Adoption A.S. C.N.D. v. C.M.A.S.

• Decision Date: 06 December 2018
• Docket Number: No. 20180327,No. 20180326,20180326
• Citation: 920 N.W.2d 301
• Parties: In the MATTER OF the ADOPTION OF A.S. C.N.D., Petitioner v. C.M.A.S., Respondent and Appellant and A.S., North Dakota Department of Human Services, Respondents and M.S. and C.S., Interested Parties and Appellees In the Matter of the Adoption of Z.S. C.N.D., Petitioner v. C.M.A.S., Respondent and Appellant and Z.S., North Dakota Department of Human Services, Respondents and M.S. and C.S., Interested Parties and Appellees
• Court: North Dakota Supreme Court

920 N.W.2d 301

In the MATTER OF the ADOPTION OF A.S.

C.N.D., Petitioner

v.C.M.A.S., Respondent and AppellantandA.S., North Dakota Department of Human Services, Respondents

and

M.S. and C.S., Interested Parties and Appellees

In the Matter of the Adoption of Z.S.

C.N.D., Petitioner

v.C.M.A.S., Respondent and AppellantandZ.S., North Dakota Department of Human Services, Respondents

and

M.S. and C.S., Interested Parties and Appellees

No. 20180326

No. 20180327

Supreme Court of North Dakota.

Filed December 6, 2018

Kyle R. Craig, Minot, ND, for respondent and appellant.

Erica J. Shively, Bismarck, ND, for interested parties and appellees.

McEvers, Justice.

[¶ 1] C.S. appeals from a district court’s order terminating his parental rights to A.S. and Z.S. C.S. argues the district court erred in finding he abandoned the children and finding the causes of deprivation were likely to continue. We affirm, concluding the district court did not clearly err in finding the causes of deprivation were likely to continue.

I

[¶ 2] In August 2017, C.D. petitioned to terminate her and C.S.’s parental rights to A.S. and Z.S., and to place the children in an adoptive home through an identified adoption placement. In her petitions, C.D. alleged it was in the best interests of the children to terminate C.S. and C.D.’s parental rights and that remaining in C.S. or C.D.’s care was contrary to the children’s welfare and wellbeing. In March 2018, the district court held a hearing on the matter and heard evidence relating to C.S.’s history of incarceration, living arrangements, abuse of C.D., abandonment of the children, and history of drug use.

[¶ 3] C.S., the biological father, and C.D., the biological mother, had two children, A.S., born in January 2014, and Z.S., born in August 2015. C.S. and C.D. were never married, but they lived together periodically. C.S. and C.D. began to use drugs in 2012 and continued to use drugs regularly until November 2017, when both claimed they attempted sobriety.

[¶ 4] C.D. and C.S. got into an altercation and C.S. attempted to "run off" with A.S. At the time of the altercation, C.D. was pregnant with Z.S. As a result of the altercation, a year-long protection order was issued in 2015 in Minnesota, prohibiting C.S. from contacting C.D.

[¶ 5] C.D. testified C.S. has only seen Z.S. three times since his birth and Z.S. does not know C.S. C.S. admitted that during 2015 and 2016, he was incarcerated for 157 days, including time spent at a rehabilitation center in Jamestown and in the last two years he has been incarcerated for approximately six months. C.S. was on supervised probation, and was participating in the drug court program since November 2017. C.S. admitted to using methamphetamine in February 2018. C.S.’s probation officer testified that the drug court program is, at a minimum, a 12-month program. The probation officer also testified that due to C.S.’s inability to meet the requirements of the drug court program, he was placed in Centre, Inc., a halfway house, to achieve residential stability. C.S. testified he will continue to reside at Centre, Inc., for an undetermined amount of time, and the children would not be able to reside there with him. C.S. testified the last time he saw either Z.S. or A.S. was Father’s Day of 2017. C.S. admitted he was at risk to use drugs again if his parental rights are terminated.

[¶ 6] C.S. testified he provided support to A.S. and Z.S. when his wages were garnished. Since 2015, C.S. had convictions for false reports to law enforcement officers, possession of controlled substances, unauthorized use of personal identifying information, burglary, theft, possession of drug paraphernalia, and possession of a concealed weapon.

[¶ 7] In July 2018, the district court entered an order terminating the parental rights of C.S. and C.D. C.S. appealed from the court’s order terminating his parental rights, arguing that the court erred by (1) finding he abandoned his children, and (2) determining the causes of deprivation were likely to continue.

II

[¶ 8] Section 14-15-19(3), N.D.C.C., authorizes a court to terminate parental rights on the ground:

a. That the minor has been abandoned by the parent;

b. That by reason of the misconduct, faults, or habits of the parent or the repeated and continuous neglect or refusal of the parent, the minor is without proper parental care and control, or subsistence, education, or other care or control necessary for the minor’s physical, mental, or emotional health or morals, or, by reason of physical or mental incapacity the parent is unable to provide necessary parental care for the minor, and the court finds that the conditions and causes of the behavior, neglect, or incapacity are irremediable or will not be remedied by the parent, and that by reason thereof the minor is suffering or probably will suffer serious physical, mental, moral, or emotional harm; orc. That in the case of a parent not having custody of a minor, the noncustodial parent’s consent is being unreasonably withheld contrary to the best interest of the minor.

"The petitioner must establish all of the elements for termination by clear and convincing evidence." In re G.R. , 2014 ND 32, ¶ 5, 842 N.W.2d 882 (citation omitted). "Clear and convincing evidence is evidence that leads to a firm belief or conviction the allegations are true." Id . (citation omitted).

[¶ 9] "A court’s decision to terminate an individual’s parental rights is a question of fact, and that decision will not be overturned unless it is clearly erroneous." In re M.R. , 2015 ND 233, ¶ 6, 870 N.W.2d 175. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, on the entire record, the Court is left with a definite and firm conviction a mistake has been made. In Interest of A.B. , 2017 ND 178, ¶ 12, 898 N.W.2d 676. This Court does not re-weigh evidence, and gives "due regard to the trial court’s opportunity to judge the witnesses’ credibility." Id. at ¶ 12.

A

[¶ 10] C.S. argues the district court erred in determining the causes of deprivation for the children were likely to continue because in reaching its decision, the court relied "solely" on past evidence of C.S.’s incarceration. C.S. does not appeal the district court’s finding of deprivation.

[¶ 11] For a finding of continued deprivation, this Court has said:

To determine whether the conditions and causes of the deprivation are likely to continue, evidence of past or present deprivation alone is insufficient, but evidence of the parent’s background, including previous abuse or deprivation, may be considered. The amount of contact the parent has had with the child may also be considered. Prognostic evidence or evidence that forms the basis for a reasonable prediction as to future behavior must be evaluated. Prognostic evidence includes the reports and opinions of the professionals involved.

In re D.F.G. , 1999 ND 216, ¶ 20, 602 N.W.2d 697 (internal citations omitted). Furthermore,

[i]ncarceration does not alone constitute continued deprivation, but the harm a parent’s incarceration may cause the children "may be established by prognostic evidence that a parent’s current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent’s rights are not terminated." When a parent, voluntarily and without reasonable justification, makes himself unavailable

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