In Interest of R. W. B.

• Citation: 241 N.W.2d 546
• Decision Date: 22 April 1976
• Docket Number: No. 9185,9185
• Parties: In the Interest of R. W. B., a child. Clarence O. OHLSEN, Director of Grand Forks County Social Service Center, Appellee, v. M. B. and B. B., Appellants. Civ.
• Court: United States State Supreme Court of North Dakota

Page 546

241 N.W.2d 546

In the Interest of R. W. B., a child.

Clarence O. OHLSEN, Director of Grand Forks County Social

Service Center, Appellee, v. M. B. and B. B., Appellants.

Civ. No. 9185.

Supreme Court of North Dakota.

April 22, 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. Although this Court is not bound by the juvenile court's findings of fact, such findings are entitled to appreciable weight.

2. 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.

3. The burden is on the State, as the party challenging the right of the natural parents to the care, custody, and control of their child, to prove by clear and convincing evidence the existence of the factors set forth in § 27--20--44(1)(b), N.D.C.C.

4. Although the natural parents have the paramount right to the child, such right is not absolute. The primary purpose of the Uniform Juvenile Court Act is to protect the welfare of the child.

5. Evidence of prior termination proceedings relating to an earlier child of the parents whose rights are being challenged in the instant case, and evidence of a criminal conviction of such parents, on a charge of child abuse, is relevant to a determination that deprivation was likely to continue or not be remedied; hence admissible in the instant case.

6. Testimony by a doctor that one is a 'battered child' is not an opinion on the ultimate issue of whether a juvenile is a 'deprived child' and was admissible testimony to be considered with all other evidence in the case.

7. Bofore proceeding with an initial interview with a representative of the investigating social service agency, parents involved in child termination proceedings are entitled, pursuant to § 27--20--26(1), N.D.C.C., to benefit of counsel. In the instant case, for reasons stated in the opinion, we hold that failure to inform the parents of their right to counsel, or that counsel would be appointed to represent them if they could not afford to retain counsel, was not prejudicial error.

8. In the instant case, the evidence is clear and convincting that the child is a 'deprived child', and that the deprivation was likely to continue or not be remedied. Such evidence established that the natural parents have a history of physically abusing their children; that such parents do not yet recognize the seriousness of their actions; that a favorable prognosis cannot, with any assurance, be given by expert psychological and psychiatric witnesses--even if the parents were to undergo psychiatric treatment; and that any psychiatric treatment would have to extend far beyond the time in which it would be probable that the child could be successfully assimilated into an improved family environment. Furthermore, the evidence is also clear and convincing that the child is suffering serious physical, mental, moral, and emotional harm because of the physical abuse, and, in view of the poor prognosis for any significant improvement in conditions in the foreseeable future, the child would probably suffer continued harm if he remained in the care, custody, or control of his parents.

Damon E. Anderson, Grand Forks, for appellants.

Thomas B. Jelliff, State's Atty. (argued), and Earle R. Myers, Jr., Asst. State's Atty., Grand Forks, for appellee.

Gary R. Thune, Grand Forks, for guardian ad litem.

James E. Leo, Grand Forks, for intervenors.

PAULSON, Judge.

The natural parents of R. W. B., a minor male child, appeal from an order of the Juvenile Court of Grand Forks County, which order terminated the parental rights of M. B., the father, and B. B., the mother, to the child R. W. B.

R. W. B. was born on May 30, 1974. On December 27, 1974, the Grand Forks County Social Service Center investigated an anonymous report that R. W. B. was not being properly cared for by his parents, M. B. and B. B. As part of its investigation, representatives of the Grand Forks County Social Service Center visited the home of M. B. and B. B., where they observed that R. W. B. had a sore on the back of his head, a splint on his right arm, and a discoloration around his left eye and on his forehead. The agency representatives, along with R. W. B.'s mother, B. B., took the child to a doctor for examination and treatment. The Grand Forks County Social Service Center, based upon its investigation and upon the medical report, petitioned the Juvenile Court of Grand Forks County for an order declaring that R. W. B. was a deprived child pursuant to § 27--20--02(5)(a) and (7), N.D.C.C., and requesting removal of custody of the child from M. B. and B. B., his natural parents. By order dated December 27, 1974, the juvenile court ordered that temporary custody of R. W. B. be placed in the Director of the Grand Forks County Social Service Center, pending a hearing on the petition.

On April 14, 1975, the juvenile court conducted a hearing on the petition, and by order dated April 18, 1975, placed R. W. B. under the care, custody, and control of the Director of the Grand Forks County Social Service Center until such time as the juvenile court should change such order.

M. B. and B. B. were arrested on January 3, 1975, and on March 25, 1975, they were convicted by jury verdict in the Grand Forks County Court of Increased Jurisdiction of the criminal charge of 'Cruel Abuse and/or Willful Neglect of a Child', a violation of § 14--09--22, N.D.C.C. Each was sentenced to the county jail for a period of one year and fined $500. Neither appealed from the conviction or the sentence.

On August 12, 1975, the Director of the Grand Forks County Social Service Center filed an amended petition, pursuant to § 27--20--44, N.D.C.C., with the juvenile court, requesting that the parental rights of M. B. and B. B. to the child R. W. B. be terminated. M. B. and B. B. thereafter filed a motion seeking a continuance of the hearing on the petition until April 1976, which would, they contended, permit them to seek psychological treatment. After conducting a hearing on September 11, 1975, the juvenile court denied the motion for a continuance. On September 22, 1975, the juvenile court conducted a hearing on the amended petition. By order dated October 2, 1975, the juvenile court granted the petition and ordered that the parental rights of M. B. and B. B. to the child R. W. B. be terminated. It is from such order that M. B. and B. B. appeal to this Court.

Our scope of review in juvenile cases is broader than our scope of review in other cases tried to the Court. In the case of In Interest of M. L., 239 N.W.2d 289 (N.D.1976), in paragraph 1 of the syllabus, we held:

'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.'

We must therefore reexamine the evidence in reviewing the juvenile court's order terminating the parental rights of M. B. and B. B. to the child R. W. B. In Interest of M. L., supra 239 N.W.2d at 291; In re J.Z., Syll. 1, 190 N.W.2d 27, 53 A.L.R.3d 592 (N.D.1971). However, although this Court is not bound by the juvenile court's findings of fact, such findings are entitled to appreciable weight. In re H., Syll. 2, 206 N.W.2d 871 (N.D.1973); In re A. N., Syll. 3, 201 N.W.2d 118 (N.D.1972); In re J. Z., Syll. 7, Supra.

Section 27--20--44, N.D.C.C., provides:

'Termination of parental rights.--

'1. The court by order may terminate the parental rights of a parent with respect to his child if:

'a. The parent has abandoned the child;

'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; or

'c. The written consent of the parent asknowledged before the court has been given.

'2. If the court doen not make an order of termination of parental rights it may grant an order under section 27--20--30 if the court finds from clear and convincing evidence that the child is a deprived child.'

In the case of In re H., supra, in paragraph 1 of the syllabus, this Court held:

'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.'

The burden is on the State, as the party challenging the right of the natural parents to the care, custody, any control of their child, to prove by clear and convincing evidence the existence of all three of the above-quoted factors. In Interest of M. L., Syll. 2, Supra; In re J. V., Syll. 3, 185 N.W.2d 487 (N.D.1971); In re J. Z., Syll. 8, Supra.

Our review being de novo, it is incumbent upon us to review the evidence in the instant case. While the record is voluminous, we have carefully reviewed it, and conclude...