Kleingartner v. D.P.A.B., 9980

• Decision Date: 06 October 1981
• Docket Number: No. 9980,9980
• Citation: 310 N.W.2d 575
• Parties: Nancy KLEINGARTNER, Petitioner and Appellee, v. D.P.A.B., Mother, Respondent and Appellant, E. C., Putative Father, and The Executive Director of the Social Service Board of North Dakota, Respondents. Nancy KLEINGARTNER, Petitioner and Appellee, v. D.P.A.B., Mother, Respondent and Appellant, B. B., Father, and The Executive Director of the Social Service Board of North Dakota, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 575

310 N.W.2d 575

Nancy KLEINGARTNER, Petitioner and Appellee, v. D.P.A.B., Mother, Respondent and Appellant E. C., Putative Father, and The Executive Director of the Social Service Board of North Dakota, Respondents.

Nancy KLEINGARTNER, Petitioner and Appellee, v. D.P.A.B., Mother, Respondent and Appellant B. B., Father, and The Executive Director of the Social Service Board of North Dakota, Respondents.

Civ. No. 9980.

Supreme Court of North Dakota.

Oct. 6, 1981.

Patricia L. Burke, Asst. State's Atty., Bismarck, for appellee.

Ralph A. Vinje, Bismarck, for appellant.

SAND, Justice.

This is an appeal by D.P.A.B. (Donna) from two juvenile court orders terminating her parental rights. One of the orders terminated her parental rights as to T. P. (Terri), and the other terminated her parental rights as to Je. B. (Jeff), Jo. B. (John), and Ja. B. (James). Donna is the natural mother of Terri, Joseph, John and James. E. C. (Edward) is the natural father of Terri, and B. B. (Bob) is the natural father of the other three children. (All names are pseudonyms.)

The record reflects a traumatic early life for Donna. When she was thirteen years old, her father contacted social services regarding her school attendance and overnight stays away from home. She was placed in the custody of the state youth authority in Fargo in 1971 and was committed to the North Dakota State Industrial School in May 1972, where she remained until December 1973. After leaving SIS, Donna entered the Job Corps until March 1974, when, at the age of 16, she married her first husband. After one month Donna had that marriage annulled. She moved to Fort Yates, North Dakota, in May 1974 and lived out of wedlock with Edward. On 2 Apr 1975 Terri was born as the result of this relationship.

After terminating her relationship with Edward, Donna took up residence with Bob and became pregnant with her second child, Jeff, who was born on 3 Dec 1976. At some point Donna married Bob and on 2 Mar 1979 she gave birth to her third and fourth children, John and James. Bob and Donna were later divorced.

The record discloses that prior to February 1980, Donna had abused alcohol and nonprescription drugs. She had mental problems which resulted in her hospitalization. She was diagnosed as having a combination of antisocial and schizophrenic problems. She also had been hallucinating and hearing voices. The testimony indicated that the pressures of raising four young children caused these problems and also resulted in the children being placed in foster care homes at various times. Several abuse and neglect reports were forwarded to child protectived services. Eventually Donna left the children and a note with a friend, indicating that she would come back for them in two years, or when she had gotten her life straightened out.

In January 1980 Nancy Kleingartner, a resident of Burleigh County, filed a petition for termination of Edward's and Donna's parental rights as to Terri. She also filed a similar petition to terminate Bob's and Donna's rights as to Jeff, John and James. The two petitions were consolidated for trial. Neither Edward nor Bob appeared at the hearing before the juvenile court, and they were determined to have abandoned their respective children.

At the hearing before the juvenile court in March 1980 Donna testified that she had accepted religion and God into her life as a means of coping with her problems and that she was attempting to stabilize her life. She asked for additional time to complete her rehabilitation process so as to be able to care for her children. The juvenile court, without informing her, essentially granted her additional time by not making a decision immediately after the hearing and by delaying the process until December 1980 when the court scheduled a further hearing. ¹ Prior to receiving testimony at the second hearing the juvenile court indicated that the additional time was given without notice to Donna so that the court would have the benefit of learning about her behavior and actions without the impetus of her trying to create an impression upon the court to retain her parental rights. ² The court, at the second hearing, wished to review her "mental and emotional capabilities and to determine if she had progressed since the March hearing and also whether this progress was out of genuine motivation rather than out of fear of the stigma and emotional trauma of losing her children."

At the second hearing, in December 1980, the juvenile court heard additional testimony concerning Donna's efforts to stabilize her life. In addition to Donna's own testimony, two members of her church organization, as well as her pastor, testified as to the changes in her life. Dr. Olov Gardebring also testified concerning the present status and future needs of the children. After the second hearing, the district court entered an order terminating the parental rights of Edward, Bob, and Donna as to their children. Donna appealed to this Court. ³

The only issue raised by Donna is whether or not the trial court erred in finding that the conditions and causes of the children's deprivation were likely to continue and would not be remedied and that the children would suffer serious physical, mental, moral, or emotional harm.

Our review of decisions under the Uniform Juvenile Court Act (NDCC Ch. 27-20) is broader than in other cases tried to the court and is equivalent to the former procedure of trial de novo. In Interest of M. N., 294 N.W.2d 635 (N.D.1980). The juvenile court's findings are entitled to appreciable weight but this Court is not bound by them. In Interest of M. N., supra. While our review is on a de novo basis, we nevertheless must take into account that the trial judge had the opportunity to observe the demeanor of the witnesses whereas we have only the cold transcript before us.

Section 27-20-44, North Dakota Century Code, deals with the termination of parental rights, and provides as follows:

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

a. The parent has abandoned the child;

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 physical, mental, moral, or emotional harm ; or

c. The written consent of the parent acknowledged before the court has been given.

"2. If the court does not make an order of termination of parental rights it may grant an order under section 27-20-30 if the court finds from clear and convincing evidence that the child is a deprived child." (Emphasis added.)

In this instance the juvenile court terminated Donna's parental rights pursuant to NDCC § 27-20-44(1)(b). Before a juvenile court may terminate the parental rights of a parent, under NDCC § 27-20-44(1)(b) the State must establish the following three factors by clear and convincing evidence adduced at the juvenile hearing; (1) the child is a "deprived child" ; (2) the conditions and causes of the deprivation are likely to continue or will not be remedied; and (3) by reason of the continuous or irremediable conditions and causes, the child is suffering or will probably suffer serious physical, mental, moral or emotional harm. Interest of R.W.B., 241 N.W.2d 546 (N.D.1976).

Donna does not dispute the juvenile court's finding that the children are deprived. However, she asserts that the juvenile court erroneously found that the cause of the deprivation is likely to be continued and will not be remedied and that by reason thereof the children are suffering or will probably suffer serious physical, mental, or emotional harm.

It cannot be seriously questioned that the evidence adduced at the initial hearing, standing alone, would be sufficient to satisfy the State's burden in a termination proceeding. However, Donna relies almost solely upon the evidence adduced at the second hearing, which she asserts establishes that she has made great strides to stabilize her life and that she will be able to properly raise her children. Thus, she contends that the juvenile court's finding that the causes and conditions of deprivation will continue is erroneous.

Donna points out several factors which she asserts establish that she has stabilized her life to properly care for the children. Among these factors are that she has not returned to the use of alcohol, tobacco, or drugs; she was gainfully employed as a maid in a motel; she was teaching a Sunday school class; and she was described as being reliable and trustworthy, as having a purpose in life, as having stability, and as a person working toward a...