State v. A.B. (In re Interest of A.B.)

• Decision Date: 12 July 2017
• Docket Number: No. 20170206,No. 20170205,20170205
• Parties: IN the INTEREST OF A.B., a Child State of North Dakota, Petitioner and Appellee v. A.B., Child, J.C. n/k/a J.B., Mother, Janice Briese, Guardian ad Litem, and the Executive Director of ND Department of Human Services, Respondents and D.B., Father, Respondent and Appellant In the Interest of M.V.B., a Child State of North Dakota, Petitioner and Appellee v. M.V.B., Child, J.C. n/k/a J.B., Mother, Janice Briese, Guardian ad Litem, and the Executive Director of ND Department of Human Services, Respondents and D.B., Father, Respondent and Appellant
• Court: North Dakota Supreme Court

898 N.W.2d 676

IN the INTEREST OF A.B., a Child

State of North Dakota, Petitioner and Appellee

v.A.B., Child, J.C. n/k/a J.B., Mother, Janice Briese, Guardian ad Litem, and the Executive Director of ND Department of Human Services, RespondentsandD.B., Father, Respondent and Appellant

In the Interest of M.V.B., a Child

State of North Dakota, Petitioner and Appellee

v.M.V.B., Child, J.C. n/k/a J.B., Mother, Janice Briese, Guardian ad Litem, and the Executive Director of ND Department of Human Services, RespondentsandD.B., Father, Respondent and Appellant

No. 20170205

No. 20170206

Supreme Court of North Dakota.

Filed July 12, 2017 by Clerk of Supreme Court

Andrew D. Delain, State's Attorney, Bismarck, ND, for petitioner and appellee.

Susan Schmidt, Bismarck, ND, for respondent and appellant D.B., Father.

Kapsner, Justice.

[¶1] The biological father of two minor children appeals from a juvenile court order terminating both parents' parental rights to their children. The father argues the State failed to prove by clear and convincing evidence the grounds for termination under N.D.C.C. § 27-20-44(1)(c)(1) and Grant County Social Services failed to use reasonable efforts to reunite the parents with their children. We conclude the juvenile court did not err in finding clear and convincing evidence to support the termination of the father's parental rights and in finding Grant County Social Services used reasonable efforts to reunite the father with his children. We affirm.

I

[¶2] The parents are the biological father and mother of a son born in December 2014, and a daughter born in December 2015. On January 21, 2015, Amy Lipke, a social worker for Grant County Social Services, investigated a report of suspected child abuse involving the father and his one month old son. According to Lipke, she was overwhelmed by the odor of cat urine throughout the parents' Grant County home in New Leipzig and she observed a bed in the home was soaked with cat urine and a liter box with cat feces near the son's bassinet. Lipke testified the home was the second worst home she had seen in her eighteen years as a child protection worker, and she sought and obtained an order for emergency removal of the son from the home. The son was removed from the parents' home on January 21, 2015, and ultimately was placed in a foster home, where he has remained since being removed from the parents' home.

[¶3] According to Kristen Wentz–Krumwiede, a social worker for Grant County Social Services, she also observed the parents' home on January 21, 2015, and found an overwhelming smell of cat urine throughout the home, large amounts of cat feces near the son's bassinet, and filth throughout the home. She testified a social services team meeting was held within thirty days after removal of the son from the parents' home and the parents were provided information about goals and requirements necessary for reunification with their son, including cleaning their home or finding suitable sanitary housing, completing a parental capacity assessment and obtaining recommended services, and communicating and cooperating with Grant County Social Services. The parents were also required to maintain contact with an appointed guardian ad litem, Janice Briese. According to Wentz–Krumwiede, Grant County Social Services thereafter held quarterly team meetings with the parents with a goal for reunification of the family.

[¶4] The parents completed a parental capacity assessment in March 2015, which revealed both parents lacked necessary parenting skills and needed training. Dr. Lisa Hay, a licensed psychologist at West Central Human Services Center, administered the assessment and testified the father has difficulty acquiring proper parenting skills and is suspicious of others, particularly social services personnel. The parents attended a parenting class and tests administered before and after the class showed little improvement by the mother and a decline in parenting skills by the father. Grant County Social Services obtained a computerized electronic doll to monitor the parents' parenting skills, but the doll was not used because the parents either did not have a sanitary home or their residence was not known, and the father also objected to using the doll to monitor his parenting skills.

[¶5] The parents' daughter was born in December 2015, and she was immediately placed in the same foster home with her brother due to concerns about the unsanitary living conditions in the parents' home and their lack of parenting skills. The daughter has been in custody of Grant County Social Services in the same foster home with her brother since her birth in December 2015, and reunification and care plans for both children were merged.

[¶6] According to Wentz–Krumwiede, although the parents initially demonstrated some compliance with Grant County Social Services' recommendations for reunification of the family, they failed to make adequate progress with the recommendations. She testified the parents moved from New Leipzig to Elgin sometime after their son was removed from their home and an inspection of their home in Elgin revealed unsanitary conditions and health concerns. According to Wentz–Krumwiede, the parents were evicted from their Elgin home in March 2016, and thereafter lived in their vehicle or in motels in Bismarck or Dickinson until finding a suitable home in Dickinson shortly before trial. Wentz–Krumwiede testified Grant County Social Services did not always know where the parents were living and was frequently unable to contact the parents. Moreover, she testified the parents did not maintain contact with Grant County Social Services, which hindered efforts at reunification with their children.

[¶7] According to Wentz–Krumwiede, the parents initially were scheduled for weekly two hour supervised visitations with their son and later with both children at the Family Connection Safe Visitation Center in Dickinson, but their attendance at the visitations was sporadic. She testified Grant County Social Services provided the parents with some financial assistance, including cell phone minutes so they could keep in contact with social services, money for gas and automobile repairs, and temporary hotel accommodations and meals for court proceedings. According to Wentz–Krumwiede, Grant County Social Services initially also provided a parent aide for household cleaning, but the father asked the aide to leave the home. Wentz–Krumwiede testified the parents failed to attain adequate parenting skills to obtain more than weekly supervised visitation with their children, and although the parents completed a parenting class in Dickinson, they had not progressed to a level for additional or unsupervised visitation with their children.

[¶8] There was evidence the parents failed to maintain contact with the guardian ad litem, Briese, and failed to cooperate with her for home visits. According to Briese, the father indicated he did not need to use the computerized electronic doll to learn how to parent. Briese testified the children's welfare was not the parents' highest priority and they never expressed a desire to see the children for more than their scheduled weekly supervised visitation. Although Briese recognized the parents had made some progress by the time of trial, she recommended termination of the parents' parental rights.

[¶9] In September 2016, the State filed a petition to terminate the parents' parental rights to their son and a separate petition to terminate the parents' parental rights to their daughter. The petitions alleged aggravated circumstances, claiming the children were abandoned and the parents failed to make substantial, meaningful efforts to secure treatment for addictions, mental illnesses, or behavioral disorders. The petitions also alleged the children were deprived, the causes of deprivation were likely to continue or would not be remedied, and the children were suffering or would likely suffer serious physical, mental, moral or emotional harm. The petition to terminate the parents' parental rights to their son further alleged deprivation and the son had been in foster care for 601 straight nights.

[¶10] After a March 2016 trial, the juvenile court found there was not clear and convincing evidence of aggravated circumstances and declined to terminate the parents' parental rights to their children on that ground. However, the court terminated the parents' parental rights to their children under N.D.C.C. § 27-20-44(1)(c)(1), finding clear and convincing evidence that the children are deprived, that the conditions and causes of deprivation are likely to continue or will not be remedied, and that, as a result, the children will probably suffer serious physical, mental, moral, or emotional harm. The court also terminated the parents' parental rights to their son under N.D.C.C. § 27-20-44(1)(c)(2) on the ground that he was deprived and had been in foster care for more than 450 out of the previous 660 days.

II

[¶11] As relevant to the issues raised in this appeal, N.D.C.C. § 27-20-44(1)(c)(1) authorizes a juvenile court to terminate parental rights if a "child is a deprived child and the court finds ... [t]he 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[.]" A petitioner must establish all of the elements for termination by clear and convincing evidence. In re A.L. , 2011 ND 189, ¶ 8, 803 N.W.2d 597. Clear and convincing evidence is evidence that leads to a firm belief or conviction the allegations are true. In re C.N. , 2013 ND 205, ¶ 6, 839 N.W.2d 841.

[¶12] We will not overturn a juvenile court's findings of fact in a termination proceeding unless the findings are clearly erroneous under N.D.R.Civ.P. 52(a). A.L. , 2011 ND 189, ¶ 6, 803 N.W.2d 597. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if...