In the Interest of T.F. v. Director, Traill County Social Services

2004 ND 126, 681 N.W.2d 786, 2004 N.D. LEXIS 260, 2004 WL 1462450

• Court: North Dakota Supreme Court
• Decided: June 30, 2004
• Docket: 20030236
• Status: Published

Opinions

MARING, Justice.

[¶ 1] J.F. (“John”)¹ appealed from an order of the juvenile court terminating his parental rights to his six-year-old son, T.C.F. (“Ted”), and his four-year-old daughter, T.M.F. (“Tina”). We hold there is clear and convincing evidence warranting termination of John’s parental rights and there is evidence beyond a reasonable doubt that John’s continued custody of the children is likely to result in serious emotional or physical harm to them, and we affirm.

I

[¶ 2] In January 2001, Ted and Tina were taken into protective custody by Traill County Social Services as a result of allegations that John had been physically abusive toward Ted. Since that time, the children’s mother has had no personal contact with the children and has written each of them only one letter. Her parental rights were also terminated, but she has not appealed from that decision.

[¶ 3] In May 2001, John pled guilty to aggravated assault as a result of charges that he had sex with his live-in girlfriend’s ten-year-old daughter while the girlfriend was working out of the home. John claims that these charges were fabricated and that he pled guilty to aggravated assault so he would not have to be involved with the girlfriend again.

[¶ 4] Traill County Social Services reunited the children with John, placing them in his physical custody on February 26, 2002. The agency provided assistance to John and implemented various programs to improve John’s parenting skills and to have him deal with anger management and other related issues. The program required that John obtain steady employment and that he refrain from using alcohol or illegal drugs. John did not fully comply with the program requirements. After the children were reunited with him, he continued to smoke marijuana and was charged with driving under the influence of intoxicating beverages. John testified that he did not seek treatment for drug or alcohol abuse because “I think I went through treatment when I was 18 years old.... I haven’t had drug or alcohol problems, I guess, that stopped me from being a parent.” In spite of this testimony, John’s probation was revoked because of his use of drugs and alcohol. He was reincarcerated, resulting in the children again being removed from his custody on July 9, 2002. John is currently serving a seven-year-sentence with a parole release date of June 6, 2007. After this latest separation, the children were placed by social services in the home of an aunt. The current agency plan is for these children to be adopted by the aunt, upon termination of their mother and father’s parental rights.

[¶ 5] A petition was filed to terminate parental rights, and a hearing was held on March 26, 2003, and continued to June 9, 2003. After the hearing, a judicial referee granted the petition, finding the children were deprived, the deprivation would likely continue, and that, unless parental rights were terminated, the children would suffer serious physical, mental, moral, or emotional harm.

II

[¶ 6] On appeal, John asserts that the court erred in finding there was clear and convincing evidence the children are deprived and that such deprivation is likely to continue. He also asserts there is insufficient evidence to support a finding that there is no reasonable doubt the children will likely suffer serious harm unless parental rights are terminated.

[¶ 7] The juvenile court may terminate parental rights providing: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral or emotional harm. N.D.C.C. § 27-20-44(l)(b). A party seeking termination of parental rights must prove all elements by clear and convincing evidence. In re D.Q., 2002 ND 188, ¶ 19, 653 N.W.2d 713. In addition to our state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912 must be met, because these children are members of an Indian tribe. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678. Relevant to this case, 25 U.S.C. § 1912(f) provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Also relevant, 25 U.S.C. § 1912(d), provides:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

These state and federal provisions create a dual burden of proof on the party seeking termination of parental rights to an Indian child, whereby the elements of our state law must be proven by clear and convincing evidence and the federal requirement, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, must be satisfied with proof beyond a reasonable doubt. In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678.

[¶ 8] Rule 52(a), N.D.R.Civ.P.,' was amended, effective March 1, 2004, to provide that findings of fact in juvenile matters shall not be set aside by this Court unless they are clearly erroneous. It is solely within the discretion of the Supreme Court to determine the effective date of a rule of procedure not affecting substantive rights. Paxton v. Wiebe, 1998 ND 169, ¶ 22, 584 N.W.2d 72. This Court has followed the practice that as existing rules of procedure are amended or new rules are added they will apply to actions then pending unless their application would not be feasible or would work an injustice. Id.

[¶ 9] In this case, John elected not to request a review by the district court believing that this Court would conduct a de novo review of the referee’s decision. When a party requests a review of the referee’s findings and order by the district court, it is a review on the record “unless the court orders a hearing of the proceeding.” N.D. Sup.Ct. Admin. R. 13. Only when the district court’s review is on the record, must it accept - the referee’s findings unless they are clearly erroneous. See In re A.B., 2003 ND 98, ¶4, 663 N.W.2d 625. Consequently, in foregoing a district court review, John waived the potential right to have an evidentiary hearing and de novo decision by the district court. Under this circumstance, we conclude fairness and justice warrant that we apply the standard of review under N.D.R.Civ.P. 52(a) in effect prior to the March 1, 2004 amendment, which is similar to a trial de novo. In re D.R., 2001 ND 183, ¶ 2, 636 N.W.2d 412. Under the trial de novo standard wfe review the files, records, and transcript of the evidence in the juvenile court, and, although we are not bound by the findings of the juvenile court, we give those findings appreciable weight and give deference to the juvenile court’s decision, because that court had an opportunity to observe the candor and demeanor of the witnessfes. • Id.

A. Deprivation

[¶ 10] A deprived child is statutorily defined under N.D.C.C. § 27-20-02(8)(a) as 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.” The juvenile court found these were deprived children, because they are without proper parental control in that the mother has had no personal contact with the children since their first placement in foster care in January 2001, and their father is incarcerated and unable to care for them. The court also found the children had been placed in foster care for 450 of the previous 660 nights.

[¶ 11] At the time of the terminatipn proceedings, neither parent was available to provide the necessary care or control of these children. The children’s mother has voluntarily removed herself as a significant factor in the children’s lives. John voluntarily violated conditions of his .probation and, as result, is incarcerated and not able to provide for the children’s care for a considerable time. He is not scheduled for possible release until June 2007. The definition of a deprived child is broad enough to encompass a child whose parent is shown to be presently incapable of providing proper parental care for the child. In re C.R., 1999 ND 221, ¶ 6, 602 N.W.2d 520. The definition of a deprived child also encompasses a child who has been in foster care or in the care, custody or control of social services for “at least four hundred fifty out of the previous six hundred sixty nights.” N.D.C.C. § 27-20-44(1)(b)(2). Having reviewed the record, we conclude there is clear and convincing evidence these are deprived children.

B. Continued Deprivation

[¶ 12] John asserts there is not clear and convincing evidence that the deprivation of these children is likely to continue. Evidence of a parent’s background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue. In re D.R., 2001 ND 183, ¶ 11, 636 N.W.2d 412. While incarceration, by itself, does’ not establish abandonment of a child for purposes of terminating parental rights, a probability of serious mental and emotional harm to the child may be established by prognostic evidence that a parent’s current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent’s rights are not terminated. In re C.R., 1999 ND 221, ¶ 10, 602 N.W.2d 520.

[¶ 13] Dr. Leland Lipp, a practicing psychologist in Grand Forks, testified that the continued absence of Ted’s mother and father -will result in serious emotional harm to Ted. He testified the boy “needs to be in a safe, secure environment for a long period of time.” He also testified that Ted has had adjustment difficulties caused by his being emotionally harmed in the past. Dr. Lipp testified that Ted told him he had been “hurt by his father” and he was “afraid of his father.” Dr. Lipp testified it would be in Ted’s best interest to not have further contact with his father.

[¶ 14] Tammy Ness, a social worker with the North Central Human Service Center, testified that Tina has had at least five primary care placement changes in her four-and-one-half years of life. She testified that Tina needs to be “taken out of this state of limbo. She needs to be in a secure, long term, final placement.”

[¶ 15] Janice DuBois DeLorme, a social worker with the Turtle Mountain Child Welfare and Family Services Unit in Bel-court, testified that she believes beyond a reasonable doubt the deprivation of these children cannot be avoided or corrected. She testified that John, upon his reunification with the children, failed to follow through on recommendations of the social service workers. DeLorme also testified that John’s conduct is likely to cause serious physical, mental, or emotional harm to the children if their relationship is allowed to continue. DeLorme gave her opinion that these children need a permanent home and a stable environment, and she said the Indian tribe supports termination of parents rights and placement of these children with their aunt or other relatives.

[¶ 16] John has contributed significantly to the instability in the lives of these children. They were removed from his care in 2001 when he was arrested and taken into custody. Social service workers reunited John with the children in 2002, and after only a few months, he voluntarily chose to violate his conditions of probation, resulting in him again being incarcerated and not able to care for the children’s needs. Although the record shows that John has made some attempts to comply with social service programs aimed at improving his parenting abilities and providing a stable home environment for the children, he did not follow all of the rules and, by violating his probation, did not complete the goal of providing a safe, stable, and permanent environment for these children.

[¶ 17] John’s past conduct presents a troubling picture. John has two older children who were placed in foster care and then permanently placed after John relinquished his parental rights to those children. John pled guilty to aggravated assault after his former girlfriend accused him of multiple incidents of sexual abuse toward her pre-teen daughter. John was also previously charged with physically abusing a minor child, and his son, according to the testimony of Dr. Lipp, has indicated that John had hurt him in the past and that he was afraid of John. John’s conduct demonstrates a serious indifference toward his responsibilities and obligations as a parent. When a parent, through voluntary actions, makes himself unavailable to care for and parent a child, without reasonable justification, a young child should not be expected to wait or assume the risk involved in waiting for permanency and stability in his or her life. In re C.R., 1999 ND 221, ¶ 12, 602 N.W.2d 520. Based upon our review of this record, we conclude there is clear and convincing evidence the deprivation of Ted and Tina is likely to continue and not be remedied.

C. Harm to the Children

[¶ 18] To terminate parental rights the evidence must show by clear and convincing evidence that, as a result of the continued deprivation, the child is suffering, or will in the future probably suffer physical, mental, moral, or emotional harm.' In Interest of L.F., 1998 ND 129, ¶ 27, 580 N.W.2d 573. Under the Indian Child Welfare Act there is an additional requirement that the evidence show beyond a reasonable doubt the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

[¶ 19] Each of the experts who testified emphasized that these children have not had stability in their lives and that they desperately need- both permanency and stability. That is something that John cannot now or in the near future give them. Although it is impossible to be certain what might occur in the future, any prediction of the future requires some reflection into the past conduct of the parties. In re D.Q., 2002 ND 188, ¶ 21, 653 N.W.2d 713. John’s past conduct leaves considerable doubt about his ability to parent these children if and when he is released in June 2007, or thereafter. In the past, John has been unable or unwilling to refrain from conduct which results in his being separated from these children and unable to provide for their care. John has also demonstrated a lack of cooperation with social service agencies, which may be insufficient by itself to establish deprivation, but is pertinent to the question whether deprivation will continue in the future. Id.

[IT 20] Dr. Leland Lipp testified that the continued absence of Ted’s parents in his life will result in serious emotional harm to Ted. Janice DuBois DeLorme testified thát John’s conduct of inconsistent parenting and repeated absences from the children will likely cause serious physical, mental, or emotional harm to the children. After reviewing the record, we conclude there is clear and convincing evidence that, as a result of the continued deprivation, it is likely these children are suffering and will in the future suffer serious physical, mental, moral, or emotional harm. We further conclude there is evidence beyond a reasonable doubt that the continued custody of these children by John is likely to result in serious emotional or physical damage to the children.

D. Efforts to Preserve Indian Family '

[¶ 21] Under 25 U.S.C. § 1912(d) any party seeking to terminate parental rights to an Indian child must satisfy the court that active efforts have been made, without success, to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family. John asserts there is not clear and convincing evidence to support a finding that active efforts were made to preserve this Indian family. We disagree.

[¶ 22] The record shows the social service workers provided assistance to this family in an effort to keep John and the children together. They established a program for him to participate in parenting and anger management classes and they also provided support in helping him obtain housing. The program required that John demonstrate he could maintain steady employment and housing, that he refrain from inappropriate behavior in his parenting, and that he refrain from abusing alcohol or using illegal drugs. The record shows that while John attempted to comply with the program in some respects he utterly failed in others. Especially troublesome is John’s continued use of alcohol and drugs, with the consequence that he is now incarcerated and unavailable to care for his children.

[¶23] Valerie Ladwig, the director of Traill County Social Services, testified that John has lacked follow through on recommendations for services and on his need to improve his behavior. Relevant to John’s cooperation and attitude she also testified:

[John] loves his children deeply and certainly has made that known and made the effort where he can from jail to visit with his children, his parenting ability is compromised by what is going on with him in his personal life. Related to substance abuse, related to an ongoing inability to follow through with recommendations made by the Court for him to get his children back. And also the fact that while he’s on probation, while he’s been given a chance by the Court in South Dakota for a very aggravated offense related to a minor, he then is unwilling to follow through with their request that he not engage in substance abuse. And then, as we know, got the DWI and admits to regular daily use of alcohol and also use of marijuana.

[[Image here]]

The fact that he worked with us in a very abrasive manner made it difficult at time and again, that was due to his disagreement about some decisions we were making that we felt were in the best interests of'the children based upon good clinical practices in the field of social work.

So there were many times a contentious relationship between [John] and our department.

We conclude there is clear and convincing evidence that active efforts were made to preserve this Indian family, ■ but John’s attitude and lack of cooperation thwarted those efforts.

Ill

[¶ 24] We hold there is clear and convincing evidence that Ted and Tina are deprived children, the conditions and causes of the deprivation are likely to continue and, as a result, the children will likely suffer serious physical, mental, and emotional harm if John’s parental rights are not terminated. We also hold there is evidence beyond a reasonable doubt that the continued custody of these children by John is likely to result in serious emotional or physical damage to the children. The order of the juvenile court terminating John’s parental rights is affirmed.

[¶ 25] GERALD W. VANDE WALLE, C.J., concurs.

1 . The names of the parties are pseudonyms.