IN INTEREST OF TF
Decision Date | 30 June 2004 |
Docket Number | No. 20030236,20030236 |
Parties | In the Interest of T.F. and T.F., Children Stuart A. Larson, Petitioner and Appellee v. Director, Traill County Social Services, J.F., N.K., T.F., T.F., and Jared Simonson, Guardian ad Litem, Respondents J.F., Respondent and Appellant. |
Court | North Dakota Supreme Court |
Stuart A. Larson, State's Attorney, P.O. Box 847, Hillsboro, N.D. 58045-0847, for petitioner and appellee.
Douglas W. Nesheim (argued) and Steven D. Mottinger, 15 9th Street South, Fargo, N.D. 58103-1830, for respondent and appellant.
[¶1] J.F. ("John")1 appealed from an order of the juvenile court terminating his parental rights to his six-year-old son, T.C.F. ("Ted"), and his four-year-old daughter, T.M.F. ("Tina"). We hold there is clear and convincing evidence warranting termination of John's parental rights and there is evidence beyond a reasonable doubt that John's continued custody of the children is likely to result in serious emotional or physical harm to them, and we affirm.
[¶2] In January 2001, Ted and Tina were taken into protective custody by Traill County Social Services as a result of allegations that John had been physically abusive toward Ted. Since that time, the children's mother has had no personal contact with the children and has written each of them only one letter. Her parental rights were also terminated, but she has not appealed from that decision.
[¶3] In May 2001, John pled guilty to aggravated assault as a result of charges that he had sex with his live-in girlfriend's ten-year-old daughter while the girlfriend was working out of the home. John claims that these charges were fabricated and that he pled guilty to aggravated assault so he would not have to be involved with the girlfriend again.
[¶4] Traill County Social Services reunited the children with John, placing them in his physical custody on February 26, 2002. The agency provided assistance to John and implemented various programs to improve John's parenting skills and to have him deal with anger management and other related issues. The program required that John obtain steady employment and that he refrain from using alcohol or illegal drugs. John did not fully comply with the program requirements. After the children were reunited with him, he continued to smoke marijuana and was charged with driving under the influence of intoxicating beverages. John testified that he did not seek treatment for drug or alcohol abuse because In spite of this testimony, John's probation was revoked because of his use of drugs and alcohol. He was reincarcerated, resulting in the children again being removed from his custody on July 9, 2002. John is currently serving a seven-year-sentence with a parole release date of June 6, 2007. After this latest separation, the children were placed by social services in the home of an aunt. The current agency plan is for these children to be adopted by the aunt, upon termination of their mother and father's parental rights.
[¶5] A petition was filed to terminate parental rights, and a hearing was held on March 26, 2003, and continued to June 9, 2003. After the hearing, a judicial referee granted the petition, finding the children were deprived, the deprivation would likely continue, and that, unless parental rights were terminated, the children would suffer serious physical, mental, moral, or emotional harm.
[¶6] On appeal, John asserts that the court erred in finding there was clear and convincing evidence the children are deprived and that such deprivation is likely to continue. He also asserts there is insufficient evidence to support a finding that there is no reasonable doubt the children will likely suffer serious harm unless parental rights are terminated.
[¶7] The juvenile court may terminate parental rights providing: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral or emotional harm. N.D.C.C. § 27-20-44(1)(b). A party seeking termination of parental rights must prove all elements by clear and convincing evidence. In re D.Q., 2002 ND 188, ¶ 19, 653 N.W.2d 713. In addition to our state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912 must be met, because these children are members of an Indian tribe. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678. Relevant to this case, 25 U.S.C. § 1912(f) provides:
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
Also relevant, 25 U.S.C. § 1912(d), provides:
Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
These state and federal provisions create a dual burden of proof on the party seeking termination of parental rights to an Indian child, whereby the elements of our state law must be proven by clear and convincing evidence and the federal requirement, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, must be satisfied with proof beyond a reasonable doubt. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678.
[¶8] Rule 52(a), N.D.R.Civ.P., was amended, effective March 1, 2004, to provide that findings of fact in juvenile matters shall not be set aside by this Court unless they are clearly erroneous. It is solely within the discretion of the Supreme Court to determine the effective date of a rule of procedure not affecting substantive rights. Paxton v. Wiebe, 1998 ND 169, ¶ 22, 584 N.W.2d 72. This Court has followed the practice that as existing rules of procedure are amended or new rules are added they will apply to actions then pending unless their application would not be feasible or would work an injustice. Id.
[¶9] In this case, John elected not to request a review by the district court believing that this Court would conduct a de novo review of the referee's decision. When a party requests a review of the referee's findings and order by the district court, it is a review on the record "unless the court orders a hearing of the proceeding." N.D. Sup. Ct. Admin. R. 13. Only when the district court's review is on the record, must it accept the referee's findings unless they are clearly erroneous. See In re A.B., 2003 ND 98, ¶ 4, 663 N.W.2d 625. Consequently, in foregoing a district court review, John waived the potential right to have an evidentiary hearing and de novo decision by the district court. Under this circumstance, we conclude fairness and justice warrant that we apply the standard of review under N.D.R.Civ.P. 52(a) in effect prior to the March 1, 2004 amendment, which is similar to a trial de novo. In re D.R., 2001 ND 183, ¶ 2, 636 N.W.2d 412. Under the trial de novo standard we review the files, records, and transcript of the evidence in the juvenile court, and, although we are not bound by the findings of the juvenile court, we give those findings appreciable weight and give deference to the juvenile court's decision, because that court had an opportunity to observe the candor and demeanor of the witnesses. Id.
[¶10] A deprived child is statutorily defined under N.D.C.C. § 27-20-02(8)(a) as one who "[i]s 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." The juvenile court found these were deprived children, because they are without proper parental control in that the mother has had no personal contact with the children since their first placement in foster care in January 2001, and their father is incarcerated and unable to care for them. The court also found the children had been placed in foster care for 450 of the previous 660 nights.
[¶11] At the time of the termination proceedings, neither parent was available to provide the necessary care or control of these children. The children's mother has voluntarily removed herself as a significant factor in the children's lives. John voluntarily violated conditions of his probation and, as result, is incarcerated and not able to provide for the children's care for a considerable time. He is not scheduled for possible release until June 2007. The definition of a deprived child is broad enough to encompass a child whose parent is shown to be presently incapable of providing proper parental care for the child. In re C.R., 1999 ND 221, ¶ 6, 602 N.W.2d 520. The definition of a deprived child also encompasses a child who has been in foster care or in the care, custody or control of social services for "at least four hundred fifty out of the previous six hundred sixty nights." N.D.C.C. § 27-20-44(1)(b)(2). Having reviewed the record, we conclude there is clear and convincing evidence these are deprived children.
[¶12] John asserts there is not clear and convincing evidence that the deprivation of these children is likely to continue. Evidence of a parent's background, including previous...
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