N.D. R. Juv. proce. 5

As amended through March 18, 2024

Rule 5 - SUMMONS

(a) Summons.

(1) Except in a continued foster care matter under N.D.C.C. § 27-20.3-16, the court must direct the issuance of a summons to the parents, guardian, or other custodian, guardian ad litem, and any other persons who are proper or necessary parties to the proceeding, requiring them to appear before the court at the time fixed to answer the allegations of the petition. The summons must also be directed to the child if the child is alleged to be a delinquent. The summons must also be directed to the child if the child is 14 or more years of age and the subject of a child in need of protection petition or of a guardianship petition.

(2) A copy of the petition must accompany the summons unless the summons is served by publication, in which case the published summons must indicate the general nature of the allegations and where a copy of the petition can be obtained.

(3) Except in a continued foster care matter under N.D.C.C. § 27-20.3-16, the court may order the parents, guardian, or other custodian of the child to appear personally at the hearing and direct the person who has physical custody or control of the child to bring the child to the hearing. The order must include the address of the facility where the hearing will be held.

(4) In a continued foster care matter under N.D.C.C. § 27-20.3-16, the court may order the child to appear personally.

(b) Immediate Custody Order. If it appears from a declaration filed or from sworn testimony before the court that the conduct, condition, or surroundings of the child are endangering the child's health or welfare or those of others, or that the child may leave or be removed from the jurisdiction of the court or will not be brought before the court, notwithstanding the service of the summons, the court may order a law enforcement officer to serve the summons and take the child into immediate custody and bring the child before the court.

(c) Right to Counsel. The summons must state that a party is entitled to counsel in the proceedings.

(d) Waiver of Service. Except in a continued foster care matter under N.D.C.C. § 27-20.3-16, a party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing. If the child is present at the hearing, the child's counsel, parent, guardian, or other custodian, or guardian ad litem, may waive service of summons in the child's behalf. In a continued foster care matter under N.D.C.C. § 27-20.3-16, a child may waive service by written stipulation or by voluntary appearance at the hearing.

(e) Hearing Without Parental Service. When a child is in detention or shelter care and good cause is shown why service was not completed upon an absent or noncustodial parent, the court may proceed with the hearing on the petition in order to comply with statutory time limitations.

N.D. R. Juv. proce. 5

Effective Date 3/1/2010; 5/1/2015; 7/1/2021.

Explanatory Note

Rule 5 was adopted effective March 1, 2010; amended effective 5/1/2015; 3/1/2021; amended effective 7/1/2021.

In these rules, the term "guardian ad litem" includes lay and attorney guardians ad litem.

Counsel may be provided at public expense for indigent parties under N.D.C.C. § 27-20.2-12.

Subdivision (a) was amended, effective May 1, 2015, to clarify that issuance of a summons and the child's presence at a hearing is not required in a continued foster care matter under N.D.C.C. § 27-20.3-16.

Paragraph (a)(1) was amended, effective, to require that a summons be directed to the child if the child is 14 or more years of age and the subject of a child in need of protection petition or of a guardianship petition.

Subdivision (d) was amended, effective May 1, 2015, to clarify that the child may waive service in a continued foster care matter under N.D.C.C. § 27-20.3-16. Continued foster case matters involve children over the age of 18 who can legally act on their own behalf.

Rule 5 was amended effective 3/1/2021, to delete the term "affidavit" and replace it with "declaration." This amendment was made in response to N.D.C.C. ch. 31- 15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.

Rule 5 was amended, effective July 1, 2021, to update terminology and statutory references consistent with the July 1, 2021, amendments to the Juvenile Court Act, N.D.C.C. chs. 27-20.2, 27- 20.3, and 27-20.4.

SOURCES: Juvenile Policy Board Minutes of June 11, 2021; September 5, 2014, pages 3-4; February 20, 2009; December 5, 2008; August 8, 2008; May 9, 2008; February 29, 2008; September 21, 2007; April 20, 2007. Joint Procedure Committee Minutes of April 24, 2020, pages 4-5; January 29-30, 2015, page 8; September 25-26, 2014, page 6: May 21-22, 2009.

STATUTES AFFECTED:

CONSIDERED: N.D.C.C. ch. 31-15, §§ 27-20.2-12; 27- 20.3-16.