McGurren v. S. T.

• Decision Date: 12 May 1976
• Docket Number: No. 9191,9191
• Citation: 241 N.W.2d 690
• Parties: Thomas D. McGURREN, Plaintiff and Appellant, v. S.T. et al., Respondents and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 690

241 N.W.2d 690

Thomas D. McGURREN, Plaintiff and Appellant, v. S.T. et al., Respondents and Appellees.

Civ. No. 9191.

Supreme Court of North Dakota.

May 12, 1976.

Syllabus by the Court

1. Before a juvenile court may terminate the parental rights of a parent under § 27--20--44, NDCC, three factors must be established. These are: (1) that the child is a 'deprived child' within the purview of the Uniform Juvenile Court Act, Chapter 27--20, NDCC; (2) that the conditions and causes of the deprivation are likely to continue or will not be remedied; and (3) that by reason of these continuous or irremediable conditions and causes the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.

2. In addition to the three factors under § 27--20--44, NDCC, fitness of the parent must also be considered before parental rights of that parent can be terminated and a hearing on this factor is constitutionally required.

3. A child may be found to be a deprived child under the statutory definition of § 27--20--02(5)(a), NDCC, for the purpose of terminating parental rights under § 27--20--44, NDCC, if the prognostic evidence discloses the mother would be incapable of providing the proper parental care for the child even though the child is not, or has not been, in the physical custody of the mother and without waiting for the child to be first subjected to an actual deprivation.

4. The court's scope of review of decisions of juvenile cases under Chapter 27--20, NDCC, is much broader than in other cases tried to the court, and is equivalent to the former procedure of trial de novo.

5. The basic premise in a termination of parental rights case is that a parent has a fundamental, natural right to his child which is of constitutional dimension.

6. The burden of proof lies on the petitioner to show that the statutory requirements have been met before the child can be taken from its parents.

John M. Olson, State's Atty., and Robert P. Bennett, Asst. State's Atty. (argued), for plaintiff-appellant.

Irvin B. Nodland, Bismarck, filed a brief as Guardian ad Litem for Baby Boy T.

Gregory D. Morris, Bismarck, for appellee S. T.

SAND, Judge.

This is an appeal from the order of the Juvenile Court of Burleigh County dismissing the petition of Thomas D. McGurren, Director of Juvenile Court Services for Burleigh County, for the termination of the parental rights of the mother of Baby Boy T.

Baby Boy T. was born June 19, 1975. At the time of Baby Boy T.'s birth his mother was thirteen years old and unmarried. On the date of Baby Boy T.'s brith the child was taken by the Burleigh County Social Services, pursuant to a temporary order of the juvenile court, for placement in a foster home. The mother, therefore, has never had custody or control of her son. McGurren filed a petition on June 26, 1975, alleging that Baby Boy T. was a deprived child under Chapter 27--20, North Dakota Century Code, and asking the juvenile court to terminate the parental rights of the mother and to transfer the care, custody, and control of the child to the Executive Director of the Social Services Board of North Dakota, or a licensed child-placing agency willing to accept custody for the purpose of placing the infant for adoption or in a foster home. The hearing on the petition was set for July 21 and was continued to December 9, at which time the court denied the petition for termination of the parental rights of the mother. Custody of Baby Boy T. was continued with the Burleigh County Social Services until a decision could be reached on the immediate placement of the child. The petitioner, McGurren, has appealed from this order of the court dismissing his petition. McGurren contends that sufficient evidence exists to find the child was a deprived child under Chapter 27--20 and to grant the petition and that denial of the petition will deprive the child of his right to 'pursue and obtain happiness under Article I, § 1, of the Constitution of the State of North Dakota.'

During oral argument, counsel for petitioner-appellant also argued in the alternative that the case should be remanded to the juvenile court with instructions. He was then asked if the argument constituted an admission by him that the record before us was not adequate to support the relief requested here and also in the juvenile court. He responded that he asked for a remand because the juvenile court had not followed the decision rendered by this court in In re H., 206 N.W.2d 871 (N.D.1973), and that the case should be remanded to give the juvenile court an opportunity to apply the rule of law set out in that case.

The issue presented in this case is somewhat similar to that in In re H., supra, but factually there are some distinguishing factors. In In re H., the mother was adjudged an unruly child and was under the care and custody of the State authority. Also, the juvenile court had found the child a deprived child. Neither one of these facts is present in the instant case. The court in In re H. stated the issue as:

'. . . May the juvenile court, on the basis of prognostic evidence indicating the mother's inability to provide proper parental care for her child, terminate the parental rights of the mother in her child, where the mother has never has the opportunity to demonstrate her maternal abilities because the custody of the child had been placed in the county welfare board immediately upon its birth?'

Section 27--20--03, NDCC, states that the juvenile court has exclusive original jurisdiction of proceedings for the termination of parental rights, except where they are a part of an adoption proceeding. Therefore, these proceedings are governed by the Uniform Juvenile Court Act, Chapter 27--20, NDCC.

Section 27--20--44, NDCC, states:

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

'a. . . .

'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. . . .'

Section 27--20--02(5), NDCC defines a 'deprived child' as one who:

'a. 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;

'b. Has been placed for care or adoption in violation of law; or

'c. Has been abandoned by his parents, guardian, or other custodian.'

In In re H., supra, this court after referring to the North Dakota Uniform Juvenile Court Act, which conferred jurisdiction upon the juvenile court to terminate the parental rights, stated:

'Thus, § 27--20--44(1)(b) requires that the evidence establish three factors before a juvenile court may terminate the parental rights of a parent. These factors are: 1) that the child is a 'deprived child' within the purview of the Uniform Juvenile Court Act, Chapter 27--20, N.D.C.C.; 2) that the conditions and causes of the deprivation are likely to continue or will not be remedied; and 3) that by reason of these continuous or irremediable conditions and causes the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.'

However, fitness is another factor to be considered and a hearing on this factor is constitutionally required. In Kottsick v. Carlson, 241 N.W.2d 842 (N.D.1976), we said, 'the parent of a child has a constitutional right to be heard on his fitness before the parent can be deprived of his parental rights of the child.'

The appellant in In re H., supra, argued that the child was not a 'deprived child' under § 27--20--02(5)(a) because, though it had at no time received any parental care, it had always had other care. The court stated that it would not be limited by so literal a construction of the statute. The court stated, at 206 N.W.2d 874:

'Therefore, we conclude that § 27--20--02(5)(a), N.D.C.C., should be construed so as to include within its definition of a 'deprived child' the child of a mother who, while never having had the opportunity to care for her child and thereby demonstrate her maternal abilities, is shown to be presently incapable of providing proper parental care for her child. Such a construction would be consistent with the stated purpose of the Uniform Juvenile Court Act (Ch. 27--20, N.D.C.C.), which is to provide for the care, protection, and wholesome moral, mental, and physical development of a child (§ 27--20--01, N.D.C.C.), since such construction would enable the juvenile court to take custody of a child pursuant to § 27--20--30, N.D.C.C., solely upon the basis of sufficient prognostic evidence that the mother would be incapable of providing proper parental care for the child, without requiring that the child be subjected to an actual deprivation before the juvenile court takes custody.'

This reasoning is valid and may have application to this case depending on the facts that are developed. Nevertheless, the instant case must be decided on its own set of facts on an ad hoc basis.

The juvenile court found that it had not been proved by clear and convincing evidence that Baby Boy T. is a deprived child, as defined by Chapter 27--20, NDCC. The court stated that the mother has had no opportunity to display her ability to provide parental care, control, or subsistence and that the State failed to show 'any inability on the part of the mother to provide for the physical, mental, or emotional health of the child, nor was any evidence forthcoming of any moral depravity which would adversely affect the child's interests.'

This court's scope of review of decisions of juvenile causes under Chapter 27--20, NDCC, is much broader than in other cases tried...