IN THE SUPREME COURT
STATE OF NORTH DAKOTA
In the Interest of J.N., a child.
| State of North Dakota, | ) | |||||
| Petitioner/Appellee, | ) | Supreme Court No. | ||||
| ) | 20120389 | |||||
| vs. | ) | |||||
| ) | Barnes County District No. | |||||
| J.N., a child, L.P., mother, | ) | 02-2011-JV-00021 | ||||
| B.N., father of the above- | ) | |||||
| named child, | ) | |||||
| Respondents, | ) | |||||
| ------ | ) | |||||
| B.N., father, | ) | |||||
| Appellant. | ) | |||||
| In the Interest of J.N., a child. | ||||||
| State of North Dakota, | ) | |||||
| Petitioner/Appellee, | ) | Supreme Court No. | ||||
| ) | 20120390 | |||||
| vs. | ) | |||||
| ) | Barnes County District No. | |||||
| J.N., a child, L.P., mother, | ) | 02-2011-JV-00022 | ||||
| B.N., father of the above- | ) | |||||
| named child, | ) | |||||
| Respondents, | ) | |||||
| ------ | ) | |||||
| B.N., father, | ) | |||||
| Appellant. | ) | |||||
ON APPEAL FROM FINDINGS OF FACT AND
ORDER OF TERMINATION OF PARENTAL RIGHTS
FROM THE JUVENILE COURT
FOR THE SOUTHEAST JUDICIAL DISTRICT
BARNES COUNTY, NORTH DAKOTA
THE HONORABLE JOHN T. PAULSON, PRESIDING
BRIEF OF APPELLEE
_
| Lee M. Grossman (06117) | ||||||
| Barnes County State's Attorney | ||||||
| 230 4th St. NW, Room 301 | ||||||
| Valley City, ND 58072 | ||||||
| Telephone: (701) 845-8526 | ||||||
| Facsimile: (701) 845-8543 | ||||||
| lgrossmanco.barnes.nd.us | ||||||
| Attorney for Petitioner/Appellee |
TABLE OF CONTENTS
| Table of Authorities | ii |
| Standard of Review | ¶ 1 |
| Argument | ¶ 3 |
| I. The Juvenile Court Correctly Determined by Clear and Convincing Evidence That the Child was Deprived and the Deprivation was Likely to Continue in the Father's Care. | ¶ 4 |
| Conclusion | ¶ 12 |
TABLE OF AUTHORITIES
| NORTH DAKOTA STATE CASES | |
| In the Interest of A.W., 2012 ND 153, 820 N.W.2d 128 | ¶ 7 |
| Interest of A.L., 2011 ND 189, 803 N.W.2d 597 | ¶ 2, 10, 11 |
| Interest of A.M., 1999 ND 195, 601 N.W.2d 253 | ¶ 11 |
| Interest of E.R., 2004 ND 202, 688 N.W.2d 384 | ¶ 5 |
| Interest of K.B., a child, 2011 ND 152, 801 N.W.2d 416 | ¶¶ 5, 7, 9, 11 |
| Interest of T.J.O., 462 N.W.2d 631 (N.D. 1990) | ¶ 6 |
| Streifel v. Streifel, 2004 ND 210, 689 N.W.2d 415 | ¶ 2 |
| Waagen v. R.J.B., 248 N.W.2d 815 (N.D. 1975) | ¶ 11 |
| NORTH DAKOTA STATUTES | |
| N.D.C.C. § 27-20-02 | ¶¶ 6 |
| N.D.C.C. § 27-20-44 | ¶ 5 |
| NORTH DAKOTA RULES | |
| N.D.R.Civ.P. 52 | ¶ 2 |
[¶ 1] STANDARD OF REVIEW
[¶ 2] The standard of review for a juvenile court's findings of fact in a termination proceeding is a clearly erroneous standard. Interest of A.L., 2011 ND 189, ¶ 6, 803 N.W.2d 597; N.D.R.Civ.P. 52(a)(6). The appellant has the burden of showing the findings of fact are clearly erroneous. Striefel v. Striefel, 2004 ND 210, ¶ 8, 689 N.W.2d 415.
[¶ 3] ARGUMENT
[¶ 4] I. THE JUVENILE COURT CORRECTLY DETERMINED BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD WAS DEPRIVED AND THE DEPRIVATION WAS LIKELY TO CONTINUE IN THE FATHER'S CARE.
[¶ 5] A juvenile court may terminate parental rights if clear and convincing evidence supports that (1) the child is deprived; (2) the conditions of deprivation are likely to continue; and (3) the child is suffering, or will suffer in the future serious physical, mental, moral or emotional harm. Interest of K.B., a child, 2011 ND 152, ¶ 7, 801 N.W.2d 416; N.D.C.C. § 27-20-44(1)(c)(1). The court may also terminate parental rights if clear and convincing evidence shows that the child has been in foster care or the care, custody, and control of a county social service board, for at least four hundred fifty out of six hundred sixty nights. N.D.C.C. § 27-20-44(1)(c)(2). "The party seeking parental termination must prove all elements by clear and convincing evidence." Interest of E.R., 2004 ND 202 ¶ 5, 688 N.W.2d 384. Clear and convincing evidence "leads to a firm belief or conviction the allegations are true." Interest of K.B., 2011 ND 152, ¶ 7.
[¶ 6] A deprived child is without proper parental care or control, subsistence, education, or other control necessary for the child's physical, mental, or emotional health, or morals, not due primarily to the lack of financial means. N.D.C.C. § 27-20-02(8)(a). This definition is broad enough to include a child whose parent is shown to be incapable of providing the proper care for the child, even if the parent has never been given the opportunity to care for the child. Interest of T.J.O., 462 N.W.2d 631, 633 (N.D. 1990). Even considering B.N. is the biological father of the children, he is not guaranteed an opportunity to care for the children before his rights may be terminated. B.N. was given opportunities by Barnes County Social Services (BCSS) to cooperate with interstate placement and did not follow through. B.N. was given opportunities to comply with simple requests, like a home address while he lived in North Dakota, and failed to cooperate.
[¶ 7] The juvenile court's findings were not erroneous because the court based its findings on the testimony of three workers from BCSS, the current foster mother of the children, the guardian ad litem, the father, the paternal grandmother, and the mother. The court's decision to terminate parental rights is a question of fact and its findings will not be reversed unless they are clearly erroneous. In the Interest of A.W., 2012 ND 153, ¶ 9, 820 N.W.2d 128. "A finding of fact 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, the Court is left with a definite and firm conviction a mistake has been made." Id. The juvenile court is given due respect to weigh the evidence and judge the credibility of witnesses. Interest of K.B., 2011 ND 152, ¶ 8. The Supreme Court does not re-weigh conflicting evidence on appeal. Id.
[¶ 8] The juvenile court found the children had been in the care, custody, and control of BCSS for 750 consecutive days as of August 17, 2012, the date of the termination hearing. Appellant's Appendix, 86. The juvenile court determined that B.N. was vague in his answers about where he lived and how the children would be schooled. Appellant Appendix, 82. B.N. was also uncooperative with BCSS in order that a home-placement study could be done to determine if B.N.'s home was appropriate, which gave the court pause to simply award B.N. custody based only on the fact that he was a biological parent. Appellant Appendix, 83-84.
[¶ 9] The juvenile court's findings should be specific enough to afford the Supreme Court the ability to understand the basis for the juvenile court's decision. Interest of K.B., 2011 ND 152, ¶ 8. The juvenile court determined in its findings:
The evidence also supports the termination of parental rights as to [B.N.]. He was given the opportunity to provide the necessary information to assist in the interstate compact efforts. He failed to provide that information and on one occasion referred Social Services to his mother. In addition, even during testimony, he has failed to provide a concrete address which could be inspected to determine whether residential facilities would be appropriate for these two children. It is as if he wishes to maintain secrecy as to where he lives and expects the Court simply to award him parental responsibility over these two children. This the Court simply cannot do and because of his lack of cooperation, his parental rights must be terminated.
Appellant Appendix, 83-84. The juvenile findings are specific enough to support two bases for termination of B.N.'s rights the time the children have spent in custody and continued deprivation of the children. This is based on a mathematical calculation of the children's time in custody and the credibility of the witnesses, in particular B.N.
[¶ 10] It is not mandatory for the juvenile court to terminate parental rights if the child has been in custody of social services for more than 450 out of 660 nights. Interest of A.L., 2011 ND 189, ¶ 10. The juvenile court has discretion of whether termination is appropriate under any of the provisions of the Juvenile Court Act and may find it more appropriate for continued custody rather than to terminate parental rights. Id. However, the court may also terminate based on a mathematical calculation alone.
[T]he provision now codified in N.D.C.C. § 27-20-44(1)(c)(2) is clear and provides that a juvenile court [ ] may terminate parental rights solely on a finding of (1) deprivation and (2) that "[t]he child has been in foster care, in the care, custody, and control of the department, or a county social service board . . . for at least four hundred fifty out of the previous six hundred sixty night."
Id. at ¶ 9 (citations omitted) (emphasis in original). Here the juvenile court found that, as of the date of the hearing, the children had been in BCSS custody for 750 consecutive days. Appellant Appendix, 79, 86.
[¶ 11] The primary purpose of the Juvenile Court Act is to protect the welfare of children. Interest of A.M., 1999 ND 195, ¶ 6, 601 N.W.2d 253. Termination of parental rights is "preventative as well as remedial." Interest of K.B., 2011 ND 152, ¶ 16 (citing Waagen v. R.J.B., 248 N.W.2d 815, 819 (N.D. 1976)). BCSS attempted to keep B.N. involved with the children even after the petition to terminate parental rights was filed. Appellant Appendix, 83. Given the age of these children, the length of time the children have already been in the custody of BCSS, the lack of cooperation by B.N. with BCSS, and the general evasiveness of B.N. while testifying, the juvenile court's decision to terminate rights was not an abuse of discretion because the decision was not "arbitrary, unreasonable, or capricious or a misinterpretation or misapplication of the law." Interest of A.L., 2011 ND 189, ¶ 12.
[¶ 12] CONCLUSION
[¶ 13] The juvenile court's findings of fact are supported by the evidence and are not clearly erroneous. The court had sufficient evidence to determine that the children were deprived, that their deprivation was likely to continue, and that the children had been in the custody of social services for 750 consecutive days at the time of the hearing. B.N.'s lack of cooperation with BCSS and overall evasiveness was properly observed and noted by the court. B.N.'s argument that he is entitled to the children is not enough to overcome the court's findings that B.N.'s parental rights insofar as they pertain to these two children should be terminated.
[¶ 14] The State respectfully prays that the Court AFFIRM the juvenile court's findings of fact in this matter.
[¶ 15] Dated this 8th day of November, 2012.
[¶ 16] Respectfully submitted,
| __ | ||||||
| Lee M. Grossman (06117) | ||||||
| Barnes County State's Attorney | ||||||
| 230 4th St. NW, Room 301 | ||||||
| Valley City, ND 58072 | ||||||
| Telephone: (701) 845-8526 | ||||||
| Facsimile: (701) 845-8543 | ||||||
| lgrossmanco.barnes.nd.us | ||||||
| Attorney for Petitioner/Appellee |