In re K.L.

• Citation: 751 N.W.2d 677,2008 ND 131
• Decision Date: 26 June 2008
• Docket Number: No. 20070309.,No. 20070310.,20070309.,20070310.
• Parties: Interest of K.L., a Child Interest of M.S., a Child State of North Dakota, Petitioner and Appellee v. T.L., Mother, Respondent and Appellant K.L., a child; M.S., a child; B.A. and John Doe, fathers; and S.S., father, Respondents.
• Court: United States State Supreme Court of North Dakota

751 N.W.2d 677

2008 ND 131

Interest of K.L., a Child Interest of M.S., a Child State of North Dakota, Petitioner and Appellee v. T.L., Mother, Respondent and Appellant

K.L., a child; M.S., a child; B.A. and John Doe, fathers; and S.S., father, Respondents.

No. 20070309.

No. 20070310.

Supreme Court of North Dakota.

June 26, 2008.

Pam H. Ormand (argued), Assistant State's Attorney, Fargo, ND, for petitioner and appellee.

Jessica Ahrendt (argued), Valley City, ND, for respondent and appellant T.L.

KAPSNER, Justice.

[¶ 1] T.L. appeals a juvenile court order terminating her parental rights to her two minor children, K.L. and M.S. We affirm.

I

[¶ 2] T.L. is the biological mother of K.L., born in 2001, and M.S., born in 2004. On June 7, 2006, T.L., K.L., and M.S. were residing in a home that was subjected to a probation search. During the search, the searching officers contacted Cass County Social Services ("Social Services") because they believed the conditions of the home were unsafe for T.L.'s children; the searching officers found drug paraphernalia, needles, pills, and alcohol, which were, according to the officers, within reach of the children. K.L. and M.S. were removed from the residence and placed in protective custody after the officers finished a search of the home.

[¶ 3] On June 8, 2006, K.L. and M.S. were tested for drugs. K.L. tested positive for amphetamines and methamphetamines; the test indicated low to medium exposure to both of these drugs. M.S. was tested for drugs, and the test revealed the presence of amphetamines, methamphetamines, and cocaine in M.S. M.S.'s drug test indicated a low exposure to cocaine and a moderate exposure to methamphetamine.

[¶ 4] On June 9, 2006, T.L. was tested for drug use, and her tests revealed the presence of amphetamines and marijuana. S.S., M.S.'s father, who lived with T.L. and the children, also tested positive for drugs. Social Services petitioned the juvenile court, alleging the children were deprived and requesting the juvenile court issue an order finding the children to be deprived. In October 2006, the juvenile court issued an order finding K.L. and M.S. were deprived children.

[¶ 5] T.L. and her children were assigned a case worker, Ruby Knoll, on June 8, 2006. The children remained in foster care following the juvenile court's finding that the children were deprived, and T.L. was given supervised visitation with the children. T.L. was active in all of the visitations offered. Social Services made recommendations that T.L. obtain employment, obtain suitable housing, obtain a mental health evaluation and follow through with treatment for mental health issues, obtain a chemical dependency evaluation, and undergo treatment following the chemical dependency evaluation. In accordance with the recommendations of Social Services, T.L. found an apartment and began working. She did, however, change employment frequently and had trouble keeping her jobs. She secured an apartment until January 2007. Following an incident of domestic violence with S.S., with whom T.L. was sharing the apartment, T.L. felt she needed to find different housing. According to T.L.'s testimony, she lived in a trailer she intended to purchase from a friend, after moving out of the apartment in January 2007 and until the time of the June 2007, termination proceeding. T.L. testified she was unable to pay for heat, electricity, and water services, but continued to stay in the trailer without such services.

[¶ 6] Almost immediately after her children had been removed, T.L. successfully completed a chemical dependency evaluation, in which she was diagnosed with methamphetamine addiction, but she failed to follow-up with several treatment program options offered to her through Social Services; T.L. failed to complete a group therapy treatment program, and subsequently failed to complete an individual outpatient therapy program. From July 2006 to March 2007, T.L.'s attendance in her outpatient treatment programs was at best sporadic. T.L. also tested positive for methamphetamine use in December 2006, admitted to use in January 2007, refused a drug test in February 2007, and again tested positive for methamphetamine use in March 2007.

[¶ 7] Because of T.L.'s failure to comply with and complete any drug treatment programs, Social Services brought a petition for the termination of parental rights on March 22, 2007. A hearing on the petition was held on June 21 and 22, 2007, and July 10, 2007, before Judicial Referee Susan Thomas. In the midst of these hearings, on June 20, 2007, T.L. applied and was accepted into an inpatient methamphetamine treatment program, Teen Challenge. She offered and admitted her acceptance letter into Teen Challenge during the June 21, 2007, termination hearing. Prior to the July 10, 2007, hearing, T.L. applied and was admitted into another inpatient treatment program through the Robinson Recovery Center. T.L.'s trial counsel did not submit evidence of T.L.'s entrance into the Robinson Recovery Center treatment program at the July 10, 2007, termination hearing. At the hearings, the State presented the testimony of several social workers and addiction counselors. T.L. also testified at the termination proceeding.

[¶ 8] On August 17, 2007, the judicial referee issued findings of fact, conclusions of law, and order for judgment terminating T.L.'s parental rights to both K.L. and M.S.

[¶ 9] T.L. requested a review of the judicial referee's findings of fact, conclusions of law, and order for judgment, and the juvenile court adopted the findings and conclusions of the judicial referee and ordered the termination.

[¶ 10] T.L. appeals the order of the juvenile court, arguing the juvenile court erred in finding there was clear and convincing evidence that the conditions and causes of deprivation are likely to continue and that the children will probably suffer serious physical, mental, moral, or emotional harm. T.L. also argues she was deprived of effective assistance of counsel.

II

[¶ 11] "To terminate parental rights, the petitioner must prove the child is deprived; the conditions and causes of the deprivation are likely to continue or will not be remedied; and the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm." Interest of I.B.A. and C.B.A., 2008 ND 89, ¶ 15, 748 N.W.2d 688 (citing N.D.C.C. § 27-20-44(1)(c)(1)). The party seeking parental termination bears the burden of proof and must prove all elements by clear and convincing evidence. Id. (citing Interest of T.A., 2006 ND 210, ¶ 10, 722 N.W.2d 548). Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true. Id. (citing Interest of T.A., at ¶ 10).

[¶ 12] "`A lower court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.'" Interest of D.M., 2007 ND 62, ¶ 6, 730 N.W.2d 604 (quoting Interest of M.B., 2006 ND 19, ¶ 13, 709 N.W.2d 11). "`A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.'" Id. (quoting Interest of M.B., at ¶ 13).

A

[¶ 13] The first element of the three-part test requires a finding that the child is a deprived child. N.D.C.C. § 27-20-44(1)(b). A "deprived child" is a child who:

Is 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[.]

N.D.C.C. § 27-20-02(8)(a). "We have defined `proper parental care' to mean the minimum standards of care that the community will tolerate." Interest of D.M., at ¶ 8 (citing Interest of M.B., at ¶ 14).

[¶ 14] According to the referee's findings, K.L. and M.S. were found to be deprived children on October 3, 2006. T.L. does not dispute K.L. and M.S. are deprived children.

B

[¶ 15] Instead, T.L. contends the juvenile court clearly erred in determining the conditions and causes of deprivation are likely to continue.

[¶ 16] The second element of the three-part test for a parental rights termination requires the State to prove the deprivation is "`likely to continue or will not be remedied.'" Interest of D.M., at ¶ 11 (quoting N.D.C.C. § 27-20-44(1)(c)(1)). "`To show this, the State cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.'" Id. (quoting Interest of M.B., at ¶ 16).

[¶ 17] T.L. argues that the "likely to continue" finding was clearly erroneous because Social Services was not compliant with its statutory duty of diligence in reunification efforts under N.D.C.C. § 27-20-32.2 and more diligence on the part of Social Services would have placed T.L. in an inpatient drug treatment program, which would have improved her ability to control the main cause of her children's current and future deprivation. T.L. also contends the juvenile court relied only on T.L.'s past conduct and existing drug addiction, rather than prognostic evidence in making the determination that the deprivation was likely to continue.

[¶ 18] Section 27-20-32.2(2)(b), N.D.C.C., requires the agency charged with the care of deprived children to make "reasonable efforts ... to preserve and reunify families ... [t]o make it possible for a child to return safely to the child's home." The term "reasonable efforts" is defined as "the exercise of due diligence, by the agency ..., to use appropriate and available services to meet the needs of the child and the child's family ... after removal, to use appropriate and available services to eliminate the need for removal and to reunite the child and the child's family."...