Cleveland v. T.V.

1999 ND 214, 602 N.W.2d 723, 1999 N.D. LEXIS 235, 1999 WL 1077247
CourtNorth Dakota Supreme Court
DecidedDecember 1, 1999
DocketNos. 990218, 990219
StatusPublished
Cited by3 cases

This text of 1999 ND 214 (Cleveland v. T.V.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleveland v. T.V., 1999 ND 214, 602 N.W.2d 723, 1999 N.D. LEXIS 235, 1999 WL 1077247 (N.D. 1999).

Opinion

NEUMANN, Justice.

[¶ 1] The State appealed from a juvenile court order denying the State’s petition to terminate the parental rights of T.V.(Tina) 1 B.V. (Brad), and M.T. (Marvin). We hold the State has failed to prove by clear and convincing evidence that the conditions and causes of the deprivation of Z.R. (Zeb) and J.V. (John) are likely to continue or will not be remedied. We affirm the denial of the petition and remand for entry of an order for temporary monitoring of these parents.

[¶ 2] Tina, age 26, is Zeb and John’s mother. Marvin is Zeb’s father, but he and Tina were never married and he has minimal or no contact with Zeb. Brad, age 28, is married to Tina and is John’s father. Tina and Brad have a second child, Ann, born in January 1998, who is not involved in these proceedings. Tina also has two other children who are in the custody of their fathers and are not involved in these proceedings.

[¶ 3] Tina has a sporadic employment history working many jobs at which she has remained for very short periods of time. She testified she was presently working as a cashier at a service station. Brad has an engineering degree from North Dakota State University, and at the time of trial, held an engineering position, paying an annual salary of about $70,000.

[¶ 4] In December 1996 Brad and Tina took John, who was then two months old, to the MeritCare walk-in clinic in Fargo. [725]*725John had incurred severe injuries, including fractures to his ribs, his wrists and ankles, and spiral fractures of his left humerus and right tibia and “epiphicial separations” of his femurs and tibias. The doctors determined these injuries occurred during multiple time frames and were the type of injuries caused by the “pulling, twisting, shaking or throwing” of the child with force suggesting they were caused by a person of adult or nearly adult size and strength. Child abuse by the parents was immediately suspected, and the children were taken from Brad and Tina’s home and placed into foster care. Zeb was placed in the care of Tina’s mother, V.S. (Valerie). John was placed in the care of Brad’s parents, R.V. (Rex) and K.V. (Kathy). Subsequent to her birth in January 1998, Ann was also placed in Rex and Kathy’s care.

[¶ 5] The State petitioned the juvenile court to determine if Zeb and John were deprived children and to make appropriate disposition of their custody and care. The court, the Honorable Frank L. Racek presiding, found the children were deprived and ordered they remain in the custody of the State’s authority to make appropriate placements of the children and to provide visitation for Brad and Tina with the children. The court also ordered Brad and Tina to submit to psychological testing, after which the court would formulate an appropriate treatment plan. The parties were evaluated and a treatment plan was ordered by the court, which required Brad and Tina to receive individual therapy with a doctorate level psychologist or similar therapist and to attend parental training programs. Brad and Tina relocated to Johnson, Minnesota in July 1997, and the evaluations and treatment programs have been coordinated with appropriate authorities in this State and in Minnesota.

[¶ 6] In September 1998 the State filed a petition to terminate Brad and Tina’s parental rights to John and to terminate Marvin and Tina’s parental rights to Zeb. After a hearing, the juvenile court, the Honorable Norman J. Backes presiding, determined the children were deprived but the State had failed to prove by clear and convincing evidence the conditions and causes of the deprivation were likely to continue. The court denied the petition and ordered the children returned to Brad and Tina’s custody. The State appealed.

[¶ 7] N.D.C.C. § 27-20-44 of the Uniform Juvenile Court Act authorizes the termination of parental rights in certain cases, and provides in relevant part:

1. The court by order may terminate the parental rights of a parent with respect to the parent’s child if:
a. The parent has abandoned the child;
b. The child is a deprived child and the court finds:
(1) The 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....

Under subsection (b) the statute creates a three part test for determining whether the juvenile court may terminate parental rights: 1) is the child deprived; 2) are the conditions and causes of the deprivation likely to continue; and 3) is the child suffering, or will the child in the future, suffer serious physical, mental, moral, or emotional harm. In Interest of A.S., 1998 ND 181, ¶ 15, 584 N.W.2d 853. The State must prove all three elements by clear and convincing evidence. In Interest of L.F., 1998 ND 129, ¶ 10, 580 N.W.2d 573. On appeal, we review the juvenile court’s decision regarding termination of parental rights and examine the evidence in a manner similar to a trial de novo. In Interest of A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853. We review the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court. N.D.C.C. § 27-20-56(1).

[726]*726[¶ 8] At the conclusion of the deprivation proceedings in June 1997, the juvenile court found Zeb and John were deprived children. A deprived child under our statutes includes a child who is “without proper parental care or control ... necessary for the child’s physical, mental, or emotional health.” N.D.C.C. § 27-20-02(5). The court specifically found only Tina and Brad had access to John “during each and every one of the time frames” in which John incurred multiple physical injuries. The court, thereby, implicitly found Brad and Tina had physically abused John, resulting in serious injury to him. Following the proceedings on the termination petition in June 1999, the juvenile court reconfirmed the prior finding that these children are deprived. Brad and Tina have not challenged the court’s finding John and Zeb are deprived.

[¶ 9] As the second element for terminating parental rights, the State must prove by clear and convincing evidence the conditions and causes of the deprivation are likely to continue. Brad and Tina offered evidence at the termination proceedings to show they have complied with the court’s treatment plan and have acquired the necessary counseling and education to provide a safe and nurturing environment for the children. The State offered counter evidence that Tina, in particular, has a personality disorder which precludes her from having empathy for other persons and from providing appropriate nurture and care for her children. The State asserts Tina’s personality disorder is not amenable to treatment to enable her to provide a safe and caring home environment for the children. After hearing all of the testimony and viewing the demeanor of the witnesses, the trial court concluded the State had failed to prove by clear and convincing evidence the deprivation of the children by Brad and Tina was likely to continue, and the court ordered return of the children to them.

[¶ 10] Recognizing cases involving termination of parental rights are always difficult, we reviewed the principles guiding our determination in the recent case of In Interest of L.F., at ¶ 9, 580 N.W.2d 578:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Olson v. T.K.
2001 ND 127 (North Dakota Supreme Court, 2001)
In Re TK
2001 ND 127 (North Dakota Supreme Court, 2001)
Ford Motor Credit Co. v. Sagmiller
2000 ND 151 (North Dakota Supreme Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
1999 ND 214, 602 N.W.2d 723, 1999 N.D. LEXIS 235, 1999 WL 1077247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-v-tv-nd-1999.