N.W., In Interest of, s. 930113

• Decision Date: 05 January 1994
• Docket Number: 930114,Nos. 930113,s. 930113
• Citation: 510 N.W.2d 580
• Parties: In the Interest of N.W., A Child. GOLDEN VALLEY COUNTY SOCIAL SERVICES, Petitioner and Appellee, v. P.G.S., Respondent, and J.S., Respondent and Appellant (Two Cases). In the Interest of A.S., A Child. Civ.
• Court: North Dakota Supreme Court

Page 580

510 N.W.2d 580

In the Interest of N.W., A Child.

GOLDEN VALLEY COUNTY SOCIAL SERVICES, Petitioner and Appellee, v. P.G.S., Respondent, and J.S., Respondent and Appellant (Two Cases).

In the Interest of A.S., A Child.

Civ. Nos. 930113, 930114.

Supreme Court of North Dakota.

Jan. 5, 1994.

Glen R. Bruhschwein, Asst. State's Atty., Dickinson, for petitioner and appellee. Submitted on briefs.

William G. Heth, Dickinson, for respondent and appellant. Submitted on briefs.

SANDSTROM, Justice.

J.S. (Jane, a pseudonym) appealed from orders of the juvenile court extending temporary foster care for N.W. and A.S. (Nancy and Ann, pseudonyms) for 15 months. We affirm.

P.S. (Paul, a pseudonym) and Jane are married. Ann, born on September 11, 1983, is their natural daughter. Nancy, born on December 5, 1981, is Jane's daughter from a previous marriage, and Paul is Nancy's stepfather. Paul and Jane also have a son, born on July 23, 1985, who is not involved in these proceedings. On February 5, 1991 the juvenile court determined Nancy and Ann were deprived children and placed them in the temporary custody of the Golden Valley Social Service Board (the board) for 18 months. ¹ On November 22, 1991 the court extended the temporary custody placements for another 18 months.

In November 1992, the board moved to again extend the temporary custody arrangements. In response, Paul and Jane moved the court to terminate its prior order and to return Nancy and Ann to them. After two hearings on these motions, the juvenile court issued orders on March 17, 1993, denying Paul and Jane's motion to terminate the court's prior custody order and granting an extension of temporary foster care for another 15 months. Appealing from the extension, Jane asserts the court had no "prognostic evidence" that Nancy and Ann's deprivation is likely to continue. She argues the court should have refused the extension and returned Nancy and Ann to Paul and her. ²

A deprived child under N.D.C.C. Sec. 27-20-02(5)(a), is a child "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." The finding of deprivation must be supported by clear and convincing evidence. In Interest of J.K.S., 321 N.W.2d 491 (N.D.1982). Upon finding a child is deprived, the juvenile court can temporarily place the child in the legal custody of an appropriate party outside the parental home. Section 27-20-30, N.D.C.C. The juvenile court can extend an order of disposition, under N.D.C.C. Sec. 27-20-36(4):

"4. ... An order of extension may be made if:

* * * * * *

"c. The court finds that the extension is necessary to accomplish the purposes of the order extended; and

"d. The extension does not exceed eighteen months from the expiration of an order limited by subsection 3 or two years from the expiration of any other limited order...."

Before extending an order of disposition the juvenile court must find the child is still deprived. In Interest of J.K.S. at 493.

Our review of the juvenile court's decision is governed by N.D.C.C. Sec. 27-20-56(1). On appeal, 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." Although we examine the evidence in a manner comparable to the former procedure of trial de novo, we give deference to the juvenile court's decision, because that court has had the opportunity to observe the candor and demeanor of the witnesses. In Interest of J.K.S.

The juvenile court's original finding that Nancy and Ann were deprived was based upon allegations both girls were physically abused at home and Nancy was also sexually abused by Paul. Although Paul and Jane initially denied abuse, they now concede there was sexual and physical abuse, and they agree the entire family needs to continue professional counseling to resolve some family problems. Paul pled guilty to one count of corruption or solicitation of minors and to one count of sexual assault. However, Paul and Jane argue there is no evidence the girls are now deprived, and they assert the court erred in extending the temporary foster care. Paul and Jane want Nancy and Ann returned to their home so the family can continue counseling on an out-patient basis. Having reviewed the record, with deference to the juvenile court which has had the opportunity to hear the testimony and observe the demeanor of these parties, we conclude there is clear and convincing evidence of continued deprivation to support the extension of temporary foster care to "accomplish the purposes" of the court's original order.

Mary Ann Brauhn has counseled with Nancy and Ann since November 1991. She testified the progress with the girls has been very slow, partly because Paul and Jane initially pressured the girls to remain silent and not discuss the circumstances of the abuse. Brauhn testified Paul and Jane's current home environment is not conducive to the children "really progressing in therapy and dealing with their issues." Brauhn believes it is necessary to extend the temporary custody arrangements for the girls' healing to continue. Dr. Barry Johnson, a clinical psychologist who is counseling Paul and Jane, is less certain it is...