State v. A.W.

2012 ND 153, 820 N.W.2d 128, 2012 WL 3031388
CourtNorth Dakota Supreme Court
DecidedJuly 26, 2012
DocketNo. 20120245
StatusPublished
Cited by2 cases

This text of 2012 ND 153 (State v. A.W.) 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
State v. A.W., 2012 ND 153, 820 N.W.2d 128, 2012 WL 3031388 (N.D. 2012).

Opinion

SANDSTROM, Justice.

[¶ 1] J.A. appeals from a juvenile court order terminating parental rights to his daughter, A.W. We conclude the court’s findings that J.A. abandoned the child, that the child is deprived, and that the conditions and causes of the deprivation are likely to continue are supported by clear and convincing evidence and are not clearly erroneous. We affirm.

I

[¶ 2] A.W. was born in 2005 and is currently seven years old. J.A. is her father, and B.W. is her mother. J.A. and B.W. lived in Washington when the child was born, but B.W. and the child moved to North Dakota approximately four years ago. J.A. currently resides in Washington, but works out of state and is often away from home for extended periods of time.

[¶ 3] A.W. has been diagnosed with Sanfilippo Syndrome, type A, which is a metabolic disorder that causes severe neu-rologic symptoms, bi-lateral hearing loss, speech impairment, and global developmental delays. A.W. requires assistance with most basic daily activities, including eating, grooming, and social interaction. AW.’s condition will deteriorate as she gets older. Sanfilippo Syndrome is a fatal disease, and children with the disease have a life expectancy of fourteen to seventeen years.

[¶ 4] On December 17, 2010, Barnes County Social Services removed A.W. from her mother’s care. On December 21, 2010, the juvenile court found A.W. was a deprived child on the basis of its findings that B.W. locked the child in her room, that B.W. neglected the child’s daily needs, and that B.W. failed to meet the child’s nutritional and educational requirements. Barnes County Social Services initially placed A.W. in foster homes, but eventually determined a group home would be more appropriate for the level of care she requires. A.W. is currently placed in a group home in Grand Forks.

[¶ 5] On December 20, 2011, Barnes County Social Services filed a petition to terminate B.W. and J.A.’s parental rights, alleging A.W.’s mental health and medical needs cannot be met in a home setting, B.W. does not have a stable home with services to meet the child’s needs, B.W. has not followed through with court-ordered services, B.W.’s involvement with the child has decreased since May 2011, J.A. has not been a part of the child’s life for four years, and J.A. has stated he would not be able to care for the child.

[¶ 6] A hearing on the petition was held on May 3, 2012. B.W. was given notice of the hearing but did not appear and was not represented by an attorney. J.A. was represented by an attorney, and he appeared by telephone for part of the hearing. On May 7, 2012, the juvenile court entered an order terminating B.W. and J.A.’s parental rights, finding J.A. abandoned the child, the child is deprived, the deprivation is likely to continue, the criteria for termination has been met for both parents, and there were no compelling reasons presented that would prevent the court from terminating the parents’ rights.

[¶ 7] The juvenile court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27 — 20—03(l)(b). J.A.’s appeal was timely under N.D.C.C. § 27-20-56(1) and N.D.R.App.P. 2.2(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 8] J.A. argues the juvenile court erred in terminating his parental rights. He contends the court’s findings that he abandoned A.W., that A.W. is deprived, [131]*131and that the conditions and causes of the deprivation are likely to continue are clearly erroneous.

[¶ 9] We will not reverse a juvenile court’s findings of fact in a termination case unless they are clearly erroneous, and the court’s decision to terminate parental rights is a question of fact. In re M.G., 2010 ND 157, ¶10, 786 N.W.2d 710. A finding is clearly erroneous when it is induced by an erroneous view of the law, there is no evidence to support the finding, or, on the basis of the entire record, this Court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 10] A court may terminate the parental rights of a parent if the child is deprived and the court finds “[t]he 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.” N.D.C.C. § 27-20-44(1). The party seeking termination must prove the required elements by clear and convincing evidence. M.G., 2010 ND 157, ¶ 10, 786 N.W.2d 710. Clear and convincing evidence is evidence that leads to a firm belief the allegations are true. Id.

[¶ 11] Under N.D.C.C. § 27-20-02(8), a child is deprived if the child “[h]as been abandoned by the child’s parents, guardian, or other custodian....” A child has been abandoned by a noncustodial parent if the parent, without justifiable cause, fails to communicate with the child or fails to provide for the care and support of the child as required by law. N.D.C.C. § 27-20-02(1). A court’s determination that a child has been abandoned is a question of fact. B.L.L. v. W.D.C., 2008 ND 107, ¶5, 750 N.W.2d 466. In deciding whether a child has been abandoned, we have said the court should consider:

the parent’s contact and communication with the child, the parent’s love, care and affection toward the child, and the parent’s intent. Also relevant is the parent’s acceptance of parental obligations such as providing care, protection, support, education, moral guidance, and a home for the child. A casual display of interest by a parent does not preclude a finding of abandonment, and a parent’s negligent failure to perform parental duties is significant to the issue.

Id. at ¶ 6 (quoting In re H.R.W., 2004 ND 216, ¶ 6, 689 N.W.2d 403). The parent’s intent to abandon the child may be inferred from the parent’s conduct. In re Adoption of H.G.C., 2009 ND 19, ¶ 12, 761 N.W.2d 565. The payment of child support, alone, is not sufficient to preclude a finding of abandonment. Id. at ¶ 14.

[¶ 12] Here the court ordered the termination of J.A.’s parental rights, finding J.A. abandoned A.W., A.W. was deprived, and the deprivation was likely to continue:

The father has had little involvement in [A.W.’s] life in the past four years. The mother and [A.W.] moved from Washington to North Dakota four years ago. The father testified that he would call the mother every once in a while and speak with [A.W.] The father is current on child support payments but has not had any in-person contact with [A.W.] since the child arrived in North Dakota.
There is nothing in the testimony presented to indicate that [A.W.] would ever be able [to] live in the home of either her mother or father. It is contrary to [AW.’s] welfare and unsafe to return to her mother’s home or father’s home. It is in [AW.’s] best interest to remain in a group home setting that can care for her special needs. Reasonable efforts were made to prevent removal [132]*132from the home. A permanency plan was in place to try to return [A.W.] to her mother’s home. Reasonable efforts were made by [Barnes County Social Services] to preserve and reunify [A.W.] with her mother. Reasonable efforts were made to find a suitable relative placement.
The father’s conduct shows that deprivation would likely continue in his care. The father lives in Washington but works in California and Arizona for weeks at a time.

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Related

In re Interest of Austin W. & Linda W.
Nebraska Court of Appeals, 2014
Interest of R.L.-P.
2014 ND 28 (North Dakota Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
2012 ND 153, 820 N.W.2d 128, 2012 WL 3031388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aw-nd-2012.