Bjerke v. D. T.

• Decision Date: 23 December 1976
• Docket Number: No. 9236,9236
• Citation: 248 N.W.2d 808
• Parties: Arlyn BJERKE, Director of Emmons County Welfare, Petitioner and Appellee, v. D. T. and W. T., parents, Respondents and Appellants, and D. T., a child, Respondent. In the Interest of D. T., a child. Civ.
• Court: North Dakota Supreme Court

Page 808

248 N.W.2d 808

Arlyn BJERKE, Director of Emmons County Welfare, Petitioner and Appellee, v. D. T. and W. T., parents, Respondents and Appellants and D. T., a child, Respondent In the Interest of D. T., a child.

Civ. No. 9236.

Supreme Court of North Dakota.

Dec. 23, 1976.

Syllabus by the Court

1. Parents have a natural and paramount right to custody of their children, but the right is a qualified one.

2. The burden of disproving the presumption of parental fitness rests on the person who challenges it.

3. Proof that a child is deprived must be supplied by clear and convincing evidence. Sections 27--20--02(5) and 27--20--29(3), NDCC.

4. The scope of review in a proceeding alleging child deprivation is broad and provides the equivalent of a trial de novo.

5. Poverty and lack of education or culture alone are not reasons enough to declare a child deprived.

6. Evidence on financial status of parents is relevant and admissible to show whether or not a lack of parental care and control is due primarily to lack of financial means of the parents. Section 27--20--02(5), NDCC.

7. Where a child was shown to be emotionally ill, which illness was likely to be treatable, and parents failed to cooperate in the recommended treatment program, contending that their child was normal and needed no assistance, a finding of deprivation was justified.

Richard E. Herr, Wishek, for respondents and appellants.

Donavin A. Grenz, State's Atty., Linton, for petitioner and appellee.

SAND, Justice.

The parents of DT, a 14-year old girl, appeal from an order of the Emmons County juvenile court adjudging DT to be a deprived child and removing her from their custody and control for placement with the Emmons County Social Service Welfare Board.

DT is one of seven living children in a family that resides in Emmons County, North Dakota. DT's father derives his income from farming on rented land and doing television repair work, and DT's mother works at a cafe. The two oldest children have left home and the other five, ranging in age from 16 to 5 years old, remain with their parents.

On April 14, 1975, when DT was in the eighth grade, she took twenty-three adult migraine aspirin tablets in an alleged suicide attempt. She then made a telephone call to Dr. Orchard, a physician in Linton, who tried to persuade her to come in the hospital. DT's father overheard this telephone conversation and it was apparently he who took DT to the Linton hospital. DT remained hospitalized for one week. During her stay she was visited frequently by Dr. Orchard and by Marlene Baumgartner, an outreach worker for the Memorial Mental Health and Retardation Center at Mandan (hereinafter Center) who had been contacted about DT's case by the hospital administrator.

On May 12, 1975, Marlene visited DT's home, accompanied by Kay Lang, a social worker, and requested DT's parents to allow testing to be conducted at the Center to evaluate DT's emotional stability. DT's father said he would think about it and would let the social workers know what he decided, while DT's mother simply agreed to go along with her husband's decision. Neither of them was receptive to the request and claimed nothing was wrong with their daughter.

During a follow-up visit made on June 3, after a complete lack of response from DT's parents regarding the proposed evaluation, DT's father made it clear that he would not consent to testing. The following day the two social workers reappeared, along with Anne Hoff, the juvenile supervisor. DT's parents remained uncooperative. In the course of the discussion Mrs. Hoff raised the possibility that the matter would be referred to juvenile court if permission for the evaluation was not given. DT's father agreed at that point to allow the evaluation. An appointment was scheduled on June 10 for DT, and concurrent with it a session for DT's parents with another therapist, consistent with the Center's usual procedure. Although DT appeared for the evaluation, her parents did not. DT returned to the Center on July 15 for further testing. She was found to be of normal intelligence, but displayed signs of depression, hostility, and impulsiveness. Psychotherapy was recommended by the mental health clinician who evaluated DT, and the entire matter was reviewed at a Center staff meeting attended by the clinician, the two social workers, the juvenile supervisor, and Dr. Harold Hase, clinical director and chief psychologist at the Center. The outcome of the meeting was a three-part recommendation concerning treatment for DT: (1) placement outside the parental home, preferably in a foster home; (2) school consultation in conjunction with foster home placement; and (3) individual therapy in the community where placement is made. When informed of these results in August, DT's parents refused to consent to foster home placement but reluctantly agreed to see that DT got individual therapy.

At about this same time, Kay Lang received a request from the juvenile supervisor to do an investigation and home study of DT's home. An appointment was set up with DT's parents, but on the day of the appointment they called Kay to cancel, informing her that they would not be home. Attempts were made thereafter to set up another appointment, but Kay was unable to get the parents to fix a time. In September Kay drove out to the house with the deputy sheriff for the purpose of conducting the home study, but both parents were gone. A detailed home study was never done. Little account is made in the record of the next few months, but DT apparently did not receive further treatment at the Center.

The following January, DT's older sister contacted the two social workers and expressed concern that DT was threatening another suicide attempt. Kay Lang, Marlene Baumgartner, and Anne Hoff talked to DT, who said she did not want to stay at home any longer but wanted to be in a foster home, and would 'get myself out one way or another.' DT's parents were contacted as a result, whereupon DT became very upset and telephoned Kay Lang. She was afraid of what her father, who was not home yet, might do after finding out his daughter had been talking to the social workers. After hearing DT's agitation and her further threats of suicide, Kay decided to obtain a court order for emergency removal of DT from her home. DT left on horseback for a neighboring farm, where she was picked up by Kay and the sheriff.

A petition was filed with the juvenile court by the director of Emmons County Social Services to have DT declared a deprived child, and a hearing on the petition was held on February 20, 1976. At the conclusion of the hearing the court ordered that DT have a complete physical and psychiatric examination within three days. Pending receipt of the medical reports, the court continued the matter and placed DT temporarily in custody of the Social Service Board. On March 29, after receiving the evaluation results from a Bismarck psychiatrist, the juvenile court entered an order removing DT from her parents' custody for placement in a foster home. The order also required that DT continue to receive psychiatric treatment by a qualified psychiatrist and that monthly reports be sent to the court. The matter was scheduled for further review on June 1, 1977. The order was amended on April 15, 1976, to allow for DT's placement in a psychiatric center for inpatient treatment, and DT was then transferred from the foster home to the State Hospital at Jamestown.

The parents argue correctly that they are entitled to a presumption that they are fit parents and entitled to custody of their daughter. Custody and companionship of one's children is the natural and fundamental right of every parent. But the right is not an unqualified one, and parents may not retain custody of their children under any and all circumstances. In re A.N., 201 N.W.2d 118 (N.D.1972); In re J. Z., 190 N.W.2d 27 (N.D.1971).

The law nonetheless recognizes this right to be a paramount one; thus the burden of disproving the presumption of parental fitness rests on the person who challenges it. McGurren v. S. T., 241 N.W.2d 690 (N.D.1976).

The importance of parental custody is expressed in § 27--20--01, North Dakota Century Code, wherein it is stated that the purposes of the Uniform Juvenile Court Act shall be achieved whenever possible in a family environment, 'separating the child from his parents only when necessary for his welfare or in the interest of public safety.' In giving effect to the purpose of the Act, we therefore require a grave reason before removing a child from her parents' custody. The reason alleged here was deprivation of the child, defined in § 27--20--02(5), NDCC.

"Deprived child' means a child who:

'a. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of his parents, guardian, or other custodian;

'b. Has been placed for care or adoption in violation of law; or

'c. Has been abandoned by his parents, guardian, or other custodian.'

Not only must the petitioner show that the child is deprived within the purview of the statute, but the proof must be supplied by clear and convincing evidence. In Interest of M. L., 239 N.W.2d 289 (N.D.1976); § 27--20--29(3), NDCC. The stricter standard of review helps to ensure that the family unit will not be disturbed for insufficient reason.

We proceed to examine the case before us, taking note that our scope of review in a proceeding alleging deprivation of a child is different from and broader than in other cases tried to the court. We are called upon to re-examine the evidence in a manner comparable to that used in a trial de novo. In Interest of M. L., supra. In examining the files, records, and transcript of evidence, we give appreciable weight to the finding of the...