In re MS

• Decision Date: 12 April 2001
• Docket Number: No. 20000183.,20000183.
• Citation: 624 N.W.2d 678,2001 ND 68
• Parties: In the Interest of M.S., a child. Barb Dvorak, Petitioner and Appellee, v. S.H., Mother, Respondent and Appellant, and C.S., Father, Respondent, and M.S., Child, and her Guardian Ad Litem, William D. Schmidt, Attorney at Law, Respondents and Appellees.
• Court: North Dakota Supreme Court

624 N.W.2d 678

2001 ND 68

In the Interest of M.S., a child.

Barb Dvorak, Petitioner and Appellee, v. S.H., Mother, Respondent and Appellant, and C.S., Father, Respondent, and M.S., Child, and her Guardian Ad Litem, William D. Schmidt, Attorney at Law, Respondents and Appellees.

No. 20000183.

Supreme Court of North Dakota.

April 12, 2001.

Rick Lee Volk, Assistant State's Attorney, Bismarck, ND, for petitioner and appellee Barb Dvorak.

Edwin W.F. Dyer, III, Dyer & Summers, P.C., Bismarck, ND, for respondent and appellant S.H., Mother.

William Delaney Schmidt, (on brief), Guardian Ad Litem, Bismarck, ND, for respondent and appellee M.S., Child.

MARING, Justice.

[¶ 1] S.H. ("Sharon," a pseudonym) appealed from an order of the juvenile court terminating her parental rights to her daughter, M.S. ("Mandy," a pseudonym).¹ We conclude there is clear and convincing evidence warranting termination of Sharon's parental rights and there is evidence beyond a reasonable doubt that Sharon's continued custody of Mandy is likely to result in serious emotional or physical damage to the child. We affirm.

I

[¶ 2] Mandy was born on June 24, 1993. In September 1997, the juvenile court declared Mandy a deprived child and placed her in the custody of Burleigh County Social Services. Except for a period of about three weeks Mandy has resided in a foster home since September 1997. On August 2, 1999, Burleigh County filed a petition to terminate Sharon's parental rights. Following a bench trial, the juvenile court granted the petition.

II

[¶ 3] Sharon asserts the evidence is insufficient to prove beyond a reasonable doubt Sharon's continued custody of Mandy is likely to result in serious emotional or physical damage to Mandy. [¶ 4] The juvenile court may terminate parental rights, providing: (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 in the future probably suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27-20-44(1)(b); In re C.R., 1999 ND 221, ¶ 4, 602 N.W.2d 520. The party seeking parental termination must prove all elements by clear and convincing evidence. Id. In addition to our state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912 must be met, because Mandy is a member of the Yankton Sioux Tribe and is, therefore, an Indian child as defined by the Act. 25 U.S.C. § 1903(4); see also B.R.T. v. Executive Director of the Social Service Board of North Dakota, 391 N.W.2d 594, 598 (N.D.1986)

. Relevant to this issue, 25 U.S.C. § 1912(f) provides:

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.

These state and federal provisions create a dual burden of proof for the party seeking parental termination of the parent of an Indian child, whereby the elements of our state law must be proven by clear and convincing evidence and the federal requirement, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, must be satisfied with proof beyond a reasonable doubt.² See Matter of Bluebird, 105 N.C.App. 42, 411 S.E.2d 820, 823 (1992)

.

[¶ 5] On appeal, we review the juvenile court's decision regarding termination of parental rights and examine the evidence in a manner similar to a trial de novo. In re A.M., 1999 ND 195, ¶ 7, 601 N.W.2d 253. While we are not bound by the juvenile court's findings, we give them 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.

[¶ 6] The juvenile court specifically recognized the petitioner had to prove beyond a reasonable doubt that Sharon's continued custody of Mandy would likely result in serious emotional or physical damage to Mandy, and the court concluded the petitioner met this burden.

[¶ 7] Barb (Dvorak) Stegmiller is a social worker with Burleigh County Social Services who has been licensed for 16 years and has been involved with Mandy's case for approximately four years. Stegmiller testified Mandy was placed in foster care for several reasons. She testified Mandy had chronic head lice for months and Sharon was not willing to cooperate in alleviating the problem. She testified Sharon was not able to focus on her parental responsibilities and often allowed Mandy, at age 3 or 4, to wander off unsupervised and without Sharon knowing Mandy's whereabouts. Sharon would also forget to feed Mandy or provide other necessary care for Mandy, such as bathing and teeth brushing. Stegmiller testified Sharon would often give away food to others, resulting in inadequate food in the house to properly nourish herself or Mandy. Sharon would also loan her car to others, leaving her without means to transport Mandy to a daycare provider so Sharon could get to her job outside the home.

[¶ 8] Various social workers provided assistance to Sharon in an attempt to enhance her parenting skills. While Mandy was in foster care, Sharon was allowed frequent visitations and they were gradually extended to overnight visitations to facilitate Sharon acquiring the necessary parental skills to care for Mandy. Despite continued problems and slow progress, Mandy was returned to Sharon's home on September 17, 1998. She remained there only until October 5, 1998 when she was again removed from the home and placed in foster care, because Sharon's parenting abilities had not materially improved so as to guarantee Mandy's health and safety. When returned to the home for this trial period, Mandy was not adequately fed. Both Mandy and Sharon developed cases of head lice, and Sharon refused to cooperate with the social worker aides to alleviate the conditions. Stegmiller testified parent aide services were discontinued in February 1999, because Sharon was not willing to work with social workers to develop the skills necessary to provide minimally acceptable care for Mandy. During the summer of 1999, Sharon moved with a boyfriend to Grafton. She did not give the social workers her address, and the agency lost contact with Sharon during the weeks she was away.

[¶ 9] Stegmiller testified Mandy was at risk of physical harm from lack of food and inadequate supervision in Sharon's home and may well have suffered physical harm if she had not been removed from the home and placed in foster care. Stegmiller testified Mandy is a deprived child and the deprivation could result in emotional and physical harm to her.

[¶ 10] Dr. Lisa Hay is a clinical psychologist, who evaluated Sharon in October 1997 and who has provided therapy for Sharon since December 1997. Dr. Hay testified Sharon is of low-average intelligence but when Sharon is operating under stress her functioning drops to a borderline level. She testified Sharon suffers from an adjustment disorder with mixed anxiety and depressed mood with low self-esteem. She testified Sharon finds it very hard to put Mandy's basic needs "ahead of the most immediate thing in front of her." Dr. Hay said she was working with Sharon to build Sharon's self-esteem and in "getting better boundaries so that she didn't get taken advantage of by people so much so easily." Dr. Hay testified Sharon's needs for therapy are long term.

[¶ 11] Dr. Richard Athey evaluated both Sharon and Mandy. Athey is a medical doctor who also has a Ph.D. in physiology and pharmacology and is board certified in adult psychiatry and child adolescent psychology. Dr. Athey testified Mandy "seems to have an attachment to her mother" and it would be beneficial for Mandy if the two could maintain some relationship in the future. However, Dr. Athey also testified Sharon is not capable of taking care of Mandy "without significant services" and there could probably not be enough support services in the community "to where [Mandy] could be with [Sharon] and function adequately." Dr. Athey testified Sharon has not demonstrated an ability to appropriately parent Mandy, and he does not believe Sharon could provide a structured, consistent, and nurturing environment for Mandy. Dr. Athey testified that even if assistance services were provided to Sharon, her inability to parent Mandy would continue long term. He testified the prognosis for Sharon being able to provide adequate parenting in the future is not good and the likelihood of Sharon acquiring significant changes in her parenting skills to meet Mandy's needs "would be pretty slim."

[¶ 12] A parent's fundamental and natural right to her child is of constitutional dimension, but it is not absolute, and a parent must at least provide care that satisfies the minimum community standards. In Interest of L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573. We continue to adhere to our statement that a lack of cleanliness of the home cannot alone establish deprivation. Asendorf v. M.S.S., 342 N.W.2d 203, 207 (N.D.1983). Long term and intensive treatment for a parent is not mandated if it cannot be successfully undertaken soon enough to enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care. In Interest of J.L.D., 539 N.W.2d 73, 77 (N.D.1995).

[¶ 13] Mandy has been in foster care for nearly three and one-half years. She was placed there because Sharon was unable to provide for Mandy's basic needs, including food and adequate supervision. Attempts to educate Sharon and to enhance her parenting skills resulted in failure when Mandy was returned to Sharon's home on a trial basis. At that time, Sharon remained unable or unwilling to stay focused on providing...