In re M.B., 20050206.
| Decision Date | 31 January 2006 |
| Docket Number | No. 20050206.,20050206. |
| Citation | 2006 ND 19,709 N.W.2d 11 |
| Parties | In the Interest of M.B. and N.B., Children. Marlene Sorum, L.S.W., Petitioner and Appellee v. Director, Cass County Social Services, K.S. (f/k/a K.B.), I.B., M.B., N.B., and Monty Mertz, Guardian ad Litem, Respondents. I.B., Respondent and Appellant. |
| Court | North Dakota Supreme Court |
Constance L. Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and appellee.
David A. Garaas, Garaas Law Firm, Fargo, N.D., for respondent and appellant.
[¶ 1] I.B., the father of two children, appeals the juvenile court orders terminating his parental rights and denying his motion for continued visitation. Holding that I.B. was provided with sufficient notice of the proceedings against him and that the evidence supports the order terminating his parental rights, we affirm.
[¶ 2] I.B. and K.S., formerly know as K.B., had two children. They married in 2000, after the children were born, and divorced roughly four years later. The children have been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. They have witnessed episodes of domestic violence between their parents. Their mother testified the children were abused by I.B. K.S. and Cathy Hjelle, the children's therapist, testified the children were exposed to pornographic and horror movies and sexual activities. In April 2002, the juvenile court found the children were deprived and placed them in social services' care. They were reunified with their parents in the summer of 2002, after some family counseling. Marlene Sorum, the petitioner and a social worker with Cass County Social Services, testified at the trial that any involvement in therapy ceased after reunification. The parents separated again in 2003, and custody of the children was given to the mother. In July and October 2003, the juvenile court found the children were deprived and placed them in social services' care.
[¶ 3] In July 2004, Sorum petitioned to terminate the parents' rights. After receiving notice by publication, the father appeared to defend against the petition, declaring that he wanted to provide for the children. The mother submitted an affidavit consenting to her termination. The children's guardian ad litem recommended a reunification plan for the father and the termination of the mother's rights.
[¶ 4] A three-day trial was held in October 2004. In December 2004, the judicial referee, by letter, announced her decision that the children were deprived, and she ordered Sorum to prepare proposed findings of fact, conclusions of law, and order for termination. According to I.B., Sorum's findings of fact, conclusions of law, and order were adopted without change. The father requested district judge review of the termination and moved the referee for continued visitation. When his motion for visitation was denied, he requested district judge review of the visitation motion. The district judge adopted the referee's order terminating the father's parental rights and adopted the referee's order denying visitation. On appeal, I.B. argues he did not have proper notice of the facts used to terminate his rights; the referee improperly delegated drafting of the findings of fact, conclusions of law, and order for termination to Sorum; there is insufficient evidence to terminate his rights or to conclude any deprivation will continue, and he should be afforded an opportunity for reunification.
[¶ 5] The juvenile court had jurisdiction under N.D.C.C. §§ 27-05-06 and 27-20-03(1)(b). The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. §§ 27-20-56(1) and 28-27-01.
[¶ 6] I.B. argues Sorum's petition did not give him proper notice of the facts used to terminate his rights. The petition to terminate parental rights must comply with the requirements of N.D.C.C. § 27-20-21. N.D.C.C. § 27-20-45(1). Section 27-20-21, N.D.C.C., provides, in part:
The petition must be verified and may be on information and belief. It must set forth plainly:
1. The facts which bring the child within the jurisdiction of the court, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency or unruly conduct is alleged, that the child is in need of treatment or rehabilitation[.]
[¶ 7] "Given the nature of the parental rights at stake, procedural due process requires that, in addition to the legal standards involved, [the petitioner] apprise [the parent] of the factual circumstances behind the proposed termination." Thompson v. King, 393 N.W.2d 733, 738 (N.D. 1986). Thus, to comply with due process and the statute, the petition must do more than merely state the statutory language justifying termination of parental rights provided in N.D.C.C. § 27-20-44 or the definition of a deprived child provided in N.D.C.C. § 27-20-02(8). Interest of T.M. M., 267 N.W.2d 807, 813 (N.D. 1978). The petitioner must provide specific facts the petitioner will rely on to terminate the parental rights so that the respondent parent has notice and is able to meaningfully prepare a defense against the petition. Id.; see also Thompson, at 738-39 ().
[¶ 8] The petition for termination and the supporting affidavit, incorporated into the petition by reference, contain many factual assertions concerning I.B.'s conduct as a parent. The documents allege that the father and mother have been involved in numerous domestic violence disputes. They allege that I.B. has a history of abusive behavior. The petition and affidavit also allege that although I.B. has provided financial support for the children, he told Sorum he is concerned that he will not be able to provide for the children and that his parental rights may be terminated. Finally, the documents allege the parents have not followed up on treatment for themselves or the children. I.B. appeared for trial and did not seem prejudiced by the petition or unable to defend against the charges. Counsel for I.B. conceded at oral argument trial counsel failed to object that evidence presented at trial did not conform with the petition. Although the facts in the petition were not necessarily the same as the facts relied on by the referee in reaching the court's final decision, I.B. had notice of the facts Sorum would use to support terminating the father's parental rights. The contents of the petition complied with the statutory requirements, and I.B. had notice of the facts that would be used to terminate his parental rights. His due process rights have not been violated.
[¶ 9] I.B. argues the referee's findings of fact are improper because procedures followed by the referee in developing the findings of fact were an improper delegation of judicial authority. According to him, Sorum developed the proposed findings of fact by copying a great deal from a post-trial letter her attorney sent to the referee outlining her view of the case, and then the referee adopted verbatim the proposed findings of Sorum.
[¶ 10] Rule 7.1, N.D.R.Ct., provides that preparation of proposed findings of fact and conclusions of law required by N.D.R.Civ.P. 52(a) may be assigned to one or more parties by the court. N.D.R.Ct. 7.1(b)(1). The rule provides the party opposing the proposed findings of fact an opportunity to object. N.D.R.Ct. 7.1(b)(1). Rule 52(a), N.D.R.Civ.P., provides, in part:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.... The findings of a master or juvenile referee, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.
[¶ 11] We discourage a trial court's verbatim adoption of only one party's proposed findings of fact and encourage the trial court to prepare its own. Smith Enters., Inc. v. In-Touch Phone Cards, Inc., 2004 ND 169, ¶ 11, 685 N.W.2d 741; Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D. 1995). When the trial court signs the proposed findings of fact, however, they become the court's findings and will not be overturned unless they are clearly erroneous. Foster v. Foster, 2004 ND 226, ¶ 10, 690 N.W.2d 197; N.D.R.Civ.P. 52(a). "Although we prefer that trial courts prepare their own findings of fact, we reject [the appellant's] argument that the court's wholesale adoption of [the appellee's] proposed findings of fact, by itself, is reason to reverse the court's decision." Smith Enters., Inc., at ¶ 11. This is true even when the trial court sends only a letter to the parties, announcing its decision and asking the prevailing party to prepare the proposed findings of fact. See Foster, at ¶¶ 7, 10 ().
[¶ 12] In November 2004, the attorney for Sorum mailed the juvenile referee a post-trial letter discussing what she believed was proven at the trial and what the outcome of the case should be. In December 2004, the referee announced by letter her decision to terminate I.B.'s parental rights and directed the attorney for Sorum to prepare the findings of fact, conclusions of law, and order for the referee. The findings of fact adopted by the referee were substantially similar to the letter from Sorum's attorney to the referee. Counsel for Sorum conceded at oral argument the findings of fact she submitted were adopted verbatim...
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