T. M. M., In Interest of, 9430

• Decision Date: 06 July 1978
• Docket Number: No. 9430,9430
• Citation: 267 N.W.2d 807
• Parties: In the Interest of T. M. M., a child. Thomas L. ZIMNEY, Assistant State's Attorney, Petitioner and Appellee, v. L. M. M., Respondent and Appellant, and D. A. M., Respondent. Civ.
• Court: North Dakota Supreme Court

Page 807

267 N.W.2d 807

In the Interest of T. M. M., a child.

Thomas L. ZIMNEY, Assistant State's Attorney, Petitioner and Appellee, v. L. M. M., Respondent and Appellant, and D. A. M., Respondent.

Civ. No. 9430.

Supreme Court of North Dakota.

July 6, 1978.

Rehearing Denied July 26, 1978.

Thomas L. Zimney, Special Asst. State's Atty., Grand Forks, pro se as petitioner and appellee on behalf of State of North Dakota.

Dwight F. Kalash, Grand Forks, guardian ad litem of the child, T. M. M.

Marie M. Feidler, Grand Forks, for respondent and appellant L. M. M.

VOGEL, Justice.

This is an appeal by the natural mother, L. M. M., from a determination of deprivation pursuant to Chapter 27-20, North Dakota Century Code, by the Juvenile Court of Grand Forks County, which entered a judgment placing the minor child, T. M. M., with the natural father, D. A. M L. M. M. and D. A. M. were divorced on August 3, 1974, and custody of T. M. M. was granted to D. A. M. On February 2, 1977, L. M. M.'s motion to modify the divorce decree was heard, and the court granted custody of T. M. M. to L. M. M. A petition alleging deprivation of T. M. M. was filed on June 2, 1977, naming both L. M. M. and D. A. M. as respondents.

Section 27-20-21 requires that the petition shall set forth "The facts which bring the child within the jurisdiction of the court, . . ." The only attempt to comply with this requirement was a verbatim recital of the statutory definition of "deprived child" (Sec. 27-20-02, subsec. 5-a, N.D.C.C.) stating that the child

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

A hearing on the petition set for June 21, 1977, was continued to July 18, 1977, at the request of D. A. M.'s counsel, apparently to permit D. A. M. to schedule a motion to modify the divorce decree. The two hearings were then postponed to August 29, 1977. The court found T. M. M. to be deprived and ordered legal custody of T. M. M. to be continued in the Grand Forks County Social Service Center for one year with physical custody granted to D. A. M. It is from this judgment that L. M. M. appeals and presents the following issues for determination:

1. Whether the deprivation hearing was in fact combined with a hearing to modify the divorce decree, thereby constituting reversible error.

2. Whether the introduction of a substantial amount of dispositional evidence prior to a finding of deprivation adversely affects the custodial parent's right to a hearing on deprivation and therefore warrants dismissal of the petition.

3. Whether the evidence was legally sufficient to support a finding of deprivation.

Our scope of review in cases arising under Chapter 27-20, N.D.C.C., is similar to trial de novo and is not subject to the "clearly erroneous" rule. Rule 52(a), N.D.R.Civ.P.; In Interest of M. L., 239 N.W.2d 289 (N.D.1976); Interest of R. W. B., 241 N.W.2d 546 (N.D.1976); Bjerke v. D. T., 248 N.W.2d 808 (N.D.1976). Section 27-20-56, subsection 1, dictates that we review this case "upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court."

I

Section 27-20-24, subsection 1, deals specifically with the first issue in setting forth the procedure for conducting deprivation hearings. It provides:

"1. Hearings under this chapter shall be conducted by the court without a jury, in an informal but orderly manner, and separately from other proceedings not included in section 27-20-03." (Emphasis added.)

Although North Dakota adopted substantially all of the Uniform Juvenile Court Act as approved by the National Conference of Commissioners on Uniform State Laws, it chose to depart from that Uniform Act in some instances. Of particular importance in this case is North Dakota's adoption of Section 27-20-03, which sets forth the jurisdiction of the juvenile court. North Dakota chose not to include within the jurisdiction of the juvenile court "proceedings to determine the custody or appoint a guardian of the person of a child," although the quoted words were included in the Juvenile Court Act adopted by the National Conference of Commissioners on Uniform State Laws. Such a departure indicates that the North Dakota Legislature specifically intended that divorce-related custody proceedings would not be within the jurisdiction of the juvenile court, and Section 27-20-24, subsection 1, makes it clear that hearings conducted to determine whether a child is deprived must be conducted separately from divorce-related custody hearings.

In prior opinions we have discussed the inappropriateness of a deprivation hearing as a forum for determining divorce-related custody matters. In the case of In Interest of M. L., supra, 239 N.W.2d at 295, we said that the differences between the two types of hearings are crucial, and, at 296, that "we believe it was essential to restrict the deprivation hearing to matters appropriate to that kind of hearing, and it was inappropriate to treat it as the equivalent of a divorce custody proceeding." See also Kottsick v. Carlson, 241 N.W.2d 842 (N.D.1976).

The question, then, is whether the hearing held in this case was in effect a combination of a deprivation hearing and a hearing on a motion to modify the divorce decree. Both matters were scheduled for hearing at the same time on August 29, 1977. Prior to the commencement of the hearing, the parties met in the judge's chambers to discuss procedural matters and apparently entered into an oral stipulation which was not transcribed and therefore is not a part of the record. The appellant asserts that it was stipulated that evidence introduced at the deprivation hearing could be considered as evidence in the hearing on the motion to modify the divorce decree, therefore obviating the necessity of repeating certain testimony. The appellee asserts that it was stipulated that testimony could be taken during the course of the deprivation hearing which might be more applicable to the motion to modify the divorce decree. Reference to this stipulation was made by the judge during the hearing when he stated that "counsel representing the parties in a divorce case have agreed that the evidence received here is to be considered controlling on the motion too." We interpret this statement by the judge to mean that it was stipulated that evidence properly admitted in the deprivation hearing would be considered as evidence in the divorce custody hearing without having to introduce that same evidence twice. We do not interpret the judge's remark to mean that the deprivation hearing would be open to introduce evidence properly belonging only in the divorce custody proceeding.

In reviewing the entire record and considering all the evidence we find that the procedure followed was not in compliance with the statute. The record indicates that the deprivation hearing was intermingled with the hearing on the motion to modify the divorce decree to such an extent as to constitute reversible error. Much of the confusion during the hearing probably was due to the different interpretations of the above-mentioned stipulation by the attorneys and the court. A few examples will demonstrate this confusion. The court, early in the proceeding and prior to any finding of deprivation, commented: "That's the reason we're in court, because these people are fighting for custody." Later, the court said:

"I've got to make this determination as to what is in the best interest of the child. I have three options. I can dismiss the deprivation hearing and I can deny the (motion) for modification, or I can grant or I can find deprivation and grant the motion for modification or continue the custody with the Grand Forks County Social Service Center and have the child's physical custody here or there under supervision, but there has to be one decision made."

The court then asked the witness:

"Would you agree that if the testimony comes on the record and establishes that the father who is now remarried and has a suitable home in Minneapolis and is maintaining a normal, whatever that means, family life with employment, that this would be better, you know, than (L. M. M.'s) present circumstances?"

The court also asked a witness, prior to any finding of deprivation:

" . . . you're familiar, I assume, with the criteria that the Court is required to follow in a custody case; that is, the custody of the children is to be determined based upon what is in the best interest of the child or children rather than what is in the best interest of the parents?"

After the State, the guardian ad litem, and L. M. M. rested, the following interchange took place:

"(Counsel for D. A. M.): I would like a little clarification on our procedure. In other words, as the last respondent then in this proceeding, we would be presenting our witnesses and that will conclude the hearing or is there rebuttal of some sort that the petitioner, or does the other respondent get a rebuttal, or is this a conclusion of the proceeding?

"THE COURT: What is your position, Mr. (Assistant State's Attorney, for petitioner in deprivation matter)?

"(Attorney for Petitioner): We don't request rebuttal, Your Honor.

"THE COURT: The presentation will conclude with your matter, Mr. (Counsel for D. A. M.)."

The court thereupon took a recess and immediately thereafter, counsel for D. A. M. called his witnesses, including D. A. M.'s sister, mother, present wife, and D. A. M. Counsel for D. A. M. remarked to the court during examination of his first witness, "Your Honor, our purpose in this hearing is to have custody with the natural father (D. A. M.)." Much of the testimony elicited from these witnesses consisted of...