Rothe v. P. S.

321 N.W.2d 491, 1982 N.D. LEXIS 293
CourtNorth Dakota Supreme Court
DecidedJuly 1, 1982
DocketCiv. No. 10126
StatusPublished
Cited by1 cases

This text of 321 N.W.2d 491 (Rothe v. P. S.) 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
Rothe v. P. S., 321 N.W.2d 491, 1982 N.D. LEXIS 293 (N.D. 1982).

Opinions

PAULSON, Justice.

G. S. appeals from the order of the Juvenile Court of Cass County dated October 19, 1981, which affirmed the juvenile referee’s findings and recommendations that the [492]*492court’s order of August 16,1977, be extended to March 16, 1982. We affirm.

On August 16, 1977, the juvenile referee issued findings and recommendations, finding that J. K. S. (hereinafter “Jane”, a pseudonym) was a deprived child and recommending that she be placed in the custody of the County Director of the Cass County Social Service Board for a period of two years. The juvenile court adopted the referee’s findings and recommendations on August 16, 1977. Jane’s mother, G. S. (hereinafter “Gail,” a pseudonym), requested a review of the findings and recommendations pursuant to § 27-20-07(5) of the North Dakota Century Code, and the court issued its order affirming the findings and recommendations on January 30, 1978. Gail appealed to this Court, and on January 8, 1979, we affirmed the order of the juvenile court. In Interest of J. K. S., 274 N.W.2d 244 (N.D.1979).1

By orders dated August 2,1979, and April 10, 1980, the juvenile court extended its original order through August 17,1981. On August 14, September 9, and September 14, 1981, the juvenile referee conducted hearings on the State’s petition to further extend the 1977 order. On September 14, 1981, the juvenile referee recommended that the original order be extended through March 16, 1982. Gail requested review of the referee’s findings and recommendations pursuant to § 27-20-07(5), N.D.C.C., and on October 19, 1981, the court issued its order affirming the findings and recommendations. Gail has appealed from the October 19, 1981, order.

Jane has been living in foster homes in Fargo since 1977. For a short time thereafter, Gail visited Jane fairly regularly. Visits between Gail and Jane became more sporadic in 1978, and in late 1978 or early 1979 Gail moved to Wahpeton, North Dakota. Gail had no contact with Jane between April 19, 1979, and August 14, 1981, a period of nearly 2½ years. Gail visited Jane on August 14 and September 8,1981, each visit coinciding with a scheduled hearing on the State’s petition. Beverly Bohn, a social worker at Cass County Social Services, testified that at the August 14, 1981, visit between Jane and Gail, Gail presented Jane with a birthday card designed for a five-year-old child. Jane was in fact only four years old, and her birthday had been in May. When questioned by Ms. Bohn about the card, Gail replied that she thought that Jane was five years old.

Gail presented evidence at the hearings which indicated that her life had dramatically changed for the better. On June 26, 1981, she had married B. T., and they were living with B. T.’s parents in Lidgerwood, North Dakota. Gail’s mother-in-law testified that Gail helped with the cooking, cleaning, and other housework, and stated that the family was willing to accept Jane into their home and would assist Gail in caring for Jane if she received custody. In addition, Gail presented evidence that Lidg-erwood has the necessary educational and medical facilities to provide for Jane’s needs.

The juvenile referee did not include in his findings and recommendations of September 14, 1981, a specific finding that Jane continued to be a deprived child. Gail contends on appeal that such a finding is necessary before the juvenile court may extend its original order, and that the evidence presented in this case does not support a finding of continued deprivation by clear and convincing evidence.

Our scope of review of decisions under the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C., is governed by § 27-20-56(1), N.D.C.C., which provides that review is based upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court. Our review is not limited to a determination of whether or not the juvenile court’s findings are clearly erroneous, but rather we are allowed to reexamine the evidence in a [493]*493manner similar to the former procedure of trial de novo. In Interest of L. N., 319 N.W.2d 801, 803 (N.D.1982); In Interest of S. W., 290 N.W.2d 675, 677 (N.D.1980); In Interest of R. H., 289 N.W.2d 791, 793 (N.D.1980).

An order of disposition by a juvenile court under the Uniform Juvenile Court Act may be extended by the court for a further period of time pursuant to § 27-20-36(4), N.D.C.C., which provides:

“4. Except as provided in subsection 1, the court may sooner terminate an order of disposition or extend its duration for further periods. An order of extension may be made if:
a. A hearing is held prior to the expiration of the order upon motion of a party or on the court’s own motion;
b. Reasonable notice of the hearing and opportunity to be heard are given to the parties affected;
c. The court finds that the extension is necessary to accomplish the purposes of the order extended; and
d. The extension does not exceed eighteen months from the expiration of an order limited by subsection 3 or two years from the expiration of any other limited order.”

However, before the juvenile court may extend an order of disposition it must find that the child is still “deprived” as defined in § 27-20-02(5), N.D.C.C., because the jurisdiction of the juvenile court is dependent upon a finding that the child is in fact “deprived.” § 27-20-03(1)(a), N.D.C.C.; In Interest of S. W., supra, 290 N.W.2d at 677; In Interest of R. H., supra, 289 N.W.2d at 793-794.

The juvenile referee in this case failed to make a specific finding that Jane continues to be a deprived child. When presented with a similar situation in In Interest of R. H., supra, we concluded that a finding of continued deprivation could be inferred from the court’s statements at the close of the hearing and from statements contained in the court’s written findings. In Interest of R. H., supra, 289 N.W.2d at 794. We believe that a finding of continued deprivation can also be inferred in this case from the juvenile referee’s oral and written statements. The initial finding of deprivation in this case was based primarily upon Gail’s lack of concern for Jane and her resistance to efforts made to improve her skills and knowledge in properly caring for Jane. In Interest of J. K. S., supra, 274 N.W.2d at 252. In his oral statements at the close of the hearings and in his written findings, the juvenile referee in this case expressed his concern that Gail had not made any real effort to see or to maintain any kind of contact with Jane for a period of nearly 2½ years. Based upon these statements we believe a finding of continued deprivation may be inferred, and the juvenile court’s jurisdiction was thereby sufficiently established. See In Interest of R. H., supra, 289 N.W.2d at 794. We stress, however, that a finding of deprivation should have been, and in the future should be, specifically included in the extension order. In Interest of R. II, supra, 289 N.W.2d at 794.

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In Interest of JKS
321 N.W.2d 491 (North Dakota Supreme Court, 1982)

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321 N.W.2d 491, 1982 N.D. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rothe-v-p-s-nd-1982.