E.J.H., In Interest of, 950248

• Decision Date: 23 April 1996
• Docket Number: No. 950248,950248
• Citation: 546 N.W.2d 361
• Parties: In the Interest of E.J.H. and T.S.H., Minor Children. Vince AMENT, Petitioner and Appellee, v. E.J.H., a Minor Child, T.S.H., a Minor Child, M.H., Mother of E.J.H. and T.S.H., and B.C., Father of E.J.H., Respondents, and Q.P., Father of T.S.H., Respondent and Appellee, and L.H., Maternal Grandmother of E.J.H. and T.S.H., and L.O., Maternal Aunt of E.J.H. and T.S.H., Intervenors and Appellants, and D.B. and J.B., Maternal Grand Uncle and Grand Aunt of E.J.H. and T.S.H., K.O., Maternal Uncle of E.J.H. and T.S.H., and W.S. and T.S., Maternal Uncle and Aunt of E.J.H. and T.S.H., Intervenors. Civil
• Court: North Dakota Supreme Court

Page 361

546 N.W.2d 361

In the Interest of E.J.H. and T.S.H., Minor Children.

Vince AMENT, Petitioner and Appellee, v. E.J.H., a Minor Child, T.S.H., a Minor Child, M.H., Mother

of E.J.H. and T.S.H., and B.C., Father of E.J.H.,

Respondents,

and

Q.P., Father of T.S.H., Respondent and Appellee,

and

L.H., Maternal Grandmother of E.J.H. and T.S.H., and L.O.,

Maternal Aunt of E.J.H. and T.S.H., Intervenors

and Appellants,

and

D.B. and J.B., Maternal Grand Uncle and Grand Aunt of E.J.H.

and T.S.H., K.O., Maternal Uncle of E.J.H. and

T.S.H., and W.S. and T.S., Maternal

Uncle and Aunt of E.J.H. and

T.S.H., Intervenors.

Civil No. 950248.

Supreme Court of North Dakota.

April 23, 1996.

Appeal from the Juvenile Court of Stutsman County, Southeast Judicial District; the Honorable James A. Wright, Judge.

John E. Greenwood, State's Attorney, Jamestown, for petitioner and appellee Vince Ament. Submitted statement.

Joseph F. Larson II, Jamestown, for respondent and appellee Q.P.

Monty G. Mertz, Fargo, ND, for intervenors and appellants.

VANDE WALLE, Chief Justice.

This is an appeal from a trial court's custody determination placing custody of T.S.H. with her natural father. The child's maternal grandmother and extended family members appealed the trial court's order, claiming "exceptional circumstances" warrant that custody of T.S.H. be placed with them rather than with the child's natural father. Because the trial court's finding that exceptional circumstances did not exist in this case was not clearly erroneous, we affirm the trial court's order.

On January 6, 1993, Vince Ament, a juvenile supervisor for Stutsman County, filed a petition in juvenile court asserting that E.J.H. and T.S.H. were deprived children under section 27-20-02(5), NDCC, and in need of protection. The children had been living with their mother (M.H.) and B.C., believed to be the children's father. Sometime after the petition was filed, Ament became aware that Q.P., rather than B.C., might be T.S.H.'s natural father. An amended petition asserted:

"that said children are alleged to be subject to physical abuse by [B.C.], as allegedly reported to Stutsman County Social Services by [M.H.] ...; that the environment provided for the children by [M.H.] includes unhealthy elements wherein the children experience emotional harm, that these elements, including: threats from [B.C.], especially when intoxicated, and complaints of numerous medical needs of the children and [M.H.], are the effect of a depressive or personality disorder of the mother, not of her lack of concern or love for the children; that [Q.P.] has made no attempt to exercise any parental rights with respect to [T.S.H.]."

On November 9, 1993, the juvenile court adjudicated E.J.H. and T.S.H. deprived. The court found that the children were without proper parental care or control, "including unhealthy emotional elements from the mother and [B.C., the] need for treatment by [B.C.], and the lack of attempt by [Q.P.] to exercise parental rights." The court granted the care, custody, and control of the children to the director of the Stutsman County Social Service Board and ordered that M.H., B.C., and Q.P., be allowed visitation. Social Services placed the children in foster care with their maternal aunt and uncle, who had been caring for the children since October 13, 1993, as a result of a temporary order. On May 26, 1994, the juvenile court ordered Social Services to continue the custody and control of the children until April 25, 1995.

On September 7, 1994, in a separate paternity action filed in district court, the court determined that Q.P. was T.S.H.'s natural father. In his pleadings in the paternity suit, Q.P. sought custody of his daughter. Notice of a custody hearing relating to the paternity action was filed in juvenile court. ¹ The children's maternal grandmother and extended family, including the aunt and uncle providing foster care, moved to intervene, and petitioned for joint legal custody of the girls. Because the aunt and uncle were not in the position to continue providing a home for the children, the intervenors requested that physical custody be placed with the grandmother. The court granted the motion to intervene and stated that it would reconsider its disposition of May 26, 1994. In addition, the court ordered that it would determine the custody issue as part of the juvenile court proceedings, and combined all actions relating to the custody or welfare of the children with the juvenile court proceedings. ²

After a hearing, the court found that, due to their health problems, M.H. and B.C. were unable to care for E.J.H. Considering E.J.H.'s best interests, the court awarded custody of E.J.H. to the intervenors and granted physical custody to the grandmother. The court's custody determination for E.J.H. was not appealed and is not an issue before us.

The court similarly denied custody of T.S.H. to M.H. But, unlike the situation with E.J.H., the court determined that Q.P. did not have any mental or physical disabilities that would make it impossible for him to care for his child. The court awarded custody of T.S.H. to Q.P. after determining that exceptional circumstances did not exist in this case since T.S.H. did not have a "psychological parent." Furthermore, the trial judge explained in his memorandum opinion that, although the siblings had a very close relationship, he did not find evidence in the record that the children would experience serious detriment if placed in separate homes. The court awarded custody to Q.P. as of August 15, 1995, which permitted T.S.H. to complete the school year and provided a transitional period of increased visitation before the transfer of custody.

On appeal, the grandmother and intervenors urge that exceptional circumstances exist in this case, including: the extended family's support system; the strong bond between the sisters; and Q.P.'s fraudulent conduct to avoid discovering paternity.

A trial court's custody determinations are findings of fact which will not be disturbed on appeal unless clearly erroneous under Rule 52(a), N.D.R. Civ. P. Schmidkunz v. Schmidkunz, 529 N.W.2d 857 (N.D.1995). A finding is clearly erroneous when we are left with a definite and firm conviction that a mistake has been made. Weber v. Weber, 512 N.W.2d 723 (N.D.1994). In this instance, we do not believe that the trial court erred.

It is well established that natural parents have the right, superior to that of any other person, to the custody and companionship of their children. Matter of Guardianship of Nelson, 519 N.W.2d 15 (N.D.1994); Worden v. Worden, 434 N.W.2d 341 (N.D.1989); Hust v. Hust, 295 N.W.2d 316 (N.D.1980). We have also recognized that the right is not absolute. Hust, supra. In custody disputes between a natural parent and a third party, exceptional circumstances may require, in the child's best interest to prevent serious harm or detriment to the child, that the child be placed in the custody of a third party rather than with the natural parent. Mansukhani v. Pailing, 318 N.W.2d 748 (N.D.1982). Absent exceptional circumstances which trigger a best-interest analysis, the natural parent is entitled to custody of the child. Worden, supra.

As we stated in Worden, "[t]his court has not attempted to narrowly define or circumscribe the exceptional circumstances which must exist to permit a court to consider placing custody of a minor child with a third party rather than the natural parent." Id. at 342. However, as we explained in Worden, our prior cases analyzing such exceptional circumstances involved situations in which the third party seeking custody had a psychological-parent relationship to the child. See Matter of Guardianship of Nelson, 519 N.W.2d at 17 [illustrating our "long line of precedent" in which a psychological-parent relationship constituted an exceptional circumstance prevailing over a natural parent's custody right]; Patzer v. Glaser, 396 N.W.2d 740 (N.D.1986); Mansukhani, supra; In Interest of D.R.J., 317 N.W.2d 391 (N.D.1982).

In this instance, the grandmother acknowledges that a psychological-parent relationship does not exist between T.S.H. and the intervenors. Rather, the grandmother urges that we expand the psychological-parent concept to include a "composite 'psychological parent,' " meaning that although no single extended family member has been a psychological parent to the children, as a group, the extended family has provided stability in the children's lives such as to create a support system for the children. Notwithstanding its importance, the extended family's involvement in the children's lives does not compare to the daily care and nurturing we have associated with a psychological-parent relationship. See Dinius v. Dinius, 448 N.W.2d 210, 217 n. 1 (N.D.1989) [Levine, J., dissenting] [quoting J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973), that "[a] psychological parent is 'one who, on a continuing, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child's psychological needs for a parent, as well as the child's physical needs.' "]; Worden, supra [explaining that a psychological parent has actual physical custody of the child for a sufficient period of time so as to develop the relationship]; Patzer, supra [describing a psychological parent as one who, by providing daily care, develops a close personal relationship with the child and becomes the person to whom the child turns for love, guidance, and security]. Such an expanded application of the "psychological parent" exception would easily consume the natural parent's right to custody of the child. Here, the trial court did not err by not recognizing the extended family's relationship as an exceptional circumstance.

As an extension of their first argument, the intervenors argue that T.S.H., who is seven years old, has a strong bond with E.J.H., who is fourteen years old,...