Ament v. E.J.H.

¶1concurring.

¶2I concur in the majority’s opinion. I write separately to expand on the matters mentioned in footnotes 1 and 2, and to note the procedural quagmire that has resulted.

¶3In North Dakota, our juvenile court is, by definition, “the district court of this state.” N.D.C.C. § 27-20-02(6). That does not mean our juvenile court is simply another department of our district courts, like a civil department or a criminal department, something which exists only as an organizational device by which the district court seeks to manage its caseload. Our juvenile court is a creature of the legislature. Its jurisdiction is original, exclusive, and limited. N.D.C.C. § 27-20-03. Its authority is carefully defined and closely circumscribed, its disposi-tional options carefully specified, the duration of its dispositions strictly limited by legislative mandate. E.g., N.D.C.C. §§ 27-20-08, -18 to -25, -37, -56.1

¶4Our district courts, on the other hand, are constitutionally-created courts of general jurisdiction, N.D. Const, art. VI, § 1, operating under the procedural rules promulgated by this court. The district courts have “original *366jurisdiction of all causes, except as otherwise provided by law-” Id., § 8.

¶5Clearly, under chapter 27-20 of our code, the juvenile court had jurisdiction to hear the allegations of deprivation in this case, but it could make only certain carefully circumscribed dispositions. And clearly, under that same chapter, the juvenile court did not have jurisdiction to hear and determine custody disputes among the parties and intervenors. On the other hand, Article VI, section 8 of our Constitution clearly gives district courts, when they are not sitting as juvenile courts, authority to determine custody disputes.

¶6Nevertheless, despite this clear distinction, and despite the legislature’s clear limits on jurisdiction, both counsel and the trial court in this case agreed to the joinder of issues which the juvenile court had no authority to decide. The result has been an incomplete record for our review on appeal, confusion about the appropriate time to ñle a notice of appeal (30 days under N.D.C.C. § 27-20-56(1), or 60 days under Rule 4(a), N.D.RApp.P.), and questions about the applicable standard of review (de novo rehearing under N.D.C.C. § 27-20-56, or clearly erroneous under Rule 52(a), N.D.R.Civ.P.). Though the issue is not raised in this appeal, additional confusion may well occur in this case because of a juvenile court order which purports to grant custody of E.J.H. based only on the child’s best interest, without a finding of continued deprivation, apparently without regard to requirements for a home study, N.D.C.C. § 27-20-30(l)(b)(l), and without regard to the statutory time limits placed on orders of the juvenile court. N.D.C.C. § 27-20-36.

¶7Confronted with growing caseloads, a decrease in judgeships, and the expense of legal services, I cannot fault the court or counsel for their apparent desire to expedite those matters for the parties and their attempt to avoid a multiplicity of proceedings. Creativity and flexibility are going to be required as this state’s judicial system moves into the next century with more work and fewer judges. But, we must also be very cautious that our creativity and flexibility do not take us beyond the bounds of our authority. Our judicial system’s ability to function depends almost entirely upon the people’s confidence in the system to do its job fairly and justly. The image of a court acting beyond the limits of its jurisdiction and authority is not something likely to inspire such confidence.

¶8I am able to concur in the majority’s opinion only because the issues which concern me are not raised in this appeal. Had they been raised, I would be compelled to reverse.