M. M. C., In Interest of, 9536

• Decision Date: 15 March 1979
• Docket Number: No. 9536,9536
• Citation: M. M. C., In Interest of, 277 N.W.2d 281 (N.D. 1979)
• Parties: In the Interest of M. M. C., a child. John S. FOSTER, Assistant State's Attorney, Petitioner and Appellee, v. B. J. C., Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 281

277 N.W.2d 281

In the Interest of M. M. C., a child John S. FOSTER, Assistant State's Attorney, Petitioner and Appellee, v. B. J. C., Respondent and Appellant.

Civ. No. 9536.

Supreme Court of North Dakota.

March 15, 1979.

Robert A. Alphson, Grand Forks, for respondent and appellant; argued by Donald W. Legreid.

Damon E. Anderson, Asst. State's Atty., Grand Forks, for petitioner and appellee.

Harold W. E. Anderson, Guardian Ad litem, Grand Forks.

SAND, Justice.

The mother of M.M.C. (hereafter Marcia, a pseudonym) appealed from an order of the Grand Forks County Juvenile Court declaring Marcia to be a deprived child and placing her in the care, custody, and control of the Director of the Grand Forks Social Service Center for a period not to exceed two years. We reverse.

A petition was filed on 19 August 1977 by the Grand Forks County Assistant State's Attorney alleging Marcia to be a deprived child. A temporary custody order was entered and Marcia was removed from the custody of her mother (B.J.C.) and placed in a foster home. On 21 October 1977 a hearing was held before a juvenile court referee who found Marcia to be a deprived child and recommended custody be given to the Director of the Grand Forks County Social Service Center for placement in a foster home for a period not to exceed two years. B.J.C. and Marcia's natural father petitioned the juvenile court for review of the referee's findings and recommendations in accordance with § 27-20-07, North Dakota Century Code. Following a hearing in April 1978, an order was filed on 2 May 1978 by the juvenile court affirming the findings and recommendations of the juvenile court referee. B.J.C. appealed the juvenile court's order to this court challenging, along with other matters, ¹ the sufficiency of the evidence supporting the order.

Marcia was born out of wedlock on 9 June 1974. Marcia's mother was 48 years old at the time of this appeal, and had a history of mental health problems diagnosed as chronic undifferentiated schizophrenia for which she has been hospitalized on a number of occasions, the last period lasting approximately five or six weeks when Marcia was about seven months old.

Since the time of Marcia's birth, until her removal as a result of the temporary custody order of the juvenile court, she has been in the custody of B.J.C.

Except for a period of about one year when they resided in low-income housing, Marcia and B.J.C. lived in the home of B.J.C.'s mother, M.O. While B.J.C. was living in low-income housing she was periodically visited by an employee of Homemaker Services from Grand Forks County who assisted her in housework and the care of Marcia. There was no evidence of physical neglect of Marcia during this time, and she appeared clean and well cared for, nevertheless B.J.C. complained that Marcia got in her way because it was difficult to find a babysitter so B.J.C. could go out.

In May 1976, after Marcia and B.J.C. moved back to the home of M.O., caseworkers from the Grand Forks County Social Service visited and provided assistance to B.J.C. The caseworkers observed no signs of physical neglect of Marcia, however B.J.C. constantly complained she was tired of caring for her daughter. It also appeared to the caseworkers there was a lack of spontaneous affection between the two. The caseworkers suggested day care facilities or foster homes to lighten or relieve the burden of caring for Marcia, but M.O.'s opposition to outside care for Marcia made the suggestions unacceptable. Also, during this time there was considerable argument between B.J.C. and M.O. concerning, among other matters, the care of Marcia, B.J.C.'s smoking habits, and B.J.C.'s failure to take medication or see a psychiatrist.

In June 1977, B.J.C. was referred to Dr. Edwin G. Olmstead. After treating B.J.C. for approximately seven weeks with very little response, Dr. Olmstead suggested to B.J.C.'s caseworker that Marcia be placed in a foster home to relieve B.J.C. of the responsibility of caring for her daughter. Dr. Olmstead recommended removal of Marcia because, in his opinion, the effective treatment of B.J.C. required that she socialize, but that B.J.C. found socialization difficult or impossible while caring for Marcia. On the basis of Dr. Olmstead's recommendation, the deprivation petition was filed by the Assistant State's Attorney and Marcia was removed from the custody of her mother.

At the hearing before the juvenile court referee, Dr. Olmstead testified there was little or no chance B.J.C. would recover, other than a marginal adjustment, from her emotional illness. He said that because of her illness she was not capable, nor likely of becoming capable, of expressing love and affection for her daughter.

After removal of her daughter, and subsequent to the hearing before the juvenile court referee, B.J.C.'s emotional condition gradually improved to the point she was able to hold down a part-time job until transportation problems prevented her continued employment. Also during this time it was stated that B.J.C. quit smoking and relations with her mother improved.

At the hearing before the juvenile court, caseworkers from the Grand Forks County Social Service Center testified that in their opinion B.J.C.'s improved emotional condition was the result of Marcia's removal, implying if the responsibility of caring for Marcia was again given to B.J.C. conditions would return to the point they were when Marcia was removed. Testimony was presented that during Marcia's placement in foster care there was an apparent lack of affection between mother and daughter during visitations at the Grand Forks County Social Service Center. There was also testimony that Marcia was much more active and outgoing since her placement in the foster home and problems of slowed speech and bed wetting had improved or had been eliminated.

Dr. Olmstead testified at the juvenile court hearing that B.J.C. had improved remarkably and beyond his expectations expressed at the earlier hearing before the juvenile court referee. Although her adjustment was marginal in the sense she would have to remain on medication, B.J.C. had no symptoms of her illness at the time of the hearing. Dr. Olmstead attributed B.J.C.'s improvement to the medication he prescribed, although her initial improvement could have resulted from the removal of Marcia. Olmstead testified that with the assistance of medication many persons suffering from the same illness as B.J.C. are able to adjust and lead fairly normal lives. He stated that with help, B.J.C. was perfectly capable of giving her daughter the love and care she needed. Help, in the form of someone able to assist in the care of both B.J.C. and Marcia, would be needed in caring for Marcia as the attention span of B.J.C. was short and socialization was an important part of her treatment.

A deprived child is defined in § 27-20-02(5)(a), NDCC, 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."

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). Although the right of a parent to the custody of his child is not absolute and parents are not entitled to their children under all circumstances, Interest of R. D. S., 259 N.W.2d 636, 638 (N.D.1977); Bjerke v. D. T., 248 N.W.2d 808, 813 (N.D.1976), a parent's right is paramount and superior to that of any other person and the burden of disproving the presumption that a parent is a fit and suitable person to be entrusted with the care of his child rests upon the person challenging it. In Re J. V., 185 N.W.2d 487, 492 (N.D.1971). Deprivation must be shown by clear and convincing evidence and any doubt should be resolved in favor of the natural parent. Bjerke v. D. T., supra at 811; Waagen v. R. J. B., 248 N.W.2d 815, 818 (N.D.1976). A child should be separated from his parents only when necessary for his welfare or in the interests of public safety. Waagen v. R. J. B., supra at 818.

Our scope of review in deprivation cases is governed by § 27-20-56(1), NDCC, which provides that review be based upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the...