N.W., In Interest of, s. 940347-940350

• Decision Date: 09 May 1995
• Docket Number: Nos. 940347-940350,s. 940347-940350
• Citation: 531 N.W.2d 303
• 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. In the Interest of A.S., A Child. GOLDEN VALLEY COUNTY SOCIAL SERVICES, Petitioner and Appellee, v. P.G.S., Respondent and Appellant, and J.S., Respondent. Civ.
• Court: North Dakota Supreme Court

Page 303

531 N.W.2d 303

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.

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

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

Civ. Nos. 940347-940350.

Supreme Court of North Dakota.

May 9, 1995.

Glen R. Bruhschwein, Asst. State's Atty., Dickinson, for petitioner and appellee. Appearance by Sandra K. Kuntz.

Eugene F. Buresh, Reichert, Buresh, Herauf & Ficek, PC, Dickinson, for P.G.S.

William G. Heth, Dickinson, for J.S.

VANDE WALLE, Chief Justice.

P.G.S. [Paul, a pseudonym] and J.S. [Jane, a pseudonym] appealed from an order of disposition from the juvenile court, Southwest Judicial District, ordering permanent foster care for N.W. and A.S. [Nancy and Ann, pseudonyms]. We affirm.

Nancy and Ann were determined to be deprived children on February 5, 1991. At that time the juvenile court ordered that the children be placed in the temporary custody of the Golden Valley Social Service Board ["the Board"] for eighteen months. On November 22, 1991, the orders were extended for eighteen months. They were extended for fifteen months in March of 1993. The March 1993 orders of extension, which were affirmed by this court, In the Interest of N.W., 510 N.W.2d 580 (N.D.1994), expired on June 15, 1994.

On April 21, 1994, the Board moved the trial court to extend the March 1993 order for eighteen months from and after June 15, 1994. The hearing on the motion commenced on May 31, 1994, at 10:30 a.m. Before hearing evidence, the juvenile court informed the parties that:

"[A]nother problem we ran into is that occasionally we have a scheduling snag because of the way scheduling is conducted in this district. About every two years the court administrator and the judges might accidentally schedule something for the same day, and I have a very serious matter this afternoon, so we need to conclude this matter by noon, and we'll continue or postpone the hearing if we can't finish by noon, and I don't expect to. By that I don't mean that we are intending to rush anyone at all, but we'll need to continue the case to some later time."

Before testimony was heard, Paul's attorney objected to "proceeding with this matter on this date and ... to the Court entering a temporary order until it can be rescheduled, unless ... in the interim period the custody of the children be given to the grandparents." Jane's attorney "join[ed] in the motion" and asked "that there be a continuance and that during such time ... the grandparents have the children and that [Jane] have unlimited visitation[.]"

The court then heard the testimony of one witness. Mary Ann Brauhn, the therapist for Nancy and Ann, testified on direct examination by the attorney for the Board and was cross-examined by attorneys for Paul, Jane, and the children's guardian ad litem. Immediately following Ms. Brauhn's testimony, the court consulted with the parties and decided that two days would be set aside in August 1994 for further presentation of evidence. The court stated: "The hearing will be continued until then, and in the meantime, I extend the order of disposition on a temporary basis until further order of the Court."

At this time Paul's attorney asked the juvenile court to provide a visitation schedule for Paul and Jane and the children. After stating that he was "discouraged that [Jane] still hasn't done her part as a mother, at least according to the evidence and testimony of Mrs. Brauhn[,]" the court declined "to require [visitation] at this stage."

On June 9, 1994, the juvenile court issued the following order:

"This matter came on for hearing on May 31, 1994 at 10:30 a.m. The parties were not able to fully present their cases in the time allotted. Therefore, the Order of Disposition dated March 17, 1993 is hereby extended to be in full force and effect until September 1, 1994 or upon decision of the court, whichever occurs first."

On August 17, 1994, the Board filed an amendment to its petition for extension of the order of disposition. In its amendment, the Board, relying on subsection 27-20-36(4)(d), N.D.C.C., requested an order of permanent foster care for the children.

When the proceedings reconvened on August 30, 1994, attorneys for Paul and Jane objected, arguing that the juvenile court had no authority because without a proper hearing the order of disposition could not be extended and expired on June 15, 1994. Thus, they argued, custody had "reverted back to the parents."

After a full hearing, the juvenile court issued findings of fact, conclusions of law, and orders of disposition. The court incorporated by reference all of "its earlier Findings of Fact, Conclusions of Law and Order[s] For Disposition and Orders Extending Orders of Disposition in this file." For facts relevant to prior hearings and orders of disposition involving these children, see In the Interest of N.W., supra. In addition, the court made additional relevant findings of fact.

Among the juvenile court's new findings of fact was that Paul had been recently convicted of two counts of Gross Sexual Imposition against Nancy and that these incidents had occurred between August 15 and September 30, 1992, while the children were in the physical custody of Jane and while Paul was under a court order not to be alone with Nancy or Ann.

The juvenile court listed several other relevant findings of fact. In October 1992, the children were removed from Jane's custody and placed in foster care. In April 1993, the Board "concluded that regular visitation between family members and the children was detrimental and stopped most contact and visitation." From April through November 1993, "the children 'opened up' in counseling sessions" and disclosed "numerous instances of sexual abuse committed against both of them by [Paul]." The juvenile court found that "[t]hese instances occurred while [Jane] had physical custody of the children and while it was the order of this Court that [Paul] not be left alone with the children."

The juvenile court also found:

"[Jane] has denied [Paul's] abuse against [Nancy and Ann] and has demonstrated an unwillingness to appropriately seek and obtain the necessary medical, psychological and therapeutic care [Nancy and Ann] currently need for their physical, mental and emotional health and morals. [Jane] has demonstrated an inability to provide an environment in which [Nancy and Ann] will benefit from the delivery of medical, psychological and therapeutic care. [Jane's] unwillingness in this finding is not due to lack of financial means. Although [Jane] has testified on two occasions that she now believes [Nancy]'s account of the sexual abuse that resulted in criminal convictions, the Court finds this testimony insincere. [Jane] testified at the criminal trial in August, 1994 that she did not believe those acts occurred. [Jane] has been very supportive of [Paul]."

The juvenile court found that the children have been deprived since the commencement of the case in December 1990 and "continue to be deprived today and are likely to remain deprived in the future." It found that the purposes of previous orders of disposition were not accomplished and that "[t]his has been the fault of [Paul and Jane]." The juvenile court further found that although all reasonable efforts were made to reunite the family, they failed "because of the fault of [Paul and Jane]." It decided that it "is in the best interest of [Nancy and Ann] that they be permanently placed in the care, custody, and control of [the Board], who will be able to place the children in permanent foster care and be able to arrange for the delivery of medical, psychological and therapeutic care and provide an environment which will allow them to benefit from the delivery of those services."

The juvenile court concluded its findings of facts by stating that "[a]ll of the above findings of [f]act are made upon ... clear and convincing evidence." It ordered that the Director "shall have temporary care, custody and control" until August 1, 1995. It ordered that the "the Director of the Golden Valley County Social Service Board[ ] shall have permanent care, custody and control" of the children "commencing on August 1, 1995" until they reach the age of eighteen. The juvenile court listed a series of conditions which would invite it to reconsider the order for permanent custody prior to August 1, 1995, and expressly placed on Paul and Jane the burden of persuading the court to reconsider. Finally, it concluded that "[t]hese procedures do not preclude [Paul and Jane] from exercising any legal rights they may have to petition or move the Court for reconsideration of a temporary or permanent foster care order."

Paul and Jane raise two issues on this appeal. They argue that the juvenile court lacked jurisdiction to issue the order for permanent foster care because the prior order of disposition had expired on June 15, 1994, and the hearing was not held until August 30, 1994. They also argue that the juvenile court lacked the authority to require them to carry the burden of persuasion to convince the court to reconsider its order for permanent foster care.

On appeal, we review juvenile court decisions "upon 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. Sec. 27-20-56(1). "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 N.W., 510 N.W.2d at 581. Paul and Jane do not challenge the sufficiency of the evidence. Questions of law are fully reviewable on appeal. E.g., State v. Konewko, 529 N.W.2d 861 (N....