In Interest of J.A.L., 880112

• Decision Date: 06 December 1988
• Docket Number: No. 880112,880112
• Citation: 432 N.W.2d 876
• Parties: In the Interest of J.A.L., A Child. Addie JACOBSON, Petitioner and Appellee, v. J.A.L., a child; D.L., Mother; and his Guardian ad Litem, LaRoy Baird, Attorney, Respondents and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 876

432 N.W.2d 876

In the Interest of J.A.L., A Child.

Addie JACOBSON, Petitioner and Appellee, v. J.A.L., a child; D.L., Mother; and his Guardian ad Litem,

LaRoy Baird, Attorney, Respondents and

Appellants.

Civ. No. 880112.

Supreme Court of North Dakota.

Dec. 6, 1988.

Patricia L. Burke (argued), State's Atty., Bismarck, for petitioner and appellee.

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for respondents and appellants, argued by William D. Schmidt; appearance by LaRoy Baird III, Guardian ad Litem.

LEVINE, Justice.

D.L. (hereinafter Donna, a pseudonym), the mother of the minor child J.A.L. (hereinafter John, a pseudonym), appeals from a juvenile court order terminating her parental rights. We affirm.

John was born on March 7, 1987 to Donna, who is mentally retarded. John has been diagnosed as having cerebral palsy. On March 23, 1987, the Burleigh County juvenile court issued an emergency temporary order placing John in the temporary custody of Burleigh County Social Services. Both mother and child were then placed in the foster home of Delores Roe on April 7, 1987. Roe was licensed for adult and child foster care and provided foster care to both Donna and John. Roe attempted to train Donna in parenting skills. She also assisted and supervised Donna in self-care and in the care of John.

Burleigh County Social Services filed a petition for termination of Donna's parental rights and a hearing was held on February 11, 1988. The juvenile court terminated parental rights after finding that John was a "deprived child" because of Donna's present inability to provide even minimal care, and that Donna's condition would not improve. Donna appealed.

Donna contends that: (1) the juvenile court erred in terminating her parental rights because the evidence was not sufficient to establish that the conditions of deprivation of the child are likely to continue; (2) a developmentally disabled person such as Donna should be afforded an opportunity to properly care for her child through "appropriate services" as required by NDCC Sec. 25-01.2-02; and (3) the Uniform Juvenile Court Act, NDCC ch. 27-20, violates the equal protection clause and the due process clause of the United States Constitution and the Constitution of North Dakota.

Our statute governing the termination of parental rights is part of the Uniform Juvenile Court Act, codified at NDCC ch. 27-20. In order for the court to terminate parental rights, the State must show by clear and convincing evidence that: (1) the child is a "deprived child"; (2) the conditions and causes of deprivation are likely to continue or will not be remedied; and (3) by reason of the continuous and irremediable conditions and causes, the child is suffering or will probably suffer serious physical, mental, moral or emotional harm. See NDCC Sec. 27-20-44; Bernhardt v. K.Q., 423 N.W.2d 803 (N.D.1988) [citing In Interest of J.N.R., 322 N.W.2d 465, 468 (N.D.1982) ]. Donna argues that the State failed to establish by clear and convincing evidence the second prerequisite for terminating parental rights, namely, that the conditions and causes of deprivation are likely to continue or will not be remedied.

In reviewing decisions of the juvenile court under NDCC ch. 27-20, we examine evidence in a manner similar to trial de novo. In Interest of C.S., 417 N.W.2d 846, 847 (N.D.1988). Our review is based upon "files, records, and minutes or transcript of the evidence of the juvenile court." NDCC Sec. 27-20-56(1). We give appreciable weight to the juvenile court's findings and recognize the trial court's opportunity to observe the demeanor of witnesses, but we are not bound by the juvenile court's findings. See In Interest of A.M.C., 391 N.W.2d 178, 179 (N.D.1986); In Interest of J.S., 351 N.W.2d 440, 441 (N.D.1984).

The court found that the conditions of deprivation were likely to continue because of Donna's incapacity to function independently for herself or her child, and her inability to "consistently feed, bathe or discipline" John. Relying on expert testimony, the court concluded that Donna's condition would not improve. The court also found that John is a special needs child with cerebral palsy and that his needs will increase.

There is clear and convincing evidence to support the juvenile court's finding that the conditions and causes of deprivation are likely to continue. Dr. Steven Rosenberg, a clinical psychologist who testified on behalf of Donna, concluded Donna was mildly retarded, with daily living skills comparable to a seven-year-old child. Dr. Rosenberg stated that John is at risk in Donna's care alone and that "there will always be a need for supervision." He could not predict whether the need for supervision would decrease, but concluded that supervision would be needed "forever."

Two psychiatrists and a clinical psychologist who evaluated Donna each testified that Donna would never be able to parent the child without constant supervision. They concluded that although a person with an IQ of 53 may be able to learn some rudimentary parenting skills such as feeding and diapering the child, Donna has not shown any indication that she is trainable. All predicted her skills will not improve.

Delores Roe, the foster mother, testified that s...