In re DFG

• Decision Date: 01 December 1999
• Docket Number: No. 990104.,990104.
• Citation: 1999 ND 216,602 N.W.2d 697
• Parties: In the Interest of D.F.G. and E.K.B., Children. Constance Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, F.B., D.F.G., E.K.B., and Steve Mottinger, Guardian ad Litem, Respondents, R.G., Respondent and Appellant.
• Court: North Dakota Supreme Court

602 N.W.2d 697

1999 ND 216

In the Interest of D.F.G. and E.K.B., Children.

Constance Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, F.B., D.F.G., E.K.B., and Steve Mottinger, Guardian ad Litem, Respondents, R.G., Respondent and Appellant.

No. 990104.

Supreme Court of North Dakota.

December 1, 1999.

Constance L. Cleveland, Assistant State's Attorney, Fargo, ND, for petitioner and appellee.

Joe A. Johnson, Fargo, ND, for respondent and appellant.

KAPSNER, Justice.

[¶ 1] R.G. ("Rebecca," a pseudonym) appealed from the juvenile court's order terminating her parental rights to her son, D.F.G. ("David," a pseudonym). Because there is clear and convincing evidence David is deprived, the deprivation is not due primarily to a lack of financial resources, the conditions and causes of the deprivation are likely to continue, and David is suffering or in the future probably will suffer serious physical, mental, or emotional harm, we affirm.

I

[¶ 2] Rebecca is the mother of David and E.K.B. ("Ellen," a pseudonym). David was born on April 30, 1986. His father is deceased. Ellen was born on March 18, 1992. Rebecca's parental rights to Ellen are not at issue because during the proceedings in juvenile court jurisdiction over Ellen was transferred to the Court of Central Jurisdiction for the Mille Lacs Band of Chippewa Indians in Minnesota.

[¶ 3] In April 1996, the YWCA shelter referred Rebecca to Southeast Human Service Center. Dr. Elizabeth Faust, a psychiatrist at Southeast Human Service Center, examined Rebecca and concluded Rebecca suffers from alcohol addiction and bipolar disorder. Rebecca began treatment for her alcohol addiction on April 29, 1996. On May 21, 1996, at Rebecca's request, David and Ellen were placed in the custody of Cass County Social Services. Rebecca left the YWCA at the end of May and quit attending treatment sessions.

[¶ 4] The State filed a petition alleging David and Ellen were deprived. In July 1996, following a hearing at which Rebecca had counsel, the juvenile court found the children were deprived and ordered them placed in the custody of Cass County Social Services. Rebecca returned for treatment at Southeast Human Service Center on July 30, 1996. She received counseling for her alcohol addiction and psychiatric services for her mental health problems, but she soon dropped out of the treatment program.

[¶ 5] In January 1997, a hearing for review of custody was held. Rebecca did not attend the hearing, but Rebecca's attorney did attend. The juvenile court found the children continued to be deprived and ordered the children remain in the temporary custody of Cass County Social Services.

[¶ 6] Rebecca returned to Southeast Human Service Center for treatment on March 6, 1997. The treatment concentrated on preventing relapses and dealing with personality issues. In early September 1997, David returned to Rebecca's physical custody. Shortly thereafter, Ellen returned to Rebecca's physical custody. In October 1997, Rebecca left the children with her former husband and went out to a bar with some friends. During the evening, Rebecca requested a ride from a former boyfriend who had been physically abusive to her. He and Rebecca apparently quarreled, and he ran over Rebecca with his car, breaking her leg. The following day, Ellen and David were returned to the custody of Cass County Social Services. After overdosing on prescribed medication in November 1997, Rebecca was committed to the North Dakota State Hospital. She stayed there until December 25, 1997, receiving counseling and other treatment.

[¶ 7] On January 8, 1998, another hearing for review of custody was held. Rebecca and her attorney attended the hearing. Finding the situation unchanged, the juvenile court ordered the children remain in the custody of Cass County Social Services. During the first few months of 1998, Rebecca made some progress in her rehabilitation. However, her attendance at daily treatment sessions grew inconsistent. On May 6, 1998, Rose Beck, Rebecca's addiction counselor, recommended treatment stop because of Rebecca's poor attendance and lack of cooperation. On July 2, 1998, another review of custody was held. Rebecca and her attorney attended the hearing. The juvenile court again found deprivation and ordered the children remain in the custody of Cass County Social Services.

[¶ 8] On August 5, 1998, a petition for termination of Rebecca's parental rights was filed. A trial to determine whether Rebecca's parental rights to David and Ellen should be terminated took place on November 19 and 20, 1998, and March 5, 1999.¹ Several witnesses testified at the trial, including two psychiatrists, a psychologist, a licensed addiction counselor, two social workers, an assessment worker for Cass County Social Services, the director of the YWCA shelter, and Rebecca.

[¶ 9] The juvenile court found: Rebecca's chemical dependence and mental health adversely affect her ability to provide stability and safety for David; David has special needs and is deprived; Rebecca's mental health problems and alcohol dependence cause the deprivation and are likely to continue; and David is suffering or will probably suffer serious physical, mental, moral or emotional harm because of the instability of his parental home. On March 22, 1999, the juvenile court entered an order terminating Rebecca's parental rights to David, and Rebecca appealed.

II.

[¶ 10] Although parents have constitutional protections in the relationship with their biological children, the relationship is not absolute or unconditional. In the Interest of A.S., 1998 ND 181, ¶ 14, 584 N.W.2d 853. Due process requires certain procedural protections before the relationship may be terminated. Id.

[¶ 11] Section 27-20-44(1)(b) (1991),² N.D.C.C., provides "[t]he court by order may terminate the parental rights of a parent with respect to his child if ... [t]he 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." The statute creates a three-part test: 1) Is the child deprived? 2) Are the conditions and causes of the deprivation likely to continue? 3) Is the child suffering, or will the child in the future probably suffer serious physical, mental, moral, or emotional harm? In the Interest of A.M. & C.M., 1999 ND 195, ¶ 7, 601 N.W.2d 253. The State must prove all three parts of the test by clear and convincing evidence. In the Interest of A.S., 1998 ND 181, ¶ 15, 584 N.W.2d 853.

[¶ 12] In In the Interest of A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853 (citing N.D.C.C. § 27-20-56(1)) (citations omitted), we explained our standard of review for cases involving termination of parental rights:

On appeal, we review the juvenile court's decision to terminate parental rights and examine the evidence in a manner similar to a trial de novo. We will 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. Although the review is similar to trial de novo, we give deference to the juvenile court's decision, because that court has had the opportunity to observe the candor and demeanor of the witnesses.

A.

[¶ 13] 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." In the Interest of A.S., 1998 ND 181, ¶ 16, 584 N.W.2d 853 (citing N.D.C.C. § 27-20-02(5)(a)).

[¶ 14] Here, substantial evidence demonstrates David is a deprived child because Rebecca has not been able to provide David with adequate stability and care. Rebecca has repeatedly failed to control her alcohol addiction. Citing Nefzger v. Nefzger, 1999 ND 119, 595 N.W.2d 583, Rebecca argues alcoholism does not pose an absolute bar to a parent obtaining custody of a child. In Nefzger though, "several witnesses ... testified [the parent's] drinking did not interfere with her care of the children." Id. at ¶ 13. Here, the evidence demonstrates Rebecca's drinking, along with her mental illness, prevents her from providing adequate care for David. [¶ 15] Rebecca has repeatedly placed David in the custody of social services. See In the Interest of A.M. & C.M., 1999 ND 195, ¶ 8, 601 N.W.2d 253,

(noting one child "had spent 35 of her first 51 months in foster care" and the other child "had spent over one-third of her life in homes other than with her parents"). Except for the brief period during September 1997, when David was returned to Rebecca's custody, David has been in the custody of Cass County Social Services since May 21, 1996. Rebecca admitted she had previously placed her children in the custody of Hennepin County Social Services. Rebecca suggests her use of social services should be commended rather than being considered support for termination. She asserts if a parent's decision to use social services will be used against the parent in a later termination proceeding, there would be a chilling effect on a parent's choice to seek help from social services. A parent temporarily needing assistance should be commended for opting to place a child in the custody of social services; however, when a parent repeatedly places the child in the custody of social services and the child is in such custody for several years, this shows more than a mere temporary need for assistance and may reflect the parent's inability or unwillingness to provide adequate care for the child. In the Interest of J.L.D., 539 N.W.2d 73, 78 (N.D.1995) (noting "[h]owever commendable may be [the father's] desire to change his life and to...