In Interest of K.R.A.G., DOB--

• Decision Date: 13 November 1986
• Docket Number: DOB--
• Parties: In the Interest of K.R.A.G.,
• Court: North Dakota Supreme Court

Page 325

420 N.W.2d 325

In the Interest of K.R.A.G., DOB--11/13/86, A Child.

James WOLD, States Attorney, Petitioner and Appellee, v. T.M., (Minor Mother), A.L.H., (Grandmother), Respondents and Appellants, and R.G., (Minor Father), Respondent.

Civ. No. 870141.

Supreme Court of North Dakota.

Feb. 25, 1988.

Robert J. LaBine & Associates, Grand Forks, for respondents and appellants. Submitted on briefs by Patrick O. Sogard.

James W. Wold, State's Atty., Cooperstown, for petitioner and appellee. Submitted on briefs.

GIERKE, Justice.

T.M. and A.H., the mother and grandmother of K.R.A.G., appeal from a juvenile court order finding K.R.A.G. to be a deprived child within the meaning of Section 27-20-02, N.D.C.C., and placing her in the care, custody and control of the Director of the Griggs County Social Service Center. We affirm.

K.R.A.G. (hereafter Kay, a pseudonym) was born prematurely in a Fargo hospital on November 13, 1986, and remained in the hospital for approximately three weeks. After Kay was released from the hospital, T.M. took her and moved into the home of A.H., T.M.'s mother, in Jesse, North Dakota. On December 4, 1986, T.M. and Kay moved into the home of L.G., the paternal grandmother, in Jesse, North Dakota, and resided there until March 1987.

On March 5, 1987, a temporary custody order was issued by the judicial referee of the juvenile court which temporarily removed Kay from the custody of her mother, T.M., and placed the child in the care, custody and control of the Director of the Griggs County Social Service Center.

On March 10, 1987, a petition was filed in juvenile court by the Griggs County State's Attorney alleging that Kay was a deprived child within the meaning of Section 27-20-02(5)(a) of the North Dakota Century Code.

A hearing on the merits of the petition was scheduled before the judge of the juvenile court on April 24, 1987, and was finally completed on May 6, 1987. Following the hearing, the juvenile court concluded that Kay was a deprived child pursuant to the provisions of Section 27-20-02(5)(a) of the North Dakota Century Code ¹ and therefore issued an order that the care, custody and control of Kay continue with the Director of the Griggs County Social Service Center for a period not to exceed eighteen (18) months and subject to a continuing review. ²

At the hearing, allegations of deprivation and testimony concerning several incidents were offered to prove deprivation. There was testimony at the hearing that T.M. and R.G., mother and father, frequently fought or argued while Kay was in close proximity. There was also testimony that T.M. intentionally dropped or threw Kay onto the bed. Additionally, it was testified to that while Kay was in the bedroom with T.M. and R.G. she fell off the waterbed to the floor. Also, there was testimony that T.M. and R.G. took Kay outside in dangerous blizzard conditions. Moreover, there was testimony that T.M. left Kay in the care of her 12-year-old sister while she went to a store in Binford, North Dakota. T.M.'s 12-year-old sister was at the time in charge of her twin 6-year-old brother and sister, a neighbor girl, her 1 1/2-year-old brother, and also was playing with another boy her age. It was alleged at the hearing that Kay was being overfed and that at age 16 T.M. lacks the necessary mothering or parenting skills. Furthermore, there was testimony from Louise Dahl, a social worker, that T.M. made the following statements when she was unable to settle down Kay: "If you don't quit crying, I'm going to spank you."; "It is my baby. I can do what I want with it."; and "If you don't quit crying, I'm going to throw you against the wall." Finally, it was alleged that T.M. spent all but $50.00 of her $300.00 A.F.D.C. check for the month of March on personal items without consideration of the needs of Kay.

The appellants have, pursuant to Section 27-20-56, N.D.C.C., appealed from the juvenile court's order to this Court. ³ On appeal, the appellants contend that the juvenile court erred in its finding that Kay is a deprived child.

A deprived child is defined in Section 27-20-02(5)(a) of the North Dakota Century Code as one who:

"Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian;" Further, we have held that "proper parental care" means that the efforts of the parents must meet those minimum standards of care which the community will tolerate. Sexton v. J.E.H., 355 N.W.2d 828, 830 (N.D.1984); Asendorf v. M.S.S., 342 N.W.2d 203, 206 (N.D.1983); In Interest of J.K.S., 274 N.W.2d 244, 252 (N.D.1979).

It is well established that parents have a constitutional right to the custody and companionship of their children. Asendorf v. M.S.S., supra; In Interest of M.M.C., 277 N.W.2d 281, 284 (N.D.1979); In Re J.Z., 190 N.W.2d 27, 29 (N.D.1971). However, this right is not absolute and parents are not entitled to custody of their children under all circumstances. Asendorf v. M.S.S., supra; Interest of R.D.S., 259 N.W.2d 636, 638 (N.D.1977); Bjerke v. D.T., 248 N.W.2d 808, 813 (N.D.1976). There is a presumption that parents are fit and the burden of disproving this presumption of parental fitness is on the person challenging it. Bjerke v. D.T., supra at 811; In Re J.V., 185 N.W.2d 487, 492 (N.D.1971). It is also clear that deprivation must be shown by clear and convincing evidence. Bjerke v. D.T., supra.

Our scope of review in deprivation cases is governed by Section 27-20-56(1) of the North Dakota Century Code which provides that our review shall be based 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. ⁴ We are not limited to determining whether or not the juvenile court's findings are clearly erroneous under Rule 52(a) of the North Dakota Rules of Civil Procedure, but instead are allowed to review the evidence in a manner comparable to the former procedure of trial de novo. In Interest of R.M.B., 402 N.W.2d 912, 914 (N.D.1987); In Interest of J.K.S., 356 N.W.2d 88, 92 (N.D.1984). While we are not bound by the juvenile...