In re WE, No. 20000078-20000080.
| Decision Date | 07 December 2000 |
| Docket Number | No. 20000078-20000080. |
| Citation | 2000 ND 208,619 N.W.2d 494 |
| Parties | In the Interest of W.E. and D.S., Children. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.E., W.E., D.S., and Mervin Nordeng, Guardian ad Litem, Respondents; S.E., Respondent and Appellant. In the Interest of D.S., a Child. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, A.K., S.E., D.S., and Mervin Nordeng, Guardian ad Litem, Respondents; S.E., Respondent and Appellant. In the Interest of W.E., a Child. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.E., G.E., W.E., and Mervin Nordeng, Guardian ad Litem, Respondents; S.E., Respondent and Appellant. |
| Court | North Dakota Supreme Court |
Constance L. Cleveland, Assistant State's Attorney, Fargo, ND, for petitioner and appellee.
Steven D. Mottinger, Fargo, ND, for appellant.
[¶ 1] S.E. appeals from an East Central Judicial District Juvenile Court order terminating her parental rights. Concluding the evidence was not sufficiently clear and convincing to satisfy the requirements for termination of S.E.'s parental rights, we reverse.
[¶ 2] S.E., a mildly retarded, 22-year-old woman, is the mother of two special-needs children. Her older son was admitted to treatment for aggressive and unruly behavior and was not returned to his mother prior to the termination hearing. Based on the recommendation of social services, her younger son was placed under the legal custody of Cass County Social Services. After he suffered a burn, allegedly inflicted by S.E. as punishment, he was taken from his mother and placed in protective custody. S.E. and social services agreed on a detailed service and treatment plan regarding the younger son's care. Although the younger son was later returned to her care, S.E. did not comply with the terms of the plan, and petitions for termination of parental rights were filed based on the affidavits of social worker Nancy Pillen.
[¶ 3] The older son's father did not respond to the petition, but the younger son's father consented to the termination of his parental rights. The referee held that the older son's father had abandoned him, the children were deprived, S.E. lacked parental abilities, and the children would suffer harm if the parental rights were not terminated. Therefore, the referee recommended termination of S.E.'s parental rights to both children. S.E. requested judicial review, and the district judge affirmed the referee's findings of fact and conclusions of law and adopted the recommendation. See N.D. Sup.Ct.Admin. R. 13.
[¶ 4] S.E. appeals, arguing the court erred in removing the children from the family home and in finding deprivation is likely to continue. At trial, S.E. offered the testimony of members of a church she had joined shortly after termination of parental rights was sought. The church members vowed support to S.E. and her children. S.E. argues the children would not continue to be deprived. The State argues the trial testimony and evidence presented were sufficient to affirm the decision of the judicial referee.
[¶ 5] The juvenile court had jurisdiction to terminate S.E.'s parental rights. N.D.C.C. § 27-20-03(1)(b). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 27-20-56(1).
[¶ 6] When reviewing an order terminating parental rights, 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. "Although the review is similar to trial de novo, we give deference to the juvenile court's decision, because that court has had the opportunity to observe the candor and demeanor of the witnesses." In the Interest of D.F.G., 1999 ND 216, ¶ 12, 602 N.W.2d 697 (citing In the Interest of A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853; N.D.C.C. § 27-20-56(1)).
[¶ 7] Absent abandonment or consent, termination of parental rights requires satisfaction of a three-part test. N.D.C.C. § 27-20-44(1)(b); D.F.G., 1999 ND 216, ¶ 11, 602 N.W.2d 697. To terminate parental rights, the State must prove by clear and convincing evidence (1) the child is deprived, (2) the conditions and causes of the deprivation are likely to continue, and (3) the child is suffering, or will in the future suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27-20-44; D.F.G., 1999 ND 216, ¶ 11, 602 N.W.2d 697 (citing A.S., 1998 ND 181, ¶ 15, 584 N.W.2d 853).
[¶ 8] Are the children deprived? A deprived child is "one 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.'" D.F.G., 1999 ND 216, ¶ 13, 602 N.W.2d 697 (citing A.S., 1998 ND 181, ¶ 16, 584 N.W.2d 853; N.D.C.C. § 27-20-02(5)(a)). S.E. concedes her sons were deprived; therefore, deprivation is not an issue on appeal.
[¶ 9] Are the conditions and causes of the deprivation likely to continue? N.D.C.C. § 27-20-44(1)(b). Although she had not complied with a proposed social services support plan, S.E. argues her new church and its members comprise a "fully sustained support system" that will assist her with her parental obligations. S.E. argues the testimony of members of her church establishes that deprivation is not likely to continue. She argues the juvenile court did not offer her the opportunity to take advantage of her new support system to provide further evidence that deprivation is not likely to continue. The petitioner argues the long-term mental health problems of the children and S.E. "create a circumstance where deprivation is likely to continue."
[¶ 10] Evidence of past deprivation, although a factor to consider, is not sufficient to terminate parental rights. D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697 (citing In the Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573). Prognostic evidence is required to determine deprivation is likely to continue. Id. (citing In the Interest of J.L.D., 539 N.W.2d 73, 77 (N.D. 1995)). The State argues the testimony of three mental health professionals establishes that the mental health problems are chronic and therefore deprivation will continue.
[¶ 11] The first mental health professional to testify at trial was Norman Begnoche, a neuropsychologist. Begnoche testified he diagnosed S.E. as being mildly mentally retarded, but capable of caring for two children with family or social services support. Begnoche completed the first parental capacity evaluation of S.E. Nancy Pillen, a social worker, testified that following Begnoche's evaluation, Jan Witte-Bakken was commissioned by social services to complete a second parental capacity evaluation of S.E. Pillen testified Begnoche's evaluation
[¶ 12] Witte-Bakken, a licensed psychologist, used Begnoche's evaluation and three meetings with S.E. to complete a second parental capacity evaluation. Witte-Bakken did not address the ultimate issue of termination of parental rights, nor did she evaluate S.E.'s two sons. Witte-Bakken testified S.E.'s home was appropriately furnished, S.E. was able to get the children to school, and S.E.'s home posed no safety hazards for the children.
[¶ 13] Witte-Bakken last evaluated S.E. in April of 1999, and the termination hearing began on December 17, 1999. Witte-Bakken testified she made numerous specific recommendations for social services intervention and those recommendations should have been completed "if the plan was to be returning the children."
[¶ 14] Pillen initiated the petition to terminate S.E.'s parental rights subsequent to this second parental capacity evaluation. Pillen testified she did not follow Witte-Bakken's specific recommendations because social workers had previously attempted or completed services similar to those recommended by Witte-Bakken.
[¶ 15] After seeking a second parental capacity evaluation and concluding the recommendations had already been addressed, Pillen testified her agency resisted a third parental capacity evaluation. Pillen testified the children needed stability and the social work agency had nothing further to offer.
[¶ 16] Finally, licensed psychologist Kevin Schumacher testified. Schumacher evaluated both boys, but did not evaluate S.E. Schumacher stated he had no basis for an opinion about whether S.E. could care for her sons, but he suggested, with a support network and cooperation, she could. [¶ 17] We conclude that the testimony of Begnoche, Witte-Bakken, and Schumacher does not establish, by clear and convincing evidence, that deprivation was likely to continue.
[¶ 18] The remaining testimony does not support a finding that deprivation was likely to continue. In addition to the three mental health professionals, eleven witnesses testified at trial.
[¶ 19] Teneshia Poue, an employee of Community Living Services, testified she worked with S.E. for several months. Poue testified S.E.'s house was tidy and well-kept and S.E. was cooperative and open to receiving services. Poue observed S.E. interact with her younger son and was not concerned that he was in danger or that S.E. was incapable of caring for him.
[¶ 20] Steve Jortstad, a social worker case manager for Community Living Services, testified he supervised Poue and at times S.E. was not fully cooperative. Jortstad also testified, however, that S.E. "has done everything we have asked" in regard to improving the management of her personal finances. He testified S.E. had improved her skills in the three months preceding the termination hearing.
[¶ 21] Amy Simmel, a child care provider at the YMCA, testified she was...
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