In The Interest Of D.H v. Child

• Decision Date: 10 June 2010
• Docket Number: No. 20100109.,20100109.
• Citation: 783 N.W.2d 12,2010 ND 103
• Parties: In the Interest of D.H., a child.Heather Pautz, Barnes County Director of Social Services, Petitioner and Appelleev.D.H., a child, T.H., Mother, RespondentsandE.H., Father, Respondent and Appellant.
• Court: North Dakota Supreme Court

783 N.W.2d 12

2010 ND 103

In the Interest of D.H., a child.Heather Pautz, Barnes County Director of Social Services, Petitioner and Appelleev. D.H., a child, T.H., Mother, RespondentsandE.H., Father, Respondent and Appellant.

No. 20100109.

Supreme Court of North Dakota.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Fallon M. Kelly (argued), Special Assistant State's Attorney, Lisbon, ND, for petitioner and appellee.

Monty G. Mertz (argued), Fargo Public Defender Office, South, Fargo, ND, for respondent and appellant.

KAPSNER, Justice.

[¶ 1] E.H. (hereinafter “Eric,” a pseudonym) appeals a juvenile court order terminating his parental rights to his child, D.H. (hereinafter “David,” a pseudonym). We hold the juvenile court's findings that the conditions and causes of David's deprivation are likely to continue, and David will probably suffer serious harm as a result, are not clearly erroneous. We affirm.

I.

[¶ 2] Eric is David's father. Eric was born in 1978. When Eric was nineteen years old, he dated T.H. (hereinafter “Tonya,” a pseudonym), for about six months. After Eric and Tonya separated, Tonya gave birth to David in 1998. Eric did not know Tonya was pregnant when they separated, nor did he know about David's birth at the time. Eric learned about David when David's guardian initiated a paternity suit in 2006. David and his half-sister had been placed under guardianship pursuant to an agreement with their mother Tonya, who was incarcerated at the time. Eric was also incarcerated when he received notice of the paternity action. Based upon the results of a DNA test, a juvenile court determined Eric was David's father. Eric did not request visitation rights, nor did the juvenile court award any. Eric met David for the first time shortly after the paternity suit, when they went to a restaurant with David's guardian and half-sister.

[¶ 3] David and his half-sister were removed from the guardian's care in December 2007. On January 3, 2008, Barnes County Social Services placed the siblings in a foster care home, and they have remained together in foster care since that time. On January 8, 2008, social services held a permanency planning meeting regarding David. Social services did not mail notice of this meeting to Eric, because his whereabouts were unknown at the time. However, social services mailed notices to Eric regarding all subsequent permanency planning meetings. After locating Eric, social services arranged a supervised visitation between Eric and David on February 29, 2008. Eric tested positive for marijuana at this visit. Eric attended two more supervised visits on March 1 and 4, 2008. On March 5, 2008, Eric failed to attend an appointment with social services to schedule a drug and alcohol evaluation. Eric also failed to attend a permanency planning meeting on March 11, 2008.

[¶ 4] Following the March 11th meeting, social services created a “Single Plan of Care” for David and his half-sister. The plan identified social services' permanency goal as “[r]eunification of the children with their mother with concurrent planning on assessing placement with [Eric]....” If those options were unsuccessful, social services planned to pursue “termination of [Eric and Tonya's] parental rights and adoption for both children.” The plan recommended Eric complete parental capacity and drug and alcohol evaluations, follow all recommendations based upon those evaluations, and attend additional supervised visits with David. From police records, social services discovered Eric had been arrested for assault on March 18, 2008 in Valley City. Social services held a permanency planning meeting during April 2008 that Eric failed to attend.

[¶ 5] On May 8, 2008, a juvenile court dissolved the guardianship for David and adjudicated David to be a deprived child. The juvenile court also placed David under the custody of social services, where he has remained since that date. Eric appeared at the May 8th deprivation hearing, and the juvenile court ordered him to “submit to drug testing as requested by Barnes County Social Services.” Social services held another permanency planning meeting on June 26, 2008. Eric spoke with a social services worker about the permanency plan prior to the meeting, but he did not attend the actual meeting. The progress report for the June 26th meeting indicates Eric did not agree with the permanency plan of pursuing reunification between David and his mother. Eric failed to attend the next permanency planning meeting on September 25, 2008.

[¶ 6] The juvenile court held a hearing to finalize the permanency plan for David on December 4, 2008. Eric appeared at the hearing and again tested positive for marijuana. The juvenile court ordered David to remain in foster care and the custody of Barnes County Social Services. The juvenile court's order stated the permanency plan was “reunification of [David] with his mother.... If reunification is not possible the plan is to establish a guardianship or terminate parental rights and allow the child to be adopted.” With regard to Eric, the juvenile court stated: “[Eric] voices an interest in establishing a relationship with [David] with possible placement in the future.” Eric attended a permanency planning meeting two weeks after the hearing, on December 18, 2008. The progress report for this meeting indicates Eric agreed with the permanency plan. Eric also attended a scheduled visitation with David in December 2008. Eric then missed several appointments and meetings with social services over the next two months.

[¶ 7] Eric failed to appear at social services on January 13, 2009 for a ride to a drug and alcohol evaluation. Social services rescheduled the evaluation for January 27, 2009, but Eric again failed to show. Eric also missed his next supervised visitation with David in February 2009. That same month, Eric was arrested and charged with felony aggravated assault. In June 2009, Eric entered an Alford plea to misdemeanor assault, thereby admitting sufficient evidence existed for a jury to find him guilty beyond a reasonable doubt, but not admitting he actually committed the crime. Eric was sentenced to time served for the assault. However, because the crime also constituted a parole violation, Eric remained incarcerated, with his release scheduled for May 2010. While incarcerated, Eric participated in a permanent placement meeting by telephone on September 24, 2009 and a supervised visitation with David in October 2009.

[¶ 8] On October 6, 2009, social services petitioned for termination of Eric and Tonya's parental rights to David. Tonya did not contest the petition and later signed a waiver of her parental rights. The petition claimed the juvenile court should terminate Eric's parental rights because Eric is currently incarcerated; has an extensive criminal record; lacks stable housing or employment; tested positive for marijuana on multiple occasions; failed to complete requested evaluations; and has only seen David approximately five times in his life despite numerous opportunities for additional visitation. The juvenile court held a hearing on the petition in December 2009. At the time of the hearing David had been in foster care for at least 450 out of the previous 660 nights.

[¶ 9] Social worker Sheila Oye testified about social services' work with Eric since David was removed from the guardian's care in December 2007. Oye stated social services had difficulty contacting Eric because he “has not had stable housing. He hasn't had housing in his name since I've been working with the case for two years.” She testified social services would mail notices to Eric at his last known address or his sister's residence in Valley City, where Eric was known to periodically stay. Oye stated she explained social services' permanency plan for David to Eric on several occasions, and Eric indicated he understood each time. Oye testified social services primarily sought to reunite David with his mother, rather than Eric, because she “was the biological parent of both [David and his half-sister] and we wanted to keep the siblings together.” Oye also stated reunification with David's mother was preferable because she acquired employment and a stable residence after her release from jail. Oye testified David has been diagnosed with “Adjustment Disorder with depressed mood,” which could be aggravated by reunification with Eric.

[¶ 10] While social services' primary goal was reunification between David and his mother, Oye testified social services did not rule out the possibility of reunification between Eric and David. However, Oye stated such reunification never became a realistic option because Eric failed to cooperate with social services:

Our first steps were the parental capacity evaluation and the drug and alcohol evaluations. We helped arrange those appointments. I was providing transportation for [Eric]. He didn't show up to those. To my knowledge he has not completed those to this date. I did supervised visits to try to work towards unsupervised visits and he didn't-we had the two supervised visits and then we had a couple where he didn't show up. [Eric] has not kept Social Services informed of his residence.... So it's been difficult to provide [Eric] with services.

Oye also testified about Eric's criminal past. She stated social services discovered Eric had been arrested in March 2008 for “an altercation and an assault on-with a woman in Valley City.” With regard to Eric's February 2009 arrest for aggravated assault, Oye stated the police report indicated Eric “appeared” to have committed “a very violent act.” Oye stated Eric's offenses “have been escalating over the years.”

[¶ 11] Crystal Noreen testified she and her husband are the foster parents with whom David and his half-sister have resided since February 2008. Since she became David's foster parent, Noreen stated Eric called her house to speak with David on one occasion, and Eric's sister also called once to...