In Re WE

2000 ND 208, 619 N.W.2d 494
CourtNorth Dakota Supreme Court
DecidedDecember 7, 2000
Docket20000113
StatusPublished
Cited by1 cases

This text of 2000 ND 208 (In Re WE) 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 WE, 2000 ND 208, 619 N.W.2d 494 (N.D. 2000).

Opinion

619 N.W.2d 494 (2000)
2000 ND 208

In the Interest of W.E. and D.S., Children.
Constance L. Cleveland, Petitioner and Appellee,
v.
Director, Cass County Social Services, S.E., W.E., D.S., and Mervin Nordeng, Guardian ad Litem, Respondents;
S.E., Respondent and Appellant.
In the Interest of D.S., a Child.
Constance L. Cleveland, Petitioner and Appellee,
v.
Director, Cass County Social Services, A.K., S.E., D.S., and Mervin Nordeng, Guardian ad Litem, Respondents;
S.E., Respondent and Appellant.
In the Interest of W.E., a Child.
Constance L. Cleveland, Petitioner and Appellee,
v.
Director, Cass County Social Services, S.E., G.E., W.E., and Mervin Nordeng, Guardian ad Litem, Respondents;
S.E., Respondent and Appellant.

Nos. 20000078-20000080.

Supreme Court of North Dakota.

December 7, 2000.

*495 Constance L. Cleveland, Assistant State's Attorney, Fargo, ND, for petitioner and appellee.

Steven D. Mottinger, Fargo, ND, for appellant.

SANDSTROM, Justice.

[¶ 1] S.E. appeals from an East Central Judicial District Juvenile Court order terminating her parental rights. Concluding the evidence was not sufficiently clear and convincing to satisfy the requirements for termination of S.E.'s parental rights, we reverse.

I

[¶ 2] S.E., a mildly retarded, 22-year-old woman, is the mother of two special-needs children. Her older son was admitted to treatment for aggressive and unruly behavior and was not returned to his mother prior to the termination hearing. Based on the recommendation of social *496 services, her younger son was placed under the legal custody of Cass County Social Services. After he suffered a burn, allegedly inflicted by S.E. as punishment, he was taken from his mother and placed in protective custody. S.E. and social services agreed on a detailed service and treatment plan regarding the younger son's care. Although the younger son was later returned to her care, S.E. did not comply with the terms of the plan, and petitions for termination of parental rights were filed based on the affidavits of social worker Nancy Pillen.

[¶ 3] The older son's father did not respond to the petition, but the younger son's father consented to the termination of his parental rights. The referee held that the older son's father had abandoned him, the children were deprived, S.E. lacked parental abilities, and the children would suffer harm if the parental rights were not terminated. Therefore, the referee recommended termination of S.E.'s parental rights to both children. S.E. requested judicial review, and the district judge affirmed the referee's findings of fact and conclusions of law and adopted the recommendation. See N.D. Sup.Ct.Admin. R. 13.

[¶ 4] S.E. appeals, arguing the court erred in removing the children from the family home and in finding deprivation is likely to continue. At trial, S.E. offered the testimony of members of a church she had joined shortly after termination of parental rights was sought. The church members vowed support to S.E. and her children. S.E. argues the children would not continue to be deprived. The State argues the trial testimony and evidence presented were sufficient to affirm the decision of the judicial referee.

[¶ 5] The juvenile court had jurisdiction to terminate S.E.'s parental rights. N.D.C.C. § 27-20-03(1)(b). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 6] When reviewing an order terminating parental rights, 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. "Although the review is similar to trial de novo, we give deference to the juvenile court's decision, because that court has had the opportunity to observe the candor and demeanor of the witnesses." In the Interest of D.F.G., 1999 ND 216, ¶ 12, 602 N.W.2d 697 (citing In the Interest of A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853; N.D.C.C. § 27-20-56(1)).

III

[¶ 7] Absent abandonment or consent, termination of parental rights requires satisfaction of a three-part test. N.D.C.C. § 27-20-44(1)(b); D.F.G., 1999 ND 216, ¶ 11, 602 N.W.2d 697. To terminate parental rights, the State must prove by clear and convincing evidence (1) the child is deprived, (2) the conditions and causes of the deprivation are likely to continue, and (3) the child is suffering, or will in the future suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27-20-44; D.F.G., 1999 ND 216, ¶ 11, 602 N.W.2d 697 (citing A.S., 1998 ND 181, ¶ 15, 584 N.W.2d 853).

A

[¶ 8] Are the children deprived? A deprived child is "one who `[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian.'" D.F.G., 1999 ND 216, ¶ 13, 602 N.W.2d 697 (citing A.S., 1998 ND 181, ¶ 16, 584 N.W.2d 853; N.D.C.C. § 27-20-02(5)(a)). S.E. concedes her sons were deprived; therefore, deprivation is not an issue on appeal.

*497 B

[¶ 9] Are the conditions and causes of the deprivation likely to continue? N.D.C.C. § 27-20-44(1)(b). Although she had not complied with a proposed social services support plan, S.E. argues her new church and its members comprise a "fully sustained support system" that will assist her with her parental obligations. S.E. argues the testimony of members of her church establishes that deprivation is not likely to continue. She argues the juvenile court did not offer her the opportunity to take advantage of her new support system to provide further evidence that deprivation is not likely to continue. The petitioner argues the long-term mental health problems of the children and S.E. "create a circumstance where deprivation is likely to continue."

[¶ 10] Evidence of past deprivation, although a factor to consider, is not sufficient to terminate parental rights. D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697 (citing In the Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573). Prognostic evidence is required to determine deprivation is likely to continue. Id. (citing In the Interest of J.L.D., 539 N.W.2d 73, 77 (N.D. 1995)). The State argues the testimony of three mental health professionals establishes that the mental health problems are chronic and therefore deprivation will continue.

1

[¶ 11] The first mental health professional to testify at trial was Norman Begnoche, a neuropsychologist. Begnoche testified he diagnosed S.E. as being mildly mentally retarded, but capable of caring for two children with family or social services support. Begnoche completed the first parental capacity evaluation of S.E. Nancy Pillen, a social worker, testified that following Begnoche's evaluation, Jan Witte-Bakken was commissioned by social services to complete a second parental capacity evaluation of S.E. Pillen testified Begnoche's evaluation "didn't necessarily delve into the parenting stuff.... So we requested another parental capacity to be more all-inclusive."

[¶ 12] Witte-Bakken, a licensed psychologist, used Begnoche's evaluation and three meetings with S.E. to complete a second parental capacity evaluation.

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Cite This Page — Counsel Stack

Bluebook (online)
2000 ND 208, 619 N.W.2d 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-we-nd-2000.