In re JP, No. 20030117
| Decision Date | 28 January 2004 |
| Docket Number | No. 20030118., No. 20030117 |
| Parties | In the Interest of J.P. and D.P., Children Ruby Knoll, L.S.W., Petitioner and Appellee v. K.B., Respondent and Appellant P.P., J.P., D.P., Three Affiliated Tribes, and Monty Mertz, Guardian ad Litem, Respondents. |
| Court | North Dakota Supreme Court |
Susan Lynne Bailey, Assistant State's Attorney, Cass County Social Services, Fargo, N.D., for petitioner and appellee.
Douglas W. Nesheim, Fargo, N.D., for respondent and appellant.
[¶ 1] K.B. appeals a juvenile court order affirming a juvenile court referee's order terminating her parental rights with respect to J.P. and D.P. We affirm.
[¶ 2] K.B. is the mother and P.P.1 is the father of J.P. and D.P., who are Indian children born in 1997 and 1998. In April 2001, K.B. and P.P. admitted the children were deprived and a juvenile court referee found they were deprived, due to a history of child protection involvement since 1997, chemical dependency of both parents, whose chemical use had been detrimental to the children, and K.B.'s conviction of a violent crime and resulting incarceration. The children were placed in the legal custody of Cass County Social Services and in the physical custody of P.P. Both parents were ordered to cooperate with treatment plans.
[¶ 3] In July 2001, the proceedings were transferred to Three Affiliated Tribes. P.P. returned care of the children to K.B. in August 2001. The children were removed from K.B.'s care on October 25, 2001. In an order issued January 18, 2002, a juvenile court referee again found the children were deprived, ordered the children "removed from their own home and placed into the full care, custody and control of the County Director of the Cass County Social Services Board," and ordered the parents to comply with treatment plans in an effort to reunite them with the children. On February 4, 2002, K.B.'s probation was revoked and she was incarcerated.
[¶ 4] On May 31, 2002, Ruby Knoll, an employee of Cass County Social Services, filed a petition for termination of the parental rights of K.B. and P.P. with respect to J.P. and D.P. After a hearing, a juvenile court referee found, among other things:
5. The children ... have been most recently in foster care continuously since October 25, 2001. [J.P.] and [D.P.] have been in foster care for more than 450 of the previous 660 nights.
....
7. Numerous family service plans to remedy the deprivation [were] developed with the mother and the father by Cass County Social Services toward the goal of reunification. Parents' compliance or progress has not been satisfactory. Active efforts have been made to reunify these children with their parents.
....
10. There is clear and convincing evidence that [J.P.] and [D.P.] are deprived children in that [K.B.] is currently incarcerated and unavailable to parent the children, that [K.B.] has mental health, chemical dependency, and anger/behavior/domestic violence issues that have not been satisfactorily resolved and which currently and in the foreseeable future adversely affect her ability to adequately parent the children ... this deprivation is likely to continue; and that the deprivation will continue to cause harm to the child.
....
12. There is clear and convincing evidence that Ward County Social Services, Cass County Social Services, and Three Affiliated Tribes' Social Services have provided services to the parents in an attempt to remedy the causes of the deprivation, that these attempts have not only been active and reasonable, but have exhausted all that is available and appropriate. That there is no basis to believe that there will be any significant improvement in the ability of the parents if given more time. That it is likely that the causes of the deprivation will not end and cannot be remedied in a time frame that is reasonable to make these children wait.
13. The state has proven, by clear and convincing evidence, all of the necessary elements for the termination of parental rights of the parents [K.B.] and [P.P.] with respect to [J.P.] and [D.P.].
14. The state has proven beyond a reasonable doubt that the continued custody of the children, [J.P.] and [D.P.], by [K.B.] and/or [P.P.] will likely result in serious emotional or physical damage to the children.
[¶ 5] On February 14, 2003, the juvenile court referee ordered termination of K.B.'s parental rights with respect to J.P. and D.P. K.B. requested judicial review of the referee's order. On March 18, 2003, the juvenile court issued an order affirming the referee's order. K.B. appealed, contending (1) the petitioner failed to prove by clear and convincing evidence that the deprivation was likely to continue; (2) the evidence does not support the finding that there is no reasonable doubt the children would likely suffer harm if her parental rights were not terminated; (3) there was not clear and convincing evidence that active efforts were made to preserve this Indian family; and (4) the district court erred in deciding termination was justified because the children had been placed outside their home for 450 of the previous 660 nights.
[¶ 6] Section 27-20-44(1)(b), N.D.C.C., authorizes the juvenile court to terminate a person's parental rights with respect to a child, if:
The child is a deprived child and the court finds:
(1) 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; [or]
(2) The child has been in foster care, in the care, custody, and control of the department, or a county social service board ... for at least four hundred fifty out of the previous six hundred sixty nights.
(f) Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
[¶ 7] Those state and federal provisions create a dual burden of proof for a party seeking to terminate the parental rights of a parent of an Indian child. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678. "Under N.D.C.C. § 27-20-44(1)(b)(1) the juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm." In re D.Q., 2002 ND 188, ¶ 19, 653 N.W.2d 713. A party seeking termination of parental rights must prove all the necessary elements by clear and convincing evidence. Id. Under 25 U.S.C. § 1912(d), a petitioner must demonstrate, "by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful." In re M.S., at ¶ 18. Under 25 U.S.C. § 1912(f), a petitioner must prove continued custody of a child by a parent or Indian custodian is likely to result in serious emotional or physical damage to the child by proof beyond a reasonable doubt. Id. at ¶ 4.
[¶ 8] "`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.'" In re A.B., 2003 ND 98, ¶ 4, 663 N.W.2d 625 (quoting In re D.Q., 2002 ND 188, ¶ 8, 653 N.W.2d 713). Under N.D.C.C. § 27-50-56, our review of a juvenile court's order is similar to a trial de novo. In re A.B., 2003 ND 98, ¶ 4, 663 N.W.2d 625, petition for cert. filed, 72 USLW 3393 (2003). We independently review the evidence, affording the juvenile court's findings appreciable weight, although we are not bound by them. Id.
[¶ 9] K.B. contends there is not clear and convincing evidence the deprivation was likely to continue or that active efforts were made to preserve this Indian family, and she contends the determination that continued custody of the children by K.B. was likely to result in serious emotional or physical damage to the children was not supported by evidence beyond a reasonable doubt. We reject K.B.'s contentions.
[¶ 10] Jane Austenson, a domestic violence counselor, testified: (1) In April 2001, she did an assessment of K.B. and recommended "extensive and intensive therapy"; (2) "Without extensive, intensive counseling and therapy [domestic violence and assaultive behavior] will not change"; and (3) "[O]ur program for domestic violence counseling is a minimum of twenty four weeks, two hours a week."
[¶ 11] Ruby Knoll, a licensed social worker for Cass County Social Services, testified: (1) She has "been the case manager while the children have been...
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