In Re MB

2006 ND 19, 709 N.W.2d 11, 2006 WL 224864
CourtNorth Dakota Supreme Court
DecidedJanuary 31, 2006
Docket20050206
StatusPublished
Cited by1 cases

This text of 2006 ND 19 (In Re MB) 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 Re MB, 2006 ND 19, 709 N.W.2d 11, 2006 WL 224864 (N.D. 2006).

Opinion

709 N.W.2d 11 (2006)
2006 ND 19

In the Interest of M.B. and N.B., Children.
Marlene Sorum, L.S.W., Petitioner and Appellee
v.
Director, Cass County Social Services, K.S. (f/k/a K.B.), I.B., M.B., N.B., and Monty Mertz, Guardian ad Litem, Respondents.
I.B., Respondent and Appellant.

No. 20050206.

Supreme Court of North Dakota.

January 31, 2006.

*14 Constance L. Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and appellee.

David A. Garaas, Garaas Law Firm, Fargo, N.D., for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] I.B., the father of two children, appeals the juvenile court orders terminating his parental rights and denying his motion for continued visitation. Holding that I.B. was provided with sufficient notice of the proceedings against him and that the evidence supports the order terminating his parental rights, we affirm.

I

[¶ 2] I.B. and K.S., formerly know as K.B., had two children. They married in 2000, after the children were born, and divorced roughly four years later. The children have been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. They have witnessed episodes of domestic violence between their parents. Their mother testified the children were abused by I.B. K.S. and Cathy Hjelle, the children's therapist, testified the children were exposed to pornographic and horror movies and sexual activities. In April 2002, the juvenile court found the children were deprived and placed them in social services' care. They were reunified with their parents in the summer of 2002, after some family counseling. Marlene Sorum, the petitioner and a social worker with Cass County Social Services, testified at the trial that any involvement in therapy ceased after reunification. The parents separated again in 2003, and custody of the children was given to the mother. In July and October 2003, the juvenile court found the children were deprived and placed them in social services' care.

[¶ 3] In July 2004, Sorum petitioned to terminate the parents' rights. After receiving notice by publication, the father appeared to defend against the petition, declaring that he wanted to provide for the children. The mother submitted an affidavit consenting to her termination. The children's guardian ad litem recommended a reunification plan for the father and the termination of the mother's rights.

[¶ 4] A three-day trial was held in October 2004. In December 2004, the judicial referee, by letter, announced her decision that the children were deprived, and she ordered Sorum to prepare proposed findings of fact, conclusions of law, and order for termination. According to I.B., Sorum's findings of fact, conclusions of law, and order were adopted without change. The father requested district *15 judge review of the termination and moved the referee for continued visitation. When his motion for visitation was denied, he requested district judge review of the visitation motion. The district judge adopted the referee's order terminating the father's parental rights and adopted the referee's order denying visitation. On appeal, I.B. argues he did not have proper notice of the facts used to terminate his rights; the referee improperly delegated drafting of the findings of fact, conclusions of law, and order for termination to Sorum; there is insufficient evidence to terminate his rights or to conclude any deprivation will continue, and he should be afforded an opportunity for reunification.

[¶ 5] The juvenile court had jurisdiction under N.D.C.C. §§ 27-05-06 and 27-20-03(1)(b). The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. §§ 27-20-56(1) and 28-27-01.

II

[¶ 6] I.B. argues Sorum's petition did not give him proper notice of the facts used to terminate his rights. The petition to terminate parental rights must comply with the requirements of N.D.C.C. § 27-20-21. N.D.C.C. § 27-20-45(1). Section 27-20-21, N.D.C.C., provides, in part:

The petition must be verified and may be on information and belief. It must set forth plainly:
1. The facts which bring the child within the jurisdiction of the court, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency or unruly conduct is alleged, that the child is in need of treatment or rehabilitation[.]

[¶ 7] "Given the nature of the parental rights at stake, procedural due process requires that, in addition to the legal standards involved, [the petitioner] apprise [the parent] of the factual circumstances behind the proposed termination." Thompson v. King, 393 N.W.2d 733, 738 (N.D.1986). Thus, to comply with due process and the statute, the petition must do more than merely state the statutory language justifying termination of parental 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 respondent parent has notice and is able to meaningfully prepare a defense against the petition. Id.; see also Thompson, at 738-39 (notice of facts needed to defend against the petition may come through discovery if the petition did not contain facts).

[¶ 8] The petition for termination and the supporting affidavit, incorporated into the petition by reference, contain many factual assertions concerning I.B.'s conduct as a parent. The documents allege that the father and mother have been involved in numerous domestic violence disputes. They allege that I.B. has a history of abusive behavior. The petition and affidavit also allege that although I.B. has provided financial support for the children, he told Sorum he is concerned that he will not be able to provide for the children and that his parental rights may be terminated. Finally, the documents allege the parents have not followed up on treatment for themselves or the children. I.B. appeared for trial and did not seem prejudiced by the petition or unable to defend against the charges. Counsel for I.B. conceded at oral argument trial counsel failed to object that evidence presented at trial did not conform with the petition. Although the facts in the petition were not necessarily *16 the same as the facts relied on by the referee in reaching the court's final decision, I.B. had notice of the facts Sorum would use to support terminating the father's parental rights. The contents of the petition complied with the statutory requirements, and I.B. had notice of the facts that would be used to terminate his parental rights. His due process rights have not been violated.

III

[¶ 9] I.B. argues the referee's findings of fact are improper because procedures followed by the referee in developing the findings of fact were an improper delegation of judicial authority. According to him, Sorum developed the proposed findings of fact by copying a great deal from a post-trial letter her attorney sent to the referee outlining her view of the case, and then the referee adopted verbatim the proposed findings of Sorum.

[¶ 10] Rule 7.1, N.D.R.Ct., provides that preparation of proposed findings of fact and conclusions of law required by N.D.R.Civ.P.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 ND 19, 709 N.W.2d 11, 2006 WL 224864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mb-nd-2006.