Jacobson v. V. S., 9467

Citation271 N.W.2d 562
Decision Date31 October 1978
Docket NumberNo. 9467,9467
PartiesLynne JACOBSON, Director, Stark County Social Service Board, Petitioner and Appellee, v. V. S. and G. S., Respondents and Appellants, and L. R. S., a child, and Lynne Jacobson, Director, Stark County Social Service Board, Respondents. In the Interest of L. R. S., a child. Civ.
CourtUnited States State Supreme Court of North Dakota

Donald L. Jorgensen, Asst. State's Atty., Dickinson, for petitioner and appellee.

Freed, Dynes, Malloy & Reichert, Dickinson, for respondents and appellants; argued by Ronald A. Reichert, Dickinson.

ERICKSTAD, Chief Justice.

The parents of L.R.S., a seventeen-month-old girl, appeal from a juvenile court order that found their 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 Stark County Social Service Board. We affirm.

L.R.S. (whom we shall refer to hereinafter as Laura, a pseudonym) was born prematurely in a Bismarck hospital on May 27, 1977, and remained in the hospital in intensive care for two months. During this time, the Stark County Social Service Board provided financial assistance to the 16-year-old mother to allow her to travel to Bismarck to receive training in the feeding and care of her child. After Laura was released from the hospital, she and her parents resided in Dickinson, North Dakota.

On December 2, 1977, a Report of Child Abuse and Neglect was filed with the Stark County Social Service Board concerning an incident that allegedly occurred on November 30, 1977, in a local motel. The report, filed by a waiter at the motel's restaurant, stated that Laura and her father (G.S.) were in the restaurant at approximately 2:00 a. m. on November 30, 1977, and that Laura was improperly clothed. The report also stated that G.S. was intoxicated and that he fell while holding Laura.

On December 15, 1977, the Social Service Board received a second report regarding Laura from Kathleen Engraf supported by her affidavit saying essentially that G.S brought Laura to Ms. Engraf's apartment on December 15, 1977, at approximately 6:30 a. m. requesting that she take care of Laura. G.S., who appeared to be intoxicated, allegedly attempted to feed Laura from a baby bottle and when Laura would not drink he threw the bottle against the wall. The bottle apparently bounced off the wall and struck Laura on the forehead. G.S. then grabbed Laura, allegedly intending to strike her, when Ms. Engraf took Laura and left the apartment. 1 Ms. Engraf subsequently telephoned the Stark County Social Service Board, who picked up Laura and applied to juvenile court for an order for temporary custody of the child.

Stark County Juvenile Court issued an order for temporary custody on December 16, 1977, (effective for 30 days) placing Laura under the care, custody, and control of the Stark County Social Service Board. Laura was admitted to the hospital for examination on December 15, 1977, and remained hospitalized for nine days.

The petition was subsequently filed with the juvenile court by the director of the Stark County Social Service Board to have Laura declared a deprived child, and a hearing was set for December 23, 1977, by order of the juvenile court. On December 23, 1977, the parties appeared in juvenile court and stipulated to a continuance of the hearing, which was later scheduled for January 26, 1978. Laura remained under the care, custody, and control of the Stark County Social Service Board, but was placed in the parents' home on December 24, 1977. The Stark County Social Service Board conditioned the placement with the parents upon three conditions: (1) the parents were not to consume alcoholic beverages, (2) the parents were not to leave Dickinson without informing the Social Service Board, and (3) only the parents were to care for Laura.

On December 31, 1977, the Dickinson police called the director of the Social Service Board and informed her that a desk clerk from a local motel was there with a baby that was later identified as Laura. Apparently, Ms. Engraf had asked the clerk to care for Laura while her parents and Ms. Engraf made a trip out of town. The desk clerk did not know the child or the parents, but she did know Ms. Engraf who had asked her to babysit. The clerk had expected them to return before 5:00 p. m. when she went off duty, and when they did not return, she went to the police at approximately 7:00 p. m. The parents and Ms. Engraf had allegedly left town to obtain some milk for the baby and allegedly had car trouble. Laura was subsequently placed in foster care until the hearing on January 26, 1978.

Following the hearing on January 26, 1978, the juvenile court issued its order in which it found Laura to be a deprived child and placed her under the care, custody, and control of the director of the Stark County Social Service Board for placement in a suitable foster home for two years. The order also provided that the Social Service Board place Laura with the parents if they acquired the capability of caring for her. Notwithstanding, it provided that Laura remain under the care, custody, and control of the Social Service Board for the two-year period, or until the further order of the court.

The parents appeal from the juvenile court's order to this court.

Before we discuss the issues in this case, we shall set out some general principles of law applicable in deprivation cases.

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 . . . ."

We have interpreted the term "proper care" to mean that the parents' conduct in raising their children must satisfy the "minimum standards of care which the community will tolerate." In Interest of K. P., 267 N.W.2d 1, 3 (N.D.1978); In Interest of R. H., 262 N.W.2d 719, 724 (N.D.1978). Evidence that compares the child-rearing skills of the natural parents and the foster parents will not alone support a finding of deprivation if the parents' efforts meet the minimum standards of care. Interest of R. D. S., 259 N.W.2d 636, 638 (N.D.1977). We have also recognized that the lack of cleanliness of the home alone does not establish deprivation. In Interest of R. H., 262 N.W.2d 719, 724 (N.D.1978); In re Kelber, 51 N.D. 698, 709, 200 N.W. 786, 789 (1924). Similarly, the finding of poverty or lack of education or culture is not sufficient. Bjerke v. D. T., 248 N.W.2d 808, 813 (N.D.1976); In re Kelber, supra at 789.

It is well-established that parents have a constitutional right to the custody and companionship of their children. In re J. Z., 190 N.W.2d 27, 29 (N.D.1971). This right is not absolute, however, and parents are not entitled to custody of their children under all circumstances. Interest of R. D. S., supra at 638; Bjerke v. D. T., supra at 811. Parents are entitled to a presumption that they are fit parents and the burden of disproving this presumption of parental fitness is on the challenger. Bjerke v. D. T., supra at 811. It is also clear that deprivation must be shown by clear and convincing evidence. Bjerke v. D. T., supra at 811.

Our scope of review in a deprivation proceeding is broader than in other cases tried to this court. Although we give appreciable weight to the finding of the juvenile court, we are not bound by the "clearly erroneous" rule of Rule 52(a), N.D.R.Civ.P., and are allowed to re-examine the evidence in a manner comparable to the former trial de novo. Bjerke v. D. T., supra at 811; In Interest of M. L., 239 N.W.2d 289, 291 (N.D.1976).

We have noted our reluctance to remove a child from the parents unless "diligent effort has been made to avoid such separation", and unless it is necessary to prevent serious detriment to the welfare of the child. Bjerke v. D. T., supra at 814. We have also noted our sensitivity to the argument that it is dangerous to allow social workers to determine how a family is run. Bjerke v. D. T., supra at 814.

Before we attempt to determine whether or not the juvenile court erred in concluding that Laura is a deprived child pursuant to Chapter 27-20, N.D.C.C., it is necessary to consider a number of procedural objections raised by the parents.

The parents contend that they requested all information in the files of the Social Service Board relating to this case ten days before the hearing on the petition, and did not receive any information until late afternoon the day before the hearing. The records of the Social Service Board allegedly contained results of medical and other tests performed on Laura, as well as "allegations of subsequent detrimental courses of conduct" by the parents. The parents argue that they failed to receive this information in time to sufficiently prepare a defense and therefore were denied due process of law. The petitioner argues that the records in this case, although not sent to the parents, were at all times available to them, and, in any event, that the petitioner was agreeable to a continuance if the parents so desired, upon condition that Laura continue to be under the custody of the Social Service Board pending the outcome of the hearing. When the parents declined the continuance, they waived any objection. That they waived the right to a continuance is supported by the transcript:

"THE COURT: Are you asking for a continuance?

"MR. REICHERT: No I am certainly not asking for a continuance. I am questioning whether the Court can grant it. The statute indicates you can take temporary custody of this child for thirty days and when that thirty days expires the child has to be given back. The thirty days has passed based on the agreement of counsel and I want the record to indicate the prejudice that I am working under.

"TH...

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