T. M. M., In Interest of, No. 9430

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtVOGEL; ERICKSTAD
Citation267 N.W.2d 807
Decision Date06 July 1978
Docket NumberNo. 9430
PartiesIn 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.

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.

Page 808

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.

Page 809

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

Page 810

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...

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13 practice notes
  • F. H., In Interest of, No. 9584
    • United States
    • United States State Supreme Court of North Dakota
    • August 22, 1979
    ...of J.K.S., 274 N.W.2d 244, 248 (N.D.1979), Justice VandeWalle noted in a footnote that this court observed in In Interest of T.M.M., 267 N.W.2d 807, 813 " . . . that a petition in the language of the statute defining a 'deprived child' (27-20-02(5)(a), N.D.C.C.) is conclusory language ......
  • In re H.K., No. 20090149.
    • United States
    • United States State Supreme Court of North Dakota
    • February 17, 2010
    ...the hearing and participate meaningfully in it." Interest of J.K.S., 274 N.W.2d 244, 248 n. 1 (N.D.1979) (citing Interest of T.M.M., 267 N.W.2d 807, 813 (N.D.1978)). In a juvenile court proceeding, due process of law requires "notice which would be deemed constitutionally adequate......
  • State v. T.C., No. 15793
    • United States
    • Supreme Court of West Virginia
    • May 25, 1983
    ...spoken Page 689 to this issue under statutes which are analogous to ours, as illustrated by this discussion in In the Interest of T.M.M., 267 N.W.2d 807, 812 "The Act clearly provides for a two-stage hearing on petitions alleging deprivation. The first phase of the hearing is often ref......
  • In re M.B., No. 20050206.
    • United States
    • United States State Supreme Court of North Dakota
    • January 31, 2006
    ...rights provided in N.D.C.C. § 27-20-44 or the definition of a deprived child provided in N.D.C.C. § 27-20-02(8). Interest of T.M. M., 267 N.W.2d 807, 813 (N.D. 1978). The petitioner must provide specific facts the petitioner will rely on to terminate the parental rights so that the responde......
  • Request a trial to view additional results
13 cases
  • F. H., In Interest of, No. 9584
    • United States
    • United States State Supreme Court of North Dakota
    • August 22, 1979
    ...of J.K.S., 274 N.W.2d 244, 248 (N.D.1979), Justice VandeWalle noted in a footnote that this court observed in In Interest of T.M.M., 267 N.W.2d 807, 813 " . . . that a petition in the language of the statute defining a 'deprived child' (27-20-02(5)(a), N.D.C.C.) is conclusory language ......
  • In re H.K., No. 20090149.
    • United States
    • United States State Supreme Court of North Dakota
    • February 17, 2010
    ...the hearing and participate meaningfully in it." Interest of J.K.S., 274 N.W.2d 244, 248 n. 1 (N.D.1979) (citing Interest of T.M.M., 267 N.W.2d 807, 813 (N.D.1978)). In a juvenile court proceeding, due process of law requires "notice which would be deemed constitutionally adequate......
  • State v. T.C., No. 15793
    • United States
    • Supreme Court of West Virginia
    • May 25, 1983
    ...spoken Page 689 to this issue under statutes which are analogous to ours, as illustrated by this discussion in In the Interest of T.M.M., 267 N.W.2d 807, 812 "The Act clearly provides for a two-stage hearing on petitions alleging deprivation. The first phase of the hearing is often ref......
  • In re M.B., No. 20050206.
    • United States
    • United States State Supreme Court of North Dakota
    • January 31, 2006
    ...rights provided in N.D.C.C. § 27-20-44 or the definition of a deprived child provided in N.D.C.C. § 27-20-02(8). Interest of T.M. M., 267 N.W.2d 807, 813 (N.D. 1978). The petitioner must provide specific facts the petitioner will rely on to terminate the parental rights so that the responde......
  • Request a trial to view additional results

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