In The Interest Of R.S v. A.D.S

• Decision Date: 17 August 2010
• Docket Number: No. 20100036.,20100036.
• Citation: 2010 ND 147,787 N.W.2d 277
• Parties: In the Interest of R.S., a Child.Jacqueline A. Gaddie, Assistant State's Attorney, Petitioner and Appelleev.A.D.S., (Mother), J.L.P., (Father), Grand Forks County Social Service Center, RespondentsA.D.S., (Mother), Appellant.
• Court: North Dakota Supreme Court

787 N.W.2d 277

2010 ND 147

In the Interest of R.S., a Child.Jacqueline A. Gaddie, Assistant State's Attorney, Petitioner and Appelleev. A.D.S., (Mother), J.L.P., (Father), Grand Forks County Social Service Center, RespondentsA.D.S., (Mother), Appellant.

No. 20100036.

Supreme Court of North Dakota.

Aug. 17, 2010.

Jacqueline A. Gaddie (appeared), Assistant State's Attorney, and Abby Gratz (argued), appearing under the Rule on the Limited Practice of Law by Law Students, Grand Forks, ND, for petitioner and appellee.

Mark T. Blumer (argued), Valley City, ND, for appellant.

KAPSNER, Justice.

[¶ 1] A.D.S. appeals from a juvenile court order finding her child, R.S., is deprived and placing R.S. in the custody of Grand Forks County Social Services for twelve months. We hold the juvenile court's finding that R.S. is a deprived child is clearly erroneous because it is unsupported by evidence, and we reverse the juvenile court's order for disposition.

I.

[¶ 2] R.S. was born in 2008. On July 20, 2009, A.D.S., who was then seventeen years old, was placed in the custody of social services. The record does not disclose the reason for the placement. A.D.S.'s parents agreed that she and R.S. would live with A.D.S.'s father in Fargo. On August 12, 2009, A.D.S. absented from her father's house with R.S. Social services did not know the location of A.D.S. and R.S. until September 3, 2009, when police found them at the home of A.D.S.'s mother's boyfriend in East Grand Forks, Minnesota.

[¶ 3] Also on September 3rd, social services petitioned for temporary custody of R.S., alleging that he was deprived. After a shelter care hearing, the juvenile court issued a temporary custody order on September 4, 2009 placing R.S. in the custody of social services for no more than sixty days. The juvenile court also appointed Lloyd Rath as guardian ad litem. Social services initially placed A.D.S. and R.S. in separate foster homes, but the mother and son were reunited in the same foster home within a week.

[¶ 4] On October 8, 2009, the State petitioned the juvenile court to find R.S. was a deprived child under N.D.C.C. § 27-20-02(8)(a) and to place R.S. under the care, custody, and control of social services. The petition alleged R.S. was deprived because:

[A.D.S.] put herself at risk and [R.S.] at risk when she absented with him from her father's home on August 12, 2009. Additionally, living with her father, [A.D.S.] was cited for unruly behavior on July 25, 2009, and was placed in attendant care removing her from [R.S.].

During the Shelter Care Hearing on September 4, 2009, [A.D.S.] refused to reveal where she and [R.S.] were staying during her absence and there were concerns as to whom she was with. During the hearing, [A.D.S.] stated that she relied on others to care for [R.S.] and that the ability of the individuals she relied on to care for [R.S.] was unknown. [A.D.S.] indicated that she wanted [R.S.] placed with his father ... and [paternal grandmother] if she was placed in detention. [A.D.S.] has previously stated that [R.S.'s father and grandmother] would not be appropriate caregivers for [R.S.] due to their use of drugs. Therefore, [A.D.S.] is not making decisions in [R.S.'s] best interest.

After an extension of the order placing temporary custody of R.S. with social services, the juvenile court held an evidentiary hearing on the deprivation petition in December 2009.

[¶ 5] At the hearing, Jacki Lund, a licensed social worker, testified she became involved with A.D.S.'s family in June 2008, when A.D.S. was pregnant with R.S. Lund stated social services petitioned for temporary custody of R.S. “based on the fact that I felt that [A.D.S.] had put both herself and [R.S.] into danger by absenting and we did not know where she was.” Lund testified she believed R.S. was deprived because A.D.S.'s poor decisions negatively affect R.S. Specifically, Lund cited A.D.S.'s failure to regularly attend school, abide by social services' rules, or consistently inform social services of her and R.S.'s whereabouts. In conclusion, Lund stated: “I've got a 17 year old juvenile who has a 17 month old baby. And the 17 year old ... is making poor choices for herself which affects [R.S.'s] future.”

[¶ 6] R.S.'s guardian ad litem, Rath, testified he has been involved with A.D.S.'s family since she was in eighth grade, when a deprivation petition was filed against A.D.S.'s mother. Rath testified A.D.S. “makes pretty bad decisions for her own life that eventually [are] going to affect [R.S.' s] life....” However, Rath stated he does not believe R.S. is presently a deprived child. Rath testified: “I don't think this hearing is about, I know that it's a filed [petition] that [R.S. is] a deprived child and that [social services] want custody, I don't think this is really about [R.S.]. I think it's about his mother's decisions that she makes.”

[¶ 7] The juvenile court found R.S. was deprived and ordered he be placed in the custody of social services for twelve months beginning September 3, 2009. In its oral findings, the juvenile court stated:

This is a difficult case. The Court-[A.D.S.] has made some good decisions, I think she's been involved with the child with parenting, getting some counseling. The issue here is is [R.S.] deprived under the statute. And I think that's really what we look at, what's the statutory definition of deprived. And the issue is whether the child's without proper parental care and control, subsistence necessary for the child's physical, mental, or emotional health or morals, and the deprivation is not due primarily to finances. So it is a, it is evidence of how the child is doing but it's also, the issue is is the parent capable of providing for their child at this time.

The evidence here is that the, that [A.D.S.] while in the custody of social services absconded and was, and had the one year old child with her at that time and the custodian, social services, didn't know where she was, didn't know who she was with, didn't know what sort of care the child was receiving. Apparently the child was doing okay, because when the, when the child was brought back into the care of social services, the child looked well. And that's what Mr. Rath testified to, that's what the Guardian ad Litem, that's what the social services worker Ms. Lund testified to, that [R.S.] looked well, he was happy, healthy, and clean and cared for.

The issue, though, is the, is [A.D.S.] capable of caring for the child at this time to provide for the child's needs. The testimony here is that she is with a foster family at this time and, and with the foster family the child is being taken care of and doing well. However, there's continued testimony today that when she's in foster care under the control of social services that they still don't know, you know, where she is significant periods of time. When she's supposed to be going to class, she's not in class. When she's-they don't know where she is. The issue then is is that being a responsible parent. We have an issue of a 17 year old who, the custodian, whether it's a parent or in this case social services, needs to know what activity she's involved with and is [R.S.] being taken care of. So the issue at this point is, is when she's in, when [A.D.S.'s] in the custody of social services and is in foster care and the child is in custody of social services and being placed with [A.D.S.] in foster care, whether, whether the child is without proper parental care and control of [A.D.S.].

The Court after analyzing all of this and according to the statute, the Court finds by clear and convincing evidence that, that the child is not with proper parental care and control. Because of the situation the child is with supervision of a foster family, is with supervision of social services and even under those strict guidelines that there is still not, there's still not ability to follow the rules. And that's really what this case kind of involves is, you know, following the rules, to follow the rules of being a better, of being a parent that's capable of caring for your child.

So I believe that there's some positive steps that have been made here. I think the child is physically being cared for by, by foster parents and [A.D.S.] together, but I don't believe that under the statute-I think the [State] has shown that under the statute that the, that the focus here is [A.D.S.] providing proper parental care and control. And it's been shown, as I said before, and I don't want to repeat myself but it's been shown here I believe by clear and convincing evidence that she's not providing for proper parental care and control and doing the things she needs to do to care for the child.

The juvenile court's written findings stated R.S. is a deprived child because of poor decisions made by A.D.S. on behalf of R.S., including her failure to inform social services of her and R.S.'s whereabouts after she left her father's home. The juvenile court stated there were ongoing concerns about R.S.'s care and control.

II.

[¶ 8] A.D.S. argues the juvenile court erred in finding R.S. is a deprived child under N.D.C.C. § 27-20-02(8)(a), which provides:

8. “Deprived child” means a child who:

a. Is 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.

The phrase “proper parental care” refers to the minimum standard of care which the community will tolerate. Interest of K.R.A.G., 420 N.W.2d 325, 327 (N.D.1988). A child may be deprived even though the child has been receiving adequate care from a source other than the parent. Interest of T.J.O., 462 N.W.2d 631, 633 (N.D.1990).

[¶ 9] The petitioner must establish deprivation by clear and convincing evidence. In re B.B., 2008 ND 51, ¶ 6, 746 N.W.2d 411. “Clear and...