In re BN, No. 20020256

• Decision Date: 06 May 2003
• Docket Number: No. 20020281., No. 20020256
• Citation: 660 N.W.2d 610,2003 ND 68
• Parties: In the Interest of B.N. and K.K., Children. Tammy Balliet, Petitioner and Appellee, v. S.N., Mother; B.F. or John Doe, Putative Fathers of B.; K.K., Father of K.; B.N. and K.K., Children; and their Guardian ad Litem, Anne E. Summers, Attorney at Law, Respondents, K.K., Father of K., Respondent and Appellant. In the Interest of B.N. and K.K., Children. Tammy Balliet, Petitioner and Appellee, v. S.N., Mother, Respondent and Appellant, B.F. or John Doe, Putative Fathers of B.; K.K., Father of K.; B.N. and K.K., Children; and their Guardian ad Litem, Anne E. Summers, Attorney at Law, Respondents.
• Court: North Dakota Supreme Court

660 N.W.2d 610

2003 ND 68

In the Interest of B.N. and K.K., Children.

Tammy Balliet, Petitioner and Appellee, v. S.N., Mother; B.F. or John Doe, Putative Fathers of B.; K.K., Father of K.; B.N. and K.K., Children; and their Guardian ad Litem, Anne E. Summers, Attorney at Law, Respondents, K.K., Father of K., Respondent and Appellant.

In the Interest of B.N. and K.K., Children.

Tammy Balliet, Petitioner and Appellee, v. S.N., Mother, Respondent and Appellant, B.F. or John Doe, Putative Fathers of B.; K.K., Father of K.; B.N. and K.K., Children; and their Guardian ad Litem, Anne E. Summers, Attorney at Law, Respondents.

Nos. 20020256, 20020281.

Supreme Court of North Dakota.

May 6, 2003.

Susan Schmidt, Severin, Ringsak & Morrow, Bismarck, for respondent and appellant, K.K., Father of K.

Charles R. Isakson, Chapman and Chapman, Bismarck, for respondent and appellant, S.N., Mother.

Brandi Sasse Russell, Assistant State's Attorney, Bismarck, for petitioner and appellee.

MARING, Justice.

[¶ 1] S.N. ("Sarah," a pseudonym) appeals from the August 28, 2002, Memorandum Opinion and the September 13, 2002, Findings of Fact and Order terminating her parental rights to her daughters, B.N. ("Becky," a pseudonym) and K.K. ("Kelly," a pseudonym). In a consolidated appeal, K.K. ("Kevin," a pseudonym) appeals from the same Memorandum Opinion and Findings of Fact and Order which also terminated his parental rights to his daughter, Kelly. We hold there is clear and convincing evidence the children are deprived, the causes and conditions of the deprivation are likely to continue, and as a result of the continued deprivation, the children will probably suffer serious physical, mental, or emotional harm if Sarah's and Kevin's parental rights are not terminated. We affirm.

[¶ 2] Sarah is the mother of Becky, age 9, and Kelly, age 4. The father of Becky is not a party to this appeal. He was found to be in default when he did not appear at the hearing to terminate his parental rights. Kevin is the father of Kelly.

[¶ 3] Sarah has been the subject of seven investigations conducted by Burleigh County Social Services ("Social Services"). Six of these investigations were conducted before Kelly's birth and only dealt with Sarah's care of Becky. Kevin was not the subject of those six investigations. There was one investigation that occurred after Kelly's birth. It dealt with the care of both Becky and Kelly.

[¶ 4] The first investigation began on March 11, 1994, after Social Services received a report that Sarah was neglecting Becky's needs and that there was yelling and drinking going on in the home. After investigating, the Child Protection Team found indications of physical neglect and emotional abuse. It was recommended Sarah have drug and alcohol evaluations and that she complete domestic violence treatment. Sarah did not follow through on those recommendations.

[¶ 5] The second investigation began on November 22, 1994, after Social Services received a report that Becky was not regularly bathed or fed and that Sarah would leave Becky at the babysitter's for extended periods of time without telling anyone where she could be contacted. After the Child Protection Team investigated, it recommended Sarah complete domestic violence treatment and counseling. Sarah was also referred by Social Services to the Self-Reliance Program due to her financial problems. Sarah did not follow through on those recommendations.

[¶ 6] The third investigation began on September 9, 1996, after Social Services received a report that Sarah was leaving Becky unattended and inadequately supervised. After the investigation, the Child Protection Team expressed concerns about Sarah's emotional and medical needs and recommended counseling and domestic violence treatment. Sarah did not follow those recommendations.

[¶ 7] After a fourth investigation on February 25, 1997, the Child Protection Team did not recommend any services.

[¶ 8] The fifth investigation began on July 11, 1997, after Social Services received a report that Becky possibly was being sexually abused. After the investigation, the Child Protection Team found services were required for Sarah to have a psychological evaluation and to take Becky for a sexual abuse examination. When Sarah failed to follow the recommendation, Social Services petitioned for custody of Becky in January of 1998. After the petition was filed, Sarah submitted to a psychological evaluation and took Becky for a sexual abuse examination. As a result of Sarah's compliance with the recommendations, the petition for custody was dropped. The sexual abuse examination of Becky confirmed the suspicions Becky had been sexually abused. However, the identity of the abuser was never determined.

[¶ 9] A sixth investigation began on April 16, 1998. It was also on this date Sarah took Becky to live with Sarah's father and step-mother, C.W. ("Carl," a pseudonym) and L.W. ("Laura," a pseudonym). Sarah took Becky to her maternal grandparents after she was a bystander victim in a domestic assault which occurred at the babysitter's. Soon after Sarah brought Becky to live with Carl and Laura, she wrote a note indicating the arrangement would continue only until the end of the summer. However, Sarah never returned for Becky. Becky has lived with her grandparents continuously for almost five years.

[¶ 10] Kelly was born on September 19, 1998. At that time, Sarah and Kevin were living together. Subsequently, however, Kevin was incarcerated from February 9, 1999, until March 17, 1999, on two counts of non-sufficient funds and from November 15, 1999, until December 3, 1999, for probation revocation and non-sufficient funds.

[¶ 11] The seventh investigation began on December 3, 1999, after Social Services received a report that Kelly was being neglected. Specifically, the reporter had concerns that there was no food in the home and that the home was unsanitary. It was recommended Sarah and Kevin have psychological examinations. Both Sarah and Kevin did follow through with this recommendation.

[¶ 12] About December 9, 1999, Kevin was arrested at the family home on drug-related charges while Kelly was present. Kevin was subsequently incarcerated for Possession of Methamphetamine, Possession of Drug Paraphernalia, and Theft of Property until January of 2001.

[¶ 13] On February 7, 2000, after a physical altercation between Sarah and a neighbor, Sarah signed a 30-day parental affidavit, allowing placement of Kelly with Carl and Laura. Kelly has lived with her grandparents continuously since that time.

[¶ 14] In July of 2001, Social Services filed a petition for custody of Becky and Kelly. A hearing was held on August 28, 2001. The judicial referee entered his findings and order on September 24, 2001. Sarah and Kevin stipulated to the details of the custody order which found the two children deprived and placed them in the custody of Social Services for nine months. Becky and Kelly were placed with their grandparents, Carl and Laura, who had become licensed foster parents.

[¶ 15] In December of 2001, Kevin was incarcerated for Possession of Cocaine and Possession of Drug Paraphernalia. He was due to be released in February or March of 2003.

[¶ 16] On April 26, 2002, Social Services filed a petition to terminate all parental rights to Becky and Kelly. The hearing was held on July 19, 2002. The juvenile court filed its Memorandum Opinion on August 28, 2002, which found Becky and Kelly were deprived, the deprivation was likely to continue, and that they will probably suffer serious harm as a result. The juvenile court ordered the termination of Sarah's and Kevin's parental rights. The Findings of Fact and Order was filed on September 16, 2002. Kevin filed his Notice of Appeal on September 19, 2002, and Sarah filed her Notice of Appeal on October 9, 2002.

[¶ 17] On appeal, Kevin argues Social Services has not proven by clear and convincing evidence that Kelly is deprived, that the deprivation is likely to continue, or that Kelly will suffer harm as a result. Sarah concedes Becky and Kelly are deprived, but joins Kevin in the other two arguments as to both children. We disagree with both Appellants' arguments. [¶ 18] We review a juvenile court's decision to terminate parental rights in a manner similar to a trial de novo, giving appreciable weight to the juvenile court's findings because that court had the opportunity to observe the candor and demeanor of the witnesses. See In re D.N., 2001 ND 71, ¶ 2, 624 N.W.2d 686. But see In re D.Q., 2002 ND 188, ¶¶ 26-28, 653 N.W.2d 713 (Neumann, J., concurring specially); In re C.R.C., 2001 ND 83, ¶¶ 25-40, 625 N.W.2d 533 (Neumann, J., concurring) (suggesting the clearly erroneous standard of review, rather than the de novo standard, should be applied in juvenile cases). Under N.D.C.C. § 27-20-44(1)(b)(1) (2002), termination of parental rights requires satisfaction of a three-pronged test in which the party petitioning for termination must prove by clear and convincing evidence: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) by reason thereof, the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm. See D.N., at ¶ 2.

I

[¶ 19] A deprived child is 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." N.D.C.C. § 27-20-02(8)(a) (2002). Parents' fundamental and natural rights to their children are of constitutional dimension, but are not absolute, and parents are required to provide care to their children that at least satisfies the minimum community standards. See In re T.K., 2001 ND 127, ¶ 12, 630 N.W.2d 38.

[¶ 20] The record...