R. H., In Interest of

• Decision Date: 02 February 1978
• Docket Number: No. 9406,9406
• Parties: In the Interest of R. H., D. D. H., M. L. H. and N. N. H., all minors under the age of 14 years. Roland WEISENBURGER, Director of Social Service Board of McIntosh County, North Dakota, Petitioner and Appellee, v. R. H., a minor, D. D. H., a minor, M. L. H., a minor, N. N. H., a minor, Terry Welch, guardian ad litem for said minors, Respondents and Appellees, and R. H. and G. H., natural parents of said minors, Respondents and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 719

262 N.W.2d 719

In the Interest of R. H., D. D. H., M. L. H. and N. N. H. all minors under the age of 14 years. Roland WEISENBURGER, Director of Social Service Board of McIntosh County, North Dakota Petitioner and Appellee, v. R. H., a minor, D. D. H., a minor, M. L. H., a minor, N. N H., a minor, Terry Welch, guardian ad litem for said minors, Respondents and Appellees and R. H. and G. H., natural parents of said minors, Respondents and Appellants.

Civ. No. 9406.

Supreme Court of North Dakota.

Feb. 2, 1978.

Richard E. Herr, Wishek, for respondents and appellants.

B. E. Kretschmar, State's Atty., Ashley, for petitioner and appellee.

PEDERSON, Justice.

This is an appeal by the parents from a juvenile court order dated July 20, 1977, which found, as a fact, that each of their four children is deprived, and terminated all parental rights. After the broad review contemplated by § 27-20-56, North Dakota Century Code, we affirm the finding of deprivation but reverse and remand for further proceedings on the question of termination of parental rights.

Issues for our consideration are:

(1) Whether a previous order dated April 27, 1977, not appealed, finding that the four children are deprived, is res judicata on that question.

(2) Whether the record in this case supports, by clear and convincing evidence, the finding that the four children are deprived.

(3) If the children are deprived, whether there is clear and convincing evidence in the record of this case that the causes and conditions of the deprivation are likely to continue.

(4) Whether portions of § 27-20-02, NDCC, are unconstitutionally vague.

The record establishes that a hearing was held in the afternoon of July 11, 1977, at which time the court announced that ". . . this is the time and place set by the Court for a continuation of the hearing on the petition for the termination of parental rights . . . ." (Emphasis supplied.) No record of any previous hearing on a petition for termination has been supplied to this Court; however, the record on appeal includes numerous documents, some labeled as exhibits, which may have been introduced at a previous proceeding where termination of parental rights was not an issue.

From the argument presented we learn that there had been a number of hearings prior to the July 11 hearing, one of which resulted in an order, dated April 27, finding the four children to be deprived. From the only transcript submitted to us, that of the July 11 hearing, we learn that the petitioner (Director of the Social Service Board) requested that the court take judicial notice of all proceedings which had been had in "this matter prior to this time relative to the (four H children)." Objection was raised and the court reserved a ruling. Thereafter, at the conclusion of the petitioner's evidence, the motion was renewed with a specific request that the testimony of one Dr. Fleck be afforded judicial notice. The court stated that it would determine at which of the prior hearings Dr. Fleck's testimony was taken and that "if he gave his testimony on the April 15th hearing (the court would) permit his testimony to be made part of the record." There is no record of any testimony taken at an April 15 hearing.

We have said that the burden of transmitting the transcript is the primary responsibility of the appellant and that the appellant cannot shift the burden to an appellee by simply failing to transmit the transcript. State ex rel. Olson v. Nelson, 222 N.W.2d 383, 387 (N.D.1974). In that same case we said:

"If, however, an appellant makes a good-faith attempt to fulfill his burden (of transmitting the transcript), the appellee should provide any additional parts of the transcript that he believes necessary." (Insertion ours.)

In this case counsel for the appellants has contended that:

(1) Judicial notice was not taken pursuant to either request of petitioner;

(2) The entire record is before this Court; and

(3) The record on appeal forwarded by the clerk of the district court contains documents, placed as exhibits in earlier hearings, which have no place in this appeal.

None of these contentions was disputed by the Director of the Social Service Board, who submitted the case on brief. We therefore consider the transcript now before this Court as satisfactory to the parties pursuant to Rule 10(b), North Dakota Rules of Appellate Procedure.

Because the testimony of Dr. Fleck was not made a part of the record on appeal, there is no way for this Court to consider it. Testimony admitted during a separate proceeding, where the termination of parental rights was not at issue, should not be judicially noticed, over objection, in a proceeding where a termination of parental rights is sought. Section 27-20-45, NDCC, requires that "the petition shall . . . state clearly that an order for termination of parental rights is requested and that the effect thereof will be (an order terminating all his rights and obligations with respect to the child and of the child to or through him arising from the parental termination)." See § 27-20-46, NDCC. Due process of law, required by the Fourteenth Amendment to the United States Constitution and Section 13 of the North Dakota Constitution, would be denied to the parents if the Social Service Board was permitted to import testimony from a hearing where the termination notice was not given. ¹ We have determined that it would have been improper to take judicial notice of a prior proceeding wherein the notice requirements of § 27-20-45, NDCC, were not met. Because the case is being remanded, we need not determine whether the trial court actually did take judicial notice.

Section 27-20-56, NDCC, provides, in part, that an appeal from a juvenile court order "shall be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court . . . ." For the purpose of this appeal, we consider only those items which resulted from the petition to terminate parental rights. Files and records of the court which relate to H family members, but which were generated for purposes other than the termination proceeding, are not before this Court. The "files, records, and minutes or transcript of the evidence" which we do consider consist of the following:

1. Petition dated June 8, 1977, signed by the Director of the McIntosh County Welfare Board, alleging that "each of these children is without proper parental care or control, subsistence, education as required by law, or other care and control necessary for their physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the natural parents," and praying for "an Order forever terminating all parental rights."

2. Amendment to Petition dated July 6, 1977, alleging that the children had been taken from their natural parents by order of the court and placed in a foster home in Traill County, and alleging that it was observed that the children had "black and blue marks," mouth and eye swollen, and one was discovered later to have "a fracture of the left femoral shaft and oblique fracture of mid third of the left femoral shaft."

3. Transcript of the hearing held on July 11.

4. Exhibits entered into evidence at that hearing, consisting only of reports concerning the fracture referred to in the Amendment to Petition.

5. Findings of Fact and Order of Disposition dated July 20.

6. Notice of Appeal from that Order.

7. Findings of Fact and Order of Disposition dated April 27.

Before parental rights may be terminated, three separate and distinct findings must be made: (1) that the child is a deprived child as that term is defined in § 27-20-02(5)(a), NDCC; (2) that the causes and conditions of the deprivation are likely to continue or will not be remedied; and (3) that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral or emotional harm. Section 27-20-44(1)(b), NDCC. In re H., 206 N.W.2d 871 (N.D.1973). Each of these three factual findings must be supported by clear and convincing evidence. Interest of R. W. B., 241 N.W.2d 546 (N.D.1976).

A deprived child is one who "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." Section 27-20-02(5)(a), NDCC. On appeals from orders of the juvenile court we give appreciable weight to the findings of the juvenile court but we also make a broad review from "the files, records, and minutes or transcript of the evidence." Section 27-20-56, NDCC. Interest of R. D. S., 259 N.W.2d 636, 637 (N.D.1977). See also, In re R. Y., 189 N.W.2d 644 (N.D.1971).

1.

Is the order of April 27 res judicata on the question of deprivation of the children? Petitioner cites Heasley v. Glinz, 142 N.W.2d 606 (N.D.1966), in support of his position that we may not now review the question of deprivation. This position misapprehends a crucial aspect of § 27-20-30, NDCC, under which the April 27 order was made. Section 27-20-30(1)(b) authorizes the transfer of temporary legal custody when the child is found to be deprived. The court specifically limited jurisdiction of the order to a period of one year and required that the children remain in the home of their parents, subject to further order of the court. The temporary nature of orders of this kind is further explicitly pointed out in § 27-20-36, NDCC. The order of April 27 is not res judicata for the purpose of this case. The rules of res judicata, as stated in Heasley v. Glinz supra, and elsewhere, do not apply. Any other conclusion would violate the notice provisions of § 27-20-45, NDCC, and effect a denial of the parents' right to due process.

2.

Does the record before us contain clear and...