In Interest of LJ

436 N.W.2d 558, 1989 WL 13880
CourtNorth Dakota Supreme Court
DecidedFebruary 20, 1989
DocketCiv. No. 880001
StatusPublished
Cited by6 cases

This text of 436 N.W.2d 558 (In Interest of LJ) 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
In Interest of LJ, 436 N.W.2d 558, 1989 WL 13880 (N.D. 1989).

Opinion

436 N.W.2d 558 (1989)

In the Interest of L.J. and R.J., Children.
Melanie HEITKAMP, Petitioner and Appellee,
v.
L.J. and R.J., Children; William D. Schmidt, Guardian ad Litem; and the Executive Director of the North Dakota Social Services Board, Respondents,
K.J., Mother, Respondent and Appellant.

Civ. No. 880001.

Supreme Court of North Dakota.

February 20, 1989.

*559 Thomas M. Disselhorst (argued), Bismarck, for respondent and appellant.

Merle Ann Torkelson (argued), State's Atty., Washburn, for petitioner and appellee.

Joseph Cichy, Bismarck, on briefs, for Guardian ad Litem.

LEVINE, Justice.

K.J. (hereinafter "Kay," a pseudonym), the mother of the minor children, L.J. (hereinafter "Loren," a pseudonym), and R.J. (hereinafter "Randy," a pseudonym), appeals from a juvenile court order terminating her parental rights. We affirm.

*560 Of the five children born to Kay and her deceased husband B.J. (hereinafter "Bob," a pseudonym), two, Randy and Loren, are mentally retarded. McLean County Social Services has had a long history of involvement with the family. Since 1980 twenty-one abuse and neglect reports were filed; fifteen were substantiated. These reports concerned, among other things, lack of supervision, nutritional and emotional neglect, inadequate clothing and shelter, and inadequate housekeeping.

A deprivation petition was filed on behalf of all five children. After a hearing on April 1, 1985, custody of the five children was placed in McLean County Social Services. Randy and Loren were placed in foster care, to be returned to their home in eighteen months if the parents corrected the conditions in the home and participated in various programs of Social Services aimed at improving parental care.

A petition for termination of parental rights with regard to Randy and Loren was filed on May 21, 1986 alleging little or no progress on the part of the parents to adequately provide for Randy and Loren. The parents entered into a stipulation, agreeing to rectify the problems, but through the next year and one-half custody remained with McLean County Social Services. After considerable procedural maneuvering, a hearing was held on the petition to terminate. The juvenile court terminated Kay's parental rights, finding that Randy and Loren were deprived and that the deprivation was likely to continue or would not be remedied. Kay appealed.

In order for the court to terminate parental rights, the State must show 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 suffering or will probably suffer serious physical, mental, moral or emotional harm. See NDCC § 27-20-44; In Interest of J.A.L., 432 N.W.2d 876, 878 (N.D.1988); Bernhardt v. K.Q. 423 N.W.2d 803, 803 (N.D.1988).

In reviewing the decision of the juvenile court to terminate parental rights, we examine the evidence in a manner similar to trial de novo. In Interest of C.S., 417 N.W.2d 846, 847 (N.D.1988). Our review is based upon "files, records, and minutes or transcript of the evidence of the juvenile court." NDCC § 27-20-56(1). We afford the juvenile court's findings appreciable weight, but we are not bound by them. Id.; In Interest of A.M.C., 391 N.W.2d 178, 179 (N.D.1986). We recognize, however, the juvenile court's opportunity to observe the demeanor of the witnesses. In Interest of J.S., 351 N.W.2d 440, 441 (N.D.1984).

1. Deprivation

The juvenile court determined that Randy and Loren are deprived. Under NDCC § 27-20-02(5)(a), a deprived child is one without proper parental care or control, subsistence, education and the "deprivation is not due primarily to the lack of financial means" of the parents.

Kay acknowledges that some deprivation exists, but argues that the deprivation is due to her lack of financial resources. The evidence reveals deprivation that has little to do with finances, such as lack of supervision of the children and lack of attention to the physical, emotional and educational needs of the children. There was testimony that their home environment contributed significantly to Randy and Loren's severely delayed language and social skills. There is abundant evidence in the record to establish deprivation not primarily due to lack of financial resources. See In Interest of D.S., 325 N.W.2d 654, 660 (N.D.1982).

2. Continuing or Unremedied Deprivation

The juvenile court found that the conditions and causes of deprivation were likely to continue or not be remedied. In finding that there would be continuing deprivation if the children were returned to Kay because of her inability to meet the minimum standard of parental care, the juvenile court explained that "[t]he minimum standard *561 of care must, of necessity, take into consideration the needs of the child. The minimum standard of care for a special needs child is almost a maximum standard."

Kay contends that the juvenile court violated her constitutional right to parent her children by requiring a "maximum standard" of care for special needs children under which "virtually any parent ...

[would be] incapable of providing the level of care necessary."

That the special needs of children are relevant to a determination of whether there will be continuing or unremedied deprivation is a clearly established principle. See Jacobson v. V.S., 271 N.W.2d 562 (N.D.1978); Bjerke v. D.T., 248 N.W.2d 808 (N.D.1976). Cf. In Interest of J.A.L., supra. Randy and Loren have special educational needs and Randy has special medical needs as well.

It is also well established that parents have a fundamental right to their children which is of constitutional dimension. Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D.1981). Because of their constitutional protection, parental rights may not be terminated merely because a parent lacks the skill to optimize a normal child's potential. In Interest of L.N., 319 N.W.2d 801, 805 (N.D.1982). However, a parent's constitutional right is not absolute. Kleingartner, supra. Thus, a parent must provide care that satisfies the minimum community standards. Asendorf v. M.S.S., 342 N.W.2d 203, 206 (N.D.1983).

The juvenile court in effect concluded, with regard to a special-needs-child, that minimum community standards require parental care that will reasonably contribute to the limited potential of the special-needs-child in order to obviate the drastic and permanent consequences of lesser efforts.

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Bluebook (online)
436 N.W.2d 558, 1989 WL 13880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-lj-nd-1989.