Pritchett v. Executive Director of Social Service Bd. of State of N.D., 10183
| Decision Date | 20 October 1982 |
| Docket Number | No. 10183,10183 |
| Parties | Robert PRITCHETT and Meredyth Lorraine Pritchett, Husband and Wife, Petitioners and Appellees, v. EXECUTIVE DIRECTOR OF the SOCIAL SERVICE BOARD OF The STATE OF NORTH DAKOTA or his designee, Respondent, and Eugene D.J. Korner, Respondent and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Bruce Montgomery, of Teevens, Johnson & Montgomery, Minot, for petitioners and appellees.
K.M. Knutson, Minot, for respondent and appellant.
Gene Korner appealed from the district court judgment terminating his parental rights as the natural father of Kimberly and granting a decree of adoption naming Robert Pritchett as Kimberly's adoptive father. Robert is the husband of Meredyth, Kimberly's mother. We affirm.
Gene and Meredyth were married in 1975 and divorced in 1978. Meredyth was granted custody of their daughter, Kimberly, who was born in 1975. Gene was ordered to pay child support of $100 per month. In 1980 Meredyth married Robert Pritchett.
In 1981 Meredyth petitioned for a termination of Gene's parental rights, alleging that he never paid child support, that he significantly failed to communicate with Kimberly, and that he abandoned Kimberly. During oral argument, Meredyth focused on abandonment as the ground upon which she contended Gene's parental rights should be terminated. 1 At the same time Meredyth petitioned for the termination of Gene's parental rights, Robert petitioned to adopt Kimberly. In his response Gene opposed Robert's adoption of Kimberly. Gene also denied abandoning Kimberly.
The trial court found that Meredyth received no child support for Kimberly, that at one time Gene had a bonus of $1,800 which he did not use for Kimberly's support, and that Gene acted inconsistently with his statement of love for Kimberly. The court determined that Meredyth and Robert's home is a stable, loving, and secure home for Kimberly. The trial court concluded that clear and convincing evidence showed Gene abandoned Kimberly. Pursuant to North Dakota Century Code Section 14-15-19, 2 the trial court ordered Gene's parental rights in Kimberly terminated. As a result, Gene's right to withhold consent to Kimberly's adoption was extinguished. Sec. 14-15-19(1), N.D.C.C. In addition, the trial court approved Robert's petition to adopt Kimberly.
Gene raised four issues on appeal: the scope of appellate review of a termination of parental rights in connection with an adoption proceeding, the sufficiency of the evidence used by the trial court to determine that Gene had abandoned Kimberly, the propriety of the trial court's questioning of the witnesses, and the adequacy of representation by court-appointed counsel.
Although Meredyth did not state that she was petitioning under the Revised Uniform Adoption Act, we assume she did so. Her petition was not properly endorsed to conform to a termination under the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C. 3 Section 27-20-03 of the Uniform Juvenile Court Act states:
In the case at hand, the petitions for termination of Gene's parental rights and for Robert's adoption of Kimberly were brought at the same time and were considered in one proceeding. The termination of Gene's parental rights was ordered and will be reviewed pursuant to the Revised Uniform Adoption Act.
The Revised Uniform Adoption Act does not specify the scope of review of a termination of parental rights. The only section of the Act concerning appeals sets forth the procedure to be followed, but not the scope of appellate review. It provides, in part:
In Matter of Adoption of Gotvaslee, 312 N.W.2d 308, 311-312 (N.D.1981), we stated:
In Gotvaslee the issue of scope of review was not raised because both parties agreed that the review of that case was governed by Rule 52(a) of the North Dakota Rules of Civil Procedure. 4 Rule 52(a) provides, in part, that "[f]indings of fact shall not be set aside unless clearly erroneous, ..."
In the instant case, Gene raised the issue of the proper scope of review of a termination of parental rights in connection with an adoption proceeding. He contends that the action should be reviewed in the same manner as a termination of parental rights under the Uniform Juvenile Court Act because the proceedings are essentially the same under the Revised Uniform Adoption Act, Chapter 14-15, N.D.C.C., and the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C. The Pritchetts urge that the case be reviewed under the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. Courts in other States which have adopted the Revised Uniform Adoption Act 5 have not yet determined the scope of appellate review of an order terminating parental rights under the Act. The Commissioners' Notes to the Uniform Act do not comment on the scope of review.
Terminations of parental rights in similar proceedings under the Uniform Juvenile Court Act are not governed by the "clearly erroneous" rule, but are reviewed in a procedure similar to a trial de novo. In Interest of F.H., 283 N.W.2d 202, 211 (N.D.1979). The de novo review of a juvenile court's findings, however, varies somewhat from an actual trial de novo. This court does give the juvenile court's findings appreciable weight, taking into account the trial judge's opportunity to observe the demeanor of the witnesses. Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D.1981).
Under the Uniform Juvenile Court Act the court may terminate the parental rights of a parent if "[t]he parent has abandoned the child." Sec. 27-20-44(1)(a), N.D.C.C. Under the Revised Uniform Adoption Act, the court may terminate parental rights in connection with an adoption proceeding if "the minor has been abandoned by the parent." Sec. 14-15-19(3)(a), N.D.C.C. Under both Acts, when the court determines there has been abandonment of the child, the parental rights are totally extinguished. Secs. 27-20-46 and 14-15-19(1), N.D.C.C. This court recognizes the seriousness of severing the strong, fundamental relationship between a parent and a child. Matter of Adoption of Gotvaslee, supra, 312 N.W.2d at 312. In Kottsick v. Carlson, 241 N.W.2d 842, 850 (N.D.1976), this court quoted with approval a Maryland decision which stated: "The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships has led the Legislature and this Court to make sure, so far as possible, that adoption shall not be granted over parental objection unless the course clearly is justified." Beltran v. Heim, 248 Md. 397, 401, 236 A.2d 723, 725 (1968).
The result of a determination of abandonment is identically severe and permanent under the Uniform Juvenile Court Act and the Revised Uniform Adoption Act. Therefore, we will review a termination of parental rights based on abandonment under the Revised Uniform Adoption Act in the same manner as we review terminations of parental rights based on abandonment under the Uniform Juvenile Court Act, i.e., a form of de novo proceeding.
If, in the case at hand, Gene's parental rights are to be terminated, Meredyth has the burden of proving Gene abandoned Kimberly. In termination proceedings under the Uniform Juvenile Court Act the burden of proof required is that the abandonment be proved by clear and convincing evidence. In In Interest of F.H., supra, 283 N.W.2d at 211, we stated that "the burden is on the parent challenging the right of a natural parent to the care, custody, and control of his child, to prove by clear and convincing evidence the existence of all required factors for termination of parental rights."
Because of the fundamental importance of a termination-of-parental-rights action, the burden imposed by this court on similar actions which sever parents' rights will also be used when terminating parental rights under the Revised Uniform Adoption Act. The party seeking termination must show abandonment by evidence which is clear and convincing. See Huey v. Lente, 85 N.M. 585, 596, 514 P.2d 1081, 1092 (Ct.App.1973), Hernandez, J., specially concurring; concurrence adopted by the New Mexico Supreme Court, 85 N.M. 597, 514 P.2d 1093 (1973). "Clear and convincing evidence" has been defined as evidence leading to a firm belief or conviction that the allegations are true. Zundel v. Zundel, 278 N.W.2d 123, 130 (N.D.1979). The trial court stated in its oral opinion: "[T]o avoid any ambiguity I am finding the aspects of abandonment ... by clear and convincing evidence."
There is no single accepted definition of what to "abandon" means. Rahn v. Prudential Ins. Co., 259 N.W.2d 838, 840 (Iowa 1977). An intent to abandon is a required element of abandonment of one's children. Matter of Adoption of Gotvaslee, supra, 312 N.W.2d at 315. This intent to abandon may be inferred from a parent's conduct. Gotvaslee, supra, 312 N.W.2d at 315, quoting In re Adoption of Christofferson, 89 S.D. 287, 290, 232 N.W.2d 832, 834 (1975). Section 14-07-17, N.D.C.C., states that "failure to support a child ... for a period of three months shall be presumptive evidence of intention wholly to abandon." This statute applies for...
To continue reading
Request your trial
-
Adoption of K.A.S., Matter of
... ... T.D.K., Respondent and Appellant, ... Executive Director of North Dakota Department of Human ... parental rights, violated his federal and state constitutional rights ... In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d ... L.M., 347 N.W.2d 126, 129 (N.D.1984); Pritchett v. Executive Dir. of Soc. Serv. Bd., 325 N.W.2d ... (5) ], the Department or a county social service board is required to be named a party in the ... ...
-
In re Disciplinary Action Against McGuire, 20040073.
... 685 N.W.2d 748 2004 ND 171 In the Matter of the Application for ... was simply framing her face much like a director does in setting up a scene. He was trying to ... conduct which she did not interpret as a social gesture. Judge McGuire testified that he recalls ... J.M.H., 1997 ND 99, ¶ 7, 564 N.W.2d 623 ; State v. Schneider, 550 N.W.2d 405, 410 (N.D.1996) ; ... , 342 N.W.2d 380, 385 (N.D.1983) ; Pritchett v. Executive Dir. of the Soc. Serv. Bd., 325 ... or modify his conduct; (g) the length of service on the bench; (h) whether there have been prior ... ...
-
Adoption of J.W.M., Matter of
...and we have recognized "there is no single accepted definition of what ... 'abandon' means." Pritchett v. Executive Director of Social Service Board, 325 N.W.2d 217, 221 (N.D.1982). In determining whether abandonment has taken place, we look to factors such as the parent's contact and commu......
-
In re DQ
...653 N.W.2d 7132002 ND 188In the Interest of D.Q., D.M., S.S., and C.W., ... Cleveland, Petitioner and Appellee, ... Director, Cass County Social Services, S.S., L.Q., E.M., ... 715 Constance Louise Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and ... and communication with the child." Pritchett v. Executive Dir., Soc. Serv. Bd. of North ... lack of parental cooperation with social service agencies, which is insufficient to establish ... ...