Pautz v. T.H. (In re T.H.)

• Decision Date: 18 December 2012
• Docket Number: No. 20120168.,20120168.
• Citation: 825 N.W.2d 844,2012 ND 254
• Parties: In the Interest of T.H., a child. Heather Pautz, Barnes County Director of Social Services, Petitioner and Appellee v. T.H., a Child, A.S., Mother, K.H., Father, Respondents K.H., Father, Appellant.
• Court: North Dakota Supreme Court

825 N.W.2d 844

2012 ND 254

In the Interest of T.H., a child.

Heather Pautz, Barnes County Director of Social Services, Petitioner and Appellee

v.T.H., a Child, A.S., Mother, K.H., Father, Respondents

K.H., Father, Appellant.

No. 20120168.

Supreme Court of North Dakota.

Dec. 18, 2012.

Bradley A. Cruff, Assistant State's Attorney, Valley City, N.D., for petitioner and appellee.

Jonathan T. Garaas, Fargo, N.D., for appellant.

CROTHERS, Justice.

[¶ 1] K.H. appeals from a juvenile court permanency order extending placement of his daughter, T.H., in the custody and control of Barnes County Social Services until June 1, 2012. We reverse because the hearing to extend the permanency order was not held before the prior permanency order expired as required under N.D.C.C. § 27–20–36.

I

[¶ 2] K.H. is the father and A.S. is the mother of T.H., and K.H. was granted custody of T.H. K.H. is married to G.H. and the couple resides in North Dakota. A.S. currently resides in South Dakota. T.H. was found a deprived child and since late 2008 was placed in the custody of Barnes County Social Services through a series of juvenile court permanency orders. The earlier proceedings in this case are detailed in Interest of T.H., 2012 ND 38, 812 N.W.2d 373, in which we affirmed a juvenile court order extending T.H.'s placement. On June 13, 2011, while K.H.'s appeal from that order was pending, the juvenile court entered an order continuing the previous order and stating, “All of the parties consented to the District Court continuing the March 24, 2011 order through January 12, 2012 provided the order of continuance shall not act as a waiver of any of the rights of the respondents.” In the meantime, Social Services removed T.H. from her North Dakota foster home and placed her with her mother in South Dakota for a “trial home visit” beginning on November 28, 2011.

[¶ 3] Upon the filing of another request to extend the permanency order, the juvenile court issued a notice setting the permanency hearing for December 20, 2011. A.S.'s attorney responded by letter, stating the court previously had set a permanency hearing for February 27, 2012 and the attorney had a conflict with the December 20, 2011 date. On December 5, 2011, the court wrote all counsel, stating:

“This is in response to Mr. Brother's letter of December 2nd, 2011. I've checked with the juvenile office and they informed me that because of Federal time requirements a permanency hearing in this matter must be held by January 12th, 2012. If I accept Mr. Brother's letter as a request for continuance then we can have the permanency hearing on February 27th, 2012. While Mr. Brother [ ]s is not available, I note that Mr. Toay has filled in from time to time. To make it clear, I need a request for continuance or I will hold the hearing on December 20th, 2011. If the matter is continued we will keep our February 27th, 2012, date and cancel the December 20th, 2011 date. Please respond promptly to this letter.”

[¶ 4] A.S.'s attorney filed the only response to the juvenile court's letter and requested a continuance of the hearing to February 27, 2012. On December 7, 2011, the court issued an order granting the continuance and rescheduling the December 20, 2011 hearing for February 27, 2012. The order further provided “that the care, custody and control of the child to the Director of the Barnes County Social Service be extended until this matter can be heard by the Court.” On February 17, 2012, A.S.'s attorney requested another continuance for 90 days because this Court's decision in the prior appeal remained pending and because “I have been asked by my client to file a motion in the underlying paternity action seeking to change custody of the child from [K.H.] to my client based on the Juvenile Court action that has been ongoing for a considerable period of time and based on the placement of the child by Barnes County Social Services with my client.” The court did not grant the continuance.

[¶ 5] At the beginning of the February 27, 2012 hearing, K.H.'s attorney argued the juvenile court lacked jurisdiction to proceed, in part because the hearing on the motion to extend the permanency order was not held before the previous order expired by its own terms on January 12, 2012. The court rejected the argument and heard evidence presented by T.H.'s caseworker in support of the motion to extend the permanency order. The permanent plan for T.H. was reunification with K.H., placement with A.S. or another relative, or termination of parental rights and adoption. The caseworker testified Social Services abandoned its plans to seek termination of K.H.'s parental rights when placement of the child with her mother became an available option. The caseworker testified Social Services was “in the process of complying with interstate compact requirements,” necessitating its retention of custody over T.H. for six months after T.H.'s placement with her mother. The caseworker testified reunification of T.H. with K.H. and his wife no longer was an option, requested the permanency order be extended through May 28, 2012 and said Social Services would not attempt to obtain any further court orders in the case “[a]s long as placement doesn't disrupt.” The court found T.H. continued to be a deprived child and it was contrary to T.H.'s welfare to remain in K.H. and G.H.'s home “because the goals of the prior order regarding [K.H. and G.H.] have not been met.” The court found:

“Services were offered to prevent or eliminate the need for removal of [T.H.] from her home, including: visitation with parents and other family members, counseling for [T.H.], foster care case management and parent aide services, child and family team meetings, medical appointments as needed for [T.H.], marital counseling for [K.H. and G.H.] and individual counseling for [G.H.], transportation assistance and reimbursement, parental capacity evaluations, family counseling, intensive in-home therapy, parenting education, ICPC [Interstate Compact on the Placement of Children] home study for [A.S.], ... and individual counseling for [A.S.]. Reasonable efforts to place this child with siblings are not required pursuant to 27–20–32.2(2)(d) North Dakota Century Code, because this is the only child in a foster care setting; however the custodian shall provide frequent visitation or other ongoing interaction with siblings unless it is contrary to the safety and well-being of any siblings. All reasonable efforts have been made to prevent the need for removing this child from her own home and to make it possible to return this child to her own home.”

The court ordered that T.H. remain under the custody and control of Social Services until June 1, 2012.

II

[¶ 6] Section 27–20–36(4)(a), N.D.C.C., requires that an order extending an order of disposition be made only if a “hearing is held before the expiration of the [prior] order.” Social Services concedes the statute was violated when the hearing was not held before the prior order terminated on January 12, 2012, and the court could not extend that order with the December 7, 2011 order granting the continuance without first holding a hearing. See Interest of N.W., 531 N.W.2d 303, 304, 306–07 (N.D.1995). K.H. argues the statutory violation divested the juvenile court of jurisdiction to hold the February 27, 2012 hearing and, therefore, the resulting permanency order extending T.H.'s placement is void.

[¶ 7] A court has jurisdiction to issue a valid order if it has jurisdiction over the parties and the subject matter of the action. See, e.g., Mills v. City of Grand Forks, 2012 ND 56, ¶ 10, 813 N.W.2d 574, and cases collected therein. The juvenile court had jurisdiction over the parties and had subject matter jurisdiction because it “had the ‘power to hear and determine the general subject involved in the action.’ ” Id. at ¶ 11 (quoting Giese v. Giese, 2004 ND 58, ¶ 6, 676 N.W.2d 794). It is well settled that “unless a statute imposing a time limit declares that the time limit is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency.” Henry v. Securities Comm'r, 2003 ND 62, ¶ 10 n. 2, 659 N.W.2d 869;see also Interest of J.H., 2007 ND 1, ¶ 1, 729 N.W.2d 334;Interest of M.D., 1999 ND 160, ¶ 16, 598 N.W.2d 799;Interest of P.L.P., 556 N.W.2d 657, 659 (N.D.1996); Interest of Nyflot, 340 N.W.2d 178, 183 (N.D.1983). Section 27–20–36, N.D.C.C., does not state that the time limit for a hearing is jurisdictional. See also N.W., 531 N.W.2d at 307. The statutory violation did not divest the juvenile court of jurisdiction to hold the hearing and its permanency order extending T.H.'s placement is not void.

III

[¶ 8] K.H. argues the evidence presented at the hearing was insufficient to establish T.H. continued to be deprived.

[¶ 9] A disposition order may be extended if the juvenile “court finds the extension is necessary to accomplish the purposes of the order” and “the child remains deprived as defined by N.D.C.C. § 27–20–02(8).” T.H., 2012 ND 38, ¶ 28, 812 N.W.2d 373.

“Whether a child is deprived is a finding of fact, and a juvenile court's findings of fact will not be reversed on appeal unless they are clearly erroneous. In re B.B. (“ B.B.I ”), 2008 ND 51, ¶ 4, 746 N.W.2d 411. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support the finding, or this Court is convinced, on the basis of the entire record, that a mistake has been made. Id. We give the juvenile court due regard because the juvenile court has the opportunity to assess the credibility of the witnesses. Id.

....

“A child is deprived if the child is without proper parental care or control, subsistence, education, or other care or control necessary for the child's physical, mental, or emotional health, or morals, or the child is in need of treatment and the child's parents have refused to participate in treatment as...