In re TK

• Decision Date: 10 July 2001
• Docket Number: No. 20000328, No. 20000329.
• Citation: 2001 ND 127,630 N.W.2d 38
• Parties: In the Interest of T.K., a Minor Child. Lonnie Olson, Ramsey County State's Attorney, Petitioner and Appellee, v. T.K., and his parents, M.F. and M.K., and his guardian ad litem, Sharon Hendrickson, Respondents, M.F., Respondent and Appellant. In the Interest of D.F., a/k/a D.K., a Minor Child. Marlys K. Joramo, LSW, Petitioner and Appellee, v. D.F., a/k/a/ D.K., and his guardian ad litem, Sharon Hendrickson, and his parents, M.F. and M.K., Respondents, M.F., Respondent and Appellant.
• Court: North Dakota Supreme Court

630 N.W.2d 38

2001 ND 127

In the Interest of T.K., a Minor Child.

Lonnie Olson, Ramsey County State's Attorney, Petitioner and Appellee, v. T.K., and his parents, M.F. and M.K., and his guardian ad litem, Sharon Hendrickson, Respondents, M.F., Respondent and Appellant.

In the Interest of D.F., a/k/a D.K., a Minor Child.

Marlys K. Joramo, LSW, Petitioner and Appellee, v. D.F., a/k/a/ D.K., and his guardian ad litem, Sharon Hendrickson, and his parents, M.F. and M.K., Respondents, M.F., Respondent and Appellant.

Nos. 20000328, 20000329.

Supreme Court of North Dakota.

July 10, 2001.

Lonnie Olson, State's Attorney, Devils Lake, for petitioners and appellees; submitted on brief.

Coral Joan Mahler, Sheyenne, for respondent and appellant; submitted on brief.

MARING, Justice.

[¶ 1] M.F. ("Mary")¹ appealed from orders terminating her parental rights to her children, T.K. ("Tim") and D.F. ("David"). 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 Mary's parental rights are not terminated. We affirm.

I

[¶ 2] On appeal, Mary asserts the State has failed to prove the three elements for parental termination by clear and convincing evidence and the trial court, therefore, erred in terminating her parental rights. Under N.D.C.C. § 27-20-44(1)(b)(1) a 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. The party seeking parental termination must prove all elements by clear and convincing evidence. In re D.N., 2001 ND 71, ¶ 2, 624 N.W.2d 686. 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, giving appreciable weight to the findings of the juvenile court. Id. Although 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. In re M.S., 2001 ND 68, ¶ 5, 624 N.W.2d 678.

II

[¶ 3] Mary, now age 24, gave birth to Tim on October 13, 1997. Tim's natural father M.K. ("Mike"),² now age 33, has had an on-going relationship with Mary, but the two are not married. Mary and Mike have had a very violent, chaotic relationship in which each has often physically abused the other, resulting in each receiving cuts, bruises, and other injuries, sometimes requiring emergency medical attention.

[¶ 4] When Tim was ten months old he sustained a fractured skull when Mary fell while holding him. Mary took Tim for emergency treatment. The doctor examined Tim and determined Tim's development was substantially delayed. He diagnosed Tim as suffering from a failure to thrive, generally indicating the child lacked stimulation from caregivers, and, because the child had not been held enough or nurtured sufficiently, his development was many months behind a normally developing child. Subsequent examinations have revealed that Tim suffers from a brain abnormality, with possible retardation, and he is a special needs child.

[¶ 5] In August 1998, the juvenile court determined Tim was a deprived child, based upon evidence of Tim's developmental delay and on evidence showing the parents' on-going domestic violence and abuse created an atmosphere placing Tim at risk of harm. For example, there was evidence Mary, while angry at Mike, attempted to ram him with the baby stroller while Tim was sitting in it. There was also evidence that Mike fed Tim a small amount of alcohol and blew marijuana smoke in Tim's face to see how the infant would react. Legal custody was placed with Ramsey County Social Services. Mary was allowed to have physical custody of Tim, but she was ordered to undergo a psychological evaluation. Mary and Mike were also ordered to cooperate with the assistance programs offered by social services personnel to improve Mary and Mike's parenting skills and to provide Tim with a more stable and secure living environment.

[¶ 6] The juvenile court placed Tim in foster care on October 13, 1998, and the judicial referee made the following relevant findings on November 4, 1998:

After the August hearing the Early Headstart and Parent Aide programs were put into place. Attempts were also made to have [Mary] become involved with services at the Human Service Center to deal with her anger control. At this point none of these programs have really gotten underway, as [Mary] does not see any need to change her behaviors and although she has attended, she has not really participated in the Parent Aide program or in the Early Headstart program. Regardless of what [Mary's] intent is in regards to these programs, the fact is that over the past three months no progress has been made.

....

[I]n this case the child has special needs which the child's mother is not able to meet at this time given the nature of the needs and the age of the child, time is of the essence. The risk of irreparable damage to the child if his needs are not addressed in a timely manner, is such that to return him to his home, without reasonable expectations that [Mary] will be willing and/or able to take the steps necessary to address her child's developmental delays, would be irresponsible. Even if [Mary] fully intends to cooperate in these efforts, the evaluation report indicates that until she addresses her own issues, she does not have the ability to do so.

[¶ 7] Mary and Mike's tumultuous and abusive relationship continued. Several protection orders were sought and entered against each of the parties to stay away from the other and those were often violated. In January 1999, Mary was sentenced to prison for six months for violating a protection order. Tim's custody with Ramsey County Social Services was extended, and he remained in foster care. In the meantime, Mike was incarcerated on a burglary conviction. In addition to that conviction, Mike has convictions for forgery and theft. The evidence also shows that Mike has struggled with alcohol and drug addictions and has relapsed on several occasions after receiving treatment.

[¶ 8] In July 1999, the juvenile court again extended Tim's custody with Ramsey County Social Services, making the following relevant findings:

[Mary] was required to work with Ramsey County Social Services in an effort to help her develop the skills necessary to meet the child's special needs. Around the first of the year [Mary] was incarcerated at James River. She was released on June 26, 1999. As a result the reunification plan was not implemented and the deprivation issues remain unresolved.

....

Reasonable efforts have been made to prevent or eliminate the need to remove [Tim] from his home, but these efforts have as of yet been unsuccessful. To return or continue the child in his home at this time would be contrary to the child's welfare.

[¶ 9] Despite Mary and Mike's violent and abusive relationship, Mary again became pregnant with his child.³ In January 2000, Tim's custody with Ramsey County Social Services was again extended for six months, and the judicial referee made the following relevant findings:

[Mary] has continued in a counseling program at the Human Service Center where progress has been "sporadic". There has been progress with parenting and nurturing skills, but there continues to be a concern regarding her judgment and impulsive behaviors, particularly in regards to the child's father, [Mike].

....

Based upon their experience with [Mary] and the report from her psychological evaluation, the concerns of Social Services and [Mary's] counselor are that when it comes to [Mary's] relationship with [Mike], that becomes the primary focus of [Mary] and the needs of her child come second. Given the special needs of the child and [Mike's] failure to address his domestic violence and chemical usage problems, it is especially necessary that [Mary] be committed to putting the child's needs above her relationship problems with [Mike].

[Mary] maintains that she has discontinued her relationship with [Mike], yet she acknowledges that she is pregnant with his child and visits with him twice weekly, when possible, at the jail where he is incarcerated. Her statements are not consistent with her actions.

....

Reasonable efforts have been made to prevent or eliminate the need to remove [Tim] from his home, but these efforts have as of yet been unsuccessful. To return or continue the child in his home at this time would be contrary to the child's welfare.

[¶ 10] Mary gave birth to David on March 18, 2000. David was removed from Mary's home on June 1, 2000 after Mike reported Mary had "plopped" the child roughly onto the couch and had on several occasions threatened to throw the baby against the wall. By order of the court on September 8, 2000, David was adjudicated a deprived child and was placed in the custody of Ramsey County Social Services for placement in foster care.

[¶ 11] In October 2000, petitions were filed to terminate both Mary and Mike's parental rights to Tim and David. After a trial on the merits, the court granted the petitions terminating Mary and Mike's parental rights to these children, making the following relevant findings and conclusions:

[Tim] was adjudicated a deprived child on August 12, 1998.

....

[David] was adjudicated a deprived child on August 9, 2000. The deprivation was based on the continuing domestic violence between [Mary] and [Mike]. An aspect of the domestic violence between the parties in this action was that on occasion [Mary] would threaten to

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