In re DR, No. 20010098
| Decision Date | 05 December 2001 |
| Docket Number | No. 20010098, No. 20010099. |
| Citation | 636 N.W.2d 412,2001 ND 183 |
| Parties | In the Interest of D.R. and S.R. Stephen R. Dawson, Petitioner and Appellee, v. Director, Cass County Social Services, D.J.R., S.L., and D.R., S.R., and Benjamin Thomas, Guardian ad Litem, Respondents, and M.R., Respondent and Appellant. In the Interest of D.R. and S.R. Stephen R. Dawson, Petitioner and Appellee, v. Director, Cass County Social Services, D.J.R., D.R., S.R., and Benjamin Thomas, Guardian ad Litem, Respondents, and M.R., Respondent and Appellant. |
| Court | North Dakota Supreme Court |
Constance Louise Cleveland, Assistant State's Attorney, Fargo, ND, for petitioner and appellee.
Jared S. Simonson, Simonson Law Office, Fargo, ND, for respondent and appellant.
[¶ 1] M.R. ("Maria")1 appealed from an order terminating her parental rights to her children, D.R. ("Dan") and S.R. ("Susan"). We hold there is clear and convincing evidence the children are deprived, the causes and conditions of the deprivation are likely to continue, and, as a result of the continued deprivation, the children will probably suffer serious physical, mental, or emotional harm if Maria's parental rights are not terminated. We affirm.
[¶ 2] Under N.D.C.C. § 27-20-44(1)(b)(1) a juvenile court may terminate parental rights if (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. The party seeking parental termination must prove all elements by clear and convincing evidence. In re T.K., 2001 ND 127, ¶ 2, 630 N.W.2d 38. On appeal, we review the juvenile court's decision and examine the evidence in a manner similar to a trial de novo. Id. We review the files, records, and transcript of the evidence in the juvenile court, and although we are not bound by the findings of the juvenile court, we give those findings appreciable weight and give deference to the juvenile court's decision, because that court had an opportunity to observe the candor and demeanor of the witnesses. Id.
[¶ 3] Maria was born in December 1962 and was 38 years old at the time of the termination proceedings. She was married for the first time at age 20 and in March 1982 gave birth to a daughter, S.L. ("Sandra").2 After seven years of marriage, Maria divorced her first husband and married D.R. ("David") in 1988. David is the father of Dan, born November 3, 1988, and Susan, born March 8, 1990. David has not had contact with the children for many years, and he is currently incarcerated in California. David's parental rights were also terminated by the court's order, but David has not appealed from the court's decision.
[¶ 4] Maria has had physical custody of Susan and Dan since they were born. Maria candidly admits she started using contraband drugs at age 20, primarily methamphetamines, and she has a drug addiction. Maria also concedes she has been convicted on several occasions of both possession and delivery of contraband drugs. She acknowledges she has both consumed and sold illegal drugs in her home while the children were living with her.
[¶ 5] Maria also acknowledges she has lived with male roommates who have been abusive to both her and the children. One of the roommates both physically and sexually abused Susan. Although Susan promptly informed Maria about the incident of sexual abuse, Maria did not report it until several months afterward when Susan did not want to attend school.
[¶ 6] In October 1998, the children were removed from Maria's home when authorities found controlled substances and drug paraphernalia there. Maria was taken into custody and the children were temporarily placed with their maternal grandmother in Moorhead. In March 1999, Maria admitted the children were deprived, and the children were then placed in foster care by Cass County Social Services while Maria served a six-month sentence of drug addiction treatment at Share House in Fargo. Maria was released from Share House in July 1999. The children were not immediately returned to Maria, however, because Maria continued to live with the boyfriend who had abused Susan, and there was a restraining order preventing him from having any contact with Susan. Susan and Dan were returned to Maria on August 3, 1999, when the boyfriend moved out of Maria's house.
[¶ 7] On September 21, 1999, law enforcement authorities, during a probation search of Maria's home, again discovered contraband drugs and paraphernalia. The children were removed and placed in foster care. On December 27, 1999, Maria was convicted of class C felony possession of a controlled substance and class A misdemeanor possession of drug paraphernalia. She was sentenced to the custody of the Department of Corrections for a period two years. On December 29, 1999, Maria began serving her sentences of incarceration. On June 7, 2000, Maria was convicted of class A felony delivery of a controlled substance and was sentenced to incarceration for three years.
[¶ 8] The juvenile court found that Susan and Dan are deprived children. A deprived child is statutorily defined under N.D.C.C. § 27-20-02(8)(a), as 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." At the time of the termination proceedings, both parents were incarcerated, resulting in Susan and Dan not having available parental care or control by either parent.
[¶ 9] Dr. Kevin Schumacher has a Ph.D. in psychology and is employed at Psychiatric Medicine Associates in Fargo. He works mostly with children and adolescents. Social Services personnel referred Susan and Dan to Dr. Schumacher in December 1998, and he has counseled them regularly, about once every two weeks, since that time. Dr. Schumacher testified that both Susan and Dan have emotional and mental health problems stemming from a home background which is "chaotic and unpredictable and damaging." Dr. Schumacher testified the children were seriously affected by being removed from the mother when she was jailed and then, after briefly being reunited with her, they were removed again when Maria was incarcerated. He testified that this has created Dr. Schumacher testified the children are very combative with each other, have serious attendance and achievement problems at school, toilet hygiene and bed wetting problems, and emotional and psychological stress and problems. He testified these children will require long-term counseling and treatment.
[¶ 10] Maria admitted in open court that the children are deprived as defined by the statute. On appeal, she does not raise this element for parental termination as an issue.
[¶ 11] Maria's primary contention on appeal is that there is not clear and convincing evidence the deprivation of these children is likely to continue. Evidence of a parent's background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue. In Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573. Evidence of past or present deprivation, however, is not alone sufficient to terminate parental rights, and there must be prognostic evidence that deprivation will continue or be unremedied. Id. This Court has defined prognostic evidence as evidence that forms the basis of reasonable predication as to future behavior. In Interest of A.S., 1998 ND 181, ¶ 19, 584 N.W.2d 853.
[¶ 12] Pamela Sand, a case manager with the Cass County Social Services Agency, testified that Maria continued to use drugs even though many support services were being offered to her and the family, including intensive therapy treatment, when the September 1999 drug arrest occurred. Ms. Sand testified that although it is not impossible the causes of the children's deprivation will be remedied upon Maria's release from prison "a 20 year drug addiction is a very long, timely process to recover from and . . . the length of time that that would take would be longer than the children can wait for some permanency, for a permanent home."
[¶ 13] Maria introduced evidence that, while incarcerated since December 29, 1999, she has successfully completed several courses on proper parenting and dealing with chemical addiction. She testified she intends to stay drug free and to provide an appropriate home environment for her children. Maria acknowledged during her trial testimony, however, that she has had treatment for her addiction six times in the past without success. The juvenile court found that Maria
[¶ 14] Regarding the prospect for successfully reuniting the children with Maria, Dr. Schumacher testified:
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IN INTEREST OF TF
...the standard of review under N.D.R.Civ.P. 52(a) in effect prior to the March 1, 2004 amendment, which is similar to a trial de novo. In re D.R., 2001 ND 183, ¶ 2, 636 N.W.2d 412. Under the trial de novo standard we review the files, records, and transcript of the evidence in the juvenile co......
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...mental, moral, or emotional harm. The party seeking parental termination must prove all elements by clear and convincing evidence. In re D.R., 2001 ND 183, ¶ 2, 636 N.W.2d 412. On appeal, we review the juvenile court's decision and examine the evidence in a manner similar to a trial de novo......