L.F., In Interest of

• Decision Date: 30 June 1998
• Docket Number: No. 970313,970313
• Parties: In the Interest of L.F. and J.F., Children. Earle R. MYERS, Jr., Richland County State's Attorney, Petitioner and Appellee, v. J.H., Parent of said Children, Respondent and Appellant. L.F. and J.F., Children, and D.F., Parent of said Children, Respondents. Civil
• Court: North Dakota Supreme Court

Page 573

580 N.W.2d 573

1998 ND 129

In the Interest of L.F. and J.F., Children Earle R. MYERS, Jr., Richland County State's Attorney Petitioner and Appellee, v. J.H., Parent of said Children, Respondent and Appellant L.F. and J.F., Children, and D.F., Parent of said Children Respondents.

Civil No. 970313.

Supreme Court of North Dakota.

June 30, 1998.

Mark A. Meyer (argued), of Meyer Law Firm, Wahpeton, for respondent and appellant.

Earle R. Myers (argued), State's Attorney, Wahpeton, for petitioner and appellee.

Janel B. Fredericksen of Smith & Strege, Wahpeton, for respondents.

MARING, Justice.

¶1 J.H. (Janet), ¹ the mother of the minor children, L.F. (Laura) and J.F. (Jennifer), appeals from a juvenile court order terminating all of her parental rights and obligations to her two daughters. The minor children's father, D.F. (Darrell), did not appeal the juvenile court's decision terminating his parental rights. We conclude the juvenile court's order terminating parental rights was supported by clear and convincing evidence. We affirm.

I

¶2 Janet and Darrell, although not married to each other, lived together for approximately six years in South Dakota and had two children, Laura who was born on February 10, 1991, and Jennifer who was born on August 26, 1993. From the record below, it appears Janet and Darrell's household was fraught with domestic violence, alcoholism, and abuse. In July 1994, Darrell was referred to a mental health center by the Watertown Child Protection Services as a result of domestic violence and several child abuse or neglect reports. Sometime in early 1996, Janet left Darrell and moved out of the household leaving Darrell with sole custody of Laura and Jennifer for about six months. In July 1996, a South Dakota court granted custody of the children to Janet. Apparently, Janet then moved around with the children, eventually residing with an acquaintance in Richland County, North Dakota.

¶3 A Richland County social worker first became involved with Janet and her children on September 10, 1996, after investigating a report that the children had been sexually abused by an adolescent who lived with them in the home. In mid-September, social services attempted to provide Janet and her children counseling and a parental aide in the home. Janet, however, did not show up for a counseling appointment and was kicked out of her residence the day the in-home assistance was to begin. On September 26, 1996, social services received another report of child abuse or neglect regarding Janet and her children after Janet stopped at a local tavern with Laura and Jennifer asking for food for the children.

¶4 Soon thereafter, Janet requested that Richland County Social Services place her two children in foster care as she was no longer able to provide and care for them. On September 27, 1996, the Juvenile Supervisor for Richland County issued an Order for Temporary Shelter Care regarding Laura and Jennifer. On September 30, 1996, a shelter care hearing was held before the juvenile court and an Order for Further Shelter Care was issued.

¶5 On October 15, 1996, the State's Attorney filed a petition alleging the children were deprived and requested a hearing for the juvenile court to make an appropriate order of disposition. The juvenile court appointed Lisa Stenehjem as the guardian ad litem for the children.

¶6 On November 21, 1996, a hearing was held, and both parents appeared with their respective attorneys. The mother denied the allegations in the petition. The juvenile court then ordered the hearing on the petition be continued until December 11, 1996, and also ordered the mother undergo a parental capacity and psychological evaluation with Dr. Rick Ascano, a clinical psychologist. Pending the December hearing, the juvenile court ordered the children to remain in foster care, allowing visitation by the mother. The December 11, 1996, hearing was continued until the completion of Dr. Ascano's report, which was eventually completed on January 7, 1997. On February 3, 1997, the juvenile court issued a Temporary Order, and again continued the hearing pending completion of Lisa Stenehjem's home study of the mother.

¶7 On February 19, 1997, a hearing was again held on the petition. At this hearing, the mother stipulated to the petition as amended. The juvenile court issued its Findings of Fact and a Temporary Order of Disposition. In its findings, the juvenile court determined the children were without the proper parental care or control necessary for their physical, mental, emotional health, or morals. ² The juvenile court also found the parents were unable at that time to provide the necessary proper parental care or control. The Temporary Order essentially provided for the children to remain in foster care for up to six months; for the mother to have frequent supervised visitation and, if deemed appropriate, unsupervised visitation; for social services to assist the mother in receiving counseling; for the mother to follow the recommendations of Dr. Ascano's report; and for reasonable efforts to be made to return the children to their mother.

¶8 On June 27, 1997, the Richland County State's Attorney filed a Petition to Terminate Parental Rights because the mother had substantially failed to meet the conditions of the Temporary Order. On July 30, 1997, a hearing was held on the Petition to Terminate Parental Rights. The children's father chose not to be present at the termination hearing, but his attorney appeared on his behalf. At the hearing, the State's Attorney called four witnesses: Dr. Ascano; two Richland County social workers; and the current foster mother to the children. The mother also presented her own testimony in addition to the testimony of her current fiance. At the conclusion of the testimony, the juvenile court issued its Findings of Fact and Order Terminating Parental Rights. The juvenile court found the children to be deprived and without proper care or control, subsistence, education required by law, or other care or control necessary for their physical, mental, or emotional health or morals. ³ The juvenile court also determined that the conditions and causes of the deprivation were likely to continue or would not be remedied, and that by reason thereof, the children were suffering and in the future would probably suffer serious physical, mental, moral or emotional harm. Janet appeals the order terminating parental rights and requests this Court to reverse the order and remand to the juvenile court for further proceedings.

II

¶9 We have previously asserted that "[c]ases involving the termination of parental rights are always difficult, especially when there has been no claim of intentional deprivation." In Interest of D.S., 325 N.W.2d 654, 659 (N.D.1982). This case is indeed no exception. It is a well-established principle that parents have a fundamental, natural right to their children which is of constitutional dimension. In Interest of L.J., 436 N.W.2d 558, 561 (N.D.1989). This constitutional protection ensures parental rights may not be terminated "merely because a parent lacks the skill to optimize a normal child's potential." Id. A parent's constitutional right, however, is not absolute, and a parent must at least provide care that satisfies the minimum community standards. Id. "Any doubts should be resolved in favor of the natural parent[,] and parental rights should be terminated only when necessary for the child's welfare or in the interest of public safety." Asendorf v. M.S.S., 342 N.W.2d 203, 207 (N.D.1983).

¶10 The Uniform Juvenile Court Act, N.D.C.C. ch. 27-20, authorizes the termination of parental rights in certain cases. In cases other than abandonment or parental consent, the court may terminate the parental rights only if "[t]he 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." N.D.C.C. § 27-20-44(1)(b). This statute, therefore, creates the following three-part test for determining whether the juvenile court may terminate parental rights: 1) Is the child deprived? 2) Are the conditions and causes of the deprivation likely to continue? 3) Is the child suffering, or will the child in the future probably suffer, serious physical, mental, moral, or emotional harm? See In Interest of J.L.D., 539 N.W.2d 73, 75 (N.D.1995). The state must prove these elements by clear and convincing evidence. Id.

¶11 Janet argues the state failed to prove by clear and convincing evidence the conditions and causes of the deprivation are likely to continue or will not be remedied. Janet further argues the county social service agency did not make affirmative and diligent efforts to assist her in being reunited with her children. We disagree.

¶12 On appeal, we review the juvenile court's decision to terminate parental rights and examine the evidence in a manner similar to a trial de novo. L.J., 436 N.W.2d at 560. We review the "files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." N.D.C.C. § 27-20-56(1). Although we are not bound by the juvenile court's findings, we recognize the juvenile court's "opportunity to observe the candor and demeanor of the witnesses." J.L.D., 539 N.W.2d at 75.

A. Deprivation

¶13 In its Findings of Fact for both the Temporary Order of Disposition and the Order Terminating Parental Rights, the juvenile court determined Laura and Jennifer were deprived children. Janet does not contest these findings on appeal. A "deprived child" is statutorily defined as one who "[i]s 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,...