Ohlsen v. E. D.

283 N.W.2d 83, 1979 N.D. LEXIS 278
CourtNorth Dakota Supreme Court
DecidedJuly 13, 1979
DocketCiv. No. 9491
StatusPublished
Cited by3 cases

This text of 283 N.W.2d 83 (Ohlsen v. E. D.) 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
Ohlsen v. E. D., 283 N.W.2d 83, 1979 N.D. LEXIS 278 (N.D. 1979).

Opinion

VANDE WALLE, Justice.

The parents of J. A., D. D., E. D. (Jr.), and T. A. appeal from a juvenile court order terminating their parental rights. We affirm.

D. D., E. D. (Jr.), and T. D. are the natural children of both parents. J. A. is the natural child of V. D. by a previous marriage. At the time of the termination proceedings in 1978, J. A. was seven years old; E. D. (Jr.) and D. E., twins, were four years old; and T. D. was three years old. In October 1976 a petition alleging deprivation of the children was filed by Thomas L. Zimney, Assistant State’s Attorney, Grand Forks County, after a complaint of abuse had been made to the Grand Forks County Social Service Center. The children were then placed under the temporary care, custody, and control of the Director of the Grand Forks County Social Service Center [85]*85until a hearing was held on the petition. In November 1976 the petition was heard before a referee of the juvenile court and, in a proposed order, the children were found to be deprived children. That order was approved by the juvenile court and the care and custody of the children was continued in the Director of the Grand Forks County Social Service Center for a period not to exceed 60 days.

Subsequent hearings before the juvenile referee, resulting in orders approved by the juvenile court, were conducted over a period of several months. On November 23, 1977, a petition for termination of parental rights was filed by Clarence 0. Ohlsen, Director of the Grand Forks County Social Service Center. That petition was heard before the juvenile court on January 17,18, and 19, February 8,22, and 23, and March 1, 1978. The juvenile court issued its order terminating parental rights on April 24, 1978, after hearing some 25 witnesses whose testimony covered approximately 800 pages. The juvenile court found the children to be deprived because of physical abuse by the parents, neglect of the children by the parents, total lack of love and respect for the well-being of the children by the parents, the unhealthy condition of the children caused by the parents, and the condition of the home. The juvenile court further found that the causes and conditions of the deprivation were likely to continue or would not be remedied in the future and that by reason thereof the children were suffering or would probably suffer serious physical, mental, moral, or emotional harm.

The parents present four issues on appeal:

“1. Did the trial judge abuse his discretion by interrogating certain witnesses as to the likelihood that the causes and conditions of deprivation would continue?
“2. Was counsel for respondent required to object to the Judge’s questioning of the witnesses in order to raise the issue on appeal?
“3. Were respondents required to submit to a physical and mental examination under Rule 35 of the North Dakota Rules qf Civil Procedure?
“4. Did Petitioner present clear and convincing evidence that the causes and conditions of deprivation are likely to continue or will not be remedied?”

I

With respect to the first issue, the parents argue that the trial judge abused his discretion by interrogating certain witnesses as to whether or not the causes and conditions of deprivation of the children would continue. The parents concede that a limited amount of interrogation by the trial court is permissible, but argue that, by its questions, the trial court assisted the petitioner in proving one of the necessary elements required in Section 27-20-44(l)(b), N.D.C.C., for termination of parental rights: that the causes and conditions of the deprivation are likely to continue or will not be remedied.

The parents urge that in a case involving the termination of parental rights, we should adopt the rule applicable in criminal proceedings, i. e., that the judge’s discretion in questioning witnesses should be more limited than it is in a civil proceeding. See 98 C.J.S. Witnesses, § 348; State v. Yodsnukis, 281 N.W.2d 255 (N.D.1979). In support of their position the parents point out that the termination of parental rights is akin to a criminal proceeding because the termination of parental rights may have more serious consequences than many criminal proceedings and that the standard of proof is higher in termination proceedings as compared to other civil proceedings.

Ohlsen, however, refers us to Section 27-20-24(1), N.D.C.C., which provides, in part, that hearings conducted under the Uniform Juvenile Court Act are to “be conducted by the court without a jury in an informal but orderly manner, . . ” Ohlsen also points out that in at least two previous decisions this court has indicated that proceedings in juvenile court in this State are civil in nature and not criminal. See In re R. Y., 189 N.W.2d 644 (N.D.1971); In re Whiteshield, 124 N.W.2d 694 (N.D.1963).

[86]*86We agree with the parents that the termination of parental rights has serious consequences, but we decline to adopt the rule that the discretion of the juvenile judge in questioning witnesses should be governed by the rule in criminal proceedings, rather than in civil proceedings wherein his discretion is less restricted. There are substantial differences between criminal proceedings and proceedings under the Uniform Juvenile Court Act. Juvenile proceedings do not involve a jury, whereas in many criminal cases the jury, and not the judge, is the trier of fact; criminal proceedings have more of an adversary aspect than do juvenile court proceedings; under the Uniform Juvenile Court Act the judge has a different obligation than in criminal proceedings; and, perhaps most important, proceedings for the termination of parental rights are. not instituted for the punishment of the parents, as criminal proceedings are brought for the punishment of the defendant; but, rather, termination proceedings directly concern the welfare of the child. Thus Section 27-20-01, N.D.C.C., provides that the Uniform Juvenile Court Act is to be construed to effectuate, among other purposes, “the care, protection, and wholesome moral, mental, and physical development of children coming within its provisions; ” and to separate a child from his parents “only when necessary for his welfare or in the interest of public safety; . . . "

In urging us to adopt the rule applicable in criminal proceedings relative to the questioning of witnesses, the parents have impliedly recognized that in civil proceedings the judge has broader discretion to question witnesses and that under the rule applicable to civil proceedings the questioning of witnesses by the judge in this particular instance did not constitute an abuse of that discretion. In Messer v. Bruening, 32 N.D. 515, 156 N.W. 241 (1916), this court, in Syllabus No. 5, stated:

“A judge presiding on a trial is not a mere moderator, but has active duties to perform without partiality in seeing that the truth is developed, and it is his duty in the exercise of sound discretion to elicit the evidence upon relevant and material points involved in the case.”

This position was repeated in Miller v. Miller, 79 N.D. 161, 55 N.W.2d 218

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Bluebook (online)
283 N.W.2d 83, 1979 N.D. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohlsen-v-e-d-nd-1979.