author: MARING, Justice. RONALD L. HILDEN, District Court Judge,

text:
    2001 ND 66
    STATE of North Dakota, Plaintiff and Appellee, v. Daniel Edward DUCHENE, Defendant and Appellant.
    No. 20000209.
    Supreme Court of North Dakota.
    April 11, 2001.

      Kent M. Morrow, Bismarck, for defendant and appellant.
    Merle Ann Torkelson, State’s Attorney, Washburn, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Daniel Duchene appeals from criminal judgments entered upon a jury verdict finding him guilty of manufacture of a controlled substance and possession of drug paraphernalia. Because there was probable cause to support the search warrant issued by the magistrate, we affirm the judgments of the trial court.

I

[¶ 2] In April 1998, Game Warden Timothy Larson received information from an' anonymous informant that Daniel Duchene was growing marijuana in his home located in Turtle Lake, North Dakota. According to the informant, Duchene was growing the marijuana in a closet in his home. The informant, who contacted Warden Larson by telephone, did not explain to him how she acquired the information or how she came to know Duchene. Upon receiving the information from the anonymous informant, the warden contacted Deputy Lange of the McLean County Sheriffs Department. Thereafter Deputy Lang contacted Deputy Siurek of the South Sakakawea Narcotics Task Force (“SSNTF”).

[¶ 3] Together the two deputies conducted an independent investigation. On June 9, 1998, the deputies collected Du-chene’s garbage, which revealed two potting soil bags, one marijuana seed, eight marijuana stems, and a utility bill addressed to Duchene at his Turtle Lake address.

[¶ 4] On June 10, 1998, Deputy Siurek of the SSNTF applied to a magistrate for a warrant to search the Duchene home. In his affidavit supporting the application, Deputy Siurek stated Deputy Brian Lang of the McLean County Sheriffs Department had provided information that Du-chene was growing marijuana in his home. Deputy Siurek further stated Duchene had prior criminal convictions involving drugs. Finally, the deputy stated he and another deputy had collected Duchene’s trash on June 9, 1998. Deputy Siurek listed the items found in Duchene’s garbage. The deputy did not inform the magistrate of the anonymous informant.

[¶ 5] Based on the information provided, the magistrate granted law enforcement officers a search warrant to search Duchene’s home for evidence related to the use, possession or manufacture of marijuana. Officers searched Duchene’s home on June 11, 1998, and seized evidence, including five marijuana plants, drug paraphernalia, numerous marijuana seeds, and marijuana.

[¶ 6] On May 19, 1999, Duchene brought a motion to suppress the evidence seized from his home, arguing there was insufficient probable cause to issue the search warrant. An evidentiary hearing was held, and the trial court issued an order, dated June 2, 1999, denying Du-chene’s motion to suppress. The matter proceeded to trial, and on April 25, 2000, a jury convicted Duchene of manufacture of a controlled substance and possession of drug paraphernalia. Duchene appeals from the criminal judgments.

II

[¶ 7] Duchene contends there was insufficient evidence to support a finding of probable cause because Deputy Siurek failed to reveal that much of the information found in his affidavit was derived from an anonymous informant and was not corroborated. Duchene contends Deputy Si-urek misled the magistrate by this omission.

[¶ 8] Challenges to the issuance of a search warrant involving an allegation that the law enforcement officer made false or misleading statements in an affidavit, are governed by the standard set forth in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

[WJhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

“A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate’s evaluation of whether or not there is probable cause.” State v. Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593. The Franks standard also applies to statements that are misleading by omission. Id. Whether the defendant makes a substantial preliminary showing that a reckless or intentional falsity has been made is a finding of fact. State v. Tester, 1999 ND 60, ¶11, 592 N.W.2d 515. “A trial court’s findings of fact in preliminary proceedings of a criminal ease will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” Rangeloff, 1998 ND 135, ¶ 10, 580 N.W.2d 593 (citation omitted).

[¶ 9] Duchene did not request a Franks hearing. He was, however, provided a hearing on his motion to suppress evidence. Following the hearing, the court denied his motion to suppress and concluded there was sufficient probable cause to issue a search warrant.

[¶ 10] The State concedes Deputy Siurek failed to reveal that the source of the information at issue was derived from an anonymous informant. Misleading statements made knowingly and intentionally or with reckless disregard are stricken from the affidavit. Once the misleading statement is omitted, we examine the affidavit’s remaining contents and determine whether that information is sufficient to establish probable cause. Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593 (citing State v. Rydberg, 519 N.W.2d 306, 308-09 (N.D.1994)).

[¶ 11] The Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution require probable cause to issue a search warrant. Whether probable cause exists is a question of law. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. We use the Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), totality-of-the-circumstances test to analyze whether information before the magistrate was sufficient to establish probable cause. Tester, 1999 ND 60, ¶ 17, 592 N.W.2d 515.

[¶ 12] “The magistrate should make a practical, common sense decision on whether probable cause exists to search that particular place.” State v. Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268. We defer to the magistrate’s findings of fact if there is a substantial basis for the probable cause conclusion. State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861.

[¶ 13] Probable cause to search does not demand the same standard of proof to establish guilt at trial. Wamre, 1999 ND 164, ¶ 6, 599 N.W.2d 268. “Probable cause to search exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (citation omitted). All the information presented to establish probable cause should be considered together, rather than analyzed in a piecemeal fashion. State v. Damron, 1998 ND 71, ¶ 6, 575 N.W.2d 912. “Circumstantial evidence may alone establish probable cause to support a search warrant.” Wamre, 1999 ND 164, ¶ 6, 599 N.W.2d 268. Information causing mere suspicion and warranting further investigation, however, is not probable cause. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861.

[¶ 14] A search of Duchene’s garbage revealed two potting soil bags, one marijuana seed, eight marijuana stems, and a utility bill addressed to Duchene at his Turtle Lake address. Duchene contends this evidence does not materially differ from the evidence found in both State v. Lewis, 527 N.W.2d 658 (N.D.1995) and State v. Ennen, 496 N.W.2d 46 (N.D.1993). In Lewis, we held evidence the defendant ordered and received equipment consistent with indoor marijuana growing operations, evidence of increased electrical usage, and evidence the defendant insulated his windows with styrofoam and fiberglas was not sufficient to establish probable cause. 527 N.W.2d at 662. We explained the equipment could be consistent with growing legal plants; the increased electrical usage perhaps indicated the equipment was being used; and the insulation on the windows was consistent with “[w]eatherproof-ing one’s home for wjnter weather in North Dakota.” Id. In Ennen, the magistrate was provided with information the defendant was a known drug user; his water usage was unusually high for a three-month period; his electrical usage was slightly higher than normal; and his shades were drawn. 496 N.W.2d at 49. We held such evidence did not support a finding of probable cause because the defendant’s reputation as a “known drug user” was devoid of any evidentiary support; the increased three-month water usage was consistent with the summer water usage of most homeowners; the slight increase in electrical consumption was not unusual during the summer months; and shades drawn raised no significant inference. Id. at 50.

[¶ 15] The instant case is distinguishable. from both Lewis and Ennen because much of the evidence found in Duchene’s garbage is consistent with criminal activity. Even “seemingly innocent” conduct may give rise to probable cause. Thieling, 2000 ND 106, ¶9, 611 N.W.2d 861. “In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Gates, 462 U.S. at 243-44 n. 13, 103 S.Ct. 2317. Potting soil bags are common household items and are consistent with noncriminal activity. The marijuana seed and marijuana stems found in Duchene’s garbage, however, are consistent with criminal activity. State v. Johnson, 531 N.W.2d 275, 279 (N.D.1995). These items while arguably insufficient to establish guilt are sufficient to warrant a person of reasonable caution to believe the contraband or evidence sought would probably be found in the place to be searched. Id.

[¶ 16] The affidavit to the magistrate also contained information concerning Duchene’s prior criminal history. When used in connection with other evidence, a suspect’s criminal history can support a determination of probable cause. State v. Hage, 1997 ND 175, ¶23, 568 N.W.2d 741. Although each piece of information may not be sufficient to establish probable cause, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted). When considered with Duchene’s prior criminal convictions, the potting soil bags, marijuana seed and marijuana stems would warrant a person of reasonable caution to believe that Duchene was growing, using, or possessing marijuana in his home. Therefore, exclusion of the misleading statement from the affidavit would not affect the magistrate’s evaluation of whether there was probable cause.

[¶ 17] We conclude the items found in Duchene’s garbage and Duchene’s prior drug convictions were sufficient to establish probable cause to issue a search warrant. The search of Duchene’s home was, therefore, reasonable under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution. The judgments of the trial court are affirmed.

[¶ 18] VANDE WALLE, C.J., and NEUMANN and KAPSNER, JJ., concur.

[¶ 19] RONALD L. HILDEN, District Judge, sitting in place of SANDSTROM, J., disqualified.

RONALD L. HILDEN, District Court Judge,

dissenting.

[¶ 20] The majority opinion concludes there was probable cause in this case— withstanding the omission of material information from an officer’s supporting affidavit — to support the issuance of a search warrant of the Appellant’s residence. However, I must respectfully dissent from the opinion of the court. The magistrate’s finding of probable cause was based solely upon an affidavit omitting the fact the affiant’s information originated from an anonymous informant, and coupled with an investigative search of the Appellant’s trash which produced tenuous evidence — a single marijuana seed, eight marijuana stems, two bags of potting soil, and a utility bill addressed to the Appellant — I believe the trial court’s decision to deny the Appellant’s motion to suppress evidence was erroneous as a matter of law.

[¶ 21] The Honorable Judge Gail Hag-erty issued a-search warrant on June 10th, 1998, for the Appellant’s residence after a finding of probable cause the residence may have contained evidence of the use or manufacture and possession of marijuana, drug paraphernalia and/or other controlled substances. Judge Hagerty determined probable cause existed after reviewing an affidavit executed by Deputy David Siurek of the South Sakakawea Narcotics Task Force. Judge Hagerty’s decision was based solely upon the affidavit and without taking any testimony or reviewing any other source of information.

[¶ 22] Deputy Siurek’s affidavit indicates he received information from Deputy Brian Lang of the McLean County Sheriffs Department the Appellant was growing marijuana at his residence and was known to be involved in the use of illegal substances. Deputy Lang received this information from Game Warden Timothy Larson. However, the affidavit does not indicate Game Warden Larson acquired his information from an anonymous informant over the telephone. Moreover, the affidavit does not indicate how Deputy Lang learned the Appellant was growing marijuana in his residence.

[¶ 23] Based upon information originating from the anonymous informant and the Appellant’s past history of drug-related offenses, Deputy Siurek conducted an investigative search of the Appellant’s trash located in the back alley behind the Appellant’s residence. Deputy Siurek’s affidavit indicates the search of the Appellant’s trash was conducted on June 9th, 1998, and resulted in the discovery of the following pieces of evidence: a single marijuana seed, eight (8) marijuana stems, two (2) bags of potting soil, and a utility bill addressed to the Appellant. After examining the affidavit Judge Hagerty issued a search warrant on the same day for the Appellant’s residence.

[¶ 24] Law enforcement searched the Appellant’s residence on June 11th, 1998, and seized five marijuana plants, various drug paraphernalia, numerous marijuana seeds, and marijuana. The Appellant was subsequently charged with “Possession of Drug Paraphernalia” and “Manufacture/Deliver/Possess With Intent To Manufacture or Deliver a Controlled Substance.” The Appellant moved the trial court to suppress the evidence seized from his residence upon the grounds law enforcement did not have probable cause to search his residence. -The Honorable Judge Bruce B. Haskell denied the Appellant’s motion to suppress the evidence seized from the search, holding the totality of the circumstances supported Judge Hagerty’s finding of probable cause and issuance of the search warrant.

[¶ 25] It is undisputed in this case Deputy Siurek’s affidavit omitted the fact the tip of the Appellant’s drug activity originated from an anonymous informant. A trial court may conduct an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to weigh the effect of a factual omission from an affidavit executed in support of a search warrant. See State v. Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593. In the instant case the Appellant never requested a Franks hearing and, unfortunately, the trial court never had the opportunity to supplement the affidavit with the omitted information. See State v. Wamre, 1999 ND 164, ¶24, 599 N.W.2d 268 (stating trial court must consider whether a supplemented affidavit is sufficient to establish probable cause).

[¶ 26] The existence of probable cause is a question of law. Cf. State v. Damron, 1998 ND 71, ¶ 5, 575 N.W.2d 912. To determine probable cause, we use the totality of the circumstances test to review whether the information before a magistrate is sufficient to find probable cause, independent of the trial court’s findings. Id. at ¶ 7. However, it is essential for a court to have all of the material “circumstances” before it when determining if probable cause exists to issue a search warrant. Judge Hagerty was denied this opportunity since her finding was based solely upon an incomplete affidavit. Therefore, this Court must now scrutinize the affidavit for probable cause under the standard of Illinois v. Gates.

[¶ 27] “A party challenging the validity of a search warrant on the basis the information was intentionally or recklessly omitted from the affidavit in support of the warrant must demonstrate the information would have been material to the magistrate’s finding.” See Damron, 1998 ND 71, ¶ 13, 575 N.W.2d 912 (citation omitted). The manner in which an affiant acquires his or her information, such as by an anonymous informant, is clearly material to a judicial determination of probable cause. The circumstances of an informant’s knowledge of illegal activity allow a magistrate to measure the basis of knowledge and veracity of the information being offered by the affiant. Cf. State v. Thieling, 2000 ND 106, ¶ 11, 611 N.W.2d 861 (finding an affidavit did not explain how officer determined defendants were involved with drugs nor indicate corroboration of officer’s information). In the instant case the materiality of the informant’s anonymous nature to Judge Hagerty’s determination of probable cause is beyond doubt, especially in view of State v. Thompson, 369 N.W.2d 363 (N.D.1985) and the incorporation of Aguilar-Spinelli into the totality of the circumstances test.

[¶ 28] The majority opinion sets aside the “misleading statement from the affidavit” and concludes it would not affect the magistrate’s evaluation of whether probable cause existed in this case. See infra majority opinion at ¶ 16. However, setting aside the misleading statement from the affidavit is impossible, since Deputy Siur-ek’s affidavit does not contain any misleading statements to set aside. Instead, the affidavit must be supplemented by the information omitted regarding the anonymous informant. Then, this Court must determine if whether under the totality of the circumstances test probable cause existed for Judge Hagerty to issue the search warrant for the Appellant’s residence based upon the supplemented affidavit.

[¶ 29] After supplementing Deputy Si-urek’s affidavit with the omitted fact the information originated from an anonymous informant, I believe the affidavit is factually deficient to support probable cause. A magistrate should view any information obtained from an “untested” anonymous informant with inherent skepticism.

Information supplied by an anonymous informant cannot alone establish probable cause for a warrant if the tip provides virtually nothing from which one might conclude that the informant is honest or that his information is reliable, or if the information ‘gives absolutely no indication of the basis for the [informant’s] predictions’ regarding a defendant’s criminal activities.

Thompson, 369 N.W.2d at 367 (citing Illinois v. Gates, 462 U.S. 213,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In the instant case, supplementing Deputy Siurek’s affidavit with the fact his information originated from an anonymous informant leaves a factual vacuum regarding the veracity and basis of knowledge of the informant. Cf. State v. Lewis, 527 N.W.2d 658, 662 (N.D.1995) (noting information of drug activity derived from an untested informant was insufficient to support probable cause). Unfortunately, this court cannot fill the factual vacuum based upon the record before it.

[¶ 30] Judge Haskell in his memorandum opinion denying the Appellant’s motion to suppress evidence concludes: “Here, there is no argument that the police provided the magistrate with information from which she could determine the informant’s reliability.” Deputy Siurek’s affidavit, however, is completely void of any such information. Instead, the affidavit states “[t]hat I received information from Deputy Brian Lang of the McLean County Sheriffs Department the [sic] DANIEL DUCHENE is growing marijuana at his residence, and that he has been known to be involved in the use of illegal controlled substances.” This is a concluso-ry allegation, or “bare bone” conclusion, the Appellant was growing marijuana at his residence. The affidavit simply does not describe any of the circumstances or facts relating to the basis of knowledge or the veracity of the anonymous informant. Cf. Thompson, 369 N.W.2d at 368 (finding an allegation of drug sale lacking in evi-dentiary detail and whether an anonymous informant was privy to personal information).

[¶ 31] This court has held affidavits omitting background facts on how and where law enforcement acquires information of illegal activity sufficient to support probable cause when other evidence, such as testimony, is offered to prove the reliability of the informant. Cf. State v. Dymowski, 458 N.W.2d 490, 498 (N.D.1990); cf. also State v. Dahl, 440 N.W.2d 716, 719-20 (N.D.1989). However, probable cause cannot rest solely upon a conclusory allegation from an untested, anonymous informant. Cf. Thompson, 369 N.W.2d at 369 (noting magistrate not provided enough meaningful information to make informed judgment on anonymous informant’s past performance as informant).

[¶ 32] Under the totality of the circumstances test from Illinois v. Gates, Deputy Siurek’s incomplete affidavit may still support probable cause if the anonymous informant’s tip was corroborated by further investigation. Cf. Woehlhoff v. State, 487 N.W.2d 16, 18 (N.D.1992) (citation omitted) (noting if an informant does not supply information necessary to evaluate tip, police must corroborate through independent investigation). Deputy Siurek corroborated the information he received from Deputy Lang by conducting an investigative search of the Appellant’s trash located behind his residence. This search resulted in the discovery of the following pieces of evidence: a single marijuana seed, eight marijuana stems, two bags of potting soil, and a utility bill addressed to the Appellant. Deputy’s Siurek’s executed affidavit described the investigative search and listed the items discovered from the Appellant’s trash.

[¶ 33] It is undeniable the discovery of marijuana seeds in a person’s garbage taken from an alley behind the person’s residence may support a person of reasonable caution to believe marijuana may be present in the residence. Cf. State v. Johnson, 531 N.W.2d 275, 279 (N.D.1995) (holding marijuana seeds in defendant’s garbage bag supported probable cause); cf also State v. Erickson, 496 N.W.2d 555, 559 (N.D.1993). It is also undeniable that a magistrate must make a practical, common sense decision when evaluating the information submitted in the form of an affidavit or testimony together with all other evidence. Cf. State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988) (noting Illinois v. Gates encourages courts to recognize two prongs of Aguilar Spinelli as intertwining with other issues).

[¶ 34] This Court must always hesitate from second-guessing the lower courts’ evidentiary assessments when determining probable cause. However, reasonableness under the Fourth Amendment of the United States Constitution, and our own State constitution, should never be surrendered to the rather casual notion of “common sense.” This case ultimately depends upon the government finding a single marijuana seed and eight marijuana stems after conducting a single search of the Appellant’s garbage. The minute quality of a single marijuana seed and eight marijuana stems is not “substantial evidence” — together with the lack of background information concerning the informant — to conclude probable cause existed that the Appellant was growing marijuana in his residence. Moreover, the Appellee has not suggested any exigent circumstances were present to prevent law enforcement from ■ conducting a further investigation of the Appellant’s suspected illegal activity.

[¶ 35] Even if a single marijuana seed and eight marijuana stems — along with the utility bill, the two potting soil bags, and the Appellant’s drug conviction — -supported the finding of probable cause under the totality of the circumstances in this case, the complete absence from Deputy Siurek’s affidavit of any fact regarding the anonymous informant is still troubling. Cf. Dymowski, 458 N.W.2d at 495 (citing Dahl, 440 N.W.2d at 718) (noting Aguilar and Spinelli relevant to judicial determination of probable cause).

[¶ 36] As a county court judge for Stark County in 1988, I issued the search warrant in the case the Supreme Court of North Dakota adopted the totality of the circumstances test from Illinois v. Gates as the standard for determining probable cause. See Ringquist, 433 N.W.2d 207. I initially declined to issue the search warrant in that case since law enforcement revealed its suspicion originated from an anonymous informant who declined to reveal his identity and who failed to report the alleged drug activity before. As a result, law enforcement continued their investigation of the defendant and discovered additional corroborating evidence. They interviewed two other confidential informants, who provided detailed information of the defendant’s alleged drug activity. See generally id. at 208-09. Based upon the addition of this detailed information, I issued the search warrant under the totality of the circumstances.

[¶ 37] The District Court disagreed with me and granted the defendant’s motion to suppress the evidence seized from the defendant’s residence on the basis the information furnished to the magistrate was lacking in veracity under the Aguilar two-pronged test. On appeal the Supreme Court of North Dakota reversed the District Court by adopting Illinois v. Gates as the standard for determining probable cause and incorporating Aguilar-Spinelli within the totality of the circumstances test. The Court concluded probable cause existed to support the issuance of the search warrant in Ringquist since the information supplied by the anonymous informant was “rife with detail” and the unknown informant provided “specific details” of alleged drug transactions at the defendant’s residence. See generally 433 N.W.2d at 214-15.

[¶ 38] The District Courts of North Dakota act as constitutional guardians when determining whether a search and seizure conducted by law enforcement was reasonable under the United States Constitution and the North Dakota Constitution. We use the totality of the circumstances test under Illinois v. Gates, including the Aguilar-Spinelli guidelines, to determine probable cause. This is our standard for protecting the right of all citizens to be free from “unreasonable searches and seizures.” In the instant case the magistrate and District Court deviated from this standard by resting their findings of probable cause exclusively upon an affidavit not “rife with detail” and that, when supplemented by the omitted information, clearly violates Aguilar-Spinelli.

[¶ 39] Our Court adopted Illinois v. Gates and the totality of the circumstances test to provide a flexible test for determining probable cause without the rigidity of Aguilar-Spinelli. In the present matter I believe the courts were too flexible when examining Deputy Siurek’s affidavit and failing to even consider Aguilar-Spinelli. Under the totality of the circumstances test the search warrant in this case was predicated upon an incomplete affidavit, a single marijuana seed, eight marijuana stems, two bags of potting soil, and the Appellant’s past drug conviction. After supplementing Deputy Siurek’s incomplete affidavit with the critical information regarding the anonymous informant, coupled with the tenuous evidence acquired by Deputy Siurek from the Appellant’s trash, I believe this search and seizure was unreasonable and the Appellant’s motion to suppress should have been granted by the trial court.

[¶ 40] Ronald L. Hilden, D.J.

      . “It an informant’s tip is the source of information, the affidavit must recite 'some of the underlying circumstances from which the informant concluded' that relevant evidence might be discovered, and 'some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, ... was ‘credible’ or his information reliable.' " See Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (citation omitted).

      . “The test in Aguilar has served many useful purposes aside from insuring that the constitutional rights of citizens be respected. It has given to law enforcement officers, prosecuting attorneys and the courts a straightforward test for resolving disputes over the issuance of a warrant. We do not view ■ Gates as an endorsement of slovenly or careless law enforcement work. Such work will continue to produce problems for the prosecution, the defense and the courts engaged in a case by case analysis rather than a repair to certain and definite rules. The Court in Gates stated that Aguilar has provided guidance in determining the existence of probable cause and it is not anticipated that departure from these guidelines will be looked upon with favor.” See Thompson, 369 N.W.2d at 370 (as cited in Ringquist, 433 N.W.2d at 213) (citation omitted).


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2001 ND 68
    In the Interest of M.S., a child. Barb Dvorak, Petitioner and Appellee, v. S.H., Mother, Respondent and Appellant, and C.S., Father, Respondent, and M.S., Child, and her Guardian Ad Litem, William D. Schmidt, Attorney at Law, Respondents and Appellees.
    No. 20000183.
    Supreme Court of North Dakota.
    April 12, 2001.

      Rick Lee, Volk, Assistant State’s Attorney, Bismarck, ND, for petitioner and ap-pellee Barb Dvorak.
    Edwin W.F. Dyer, III, Dyer & Summers, P.C., Bismarck, ND, for respondent and appellant S.H., Mother.,
    William Delaney Schmidt, (on brief), Guardian Ad Litem, Bismarck, ND, for respondent and appellee M.S., Child.
   MARING, Justice.

[¶ 1] S.H. (“Sharon,” a pseudonym) appealed from an order of the juvenile court terminating her parental rights to her daughter, M.S. (“Mandy,” a pseudonym). We conclude there is clear and convincing evidence warranting termination of Sharon’s parental rights and there is evidence beyond a reasonable doubt that Sharon’s continued custody of Mandy .is likely to result in serious emotional or physical damage to the child. We affirm.

I

[¶2] Mandy was born on June 24, 1993. In September 1997, the juvenile court declared Mandy a deprived child and placed her in the custody of Burleigh County Social Services. Except for a period of about three weeks Mandy has resided in a foster home since September 1997. On August 2, 1999, Burleigh County filed a petition to terminate Sharon’s parental rights. Following a bench trial, the juvenile court granted the petition.

II

[¶ 3] Sharon asserts the evidence is insufficient to prove beyond a reasonable doubt Sharon’s continued custody of Mandy is likely to result in serious emotional or physical damage to Mandy.

[¶ 4] The juvenile court may terminate parental rights, providing: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27-20-44(1)(b); In re C.R., 1999 ND 221, ¶ 4, 602 N.W.2d 520. The party seeking parental termination must prove all elements by’ clear and convincing evidence. Id. In addition to our state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912 must be met, because Mandy is a member of the Yankton Sioux Tribe and is, therefore, an Indian child as defined by the Act. 25 U.S.C. § 1903(4); see also B.R.T. v. Executive Director of the Social Service Board of North Dakota, 391 N.W.2d 594, 598 (N.D.1986). Relevant to this issue, 25 U.S.C. § 1912(f) provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

These state and federal provisions create a dual burden of proof for the party seeking parental termination of the parent of an Indian child, whereby the elements of our state law must be proven by clear and convincing evidence and the federal requirement, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, must be satisfied with proof beyond a reasonable doubt. See Matter of Bluebird, 105 N.C.App. 42, 411 S.E.2d 820, 823 (1992).

[¶ 5] On appeal, we review the juvenile court’s decision regarding termination of parental rights and examine the evidence in a manner similar to a trial de novo. In re A.M., 1999 ND 195, ¶ 7, 601 N.W.2d 253. While we are not bound by the juvenile court’s findings, we give them appreciable weight and give deference to the juvenile court’s- decision, because that court had an opportunity to observe the candor and demeanor of the witnesses. Id.

[¶ 6] The juvenile court specifically recognized the petitioner had to prove beyond a reasonable doubt that Sharon’s continued custody of Mandy would likely result in serious emotional or physical damage to Mandy, and the court concluded the petitioner met this burden.

[¶ 7] Barb (Dvorak) Stegmiller is a social worker with Burleigh County Social Services who has been licensed for 16 years and has been involved with Mandy’s case for approximately four years. Steg-miller testified Mandy was placed in foster care for several reasons. She testified Mandy had chronic head lice for months and Sharon was not willing to cooperate in alleviating the problem. She testified Sharon was not able to focus on her parental responsibilities ’ and often allowed Mandy, at age 3 or 4, to wander off unsupervised and without Sharon knowing Mandy’s whereabouts. Sharon would also forget to feed Mandy or provide other necessary care for Mandy, such as bathing and teeth brushing. Stegmiller testified Sharon would often give away food to others, resulting in inadequate food in the house to properly nourish herself or Mandy. Sharon would also loan her car to others, leaving her without means to transport Mandy to a daycare provider so Sharon could get to her job outside the home.

[¶ 8] Various social workers provided assistance to Sharon in an attempt to enhance her parenting skills. While Mandy was in foster care, Sharon was allowed frequent visitations and they were gradually extended to overnight visitations to facilitate Sharon acquiring the necessary parental skills to care for Mandy. Despite continued problems and slow progress, Mandy was returned to Sharon’s home on September 17, 1998. She remained there only until October 5, 1998 when she was again removed from the home and placed in foster care, because Sharon’s parenting abilities had not materially improved so as to guarantee Mandy’s health and safety. When returned to the home for this trial period, Mandy was not adequately fed. Both Mandy and Sharon developed cases of head lice, and Sharon refused to cooperate with the social worker aides to alleviate the conditions. Stegmiller testified parent aide services were discontinued in February 1999, because Sharon was not willing to work with social workers to develop the skills necessary to provide minimally acceptable care for Mandy. During the summer of 1999, Sharon moved with a boyfriend to Grafton. She did not give the social workers her address, and the agency lost contact with Sharon during the weeks she was away.

[¶ 9] Stegmiller testified Mandy was at risk of physical harm from lack of food and inadequate supervision in Sharon’s home and may well have suffered physical harm if she had' not been removed from the home and placed in foster care. Stegmil-ler testified Mandy is a deprived child and the deprivation could result in emotional and physical harm to her.

[¶ 10] Dr. Lisa Hay is a clinical psychologist, who evaluated Sharon in October 1997 and who has provided therapy for Sharon since December 1997. Dr. Hay testified Sharon is of low-average intelligence but when Sharon is operating under stress her functioning drops to a borderline level. She testified Sharon suffers from an adjustment disorder with mixed anxiety and depressed mood with low self-esteem. She testified Sharon finds it very hard to put Mandy’s basic needs “ahead of the most immediate thing in front of her.” Dr. Hay said she was working with Sharon to build Sharon’s self-esteem and in “getting better boundaries so that she didn’t get taken advantage of by people so much so easily.” Dr. Hay testified Sharon’s needs for therapy are long term.

[¶ 11] Dr. Richard Athey evaluated both' Sharon and Mandy. Athey is a medical doctor who also has a Ph.D. in physiology and pharmacology and is board certified in adult psychiatry and child adolescent psychology. Dr. Athey testified Mandy “seems to have an attachment to her mother” and it would be beneficial for Mandy if the two could maintain some relationship in the future. However, Dr. Athey also testified Sharon is not capable of taking care of Mandy “without significant services” and there could probably not be enough support services in the community “to where [Mandy] could be with [Sharon] and function adequately.” Dr. Athey testified Sharon has not demonstrated an ability to appropriately parent Mandy, and he does not believe Sharon could provide a structured, consistent,-and nurturing environment for Mandy. Dr. Athey testified that even if assistance services were provided to Sharon, her inability to parent Mandy would continue long term. He testified the prognosis for Sharon being able to provide adequate parenting in the future is not good and the likelihood of Sharon acquiring significant changes in her parenting skills to meet Mandy’s needs “would be pretty slim.”

[¶ 12] A parent’s fundamental and natural right to her child is of constitutional dimension, but it is not absolute, and a parent must at least provide care that satisfies the minimum community standards. In Interest of L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573. • We continue to adhere to our statement that a lack of cleanliness of the home cannot alone establish deprivation. Asendorf v. M.S.S., 342 N.W.2d 203, 207 (N.D.1983). Long term and intensive treatment for a parent is not mandated if it cannot be successfully undertaken soon enough to enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care. In Interest of J.L.D., 539 N.W.2d 73, 77 (N.D.1995).

[¶ 13] Mandy has been in foster care for nearly three and one-half years. She was placed there because Sharon was unable to provide for Mandy’s basic needs, including food and adequate supervision. Attempts to educate Sharon and to enhance her parenting skills resulted in failure when Mandy was returned to Sharon’s home on a trial basis. At that time, Sharon remained unable or unwilling to stay focused on providing Mandy with basic needs and care. Dr. Athey testified the prospects for Sharon acquiring the necessary parenting skills are not good.

[¶ 14] When there has been an extensive period of time in which efforts have been made to overcome a parent’s inabilities to effectively parent, the courts cannot allow the child “to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.” In re A.M., 1999 ND 195, ¶ 9, 601 N.W.2d 253. Having carefully reviewed this record, we conclude it contains evidence showing by proof beyond a reasonable doubt that Sharon’s continued custody of Mandy is likely to result in serious emotional or physical damage to Mandy.

Ill

[¶ 15] Sharon asserts there is inadequate record evidence to show by proof beyond a reasonable doubt that active efforts were made to prevent the breakup of this Indian family. The relevant federal provision regarding this issue is 25 U.S.C. § 1912(d):

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

A

[¶ 16] Sharon argues this federal provision requires the petitioner to prove beyond a reasonable doubt that unsuccessful efforts were made to prevent the breakup of the Indian family. The petitioner asserts proof by clear and convincing evidence is the appropriate standard. While Subsection 1912(f) specifically requires “evidence beyond a reasonable doubt” that continued custody of a child by an Indian parent will likely result in serious emotional or physical damage to the child, Subsection 1912(d) contains no express language requiring evidence beyond a reasonable doubt. Rather, this subsection merely requires a party seeking termination of parental rights to “satisfy the court” that unsuccessful active efforts have been made to prevent the breakup of the Indian family. On its face, Subsection 1912(d) does not mandate a standard of proof beyond a reasonable doubt.

[¶ 17] The United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), held that in parental termination proceedings the clear and convincing evidence standard of proof satisfies constitutional due process requirements. We apply the clear and convincing evidence standard of proof for deciding whether the elements of our state statute have been met in parental termination proceedings. See, e.g., In re C.R., 1999 ND 221, ¶ 4, 602 N.W.2d 520.

[¶ 18] Some courts, offering no persuasive rationale, have applied the “beyond a reasonable doubt” standard to Subsection 1912(d). See, e.g., People in Interest ofS.R, 323 N.W.2d 885, 887 (S.D.1982). Other jurisdictions have reasoned, persuasively in our opinion, that use of a lesser standard than evidence beyond a reasonable doubt is appropriate for determining compliance with 25 U.S.C. § 1912(d). See, e.g., K.N. v. State, 856 P.2d 468, 476 (Alaska 1993); In re Annette P., 589 A.2d 924, 928 n. 8 (Me.1991). We hold the petitioner must demonstrate, under 25 U.S.C. § 1912(d), by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful.

B

[¶ 19] Stegmilier testified parent aide services were provided to improve Sharon’s parenting skills, including child discipline, budgeting and meal preparation. Mandy was placed in foster care in September 1997, and these parent aide services started soon thereafter. They were continued until February 1999, when they were terminated because Sharon was unwilling to meet with the social workers and was unwilling to cooperate with the requirements of the program. Three different parent aides worked with Sharon to improve her parenting skills during this lengthy period of time. When, however, Mandy was returned to Sharon’s home in September 1998, the same problems, such as lack of supervision, not providing adequate food, and development of untreated head lice, reoccurred. The substantial assistance efforts were unsuccessful, and Sharon did not acquire sufficient skills to be able to provide minimally acceptable basic care for Mandy. Thereafter Sharon refused to talk to the social service workers until December 31, 1998. Visitation with Mandy at the Family Safety Center was commenced in January 1999, but Sharon refused parent aide services. In June 1999, Sharon moved to Grafton and it was not until mid July 1999 that she made contact again. The petition for termination of parental rights was filed August 2, 1999, and parental aid services were not offered thereafter.

[¶ 20] While the federal law requires legitimate efforts to prevent the breakup of an Indian family, it does not impose upon social service agencies a duty to persist in efforts that can only be destined for failure. See, e.g., People in Interest of P.B., 371 N.W.2d 366, 372 (S.D.1985). Dr. Athey testified the prognosis for Sharon developing adequate parenting skills is very poor, even with social service workers providing considerable assistance and educational efforts. The record evidence shows Sharon became uncooperative with the social workers’ efforts to enhance her parenting skills. Parental cooperation, or a lack thereof, is a pertinent factor in determining whether a child’s deprivation will continue. See In re AM., 1999 ND 195, ¶ 7, 601 N.W.2d 253; In Interest of L.F., 1998 ND 129, ¶ 17, 580 N.W.2d 573.

[¶ 21] Having carefully reviewed this record, we conclude there is clear and convincing evidence Burleigh County Social Services has for an extended period of time undertaken active efforts to provide remedial services and rehabilitative programs for Sharon to prevent permanent removal of Mandy from her home and those efforts have proved unsuccessful.

IV

A

[¶ 22] Sharon asserts the trial court did not comply with 25 U.S.C. § 1912(f), because the court did not qualify any witnesses as experts on Indian-related matters such as Indian customs, tradition, and culture. Under 25 U.S.C. § 1912(f), evidence that the continued custody of the child by the Indian parent would likely result in serious emotional or physical damage to the child must include testimony of “qualified expert witnesses.” The Indian Child Welfare Act does not define a qualified expert witness. However, the United States Department of Interior, the Bureau of Indian Affairs, has prepared guidelines on this issue:

(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:
(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.
(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe.
(hi) A professional person having substantial education and experience in the area of his or her specialty.

44 Fed.Reg. 67593, § D.4.(b). The Commentary to the guidelines further explains:

The party presenting an expert witness must demonstrate that the witness is qualified by reason of educational background and prior experience to make judgments on those questions that are substantially more reliable than judgments that would be made by non-experts.
The second subsection makes clear that knowledge of tribal culture and chil-drearing practices will frequently be very valuable to the court. Determining the likelihood of future harm frequently involves predicting future behavior— which is influenced to a large degree by culture. Specific behavior patterns will often need to be placed in the context of the total culture to determine whether they are likely to cause serious emotional harm.

The guidelines recognize as a qualified expert witness any professional person who has substantial education and experience in the area of that person’s speciality, regardless of whether that professional has specific experience or knowledge of Indian customs, tradition, and culture. A number of courts have concluded that when cultural bias is not implicated in parental termination proceedings, the requirement of qualified expert witness testimony under 25 U.S.C. § 1912(f) can be met by testimony of an expert witness who does not possess special knowledge of Indian life. L.G. v. State, 14 P.3d 946, 953 (Alaska 2000); Matter of N.L., 754 P.2d 863, 868 (Okla.1988); State ex rel. Juvenile Department v. Tucker, 76 Or.App. 673, 710 P.2d 793, 799 (1985); see also In re Interest of C.W., 239 Neb. 817, 479 N.W.2d 105, 112 (1992); D.W.H. v. Cabinet for Human Resources, 706 S.W.2d 840, 843 (Ky.App.1986); Matter of Kreft, 148 Mich.App. 682, 384 N.W.2d 843, 848 (1986).

[¶ 23] This case clearly does not implicate cultural bias. Racial traditions are not implicated in allegations that a parent has failed to provide a very young child adequate food, basic daily hygiene, and supervision. The Indian Welfare Act was not intended “as a shield to permit abusive treatment of Indian children by their parents” or to allow Indian children “to be abused, neglected, or forlorned under the guise of cultural identity.” Matter of S.D., 402 N.W.2d 346, 351 (S.D.1987).

B

[¶ 24] The primary expert witnesses in this case were Barb Stegmiller and Dr. Richard Athey. Stegmiller has been a licensed social worker for 16 years and has worked for Burleigh County Social Services for eight years. Stegmiller testified that she is familiar with Indian customs, traditions, and culture. Dr. Richard Athey is a medical doctor with a Ph.D. degree in physiology and pharmacology. He is board certified in both adult psychiatry and child and adolescence psychology and he practices “mostly child adolescent psychology.” These are skilled and experienced professionals in child custody matters.

[¶ 25] Sharon’s attorney did not object to the lack of qualification of the petitioner’s expert witnesses. The Yankton Sioux Tribe’s attorney, Rochelle Ducheneaux, did hot raise any objection to the testimony presented at the hearing, and she told the court the Tribe did not oppose the termination of parental rights. At the close of the hearing, the court asked Ida Ashes, an Indian Child Welfare Specialist for the Yankton Sioux Tribe, if she wanted to offer any comments, to which she responded, in part, “[W]e do not oppose the termination.” Ms. Ashes did not voice any concern to the court that cultural bias was implicated in these proceedings. Under these circumstances, we conclude the testimony of Barb Stegmiller and Dr. Athey meets the requirement of qualified expert witness testimony under 25 U.S.C. § 1912(f).

V

[¶ 26] The order terminating Sharon’s parental rights to Mandy is affirmed.

[¶ 27] GERALD W. VANDEWALLE, C.J., and CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ., concur.

      . The parental rights of Mandy’s biological father, C.S., were also terminated, but he did not contest the parental termination proceedings and is not a party to this appeal.

      . While Sharon has alleged the requirements of the federal Act have not been met, she has not asserted the petitioner has failed to prove the elements of the state statute for terminating her parental rights.


text:
    2001 ND 71
    In the Interest of D.N., D.N., and C.N., Children. Constance L. CLEVELAND, Petitioner and Appellee, v. R.N., Father, D.N., Mother, Respondents and Appellants, and D.N., D.N., and C.N., children, and Mark A. Beauchene, Guardian Ad Litem, Respondents.
    Nos. 20000234, 20000235.
    Supreme Court of North Dakota.
    April 12, 2001.
    Rehearing Denied June 8, 2001.

      Constance Louise Cleveland, Assistant State’s Attorney, Fargo, ND, for petitioner and appellee.
    Steven D. Mottinger, Fargo, ND, for respondents and appellants.
   MARING, Justice.

[¶ 1] R.N. (“Randy”) and D.N. (“Denise”) appealed from a juvenile court order terminating their parental rights to their three children, D.N. (“Dustin”), age 16, D.N. (“Donny”), age 11, and C.N. (“Cheryl”), age 9. We conclude there is clear and convincing evidence the children are deprived, the causes and conditions of the deprivation are likely to continue and, as a result of the continued deprivation, the children will probably suffer serious physical, mental, or emotional harm if Randy and Denise’s parental rights are not terminated. We affirm.

I

[¶ 2] Under N.D.C.C. § 27-20-44(l)(b)(l) a juvenile court may terminate parental rights, providing (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is .suffering, or will in the future, probably suffer serious physical, mental, moral, or emotional harm. The party seeking parental termination must prove all elements by clear and convincing evidence. In re C.R., 1999 ND 221, ¶ 4, 602 N.W.2d 520. On appeal, we review the juvenile court’s decision and examine the evidence in a manner similar to a trial de novo. Id. We review the files, records, and transcript of the evidence in the juvenile court, giving appreciable weight to the findings of the juvenile court. Id. Although we are not bound by the juvenile court’s findings, we recognize the juvenile court’s opportunity to observe the candor and demeanor of the witnesses. In Interest of L.F., 1998 ND 129, ¶ 12, 580 N.W.2d 578.

[¶ 3] At the conclusion of the hearing in this case, the juvenile court made the following relevant findings:

[T]he minor children are deprived children and ... the conditions and causes of the deprivation are likely to continue or will not be remedie[d] and by reason thereof, the children are suffering or will probably suffer serious physical, mental, moral or emotional harm.
[Although the natural parents indicate a desire to improve, they’re unable to demonstrate to this Court the present capacity or capacity within the near future to be an adequate parent. [Prognostic evidence shows that the parents are presently unable to supply the physical and emotional care for the children and this inability will continue for time enough to render improbable the successful simulation [sic] of the children into the parent family, if the parents’ rights are not terminated.
... Cass County Social Services has provided services to the parents in an attempt to remedy the causes of the deprivation and these attempts have not only been reasonable, but have exhausted all that is available and appropriate. [Tjhere is no basis to believe that there will be any significant improvement of the ability of either parent if given more time and that it is likely that the causes of the deprivation will not end and cannot be remedied.

The record evidence supports these findings.

[¶ 4] 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.” ' N.D.C.C. § 27-20-02(8)(a). On three separate occasions, beginning November 24, 1998, these parents stipulated their children are deprived children. On appeal, Randy and Denise do not dispute the trial court’s finding their children are deprived. Rather, the parents argue there is not clear and convincing evidence the deprivation of the children will continue and will result in harm to them.

II

[¶ 5] The three children have been in foster care since August 1998, when they were removed from the parents’ home after Randy threatened suicide with a loaded pistol pointed to his head in the presence of the children, whereupon he ordered one of them to conduct a countdown. Randy did not fire the pistol, but the record evidence shows he has made several similar suicide threats in the presence of the children.

[¶ 6] Cass County Social Services has conducted 18 child protection assessments since 1990, after receiving reports from various sources who were concerned the parents may have been physically and emotionally abusive to the children. Forrest Ammerman, a social worker employed by the Cass County Social Services Board, testified these assessments confirmed “incidents of harsh parenting and domestic violence.”

[¶ 7] Elizabeth Faust, M.D., Medical Director at the Southeast Human Service Center, diagnosed Randy as suffering from obsessive compulsive disorder “of a chronic and very severe nature.” Dr. Faust concluded Randy “is still significantly disabled with respect to problem-solving and ability to complete tasks and obligations.” In her opinion placing the children back into the parents’ home would “likely overwhelm [Randy’s] coping abilities.” Dr. Faust has prescribed medicine for Randy’s condition And she said he has shown improvement when he is taking the medication. However, the record shows Randy has neglected to take his medicine for substantial periods of time. Dr. Faust stated Randy’s disorder requires, in addition to medication, behavioral therapy, but such therapy has not been provided to Randy because of his inability to recognize the seriousness of his condition and his unwillingness to comply with such treatment.

[¶ 8] Dr. Dwight Lysne, a board certi- ■ fied child adolescent psychiatrist, has worked with this family for.about seven years. Dr. Lysne concluded Randy suffers from Schizoaffective Disorder, a condition in which there is coequal disturbance of mood and thinking, combined with symptoms of paranoia, resulting in Randy having a level of mistrust that is “a significant factor in his resistance and noncompliance with treatment.” Dr. Lysne characterizes Randy’s illness as “a severe psychiatric condition” through which “his volatile temper, poor impulse control, and severe mistrust of others places him at a chronic risk of harm to himself or others.” Dr. Lysne concluded that although the children’s paternal grandmother provided some protection for the children prior to her death in January 1998, the children have “been chronically at risk due to [Randy’s] psychiatric disability” and the impact of this disability on the children’s safety “is greater in the aftermath of their grandmother’s death.”

[¶ 9] The record shows that Denise, while not suffering the same type of disabling conditions as Randy, has been unwilling to separate from Randy or to protect the children from his physical and emotional abuse. The record shows the children, while under Denise’s care, have suffered physical and emotional abuse in the home and have also experienced abhorrent conditions, unrelated to the family’s financial status, resulting in extremely poor hygiene and improper feeding. On numerous occasions these parents offered the children food which was foraged from garbage dumpsters of local food operations.

[¶ 10] Dustin, the oldest child, is' currently a resident of Archdeacon Gilfillan Center in Bemidji, Minnesota. His treatment coordinator, Jacob A. Fisher, testified Dustin suffers from Asperger’s Disorder with severe emotional and behavior disturbances. Dustin deals with conflict through aggression. Fisher testified when Dustin is upset at peers he will “either choke them with both hands around the neck or body slam them on the floor.” Fisher testified Dustin needs a highly structured setting with a safe and consistent environment, and it would be difficult for Dustin to have his needs met in the parents’ home.

[¶ 11] Rachel Fleissner, M.D., at the Prairie Psychiatric Center in Fargo, reported when Dustin was removed from the parental home two separate attempts were made to place Dustin in foster homes, both of which only lasted one day due to Dustin’s unusual affect and behaviors. Dr. Fleissner reports that Dustin said his father “hits him and yells at him and frequently says that he is going to kill himself’ and his mother “is verbally insulting to him all of the time.” With continued expert care at the center, the medical professionals hope Dustin’s condition will substantially improve so he will be adoptable.

Ill

[¶ 12] Parents’ fundamental and natural right to their children is of constitutional dimension, but it is not absolute, and parents must at least provide care to their children that satisfies the minimum community standards. In Interest of L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573. Long-term and intensive treatment for a parent is not mandated if it cannot be successfully undertaken soon enough to enable the children to be returned to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care. In Interest of A.S., 1998 ND 181, ¶ 33, 584 N.W.2d 853.

[¶ 13] These children have been in foster care for more than two and one-half years. The record evidence shows the children’s father suffers from a severe mental disorder resulting in him perpetrating physical and emotional abuse on his spouse and the children. The prognosis for him sufficiently overcoming this disability to be able to adequately parent these children and provide a safe and caring home environment for them is not promising. The children’s mother has been unwilling or unable in the past to protect these children from their father’s abusive conduct. There is nothing in the record to demonstrate a likelihood that her willingness or ability to protect and care for these children will significantly improve in the future.

[¶ 14] The record evidence shows- Cass County Social Services has attempted to provide assistance to these parents to improve their parenting abilities. Randy’s belligerent and uncooperative behavior has resulted in the failure of all attempts to assist these parents. A lack of parental cooperation is pertinent in determining whether deprivation will continue. In Interest of L.F., 1998 ND 129, ¶ 17, 580 N.W.2d 573. When there has been an extensive period in which efforts have been made to overcome a parent’s inabilities to effectively parent, the courts cannot allow the children “to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.” In re AM,, 1999 ND 195, ¶ 9, 601 N.W.2d 253.

[¶ 15] Having carefully reviewed this record, we conclude the conditions and causes of the children’s deprivation are likely to continue and as a result the children will probably suffer serious physical, mental, or emotional harm. Giving substantial weight to the juvenile court’s findings and opportunity to observe the demeanor and credibility of the witnesses, we conclude there is clear and convincing evidence to support the termination of Randy and Denise’s parental rights under N.D.C.C. § 27 — 20—44(l)(b)(l).

[¶ 16] Affirmed.

[¶ 17] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ., concur.

      . All names of the parties in this case are pseudonyms.


text:
    2001 ND 70
    Dr. Thomas P. DOWHAN, Plaintiff and Appellant, v. Dr. Ronald J. BROCKMAN, individually; and Valley Vision Clinic, Ltd., a North Dakota Professional Corporation, Defendants and Appellees.
    No. 20000249.
    Supreme Court of North Dakota.
    April 12, 2001.

      Larry James Richards, Grand Forks, N.D., for plaintiff and appellant.
    Michael J. Morley, Morléy Law Firm, Ltd., Grand Forks, N.D., for defendants and appellees.
   MARING, Justice.

[¶ 1] Dr. Thomas P. Dowhan appealed an order denying a motion to modify a damage award, a judgment, and an order overruling objections to an award of costs and disbursements in his action -against Dr. Ronald J. Brockman and Valley Vision Clinic, Ltd. (“Clinic”). We affirm.

[¶ 2] Dowhan leased office space from the Clinic, which provided eye care in Grand Forks. Ophthalmologists Dowhan and Brockman entered into a pre-partnership agreement in 1994, which was renewable each year, subject to termination upon 60 days notice. The pre-partnership agreement was terminated in 1995, and the Clinic told Dowhan to remove his equipment.

[¶ 3] Dowhan sued Brockman and the Clinic, alleging (1) the Clinic breached the lease; (2) Brockman breached the pre-partnership agreement; (3) Brock-man interfered with Dowhan’s prospective business advantage with the Clinic; (4) the Clinic interfered with Dowhan’s prospective business advantage with Brockman; (5) the Clinic wrongfully induced Brockman to leave his employment with Dowhan; (6) the Clinic and Brock-man interfered with Dowhan’s existing and prospective physician-patient relationships “by directing patient calls made to [Dowhan] over to Defendant, Dr. Brock-man”; (7) Brockman used a wrongfully-obtained customer list to solicit Dowhan’s patients by using telephone messages from existing or prospective patients for Brockman’s benefit; and (8) Brockman wrongfully converted to his own use money received from patients for services rendered while he was employed by Dow-han. Brockman and the Clinic denied liability. Brockman counterclaimed for $6,249.99 for unpaid compensation Dow-han owed Brockman.

[If 4] The jury returned a verdict rejecting all but one of Dowhan’s claims. The jury found Brockman did “wrongfully convert funds and/or patient lists from Dr. Dowhan,” but awarded no damages, because Dowhan failed to meet his burden of proving damages. The jury found in favor of Brockman on his counterclaim and awarded damages of $4,749.99, plus 6% interest for four years and three months.

[¶ 5] Dowhan moved to modify the damage award by eliminating the interest. The trial court denied the motion. The trial court dismissed Dowhan’s complaint, ordered judgment for Brockman in the amount of $5,961.23, which was $4,749.99 on his counterclaim, plus interest, and ordered Brockman and the Clinic be awarded costs and disbursements. The judgment dismissed Dowhan’s complaint, awarded Brockman $5,961.23 on his counterclaim, and awarded Brockman and the Clinic costs and disbursements of $5,762.79. Dowhan appealed.

[¶ 6] Dowhan contends the trial court erred in upholding the jury’s interest award, maintaining it “abused it[ ]s discretion in allowing the jury’s decision on this matter to stand” and failed to address equitable arguments he raised in arguing interest should not have been awarded.

[¶ 7] Section 32-03-04, N.D.C.C., provides:

Every person who is entitled to recover damages certain or capable of being made certain by calculation, the right to recover which is vested in the person upon a particular day, also is entitled to recover interest thereon from that day, except for such time as the debtor is prevented by law or by the act of the creditor from paying the debt.

“Section 32-03-04 ... generally governs prejudgment interest in contract cases.” Roise v. Kurtz, 1998 ND 228, ¶ 8, 587 N.W.2d 573. The trial court is presumed to have considered the information provided to it. See, e.g., Overboe v. Odegaard, 496 N.W.2d 574, 578 (N.D.1993); In re J.A.G., 552 N.W.2d 317, 324 (N.D.1996). If the damages were certain or capable of being made certain, Brockman was entitled to recover interest. Dowhan has not shown the damages were uncertain or incapable of being made certain, or that the interest was incorrectly computed. We conclude the trial court did not err in upholding the award of interest.

[¶ 8] Dowhan contends the trial court erred in finding he was not a prevailing party, and “contends that, since both sides have prevailed on claims, neither side should have been awarded costs and disbursements.”

[¶ 9] Section 28-26-06, N.D.C.C., provides for payment of necessary disbursements to a prevailing party:

In all actions and special proceedings, the clerk shall tax as a part of the judgment in favor of the prevailing party his necessary disbursements as follows:
1. The legal fees of witnesses and of referees and other officers;
2. The necessary expenses of taking depositions and of procuring evidence necessarily used or obtained for use on the trial;
3. The legal fees for publication, when publication is made pursuant to law;
4. The legal fees of the court reporter for a transcript of the testimony when such transcript is used on motion for a new trial or in preparing a statement of the case; and
5. The fees of expert witnesses. Such fees must be reasonable fees as determined by the court, plus his actual expense. The following are nevertheless in the sole discretion of the trial court:
a.The number of expert witnesses who are allowed fees or expenses;
b.The amount of fees to be paid such allowed expert witnesses, including an amount for time ■ expended in preparation for trial; and
c.The amount of costs for actual expenses to be paid such allowed expert witnesses.

' [¶ 10] The determination of who is a prevailing party under N.D.C.C. § 28-26-06 is a question of law. Braunberger v. Interstate Eng’g, Inc., 2000 ND 45, ¶24, 607 N.W.2d 904. “We, therefore, conduct a de novo review.” Id. at ¶ 13. “[T]his Court has distinguished between the legal question of whether a party is a prevailing party entitled to necessary disbursements, and the factual question of whether the awarded costs and their amounts were proper.” Id. at ¶ 24. The trial court “is in a much better position to determine the reasonableness and necessity of the costs and disbursements sought by the prevailing party.” Vogel v. Pardon, 444 N.W.2d 348, 353 (N.D.1989). “A trial court’s decision oh fees and' costs under N.D.C.C. § 28-26-06 will not be overturned on appeal unless an abuse of discretion is shown.” Lemer v. Campbell, 1999 ND 223, ¶ 6, 602 N.W.2d 686. Under Braunberger and Lemer, the question of who is a prevailing party for an award of disbursements under N.D.C.C. § 28-26-06 is a question of law, subject to de novo review, while the question of the amounts to be allowed for disbursements is one of fact, subject to an'abuse-of-discretion standard of review.

[¶ 11] The determination of who is a prevailing party entitled to recover necessary disbursements under N.D.C.C. § 28-26-06 is based upon success on the merits, not damages. Lemer, 1999 ND 223, ¶ 9, 602 N.W.2d 686. If opposing litigants each prevail oh' some issues, there may not be a single prevailing party for whom disbursements may be taxed. Id. at ¶ 7. A prevailing party is one “in whose favor a judgment is rendered, regardless of the amount of damages awarded.” Black’s Law Dictionary 1145 (7th ed.1999).

Generally, the prevailing party to a suit, for the purpose of determining who is entitled to costs, is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue, in other words, the prevailing party is the one in whose favor the decision or verdict is rendered and the judgment entered.

Lemer, 1999 ND 223, ¶ 9, 602 N.W.2d 686 (quoting 20 Am.Jur.2d Costs § 12 (1995)). See also Foss Alaska Line, Inc. v. Northland Servs., Inc., 724 P.2d 523, 526 (Alaska 1986); City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex.App.1997); 20 C.J.S. Costs § 11 (1990).

[¶ 12] The jury finding that “Dr. Brockman wrongfully converged] funds and/or patient lists from Dr. Dowhan,” dealt with two of eight claims Dowhan alleged against the Clinic and Brockman. The main issues in Dowhan’s suit dealt with conduct between Brockman and the Clinic, which Dowhan claimed resulted in breaches of contract and interference with his prospective business advantages with the Clinic and with Brockman. The jury awarded no money for the conversion. Dowhan acknowledged the jury could not have found Brockman converted any funds belonging to Dowhan and the jury’s finding must have been with regard to patient lists. The patient lists, alleged to have been “telephone messages from existing or prospective patients,” appear to have been a relatively minor issue in the litigation and were not shown to have any significant value in themselves. The main issue in Brockman’s counterclaim was his claim that Dowhan did not fully compensate him under their employment agreement.

[¶ 13] We conclude Dowhan did not preval! on any significant issue in his action. Brockman and the Clinic successfully defended against Dowhan’s claims, prevailing on all significant issues in Dowhan’s action. Brockman prevailed on the main issue in his counterclaim. We conclude Dowhan was not a prevailing party under N.D.C.C. § 28-26-06, and the Clinic and .Brockman were prevailing parties.

[¶ 14] Affirmed.

[¶ 15] GERALD W. VANDE WALLE C.J., and CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ., concur.

      . Dowhan and Brockman each claim the other terminated the agreement.


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 69
    Tiffani HENTZ, n/k/a Tiffani Milligan, Plaintiff and Appellant, v. Rory HENTZ, Defendant and Appellee.
    No. 20000239.
    Supreme Court of North Dakota.
    April 12, 2001.

      Daniel H. Oster (argued) and Brenda A. Neubauer, Neubauer & Oster, Bismarck, for plaintiff and appellant.
    Timothy J. Wahlin, Kelsch, Kelsch, Ruff & Kranda, Mandan, for defendant and ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Tiffani Milligan, formerly known as Tiffani Hentz, appealed from findings of fact, conclusions of law, and order for amended judgment in her divorce action against Rory Hentz. We conclude the trial court’s decision that changing the residence of the parties’ child to Montana would not be in the child’s best interest is not clearly erroneous. We affirm the amended judgment.

[¶ 2] The parties married in 1994. One child, Rick James Hentz, was born to them in 1997. Milligan sued Hentz for a divorce in 1998. The trial court denied Milligan’s request to change the child’s residence to Montana. The court found Milligan “demonstrated unreasonable behavior in withholding contact between father and son during the interim of this divorce proceeding” and “her lack of objectivity regarding Rick’s relationship with his father would probably have the effect of obstructing their contact if she were out of state.” The judgment ordered a divorce; granted the parties joint custody of their son, with actual physical custody awarded to Milli-gan and visitation awarded to Hentz; and provided Hentz was “entitled to have Rick in his care each day for the four to five hours during which time Tiffani is at work and Rory is at home ... Monday through Friday” and “each Sunday between the hours of 1:00 p.m. and 5:00 p.m.” The judgment also provided Hentz was entitled to one week of overnight visitation the second full week of June and the second full week of August, during which time Hentz was authorized to travel out of state with Rick. The judgment prohibited Milli-gan from changing Rick’s residence outside North Dakota, except in accordance with N.D.C.C. § 14-09-07.

[¶ 3] In June 1999, Milligan refused to allow Hentz visitation with their son for a scheduled out-of-state vacation. The trial court found Milligan in civil contempt of court for failing to obey the visitation provisions of the divorce judgment, directed Milligan to pay Hentz $1,603 in compensation, and granted Hentz overnight visitation with Rick one night each week.

[¶ 4] On February 23, 2000, Milli-gan moved for permission to relocate Rick to Montana. The trial court denied Milli-gan’s request. An amended judgment was entered June 29, 2000. On appeal, Milli-gan contends “the trial court’s denial of move on grounds that it was not in the child’s best interests was clearly erroneous.”

C2 — 4] [¶ 5] If a noncustodial parent has been given visitation rights by decree, N.D.C.C. § 14-09-07 provides a custodial parent “may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent.” The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent’s visitation rights if the custodial parent wants to move out of this state. Olson v. Olson, 2000 ND 120, ¶ 4, 611 N.W.2d 892; Hanson v. Hanson, 1997 ND 151, ¶ 10, 567 N.W.2d 216. “It has long been the policy in this state that ‘the best interests of the child’ is the primary consideration in determining whether or not a custodial parent may change the residence of the child.” Stout v. Stout, 1997 ND 61, ¶ 9, 560 N.W.2d 903. A custodial parent seeking a court order permitting a change in a child’s residence to another state under N.D.C.C. § 14-09-07 “must prove, by a preponderance of the evidence, that the move is in the best interests of the child.” Stout, at ¶ 9. See also Tishmack v. Tishmack, 2000 ND 103, ¶ 7, 611 N.W.2d 204; Keller v. Keller, 1998 ND 179, ¶ 10, 584 N.W.2d 509.

[¶ 6] A trial court’s decision whether a proposed move to another state is in the best interest of a child is a finding of fact which will not be overturned on appeal unless it is clearly erroneous. Tibor v. Tibor, 1999 ND 150, ¶ 8, 598 N.W.2d 480. “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, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made.” Id. “In reviewing a trial court’s findings of fact, which are presumptively correct, we view the evidence in the light most favorable to the findings.” Olson, 2000 ND 120, ¶ 4, 611 N.W.2d 892. “We do not reweigh evidence or reassess credibility where there is evidence to support a trial court’s findings.” Tishmack, 2000 ND 103, ¶ 7, 611 N.W.2d 204. We will not reverse a trial court decision merely because we might have viewed the evidence differently. State ex rel.. Younger v. Bryant, 465 N.W.2d 155, 158 (N.D.1991). A choice between two permissible views of the weight of the evidence is' not clearly erroneous. Tishmaek, at ¶ 7.

[¶ 7] We have specified four factors for consideration in determining if a requested change in a child’s residence to another state is in the child’s best interest:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Olson, 2000 ND 120, ¶ 5, 611 N.W.2d 892, quoting Hawkinson v. Hawkinson, 1999 ND 58, ¶¶ 6 and 9, 591 N.W.2d 144. “No one factor dominates,; and a factor that has minor impact in one case may be the dominant factor in another.” State ex rel. Melling v. Ness, 1999 ND 73, ¶ 8, 592 N.W.2d 565. “When the relevant factors weigh in favor of the custodial parent’s request to relocate the children, the trial court’s denial of the motion constitutes reversible error.” Tibor, 1999 ND 150, ¶ 27, 598 N.W.2d 480. “[A] move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern.” Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903. See also Olson, 2000 ND 120, ¶ 4, 611 N.W.2d 892; Tibor, at ¶ 24.

[¶ 8] The trial court,explained its analysis of the four factors in a memorandum opinion. With regard to the first factor, the trial court found:

Clearly the first factor favors allowing Ms. Milligan to move to Montana. Ms. Milligan and the child would benefit from a support system of close family members in Montana. Financially, Ms. Milligan and the child would be better off in Montana. She would be working at a higher paying job in Montana. A college education would improve her future financial outlook. Her parents would assist her financially and they would provide daycare at no cost to her.

As to the second factor, the trial court found: “I do not believe Ms. Milligan’s request to move to Montana is entirely intended to defeat or deter visitation by Mr. Hentz.... Besides having no ties to North Dakota, financially and emotionally she is having a very difficult time in North' Dakota.” On the third factor, the trial court found: “There is nothing in the record which would lead me to believe that Mr. Hentz is motivated by anything other than his concern for his relationship for his son.” Primarily concerned with the potential for noncompliance with visitation provisions, the trial court addressed the fourth factor at length:

Clearly there will be less opportunity for Mr. Hentz to build a relationship with his son if the move is allowed. This certainly would be a negative impact on the relationship between Mr. Hentz and his son.
Even if this Court modified the visitation schedule to include less frequent but more extended periods of time for visitation with the child by Mr. Hentz, the Court is concerned that Ms. Milligan will not comply with the alternative visitation once she is out of state.
Judge Riskedahl previously found that the record indicates that Ms. Milligan demonstrated unreasonable behavior in withholding contact between father and son during the interim of the divorce proceeding. Furthermore, Judge Riske-dahl stated that Ms. Milligan’s lack of objectivity regarding the child’s relationship with his father would probably have the effect of obstructing their contact if Ms. Milligan were out of state. Furthermore, after the divorce was final, Ms. Milligan was found to be in contempt of court for failing to obey provisions in the Judgment of this action relating to visitation.
This factor weighs most heavily against allowing the move to Montana.
After analyzing the factors set by the North Dakota Supreme Court in Stout and Hawkinson, I am of the opinion that the move to Montana should not be allowed. My concern is that once Ms. Milligan is out of state with the child she will not comply with a visitation order.
Furthermore, I agree with Judge Riskedahl when he stated “The Court is persuaded that Rick’s development will be enhanced by regular contact with his father* * If the move were allowed, there would be no regular contact between father and son.

In its conclusions of law, the trial court stated its ultimate finding of fact supporting its denial of Milligan’s motion to change the residence of the parties’ child to Montana: “The change of residence Plaintiff seeks would not be in the child’s best interest as defined by the considerations in Stout v. Stout, 560 N.W.2d 903 (N.D.1997); and clarified in Hawkinson v. Hawkinson, 591 N.W.2d 144 (N.D.1999).”

[¶ 9] Our prior decisions, such as Olson v. Olson, 2000 ND 120, ¶4, 611 N.W.2d 892; Tibor v. Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480; and Stout v. Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903, have held the fact a noncustodial parent will not be able to maintain the same visitation schedule is not, alone, a basis for denying permission to the custodial parent to leave the state with the child. Notwithstanding the last sentence of the trial court’s decision quoted above, it is apparent it was the concern that Milligan would not comply with the visitation order and foster the noncustodial parent’s relationship with the child that caused the trial court to deny the move.

[¶ 10] From our review of the record, we conclude there is evidence supporting the trial court’s analysis of the factors appropriate in determining Milligan’s request to move the child to Montana, and the court’s finding the proposed move would not be in the child’s best interest, which, we further conclude, is not clearly erroneous.

[¶ 11] Milligan made a number of related contentions about visitation in her brief:

The trial court placed substantial weight on the fact that Tiffani was previously found in contempt for failing to obey provisions in the Judgment relating to visitation. (A: 67, A: 33). The finding of contempt was based on one isolated incident in the summer of 1999 when Tiffani withheld visitation....
The trial court placed too much weight on an isolated incident in denying Tiffani’s request to move....
Specifically the trial court found that “the Court is concerned that Ms. Milli-gan will not comply with the alternative visitation once she is out of state.” (A: 67). The finding is not supported by the record.

[¶ 12] We have already determined there is evidence supporting the trial court’s findings. While the finding of contempt was based on one incident in 1999, that incident was not the only time Milligan has withheld visitation. In its 1998 findings of fact, the trial court found Milligan “demonstrated unreasonable behavior in withholding contact between father and son during the interim of this divorce proceeding.” We have held. the remoteness of an incident is a matter for the court to consider in weighing the evidence before it. Steckler v. Steckler, 492 N.W.2d 76, 81 (N.D.1992). Milligan’s past behavior was a relevant fact for the trial court to weigh in considering her motion. “Although it is impossible to be certain what might occur in the future, any prediction of the future requires some reflection into the past conduct of the parties.” Reede v. Steen, 461 N.W.2d 438, 442 (N.D.1990). Milligan conceded at oral argument that moving to Montana could create more visitation enforcement problems. There is evidence in the record supporting the trial court’s findings. We will not reweigh the evidence and we view it in the light most favorable to the findings.

[¶ 13] The amended judgment is affirmed.

[¶ 14] SANDSTROM, KAPSNER, MARING and NEUMANN, JJ., concur.

      . We treat this as an appeal from the subsequently entered consistent amended judgment. See, e.g., Gietzen v. Gietzen, 1998 ND 70, ¶ 1 n. 1, 575 N.W.2d 924; Wolf v. Anderson, 422 N.W.2d 400, 400 n. 1 (N.D.1988).

      . The Honorable Burt L. Riskedahl.

      . The Honorable Burt L. Riskedahl.

      . The Honorable Thomas J. Schneider.