Sexton v. J.E.H.

• Decision Date: 23 October 1984
• Docket Number: Nos. 10617,10690,s. 10617
• Citation: Sexton v. J.E.H., 355 N.W.2d 828 (N.D. 1984)
• Parties: Jeanne R. SEXTON, Petitioner and Appellee, v. J.E.H., a Child, J.E., alleged Father of the above-named J.E.H., C.L.H., Jr., a Child, and C.L.A., alleged Father of the said C.L.H., Jr., Respondents, and P.A.H., Mother, Respondent and Appellant. In the Interest of J.E.H., A Child, And of C.L.H., Jr., A Child. Civ.
• Court: North Dakota Supreme Court

Page 828

355 N.W.2d 828

Jeanne R. SEXTON, Petitioner and Appellee, v. J.E.H., a Child, J.E., alleged Father of the above-named J.E.H., C.L.H., Jr., a Child, and C.L.A., alleged Father of the said C.L.H., Jr., Respondents and P.A.H., Mother, Respondent and Appellant In the Interest of J.E.H., A Child, And of C.L.H., Jr., A Child.

Civ. Nos. 10617, 10690.

Supreme Court of North Dakota.

Oct. 23, 1984.

James N. Purdy, State's Atty., Ellendale, for petitioner and appellee.

Stephen M. McLean, Oakes, Guardian ad Litem.

David M. Wheelihan, of Diemert & Wheelihan, Ellendale, for respondent and appellant.

VANDE WALLE, Justice.

P.A.H. (hereinafter "Paula," a pseudonym) has appealed from a judgment terminating her parental rights to two children, J.E.H. (hereinafter "James," a pseudonym) and C.L.H., Jr. (hereinafter "Charles," a pseudonym). We affirm.

Paula, age 24, is the unmarried mother of James, born February 13, 1980, and Charles, born June 6, 1983. After James received an unexplained head injury that went untreated for approximately one week, both James and Paula were placed in a foster home on November 28, 1980. On approximately December 28, 1980, Paula moved to an apartment and James was returned to her custody in June 1981.

In April 1982, James was removed from Paula's care for a time after Paula left him with persons unknown to either of them with no food, diapers, or instructions. On September 17, 1982, James was again removed from Paula's care after a party in Paula's apartment at which minors were drinking alcoholic beverages, and James was playing with empty beer cans lying on the floor. As a result of that party, Paula was required to serve a jail term upon conviction for the offense of contributing to the delinquency of minors.

After a November 3, 1982, hearing on a petition seeking to have James found to be a deprived child, the juvenile court found, among other things, that: James was developmentally delayed, particularly in speech and language, as a result of Paula's inability to properly care for the child; James was a deprived child; and it was very unlikely that Paula would ever develop the skills necessary to provide proper parental care to the child.

The court did not make a final disposition but retained jurisdiction:

"... so that in the event after further testing of [Paula], it appears that the same conditions exist then that exist now, then this Court will entertain [a motion] that the deprivation proceeding be converted into a termination of parental right proceeding ..."

The court granted the Dickey County Social Services Office custody, care and control of James for a period of 12 months with a hearing to be held in the last month of the period for the purpose of:

"... determining whether or not, it is appropriate for consideration to be had of termination of parental rights ..."

Further evaluation of Paula and James was performed on July 6, 1983, the results of which were contained in a report filed with the Dickey County Social Services office on July 18, 1983 by Helen Wilson, clinical neuropsychologist.

Hearings were held October 25 and December 6, 1983, on petitions for termination of Paula's parental rights to James and Charles. A judgment terminating Paula's parental rights to both children was entered and this appeal followed.

The issue in this appeal is whether or not the elements necessary to terminate Paula's parental rights have been established by clear and convincing evidence.

We recently stated several general precepts applicable to review of juvenile court decisions in McBeth v. J.J.H., 343 N.W.2d 355, 358 (N.D.1984):

"In reviewing the evidence presented to the trial court we are not restricted by the standards of Rule 52(a), N.D.R.Civ.P. The Uniform Juvenile Court Act provides that our review of the files, records, and minutes or transcript of the evidence of the juvenile court is similar to the former procedure of a trial de novo. Sec. 27-20-56(1), N.D.C.C. We give the juvenile court's findings appreciable weight, but we are not bound by them. Asendorf v. M.S.S., 342 N.W.2d 203 (N.D.1983); Kleingartner v. D.P.A.B., 310 N.W.2d 575 (N.D.1981). We nevertheless recognize that the trial court had the opportunity to observe the demeanor of the witnesses. In Interest of D.S., 325 N.W.2d 654 (N.D.1982).

"Before a court may terminate parental rights, it must find that the State has established by clear and convincing evidence three factors: that the child is a 'deprived child'; that the conditions and causes of the deprivation are likely to continue and will not be remedied; and that by reason of the continuous or irremedial [sic] conditions and causes, the child is suffering or probably will suffer serious physical mental, moral, or emotional harm. See Asendorf v. M.S.S., supra; Sec. 27-20-44(1)(b), N.D.C.C. Although parents have a fundamental right to their child which is of constitutional dimension [Kleingartner v. D.P.A.B., supra ], parental rights will 'not be enforced to the detriment or destruction of the happiness and well-being of the child.' In Interest of F.H., 283 N.W.2d 202 (N.D.1979)."

Section 27-20-02(5)(a), N.D.C.C., defines a deprived child as a child who:

"Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian; ..."

We have held that proper care means that the parent's efforts must meet those minimum standards of care which the community will tolerate. In Interest of R.H., 262 N.W.2d 719 (N.D.1978).

Section 27-20-44(1), N.D.C.C., provides:

"27-20-44. Termination of parental rights.--

"1. The court by order may terminate the parental rights of a parent with respect to his child if:

* * *

"b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; ..."

The Dickey County Social Services office has provided Paula or James and Charles with the following services: casework counseling, parenting classes, homemaker services, day care for James, medical assistance, transportation services, AFDC food stamps, friendly visitor, foster care, speech therapy for James, family planning, crisis intervention/emergency services, and psychological evaluations.

Social workers testified that Social Services has never extended so many hours of services to one case and this is the broadest scope of services they have used; Paula was provided social worker services several times a week since 1980 and on a daily basis since Charles was born; they have seen little improvement in Paula's parenting skills since the services began; Paula would need constant help in raising the children; Paula had said she would give James up for adoption if she could get some money out of the deal; Paula's home does not meet community standards as to cleanliness; Paula could not take care of both children at the same time; Paula's problems in raising James will recur with Charles; and Paula's parenting skills fall below the standard the community will tolerate.

Helen Wilson, a clinical neuropsychologist who had examined Paula and James in September 1982 ...