J. K. S., In Interest of, 9476

• Decision Date: 08 January 1979
• Docket Number: No. 9476,9476
• Citation: 274 N.W.2d 244
• Parties: In the Interest of J. K. S., a child. Cynthia A. ROTHE, Petitioner and Appellee, v. G. S., Respondent and Appellant. and P. S. and J. K. S., by her guardian ad litem, Mart Daniel Vogel, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 244

274 N.W.2d 244

In the Interest of J. K. S., a child.

Cynthia A. ROTHE, Petitioner and Appellee, v. G. S., Respondent and Appellant. and P. S. and J. K. S., by her guardian ad litem, Mart Daniel

Vogel, Respondents.

Civ. No. 9476.

Supreme Court of North Dakota.

Jan. 8, 1979.

Cynthia A. Rothe, Asst. State's Atty., Fargo, petitioner and appellee, pro se.

C. Charles Chinquist, Fargo, for respondent and appellant.

Mart Daniel Vogel, Fargo, guardian ad litem and attorney for J. K. S., a child.

VANDE WALLE, Justice.

The mother of J. K. S., a girl born in May, 1977, appeals from a juvenile court order that found her daughter to be a deprived child, pursuant to Chapter 27-20, N.D.C.C., and placed the child under the care, custody, and control of the Cass County Social Service Board. We affirm.

J. K. S. (whom we will refer to hereinafter as "Jane," a pseudonym) was born prematurely in a Fargo hospital on May 5, 1977, and remained in intensive care in the hospital until June 14, 1977. At the time of her birth Jane weighed three pounds, two ounces. The mother (G. S.) resided with G. S.'s father (P. S.) at the time of Jane's birth, and G. S. planned to continue living with her father.

During the time Jane was in the hospital, the records of the hospital medical social service reveal concern on the part of the hospital staff as to the care Jane would receive when released from the hospital because of the attitude of the mother, G. S. That attitude included a reluctance on the part of the mother to feed or handle Jane or change her diapers; statements that the baby looked like the father and she hated the father; that she wished the baby were a boy; and that the baby was laughing at her. G. S. was released from the hospital earlier than Jane, and the hospital staff had asked G. S. to return to the hospital to learn to properly care for Jane. The records reveal that the hospital staff informed G. S. and her father, P. S., that they were very concerned about sending the baby home because G. S. had not "been responding the way we like to see and she has not really spent that much time" with Jane. The records also reveal that the staff had talked with the attending doctors about filing a child-neglect report, but that the doctors felt that since the City had been verbally notified, that was adequate for the present. The reference to the City's being notified apparently means the City Nursing Service was notified. The hospital had also notified the Cass County Social Service Board concerning the matter. G. S. was notified that a public health nurse would visit her daily and review child care with her and that the social worker from Cass County and the hospital personnel would be available to answer any questions she might have. Arrangements were made through the Red Cross Volunteer Program to provide rides for G. S. to the hospital so that she could visit Jane. On two occasions, Red Cross volunteer workers went to G. S.'s home to give her a ride to the hospital, but G. S. declined the ride and did not go to the hospital.

Toward the end of June, 1977, G. S. had an argument with her father, P. S., left his home, and moved into the home of Phyllis LaFrombois. At that time a total of eight people lived in the two-bedroom apartment of Mrs. LaFrombois.

P. S. testified that while G. S. was living in his home he became concerned that she was not changing Jane's diapers often enough, that he did not help care for Jane because G. S. wanted to do it herself, that the bedroom where G. S. and Jane stayed was messy, and that G. S. washed clothes once during the time she was home with Jane. There was evidence that G. S. tended to stay out late at night with Jane, and also evidence of a history of difficulties between G. S. and P. S., and that when P. S. became drunk he beat G. S. and called her bad names.

The petition in this instance, however, was precipitated by certain events which took place on July 14, 1977. At that time Shelly Monson, the same age as G. S., was to babysit Jane and picked her up at about 3 p. m. from the LaFrombois residence. Shelly was informed by Mrs. LaFrombois and G. S. about a diaper rash that Jane had and was instructed on the medication for it. She also was instructed on feeding. Shelly took Jane to a baby shower at a friend's house and testified that, while there, Jane had been throwing up, developed diarrhea, started shaking and "quitting breathing," and had a 103-degree temperature. Shelly took Jane to St. Luke's Hospital, but was directed to Dakota Hospital because Jane had been born at Dakota Hospital. Shelly indicated to the medical personnel at Dakota Hospital that she was concerned by what appeared to be a bruise in the area of Jane's "tailbone." The doctor who first saw Jane at Dakota Hospital also was concerned and questioned Shelly about the bruise. The doctor was informed by Shelly that she had observed the mother handle the baby roughly.

Subsequently, Jane was seen by her pediatrician, Dr. Thomas W. Mausbach. A one-centimeter umbilical hernia was noted in the abdomen. Diaper rash was noted. The rectal temperature was normal, Jane was not in acute distress, and she moved her extremities well and equally. Her back was normal and there was no evidence of bruises on her skin. A mongoloid spot in the coccygeal area was noted and a right inguinal hernia was noted. An X-ray report revealed no fractures.

The Report of Child Abuse or Neglect signed by Dr. Mausbach on July 15, 1977, stated "This 21/2 month old baby was brought into the Emergency Room at Dakota Hospital on 7-15-77 by Shelly Monson, a friend of the baby's mother. She indicated her concern about the care this child was receiving from her mother. (Jane) was admitted at this time. The Grandfather, (P. S.), also contacted the Hospital on this same date, with similar complaints about care child is receiving. For these reasons, I feel the possibility of neglect of this child needs to be investigated."

The petition to have Jane declared a deprived child was filed the same day, June 15, 1977. ¹ Also on that day, the judge of the juvenile court issued a temporary order based on the affidavit of Kay LeClerc, director of social services at Dakota Hospital, placing Jane in the temporary custody of the County Director of the Cass County Social Service Board. The petition was referred by the juvenile judge to Maurice Garrison, Juvenile Supervisor, as referee, who held a hearing on July 20, 1977, and recommended that the temporary order placing custody of Jane in the Cass County Social Service Board Director remain in full force and effect until a hearing could be had on the petition. The juvenile judge confirmed those findings and recommendations and on that same day, July 20, 1977, the juvenile judge referred the matter for a hearing on the merits of the petition to Arthur H. Lieb, Juvenile Supervisor, as referee, pursuant to Section 27-20-07, N.D.C.C.

The hearing on the merits was scheduled before the referee on July 25, 1977, and was finally completed, with respect to the deprivation portion of the hearing, on August 3, 1977. At that time, the referee concluded that there was clear and convincing evidence to show that Jane was a deprived child. A hearing on the matter of disposition of Jane's custody was held on August 16, 1977, and on that date the findings and recommendations of the referee were issued, finding that Jane was a deprived child and recommending that she be placed in the custody of the County Director of the Cass County Social Service Board for a period of two years. The juvenile court reviewed the findings and recommendations and confirmed them on August 16, 1977. G. S. requested, pursuant to Section 27-20-07(5), N.D.C.C., a review of the findings and recommendations made by the juvenile referee, and on January 30, 1978, the court issued its order reconfirming the referee's findings of fact and recommendations. ²

The mother, G. S., has, pursuant to Section 27-20-56, N.D.C.C., appealed from the order reconfirming the referee's findings of fact and recommendations, and has set forth the following issues on appeal:

1. Whether the court erred in its finding that Jane is a deprived child.

2. Whether the court erred in its finding and order that Jane be removed from the custody of her mother, appellant G. S., and placed in the custody of the Director of the Cass County Social Service Board for a period of two years.

Section 27-20-02(5)(a), N.D.C.C., defines a "deprived child" as one who:

"Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of his parents, guardian, or other custodian; . . . "

A summary of our previous decisions construing this section is found in In Interest of L. R. S., 271 N.W.2d 562 (N.D.1978). That decision and other cases referred to therein indicate:

1. The term "proper care," as used in Section 27-20-02(5)(a), N.D.C.C., means that the parents' conduct in raising their children must satisfy the minimum standards of care which the community will tolerate.

2. Evidence that compares the child-rearing skills of the natural parents with those of the foster parents will not alone support a finding of deprivation if the parents' efforts meet the minimum standards of care.

3. Lack of cleanliness of the home does not alone establish deprivation.

4. The finding of poverty or lack of education or culture is not sufficient to establish deprivation.

5. Parents have a constitutional right to the custody and companionship of their children, but this right is not absolute and parents are not entitled to the custody of their children under all circumstances.

6. Parents are entitled to a presumption that they are fit parents, and the burden of disproving this presumption of parental fitness is on the...