Ohlsen v. M. B.

241 N.W.2d 546, 1976 N.D. LEXIS 215
CourtNorth Dakota Supreme Court
DecidedApril 22, 1976
DocketCiv. No. 9185
StatusPublished
Cited by5 cases

This text of 241 N.W.2d 546 (Ohlsen v. M. B.) 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. M. B., 241 N.W.2d 546, 1976 N.D. LEXIS 215 (N.D. 1976).

Opinion

PAULSON, Judge.

The natural parents of R. W. B., a minor male child, appeal from an order of the Juvenile Court of Grand Forks County, which order terminated the parental rights of M. B., the father, and B. B., the mother, to the child R. W. B.

R. W. B. was born on May 30, 1974. On December 27,1974, the Grand Forks County Social Service Center investigated an anonymous report that R. W. B. was not being properly cared for by his parents, M. B. and B. B. As part of its investigation, representatives of the Grand Forks County Social Service Center visited the home of M. B. and B. B., where they observed that R. W. B. had a sore on the back of his head, a splint on his right arm, and a discoloration around his left eye and on his forehead. The agency representatives, along with R. W. B.’s mother, B. B., took the child to a doctor for examination and treatment. The Grand Forks County Social Service Center, based upon its investigation and upon the medical report, petitioned the Juvenile Court of Grand Forks County for an order declaring that R. W. B. was a deprived child pursuant to § 27-20-02(5)(a) and (7), N.D. C.C., and requesting removal of custody of the child from M. B. and B. B., his natural parents. By order dated December 27, 1974, the juvenile court ordered that temporary custody of R. W. B. be placed in the Director of the Grand Forks County Social Service Center, pending a hearing on the petition.

On April 14, 1975, the juvenile court conducted a hearing on the petition, and by order dated April 18, 1975, placed R. W. B. under the care, custody, and control of the Director of the Grand Forks County Social Service Center until such time as the juvenile court should change such order.

M. B. and B. B. were arrested on January 3, 1975, and on March 25, 1975, they were convicted by jury verdict in the Grand Forks County Court of Increased Jurisdiction of the criminal charge of “Cruel Abuse and/or Willful Neglect of a Child”, a violation of § 14-09-22, N.D.C.C. Each was sentenced to the county jail for a period of one year and fined $500. Neither appealed from the conviction or the sentence.

On August 12, 1975, the Director of the Grand Forks County Social Service Center filed an amended petition, pursuant to § 27-20-44, N.D.C.C., with the juvenile court, requesting that the parental rights of M. B. and B. B. to the child R. W. B. be terminated. M. B. and B. B. thereafter filed a motion seeking a continuance of the hearing on the petition until April 1976, which would, they contended, permit them to seek psychological treatment. After conducting a hearing on September 11, 1975, the juvenile court denied the motion for a continuance. On September 22, 1975, the juvenile court conducted a hearing on the amended petition. By order dated October 2, 1975, the juvenile court granted the petition and ordered that the parental rights of M. B. and B. B. to the child R. W. B. be terminated. It is from such order that M. B. and B. B. appeal to this Court.

Our scope of review in juvenile cases is broader than our scope of review in other cases tried to the Court. In the case of In Interest of M. L., 239 N.W.2d 289 (N.D. 1976), in paragraph 1 of the syllabus, we held:

“1. Supreme Court’s scope of review of decision made under Uniform Juvenile Court Act (Ch. 27 — 20, N.D.C.C.) is broader than in other cases tried to the court, [550]*550and is equivalent to former procedure of trial de novo.”

We must therefore reexamine the evidence in reviewing the juvenile court’s order terminating the parental rights of M. B. and B. B. to the child R. W. B. In Interest of M. L., supra 239 N.W.2d at 291; In re J. Z., Syll. ¶ 1, 190 N.W.2d 27, 53 A.L.R.3d 592 (N.D.1971). However, although this Court is not bound by the juvenile court’s findings of fact, such findings are entitled to appreciable weight. In re H., Syll. ¶ 2, 206 N.W.2d 871 (N.D.1973); In re A. N., Syll. ¶ 3, 201 N.W.2d 118 (N.D.1972); In re J. Z., Syll. ¶ 7, supra.

Section 27-20-44, N.D.C.C., provides:

“Termination of parental rights.—
“1. The court by order may terminate the parental rights of a parent with respect to his child if:
“a. The parent has abandoned the child;
“b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; or
“c. The written consent of the parent acknowledged before the court has been given.
“2. If the court does not make an order of termination of parental rights it may grant an order under section 27-20-30 if the court finds from clear and convincing evidence that the child is a deprived child.”

In the case of In re H., supra, in paragraph 1 of the syllabus, this Court held:

“1. Before a juvenile court may terminate the parental rights of a parent, three factors must be established by the evidence adduced at the termination hearing. These are: 1) that the child is a ‘deprived child’ within the purview of the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C.; 2) that the conditions and causes of the deprivation are likely to continue or will not be remedied; and 3) that by reason of these continuous or irremediable conditions and causes the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.”

The burden is on the State, as the party challenging the right of the natural parents to the care, custody, and control of their child, to prove by clear and convincing evidence the existence of all three of the above-quoted factors. In Interest of M. L., Syll. ¶ 2, supra; In re J. V., Syll. ¶3, 185 N.W.2d 487 (N.D.1971); In re J. Z., Syll. ¶ 8, supra.

Our review being de novo, it is incumbent upon us to review the evidence in the instant case. While the record is voluminous, we have carefully reviewed it, and conclude that the basic facts can be summarized as follows:

—R. W. B. was born on May 30, 1974. His parents are M. B. and B. B., residents of Grand Forks. Between May 30, 1974, and December 27, 1974, R. W. B. was cared for exclusively by his parents, M. B. and B. B., except for the days during which he was left in the care of a licensed day care provider while B. B. was working.

—On December 27, 1974, representatives of the Grand Forks County Social Service Center investigated an anonymous complaint that R. W. B. was not being properly cared for by his parents. Undisputed medical evidence shows that R. W. B. was a severely injured child at such time. During a time span of two months, R. W. B. had suffered at least eleven separate bone fractures in his arms and legs. Expert testimony discounted any theory of accidental occurrence of such severe injuries, characterizing them, instead, as consistent with the “battered child syndrome”.

—The parents of R. W. B. could offer no credible explanation for the occurrence of R. W. B.’s injuries.

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Bluebook (online)
241 N.W.2d 546, 1976 N.D. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohlsen-v-m-b-nd-1976.