In re CR

• Decision Date: 01 December 1999
• Docket Number: No. 990175.,990175.
• Citation: 1999 ND 221,602 N.W.2d 520
• Parties: In the Interest of C.R., a Minor Child. Barb Reed, LSW, Petitioner and Appellee, v. C.R., and her Guardian Ad Litem, Sharon Hauschulz, and her parents, S.L., Respondents, and C.H.R., Respondent and Appellant.
• Court: North Dakota Supreme Court

602 N.W.2d 520

1999 ND 221

In the Interest of C.R., a Minor Child.

Barb Reed, LSW, Petitioner and Appellee, v. C.R., and her Guardian Ad Litem, Sharon Hauschulz, and her parents, S.L., Respondents, and C.H.R., Respondent and Appellant.

No. 990175.

Supreme Court of North Dakota.

December 1, 1999.

Rehearing Denied December 22, 1999.

Lisa Beckstrom Gibbens, State's Attorney, Cando, N.D., for petitioner and appellee.

A. Swain Benson, Benson Law Office, Bottineau, N.D., for respondent and appellant.

NEUMANN, Justice.

[¶ 1] C.H.R. ("Cliff," a pseudonym) appealed from an order of the juvenile court terminating his parental rights to his daughter, C.R. ("Cathy," a pseudonym). We conclude there is clear and convincing evidence Cathy is a deprived child, the causes and conditions of the deprivation are likely to continue and, as a result of the continued deprivation, Cathy will probably suffer serious mental or emotional harm if Cliff's parental rights are not terminated. We affirm.

I

[¶ 2] Cathy was born on January 18, 1997 in Minot, where her mother, S.L. ("Susan," a pseudonym), and Cliff were living together, but not married. When Cathy was about three months old, Cliff and Susan voluntarily placed her into foster care because of the high level of stress in the household, Susan's mental instability, and the discord between Cliff and Susan. A few days after Cathy was placed in foster care, Cliff was arrested for holding Susan at knife point and threatening to kill her. He pled guilty to class C felony terrorizing and was sentenced to one year and one day in the state penitentiary. At that time, Cliff was on parole in Kentucky for several theft-related felony convictions. He was sent to a Kentucky prison to serve his sentences for those crimes and the North Dakota conviction. He has since been incarcerated there, with a scheduled release date of October 2000. With good time, an early release of March 31, 2000 is possible, but not guaranteed. Cliff has seen Cathy only one time since her placement in foster care and has had one very short phone call with her. He has paid no financial support. Cliff sent picture frames and a purse to Cathy, and he requested some friends to send her used clothing on one occasion.

[¶ 3] During Cathy's stay in foster care, social workers assisted Susan to acquire the necessary parenting skills to return Cathy to her custody and care. When it became clear that goal could not be met, the Towner County Social Service Agency filed a petition on March 4, 1999, to terminate Cliff and Susan's parental rights. A hearing was held, at which Cliff was represented by an attorney and also participated by telephone from the Kentucky prison. Susan voluntarily agreed to terminate her parental rights so Cathy could be placed for adoption, contingent upon the court also terminating Cliff's parental rights. The juvenile court found Cathy is a deprived child and the deprivation is likely to continue for a sufficient period that Cathy would likely suffer serious mental or emotional harm if Cliff and Susan's parental rights were not terminated. The court entered an order terminating Cliff and Susan's parental rights and placing Cathy in the custody of the State Department of Human Services for the purpose of finding her a permanent adoptive home. Cliff appealed.

II

[¶ 4] Under N.D.C.C. § 27-20-44(1)(b)(1) 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. See, e.g., In Interest of A.S., 1998 ND 181, ¶ 15, 584 N.W.2d 853

. The party seeking parental termination must prove all elements by clear and convincing evidence. In Interest of L.F., 1998 ND 129, ¶ 10, 580 N.W.2d 573. On appeal, we review the juvenile court's decision regarding termination of parental rights and examine the evidence in a manner similar to a trial de novo. In Interest of A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853. We review the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court. N.D.C.C. § 27-20-56(1).

[¶ 5] On appeal, Cliff argues the juvenile court did not give adequate consideration to evidence suggesting Cathy is developing as a normal two year old in foster care and, if left in foster care for another year or more until Cliff is released from prison, she will continue to develop normally and will not suffer serious harm. Cliff contends there is not clear and convincing evidence the causes and conditions of Cathy's deprivation will continue for a sufficient time to result in serious harm to Cathy if Cliff and Susan's parental rights are not now terminated. We disagree.

[¶ 6] The definition of a deprived child is broad enough to encompass a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing proper parental care for the child. In Interest of J.L.D., 539 N.W.2d 73, 76 (N.D.1995). It is evident Cathy is presently deprived of Cliff's parental care and support, and she will not have it for a considerable time, because Cliff's voluntary criminal activity put him in prison. The juvenile court specifically found:

... The evidence indicates that [Cliff] has a history of serious criminal activity. He has displayed serious domestic violence against the mother of his child which would presumptively suggest he is a poor candidate for physical custody of his daughter.... The history of irresponsible and violent behavior of [Cliff] continues to make him unable to provide the necessary care for [Cathy]. He continues to be unavailable for many months to provide any emotional support for his daughter.

... [Cathy] is at a critical stage in her life. She has developed emotional attachments with her foster parents. Continuing foster care in the same home or in another for more than another year would only solidify and magnify the attachment concerns already observed. It will make the eventual dislocation more traumatic and places great risk if she must later be assimilated into a permanent home. Delaying the permanency of a family for [Cathy] for at least another year is committing serious mental health and emotional harm to this young child. She can not wait for over another year for her father to get his life together, if he ever can.

[¶ 7] The record evidence supports these findings. At the hearing Cliff conceded he has provided no financial support for Cathy and has had minimal contact or involvement with her since she was three months old. Cliff testified, by his own estimate, it would be at least 21 months from the date of the hearing before he would be able to provide a home and parenting for Cathy. Yet, Cliff argues Cathy will not suffer serious harm by waiting for him to assume his parenting responsibilities. The record evidence belies Cliff's argument.

[¶ 8] Carol Paulson, a therapist with the Lake Region Human Service Center, testified that if Cathy has to wait another one and one-half years or more for a permanent home it could be seriously detrimental to her, because the disruption she would then experience in being taken away from her foster home attachments would be more traumatic. Paulson testified that when Cathy is moved from foster care to a permanent home she is going to go through "a very difficult grieving separation" and the longer the move is delayed the more potential there is for long term serious emotional mental harm to Cathy.

[¶ 9] Susan testified that Cliff, even during Cathy's first three months of life, was unable to provide primary care for Cathy. Susan testified Cliff was violent to her in the infant's presence and had threatened to take Cathy and hide her where Susan would never be able to find her. Cliff's uncaring and violent past actions while Cathy was in the parent's home do not bode well for Cliff being able to provide the type of care and support Cathy needs now and will need in the future when he is released from prison.¹

[¶ 10] Cliff contends the juvenile court relied too...