In re RO

• Citation: 631 N.W.2d 159,2001 ND 137
• Decision Date: 20 July 2001
• Docket Number: No. 20000307., No. 20000305
• Parties: Interest of R.O., V.O. and J.H. Keith BERGER, Director Grand Forks County Social Services, Petitioner and Appellee, v. F.O., Respondent, and L.H., Respondent and Appellant. Interest of R.O., V.O., and J.H. Keith Berger, Director Grand Forks County Social Services, Petitioner and Appellee, v. F.O., Respondent and Appellant, and L.H., Respondent.
• Court: North Dakota Supreme Court

631 N.W.2d 159

2001 ND 137

Interest of R.O., V.O. and J.H.

Keith BERGER, Director Grand Forks County Social Services, Petitioner and Appellee, v. F.O., Respondent, and L.H., Respondent and Appellant.

Interest of R.O., V.O., and J.H.

Keith Berger, Director Grand Forks County Social Services, Petitioner and Appellee, v. F.O., Respondent and Appellant, and L.H., Respondent.

Nos. 20000305, 20000307.

Supreme Court of North Dakota.

July 20, 2001.

Dale R. Rivard, Special Assistant State's Attorney, Child Support Enforcement Unit, Grand Forks, ND, for petitioner and appellee.

DeWayne Johnston, Olson Johnston Law Office, Grand Forks, ND, for respondent and appellant F.O.

Steven M. Light (on brief), Larivee & Light LTD, Grand Forks, ND, for respondent and appellant L.H SANDSTROM, Justice.

[¶ 1] The father, F.O., and the mother, L.H., separately appeal from a juvenile court order terminating their parental rights to three minor children. We conclude the juvenile court did not err in admitting into evidence the testimony and reports of certain individuals who treated the parents, and there is clear and convincing evidence to warrant termination of the parents' parental rights. We affirm.

I

[¶ 2] The parents became involved with Grand Forks County Social Services in October 1995, with a child protection service report about physical neglect of their unborn oldest child.¹ At that time, child protection services recommended the mother keep the home clean, safe, and sanitary. The oldest child was born in January 1996 and was placed in the care of the Grand Forks Social Service Board. In January 1997, Carol Schneweis, a therapist at Northeast Human Services Center, contacted Social Services about the mother's use of Nuprin while she was pregnant with the parents' second child. When Schneweis visited the home, the mother's face was swollen, and the mother indicated the father had hit her. An assessment report said services were required because of indicators of neglect by the parents. Another child protection report was filed in June 1997, when law enforcement officers stopped the father's vehicle. The second oldest child was with the father in the vehicle, and the officers found marijuana and marijuana paraphernalia belonging to the father in the vehicle.

[¶ 3] In January 1998, Social Services received additional reports of child abuse or neglect by the parents. Social Services investigated the parents' home and documented concerns about the general lack of hygiene:

[T]he kitchen is full of dirty dishes, garbage, and old food. On one occasion there was a pan of vegetables on the stove that appeared to be rancid. Garbage was stacked everywhere and there were dirty diapers on the kitchen floor and on the floor in the childrens' bedroom. Ashtrays within the childrens' reach were piled high with cigarette butts, and the childrens' bedroom was littered with dirty clothes and no path to walk. The sheets in the baby's crib were urine and milk stained and filthy. The carpet is completely stained and the children crawl around on it.

[¶ 4] In April 1998, Social Services received additional reports of suspected child abuse or neglect in the parents' home. After an investigation, an assessment report indicated services were required, based on physical neglect, inadequate supervision, and psychological maltreatment. In August 1998, another assessment report of child abuse or neglect was filed. In October 1998, the Grand Forks Police Department investigated the parents' home for possible child neglect. The investigating officer described the home as extremely cluttered with the distinct smell of human waste.

[¶ 5] During the course of Social Services involvement with the parents, they received treatment from several individuals, including (1) Myron Veenstra, a psychologist at Northeast Human Services Center; (2) Don Newberry, a psychologist at Northeast Human Services Center; (3) Kim Miller, an addiction counselor at Northeast Human Services Center; (4) Vicky Morrissette, a counselor who facilitated a parenting Nurturing Program attended by the parents; and (5) Schneweis.

[¶ 6] A May 28, 1998, petition alleging child deprivation cited numerous formal reports of alleged child abuse or neglect against the parents since September 1995. In December 1998, based on a stipulation of the parents, the juvenile court found the children were deprived and placed them in the custody of the Director of the Grand Forks County Social Service Center for 18 months. In August 1999, the State petitioned to terminate the parents' parental rights, alleging numerous incidents and reports of alleged child abuse or neglect.

[¶ 7] During a March 2000 trial, the State sought to introduce into evidence the testimony and reports of Veenstra, Newberry, Miller, Morrissette, and Schneweis. The court initially sustained the parents' objections under N.D.R.Ev. 503 to the admission of testimony and reports of Veenstra, Newberry, and Morrissette and overruled the parents' objection to the admission of testimony of Schneweis. The parents also objected to Miller's report and testimony under federal law and Jane H. v. Rothe, 488 N.W.2d 879 (N.D.1992). The court indicated it would review Miller's records before ruling on the objection, and Miller did not testify further at the March trial.

[¶ 8] The trial was continued for several months, and during the continuance, the State moved for admission of the testimony and reports of Veenstra, Newberry, Morrissette, and Miller under N.D.C.C. § 50-25.1-10. The court decided to allow the State to introduce the reports and testimony of those witnesses. After a further hearing, the court terminated the parents' parental rights to their children, finding the children were deprived, the deprivation was likely to continue, and the children would suffer serious mental and emotional harm if the parents' parental rights were not terminated. The court also decided the children had spent 634 out of the previous 660 days in foster care, and the parents' parental rights could be terminated under N.D.C.C. § 27-20-44(1)(b)(2), which authorizes termination of parental rights when a child has spent 450 days out of the previous 600 days in foster care. The parents appealed.

[¶ 9] The juvenile court had jurisdiction under N.D.C.C. §§ 27-20-02(11) and 27-20-03(1)(b). The appeals are timely under N.D.C.C. § 27-20-56(1), N.D.R.App.P. 4(a), and B.R.T. v. Executive Dir. of Soc. Serv. Bd., 391 N.W.2d 594, 597 (N.D.1986). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 10] A juvenile court may terminate parental rights if the court finds a child is deprived; if the conditions and causes of the deprivation are likely to continue or will not be remedied; and, if the child is suffering, or in the future will probably suffer, serious physical, mental, moral, or emotional harm. N.D.C.C. § 27-20-44(1)(b). See In Interest of A.S., 1998 ND 181, ¶ 15, 584 N.W.2d 853

; In Interest of L.F., 1998 ND 129, ¶ 10, 580 N.W.2d 573. The State must prove the elements for termination by clear and convincing evidence. A.S., at ¶ 15; L.F., at ¶ 10.

[¶ 11] We review a juvenile court's decision to terminate parental rights in a manner similar to a trial de novo. A.S., 1998 ND 181, ¶ 13,584 N.W.2d 853; L.F., 1998 ND 129, ¶ 12,580 N.W.2d 573. We review the "files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." N.D.C.C. § 27-20-56(1). Although our review is similar to trial de novo, we give deference to the juvenile court's decision because the court had the opportunity to observe the candor and demeanor of the witnesses. A.S., at ¶ 13; L.F., at ¶ 12.

III

A

[¶ 12] The parents argue the juvenile court erred in admitting into evidence the testimony and reports of the individuals involved with the parents' treatment. The parents argue the reports and testimony were inadmissible under the physician-patient and psychotherapist-patient privilege in N.D.R.Ev. 503, and N.D.R.Ev. 503 is not abrogated by N.D.C.C. § 50-25.1-10.

[¶ 13] Under N.D.R.Ev. 402, "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States or the State of North Dakota, by any applicable Act of Congress, by statutes of North Dakota, by these rules, or by other rules adopted by the Supreme Court of North Dakota." Rule 501, N.D.R.Ev., says except as otherwise provided by constitution, statute, or these rules or other rules promulgated by the North Dakota Supreme Court, no person has a privilege to refuse to be a witness, or to refuse to disclose any matter. Rule 503(b), N.D.R.Ev., authorizes a patient to prevent any person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition, including alcohol or drug addiction.

[¶ 14] Chapter 50-25.1, N.D.C.C., outlines a procedure for reporting child abuse or neglect, and protects persons making and investigating the reports. Section 50-25.1-01, N.D.C.C., recognizes the purpose of Chapter 50-25.1 is to encourage reports about children who are known to be, or suspected of being, abused or neglected. Chapter 50-25.1, N.D.C.C., generally identifies persons, including mental health professionals and addiction counselors, who are required or permitted to report knowledge or incidents of known or suspected child abuse or neglect, see N.D.C.C. § 50-25.1-03; specifies the methods of reporting, see N.D.C.C. § 50-25.1-04; identifies the procedures for assessment of any report of child abuse or neglect, see N.D.C.C. § 50-25.1-05; and outlines the procedures for determining and implementing services required for abused or neglected children. See N.D.C.C. § 50-25.1-05.1. Under N.D.C.C. § 50-25.1-11(6), all reports of suspected child abuse or neglect are confidential and must be made available...