In re DPO, No. 20030002

Decision Date20 August 2003
Docket Number No. 20030020., No. 20030002
Citation2003 ND 127,667 N.W.2d 590
PartiesIn the Interest of D.P.O. D.P.O., A.D.O., the parent and natural mother of D.P.O., G.O., grandparent of D.P.O., and the Grand Forks County Social Service Board, Assignee for A.D.O. and G.O., Plaintiffs, v. N.H., Defendant and Appellant, G.O., grandfather of D.P.O., and L.O., grandmother of D.P.O., Appellees. In the Interest of D.P.O. D.P.O., A.D.O., the parent and natural mother of D.P.O., G.O., grandparent of D.P.O., and the Grand Forks County Social Service Board, Assignee for A.D.O. and G.O., Plaintiffs, v. N.H., Defendant and Appellee, G.O., grandfather of D.P.O., and L.O., grandmother of D.P.O., Appellants.
CourtNorth Dakota Supreme Court

Ralph F. Carter, Moosbrugger, Carter & McDonagh, P.L.L.P., Grand Forks, N.D., for defendant, appellant, and appellee, N.H.

Rex A. Hammarback, Hammarback, Dusek & Associates, P.L.C., Grand Forks, N.D., for appellees and appellants, G.O. and L.O.

VANDE WALLE, Chief Justice.

[¶ 1] G.O. ("Glen") and L.O. ("Laura"), the maternal grandparents of D.P.O. ("Denise"), appealed from a judgment awarding custody of Denise to her biological father, N.H. ("Ned"). Ned has appealed from that part of the judgment awarding Glen and Laura grandparent visitation. We affirm.

I

[¶ 2] Ned and Denise's mother, A.O. ("Ann"), had a brief relationship in 2000 from which Denise was conceived, but the couple never married. Denise was born on February 23, 2001. Ned was not informed of Ann's pregnancy or the child's birth until months later, and he did not know he was the biological father until December 18, 2001, after paternity tests had been completed. Upon learning he was Denise's father, Ned immediately took action to start visitations and to pay child support.

[¶ 3] Three days after Denise was born, Ann, who was then incarcerated, placed Denise in Glen and Laura's physical custody. On September 26, 2001, Ann stipulated that Denise was a deprived child, and legal custody was placed with Grand Forks County Social Services. On June 13, 2002, Ned filed a motion seeking court-ordered custody of Denise. Denise remained in the physical custody of her maternal grandparents until mid October 2002, when she was placed with Ned. On August 13, 2002 a petition was filed by Grand Forks County Social Services to extend Denise's custody placement with that office. On September 18, 2002, Glen filed a motion requesting that Denise be placed in the physical custody of her maternal grandparents. Ann acquiesced in that request, but she later requested the court to place custody of Denise with her. Attorney Carol Johnson was appointed custody investigator and attorney Mary Seaworth was appointed Denise's guardian ad litem.

[¶ 4] All issues in these cases were consolidated for trial on November 20, 2002. After the trial, the court awarded legal custody jointly to Ned and Ann and awarded Ned physical custody, with supervised visitation for Ann and separate visitation for the maternal grandparents.

II

[¶ 5] Glen and Laura appealed from the court's custody placement, asserting the court's decision was clearly erroneous because the court failed to give adequate consideration to the grandparents' psychological parent relationship with Denise. They also claim the court arbitrarily disregarded the expert testimony of Maxine Rasmusson, Ph.D., that removing Denise from the grandparents' custody would be detrimental to her.

A.

[¶ 6] An award of custody is a finding of fact which this Court will not disturb unless it is clearly erroneous. Hamers v. Guttormson, 2000 ND 93, ¶ 4, 610 N.W.2d 758. Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made. Id. Parents generally have a right to the custody and control of their children superior to that of any other person. Goter v. Goter, 1997 ND 28, ¶ 7, 559 N.W.2d 834. Absent exceptional circumstances triggering a best-interest analysis, a natural parent is entitled to custody of his or her child. Id. See Hust v. Hust, 295 N.W.2d 316, 319 (N.D.1980). Establishment of a psychological parent relationship does not end the trial court's inquiry in making a custody decision, but merely furnishes a justification for the award of custody to a party other than the natural parent. Daley v. Gunville, 348 N.W.2d 441, 445 (N.D.1984). When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent's paramount right to custody prevails unless the court finds it in the child's best interests to award custody to the psychological parent to prevent serious harm or detriment to the welfare of the child. Cox v. Cox, 2000 ND 144, ¶ 22, 613 N.W.2d 516; Simons v. Gisvold, 519 N.W.2d 585, 587 (N.D.1994).

[¶ 7] A brief recitation of the relevant facts will enable our review of the trial court's custody decision. Ann, age 23, resides in Bemidji, Minnesota, and is completing her first year of college there. Ned, age 30, is a Syrian citizen, living in Grand Forks on a work visa which expires in 2004. The visa is renewable upon his employer's request unless there is good cause shown why it should not be renewed. Ned has lived in Grand Forks for about four years and is employed at the University of North Dakota School of Medicine, with an annual salary of about $44,000. He plans to continue his education and to obtain a Ph.D. in information systems.

[¶ 8] The trial court found that Glen and Laura have established a psychological parent bond with Denise, but that finding alone does not determine custody. The court also found that a bond has developed between Denise and Ned. The court specifically found "there was nothing presented" to show that "awarding physical custody to one of the biological parents at this time would constitute serious harm or detriment to [Denise], especially if continuing contact were allowed between [Denise] and her maternal grandparents."

[¶ 9] The trial court evaluated the factors under N.D.C.C. § 14-09-06.2, to determine whether, in Denise's best interests, she should be placed in the physical custody of Ned or Ann. The court found that the bond between Ned and Denise had been conclusively established but that, because of Ann's prolonged absence from her daughter's life, very little bonding had occurred between Ann and Denise. The court found that both parents love their daughter, but that only Ned had taken positive steps to learn how to be a parent by taking formal parenting classes and by seeking to provide a nurturing home environment for Denise. The court found that Ned offers the greater likelihood of providing a permanent stable environment for Denise.

[¶ 10] The court found that Ann has a history of violent behavior which has resulted in criminal convictions and periods of incarceration. He also found that she has exhibited bizarre behavior and emotional instability and needs professional attention. Consequently, the court found that Ned has the better physical and mental health as a parent.

[¶ 11] The court found that the maternal grandparents have been an integral part of Denise's life but that the relationship between the biological parents and the maternal grandparents is quite strained. The court found that it is in Denise's best interests the maternal grandparents remain a part of her life.

[¶ 12] We conclude the trial court's findings on the custody issue are supported by the record evidence and are not clearly erroneous. After finding the maternal grandparents had established a psychological parent relationship with the child, the court properly applied the law in determining whether those exceptional circumstances required, in the child's best interests, that she be placed with the maternal grandparents rather than one of her natural parents to prevent serious harm or detriment to the welfare of the child. The court concluded the evidence did not demonstrate that Denise would suffer serious harm or detriment if she were placed in the custody of one of her natural parents rather than her psychological parents.

B.

[¶ 13] The grandparents assert the court "arbitrarily disregarded" testimony of Dr. Rasmusson, who is engaged in a marriage and family counseling practice in Grand Forks. The court-appointed custody investigator, attorney Carol Johnson, recommended Ned be awarded physical custody and the maternal grandparents be given visitation. The court-appointed guardian for the child also recommended custody be awarded to Ned. However, Dr. Rasmusson testified that if a child is removed from its caregiver after a twenty-month period it would be detrimental to the child. She testified that she did not, however, observe Denise long enough with the maternal grandparents to form an opinion whether the child had psychologically bonded with them. She also testified that she had never interviewed the child's mother or father and that she had not reviewed any documents from social services or medical providers regarding the case. It is for the trial court to weigh an expert's opinion against the specific facts and circumstances of a case. See Daley v. Gunville, 348 N.W.2d 441, 445-46 (N.D. 1984). This record does not reflect that the trial court arbitrarily disregarded Dr. Rasmusson's testimony.

[¶ 14] We conclude the trial court applied the appropriate law in reaching its custody decision and the court's finding that in Denise's best interests physical custody should be awarded to Ned is supported by the record evidence and is not clearly erroneous.

III

[¶ 15] Ned appealed from that part of the judgment which awarded visitation to the maternal grandparents. He asserts the court should not have awarded grandparent visitation under N.D.C.C. § 14-09-05.1, because the grandparents did not make a specific...

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