IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 218

State of North Dakota, Plaintiff and Appellee

v.

S.J.H., Defendant and Appellant

and

S.D.S., Plaintiff

No. 20210165

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Stacy J. Louser, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Stephen E. Williamson, Special Assistant Attorney General, Minot, North 

Dakota, for plaintiff and appellee; submitted on brief.

S.J.H., self-represented, Oxford, Michigan, defendant and appellant; 

submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 9, 2021 

STATE OF NORTH DAKOTA
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State v. S.J.H.

No. 20210165

Tufte, Justice.

[¶1] S.J.H. appeals from a district court order granting the State’s motion for 

sanctions against him for failure to obey a court order for genetic testing and 

from a default judgment ordering him to pay child support. We affirm the order

and judgment, concluding the district court did not abuse its discretion.

I

[¶2] The North Dakota Child Support Division (“State”) commenced a civil 

action against S.J.H. to establish paternity for a minor child. S.J.H. retained 

counsel. In S.J.H.’s answer and counterclaim, he included a request for genetic 

testing to be conducted. At a hearing nearly four months later, he withdrew his 

request for testing. The district court then entered an order requiring S.J.H. to 

submit to genetic testing. The order stated that “[s]amples must be taken 

within 30 days of date of service of this Order.”

[¶3] After two months went by with no testing having been conducted, the 

district court requested a status update from the parties. S.J.H.’s counsel 

responded with “[t]o date, [S.J.H.] has not completed the ordered paternity 

test. After discussion with [S.J.H.], I intend to withdraw as his attorney of 

record.” One day after this response, S.J.H.’s counsel moved to withdraw. The 

brief in support of the motion states that his attorney-client relationship with 

S.J.H. had “deteriorated to a degree that further representation is not possible” 

after their discussions about the proceedings “resulted in an impasse.” The 

State subsequently scheduled an appointment for genetic testing for March 25, 

2021, in S.J.H.’s state of residence. On March 10, the State sent a letter to 

S.J.H.’s counsel with the information regarding the upcoming appointment. 

This letter was sent to counsel only and not directly to S.J.H. On March 31, the 

court granted S.J.H.’s counsel’s motion to withdraw.

[¶4] On April 30, the district court again asked the State and S.J.H. for a 

status update. Because S.J.H. failed to attend his March 25 appointment, the 

State requested sanctions against him, including striking his answer and 

rendering default judgment against him under N.D.C.C. § 14-20-49(2). S.J.H. 
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initially responded to the State’s motion by requesting a continuance to obtain 

new counsel, which was opposed by the State. S.J.H. then filed an answer 

stating that while he did receive the December 15 order for genetic testing, his 

attorney failed to inform him of his March 25 appointment. He stated that he 

was unaware of the March 25 appointment and learned of such appointment 

only upon being served the State’s motion for default judgment two months 

later. The court granted the State’s motion for sanctions, stating that S.J.H. 

“has not complied with the Order for Genetic Tests and has shown no indication 

that he will do so.” In its judgment, the court held that despite the fact that no 

genetic testing had been done, S.J.H. was the biological father of the minor 

child and was ordered to pay child support. S.J.H. appeals from the order 

granting sanctions and from the judgment.

II

[¶5] S.J.H. argues the district court abused its discretion in granting 

sanctions against him. He argues that his former attorney failed to notify him 

of the scheduled genetic testing appointment, and thus he did not disobey the 

court order to submit to genetic testing.

[¶6] “If an individual whose paternity is being determined declines to submit 

to genetic testing ordered by the court, the court for that reason may adjudicate 

parentage contrary to the position of that individual.” N.D.C.C. § 14-20-49(2)

(Uniform Parentage Act (2002) § 622). The statute’s use of the word “may” 

provides the district court discretion to adjudicate parentage as a consequence 

for refusing genetic testing. Because “[a]n order for genetic testing is 

enforceable by contempt,” we analyze the district court’s imposition of this 

remedy as a sanction. N.D.C.C. § 14-20-49(1). A party challenging a sanction 

“has the burden of showing an abuse of discretion.” State ex rel. Stenehjem v. 

Maras, 2021 ND 68, ¶ 14, 958 N.W.2d 475. The party challenging the sanction 

meets its burden “only when it is clear that no reasonable person would agree 

with the trial court’s assessment of what sanctions are appropriate.” Id. An 

abuse of discretion exists when the district court “acts in an arbitrary, 

unreasonable, or unconscionable manner, it misinterprets or misapplies the 

law, or when its decision is not the product of a rational mental process leading 
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to a reasoned determination.” Nelson v. Nelson, 2019 ND 221, ¶ 13, 932 N.W.2d 

386.

[¶7] The district court found that S.J.H. “has not complied with the Order for 

Genetic Tests” deliberately and in bad faith. The court further found that “[h]is 

actions are in violation of the court order and affect the discovery of evidence.” 

On our review of the record, these findings are not clearly erroneous. Having 

found S.J.H. had declined to comply with its order for genetic testing, the court 

had discretion to “adjudicate parentage contrary to the position of that 

individual.” N.D.C.C. § 14-20-49(2). See also Interest of L.A.V., No. 04-19-

00203-CV, 2020 WL 2044636, at *3 (Tex. Ct. App. Apr. 29, 2020) (applying 

Uniform Parentage Act (2002) § 622 and stating that because the alleged father 

“did not appear for DNA testing, we find no error by the trial court in 

determining [he] is” the child’s father).

[¶8] S.J.H. argues the district court abused its discretion in sanctioning him,

because he was not notified of the scheduled appointment to appear for testing

and so did not willfully fail to comply. The record supports the district court’s 

finding that there was deliberate and bad-faith noncompliance with its order. 

S.J.H. initially filed his own request for genetic testing. Only later did he 

retract his request and decline to cooperate with testing. After S.J.H. reversed 

his position on genetic testing, the court ordered that S.J.H. submit samples

for analysis to require his compliance. Despite the court’s order that samples

must be taken within 30 days of the order, S.J.H. did not submit to any genetic 

testing. S.J.H.’s former counsel confirmed that S.J.H. had still not completed 

the ordered paternity test approximately three months after the order had 

been entered. Counsel ultimately withdrew after S.J.H. disobeyed the order.

The State made a last attempt to induce S.J.H. to comply with the order by 

scheduling a genetic sampling appointment in Michigan, S.J.H.’s state of 

residence. S.J.H. did not attend this scheduled appointment. The record is 

silent as to whether S.J.H.’s counsel communicated this appointment to S.J.H.

The district court had not yet granted counsel’s motion to withdraw when 

counsel received this information regarding S.J.H.’s upcoming testing 

appointment. As a result, counsel still owed a duty to communicate such 

information to S.J.H., and service on his attorney was the proper and required 

method of service. Although striking S.J.H.’s answer and granting default 
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judgment against him was a serious sanction, it was proportional and 

appropriate because the record supports the district court’s finding that S.J.H. 

had no intention of cooperating with the court order and the court had no other 

means to induce compliance.

[¶9] The record shows the district court engaged in reasoned analysis and 

considered all relevant circumstances before exercising its discretion under 

N.D.C.C. § 14-20-49(2). The court considered S.J.H.’s state of mind in declining

genetic testing. After finding that S.J.H. “has not complied with the Order for 

Genetic Tests and has shown no indication that he will do so,” the court

determined that striking his answer and entering default judgment against 

him was an appropriate sanction for his deliberate disregard of the order. The 

court also considered the evidence that S.J.H.’s former attorney reached an 

impasse with him when he did not comply with the order, which was the basis 

for the attorney’s withdrawal from representation. Next, the court considered 

the prejudice to the opposing parties resulting from S.J.H.’s noncompliance 

with the order, including the impact it would have on presenting or defending 

the case. S.J.H.’s refusal to submit to testing deprived the mother and the State 

of the best evidence of paternity. Lastly, the court considered the availability of 

less severe sanctions. The court stated that “there [were] no means to enforce 

the Order . . . by having him return to North Dakota.” Without S.J.H.’s 

cooperation or any means to require him to produce a genetic sample, the court 

was left with no alternative but to enter default judgment against him. We 

conclude the district court did not abuse its discretion by adjudicating 

parentage against the position of S.J.H. under N.D.C.C. § 14-20-49(2) for a 

violation of the court order for genetic testing.

III

[¶10] S.J.H. also argues the district court denied his right to an attorney in his 

civil matter. An alleged father involved in the adjudication of parentage 

does not have a right to a court-appointed attorney. See Cody v. Cody, 2019 ND 

14, ¶ 18, 921 N.W.2d 679 (“Generally, there is no right to counsel in civil 

matters.”). S.J.H. was represented by retained counsel for a majority of the 

proceedings involved in this civil matter. S.J.H. had two months from the time 

the court granted his counsel’s motion to withdraw to the time S.J.H. requested 
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a continuance. We conclude the court did not err in denying S.J.H.’s request for 

a continuance to retain counsel after his first attorney withdrew.

IV

[¶11] We affirm the district court judgment and the order granting the State’s 

motion for sanctions.

[¶12] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte