response to Jones’ Motion for Summary Judgment, she stated:

I knew [Jones] lied and cheated me out of the land in question early in this process. When the first alfalfa crop was cashed in, I questioned [Jones] again. I knew he lied to me then, but I overlooked it as he’d said I had the rights to enjoy this land forever, he said he would never sell this land, he said he’d tell his wife and kids about my “wandering rights,” and make sure they knew I had the rights to enjoy this land as long as I lived.

[¶ 11] By her own statements submitted to the district court, Barnett admitted she knew of the alleged fraud no later than 1991, but she did not file her counterclaim or defense of fraud until 1999. Furthermore, Barnett failed to submit any supporting affidavits to show the existence of a material fact in dispute regarding the date she discovered the alleged fraud. Under N.D.C.C. § 28-01-16, the statute of limitations for bringing a claim of fraud accrues on discovery of the facts constituting fraud and expires in six years. Because Barnett only produced unsupported, conclusory allegations in her pleadings that she discovered the fraud later than 1991 and because her own pleadings indicate knowledge of material facts in 1991, Barnett’s claim is barred by the statute of limitations, and the district court properly granted summary judgment. See, e.g., American Ins. Co. v. Midwest Motor Express, Inc., 554 N.W.2d 182, 187-88 (N.D. 1996) (finding the trial court correctly held the discovery rule did not prevent the statute of limitations from running, when the party should have discovered its counterclaim more than six years before filing the claim under N.D.C.C. § 28-01-16).

B

[¶ 12] In addition to Barnett’s claims of Jones’ verbal agreements to give her lifelong “wandering rights” and never to sell the property, Barnett also claims Jones verbally agreed on the financial terms of conveying the McHenry County property, but Jones did not completely pay her.

[¶ 13] The statute of frauds, N.D.C.C. § 9-06-04, invalidates contracts for the sale of real property, or an interest in real property, unless written and signed by the party against whom the claim is made. See Johnson Farms v. McEnroe, 1997 ND 179, ¶ 16, 568 N.W.2d 920. Barnett claims she has an interest in the property in the form of “wandering rights” and in prohibiting the sale of the land; however, these alleged unwritten and unsigned agreements are invalidated by the ’ statute of frauds.

[¶ 14] The six-year statute of limitations, under N.D.C.C. § 28-01-16(1), bars actions on contracts, obligations, or liabilities, express or implied, if not commenced within six years after the claim for relief has accrued. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 765 (N.D.1996). The ten-year statute of limitations, under N.D.C.C. § 28-01-15(2), applies to actions on contracts contained in any conveyance or mortgage of or instrument affecting the title to real property. Id. Barnett’s alleged verbal agreement on financial terms is not contained in the quitclaim deed; thus, the ten-year statute of limitations does not apply. Because the alleged agreement was collateral to the deed conveyed in 1991, the six-year statute of limitations bars her contract action to collect the remaining payment allegedly outstanding.

Ill

[¶ 15] Accordingly, we affirm the district court’s judgment prohibiting Barnett from entering the McHenry County property and dismissing her other claims.

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


author: SANDSTROM, Justice.

text:
    2000 ND 208
    In the Interest of W.E. and D.S., Children. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.E., W.E., D.S., and Mervin Nordeng, Guardian ad Litem, Respondents; S.E., Respondent and Appellant. In the Interest of D.S., a Child. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, A.K., S.E., D.S., and Mervin Nordeng, Guardian ad Litem, Respondents; S.E., Respondent and Appellant. In the Interest of W.E., a Child. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.E., G.E., W.E., and Mervin Nordeng, Guardian ad Litem, Respondents; S.E., Respondent and Appellant.
    Nos. 20000078-20000080.
    Supreme Court of North Dakota.
    Dec. 7, 2000.

      Constance L. Cleveland, Assistant State’s Attorney, Fargo, ND, for petitioner and appellee.
    Steven D. Mottinger, Fargo, ND, for appellant.
   SANDSTROM, Justice.

[¶ 1] S.E. appeals from an East Central Judicial District Juvenile Court order terminating her parental rights. Concluding the evidence was not sufficiently clear and convincing to satisfy the requirements for termination of S.E.’s parental rights, we reverse.

I

[¶ 2] S.E., a mildly retarded, 22-year-old woman, is the mother of two special-needs children. Her older son was admitted to treatment for aggressive and unruly behavior and was not returned to his mother prior to the termination hearing. Based on the recommendation of social services, her younger son was placed under the legal custody of Cass County Social Services. After he suffered a burn, allegedly inflicted by S.E. as punishment, he was taken from his mother and placed in protective custody. S.E. and social services agreed on a detailed service and treatment plan regarding the younger son’s care. Although the younger son was later returned to her care, S.E. did not comply with the terms of the plan, and petitions for termination of parental rights were filed based on the affidavits of social worker Nancy Pillen.

[¶ 3] The older son’s father did not respond to the petition, but the younger son’s father consented to the termination of his parental rights. The referee held that the older son’s father had abandoned him, the children were deprived, S.E. lacked parental abilities, and the children would suffer harm if the parental rights' were not terminated. Therefore, the referee recommended termination of S.E.’s parental rights to both children. S.E. requested judicial review, and the district judge affirmed the referee’s findings of fact and conclusions of law and adopted the recommendation. See N.D. Sup. Ct.Admin. R. 13.

[¶4] S.E. appeals, arguing the court erred in removing the children from the family home and in finding deprivation is likely to continue. At trial, S.E. offered the testimony of members of a church she had joined shortly after termination of parental rights was sought. The church members vowed support to S.E. and her children. S.E. argues the children would not continue to be deprived. The State argues the trial testimony and evidence presented were sufficient to affirm the decision of the judicial referee.

[¶ 5] The juvenile court had jurisdiction to terminate S.E.’s parental rights. N.D.C.C. § 27 — 20—03(l)(b). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 6] When reviewing an order terminating parental rights, we review the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court. “Although the review is similar to trial de novo, we give deference to the juvenile court’s decision, because that court has had the opportunity to observe the candor and demeanor of the witnesses.” In the Interest of D.F.G., 1999 ND 216, ¶ 12, 602 N.W.2d 697 (citing In the Interest of AS., 1998 ND 181, ¶ 13, 584 N.W.2d 853; N.D.C.C. § 27-20-56(1)).

in

[¶ 7] Absent abandonment or consent, termination of parental rights requires satisfaction of a three-part test. N.D.C.C. § 27-20-44(l)(b); D.F.G., 1999 ND 216, ¶ 11, 602 N.W.2d 697. To terminate parental rights, the State must prove by clear and convincing evidence (1) the child is deprived, (2) the conditions and causes of the deprivation are likely to continue, and (3) the child is suffering, or will in the future suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27-20-44; D.F.G., 1999 ND 216, ¶ 11, 602 N.W.2d 697 (citing AS., 1998 ND 181, ¶ 15, 584 N.W.2d 853).

A

[¶ 8] Are the children deprived? A deprived child is “one who ‘[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.’ ” D.F.G., 1999 ND 216, ¶ 13, 602 N.W.2d 697 (citing A.S., 1998 ND 181, ¶ 16, 584 N.W.2d 853; N.D.C.C. § 27-20-02(5)(a)). S.E. concedes her sons were deprived; therefore, deprivation is not an issue on appeal.

B

[¶ 9] Are the conditions and causes of the deprivation likely to continue? N.D.C.C. § 27-20-44(l)(b). Although she had not complied with a proposed social services support plan, S.E. argues her new church and its members comprise a “fully sustained support system” that will assist her with her parental obligations. S.E. argues the testimony of members of her church establishes that deprivation is not likely to continue. She argues the juvenile court did not offer her the opportunity to take advantage of her new support system to provide further evidence that deprivation is not likely to continue. The petitioner argues the long-term mental health problems of the children and S.E. “create a circumstance where deprivation is likely to continue.”

[¶ 10] Evidence of past deprivation, although a factor to consider, is not sufficient to terminate parental rights. D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697 (citing In the Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573). Prognostic evidence is required to determine deprivation is likely to continue. Id. (citing In the Interest of J.L.D., 539 N.W.2d 73, 77 (N.D. 1995)). The State argues the testimony of three mental health professionals establishes that the mental health problems are chronic and therefore deprivation will continue.

1

[¶ 11] The first mental health professional to testify at trial was Norman Beg-noche, a neuropsychologist. Begnoche testified he diagnosed S.E. as being mildly mentally retarded, but capable of caring for two children with family or social services support. Begnoche completed the first parental capacity evaluation of S.E. Nancy Pillen, a social worker, testified that following Begnoche’s evaluation, Jan Witte-Bakken was commissioned by social services to complete a second parental capacity evaluation of S.E. Pillen testified Begnoche’s evaluation “didn’t necessarily delve into the parenting stuff.... So we requested another parental capacity to be more all-inclusive.”

[¶ 12] Witte-Bakken, a licensed psychologist, used Begnoche’s evaluation and three meetings with S.E. to complete a second parental capacity evaluation. Witte-Bakken did not address the ultimate issue of termination of parental rights, nor did she evaluate S.E.’s two sons. Witte-Bakken testified S.E.’s home was appropriately furnished, S.E. was able to get the children to school, and S.E.’s home posed no safety hazards for the children.

[¶ 13] Witte-Bakken last evaluated S.E. in April of 1999, and the termination hearing began on December 17, 1999. Witte-Bakken testified she made numerous specific recommendations for social services intervention and those recommendations should have been completed “if the plan was to be returning the children.”

[¶ 14] Pillen initiated the petition to terminate S.E.’s parental rights subsequent to this second parental capacity evaluation. Pillen testified she did not follow Witte-Bakken’s specific recommendations because social workers had previously attempted or completed services similar to those recommended by Witte-Bakken.

[¶ 15] After seeking a second parental capacity evaluation and concluding the recommendations had already been addressed, Pillen testified her agency resisted a third parental capacity evaluation. Pillen testified the children needed stability and the social work agency had nothing further to offer.

[¶ 16] Finally, licensed psychologist Kevin Schumacher testified. Schumacher evaluated both boys, but did not evaluate S.E. Schumacher stated he had no basis for an opinion about whether S.E. could care for her sons, but he suggested, with a support network and cooperation, she could.

[¶ 17] We conclude that the testimony of Begnoche, Witte-Bakken, and Schu-macher does not establish, by clear and convincing evidence, that deprivation was likely to continue.

2

[¶ 18] The remaining testimony does not support a finding that deprivation was likely to continue. In addition to the three mental health professionals, eleven witnesses testified at trial.

[¶ 19] Teneshia Poue, an employee of Community Living Services, testified she worked with S.E. for several months. Poue testified S.E.’s house was tidy and well-kept and S.E. was cooperative and open to receiving services. Poue observed S.E. interact with her younger son and was not concerned that he was in danger or that S.E. was incapable of earing for him.

[¶ 20] Steve Jortstad, a social worker case manager for Community Living Services, testified he supervised Poue and at times S.E. was not fully cooperative. Jort-stad also testified, however, that S.E. “has done everything we have asked” in regard to improving the management of her personal finances. He testified S.E. had improved her skills in the three months preceding the termination hearing.

[¶ 21] Amy Simmel, a child care provider at the YMCA, testified she was the primary caregiver and teacher for S.E.’s younger son. Simmel’s only concern was that S.E. occasionally used harsh words when addressing her son. Simmel testified S.E. and her son got along well, and testified the boy presented no hygiene problems. Simmel became concerned only after she discovered a burn on the boy’s shoulder.

[¶ 22] Patricia Carlson, a head start teacher in Fargo, testified S.E. and her younger son got along well together. Although S.E.’s son was referred for speech assistance, Carlson attributed his speech difficulties to cultural differences. Carlson observed S.E.’s younger son for an entire school year, and although she initially had concerns with the boy’s performance and behavior, she testified he improved significantly in a short period of time.

[¶ 23] Jennie Leonne, a parent aide with Cass County Social Services, testified she assisted S.E. with budgeting, preparing food, and caring for the children. Leonne testified she observed interaction between S.E. and both children. She testified S.E. is much more capable of caring for her younger son than for her older son because of the older son’s behavior.

[¶ 24] Nancy Schaffer, a licensed social worker who works with child protection, testified she assisted S.E.’s younger son after he was burned. Schaffer testified the boy said he had been pushed back into hot oven racks or stove burners by S.E. Schaffer stated the boy told her S.E. did so, with a knife at his throat, as punishment. Schaffer’s testimony conflicts with the testimony of other witnesses regarding the boy’s burn. There is no finding below as to how the burn actually occurred.

[¶ 25] The final witness for the State was Pillen, who testified S.E.’s home was always neat and clean and her children were on time. Pillen testified S.E. could be taught home care tasks, but she was incapable of learning abstract parenting skills. Pillen also testified S.E. had made improvements and things went well in S.E.’s home when. S.E.’s pastor was present. Pillen testified S.E. was incapable of parenting both children, and the older son was more difficult to parent than the younger son. Pillen testified S.E. could never parent the older boy, but could parent the younger. Pillen testified her goal for the younger son was to get a permanent solution, but she testified “I don’t think all connection needs to be shut off between” S.E. and her younger son.

[¶ 26] ■ In rebuttal to the petitioner’s evidence, S.E., Claudia Taylor, a licensed foster care provider and member of S.E.’s church, and S.E.’s pastor, Dean Stanley, testified. S.E. testified she did not burn her younger son and she did not like social worker Pillen because Pillen made her feel worthless. S.E. testified she had a ninth-grade education. S.E. testified she was unable to prove her support system to Pillen because Pillen would not let the church members be present while she observed S.E.

[¶ 27] Claudia Taylor testified she is a licensed foster care provider and has cared for over sixty foster children. Taylor is a member of a bi-racial family and has a son with attention deficit disorder. Taylor has a college degree and is working on her master’s thesis. Taylor testified she became acquainted with S.E. at church and had observed S.E.’s personality change for the better over a period of months. Taylor testified S.E. babysat for her and was involved in other events with Taylor. Taylor testified S.E. has trouble with social workers due to her lack of trust in them and her feeling of being talked down to, but Taylor did not have any similar troubles with S.E. in the six months they had been acquainted.

[¶ 28] Taylor testified she is willing to open her home to S.E. and S.E.’s children as an alternative to terminating S.E.’s parental rights. Taylor testified she possesses special skills as a foster parent, as a member of a bi-racial family, and as the mother of a child with attention deficit disorder. Taylor testified she was willing to make a long-term commitment to S.E. and to S.E.’s sons and she would seek the assistance of social services if the alternative arrangements did not work.

[¶ 29] Finally, Dean Stanley, S.E.’s pastor, testified on S.E.’s behalf. Stanley stated he, too, would support S.E. and her children in an effort to avoid termination of parental rights. Stanley testified Taylor, along with other members of his congregation, including a social services professor, and another social worker, had all pledged support. Stanley testified he observed S.E. interact with the boys, and the assistance offered would probably be needed for up to twelve years.

3

[¶ 30] We have recognized the difficulty in terminating parental rights, “especially when there has been no claim of intentional deprivation.” In the Interest of L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573 (citation omitted). Further, natural parents have a fundamental right to their children, “which is of a constitutional dimension.” Id. (citation omitted). The constitutional protections, although not absolute, require that “[a]ny doubts should be resolved in favor of the natural parent[,] and parental rights should be terminated only when necessary for the child’s welfare or in the interest of public safety.” Id. (citation omitted). When an alternative exists in the best interests of the children, this Court prefers the alternative over termination of parental rights. In the Interest of M.N., 294 N.W.2d 635, 638 (N.D.1980).

[¶ 31] The juvenile referee’s findings and conclusions state “all reasonable efforts have been made to prevent the need for removing these children from their own home ad [sic] to make it possible to return these children to their own home.” The findings do not address the assistance and support network offered by S.E. at trial. Further, the referee’s findings do not address the fact that social services made no effort to implement the recommendations rendered by Witte-Bakken in the second parental capacity evaluation. Combined, the record and testimony do not establish by clear and convincing evidence that deprivation will continue.

C

[¶32] Is the child suffering or will the child in the future suffer serious physical, mental, moral, or emotional harm? The petitioner argues S.E.’s inability to manage her finances, her employment history, and her resistance to social services suggest there will likely be harm to the children.

[¶ 33] S.E. argues social services “presented a threatening, intimidating presence in her life” and social workers failed to comply with recommendations of mental health professionals. Further, S.E. argues the testimony of the children’s guardian ad litem establishes that termination of parental rights was premature and the burn the younger boy suffered was the sole reason that the children were no longer in S.E.’s custody.

[¶ 34] The likelihood of serious harm may be shown by prognostic evidence. D.F.G., 1999 ND 216, ¶28, 602 N.W.2d 697. The petitioner argues instability and inconsistency in S.E.’s parenting skills and her resistance to services demonstrate likely future harm to the children. This Court does not set forth an arbitrary time for parents to demonstrate an ability to properly parent their children before termination is sought. L.F., 1998 ND 129, ¶ 28, 580 N.W.2d 573. S.E. argues her level of functioning would allow her to “learn appropriate limit setting, discipline and safety measures,” particularly in light of the support offered by her pastor and church members, including a social worker. S.E. argues supplemental services and a reasonable time would allow her to develop and demonstrate her ability to properly parent her sons.

[¶ 35] At trial, the children’s guardian ad litem and S.E. argued termination of parental rights was premature. The juvenile court heard the testimony of numerous witnesses, including three mental health professionals. Each of the mental health experts testified S.E. has the ability to parent her children but she requires help to do so. The testimony establishes that both sons have special needs and S.E. lacks the ability to care for the children herself. However, the testimony does not establish that physical, emotional, or mental harm to the children is likely as long as S.E. has the required assistance.

IV

[¶ 36] “It is not reason enough to deprive parents of custody that their home is not the best, or even that they are not the best parents that could be offered to the child, so long as the child does not suffer physical or moral harm, or lack of food or clothing.” In the Interest of M.M.C., 277 N.W.2d 281, 286 (N.D.1979) (citations omitted).

[¶ 37] The trial testimony and record demonstrate that with assistance from her family, church, and trained social services professionals, S.E. may properly care for her children. We agree with the children’s guardian ad litem that termination of S.E.’s parental rights was premature. We note S.E.’s ability to properly care for her sons is “heavily dependent upon the assistance” of others. Id.

[¶ 38] Although testimony shows that the difficulty of parenting these children will increase, after an extensive examination of the record, we conclude the record and testimony presented to the juvenile court referee do not support termination of S.E.’s parental rights.

[¶ 39] We do not lightly consider the younger son’s burns, allegedly inflicted by S.E. For this reason, and because deprivation is conceded, we remain assured that the juvenile court will maintain jurisdiction over the children and will ensure that the appropriate supervision and monitoring of these children will continue. A petition for termination of parental rights may again be filed at a later date if the parenting of these children becomes so difficult that continuing deprivation and harm result or if the support network posed by S.E. is no longer viable.

V

[¶ 40] We conclude the juvenile court erred in finding that parts two and three of the parental termination test were proven by clear and convincing evidence. We therefore reverse the order terminating S.E.’s parental rights and remand to the juvenile court.

[¶ 41] VANDE WALLE, C.J., NEUMANN, MARING, KAPSNER, JJ., concur.


text:
    2000 ND 209
    Andrew P. SCHULTZE, DDS, Plaintiff and Appellant, v. CONTINENTAL INSURANCE COMPANY, Defendant and Appellee.
    No. 20000135.
    Supreme Court of North Dakota.
    Dec. 7, 2000.

      Susan Schmidt (argued) & William C. Severin, Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff and appellant.

      Adele Hedley Page (argued) & Cheryl L. Eia, Dorsey & Whitney, Fargo, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Andrew Schultze appealed a summary judgment declaring his insurer, Continental Casualty Company, had no duty to defend him against a former employee’s lawsuit for alleged sexual discrimination, wrongful discharge, and defamation. We conclude Continental has a duty to defend Schultze against the former employee’s defamation claim. We conclude Continental ordinarily would have no duty to defend Schultze against the sexual discrimination and wrongful discharge claims because, under the former employee’s complaint, those claims are based on allegations of sexual harassment and unwelcome sexual advances that began before the “prior acts date” of Continental’s insurance policy. Because Continental has a duty to defend the defamation claim, however, we hold it has a duty to defend the entire lawsuit against Schultze. We reverse the summary judgment and remand for proceedings consistent with this opinion.

I

[¶ 2] Schultze carried a professional liability insurance policy with Continental, which included an “employment practices liability defense coverage amendatory endorsement.” The endorsement said it “provides coverage only for certain defense costs [and] no coverage ... for awards, judgments, settlements or other monetary sums related to [wrongful employment practices] claims.” The endorsement required Continental to provide Schultze up to $25,000 of defense costs, subject to co-payments, against claims alleging a “wrongful employment practice” that “beg[a]n on or after the prior acts date” of January 23, 1998. The endorsement defined “wrongful employment practice” to include discrimination, sexual harassment, wrongful termination, defamation, retaliation, and any other violation of any federal, state, or local statute or ordinance relating to those types of claims.

[¶ 3] On November 15, 1999, a former employee sued Schultze for sexual discrimination, wrongful discharge, and defamation. The employee’s complaint alleged she worked for Schultze as a dental hygienist from November 1989 until November 17, 1998, when he fired her. The employee’s complaint alleged Schultze made unwanted sexual advances to her from December 1993 until November 1996, and she involuntarily engaged in a sexual relationship with him out of fear of retaliation. She alleged she tried to end the sexual relationship, but each time Schultze retaliated against her, and she finally ended the relationship in November 1996. She alleged Schultze retaliated against her at work, and on November 17, 1998, he fired her and falsely accused her of embezzlement. She alleged Schultze made false statements to third persons, which prevented her from obtaining employment as a dental hygienist. Her complaint alleged Schultze “engaged in sexual discrimination against [her] in the nature of sexual harassment;” his “discharge of [her] was an unlawful employment practice ... in retaliation for [her] rejection of [his] unwelcome sexual advances;” and he “falsely and maliciously disseminated false statements about [her] to third persons such that [she] is not able to obtain employment in her chosen profession of dental hygienist.”

[¶ 4] Continental refused to defend Schultze against his former employee’s claims, concluding the wrongful employment practices alleged in her complaint began in 1993, before the “prior acts date” of January 23, 1998. Schultze brought this declaratory judgment action against Continental, seeking a declaration that it had a duty to defend and pay claim expenses against his former employee’s wrongful employment practice claims. The district court granted Continental summary judgment, concluding all of Schultze’s former employee’s claims originated before the prior acts date of January 23, 1998, and Continental therefore had no duty to defend him against those claims.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 32-23-01 and 27-05-06. Schultze’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 32-23-07 and 28-27-01.

II

[¶ 6] We review this appeal under our standards for summary judgment, which is a procedural device for the prompt disposition of a case on the merits, without a trial, if no material dispute of fact exists, or if only a question of law is involved. Midwest Cas. Ins. Co. v. Whitetail, 1999 ND 133, ¶ 10, 596 N.W.2d 341. Summary judgment is improper if there are relevant, unresolved factual issues. Id.

III

[¶ 7] Schultze argues the district court erred in deciding all three claims in his former employee’s complaint were a continuation of the alleged affair between him and the employee. He argues it is not clear from her complaint which of the otherwise covered allegations stem from events that occurred after the prior acts date. He argues a reasonable interpretation of the complaint refers to new events potentially within the claims period, and any doubt or ambiguity in the complaint must be construed in his favor.

A

[¶ 8] A liability insurer’s obligation to defend its insured is ordinarily measured by the terms of the insurance policy and the pleading of the claimant who sues the insured. Applegren v. Milbank Mut. Ins. Co., 268 N.W.2d 114, 116 (N.D.1978); Kyllo v. Northland Chemical Co., 209 N.W.2d 629, 634 (N.D.1973). If the allegations of the claimant’s complaint could support recovery upon a risk covered under the insurer’s policy, a liability insurer has a duty to defend its insured. Ap-plegren, at 116; Kyllo, at 634. We have formulated the duty to defend to require a liability insurer to defend an underlying action against its insured if the allegations in the complaint give rise to potential liability or a possibility of coverage under the insurance policy. Whitetail, 1999 ND 133, ¶ 9, 596 N.W.2d 341; Nodak Mut. Ins. Co. v. Heim, 1997 ND 36, ¶ 11, 559 N.W.2d 846; National Farmers Union Prop, and Cas. Co. v. Kovash, 452 N.W.2d 307, 309 (N.D.1990). See 14 Lee R. Russ, Couch on Insurance § 200:12 (3d ed.1999). Although any doubt about an insurer’s duty to defend is resolved in favor of the insured, Heim, at ¶ 11, courts do not operate in a vacuum, and an insurer has no duty to defend an action if there is no possibility of coverage under the policy. Ohio Cas. Ins. v. Clark, 1998 ND 153, ¶8, 583 N.W.2d 377.

B

[¶ 9] Continental’s employment practices liability endorsement unambiguously required Continental to defend Schultze against claims alleging a wrongful employment practice that began on or after the prior acts date of January 23, 1998. The endorsement specifically excluded coverage for any claim alleging a wrongful employment practice that began before January 23, 1998. Schultze’s former employee’s sexual discrimination claim alleges Schultze “engaged in discrimination against [her] in the nature of sexual harassment,” and her wrongful discharge claim alleges her discharge “was an unlawful employment practice ... in retaliation for [her] rejection of [his] unwelcome sexual advances.” The employee’s complaint alleges Schultze made unwanted sexual advances from December 1993 to November 1996. Schultze argues it is not clear which allegations stem from the alleged terminated affair and which allegations may be connected to unrelated events occurring after January 23, 1998. The employee’s complaint alleged, after the employee terminated the affair in November 1996, Schultze retaliated against her for refusing his unwelcome sexual advances and fired her on November 17, 1998. Although Schultze fired the employee after the prior acts date, her complaint alleges conduct that was a continuation of events begun before January 23, 1998, culminating in the discharge on November 17, 1998. Cf Heim, 1997 ND 36, ¶¶ 30-31, 559 N.W.2d 846 (allegations of inadvertent and negligent touching and intentional molestation represented a continuous pattern of inextricably linked intentional conduct).

[¶ 10] As alleged in the employee’s complaint, her sexual discrimination and wrongful discharge claims identify conduct that, under the language of the insurance policy, began before the prior acts date. Continental’s duty to defend is not triggered by speculation about additional facts. See Kovash, 452 N.W.2d at 309 (stating allegations in complaint controlling); Applegren, 268 N.W.2d at 118 (same); Kyllo, 209 N.W.2d at 634 (same). See generally 14 Lee R. Russ, Couch on Insurance § 200:20 (duty to defend is not triggered by mere speculation that additional facts or causes of action may be developed at a later time). Under North Dakota law, employment is presumed to be at will, and an employer may terminate an employee with or without cause. N.D.C.C. § 34-03-01; Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 8, 610 N.W.2d 53. Public policy exceptions to the at-will doctrine prohibit employers from engaging in discriminatory practices. Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 17, 599 N.W.2d 293. See Fatland v. Quaker State Corp., 62 F.3d 1070, 1072 (8th Cir.1995) (applying North Dakota law). The sexual harassment and wrongful discharge claims alleged in the former employee’s complaint represent a continuous pattern of conduct that began before the prior acts date. See Heim, 1997 ND 36, ¶¶ 30-31, 559 N.W.2d 846. When Continental’s insurance policy with Schultze is compared with the allegations in his former employee’s complaint against him, we conclude the sexual discrimination and wrongful discharge claims began before the prior acts date and Continental ordinarily would not be required to defend Schultze against those claims.

C

[¶ 11] Schultze argues his former employee’s complaint includes two different defamation claims with different sources, and both defamations could have occurred after the prior acts date of January 23,1998.

[If 12] Under North Dakota law, every person has a right of protection from defamation. Jose, 1999 ND 175, ¶ 23, 599 N.W.2d 293. Defamation is classified as either libel or slander. N.D.C.C. § 14-02-02. Libel is “a false and unprivileged publication by writing ... which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person’s occupation.” N.D.C.C. § 14-02-03. Slander is “a false and unprivileged publication other than libel, which ... [c]harges any person with crime ... [or][t]ends directly to injure the person in respect to the person’s office, profession, trade, or business, ... by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires.” N.D.C.C. § 14-02-04(1) and (3). Actionable defamation requires publication, which necessitates communication of the alleged defamatory matter to a third person. See Emo v. Milbank Mut. Ins. Co., 183 N.W.2d 508, 512 (N.D.1971); Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 533, 23 N.W.2d 247, 251 (1946).

[¶ 13] Although Schultze and his former employee may have had a prior relationship that began before the prior acts date, the employee’s complaint alleges Schultze falsely accused her of embezzlement on November 17, 1998. Her complaint alleged Schultze “falsely and maliciously disseminated false statements about [her] to third persons such that [she] is not able to obtain employment in her chosen profession of dental hygienist.” We resolve any doubt about an insurer’s duty to defend in favor of the insured. Heim, 1997 ND 86, ¶ 11, 559 N.W.2d 846. Viewed in that framework, we believe any defamatory statements by Schultze were allegedly published after the prior acts date and are distinct from, and not necessarily a continuation of, Schultze’s unwanted sexual advances or sexual harassment. A jury could find defamation even if it found no sexual harassment. We conclude the defamation claim is within the terms of Continental’s contractual duty to defend Schultze, and we hold Continental has a duty to defend Schultze against that claim.

IV

[¶ 14] We have said, when several claims are made against an insured, the insurer has a duty to defend the entire lawsuit if there is potential liability or a possibility of coverage for one of the claims. Heim, 1997 ND 36, ¶ 11, 559 N.W.2d 846. We reverse the summary judgment declaring Continental has no duty to defend Schultze, and we remand for proceedings consistent with this opinion.

[¶ 15] VANDE WALLE, C.J., NEUMANN, MARING, KAPSNER, JJ., concur.