In Interest of M. L.

• Citation: 239 N.W.2d 289
• Decision Date: 25 February 1976
• Docket Number: No. 9155,9155
• Parties: In the Interest of M.L. et al., Children. Paul ELLINGSON, Petitioner and Appellee, v. M.L. et al., Respondents and Appellees, and D.L., their mother, Respondent and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 289

239 N.W.2d 289

In the Interest of M.L. et al., Children.

Paul ELLINGSON, Petitioner and Appellee, v. M.L. et al., Respondents and Appellees, and D.L., their mother, Respondent and Appellant.

Civ. No. 9155.

Supreme Court of North Dakota.

Feb. 25, 1976.

Rehearing Denied March 12, 1976.

Syllabus by the Court

1. Supreme Court's scope of review of decision made under Uniform Juvenile Court Act (Ch. 27--20, N.D.C.C.) is broader than in other cases tried to the court, and is equivalent to former procedure of trial de novo.

2. State has burden of proving by clear and convincing evidence that children are 'deprived' under Uniform Juvenile Court Act, Ch. 27--20, N.D.C.C.

3. A mother's absence from children, caused by her acceptance of psychiatric treatment, does not make them 'deprived' children under Uniform Juvenile Court Act, Ch. 27--20, N.D.C.C., if children are adequately cared for in her absence.

4. Finding that child is delinquent, unruly, or deprived is essential to jurisdiction under Uniform Juvenile Court Act, Ch. 27--20, N.D.C.C.

5. In the absence of a jurisdictional fact that a child of divorced parents is delinquent, unruly, or deprived, the juvenile court has no authority to change custody from the custodial parent to the noncustodial parent.

6. Differences between hearing on deprivation of child in juvenile court and custody hearing in district court are subsantial and prevent conversion of former into latter, even though same judge might preside at both.

Lewis C. Jorgenson, Asst. State's Atty., Devils Lake, for petitioner and appellee Paul Ellingson.

Lawrence J. Lange, Devils Lake, for M. L., E.L., and G.L., minors, and pro se as guardian ad litem.

Haugland & Heustis, Devils Lake, for E.L., the father, respondent and appellee, argued by Evan Heustis.

Bruce E. Bohlman, Grand Forks, for D.L., the mother, respondent and appellant, argued by Mr. Bohlman and Larry Baer, senior law student, Grand Forks.

VOGEL, Justice.

This is an appeal from a determination that three children are 'deprived,' as that term is used in the Uniform Juvenile Court Act, Chapter 27--20, North Dakota Century Code, and from a disposition thereunder placing the children in the custody of their natural father, who had been divorced from the natural mother in an action in which the mother was granted custody of the children.

The proceeding was commenced by a petition of Paul Ellingson, a Ramsey County social services worker, requesting a determination that the children were deprived. The action was brought against the mother and the father of the children. Three hearings were held, on June 21 and September 8, 1974, and on April 4, 1975. At the first two hearings the court found the children to be deprived, under the terms of Section 27--20--02(5)(a), N.D.C.C., and placed the children in temporary foster care in the home of the paternal grandparents. In the final hearing the trial court again found the children to be deprived and ordered placement in the home of the natural father. It The parents were married on February 14, 1969. There were three children, a boy who is now six years of age, a girl who is five, and a boy who is there. The parents were divorced in January, 1974. The mother was awarded custody of the children under an agreement which was approved and incorporated into the judgment of the court.

is from this judgment that the mother appeals.

After the divorce, the mother suffered emotional problems and was committed to a hospital for psychiatric treatment. While the involuntary commitment procedure was used, she apparently was willing to enter the hospital, realizing that her emotional problems needed treatment.

Three days after her hospitalization, she wa served with notice of a hearing based upon the petition of Mr. Ellingson to have her children declared 'deprived children.' She arrived at the county seat at four o'clock in the morning on the day of the hearing. An attorney was appointed to represent her and consulted with her during a recess. He did not put her on the witness stand. A different attorney represented her at subsequent hearings and in the Supreme Court.

SCOPE OF REVIEW

Before proceeding further, we note that our scope of review in juvenile cases under Chapter 27--20, N.D.C.C., is different from the broader than in other cases tried to the court. In fact, it is much like our former practice of trial de novo. See In re A.N., 201 N.W.2d 118 (N.D.1972), where this conclusion was reached after examination of Rule 81(a), N.D.R.Civ.P., which excepted the operation of the juvenile court Act from Rule 52(a). The broad scope of review is derived from the language of Section 27--20--56(1), N.D.C.C., which states:

'. . . The appeal 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. . . .'

We are therefore called upon to reexamine the evidence and the decision of the court, without reference to the 'clearly erroneous' rule of Rule 52(a). In re A. N., supra. See also In re H., 206 N.W.2d 871, 873 (N.d.1973); In re J. Z., 190 N.W.2d 27 (N.D.1971); In re Walter, 172 N.W.2d 603, 604 (N.D.1969); and State v. Myers, 74 N.D. 297, 22 N.W.2d 199 (1946).

If this were the ordinary controversy over custody in a divorce case, Rule 52(a) would apply and the trial court's findings would not be set aside unless clearly erroneous, and we would recognize that broad discretion which is vested in the trial court in custody matters. Matson v. Matson, 226 N.W.2d 659 (N.D.1975); Silseth v. Levang, 214 N.W.2d 361 (N.D.1974); Goff v. Goff, 211 N.W.2d 850 (N.D.1973).

Under the Uniform Juvenile Court Act, however, the entire jurisdiction of the court is dependent upon a finding that the child is in fact 'deprived.' That term is defined in 27--20--02(5)(a), N.D.C.C. A child is 'deprived' if he '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 lack of financial means of his parents, guardian, or other custodian; . . .'

Since we find that the court erred in finding the children here involved to be deprived, we reverse.

HEARING OF JUNE 21, 1974

The action was brought by the State, so it had the burden of showing, by clear and convincing evidence, that the children were deprived. Sec. 27--20--29(3), N.D.C.C. The State's evidence consisted largely of the testimony of Paul Ellingson, the social worker who had filed the petition. It related to the period of time after the divorce It apparently was these incidents which led to the commitment hearing and subsequent hospitalization. A Bismarck psychiatrist examined her and recommended approximately two months' therapy. Apparently these facts motivated Ellingson to file the deprivation petition.

when the mother was having emotional problems. He said that he, as her case worker, had not seen her 'actually having problems with taking care of the children'; that he had seen her once 'when she got extremely upset with the children and . . . yelled'; and that she told him about an incident when she was angry and spanked the little girl and that she had felt 'let's say, out of control.' He also stated that the child was not bruised and that the information had been volunteered by the mother. He also testified to another incident when he visited the mother and told her that the father and his fiancee were 'looking around checking into seeing if they could possible get the children' from her. Upon hearing this news, she got 'extremely upset and immediately ran for a bottle of pills . . . and started heading out the door for the car.' The pills were tranquilizers. Later, she told Ellingson that she had attempted suicide.

On cross-examination, Ellingson admitted that he knew of no occurrences when the children were not properly cared for other than the spanking incident and the suicide reference described above. He said that the children had never been left without proper food, clothing, or shelter, that the children and their mother displayed affection for each other, that the children appeared to be developing normally in every respect, and that the only reason he had petitioned the court for a finding of deprivation was the mental condition of the mother after her divorce. He was asked: 'Was there any indication that these children were deprived children, without parental care and proper control, prior to the indication that (the mother) was mentally ill?' He answered: 'Not physically, no, and if emotionally, I had not noticed it.'

A neighbor testified that prior to the hospitalization the mother had made suicidal statements and once said she would like to see the children dead along with herself.

The father, who has never asked the court to modify the divorce decree giving custody to the wife, testified that he was currently living with his fiancee who was obtaining a divorce in another State. He expressed his intention to marry her and set up a home suitable for the children in the event he should obtain custody.

The foregoing is substantially all the evidence on the issue of deprivation before the trial court. The mother's attorney moved for a dismissal of the proceedings on the ground that the evidence of deprivation was inadequate to sustain the finding that the children were deprived, and he pointed out that apparently the disability of the mother would be of short duration, not more than two months if she sought proper treatment.

The court denied the motion and held that the facts established deprivation by clear and convincing evidence. Although the point is not clearly before us, because in oral argument counsel for appellant conceded that the present appeal is only from the trial court's finding of deprivation at the second and third hearings, we...