Thompson v. King, 11095

• Decision Date: 30 September 1986
• Docket Number: No. 11095,11095
• Citation: 393 N.W.2d 733
• Parties: In the Matter of the Adoption of Steven Richard Thompson, a minor. Dwight W. THOMPSON, Petitioner and Appellee, v. Frank L. KING, Respondent and Appellant, and Executive Director of the Social Service Board of the State of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 733

393 N.W.2d 733

In the Matter of the Adoption of Steven Richard Thompson, a minor.

Dwight W. THOMPSON, Petitioner and Appellee, v. Frank L. KING, Respondent and Appellant, and Executive Director of the Social Service Board of the State

of North Dakota, Respondent.

Civ. No. 11095.

Supreme Court of North Dakota.

Sept. 30, 1986.

Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Grand Forks, for petitioner and appellee; argued by Gordon W. Myerchin.

Hand & Triplett, Grand Forks, for respondent and appellant; argued by James S. Hand.

GIERKE, Justice.

This is an appeal from that portion of a judgment of the District Court of Grand Forks County terminating the parental rights of Frank L. King, in and to one minor child. The judgment was issued in conjunction with an adoption proceeding initiated by the child's adoptive father, Dwight W. Thompson. The basis for that portion of the judgment which terminated parental rights was that Frank L. King had abandoned his child and that the inability of King to perform parental duties would result in harm to the child. King asserts that the termination of his parental rights was inappropriate as there was not clear and convincing evidence of abandonment or unfitness. King also raises numerous procedural errors in the adoption proceeding from which he appeals, particularly citing notice deficiencies in the termination of his parental rights. Finally, King objects to the admission into evidence of a letter written by Dr. Matthew Levine which prejudiced the court in its termination of his parental rights at the adoption hearing. We affirm.

Frank L. King and Ruth Ann Thompson were formerly husband and wife. Steven R. Thompson, born June 5, 1976, is the only child born of the marriage. The parties were married in August 1974. They were separated in April 1979 and were divorced July 11, 1980. The decree of divorce granted full legal and physical custody of Steven to Ruth. King was granted reasonable visitation and was ordered to pay $75 per month child support.

In 1981, King was court-martialed for numerous sexually-related offenses, as well as two counts of obstructing justice, and began serving a 10-year sentence at the United States Disciplinary Barracks, Fort Leavenworth, Kansas. King immediately appealed his convictions and during post-conviction proceedings was granted review of his court-martial based upon the findings of Dr. Matthew Levine that King suffered from two serious psychological disorders which could have affected his capacity to appreciate the criminality of his conduct. The review of King's appeal was pending at the time of the termination proceeding. The documents utilized by the United States Army for King's post-conviction proceedings are entitled Post-Trial Review and were made a part of the record during the termination proceedings.

In 1984, Dwight Thompson, Ruth's new husband, petitioned for a termination of King's parental rights, pursuant to Sec. 14- 15-19, North Dakota Century Code. ¹ The petition sought to terminate the parental rights of King either by his consent, or by court-ordered termination. King refused to consent to the termination. The trial court concluded that King, by his conduct, had abandoned Steven under Sec. 14-15-19(3)(a), N.D.C.C. Further, the court concluded that King's inability to perform parental duties would result in harm to the child under Sec. 14-15-19(3)(b), N.D.C.C.

The proper scope of review on appeal of a termination of parental rights, pursuant to Sec. 14-15-19(2) and (3) is de novo review. Matter of Adoption of Quenette, 341 N.W.2d 619 (N.D.1983); Pritchett v. Executive Dir. of Soc. Serv. Bd., 325 N.W.2d 217 (N.D.1982). The party seeking the termination has the burden of proving the necessary grounds by clear and convincing evidence. The question of grounds for terminating parental rights is one of fact and a finding of abandonment will be upheld on appeal where there is substantial evidence in the record to support the finding. Quenette, supra; Matter of Adoption of Gotvaslee, 312 N.W.2d 308 (N.D.1981).

As to the issue of abandonment, King properly asserts that we cannot consider his incarceration to be the controlling factor. Quenette, supra. Certainly, a parent incarcerated has a difficult time maintaining physical contact with a child. We concluded in In the Interest of F.H., 283 N.W.2d 202 (N.D.1979), and reiterated in Quenette, that imprisonment, combined with other factors such as parental neglect, withholding of affection, lack of financial or other support, and no contact would support a finding of abandonment. Quenette, supra; Interest of F.H., supra.

King has been incarcerated since November 1981. During this period of incarceration, he has been unable to provide Steven with any financial support. He has not seen Steven since approximately July 1981. He has also been unable to perform any parental duties. These deficiencies on King's part may stem from his incarceration and we do not consider them to be conclusive evidence of abandonment. However, when viewed in conjunction with other behavior or lack of it by King, we conclude that the trial court has properly determined that King abandoned Steven.

King has made no attempt to telephone Steven since December 1982. He has not written directly to Steven prior to the initiation of this action but rather has made inquiries sporadically through other family members. He has sent gifts on occasion which were purchased and mailed by the Salvation Army upon King's request but these gifts were not personally tagged by King. There is conflicting evidence in the record as to the quality and amount of communication that King has attempted to maintain with Steven since the 1979 separation. However, King is not aware of his son's progress in school, his general activities or even whether or not the boy is "happy." There is substantial evidence in the record to support the trial court's finding of abandonment.

King further argues that the trial court did not have clear and convincing evidence which established his unfitness as a parent.

King is serving a 10-year sentence. There is no guarantee that his post-conviction proceedings will be successful. The sole issue at the post-conviction proceedings is a determination of King's sanity at the time of the offenses.

The only evidence to be considered for the determination of King's sanity at the time of his court-martial is psychiatric testimony. ² King relies on this testimony for post-conviction relief. We read this testimony as an indicator that King would have a difficult time performing his parental duties.

Further, if the conviction should stand we, as did the trial court, must note the seriousness and nature of the crimes with which King was charged and found guilty. King was a psychology intern with the United States Army. He had received Masters Degrees in clinical counseling of psychology and education and was pursuing a doctorate. His position in the Army demanded he counsel Army personnel and their families on a variety of subjects. While acting in this capacity, he was charged with and convicted of improprieties which occurred during or following sessions with his patients. He was found guilty of performing several sexual acts with female patients, sexually fondling female patients, conduct unbecoming an officer and obstruction of justice. The trial court found that King's "utter lack of concern with the potentially traumatizing effect [on Steven] of his behavior is remarkable." Further, the court found that King, although not admitting guilt, maintains that the conduct involved is not inappropriate for a psychologist in the performance of his duties. The record also establishes that King has admitted to Ruth that he has a history of sexually-abusive behavior.

We agree with the trial court that Thompson established by clear and convincing evidence the ground necessary for terminating King's parental rights within the meaning of Sec. 14-15-19(3)(a) and (b), N.D.C.C. Therefore, the adoption is affirmed.

King also cites a number of procedural errors in the adoption proceeding from which he appeals. Initially, King argues that, as an incarcerated prisoner unable to attend the hearing, he should be granted special procedural protections in the adoption proceeding. Particularly, King contends that because of his appeal and pending freedom he should be granted a continuance so that he can appear personally at the adoption hearing. Alternatively, King argues that he be given the opportunity to rebut Thompson's evidence based upon the completed transcript of the hearing.

Through court-appointed counsel, King was permitted "to continue" the adoption proceeding no fewer than five times. On the last four occasions, the continuances were based upon his claim that he would soon be free from prison due to the appeals process. In Quenette, we stated that a proceeding for termination of parental rights and adoption should not drag on. Id. at 622-23. We agree with the district court that this adoption has dragged on too long and conclude the court did not abuse its discretion by denying King's motion for a continuance.

Similarly, we cannot agree with King that he was denied due process because he was not permitted an opportunity to rebut the testimony and evidence presented by the Thompsons at the time of the adoption hearing. Due process is satisfied when a convict in a proceeding for termination of parental rights and adoption is allowed to appear through counsel and by deposition. In the Interest of F.H., 283 N.W.2d 202, 209 (N.D.1979). King was represented by court-appointed counsel, had the opportunity to prepare for the adoption hearing for over a year, and was deposed in anticipation of the hearing.

We do not intend to enlarge a prisoner's due process rights in adoption proceedings by guaranteeing him the opportunity to rebut evidence presented at the hearing. To do so would lengthen the...