August 01, 2016

Guardian ad Litem's Failure to Interview Father Did Not Violate Due Process in Termination Proceeding

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re N.A., 879 N.W.2d 82 (N.D. 2016).

Although child’s guardian ad litem failed to fulfill her mandatory duty to interview the child’s father, his due process rights were not violated in termination of parental rights proceeding. The risk of erroneous termination was minimal because father testified at trial and his counsel had an opportunity to cross-examine witnesses. Father could provide an alternate version of the facts to support his opposition to termination. The cost of postponing the case to conduct the interview outweighed the benefit of an interview because the father had limited involvement in the child’s life and was unlikely to provide any relevant information.


After the child welfare agency initially petitioned to terminate the father’s and mother’s parental rights, the child’s guardian ad litem (GAL) filed a report supporting termination, stating the child had been in foster care for almost two years. The father’s last contact with the agency was over a year before and his whereabouts were unknown. However, the initial petition was withdrawn and refiled six months later. 

The father received the second petition and supporting documents while incarcerated at the county jail. These document were also received by the GAL and listed the father’s address at the jail. However, the GAL filed a nearly identical report and listed the father’s whereabouts as unknown. The amended report stated the mother was voluntarily terminating her parental rights. 

The GAL and father were both present at trial before a judicial referee. The father testified he did not contact the child for over a year, and at the referee’s request the GAL offered her support for terminating the father’s parental rights. She was neither sworn in nor subject to cross examination, without objection. After the judicial referee terminated his rights, the father requested juvenile court review, arguing his constitutional right to due process was violated because the GAL failed to interview him. The juvenile court adopted the referee’s order and terminated the father’s rights, concluding the father’s right to due process and equal treatment under the law was not violated.

The court rule requiring a GAL to interview parents reads: “A lay guardian ad litem must … monitor the case, including: … (C) interviewing parents, siblings, caregivers, and other interested parties with relevant information to the case.” While the court found the plain language of the rule requires the GAL to interview the father, it does not mean she must interview every listed party. Rather, the GAL must perform the identified tasks or adequately explain why they were not performed. 

To determine whether the risk of error from the GAL’s failure substantially denied the father due process, the court analyzed his claim under the three factors in Mathews v. Eldridge, 424 U.S. 319 (1976). The first factor weighed in the father’s favor – the private interest that was affected by the GAL’s error was the accuracy of a decision terminating parental rights.

However, the last two factors—the risk of an erroneous deprivation of such interest through the procedures used and the administrative and cost burden of an additional or substitute procedure—weighed in favor of the state. The risk of wrongly depriving the father of his parental rights as a result of the GAL’s error was minimal because the father testified at trial and his counsel had an opportunity to cross-examine witnesses. He had an opportunity to provide an alternate version of the facts that would support his opposition to terminating his parental rights. The father was provided a meaningful opportunity to be heard and did not show that his interview would have added value to the GAL’s report because he had minimal contact with the child.

Finally, the juvenile court could have reasonably found the fiscal and administrative cost of reversing or postponing the case would be significant and unnecessary in light of the father’s availability to testify at trial. It was also reasonable for the court to find the cost outweighed the benefit of the father’s interview because the father was unlikely to have any relevant information due to his limited involvement in the child’s life.

Two grounds for termination exist under North Dakota statute, and the judicial referee made alternate findings and cited evidence supporting both. The juvenile court adopted the judicial referee’s order, finding the child was in continuous foster care for 774 consecutive days and nights, exceeding the 450 out of the previous 660 nights required. Because this determination was sufficient to terminate the father’s parental rights, the GAL’s statutory error in failing to interview the father was harmless.

The chief justice concurred in the result reached by the majority of the court but did not feel analysis under Eldridge was necessary because not every alleged error in executing a statute or rule of court should be reviewed as a possible constitutional violation of the right to due process. Rather, the father should have insisted on the right to examine the GAL under oath before her report was introduced and to question the weight of the evidence contained in the report, given her failure to interview him.