J. L. R. v. Kidder County Social Service Bd.

• Decision Date: 21 April 1980
• Docket Number: No. 9660-A,9660-A
• Citation: J. L. R. v. Kidder County Social Service Bd., 295 N.W.2d 401 (N.D. 1980)
• Parties: J. L. R. and D. J. B., Petitioners and Cross-appellants, v. KIDDER COUNTY SOCIAL SERVICE BOARD, Respondent and Appellee. Michael BECKER, Petitioner and Appellee, v. D. J. B., Mother, and J. L. R., Acknowledged Father, Respondents and Cross-appellants, and Kent A. Higgins, Guardian ad Litem for D. R. J., a Child, Appellant. In the Interest of D. R. J., a Child. Civ.
• Court: North Dakota Supreme Court

Page 401

295 N.W.2d 401

J. L. R. and D. J. B., Petitioners and Cross-appellants, v. KIDDER COUNTY SOCIAL SERVICE BOARD, Respondent and Appellee.

Michael BECKER, Petitioner and Appellee, v. D. J. B., Mother, and J. L. R., Acknowledged Father Respondents and Cross-appellants and Kent A. Higgins, Guardian ad Litem for D. R. J., a Child Appellant In the Interest of D. R. J., a Child.

Civ. No. 9660-A.

Supreme Court of North Dakota.

April 21, 1980.

Rehearing Denied May 15, 1980.

John Walstad of Teevens, Johnson & Montgomery, Bismarck, for J. L. R. and D. J. B.

Jerry Renner, State's Atty. of Kidder County, Steele, for Kidder County Social Service Bd. and Michael Becker.

Kent A. Higgins, Bismarck, guardian ad litem, pro se.

Richard B. Baer of Baer, Asbridge & Hager, Bismarck, amicus curiae (on brief).

VANDE WALLE, Justice.

J. L. R. ("Joseph") and D. J. B. ("Della," a fictitious name) appeal from an order of the Kidder County juvenile court determining that D. R. J. ("Darcy," a fictitious name) is a deprived child and granting legal custody to Kidder County Social Service Board. Kent J. Higgins, guardian ad litem for Darcy, appeals that portion of the order granting physical custody of Darcy to her mother Della. We affirm as to deprivation and reverse, in part, as to custody.

This appeal involves some bizarre elements, both factual and procedural. Darcy was born out of wedlock on October 7, 1974, to Della, who was born in 1956. Della lived with her baby, Darcy in the home of Della's mother, Gladys, from the time of Darcy's birth until September of 1976 at which time Della, with Darcy, accompanied a man named Robert Gaub to the State of Washington. In October 1976, Della gave birth to another child, also out of wedlock. The status of Della's second child is not an issue in these proceedings.

Sometime after the birth of the second child, Della left Gaub and began living with a Mr. Bath. In June 1977, Della called her mother, Gladys, to come to Washington to get Darcy. Della testified at the hearing before the juvenile court that her reason for asking Gladys to take Darcy was that Mr. Bath did not like children and Della was afraid for Darcy's safety. Della and Mr. Bath were married in July 1977. Later that month Della and her husband came to Gladys's home after riding a freight car to North Dakota. They were at Gladys's home for about two weeks and then left with a carnival. Della called Gladys at regular intervals but did not visit Darcy for over a year and a half after that two-week visit. In June of 1978, Gladys reported to the Kidder County Social Service Board that Della had abandoned Darcy with her, and a temporary custody order was issued placing custody of Darcy with the Kidder County Social Service Board. Darcy remained in the physical custody of Gladys. Della was not notified of the temporary placement order until September 1978. Between July and September 1978, Della left Mr. Bath after he was arrested for a parole or probation violation and she returned to live with Mr. Gaub for a time. In September 1978, she left Mr. Gaub and began living with Joseph.

Joseph filed an admission acknowledging his paternity of Darcy and in January 1979 he received a certification of birth from the North Dakota Registrar of Vital Statistics naming himself and Della as the parents of Darcy. The acknowledgment of paternity by Joseph was apparently executed pursuant to Section 14-17-04(1)(e), N.D.C.C. This subsection provides that a man is presumed to be the natural father of a child if "he acknowledges his paternity of the child in a writing filed with the division of vital statistics . . ." Joseph then petitioned the Kidder County district court for a writ of habeas corpus, naming the Kidder County Social Service Board as respondent, alleging that he was the father and natural guardian of Darcy, and that Darcy was being forcibly held and detained by Kidder County Social Services at the home of Gladys. In his petition he also alleged that the temporary order previously entered by the Kidder County juvenile court granting temporary custody of Darcy to the Kidder County Social Service Board was invalid because Della had never been given notice of the proceedings. Subsequently Della moved to join Joseph's petition for a writ of habeas corpus and the court permitted Della to join as a petitioner. Before that petition was heard, Michael Becker, Director of the Kidder County Social Service Board, filed a petition with the Kidder County juvenile court alleging that Darcy was a "deprived child" within the meaning of Chapter 27-20, N.D.C.C., the Uniform Juvenile Court Act. The petition alleged that Della had abandoned Darcy; that Gladys had cared for Darcy for nearly a year with little contact with Della; that Della was retarded and could not raise Darcy; that at the time of the temporary custody order Della's whereabouts were unknown; that circumstances made it improbable for Joseph to be the natural father of Darcy; that Darcy was without proper parental care or control, subsistence, or other care necessary for her physical or emotional health or morals. Both Joseph's petition for a writ of habeas corpus and Becker's petition to have Darcy declared a deprived child were heard by Judge Glaser at the same time, with the consent of the parties. ¹

During the course of the hearing Gladys, Darcy's grandmother, and Gladys's husband, Jonathon, moved to intervene in the proceedings. That motion was allowed, although the juvenile court expressed its belief that the grandparents did not have any standing to intervene in a juvenile proceeding before it reached a dispositional stage, and reaffirmed that view in its memorandum opinion. Following the hearing the juvenile court denied Joseph's petition for a writ of habeas corpus, determined that Darcy is a deprived child, and gave legal custody of Darcy to the Kidder County Social Service Board but granted physical custody to Della. The juvenile court subsequently granted a stay of its order granting physical custody to Della. Further facts will be discussed as we consider the various issues raised by the parties.

Joseph and Della have not appealed from that portion of the trial court's order denying the petition for a writ of habeas corpus. ² However, they have raised as error on appeal the admission of the results of their blood tests taken by the order of the juvenile court and admitted into evidence. During the course of the proceeding the question of whether or not Joseph was the natural father of Darcy became an issue. Kidder County Social Service Board, Darcy's guardian ad litem, and Gladys and Jonathon all questioned whether or not Joseph was Darcy's natural father.

Joseph and Della both testified that they had known each other for several years, that Joseph first met Della during a five-minute bus stop when the bus he was riding stopped in Tuttle, that on many later occasions he drove from South Dakota to Tuttle to see Della, and that he was the natural father of Darcy. Gladys testified that Della told her that another man was Darcy's father; that Gladys never knew and had never heard of Joseph until several years after Darcy was born. Other parties presented testimony which contradicted Joseph's and Della's testimony. In order to verify Joseph's presumed paternity of Darcy the trial court ordered blood tests of Darcy, Joseph, and Della. Those results indicated that Joseph could not be Darcy's natural father.

Joseph and Della argue that the trial court applied the provisions of Chapter 14-17, N.D.C.C., the Uniform Parentage Act, in ordering and admitting the blood tests. They point out that the Act applies in instances where parentage is an issue, but it does not apply where deprivation of a child is an issue. They urge the evidence should not have been admitted because it had no probative value relating to the issue to be decided and it was of a prejudicial nature. That position is not well taken. Based on his acknowledgment of paternity, Joseph petitioned for a writ of habeas corpus. Della later joined in that petition but Joseph did not withdraw. He was and continues to be a central figure in these proceedings. But if Joseph is not the natural father of Darcy, he has no standing to seek a writ of habeas corpus concerning her custody. Absent paternity, he has no legal relationship to Darcy.

Joseph's petition for a writ of habeas corpus, which the court was hearing concurrently with the application to have Darcy declared a deprived child, relied upon Darcy's Certification of Birth which Joseph obtained from the Division of Vital Records after acknowledging he was the natural father of Darcy. Section 14-17-04(1)(e), N.D.C.C., the Uniform Parentage Act, provides that a man is presumed to be the natural father of a child if, while the child is under the age of majority, the man "acknowledges his paternity of the child in a writing filed with the division of vital statistics of the state department of health, which shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the division of vital statistics of the state department of health. . . ."

Subsection 2 of Section 14-17-04 clarifies the presumption of paternity. It provides, in part:

"2. A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. . . ."

Joseph brought the petition for a writ of habeas corpus against the Kidder County Social Service Board basing his right to do so on his acknowledgment of paternity. Joseph's petition for a writ of habeas corpus was being heard, without objection, concurrently with the petition to have Darcy declared a deprived child. Although a petition for a writ of habeas corpus may not be the usual type of action in which to have paternity determined, Joseph, by bringing the petition for a...