In the Interest of K.B. v. N.M.

• Decision Date: 11 August 2011
• Docket Number: 20110094,20110093,Nos. 20110092,20110095.,s. 20110092
• Parties: In the Interest of K.B., a Child.Cass County Social Service Center, Petitioner and Appelleev.N.M., Mother, and M.M., Father, Respondents and Appellants.In the Interest of W.M., a Child.Cass County Social Service Center, Petitioner and Appelleev.N.M., Mother, and M.M., Father, Respondents and Appellants.In the Interest of J.M., a Child.Cass County Social Service Center, Petitioner and Appelleev.N.M., Mother, and M.M., Father, Respondents and Appellants.In the Interest of P.M., a Child.Cass County Social Service Center, Petitioner and Appelleev.N.M., Mother, and M.M., Father, Respondents and Appellants.
• Court: North Dakota Supreme Court

801 N.W.2d 416

2011 ND 152

In the Interest of K.B., a Child.Cass County Social Service Center, Petitioner and Appellee

v.N.M., Mother, and M.M., Father, Respondents and Appellants.In the Interest of W.M., a Child.Cass County Social Service Center, Petitioner and Appellee

v.N.M., Mother, and M.M., Father, Respondents and Appellants.In the Interest of J.M., a Child.Cass County Social Service Center, Petitioner and Appellee

v.N.M., Mother, and M.M., Father, Respondents and Appellants.In the Interest of P.M., a Child.Cass County Social Service Center, Petitioner and Appellee

v.N.M., Mother, and M.M., Father, Respondents and Appellants.

Nos. 20110092

20110093

20110094

20110095.

Supreme Court of North Dakota.

Aug. 11, 2011.

Constance Louise Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioners and appellees.Jared Sharp Simonson, Fargo, N.D., for respondent and appellant N.M.Gene William Doeling Jr., Fargo, N.D., for respondent and appellant M.M.VANDE WALLE, Chief Justice.

[¶ 1] N.M. and M.M. appealed from a juvenile court order terminating their parental rights to their four minor children, arguing the juvenile court erred in finding two of the children, K.B. and P.M., are deprived. We affirm, concluding the juvenile court did not clearly err in finding K.B. and P.M. are deprived and terminating the parents' parental rights to those two children.

I

[¶ 2] N.M. and M.M. are the parents of K.B., born in 2007; W.M. and J.M., special-needs twins born prematurely in 2008; and P.M., born in 2010. When K.B. was born in 2007, N.M. lived with her parents. N.M. moved in with M.M., when K.B. was about eight months old. When K.B. was ten months old, J.M. and W.M. were born prematurely. On November 14, 2008, when the twins were about five months old, W.M. was admitted to the hospital for head trauma. At the time, the parents claimed a car seat had landed on W.M. when K.B. pulled the seat off a sofa. Treating physicians, however, opined that the parents' explanation was inconsistent with W.M.'s injuries and that the actual nature of W.M.'s injuries was consistent with “shaken baby syndrome.” On November 17, 2008, K.B., W.M., and J.M. were placed in the custody of Cass County Social Services.

[¶ 3] On May 22, 2009, the juvenile court adjudicated K.B., W.M., and J.M. as deprived children and placed them in the care, custody, and control of Cass County Social Services for nine months. At a May 2009 hearing, the parents admitted the children were deprived, and the parents agreed to comply with a reunification plan for their children.

[¶ 4] In February 2010, however, the State petitioned to terminate the parents' parental rights to K.B., W.M., and J.M. In March 2010, while the termination petition was pending, the parents had another child, P.M., and Social Services immediately took custody of P.M. and placed him in foster care. In May 2010, an amended petition for termination of parental rights was filed to include the newborn P.M.

[¶ 5] At the beginning of the termination hearing, N.M. and M.M. each consented to termination of their parental rights to the special-needs twins. After several days of trial in July and September 2010, a judicial referee issued a decision terminating the parents' parental rights to all four children. The referee found the children are deprived, the deprivation is not due primarily to the lack of financial means of the parents, the deprivation is likely to continue or will not be remedied, and the children are suffering or will probably suffer serious physical, mental, moral, or emotional harm. The referee found that W.M. had suffered injuries consistent with shaken baby syndrome in November 2008 and that only the parents had cared for W.M. and his siblings during the relevant time period. The referee found that despite reasonable efforts to reunify the family, services and treatment have not abated the causes of the deprivation. The referee found the parents were unable to recognize safety concerns and implement behaviors to protect the children, were unable to develop or provide stability and consistency for the children's basic needs, were unable to demonstrate behaviors providing nurturing and support for the children's special needs, and unable to demonstrate improvements in parenting skills. The referee found that M.M. had failed to actively address his own physical health needs, which adversely affected his ability to physically and emotionally provide for his children's needs, and that N.M. had been unable to develop skills and behaviors to cope with stress and anxiety. The referee also found K.B., W.M., and J.M. had been in foster care in excess of 450 days since November 2008, and P.M. had been in foster care since his birth in March 2010.

[¶ 6] N.M. and M.M. requested review of the referee's order. After making additional findings and conclusions, the juvenile court adopted and affirmed the referee's findings and order.

II

[¶ 7] Under N.D.C.C. § 27–20–44(1)(c), a juvenile court may terminate parental rights if there is clear and convincing evidence: 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. See Interest of K.J., 2010 ND 46, ¶ 4, 779 N.W.2d 635; Interest of J.S.L., 2009 ND 43, ¶ 12, 763 N.W.2d 783. A court may also terminate parental rights if the court finds the child is a deprived child and “[t]he child has been in foster care, in the care, custody, and control of the department, or a county social service board, ... for at least four hundred fifty out of the previous six hundred sixty nights.” N.D.C.C. § 27–20–44(1)(c)(2); see Interest of F.F., 2006 ND 47, ¶ 14, 711 N.W.2d 144. “The party seeking parental termination must prove all elements by clear and convincing evidence.” Interest of E.R., 2004 ND 202, ¶ 5, 688 N.W.2d 384. Clear and convincing evidence is evidence that leads to a firm belief or conviction the allegations are true. Interest of A.B., 2009 ND 116, ¶ 16, 767 N.W.2d 817.

[¶ 8] On appeal, 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. We will not overturn a juvenile court's decision on appeal unless the findings of fact are clearly erroneous under N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Interest of K.J., 2010 ND 46, ¶ 5, 779 N.W.2d 635. Under N.D.R.Civ.P. 52(a), we do not re-weigh conflicting evidence, and we give due regard to the trial court's opportunity to judge the credibility of witnesses. See Interest of J.S.L., 2009 ND 43, ¶ 12, 763 N.W.2d 783; Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144. “A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court.” Brandt, at ¶ 12. The court's findings should provide “sufficient specificity to enable a reviewing court to understand the factual basis for the trial court's decision.” Id.

III

[¶ 9] N.M. and M.M. consented to the termination of their parental rights to their special-needs twins and do not challenge that aspect of the juvenile court's decision. Instead, they argue the juvenile court erred in finding the other two children, K.B. and P.M., are deprived and terminating parental rights as to those children.

[¶ 10] A “deprived child” means a child who 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.” N.D.C.C. § 27–20–02(8)(a). We have said “proper parental care” means the parents' conduct in raising their children must satisfy “the minimum standard of care which the community will tolerate.” See Interest of R.S., 2010 ND 147, ¶ 8, 787 N.W.2d 277; Interest of K.R.A.G., 420 N.W.2d 325, 327 (N.D.1988); Interest of D.S., 325 N.W.2d 654, 659 (N.D.1982).

[¶ 11] “The definition of a deprived child is broad enough to encompass a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing proper parental care for the child.” Interest of T.J.O., 462 N.W.2d 631, 633 (N.D.1990); see also Interest of E.R., 2004 ND 202, ¶ 6, 688 N.W.2d 384 (deprived child definition is broad enough to encompass child whose parent is presently incapable of providing proper parental care); Interest of T.F., 2004 ND 126, ¶ 11, 681 N.W.2d 786 (same). A child may be found deprived despite having received adequate care from sources other than the parent. Interest of R.S., 2010 ND 147, ¶ 8, 787 N.W.2d 277; Interest of T.J.O., 462 N.W.2d at 633; Interest of K.P., 267 N.W.2d 1, 4 (N.D.1978).

Prognostic evidence may be relied upon to find that a child is a deprived child if it shows that the parent, although not having custody of the child, would be presently unable to supply physical and emotional care for the child, with the aid of available social agencies, if necessary, and that the inability would continue for sufficient time to render improbable the successful assimilation of the child into a family if that parent's rights were not presently terminated. In Interest of J.A.L., 432 N.W.2d 876 (N.D.1988).

Interest of T.J.O., 462 N.W.2d at 633 (emphasis added).

[¶ 12] We have further said that “[p]rognostic evidence must also demonstrate the parent's ‘inability to care for the child would continue for sufficient...