In re TT, 20030266.

• Decision Date: 30 June 2004
• Docket Number: No. 20030266.,20030266.
• Citation: 2004 ND 138,681 N.W.2d 779
• Parties: In the Interest of T.T., a child. Nancy D. Yon, Assistant State's Attorney, Petitioner and Appellee v. J.T. (Father), Respondent and Appellee. M.B. "B." D. (Mother), Respondent and Appellant.
• Court: North Dakota Supreme Court

681 N.W.2d 779

2004 ND 138

In the Interest of T.T., a child.

Nancy D. Yon, Assistant State's Attorney, Petitioner and Appellee v. J.T. (Father), Respondent and Appellee.

M.B. "B." D. (Mother), Respondent and Appellant.

No. 20030266.

Supreme Court of North Dakota.

June 30, 2004.

Dale Richard Rivard, Assistant State's Attorney, Grand Forks, ND, for petitioner and appellee.

Ronald I. Galstad (appeared) and Patti J. Jensen (on brief), Galstad, Jensen & McCann, PA, East Grand Forks, MN, for respondent and appellee.

Steven Kraft (argued), and Patrick Morley (on brief), Morley Law Firm, Ltd., Grand Forks, ND, for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] The mother of a ten-year-old child appeals from juvenile court orders finding the child was deprived and placing legal custody of the child with the Department of Human Services and physical custody with the mother. We hold the juvenile court's finding there is clear and convincing evidence the child is deprived is not clearly erroneous. We affirm.

I

[¶ 2] The mother and the father of the child were divorced in December 1998. Since 1998, there have been many disagreements between the parents regarding child custody and visitation. This record reflects significant involvement with the family by social services, the police department, the courts, and other professionals since 1998. On April 1, 2003, the State filed a deprivation petition, alleging the child was deprived under N.D.C.C. § 27-20-02(8)(a) because of parental alienation and exposure to adult conflicts from the parents' divorce. The father admitted the child was deprived and alleged the mother had intentionally and willfully engaged in a pattern of conduct that alienated the child from him.

[¶ 3] After an adjudicatory hearing, the juvenile court ruled the child was deprived, finding both parents were guilty of parental alienation, which resulted in the child's suffering psychologically and emotionally. The court found the child had had no contact with the father for six months, and it was highly unlikely the mother would cooperate to stop the alienation or to foster the child's relationship with the father. After a dispositional hearing, the court ordered the child placed in the care, custody, and control of the Department of Human Services, but allowed the child to remain with his mother unless the Department deemed it necessary to remove the child from the mother's home. The court ordered the child's guardian ad litem to take an active part in facilitating visitation, authorized the Department to establish ground rules for visitation, and ordered the mother and father to participate in individual therapy to establish a level of cooperation and respect for one another to promote the best interests of the child. The court authorized the Department to seek removal of the child from the mother's home if the parties participated in alienating behavior, or if the child resisted visitation with the father. The mother appealed.

[¶ 4] The juvenile court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-20-02(12) and 27-20-03(1). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 5] The juvenile court has exclusive jurisdiction over proceedings in which a child is alleged to be deprived. N.D.C.C. § 27-20-03(1)(a); Interest of D.R.J., 317 N.W.2d 391, 393 (N.D.1982). Section 27-20-02(8)(a), N.D.C.C., defines a deprived child as a child 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." A juvenile court's finding of deprivation must be supported by clear and convincing evidence. Interest of R.K., 2002 ND 111, ¶ 6, 646 N.W.2d 699. Effective March 1, 2004, N.D.R.Civ.P. 52(a) was amended to provide that findings of fact in juvenile matters shall not be set aside unless clearly erroneous. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous view of the law. Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256. Under N.D.R.Civ.P. 52(a), we give due regard to the juvenile court's opportunity to judge the credibility of witnesses. If the juvenile court finds a child is deprived, the court may order an appropriate disposition under N.D.C.C. § 27-20-30.

III

[¶ 6] The mother argues significant errors of law during this proceeding affected the outcome of the case and violated her and the child's constitutional rights.

A

[¶ 7] The mother argues the time lapse between the filing of the deprivation petition on April 1, 2003, and the deprivation hearing on June 18, 2003, violated the thirty-day requirement of N.D.C.C. § 27-20-22 and denied her due process and equal protection.

[¶ 8] This record does not establish the mother raised this issue in the juvenile court, and she may not raise it for the first time on appeal. Interest of R.O., 2001 ND 137, ¶ 19, 631 N.W.2d 159 (issues not raised in juvenile court, even constitutional issues, generally will not be addressed on appeal); Interest of A.G., 506 N.W.2d 402, 403-04 (N.D.1993) (issues not raised in juvenile court cannot be raised on appeal). Moreover, N.D.C.C. § 27-20-22(1) provides "[e]xcept as otherwise provided in this subsection, the hearing may not be later than thirty days after the filing of the petition," but "[t]he court may extend the time for hearing for good cause shown." Here, the time lapse between the filing of the deprivation petition and the hearing was precipitated, in part, by demands for change of judge by both the mother and the father. Without any objection by the mother, the court proceeded with the deprivation hearing, effectively finding good cause for the delay.

B

[¶ 9] The mother argues the juvenile court erred in allowing issues from a divorce-related child custody proceeding to be mixed with issues about deprivation. The mother argues her "motion made at the foot of the divorce judgment for a modification of the father's visitation rights was referred by the District Court to the Juvenile Court Judge who was presiding over the deprivation matter," and "[t]he Juvenile Court judge in fact made the decision on the motion for a visitation modification just before she began the hearing on deprivation." The mother argues the juvenile court allowed the admission into evidence of the district court's memorandum decision in the child custody proceeding, clearly mixing the child custody proceeding and this deprivation petition. She also argues the father's attorney improperly participated in the juvenile court proceeding by offering no defense to the allegations against him and, instead, acting as a de facto co-counsel for the State and calling his witness as part of the State's case.

[¶ 10] Under N.D.C.C. § 27-20-03(1), a juvenile court has exclusive jurisdiction over proceedings in which a child is alleged to be deprived. Hearings under N.D.C.C. ch. 27-20 must be conducted by the court separately from proceedings not within the jurisdiction of the juvenile court. N.D.C.C. § 27-20-24(1). This Court has said it is improper to combine a deprivation hearing with a hearing on a motion to modify a divorce decree. Interest of T.M.M., 267 N.W.2d 807, 809-10 (N.D. 1978). Although a juvenile court does not have jurisdiction over divorce-related custody proceedings, a juvenile court need not operate in a vacuum and may take judicial notice of orders in other proceedings. See Interest of K.S., 2002 ND 164, ¶ 9, 652 N.W.2d 341.

[¶ 11] The mother has provided no citations to this record to establish the juvenile court decided a motion for modification of visitation in conjunction with the adjudicatory hearing in the deprivation proceeding. Rather, this record reflects the custody proceeding was conducted separately from the adjudicatory hearing in the deprivation proceeding. See Interest of E.J.H., 546 N.W.2d 361, 363 n. 2 (N.D. 1996); Interest of T.M.M., 267 N.W.2d at 809-12.

[¶ 12] The district court's memorandum decision in the custody and visitation proceeding, which was admitted into evidence in this proceeding, said the court would defer ruling on visitation issues until the deprivation proceeding was resolved. Although the mother argues the juvenile court erred in admitting into evidence the district court's memorandum decision in the custody and visitation proceeding, the juvenile court denied the State's request to take judicial notice of the entire file in the divorce proceeding but did take judicial notice of adjudications in that file. Rule 201, N.D.R.Ev., authorizes a court to take judicial notice of adjudicative facts which are not subject to reasonable dispute if the facts are either (1) generally known within the territorial jurisdiction of the court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. A juvenile court may take judicial notice of orders in prior proceedings. See N.D.R.Ev. 201. See also Interest of K.S., 2002 ND 164, ¶ 9, 652 N.W.2d 341. We reject the mother's argument the juvenile court erred in admitting into evidence the district court's memorandum decision in the divorce proceeding.

[¶ 13] The father was a named party in this deprivation proceeding, and we reject the mother's claim he improperly participated in this proceeding as a de facto co-counsel for the State. At the beginning of the adjudicatory hearing, the following colloquy occurred:

[ASSISTANT STATE'S ATTORNEY]: Your Honor, one last issue before I call my witnesses. Dr. [Stephen] Timm is present this morning, is a witness of [the father's]. [The father's couns

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