Affidavits, Defaults, and Vacatur in Termination of Parental Rights: North Dakota Supreme Court Clarifies the Governing Standard (Interest of B.F. & I.F., 2025 ND 127)

1. Introduction

In Interest of B.F. & I.F., the North Dakota Supreme Court was asked to review a juvenile court order that simultaneously (i) entered a default against a mother who failed to appear at a status conference and (ii) terminated her parental rights. The mother, C.C., advanced three principal arguments on appeal:

The juvenile court erred in finding her in default and terminating her parental rights.
The court abused its discretion in refusing to vacate the default judgment.
The default-based termination violated her constitutional due-process rights.

The Court affirmed on every point and, in doing so, settled an important procedural question: motions to vacate termination orders in juvenile matters are governed by N.D.R.Juv.P. 16—not by N.D.R.Civ.P. 60(b). The opinion also reinforces (i) the permissibility of relying on sworn affidavits to meet the clear-and-convincing standard when the opposing party raises no evidentiary objection, and (ii) the discretion juvenile courts possess to proceed in a parent’s absence under N.D.R.Juv.P. 10.

2. Summary of the Judgment

The Court, per Justice Tufte, unanimously affirmed the juvenile court’s order on the following grounds:

Default Properly Entered. Under N.D.R.Juv.P. 10, C.C.’s failure to attend the status conference—despite notice—allowed the court to “receive evidence in support of the petition” and to grant the relief sought.
Affidavit Sufficient for Clear & Convincing Proof. The State offered, without objection, an affidavit from case manager Sara Boyer that established statutory grounds under N.D.C.C. § 27-20.3-20(1)(c)(2). Because the affidavit was admitted into evidence, the court could rely on it in making findings.
No Abuse in Denying Vacatur. The juvenile court analyzed the mother’s motion to vacate under Rule 60(b); even though that was the wrong procedural lens, the Supreme Court held the result would be identical under the correct rule (N.D.R.Juv.P. 16). Vacatur was unavailable absent (i) fraud, mistake, jurisdictional defect, or newly-discovered evidence or (ii) written consent of the custodial agency if the child had not been adopted—neither of which existed.
Due-Process Claim Rejected. Because C.C. had notice, counsel, and an opportunity to participate (but chose not to appear), the constitutional minimum was satisfied.

3. Analysis

A. Precedents Cited and Their Influence

In re A.P., 2024 ND 43 – Clarified that a court may not rely on an affidavit unless it is formally admitted. Here, the affidavit was admitted, so reliance was proper.
In re J.C., 2024 ND 9 – Emphasized that once statutory grounds for termination are met, the juvenile court still has discretionary authority to terminate. This discretion was upheld in the instant case.
In re M.R., 2015 ND 233 – Held that juvenile courts may proceed in a parent’s absence and that doing so does not violate due process when the parent had notice and counsel. Echoed verbatim by the Court to dismiss C.C.’s constitutional claim.
Discover Bank v. Bolinske, 2020 ND 228 – Provided the general abuse-of-discretion framework for Rule 60(b) motions; cited to explain how the juvenile court initially approached vacatur.
In re G.K.G., 2014 ND 82 (Crothers, J., concurring) – Noted that Rule 60(b) does not apply to Juvenile Court Act cases. The present decision converts that observation into binding precedent by expressly holding that N.D.R.Juv.P. 16 governs.
In re R.L.-P., 2014 ND 28 – Established that a showing of 450 out of 660 nights in foster care is independently sufficient to terminate rights under N.D.C.C. § 27-20.3-20(1)(c)(2). Relied on to affirm termination here.

B. Legal Reasoning

Default Under Rule 10.
- N.D.R.Juv.P. 10(b)(1) explicitly authorizes the court to “receive evidence” when a parent, after proper service, fails to appear.
- The rule’s plain language gives judges discretion to proceed if it is in the child’s best interest. The trial court found it was, given prolonged foster-care placement and inconsistent engagement by the mother.
Sufficiency of Affidavit Evidence.
- The State offered Boyer’s affidavit; defense counsel affirmatively stated “no objection.”
- Once admitted, the affidavit became part of the evidentiary record, satisfying In re A.P..
- The sworn statements established all elements of § 27-20.3-20(1)(c)(2): the children had been in CHSZ custody well beyond 450 nights and remained in need of protection.
- Because clear-and-convincing evidence is a qualitative—rather than quantitative—standard, a single affidavit can suffice when uncontradicted and credible.
Vacatur Standard Clarified.
- The Court acknowledged the trial judge used the wrong rule (Rule 60(b)) but held the outcome would not change under Rule 16.
- Rule 16(a) mandates vacatur only for fraud, mistake, lack of jurisdiction, or newly discovered evidence—none alleged.
- Rule 16(b)(2) provides a narrow safety valve for terminating orders: the child must not yet be adopted and the custodian (CHSZ) must consent in writing. CHSZ objected, so the condition precedent failed.
- Thus, denying vacatur was within the juvenile court’s discretion, and any error was harmless.
Due-Process Analysis.
- The Court reiterated that parents do not have an absolute right to be physically present; representation plus notice meets constitutional minima (In re M.R.).
- Because C.C. had counsel, had been notified, and could have appeared (she simply missed her ride), no due-process violation occurred.

C. Impact of the Decision

This ruling will have several ripple effects:

Procedural Clarity. Trial courts—and practitioners—must now apply N.D.R.Juv.P. 16 when seeking to set aside termination orders. Motions invoking Rule 60(b) are improper in this context.
Elevated Importance of Affidavits. When a parent defaults, an unopposed, properly admitted affidavit may satisfy the clear-and-convincing burden. Agencies will likely bolster petitions with detailed, notarized affidavits anticipating non-appearance.
Encouragement to Appear. The decision underscores that failure to attend even a status conference can lead directly to termination. Parents and counsel will treat such hearings with heightened seriousness.
Limitation on Post-Judgment Relief. The narrow pathway to vacatur—written custodian consent—will make it harder to reopen cases once termination is ordered, promoting permanency for children.
Guidance to Lower Courts. Juvenile judges may confidently default non-appearing parents so long as Rule 10 procedures are followed and evidence is admitted properly.

4. Complex Concepts Simplified

Default Judgment (Juvenile Context). A decision made when a party fails to appear. The court can still require proof of the claim (here, grounds for termination) but need not delay proceedings.
Clear and Convincing Evidence. A mid-level burden—more than “preponderance” but less than “beyond a reasonable doubt.” The judge must firmly believe the allegations are true.
N.D.R.Juv.P. 10 (Presence/Default). Governs attendance at juvenile hearings. Authorizes courts to proceed and even hold someone in contempt, or issue default, if a parent does not show up.
N.D.R.Juv.P. 16 (Vacatur/Modification). Sets exclusive grounds and procedures to undo or modify juvenile orders—including termination decrees.
Aggravated Circumstances. Statutory factors (e.g., chronic substance abuse, abandonment) that permit bypassing reunification efforts and moving directly to termination.
450-out-of-660 Test. If a child has been in state custody for at least 450 nights in the past 660, that fact alone can satisfy the “continuing need for protection” element, streamlining termination.

5. Conclusion

Interest of B.F. & I.F. solidifies three key principles in North Dakota juvenile jurisprudence:

Motions to vacate termination orders are governed by N.D.R.Juv.P. 16, not by the general civil relief provision of Rule 60(b).
An affidavit admitted without objection can, standing alone, satisfy the clear-and-convincing threshold in default termination proceedings.
Parents’ failure to appear—even at a status conference—authorizes the juvenile court, under Rule 10, to proceed to default and termination without offending due process.

In prioritizing procedural clarity and child permanency, the Court’s ruling will streamline future termination cases while delineating the limited circumstances under which parents may reopen judgments. Attorneys practicing in this arena must adjust their strategies accordingly—paying careful attention to evidentiary foundations, attendance obligations, and the stringent criteria for post-judgment relief.