In re DQ

• Decision Date: 04 December 2002
• Docket Number: No. 20020078, No. 20020079.
• Citation: 653 N.W.2d 713,2002 ND 188
• Parties: In the Interest of D.Q., D.M., S.S., and C.W., Children. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.S., L.Q., E.M., J.W., D.Q., C.W., Respondents, D.M., S.S., and Benjamin Thomas, Guardian Ad Litem, Respondents and Appellees, and S.S., Respondent and Appellant.
• Court: North Dakota Supreme Court

653 N.W.2d 713

2002 ND 188

In the Interest of D.Q., D.M., S.S., and C.W., Children.

Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.S., L.Q., E.M., J.W., D.Q., C.W., Respondents,

D.M., S.S., and Benjamin Thomas, Guardian Ad Litem, Respondents and Appellees, and

S.S., Respondent and Appellant.

Nos. 20020078, 20020079.

Supreme Court of North Dakota.

December 4, 2002.

Constance Louise Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and appellee.

Benjamin Eugene Thomas (on brief), Guardian Ad Litem, Fargo, N.D., for respondents and appellees D.M. and S.S.

C. Charles Chinquist, Fargo, N.D., for respondent and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Susan Steel¹ appealed a judgment extending prior orders placing two of her children, D.M. and S.S., in the legal and physical custody of the Cass County Social Services Board ("Board") and terminating the parental rights of Steel and Ernest McNeel² to S.S. We affirm. [¶ 2] On April 29, 1999, the Richland County Juvenile Court issued an order finding four of Steel's six children, D.Q., D.M., S.S., and C.W., were "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for their physical, mental, emotional health, or morals," as shown by absences from school, inadequate clothing and hygiene concerns, and transferring the matter to the Juvenile Court in Cass County, where, by that time, they were living, for disposition.

[¶ 3] A Cass County Juvenile Court referee notified the parties a permanency hearing would be held on December 18, 2000. Constance L. Cleveland sought an order terminating all parental rights to S.S. As to D.Q., D.M., and S.S., a judicial referee held a hearing on the matters on August 15-17, 2001. Steel's three other children were not involved in the proceedings, as one was an adult, and two were living with their father. The referee issued findings of fact, conclusions of law, and an order terminating the Board's custody of D.Q., D.M., and S.S., and returning their custody to Steel.

[¶ 4] Cleveland requested the district court judge to review the referee's findings and order. On February 1, 2002, the court issued a memorandum opinion and order. In its analysis, the court found, among other things:

The record developed from the proceedings in August 2001, provides clear and convincing evidence that D.M. and S.S. are deprived children and this deprivation is not primarily due to lack of financial resources. First, [Steel] has not provided adequate parental involvement with respect to education: [Steel] has failed to ensure regular school attendance by D.M. and has not responded in the past to correspondence or requests for information from school officials. [Steel's] explanation that D.M. was absent from school because of a bully, and because school officials never did anything about the teasing ... is not a typical, or adequate reason, for a child to be absent 100 days during the school year.... Furthermore, the fact that D.M. did not attend school from January 2000 to April 2000, when she was in Pennsylvania, further illustrates that [Steel] has no concern for whether D.M. obtains even the most basi[c] education....

Second, [Steel] has failed to ensure that S.S. receives proper medical treatment. Even though [S.S.] was diagnosed with epilepsy in August 2000, and takes medication for seizures, [Steel] still disagrees with that diagnosis and will seek a second opinion. [Steel] is opposed to chemicals, i.e., prescription medication, and states she will seek an herbal alternative "in the mean time."... [Steel] also does not provide regular dental appointments for the children ... and has not properly monitored whether the children need eyeglasses.

Third, [Steel's] past behavior is not consistent with a mother who is trying to obtain custody of her children. After the children were removed in January 2000, and at a time when she should have been conscious of how her behavior might reflect on her parenting skills, [Steel] (1) refused to comply with a court order that she produce D.Q. and D.M.... [Steel] also admitted she talked with D.Q. about D.Q. getting married so D.Q. could escape custody of social services.... Indeed, these incidents seem to indicate that [Steel] does not consider how her actions affect the needs of her children.

....

Another incident which cannot be taken lightly is the fact that [Steel] essentially abandoned S.S., C.W., and R.W., after she went to Pennsylvania, and had no contact with them until she returned to North Dakota in August 2000....

In addition, according to her own testimony, [Steel] has a history of abusive relationships with alcoholic and chemically addictive male partners, some of whom are fathers of the children, and some who have simply lived in the family home, acting as caregivers for the children.

....

[Steel] now states that throughout these proceedings, she has not had a problem with social services, but refuses to deal with Leslie Johnson and Carrie Smith and is now willing to do whatever is necessary for D.M. "to be free." ... [Steel's] testimony during the August 2001 proceedings, however, shows that she still refuses to take responsibility for her choices and behavior that have caused the children to be deprived.... In addition, Dr. Witte-Bakken's report recommends that [Steel's] "style of thinking and relating is entrenched."... Dr. Witte-Bakken also stated in her report that she did "not see evidence that [Steel] has motivation to look at things differently or to reassess her parenting style, therefore it would appear that [Steel] would continue on the same course, should the children be returned." Id.

....

D.M. and S.S. have suffered from physical, mental and emotional harm as the result of past deprivation in connection with [Steel's] past history disobeying court orders, refusal to cooperate with social services who are trying to provide services to her children, apathetic attitude toward whether her children obtain a basic education, inattentiveness to the medical needs of her children, and disrespect for the property rights of others. For whatever reasons, [Steel] fails to recognize that D.M. and S.S. have suffered as a result of her lifestyle choices and has in no way indicated that she is motivated in changing her parenting style. As a result, if returned to [Steel's] custody, D.M. and S.S. will return to the same environment where they were deprived of the most basi[c] needs and that D.M. and S.S. in the future will probably suffer serious, physical, mental, or emotional harm.

[¶ 5] The court concluded:

D.M. and S.S. have been involved with social services since 1996, when they were removed from [Steel's] home. [Steel's] numerous relocations to different communities within the last several years illustrate the difficulty of providing services to a family. Each time [Steel] and the children have moved to a new community, and reports were filed with social services, the process of investigating whether the children were adequately cared for would begin anew. As a result, determining what services the children needed was a lengthy process. Based on [Steel's] refusal to comply with court orders and social services, apathetic attitude toward whether her children obtain a basic education, inattentiveness to medical needs of her children ... there is clear and convincing evidence to find that D.M. and S.S. have suffered from physical, mental and emotional harm as the result of past deprivation, that the deprivation will continue in the future, and that it is probable that they will suffer physical, mental, or emotional harm [ ] if they are returned to their mother. As a result, [Steel's] parental rights as to S.S. should be terminated and D.M. shall remain in custody of Cass County Social Services. The juvenile court's decision to the contrary is reversed.

[¶ 6] The court ordered that: (1) the judicial referee's findings, conclusions, and order be reversed; (2) the petition to terminate parental rights to S.S. be granted; and (3) D.M. remain in the custody of the Board.³ Judgment was entered on February 28, 2002.

I

[¶ 7] Steel contends the court erred by engaging in a de novo review of the referee's decision, instead of employing a "clearly erroneous" standard of review. She also contends that in employing a de novo review of the court's decision, this Court must give appreciable weight to the referee's findings, because the referee had the opportunity to observe the candor and demeanor of the witnesses.

[¶ 8] "[A] district court's review of a judicial referee's findings and recommendations under Administrative Rule 13, § 11(b), when it is a review of the record, is governed by Rule 53, N.D.R.Civ.P." Benson v. Benson, 495 N.W.2d 72, 77 (N.D.1993). "Under Rule 53(f)(2), N.D.R.Civ.P., the district court was obliged to accept the referee's findings unless they were clearly erroneous.... The correctness of a referee's findings is an issue that must be determined by the district court in the first instance." Benson, at 78. When the district court rejects a judicial referee's factual findings, this Court employs a two-step review of the district court's factual determinations:

First, we must review, as a matter of law, the correctness of the district court's reversal, under the clearly erroneous standard, of any factual findings by the judicial referee. Second, if the district court's reversal of findings is upheld, we must then review the substitute or additional findings of the district court under the clearly erroneous standard of Rule 52(a), N.D.R.Civ.P.

Benson, at 77. See also Darling v. Gosselin, 1999 ND 8, ¶ 6, 589 N.W.2d 192

; Throndset v. Hawkenson, 532 N.W.2d 394, 397 (N.D.1995). A judicial referee's conclusions of law are fully reviewable in the district court, and the district court's conclusions of law are fully reviewable upon appeal to this Court. D...