H., In re

• Decision Date: 12 April 1973
• Docket Number: No. 8840,8840
• Citation: 206 N.W.2d 871
• Parties: In the Matter of the Termination of the Parental Rights of the Mother of Baby Girl H., a child. Rita COYNE, Petitioner and Respondent, v. R.K.H., Appellant, The Executive Director of the Social Service Board of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 871

206 N.W.2d 871

In the Matter of the Termination of the Parental Rights of the Mother of Baby Girl H., a child Rita COYNE, Petitioner and Respondent, v. R.K.H., Appellant The Executive Director of the Social Service Board of North Dakota, Respondent.

Civ. No. 8840.

Supreme Court of North Dakota.

April 12, 1973.

Syllabus by the Court

1. Before a juvenile court may terminate the parental rights of a parent, three factors must be established by the evidence adduced at the termination hearing. These are: 1) that the child is a 'deprived child' within the purview of the Uniform Juvenile Court Act, Chapter 27--20, N.D.C.C.; 2) that the conditions and causes of the deprivation are likely to continue or will not be remedied; and 3) that by reason of these continuous or irremediable conditions and causes the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.

2. An appeal to the supreme court shall be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court giving appreciable weight to the findings of the juvenile court.

3. In pursurance of the general object of giving effect to the intention of the legislature, the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof. Effect will be given the real intention even though contrary to the letter of the law.

4. The child of a mother who, while never having had the opportunity to care for her child and thereby demonstrate her maternal abilities, and who is shown to be presently incapable of providing proper parental care for her child, is a 'deprived child' within the purview of the Uniform Juvenile Court Act, Chapter 27--20, N.D.C.C.

Albert A. Wolf and Robert O. Wefald, Bismarck, for appellant.

Thomas F. Kelsch, State's Atty., Burleigh County, Bismarck, for respondents.

PAULSON, Judge.

The mother of Baby Girl H. (hereinafter Baby H.) has appealed from a final order of the juvenile court terminating her parental rights. Baby H. was born on April 5, 1972. At the time of Baby H.'s birth her mother was sixteen and a half years of age and was unmarried. In addition, as a result of considerable difficulties occurring during her minority, the mother had been adjudged to be an unruly child and was under the care, custody, and control of the State Youth Authority. On the date of Baby H.'s birth the juvenile court issued a temporary order for the care, custody, and control of Baby H., placing custody with the Burleigh County Welfare Board for placement of the child in a suitable foster home. As a result of this temporary custody order, the mother of Baby H. has at no time had custody and control of her daughter.

On May 11, 1972, approximately one month after the issuance of the temporary custody order, a petition was filed with the juvenile court which alleged that Baby H. was a 'deprived child' within the purview of the Uniform Juvenile Court Act, Chapter 27--20 of the North Dakota Century Code, because the child was without the proper parental care or control necessary for her mental or emotional development. The petitioner requested that the parental rights of the mother of Baby H. be terminated. Pursuant to this petition, a summons was issued and served and a hearing was held by the juvenile court on May 15, 1972. As a result of this hearing, the juvenile court issued an order and decree terminating the parental rights of the mother in Baby H. The mother has appealed from this order and decree.

The issue presented by this case is unique and of first impression in this court and, simply stated, is: May the juvenile court, on the basis of prognostic evidence indicating the mother's inability to provide proper parental care for her child, terminate the parental rights of the mother in her child, where the mother has never had the opportunity to demonstrate her maternal abilities because the custody of the child had been placed in the county welfare board immediately upon its birth?

Resolution of the issue presented by this case requires that we resort to the provisions of the Uniform Juvenile Court Act (Ch. 27--20, N.D.C.C.). Section 27--20--44(1)(b), N.D.C.C., confers upon the juvenile court the power to terminate the parental rights of a parent in its child if:

'1. . . .

'b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; . . .'

Thus, § 27--20--44(1)(b) requires that the evidence establish three factors before a juvenile court may terminate the parental rights of a parent. There factors are: 1) that the child is a 'deprived child' within the purview of the Uniform Juvenile Court Act, Chapter 27--20, N.D.C.C.; 2) that the conditions and causes of the deprivation are likely to continue or will not be remedied; and 3) that by reason of these continuous or irremediable conditions and causes the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm. In re J. Z., 190 N.W.2d 27 (N.D.1971); In re J. V., 185 N.W.2d 487 (N.D.1971). In determining whether the evidence establishes these three factors, this court held in In re A.N., 201 N.W.2d 118 (N.D.1972), in paragraph 3 of the syllabus:

'An appeal to the supreme court shall be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court giving appreciable weight to the findings of the juvenile court.'

As stated previously, the first factor which must be established by the evidence, before a juvenile court may terminate the parental rights of a parent, is that the child is a 'deprived child' within the purview of the Uniform Juvenile Court Act (Ch. 27--20, N.D.C.C.). Section 27--20--02(5)(a), N.D.C.C., defines a 'deprived child' as follows:

'Definitions.--As used in this chapter:

'5. '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; . . .'

Counsel for appellant has urged upon this court a literal construction of the Uniform Juvenile Court Act (Ch. 27-- 20, N.D.C.C.) In so doing, counsel for appellant argues that Baby H. is not a 'deprived child' within the purview of § 27--20--02(5)(a), N.D.C.C., because the child, while at no time having received any parental care, has always had other proper care, and that, therefore, the first of the three factors required by § 27--20--44(1)(b), N.D.C.C., has not been established. However, we conclude that the Uniform Juvenile Court Act (Chapter 27--20, N.D.C.C.), and § 27--20--02(5)(a) thereof should not be limited by so literal a construction. Rather, we believe that in construing the Uniform Juvenile Court Act, the spirit of its enactment must be considered and the Uniform Juvenile Court Act should be construed, if possible, in accordance therewith. In Perry v. Erling, 132 N.W.2d 889, 896 (N.D.1965), our court, quoting with approval from 82 C.J.S. Statutes § 325 (1953), stated:

"In pursuance of the general object of giving effect to the intention of the legislature, the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof, it being generally recognized that whatever is within the spirit of the statute is within the statute although it is not within the letter thereof, while that which is within the letter, although not within the spirit, is not within the statute. Effect will be given the real intention even though contrary to the letter of the law."

We adopt this reasoning as appropriate in this case.

We also believe that a liberal construction of the Uniform Juvenile Court Act (Ch. 27--20, N.D.C.C.), is mandated by § 27--20--01(1) thereof, which provides:

'Interpretation.--This chapter shall be construed to effectuate the following public purposes:

'1. To provide for the care, protection, and wholesome moral, mental, and physical development of children coming within its provisions;'

Therefore, we conclude that § 27--20--02(5)(a), N.D.C.C., should be construed so as to include within its...