In re ER
| Decision Date | 02 November 2004 |
| Docket Number | No. 20040122.,20040122. |
| Citation | 688 N.W.2d 384,2004 ND 202 |
| Parties | In the Interest of E.R., a Child Lisa Johnson, L.S.W., Petitioner and Appellee v. Director, Cass County Social Services, M.R., R.R., John Doe, E.R., and Jared Simonson, Guardian ad Litem, Respondents M.R., Respondent and Appellant. |
| Court | North Dakota Supreme Court |
Constance Louise Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and appellee.
Douglas W. Nesheim, Johnson, Ramstad & Mottinger, Fargo, N.D., for respondent and appellant.
[¶ 1] M.R. ("Martha," a pseudonym) appealed from a judgment terminating her parental rights to her daughter, E.R. ("Elsie," a pseudonym). We hold the trial court's findings that there is clear and convincing evidence Elsie is deprived, the causes and conditions of the deprivation are likely to continue and, as a result of the continued deprivation, Elsie will probably suffer serious physical, mental, or emotional harm if parental rights are not terminated, are not clearly erroneous. We affirm.
[¶ 2] Elsie was born in January 2001. Martha and Elsie's father, R.R. ("Robert," a pseudonym) married shortly thereafter. About two months after Elsie's birth, Robert was incarcerated on multiple convictions of reckless endangerment, and he continued to be imprisoned at the time of the termination hearing. Martha was arrested for possession of methamphetamine and drug paraphernalia in February 2003, and Elsie was at that time removed from her home and placed with Robert's half brother and wife, where she currently resides.
[¶ 3] Martha has a lengthy history of drug use starting at the age of 14. She has been diagnosed with dependencies on amphetamines, cannabis, and nicotine. Lisa Johnson, a licensed social worker with Cass County Social Services, was assigned as case manager for this family. She testified that Martha has "some pretty good parenting skills" and during visitations things went well. However, Martha was again arrested on May 13, 2003, on charges that she sold fake methamphetamine to an undercover informant. Martha was convicted on those charges and at the time of the hearing was incarcerated, with a release date of October 25, 2005.
[¶ 4] Effective March 1, 2004, N.D.R.Civ.P. 52(a) was amended to provide that findings of fact in juvenile matters shall not be set aside unless clearly erroneous. When existing rules of procedure are amended or new rules are added we will apply them to actions then pending unless their application would not be feasible or would work an injustice. In re T.F., 2004 ND 126, ¶ 8, 681 N.W.2d 786. In this case, Martha requested a review of the referee's decision by the district court. Under these circumstances, we will apply N.D.R.Civ.P. 52(a) as amended, and we will not set aside the court's findings of fact unless they are clearly erroneous. See In Interest of T.J.L., 2004 ND 142, ¶ 2, 682 N.W.2d 735.
[¶ 5] 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) by reason thereof the child is suffering, or will 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 K.S., 2002 ND 164, ¶ 6, 652 N.W.2d 341.
[¶ 6] 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 Elsie not having available parental care or control by either parent. The definition of a deprived child is broad enough to encompass a child whose parent is shown to be presently incapable of providing proper parental care or control. In re T.F., 2004 ND 126, ¶ 11, 681 N.W.2d 786. On March 4, 2003, Martha admitted Elsie is a deprived child, and Martha has not raised this element of parental termination as an issue on appeal.
[¶ 7] Martha asserts there is not clear and convincing evidence to support a finding that the deprivation is likely to continue. In determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough, and there must be prognostic evidence that forms the basis for reasonable prediction of continued or future deprivation. In re T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38.
[¶ 8] Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, a probability of serious mental and emotional harm to the child may be established by prognostic evidence that a parent's current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated. In re T.F., 2004 ND 126, ¶ 12, 681 N.W.2d 786. Although Martha is hoping for an earlier release date, her scheduled date of release is October 25, 2005. By her own testimony she admits that upon release she would not be able to immediately take custody of Elsie and that the child would have to be gradually returned to Martha's care and custody. Johnson testified Martha has not changed the nature of her social group to one which would encourage Martha toward the direction of stability, sobriety, and being in a position to care for and nurture her child. Will Brink, a licensed addiction counselor with the Southeast Human Services Center, testified that while Martha agreed to attend "NA" meetings, she rejected the aftercare program with the service center, designed to change the behavior that led her to chemical dependency. He testified that without aftercare there is less chance of recovery. Failure to follow the recommendations for addiction recovery demonstrates an indifference toward one's obligations and responsibilities as a parent. In re S.F., 2000 ND 161, ¶ 11, 615 N.W.2d 511.
[¶ 9] Martha's history of drug use does not bode well for her to stay clean of drugs and out of prison. She admits that she has been a heavy user of methamphetamine since the age of 19, and although she claims to have quit using drugs during her pregnancy with Elsie, she thereafter relapsed into some usage. At the very least, she has continued to associate herself with persons involved in illegal drug use. The juvenile court made the following findings:
When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency...
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