J. Z., In re

• Decision Date: 07 September 1971
• Docket Number: No. 8712,8712
• Citation: 190 N.W.2d 27
• Parties: In the Interest of J. Z., a child. William H. BLORE, Petitioner and Respondent, v. John Z. and Susan Z., Respondents and Appellants.
• Court: North Dakota Supreme Court

Page 27

190 N.W.2d 27

53 A.L.R.3d 592

In the Interest of J. Z., a child.

William H. BLORE, Petitioner and Respondent, v. John Z. and Susan Z., Respondents and Appellants.

No. 8712.

Supreme Court of North Dakota.

Sept. 7, 1971.

Syllabus by the Court

1. An appeal taken under the Uniform Juvenile Court Act is triable anew in the Supreme Court.

2. A parent has a fundamental natural right to the custody and society of his child and to provide for his moral, mental, and physical welfare, but this is not an absolute right, and the parental relationship will be terminated if the child is deprived, if the deprivation is likely to continue, and if the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.

3. Parents involved in parental rights termination proceedings are not entitled to informal adjustment of their differences with the State.

4. Before proceeding with an initial interview with a juvenile supervisor, parents involved in child termination proceedings are entitled to benefit of counsel.

5. Testimony is properly received when timely objection is not made and there is no motion to strike such evidence coupled with a showing of surprise.

6. Testimony by a doctor that one is a 'battered child' is not an opinion on the ultimate issue of whether a juvenile is a 'deprived child' and was admissible testimony to be considered will all other evidence in the case.

7. On appeal, although the findings of fact are accorded appreciable weight, the Supreme Court is not bound thereby but has the duty to review all evidence, to find the facts anew independently of the trial court's findings, and to apply the law to the facts as found by the appellate court.

8. The trial court's findings of fact in a proceeding for termination of parental rights must be supported by clear and convincing evidence; and the trial court's findings of fact in this proceeding by proof beyond a reasonable doubt were not prejudicial to the appellants.

9. Proof of the elements of an action or proceeding may consist entirely of circumstantial evidence; and in this case, the facts and circumstances proved were consistent with the theory of absence of proper parental care and inconsistent with any other rational theory.

10. The statute defining 'deprived child' for purposes of parental termination proceedings is not unconstitutional because of vagueness or uncertainty.

Russell K. Schmidt, of Bosard, McCutcheon, Kerian & Schmidt, Minot, for respondents and appellants.

Wallace D. Berning, Asst. State's Atty., Minot, for petitioner and respondent.

DOUGLAS B. HEEN, District Judge.

John Z. and his wife, Susan Z., have appealed, asking trial de novo, from a district court judgment terminating their parental rights to their son, J. Z., born to their marriage on February 24, 1970. We affirm the judgment.

On August 14, 1970, Lynn Aas, manager of a Minot medical clinic, reported to Cal Asendorf, a Ward County Juvenile Supervisor, that there was reasonable cause to believe that J. Z., a five-month-old baby being attended by the clinic staff, had suffered serious injury or was suffering physical neglect not explained by available medical history as being accidental in nature. This report is required by N.D.C.C. Sec. 50--25--01. Immediate temporary placement in a foster home was ordered, and the child has been in a foster home since his release from the hospital.

On August 28, 1970, a petition signed by William H. Blore, Juvenile Supervisor, was filed in the Juvenile Division of District Court for Ward County, alleging that J. Z. was a deprived child, which condition was likely to continue, and asking that parental rights of John Z. and Susan Z. be terminated. At the appellants' request, the proceedings were continued and came on for hearing on October 29, 1970, with a concluding hearing on November 12, 1970.

The trial court terminated the appellants' parental rights, finding beyond a reasonable doubt that J. Z. suffered serious physical injuries because of mistreatment by his father, John Z., as follows that on or about August 13, 1970, the father by force inserted a toy telephone into the mouth of the child, nearly causing his death by suffocation; that shortly before the above occasion, the father forced or induced a boiling liquid or very hot substance into J. Z.'s mouth, causing serious burns to his throat; and that previously J. Z. received numerous bruises on different parts of his body and five fractured ribs which were the result of striking, slapping, dropping, or other rough treatment by his father; that the mother, Susan Z., acquiesced in this treatment; that J. Z. thereby was a deprived child; and that such treatment by the parents was likely to continue and would probably cause J. Z. serious physical, mental, moral, or emotional harm.

An appeal taken under the Uniform Juvenile Court Act, N.D.C.C. 27--20, is triable anew in this Court. In re Walter, 172 N.W.2d 603 (N.D.1969).

The trial court judgment is attacked on the ground that the appellants made incriminating statements to a juvenile supervisor in the absence of counsel; that there was error in the admission of expert medical testimony; that the statutory definition of deprived child is unconstitutional for vagueness and uncertainty; that the appellant parents were denied their constitutional rights by this termination; and that the evidence does not support the judgment.

The fundamental natural right of a parent to the custody and society of his child and to provide for his moral, mental, and physical welfare has been recognized to be of constitutional dimension. This, however, is not an absolute right. Mitchell v. Davis, 205 S.W.2d 812, 12 A.L.R.2d 1042, 1047 (Tex.Civ.App.1947), in disposing of a somewhat similar issue, held that such fundamental rights are not absolute and employed the following language appropriate to the proceeding at hand:

'While ordinarily the natural parents are entitled to the custody and care of their child, this is not an absolute unconditional right. The State has such an interest in the welfare of its citizens as will authorize the enactment of suitable legislation by which the State may assume the custody of children and the parents may be deprived of the custody thereof where the parents abandon the children or neglect them in such manner as to cause them to become a public charge, or where the parents otherwise prove to be unsuitable.'

Mitchell v. Davis, Supra, quoting De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 690 (1944).

The North Dakota Juvenile Court Act likewise acknowledges the inherent right of parents to their child's custody and to care for his welfare, the act providing that its interpretation and construction shall be:

To achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interest of public safety.

North Dakota Century Code, Sec. 27--20--01(3).

Accordingly, any judicial disposition of J. Z. may be made only if the child is brought within the jurisdiction of the trial court as a 'deprived child.'

The Juvenile Court Act, N.D.C.C. Sec. 27--20--02(5), defines a 'deprived child' as a child who:

a. 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 * * *;

and our law requires that the court's finding that a juvenile is a 'deprived child' be by clear and convincing evidence. N.D.C.C. Sec. 27--20--29(3).

This proceeding is based upon N.D.C.C. Sec. 27--20--44, which in part provides:

1. The court by order may terminate the parental rights of a parent with respect to his child if:

b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physicial, mental, moral, or emotional harm;

North Dakota Century Code.

Not only must the trial court find that a child is deprived by clear and convincing evidence, but the probability of continuance of deprivation must be by the same degree of proof before there may be a termination of parental rights under this section of our law.

On trial, the evidence developed that early on the evening of August 13, 1970, half of a toy telephone, the broken part first, lodged in J. Z.'s throat. His parents rushed him to a Minot Hospital, where the broken toy was extracted by Dr. Fred Erenfeld, who fortunately happened to be at the hospital. At the time, Dr. Erenfeld thought the baby was dead. Following extraction and resuscitation procedures, the baby's own doctor, Dr. Gunay Raghib, having arrived at the hospital, assumed care of the child. Upon examination, Dr. Raghib found the child to be bruised below his umbilicus, to have a half-inch laceration at the soft palate, to be bleeding from his nose and mouth, and to be in shock and exhibiting evidence of pneumonia.

It was Dr. Erenfeld's opinion that lodgment of the toy rattle in the baby's throat was not accidental but required outside force. Dr. Raghib was of the opinion that J. Z., a baby of five months, did not insert the rattle into his own throat nor did he have the strength to break the toy.

During his subsequent hospitalization, the baby would not swallow and did not eat. Again the child was examined by Dr. Raghib, who concluded that this complication was caused by burns, probably chemical in nature, to the child's mouth and throat tract, the esophagus, to the stomach. This, in his opinion, occurred one day, and not more than two days, prior to J. Z.'s admission to the hospital. Dr. Raghib could find no rational cause or explanation for these internal burns, stating that because of the age of the baby, the liquid...