F. H., In Interest of

Decision Date22 August 1979
Docket NumberNo. 9584,9584
Citation283 N.W.2d 202
PartiesIn the Interest of F. H., a child. B. H., Petitioner and Appellee, v. W. S., Respondent and Appellant. Civ.
CourtNorth Dakota Supreme Court

Jack Longert, Legal Assistance of North Dakota, Fargo, for respondent and appellant.

E. Thomas Conmy, III, Fargo, for petitioner and appellee.

SAND, Justice.

An unwed mother, then 19 years of age, placed her female child, born 20 March 1977, with a North Dakota licensed child placement agency. On 4 April 1977 she executed a petition requesting the juvenile court to terminate her parental rights and obligations as well as those of the informally acknowledged father of the child. The juvenile court ordered a hearing to be held before a referee. A petition and summons were served upon the alleged father (William) on 26 April 1977. By letter 1 dated 2 May 1977, William informed the mother's attorney of his intention to resist the termination of his parental rights and to seek custody of the child upon his release from the correctional facility where he was being held. A hearing was held and on 31 January 1978 the juvenile court issued an order terminating the mother's parental rights and continuing the hearing on the termination of William's parental rights to an open date (later date).

A reply to the petition, dated 2 March 1978, and signed by William was served upon the attorney for the mother. The reply stated William believed he was the father of the child and that he had informally acknowledged and declared his paternity.

The hearing on the question of terminating William's parental rights was set and notice thereof was served upon William by mail on 20 September 1978. William moved for a continuance by written motion which was served on 19 October 1978, the date set for the hearing. The motion for continuance was denied at the hearing.

William's appearance at the hearing was through his attorney, but not personally. After the hearing the court took the matter under advisement and on 7 December 1978 issued detailed findings of fact (some of which were a mixture of fact and law), conclusions of law and an order terminating the parental rights of William. On 18 December 1978 a judgment was issued and entered accordingly. William appealed.

William contended on appeal that the due process clauses of the North Dakota and United States Constitutions were violated in this case on the grounds that:

(a) The statements in the petition were conclusions and devoid of pertinent facts, thereby denying him a meaningful opportunity to prepare his case; and

(b) The court did not grant a continuance so as to permit him to appear personally and allow the court to observe and examine his demeanor and appearance and hear facts necessary to the termination of his parental rights.

William also contended error was committed in the termination of his parental rights when:

(a) Even though William expressed as much interest as a reasonable person would under the circumstances, abandonment was asserted on an involuntary act that occurred before the child's birth and which rendered it impossible for him to support the child; and

(b) Deprivation, and likelihood of continued deprivation, and probability of serious harm were "asserted on evidence revealing a child in presently good condition" and not on a "present or future prognosis as to the fitness of the father."

I

We will first consider the contention relating to the insufficiency of the petition.

In the case of In Interest of J.K.S., 274 N.W.2d 244, 248 (N.D.1979), Justice VandeWalle noted in a footnote that this court observed in In Interest of T.M.M., 267 N.W.2d 807, 813 (N.D.1978):

" . . . that a petition in the language of the statute defining a 'deprived child' (27-20-02(5)(a), N.D.C.C.) is conclusory language that does not comply with Section 27-20-21, which requires that a petition 'set forth plainly: . . . The facts which bring the child within the jurisdiction of the court, . . .' We indicated that such facts are necessary in order to provide notice to respondents so they may prepare for the hearing and participate meaningfully in it."

The petition in the instant case does not merely track the language of the statute but recites some pertinent allegations which, when supported by evidence, would constitute a basis for concluding the child was abandoned and deprived. The petition, in substance, stated that: a 19-year-old unwed mother gave birth to a female child on 20 March 1977; the unwed mother placed the child with a named licensed child-placing agency at Fargo, North Dakota; the unwed mother was never married nor had she cohabitated with a man at the time of conception or birth of the child; the paternity of the child had never been legally established or adjudicated; the mother had not, and did not intend to commence any proceedings to legally establish the paternity of the child; the mother had not received any support payments or promises of support from any man with respect to the child or in connection with the mother's pregnancy; William had informally acknowledged or declared his possible parentage of the child; no person was claiming custody of the child; William had not relinquished his parental rights or consented to the termination of his rights, the mother and William were unable to give the child proper care, nurture and training; and the mother believed it was in the best interest of the child and the public that proceedings be brought for the termination of parental rights and the child placed in a suitable family home for adoption. The petition concluded with the prayer that proper notice be served on the parties of interest. The petition prayed the court enter an order: terminating the parental rights and obligations in the child of the mother and William; confirming the action of the mother in placing her child with the child-placing agency; granting to the child-placing agency the sole right to the care, custody and control of the child; and appointing the child-placing agency as the agency having full authority to give consent to the adoption of the child, with the same force and effect as if consent were given by the mother as the legal parent of the child.

We recognize the petition contained some conclusions such as the mother and William were unable to provide "proper care, nurture and training" for the child. The petition, however, also contained specific allegations which sufficiently informed William of the nature of the proceedings and his role therein. William relies heavily upon our opinions In Interest of T.M.M., 267 N.W.2d 807 (N.D.1978) and In Interest of M.L., 239 N.W.2d 289 (N.D.1976), as support for his contention. The petition in this case, however, unlike those in the cases cited by William, adequately set out the basic issue. Although the petition must set forth plainly the facts which bring the child within the jurisdiction of the court, we are satisfied the Legislature, with the enactment of Chapter 27-20, North Dakota Century Code, did not intend the courts of this state to revert to technical, common law pleadings, but rather intended to continue the practice of modern day pleading.

Although the petition could have been more specific as to the facts constituting deprivation, it is not required that the petitioner set forth in the petition each piece of evidence to be offered in support of the petition. If William believed the petition was inadequate, he could have moved for a more definite statement under Rule 12(e), North Dakota Rules of Civil Procedure. He failed to make such a motion or in any other manner raise the issue of insufficiency of the petition before the juvenile court. In addition, the record in this case, including William's trial brief, indicates William was well aware of the type of action being brought and the statutory provisions the action was being brought under. An error is not reversible error unless it affects the substantial rights of the parties. Kunze v. State Farm Mutual Automobile Insurance Co., 197 N.W.2d 685 (N.D.1972).

William has failed to show the petition was insufficient. Even if we assume for sake of argument that the petition was insufficient, William failed to raise and preserve the issue of insufficiency before the juvenile court. We conclude William's constitutional rights of due process were not violated by the notice given him in this case.

II

William contended that the court erred in failing to grant his motion for a continuance. This issue involves, and to a degree rests upon, the resolution of the further question of William's right to be personally present at the hearing.

William, through his attorney, moved the court for a continuance until such time as he would be paroled from the Oregon State Correctional Institution. In support of William's motion, an affidavit from the acting chairperson of the Oregon Board of Parole was received. The affidavit, in substance, stated that:

"Unless (William) commits an act constituting serious institutional misconduct in the interim, he will reappear before the Board during the first few days of March, 1979, at which time the Board will order him released on parole. We anticipate that (William) will be so-released within ten days to two weeks after the entry of the parole order."

The United States Supreme Court considered and delineated certain issues concerning the rights of an unwed parent in termination proceedings. In Stanley v. Illinois 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court held that a presumption under Illinois law that unwed fathers were unfit parents violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court determined that under the Due Process Clause, all parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. The Court also concluded that denying a fitness hearing to unwed fathers...

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