R. A. S., In Interest of, 10111
| Decision Date | 09 July 1982 |
| Docket Number | No. 10111,10111 |
| Parties | In the Interest of R. A. S., a Child. Clarence O. OHLSEN, Director, Grand Forks County Social Service Center, Petitioner and Appellee, v. S. A. S. (Natural mother), Respondent and Appellant, C. C. S. (Stepfather), and L. M. S. (Natural father), Respondents. Civ. |
| Court | North Dakota Supreme Court |
Robert A. Alphson Law Office, Grand Forks, for respondent and appellant; argued by Lawrence D. DuBois, Grand Forks (presently of Cavalier).
Letnes, Marshall, Fiedler & Clapp, Grand Forks, for petitioner and appellee; argued by F. John Marshall, Grand Forks.
Gary R. Thune, Grand Forks, guardian ad litem.
S. A. S. has appealed from the "Order on Termination of Parental Rights" entered by the Juvenile Court of Grand Forks County. We dismiss the appeal.
S. A. S. (hereinafter "Sharon," a pseudonym) is the natural mother of R. A. S. (hereinafter "Robert," a pseudonym), a nine-year-old boy. In 1976, Sharon divorced Robert's natural father, L. M. S. (hereinafter "Lee," a pseudonym), and remarried her former husband, C. C. S. (hereinafter "Curtis," a pseudonym). Sharon had previously been married to Curtis between 1960 and 1965, and three daughters were born of the marriage: Teresa and twins, Linda and Laura.
On September 8, 1978, a petition was filed alleging that Robert and Laura were deprived children. Temporary custody of Robert was placed with the Director of the Grand Forks County Social Service Center and Robert was placed in foster care. As a result of hearings held in October of 1978, the juvenile court on November 3, 1978, issued its order finding Robert to be a deprived child and continuing custody in the Director of the Grand Forks County Social Service Center for a period of one year commencing January 23, 1979. This order was extended to January 23, 1981, by stipulation of the parties.
On January 14, 1981, a petition for termination of parental rights was filed. The hearing on this petition was set for March 4, 1981, but this hearing was halted when Lee, the natural father, expressed a desire to consult with an attorney. Lee voluntarily relinquished his parental rights to Robert at a hearing on April 22, 1981. Further hearings were held in September of 1981. On October 6, 1981, the juvenile court issued its findings of fact, conclusions of law, and order for judgment, finding Robert to be a deprived child and terminating the parental rights of Sharon as to the minor child, Robert. Judgment was entered on October 15, 1981.
Sharon has appealed to this Court. Her notice of appeal states that she appeals from "the Order on Termination of Parental Rights." Although the juvenile court's order is denoted as "Order on Termination of Parental Rights," the court specifically states within the order that it is to constitute the findings of fact, conclusions of law, and order for judgment. Sharon has thus appealed from the order for judgment.
Even though the parties have not raised the issue of the appealability of the order, it is the duty of this Court to dismiss the appeal on its own motion if the order is not appealable. Simpler v. Lowrey, 316 N.W.2d 330, 333 (N.D.1982); Chas. F. Ellis Agency, Inc. v. Berg, 214 N.W.2d 507, 509 (N.D.1974); Trautman v. Keystone Development Corp., 156 N.W.2d 817, 819 (N.D.1968). Section 27-20-56, N.D.C.C., provides that an aggrieved party may appeal from a "final order" of the juvenile court. We have previously held that an order for judgment is an intermediate order, and requires the subsequent entry of judgment to give it effect. First National Bank of Hettinger v. Dangerud, 316 N.W.2d 102, 104 (N.D.1982); Gebeke v. Arthur Mercantile Co., 138 N.W.2d 796, 798 (N.D.1965). Thus, an order for judgment is not a final order and is not appealable. Piccagli v. North Dakota State Health Department, 319 N.W.2d 484, 486 (N.D.1982); Simpler v. Lowrey, supra, 316 N.W.2d at 333; First National Bank of Hettinger v. Dangerud, supra, 316 N.W.2d at 104. Because Sharon has appealed from a non-appealable order, we are without jurisdiction and must therefore dismiss the appeal.
Although we dismiss the appeal, we will comment briefly on the issues raised on the merits by the parties. 1
Our scope of review of decisions under the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C., is governed by Sec. 27-20-56(1), N.D.C.C., which provides that review is based upon the files, records, and minutes or transcript of the evidence of the juvenile court. Our review is not limited to a determination of whether or not the juvenile court's findings are clearly erroneous, but rather we are allowed to reexamine the evidence in a manner similar to the former procedure of trial de novo. In Interest of L. N., 319 N.W.2d 801, 803 (N.D.1982); In Interest of S. W., 290 N.W.2d 675, 677 (N.D.1980); In Interest of R. H., 289 N.W.2d 791, 793 (N.D.1980). The findings of the juvenile court are to be given appreciable weight, Sec. 27-20-56(1), N.D.C.C., and we must take into account that the trial judge had the opportunity to observe the demeanor of the witnesses, whereas we have only the cold transcript before us. Kleingartner v. D. P. A. B., 310 N.W.2d 575, 578 (N.D.1981).
The juvenile court terminated Sharon's parental rights pursuant to Sec. 27-20-44(1)(b), N.D.C.C., which provides:
Before the juvenile court may terminate the parental rights of a parent pursuant to Sec. 27-20-44(1)(b), N.D.C.C., the State must establish the following three factors by clear and convincing evidence:
1) the child is a "deprived child";
2) the conditions and causes of deprivation are likely to continue or will not be remedied; and
3) by reason of the continuous or irremedial conditions and causes, the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
Kleingartner, supra, 310 N.W.2d at 578.
Sharon contends on appeal that the State failed to establish each of the above three factors by clear and convincing evidence. We have thoroughly examined the files, records, and transcripts of the juvenile court, and we conclude that the State has established the three required factors by clear and convincing evidence. The evidence produced at the various hearings in this case shows a long history of difficulties within this family. There was much testimony regarding Sharon's abuse of Robert. For example, Sharon punished Robert on occasion by striking him on the bare buttocks or hand with the steel end of a flyswatter. Sharon also disciplined Robert by striking him about the head and face. On one occasion, Sharon burned the ends of Robert's fingers with a match. On another occasion, Sharon covered Robert's head and face with masking tape, making him stumble around the room crying for a period of ten or fifteen minutes. Neighborhood children were allowed to watch and ridicule Robert during this ordeal, while Sharon sat by and laughed at him. Sharon has also told a babysitter to hit Robert with a butter knife on his bare hand if he did not behave.
There was also testimony that Sharon's lack of concern for Robert's welfare has continued during the weekend in-home visitations over the last two years. Robert's foster parents testified that he often came home from weekend visitations unwashed, and in filthy underwear and clothes, even though the foster parents sent a bag of clean clothes for Robert. There was testimony presented that Robert is fed irregularly and inadequately while visiting Sharon on weekends, and has been allowed to stay up past one o'clock in the morning while staying with Sharon. Sharon has allowed Robert to watch an R-rated movie containing profanity and nudity while he was home for a weekend visitation. Sharon has displayed absolutely no interest in Robert's school work, athletic activities, and Cub Scout activities. Sharon has on several occasions left Robert home with a babysitter during weekend visitations so that she could go play bingo, including one occasion when Robert had the chicken pox.
We believe that Sharon's treatment of her three daughters is also relevant in determining whether the deprivation in this case is likely to continue or be remedied. There was testimony presented that Sharon had beaten her daughters on several occasions, and had thrown objects, such as shoes, at them. During a five-year period between 1965 and 1970 when the girls were living with their grandmother following Sharon and Curtis's...
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