Guardianship A.D. S.K. v. A.D.

• Decision Date: 17 November 2021
• Docket Number: No. 20200299,20200299
• Citation: 966 N.W.2d 540
• Parties: In the INTEREST OF the GUARDIANSHIP OF A.D. S.K. and A.K., Petitioners and Appellees v. A.D., Child; M.K., Mother; Jim Jacobson, Guardian ad Litem, Respondents and L.D., Father, Respondent and Appellant
• Court: North Dakota Supreme Court

966 N.W.2d 540

In the INTEREST OF the GUARDIANSHIP OF A.D.S.K. and A.K., Petitioners and Appellees

v. A.D., Child; M.K., Mother; Jim Jacobson, Guardian ad Litem, RespondentsandL.D., Father, Respondent and Appellant

No. 20200299

Supreme Court of North Dakota.

FILED NOVEMBER 17, 2021

Patrick W. Waters, Bismarck, N.D., for petitioners and appellees; submitted on brief.

Laura C. Ringsak, Bismarck, N.D., for respondent and appellant; submitted on brief.

Tufte, Justice.

[¶1] L.D., father of A.D., appeals a juvenile court order granting a guardianship for A.D. The father argues the court erred by finding A.D. to be a deprived child and failing to address the best interest factors and make an exceptional circumstances finding. We affirm.

I

[¶2] In June 2020, A.D.’s aunt and uncle petitioned the juvenile court to appoint them guardians of A.D., alleging A.D. was a deprived child as defined by statute. A.D.’s father and mother opposed the guardianship. After a trial, the judicial referee granted the guardianship, finding A.D. to be a deprived child. The father requested review by a district court judge. After review, the district court judge adopted the judicial referee's findings and affirmed the order granting the guardianship. The father appeals.

II

[¶3] The father challenges findings of the judicial referee. "The findings and order of the judicial referee have the effect of the findings and order of the district court until superseded by a written order of a district court judge." N.D. Sup. Ct. Admin. R. 13, § 10(a). The district court judge may review the judicial referee's findings and order on the judge's own initiative, and must do so if timely requested by a party. Id. at § 11(a). The district court judge reviews the record de novo, and the court may adopt the referee's findings, remand to the referee for additional findings, or reject the findings and issue its own findings. Id. at § 11(b)-(c). The juvenile court has exclusive original jurisdiction of proceedings to grant a guardianship for a child, except the testamentary appointment of a guardian for a minor governed by N.D.C.C. ch. 30.1-27. N.D.C.C. § 27-20.1-02.

When the juvenile court judge reviews the referee's findings and order, the findings and order survive only to the extent the judge chooses to adopt them. Upon review, the referee's findings and order constitute recommendations to the juvenile court judge. The juvenile court judge is given the ultimate authority to be the fact finder and adjudicator and to issue a final disposition. Once the juvenile court judge issues a final order, there remains no decision of the referee to reinstate if this Court were to reverse the juvenile court judge's decision.

In re J.A.H. , 2014 ND 196, ¶ 9, 855 N.W.2d 394 (quoting Interest of B.F. , 2009 ND 53, ¶ 15, 764 N.W.2d 170 ).

[¶4] Here, the district court adopted the judicial referee's findings as its own under N.D. Sup. Ct. Admin. R. 13, § 11(b)(1). We do not set aside a juvenile court's findings of fact unless they are clearly erroneous. N.D.R.Civ.P. 52(a)(6). A finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. J.A.H. , 2014 ND 196, ¶ 7, 855 N.W.2d 394.

III

[¶5] The father argues the juvenile court erred by finding A.D. was a deprived child.

[¶6] A.D.’s aunt and uncle petitioned the juvenile court for a guardianship under N.D.C.C. ch. 27-20.1, alleging A.D. was a deprived child. Section 27-20.1-11(1)(d) (amended 2021), N.D.C.C., allows the court to appoint a guardian if it finds by clear and convincing evidence that the appointment is in the child's best interest and the child is deprived.¹ A deprived child includes a child who has been abandoned by the child's parents. N.D.C.C. § 27-20-02(8)(c) (repealed 2021).² Abandon means:

As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:

(1) To communicate with the child; or

(2) To provide for the care and support of the child as required by law[.]

N.D.C.C. § 27-20-02(1)(a) (repealed 2021). In deciding whether a child has been abandoned, we have outlined a number of considerations:

We look to such factors as the parent's contact and communication with the child, the parent's love, care and affection toward the child, and the parent's intent. Also relevant is the parent's acceptance of parental obligations, such as to care for, protect, support, educate, give moral guidance to, and provide a home for the child. A parent's negligent failure to perform his parental duties is significant to the issue of abandonment.

In re Adoption of H.G.C. , 2009 ND 19, ¶ 12, 761 N.W.2d 565 (cleaned up).

[¶7] The juvenile court found by clear and convincing evidence that the father has not provided care for or had any contact with A.D. since 2007 or 2008, and has not made any significant attempts to locate A.D. or have A.D. placed in his care. The court found that although the mother testified she attempted to hide A.D. from the father due to "what the father did to her [the mother]," the father has been aware of A.D.’s whereabouts since at least late 2019. In 2019, the father attempted to speak with A.D. on the telephone, but A.D. refused. The court found the father made no further attempt to contact A.D. The court found the father had abandoned A.D. The juvenile court's findings are not clearly erroneous.

IV

[¶8] The father asserts the juvenile court did not address the best interest factors under N.D.C.C. § 14-09-06.2.

[¶9] Under N.D.C.C. § 27-20.1-11(1), the juvenile court must find by clear and convincing evidence that the guardianship appointment is in the child's best interest. See also N.D.C.C. § 27-20.1-12(1) (requiring the court to make findings as to whether the appointment of the guardian is in the child's best interest). "The best interests factors of N.D.C.C. § 14-09-06.2(1) are applied in guardianship proceedings." In re Guardianship of P.T. , 2014 ND 223, ¶ 6, 857 N.W.2d 367. Those factors include, when applicable:

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

d. The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.

e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

f. The moral fitness of the parents, as that fitness impacts the child.

g. The mental and physical health of the parents, as that health impacts the child.

h. The home, school, and community records of the child and the potential effect of any change.

i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences.

j. Evidence of domestic violence. In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall cite specific findings of fact to show that the residential responsibility best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, residential responsibility for a child may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards residential responsibility to a third person, the court shall give priority to the child's nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent residential responsibility. As used in this subdivision, "domestic violence" means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

k. The interaction and inter-relationship, or the potential for interaction and inter-relationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child.

m. Any other factors considered by the court to be relevant to a particular parental

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