T.J.O., In Interest of, 900158

• Decision Date: 13 November 1990
• Docket Number: No. 900158,900158
• Parties: In the Interest of T.J.O., a Child. S.O., by her parents and natural guardians, M.O. and A.O., Petitioners and Appellees, v. R.L.H., R.L.H., and D.M.H., Respondents and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 631

462 N.W.2d 631

In the Interest of T.J.O., a Child.

S.O., by her parents and natural guardians, M.O. and A.O., Petitioners and Appellees, v. R.L.H., R.L.H., and D.M.H., Respondents and Appellants.

Civ. No. 900158.

Supreme Court of North Dakota.

Nov. 13, 1990.

Schuster, Brothers & Beauchene, Fargo, for petitioners and appellees; James R. Bros. (argued).

Leslie Johnson-Soetebier (argued), Fargo, for respondents and appellants.

ERICKSTAD, Chief Justice.

R.H. (hereinafter "Robert," a pseudonym) and his parents R.H. and D.H. (hereinafter "Ray" and "Donna," pseudonyms) appeal from a juvenile court order terminating Robert's parental rights to T.J.O. (hereinafter "Thomas," a pseudonym). We affirm.

In April 1989, S.O. (hereinafter "Susan," a pseudonym) gave birth out of wedlock to Thomas. It is undisputed that Robert is Thomas' father. At the time of Thomas' birth Robert was 14 years old and Susan was 16 years old. Susan resides with her parents M.O. and A.O. (hereinafter "Mark" and "Amy," pseudonyms). Robert resides with his parents.

Susan has had physical custody of Thomas since his birth, but she plans to voluntarily consent to the termination of her parental rights and place Thomas for adoption, providing Robert's parental rights are terminated. ¹ Susan and her parents filed a petition requesting the juvenile court to terminate Robert's parental rights. Robert refuses to voluntarily terminate his parental rights. He prefers that Thomas be raised by Susan but would agree to take physical custody of Thomas rather than have Susan place Thomas for adoption.

For the court to terminate parental rights under Subsection 27-20-44(1)(a), N.D.C.C., it must be established by clear and convincing evidence that: (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 irremediable conditions and causes the child is or will probably suffer serious physical, mental, moral, or emotional harm. In reviewing the decision of the juvenile court to terminate parental rights we examine the evidence in a manner similar to trial de novo, affording the juvenile court's findings appreciable weight, but not being bound by them. In Interest of L.J., 436 N.W.2d 558 (N.D.1989).

The juvenile court found that Thomas is a deprived child because Robert lacks the skills and commitment necessary to parent Thomas; that the conditions and causes of Thomas' deprivation are not likely to be remedied within a reasonable time because it is unlikely that Robert will acquire minimum parental skills within 3 to 5 years; and that as a consequence of this continued deprivation Thomas would probably suffer serious mental and emotional harm. Consequently, the court terminated Robert's parental rights. Robert asserts on appeal that the court erred in finding by clear and convincing evidence that Thomas is a deprived child.

Under Subsection 27-20-02(5)(a), N.D.C.C., a deprived child is defined 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...."

The definition of a deprived child is broad enough to encompass a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing proper parental care for the child. In re H., 206 N.W.2d 871 (N.D.1973). A child may be found to be a deprived child with regard to a parent even though that child has at all times received adequate foster or other proper care from a source other than that parent. See In Interest of K.P., 267 N.W.2d 1 (N.D.1978). Prognostic evidence may be relied upon to find that a child is a deprived child if it shows that the parent, although not having custody of the child, would be presently unable to supply physical and emotional care for the child, with the aid of available social agencies, if necessary, and that the inability would continue for sufficient time to render improbable the successful assimilation of the child into a family if that parent's rights were not presently terminated. In Interest of J.A.L., 432 N.W.2d 876 (N.D.1988).

Robert has never had physical custody of Thomas and it is unlikely, irrespective of the decision in this case, that he will have physical custody in the foreseeable future. From his birth, Thomas has been in Susan's physical custody, residing with Susan and her parents in their home. Although Susan wants to place Thomas for adoption, she would agree to keep physical custody of Thomas rather than have him placed in Robert's custody. Robert and his parents have clearly expressed their desire that Thomas remain in Susan's physical custody to be raised by Susan and her parents, but they would agree to raise Thomas rather than have him placed in an adoptive home. The gist of the parties' positions is that neither parent wants to have primary custody of Thomas or to raise him. Each parent would agree to take Thomas only as a secondary preference or "fallback" position. Neither has demonstrated an unconditional love and desire to parent Thomas that would assure him adequate care necessary for his physical, mental, and emotional health and wellbeing.

Dr. Neil Clark, a licensed consulting psychologist, was appointed by the juvenile court to evaluate Robert and Susan. Dr. Clark testified that Susan does not have the necessary commitment to parent Thomas and that her lack of commitment could be problematic to Thomas' development resulting in "confusion and turmoil" and a lack of capacity by Thomas to develop intimate and caring relationships. Dr. Clark testified that Robert, at age 14, lacks knowledge and skills to adequately parent Thomas. He testified that Robert is an eighth grader who has struggled in school and has been placed in a learning disability program. Robert is also struggling with personal problems involving conflicts with the...