Johnson v. S.R. (In re Interest of M.R.)
| Decision Date | 17 September 2015 |
| Docket Number | No. 20150175.,20150175. |
| Citation | 870 N.W.2d 175 |
| Parties | Interest of M.R., a child Betsey Johnson, L.S.W., Petitioner and Appellee v. S.R., V.G., G.L., and John Doe, Respondents G.L., Appellant. |
| Court | North Dakota Supreme Court |
Pam H. Ormand, Assistant State's Attorney, Fargo, ND, for petitioner and appellee.
Mark T. Blumer, Fargo, ND, for appellant.
[¶ 1] G.L. appeals from a juvenile court order terminating his parental rights. He argues the juvenile court erred by declaring him in default, finding the conditions and causes of the child's deprivation were likely to continue, and determining the Indian Child Welfare Act (“ICWA”) did not apply. We affirm the juvenile court's order.
[¶ 2] M.R., the child at issue, was placed in the custody of social services due to concerns that her mother was unfit to care for her. After the child was placed into custody, a social services employee petitioned for termination of parental rights. The petition stated that paternity had not been confirmed, but it noted an individual named V.G. could be the father. It was subsequently established that V.G. was not the father. G.L. then came forward claiming to be the father, but his paternity was never confirmed by biological testing. At a hearing on the petition, M.R.'s mother appeared and stated she desired to voluntarily relinquish her parental rights.
[¶ 3] In an interim order, the juvenile court noted ICWA may apply because G.L. was a member of the Spirit Lake Sioux Tribe. The juvenile court then sent notices of the right to intervene to the tribe. In response, Spirit Lake Tribal Social Services sent a letter stating that, after reviewing the case, the tribal court and the ICWA director “would support the current Termination of Parental Rights in order to establish permanency for [M.R.].” Noting G.L. had refused paternity testing, the tribe indicated it would not intervene unless there was biological proof G.L. was M.R.'s father.
[¶ 4] At the hearing on termination of parental rights, G.L.'s counsel was present, but G.L. failed to appear. His counsel requested a continuance so G.L. could be present; the court denied the motion. G.L.'s attorney told the court he had recently learned that G.L. was incarcerated in Polk County, Minnesota. The court then took a recess to allow G.L.'s attorney to contact G.L. to determine whether he could appear by telephone. After the recess, G.L.'s attorney informed the court that he chose not to attempt to contact G.L. “based on all the conversations [he] had previously with [G.L.].” The hearing then proceeded in G.L.'s absence.
[¶ 5] During the hearing, a social worker testified G.L. had signed an acknowledgment of paternity and that the Department of Vital Records had created a new birth certificate for M.R. listing G.L. as the father. The social worker also testified G.L. had an extensive criminal history, he had spent most of his adult life incarcerated, he had other children whom he did not play an active role in parenting, he had significant problems with alcohol abuse, and he has had difficulty maintaining housing, employment, or any kind of stability. The juvenile court terminated G.L.'s parental rights, stating “[i]t is believed that [G.L.] may be incarcerated in Polk County,” and G.L. “was served with proper notice” of the trial date. The court explained it had terminated G.L.'s parental rights after finding reasonable efforts were made to prevent the removal of M.R. from the home, that termination was in M.R.'s best interests, and G.L. was “in default for failing to appear or participate in these proceedings.”
[¶ 6] G.L. argues the juvenile court erred when it declared him in default and that it did not afford him due process when it terminated his parental rights while he was not present. A juvenile court may terminate parental rights if: (1) the child is deprived; (2) the conditions and causes of the deprivation are likely to continue or will not be remedied; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27–20–44(1)(c) ; see also Interest of K.B., 2011 ND 152, ¶ 7, 801 N.W.2d 416. “The party seeking parental termination must prove all elements by clear and convincing evidence.” K.B., at ¶ 7. Clear and convincing evidence is “evidence that leads to a firm belief or conviction the allegations are true.” Interest of T.A., 2006 ND 210, ¶ 10, 722 N.W.2d 548. A court's decision to terminate an individual's parental rights is a question of fact, and that decision will not be overturned unless it is clearly erroneous. Interest of M.B., 2006 ND 19, ¶ 13, 709 N.W.2d 11. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, no evidence exists to support it, or if it is clear a mistake has been made. Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480.
[¶ 7] G.L. argues the juvenile court erred when it declared him in default. Under N.D.R.Juv.P. 10(a)(3) :
Except in a continued foster care matter under N.D.C.C. § 27–20–30.1, the parent, guardian or custodian of a child must be present at all hearings unless excused by the court. If such person fails to attend a hearing with the child without excuse, the court may order a law enforcement officer to take the person into custody and bring the person before the court. The court may hold the person in contempt. The court may proceed if it is in the best interests of the child to do so even if the parent, guardian, or custodian fails to appear.
G.L. appeared through counsel but failed to appear in person. The juvenile court may receive evidence in support of a petition for default, and it may declare default on a party who has failed to appear. N.D.R.Juv.P. 10(b).
[¶ 8] In Interest of J.C., we determined the juvenile court erred when it declared default and terminated a mother's parental rights because the juvenile court did not hear “any evidence to support the termination.” 2007 ND 111, ¶ 1, 736 N.W.2d 451. In the present case, however, two licensed social workers presented testimony regarding the evidentiary basis for terminating G.L.'s parental rights. In addition, after G.L.'s attorney informed the court that he believed his client was incarcerated, the court provided G.L.'s attorney the opportunity to call G.L. to see whether he could appear telephonically. G.L.'s attorney then notified the court that G.L. had expressed a preference to appear only in person, and he decided not to call G.L. On appeal, G.L. argues the court erred when it did not require his attorney to notify him he could appear by telephone. Courts are not required to second guess attorney's statements regarding their client's decision not to appear telephonically at a parental rights termination trial. Consequently, we hold the juvenile court did not err when it declared G.L. was in default.
[¶ 9] G.L. asserts he was denied due process. He argues the juvenile court should not have proceeded with the trial without notifying him that his motion for a continuance was not granted and informing him that he had the option of appearing by telephone.
[¶ 10] Although parents have a fundamental right to raise their children, such a right is not absolute or unconditional. Interest of J.C., 2007 ND 111, ¶ 12, 736 N.W.2d 451. “Generally, procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.” St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175. “The requirements of due process are flexible and vary depending upon the circumstances of each case.” Id. at ¶ 7. However, “[p]arents do not have a constitutional due process right to appear at proceedings to terminate their parental rights, and their due process rights are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique.” J.C., at ¶ 12. An individual's right to appear may be satisfied by allowing an appearance via telephone. St. Claire, at ¶ 6.
[¶ 11] G.L. was served with proper notice of the trial's date, and he was represented by counsel at the trial. In addition, when the juvenile court realized G.L. was not present, it took a recess to allow G.L.'s attorney to notify him he could appear telephonically. The attorney advised the court he had previously discussed with G.L., G.L.'s preferences regarding telephonic appearances. Consequently, we conclude the juvenile court took sufficient measures to afford G.L. due process.
[¶ 12] G.L. argues the juvenile court erred by finding the conditions and causes of the child's deprivation were likely to continue.
[¶ 13] In a case involving the termination of parental rights, the petitioner must establish by clear and convincing evidence that the child is deprived and that the causes and conditions of deprivation are likely to continue. See N.D.C.C. § 27–20–44(1)(c)(1) ; see also Interest of K.B., 2011 ND 152, ¶ 7, 801 N.W.2d 416. A child is deprived if the child is:
without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian....
N.D.C.C. § 27–20–02(8)(a). Parents' conduct when raising a child must satisfy the minimum standard of care the community will tolerate. Interest of G.R., 2014 ND 32, ¶ 8, 842 N.W.2d 882. A parent must show he or she has the present capability, or capability within the near future, to be an adequate parent. Id. “In determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough.” Interest of K.J., 2010 ND 46, ¶ 8, 779 N.W.2d 635. “Prognostic evidence, which forms the basis for a reasonable prediction as to...
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