In re KS, 20010315.

• Decision Date: 15 October 2002
• Docket Number: No. 20010315.,20010315.
• Citation: 652 N.W.2d 341,2002 ND 164
• Parties: In the Interest of K.S. and A.S., Minor Children. L.J. Bernhardt, Petitioner and Appellee v. K.S., a child, A.S., a child, the Executive Director of the North Dakota Department of Human Services, Respondents, T.S., their mother, Respondent and Appellant, K.S., Sr., their father, Respondent and Appellee.
• Court: North Dakota Supreme Court

652 N.W.2d 341

2002 ND 164

In the Interest of K.S. and A.S., Minor Children.

L.J. Bernhardt, Petitioner and Appellee v. K.S., a child, A.S., a child, the Executive Director of the North Dakota Department of Human Services, Respondents, T.S., their mother, Respondent and Appellant, K.S., Sr., their father, Respondent and Appellee.

No. 20010315.

Supreme Court of North Dakota.

October 15, 2002.

Owen K. Mehrer, Assistant State's Attorney, Dickinson, N.D., for petitioner and appellee.

Gary D. Ramsey, Greenwood & Ramsey, PLLP, Dickinson, N.D., for respondent and appellant.

Sandra K. Kuntz, Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, N.D., for respondent and appellee.

NEUMANN, Justice.

[¶ 1] T.S. ("Tammy")¹ appealed from an order terminating her parental rights to her children, K.S. ("Ken") and A.S. ("Allen"). 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 Tammy's parental rights are not terminated. We affirm.

I

[¶ 2] K.S., Sr., ("Kip") is from Dickinson. He moved to Flagstaff, Arizona, met Tammy, and married her on July 18, 1997.² While living in Arizona they together had Ken, who was born in 1997, and Allen, who was born in 1998. Shortly after Allen's birth the family moved to Dickinson.

[¶ 3] Since 1999, Stark County Social Services has received numerous abuse and neglect complaints against Tammy and Kip. Tammy admits she is an alcoholic who has also used methamphetamines, cocaine, and marijuana. She testified that Kip also abused drugs and alcohol and that he was physically, verbally, and emotionally abusive of her and would beat her in front of the children. Tammy testified she has had a drinking problem since 1998. She admits that twice a month she would drink until she passed out and that in the year 2000 she started drinking daily. Tammy testified that during the summer of 1999 she met a male neighbor and, after Kip moved out of the parties' home, Tammy and the neighbor began a relationship and lived together between February 2000 and March 2001. Tammy and Kip were divorced in May 2000. Tammy testified she and her new male companion abused alcohol and together would drink heavily and often.

[¶ 4] Ken and Allen were removed from Tammy's custody on October 26, 2000, when Tammy was found intoxicated and unconscious, lying on the floor of her home, while the children were in another room with the door closed. Since that time the boys have been in foster care. A petition alleging the children were deprived was filed, and a hearing was held on November 27, 2000. Kip failed to appear or contest the petition. Tammy conceded the children were deprived and surrendered custody of them to social services personnel.

[¶ 5] After many failed attempts to rehabilitate Tammy, the director of Stark County Social Services filed a petition on July 26, 2001, to terminate Kip and Tammy's parental rights to the children. When the termination hearing began in October 2001, Kip was 31 years old and Tammy was 25 years old. Kip did not contest the petition to terminate his parental rights but, through an attorney, appeared at the hearing to support the termination of his and Tammy's parental rights so the children could be placed in an appropriate adoptive home. Tammy contested the petition. After a hearing, the juvenile court granted the petition, terminated Kip and Tammy's parental rights, and transferred custody of the children to the Executive Director of the North Dakota Department of Human Services for adoption placement. Tammy appealed.

II

[¶ 6] 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 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 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. 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.

A. Deprivation

[¶ 7] To terminate parental rights the court must first find the child is a deprived child. In re T.K., 2001 ND 127, ¶ 2, 630 N.W.2d 38. 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 November 2000 deprivation hearing, Tammy conceded the children were deprived and voluntarily surrendered their temporary care to social services personnel.

[¶ 8] At the termination hearing, commencing October 11, 2001, the juvenile court received into evidence and took judicial notice of the court's November 28, 2000 findings of fact, conclusions of law, and order of disposition, wherein the court found the children were deprived and temporarily removed custody of the children from their parents. After the termination hearing, the juvenile court made the following written finding:

[T]he factual basis for the adjudication that the children were deprived is set forth in paragraphs III(a) through (i) of the Findings of Fact, Conclusions of Law and Order of Disposition dated November 28, 2000, (Petitioner's Exhibit # 3) and the Court finds these allegations to be true and not contested in this proceeding.

[¶ 9] An order finding a child deprived and temporarily transferring custody of the child is not res judicata for purposes of determining whether the child is a deprived child in proceedings to terminate parental rights. In Interest of R.H., 262 N.W.2d 719, 723 (N.D.1978). In parental termination proceedings, due process and notice requirements prohibit the juvenile court from taking judicial notice of testimony in proceedings where termination was not an issue; however, when the termination hearing is a culmination of prior proceedings, the court need not operate in a vacuum as to the results of those proceedings. In Interest of R.M.B., 402 N.W.2d 912, 917 (N.D.1987). Tammy did not expressly stipulate to a finding of deprivation for purposes of the termination hearing. Although a court can take judicial notice of its prior orders, the result of the November 2000 temporary custody proceeding, standing alone, is not sufficient to constitute clear and convincing evidence of deprivation for the purpose of terminating Kip and Tammy's parental rights.

[¶ 10] After the termination hearing, the juvenile court also made written findings that:

[Kip] has admitted that he cannot provide proper care for the children ... and that his parental rights should be terminated ... the children are deprived because [Tammy] is unable to provide them with proper parental care necessary for their physical, mental, or emotional health and the deprivation is not due to the lack of financial means.

[¶ 11] In our de novo review of an order to terminate parental rights we only consider testimony and evidence introduced at the termination hearing for the resolution of the issues on appeal. See In Interest of M.R., 334 N.W.2d 848, 853 (N.D.1983). Error not affecting substantial rights of the parties must be disregarded. N.D.R.Civ.P. 61; Huesers v. Huesers, 1998 ND 54, ¶ 11, 574 N.W.2d 880. Nonprejudicial mistakes by the lower court constitute harmless error and are not grounds for reversal. Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, ¶ 26, 643 N.W.2d 29; see also In re R.O., 2001 ND 137, ¶ 22, 631 N.W.2d 159 (any deficiency in lower court's procedure in admitting testimony of addiction counselor did not affect the outcome of the case and was harmless error where the appellate court, after de novo review, concluded there was clear and convincing evidence supporting parental termination, without the addiction counselor's testimony).

[¶ 12] Considerable evidence was introduced at the termination hearing to support the juvenile court's finding that these boys are deprived children. Annie Pikarski is a foster parent for the boys, who were placed in her home on January 31, 2001. Pikarski has a "therapeutic foster home," meaning that she is capable of providing therapy for special needs children. Pikarski has a degree in education with certification in special needs children and a master's degree in education administration and leadership. She testified that when the boys entered her home it was obvious they had been emotionally, psychologically, and physically abused. They were not able to verbalize and they were terrified. She testified Ken came to her home at age three and one-half exhibiting a physical age of one and an emotional age of an infant. He had no bonding ability and did not trust anyone. He would self-mutilate himself at times and suffered from night terrors, where he would scream for hours. She testified Allen came into her home at an emotional level of an infant and that he looked like a malnourished child with "a swollen belly and he had nothing—his skin was just falling off his bones." She testified the boys are extremely afraid of being left alone and will scream even if she only leaves momentarily to retrieve the mail. She testified the boys' needs are so great and they are so difficult to...