In re D.M.
| Decision Date | 01 May 2007 |
| Docket Number | No. 20060236.,20060236. |
| Parties | In the Interest of D.M., a child. Ruby Knoll, L.S.W. on behalf of Cass County Social Services, Petitioner and Appellee, v. D.M., a child, D.D., Father, Respondents, and L.M., Mother, Respondent and Appellant. |
| Court | North Dakota Supreme Court |
[¶ 1] L.M. appeals the juvenile court order terminating her parental rights to D.M. Concluding the juvenile court did not err in terminating L.M.'s parental rights, we affirm.
[¶ 2] L.M. is a 43-year-old single mother of one minor child, age 10, and two adult children. In June 2005, a social worker for Cass County Social Services petitioned for the termination of parental rights to L.M.'s minor daughter, D.M. Later that month, a judicial referee ordered those rights terminated for both parents. According to the referee's findings of fact, L.M. "has struggled with mental health, chemical dependency, [and] criminal and stability issues which adversely impact her ability to parent." The referee found that D.M.'s father has had no contact with the child. D.M. has been in foster care since August 2004. The referee found clear and convincing evidence that D.M. is a deprived child and that absent termination of parental rights, deprivation is likely to continue, seriously harming the child. D.M. was placed into the custody of the Department of Human Services.
[¶ 3] In July 2006, L.M. requested a review of the referee's findings and order. On July 28, 2006, the juvenile court made its own findings, but also adopted the referee's findings of fact, conclusions of law, and order. The juvenile court terminated both parents' rights; however, only L.M. appeals.
[¶ 4] The juvenile court had jurisdiction under N.D.C.C. § 27-20-03(1)(b). The notice of appeal was not timely under N.D.C.C. § 27-20-56(1) but was timely under N.D.R.App.P. 4(a). On January 5, 2007, this Court extended the time to file the notice of appeal. See, e.g., Interest of C.R.H., 2000 ND 222, ¶ 4, 620 N.W.2d 175 (). The juvenile court had jurisdiction under N.D. Sup.Ct. Admin. R. 13(11) to review the referee's findings and order. This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-20-56(1).
[¶ 5] L.M. contends the juvenile court erred when it found that the deprivation was likely to continue and that the child would suffer harm as a result of the continued deprivation.
[¶ 6] "A lower court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous." Interest of M.B., 2006 ND 19, ¶ 13, 709 N.W.2d 11 (citing N.D.R.Civ.P. 52(a)). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made." Interest of M.B., at ¶ 13 (citation omitted).
[¶ 7] Parental rights may be terminated if a child is deprived and the court finds 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." N.D.C.C. § 27-20-44(1)(b)(1). "Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true." Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913 (citation omitted).
[¶ 8] The first element of the three-part test requires a finding that the child is a deprived child. N.D.C.C. § 27-20-44(1)(b). A "deprived child" is a child who:
Is 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). We have defined "proper parental care" to mean the minimum standards of care that the community will tolerate. Interest of M.B., 2006 ND 19, ¶ 14, 709 N.W.2d 11 (citations omitted).
[¶ 9] According to the juvenile court findings, D.M. was found to be a deprived child on November 2, 2004, about three months after being placed in foster care. L.M. does not dispute that D.M. is a deprived child.
[¶ 10] L.M. contends the finding that the deprivation is likely to continue or will not be remedied is clearly erroneous.
[¶ 11] Under the second element of the three-part test, the State must prove that the deprivation is "likely to continue or will not be remedied." N.D.C.C. § 27-20-44(1)(b)(1). "To show this, the State cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue." Interest of M.B., 2006 ND 19, ¶ 16, 709 N.W.2d 11 (citing Interest of T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38).
[¶ 12] The juvenile court adopted the referee's findings, which included the following:
5. [L.M.] has struggled with mental health, chemical dependency, criminal and stability issues which adversely impact her ability to parent.
6. [D.M.] has been in foster care continuously since August 17, 2004.
7. There is a history of involvement of this family with child protection services dating back to at least 1997.
8. Active efforts have been made to reunify the child with a parent and these efforts have been exhaustive but unsuccessful.
9. [L.M.] has been unavailable to actively parent this child due to her voluntary actions, which have included, possessing controlled substances, using controlled substances, failing to maintain contact with the child and the child's temporary custodian, engaging in criminal acts which have resulted in incarceration.
10. The period of time this child would need to continue in foster care while her mother completed her obligation on her criminal conviction, established a home and a stable life in order to provide for the child cannot be predicted at this time, but will be too long to require the child to wait, taking into account the time the child has already been in foster care.
11. [D.M.] will be harmed absent a termination of parental rights.
(Emphasis added.)
[¶ 13] We "will not engage in the semantical acrobatics of guessing what is meant by a vague term never defined, explained, or elaborated upon." Interest of L.B.B., 2005 ND 220, ¶ 8, 707 N.W.2d 469. Although the judicial referee used the vague term "struggled with . . . issues" in support of its termination order, a review of the record shows sufficient evidence to support the finding that the child's deprivation will continue or will not be remedied.
[¶ 14] The referee found that efforts to reunify D.M. with her mother have failed:
Active efforts were expended in attempts to reunify this child with a parent, including referrals to treatment, case management, visitation, economic assistance, parent aide services, referral to Last Chance Program (aka 220 House), Referral to Share House, Lakeland Mental Health, Chemical dependency services at Southeast Human Services, food basket referral, transportation assistance, Family Focused Services, Wrap around Funds, permanency funds, and Partnership.
[¶ 15] The referee concluded the Indian Child Welfare Act of 1978 ("I.C.W.A.") would not apply in this case:
Cass County Social Services has made repeated efforts to engage and contact the Oglala Sioux Tribe at Pine Ridge, South Dakota. Conflicting information has been received regarding the enrollment status of the child from that tribe, however, Ms. Knoll has made diligent and active effort to apprise the tribe of the situation with the child, and has not had any participation or response to her efforts. The tribe has failed to appear or assert any interest with regard to this child. At this time, based upon the testimony of Ms. Knoll, and the lack of any response or participation from the tribe, including identification of any placement for the child that would receive preference pursuant to I.C.W.A.
[¶ 16] The juvenile court also made its own findings and conclusions. It found from the petitioning social worker's testimony that L.M. had "disappeared" from May to July 2005, never visited her daughter from May 2, 2005, to August 16, 2005, and frequently missed visitation appointments. The juvenile court highlighted the fact that L.M. often did not pay any attention to D.M. when she did visit her. The court found, from the testimony of a parent aide with Cass County Social Services, that L.M. discussed inappropriate subject matter in front of the child. The social worker also testified that D.M. is "very adoptable" and is not a special-needs child. L.M. testified that she had used methamphetamine for about a year and had used alcohol for about 25 years. She also testified about her numerous DUI convictions.
[¶ 17] At the time of the trial, the juvenile court found D.M. had been in foster care for 661 days. The petitioning social worker testified that it will take another year after her release for L.M. to provide a stable environment for D.M. "When there has been an extensive period in which efforts have been made to overcome a parent's inabilities to effectively parent, the courts cannot allow the children to remain in this indeterminate status midway between foster care and the obvious need for permanent placement." Interest of B.J.K., 2005 ND 138, ¶ 16, 701 N.W.2d 924 (internal quotations and citations omitted).
[¶ 18] The juvenile court noted testimony from Dr. Ken Stone, a psychologist, who diagnosed L.M. with "a personality disorder as well as a mood disorder involving depression" and...
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