IN THE SUPREME COURT
STATE OF NORTH DAKOTA
IN THE INTEREST OF J.N., A CHILD
| State of North Dakota, | ||||||||
| Petitioner and Appellee, | Supreme Court No. | |||||||
| v. | Barnes Co. No. 02-2011-JV-00021 & | |||||||
| 02-2011-JV-00022 | ||||||||
| J.N., child, | ||||||||
| L.P., mother, | ||||||||
| B.N., father, | ||||||||
| Respondents | ||||||||
| B.N., | ||||||||
| Appellant. | ||||||||
APPELLANT'S BRIEF
APPEAL FROM THE FINDINGS OF FACT AND ORDER TO TERMINATE PARENTAL RIGHTS ENTERED SEPTEMBER 18, 2012.
John T. Paulson, Judge of the District Court.
| Jay D. Knudson |
| 405 Bruce Ave, Ste 101 |
| Grand Forks ND 58201 |
| 701-795-3910 |
| Attorney for Appellant |
| N.D. Bar No. 05907 |
| TABLE OF CONTENTS | ||||
| TABLE OF CONTENTS . . . . . . . . . . .i | ||||
| TABLE OF AUTHORITIES . . . . . . . .ii | ||||
| STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . .iii | ||||
| STATEMENT OF THE CASE . . . . . .¶1 | ||||
| STATEMENT OF THE FACTS . . . . . . . . . ¶¶2-9 | ||||
| STANDARD OF REVIEW. . . . . . . ¶10 | ||||
| JURISDICTIONAL STATEMENT. . . . . .¶¶11-12 | ||||
| LAW AND ARGUMENT . . . . .¶¶13-29 | ||||
| I. | The District Court erred in finding there was | |||
| clear and convincing evidence to support | ||||
| termination of B.N.'s parental rights because | ||||
| there is insufficient evidence to support that | ||||
| conclusion and also because it did not make a | ||||
| specific finding regarding what evidence it | ||||
| based its decision upon. . . . . . . . . ¶¶13-19 | ||||
| II. | The District Court's erred in finding that | |||
| reasonable efforts were made to reunify | ||||
| the family once the children were removed . . . . . . . . . .¶¶20-29 | ||||
| CONCLUSION . . . . . . . . . . . . .¶¶30-31 | ||||
TABLE OF AUTHORITIES
| NORTH DAKOTA CONSTITUTION | ||||||
| N.D. Const. art. VI. . . . . . . . . . . .¶10 | ||||||
| NORTH DAKOTA STATUTES | ||||||
| N.D.C.C. §27-20-20.1. . . . . . . . . ¶19 | ||||||
| N.D.C.C. §27-20-30. . . . . . . . . . .¶11 | ||||||
| N.D.C.C. §27-20-32.2. . . . . . . . .¶20 | ||||||
| N.D.C.C. § 27-20-44. . . . . . . . . . . ¶¶11, 14, 19 | ||||||
| N.D.C.C. §27-20-56 . . . . . . . . . . ¶10 | ||||||
| NORTH DAKOTA CASES | ||||||
| Adoption of K.S.H., 442 N.W.2d 417 (N.D. 1989) . . . . . . . . . . ¶29 | ||||||
| In Re M.S., 2001 N.D. 68, 624 N.W.2d 678. . . . . . . . ¶13 | ||||||
| In Re D.D., 2006 N.D. 30, 708 N.W.2d 900. . . . . . . . . . . . ¶¶13, 14 | ||||||
| Interest of A.B., 2003 ND 98, 663 N.W.2d 625. . . . . ¶12 | ||||||
| Interest of E.R., 2004 N.D. 202, 688 N.W.2d 384. . . . . . . . . . . .¶20 | ||||||
| In Interest of J.A., 283 N.W.2d 83, 93 (N.D.1979) . . . . . . . . . . ¶26 | ||||||
| In the Interest of M.M.C., 277 N.W.2d 281 (N.D. 1979) . . . . . .¶25 | ||||||
| Interest of N.W., 510 N.W.2d 580 (N.D. 1994) . . . . . ¶14 | ||||||
| In Interest of R.D.S., 259 N.W.2d 636 (N.D.1977) . . . . . . . . . . ¶26 | ||||||
| Interest of T.F., 2004 N.D. 126, 681 N.W.2d 786. . . . . . . . . . . .¶12 | ||||||
| Interest of T.J.L., 2004 N.D. 142, 682 N.W.2d 735. . . . . . .¶11 | ||||||
| Interest of T.T., 2004 ND 138, 681 N.W.2d 779. . . . . . . . . . . . ¶12 | ||||||
| McBeth v. M.D.K., 447 N.W.2d 318 (N.D. 1989) . . . . . . .¶¶17, 21 | ||||||
| NORTH DAKOTA RULES | ||||||
| N.D.R.App.P. 2.2. . . . . . . . . . . . ¶10 | ||||||
| N.D.R.Civ.P. 52. . . . . . . . . . . . . ¶12 | ||||||
STATEMENT OF THE ISSUES
I. The District Court erred in finding there was clear and convincing evidence to support termination of BNs parental rights because there is insufficient evidence to support that conclusion and also because it did not make a specific finding regarding what evidence it based its decision upon.
II. The District Court erred in finding that reasonable efforts were made to reunify the family once the children were removed.
STATEMENT OF THE CASE
¶1 This is an appeal from the Findings of Fact and Order to Terminate Parental Rights by Barnes County District Court, terminating the parental rights of L.P. and B.N. to J.N. and J.N. (Register of Actions, Docket 32; Appendix ("App.") 85-88). On December 7, 2011, a Summons (File 02-2011-JV-00021 and 02-2011-JV-00022) (Docket 4; App. 5, 16) and a Petition for Involuntary Termination of Parental Rights was filed in the Juvenile Court, asking the court to terminate the parental rights of L.P. and B.N. (Docket 1, App. 6-9, 17-20). An Affidavit in Support of Termination of Parental Rights was filed with the Petition. (Docket 2, App. 10-15, 21-25). The petition to terminate was tried on August 17, 2012, before the Honorable John T. Paulson, Judge of the District Court. (See Trial Recording ("Tr."). The Court requested closing arguments to be submitted by August 31, 2012. Tr. 6:15:29. A Memorandum Opinion Ordering Termination of Parental Rights was filed on September 14, 2012 (Docket 30; App.78-84) and the Court's Findings of Fact and Order to Terminate Parental Rights filed on September 18, 2012. (Docket 32, App. 85-88). B.N. timely filed his appeal. (App. 90).
STATEMENT OF FACTS
¶2 J.N. and J.N. were removed from L.P. on July 29, 2010, and placed in the custody of Barnes County Social Services [hereinafter BCSS] and remained there since that date. (Tr. 4:20:00; App. 7, 18). BCSS's primary goal was to reunite the girls with their mother with the secondary goal to reunite with their father. Tr. 2:17:55.
¶3 In the summer of 2011, L.P. had made significant progress and the goal of reunification of the girls with their mother was close. (Tr. 54:50, 1:34:33, 2:14:44). The telephone conversations B.N. had with the case worker as well as letters he received all indicated L.P. was doing well and would have the children placed back with her in the near future. (tr. 2:14:42, 2:22:06, 2:32:15). In the fall L.P. experienced a few setbacks, including losing her job and apartment. (Tr. 2:16:00). However, L.P. continued to maintain visitation with the girls and things continued to go fairly well through December 2011. (Tr. 7:50, 8:50). Throughout this time the goal remained to reunite the girls with the mother, which was relayed to B.N. (Tr. 1:34:33, 2:22:30). Judge Paulson noted in his memorandum decision that it was apparent that BN was a late look for placement of the minor children. (App. 82). Judge Paulson also noted that BN was unaware that he had a possibility for placement until shortly before the petition for termination was filed in December 2011. (App. 82)
¶4 L.P.'s progress declined throughout the beginning of 2012 and L.P.'s visitations went back to being supervised. (Tr. 7:50, 12:00, 16:50). L.P.'s last visitation with her girls was on May 8, 2012. (Tr. 12:43). As L.P.'s progress slowed, B.N. was becoming more involved with unification with his girls. B.N. was told that he needed to complete a psychological/parental capacity evaluation and a chemical dependency evaluation and comply with all recommendations made. (Tr. 4:04:29). B.N. did these evaluations, completing a chemical dependency evaluation on February 21, 2012 and a psychological evaluation on February 23, 2012. (Tr. 1:41:35; App. 38-58).
¶5 On December 7, 2011 BCSS filed a petition for termination of parental rights alleging the children were deprived and that the causes and conditions of the deprivation were likely to continue or will not be remedied and that by reason thereof the children were suffering or will probably suffer serious physical, mental, moral or emotional harm pursuant to N.D.C.C. § 27-20-44(1)(b)(1). (App. 6-9, 17-20). Specifically, BCSS alleged B.N. has had no involvement in the permanency planning for the girls, has not shown interest in caring for the girls, has not cooperated with BCSS, and has a history of criminal activity. (App. 7, 18).
¶6 At the time the petition was filed B.N. was residing in Georgia and traveling around the United States working with his family in the construction business. (Tr. 1:39:05). L.P. had moved from Georgia to Barnes County, North Dakota a few years prior. (Tr. 4:13:47). Although B.N. had not been able to maintain regular visitation with his girls living in North Dakota, B.N. made telephone contact with L.P. and the girls, and L.P. regularly updated B.N. on the girls while they were away from him. (Tr. 4:30:04).
¶7Subsequent to the petition being filed, B.N., along with his wife, two other daughters, mother, father, and other family members had all relocated to Fargo, North Dakota. (Tr. 35:30, 4:29:03). B.N. began having regular visitation with his girls which had increased in frequency and included B.N.'s current wife and his additional two children, the girls' half sisters. (Tr. 39:00). B.N. did not and does not want his parental rights terminated.
¶8 The trial court determined that the girls were deprived and that the deprivation would continue. (App. 78-84). Notably, Judge Paulson concluded that B.N. may have had a short string in attempting to get his affairs in order to become a primary subject for placement. (App. 82). He was always told that he was secondary and did not attend, in person or by telephone, any of the permanency planning meetings. (Tr. 1:34:24). He believed all along from what he was told that Social Services was looking at LP for reunification. (Tr. 1:34:24). He was told she was doing well in her efforts to cause reunification. (App. 82) The Court based its ruling essentially on a finding that "The problem is one of cooperation so that Social Services can be satisfied he has an appropriate home." (App. 83). The Court went on to state that "Because of his lack of cooperation, his parental rights must be terminated." (App. 84).
¶9 The Court made a finding by clear and convincing evidence that the child comes within the provisions of the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20., that the criteria for termination of parental rights for both parents, as defined in N.D.C.C. 27-20-20.1 and 27-20-44, had been met by the state, that no compelling reasons were presented that would prevent the court from terminating the parental rights for both parents, and that Reasonable efforts to place siblings together had been made as JN and her sister JN had continually been placed in the same home since their removal. (App. 86). The trial court issued its Findings of Fact and Order to Terminate Parental Rights. (App. 85-88). B.N. timely filed his appeal. (App. 90).
JURISDICTIONAL STATEMENT
¶10 This court has jurisdiction to hear this appeal under N.D. Const. art. VI, §§ 2 and 6, under N.D.C.C. §27-20-56(1) and N.D.R.App. P. 2.2.
STANDARD OF REVIEW
¶11 Section 27-20-44(1)(b)(1) of the North Dakota Century Code requires a petitioner for the termination of parental rights to prove by clear and convincing evidence that the child is deprived, the deprivation is likely to continue, and that, absent a termination, the child will suffer, or probably suffer, "serious physical, mental, moral, or emotional harm". E.g., Interest of T.J.L., 2004 ND 142 ¶ 2, 682 N.W.2d 735. A Court may also terminate the parental rights of a parent with respect to the parent's child if "the child has been in foster care, in the care, custody, and control of the department, or a county social service board, or, in cases arising out of an adjudication by the juvenile court that a child is an unruly child, the division of juvenile services, for at least four hundred fifty out of the previous six hundred sixty nights". N.D.C.C. § 27-20-44(1)(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. N.D.C.C. § 27-20-44(2).
¶12 A juvenile court's finding of deprivation will not be set aside unless it is clearly erroneous. N.D.R.Civ.P. 52(a); Interest of T.F., 2004 N.D. 126, ¶ 8, 681 N.W.2d 786, 789. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. Interest of T.T., 2004 ND 138, ¶ 5, 681 N.W.2d 779, 781. The juvenile court's conclusions of law are fully reviewable by this court. Interest of A.B., 2003 ND 98, ¶4, 663 N.W.2d 625, 628.
ARGUMENT
I. The District Court erred in finding there was clear and convincing evidence to support termination of BNs parental rights because there is insufficient evidence to support that conclusion and also because it did not make a specific finding regarding what evidence it based its decision upon.
¶13 In order to terminate a parent's rights, a finding of deprivation is not enough. E.g., In Re M.S., 2001 N.D. 68 ¶ 4, 624 N.W.2d 678, 681. The petitioner must also prove by clear and convincing evidence the deprivation is likely to continue. When the court considers whether deprivation will continue, evidence of past deprivation alone is not enough; there must also be prognostic evidence that forms a basis for a reasonable prediction of continued or future deprivation. In Re D.D., 2006 N.D. 30, 708 N.W.2d 900, 907.
¶14 "[A] pattern of parental conduct can form a basis for a reasonable prediction of future behavior." Id. at ¶9. "[E]vidence of the parent's background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue." Id. Additionally, parental cooperation, or a lack thereof, is pertinent to determining if deprivation will continue. Interest of N.W., 510 N.W.2d 580, 582 (N.D. 1994). Alternatively, the court may terminate rights if it finds the child is a deprived child and has been in social services custody for at least four hundred fifty out of the previous six hundred sixty nights. N.D.C.C. § 27-20-44(1)(2).
¶15 Although B.N. was late in coming to North Dakota, he was under the impression that things were going well with L.P. and that unification with the girls and their mother were close to happening. Once B.N. learned that L.P was no longer making progress and, in fact, declining in progress, B.N. completed a parental capacity evaluation and chemical dependency evaluation and promptly relocated to North Dakota with his family to work on unification with the girls.
¶16 The evidence submitted in this case indicated that B.N. is a capable father for his two girls. B.N. has shown a willingness to complete the assigned tasks and will do so with the assistance of social services in interpreting the documents which need to be completed. At the request of social services, B.N. completed a chemical dependency evaluation and a psychological evaluation. B.N. relocated to North Dakota to facilitate visitation and work on unification with his girls. B.N. is a motivated parent, having attended all of the visitations and having completed the tasks set upon him by the petitioner in the hope of obtaining reunification between himself and his children. B.N. would have continued to maintain contact with social services and would have continued visitations with the girls until reunification could have been completed.
¶17 This Court has confirmed that the parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent. McBeth v. M.D.K., 447 N.W.2d 318, 322 (N.D.1989). At the time the petition was filed BCSS's concerns were that B.N. had no involvement in the permanency planning for the girls, had not shown interest in caring for the girls, or cooperated with BCSS, and has a history of criminal activity. The majority of these concerns had been addressed before the time of the trial and no longer remained. Clearly, the District Court noted a problem with the lack of cooperation on the part of B.N. with social services, even noting such in its post-trial memorandum. While the relationship between B.N. and Social Services may have been tepid at best, it would be a mistake to ignore all the steps that B.N. made to cooperate with the requests of Social Services. These steps include, perhaps most strikingly, the fact that B.N. and his entire family moved to North Dakota simply to be closer to his minor children that were in foster care. He made that move for no other reason than to attempt to obtain custody of his children.
¶18 Under these circumstances, it was a mistake to terminate B.N.'s parental rights. There was insufficient evidence to support a finding by clear and convincing that BN's parental rights should be terminated.
¶19 The Court made a blanket statement that the criteria for termination of parental rights for both parents, as defined in N.D.C.C. 27-20-20.1 and 27-20-44, had been met by the state, that no compelling reasons were presented that would prevent the court from terminating the parental rights for both parents, and that reasonable efforts to place siblings together had been made as JN and her sister JN had continually been placed in the same home since their removal. The Court did not make a specific finding regarding what section of the century code it based its decision upon and what specific reasons supported that finding, other than to state that he criteria had been met. While it may not be difficult to ascertain or assume the court's reasoning, all parties would be better served knowing with particularity the exact reasons for termination.
II. The Court erred in finding that reasonable efforts were made to reunify the family once the children were removed.
¶20 Section 27-20-32.2(2) of the North Dakota Century Code requires reasonable efforts be made to preserve and reunify families. Interest of E.R., 2004 N.D. 202, ¶ 12, 688 N.W.2d 384, 389. Reasonable efforts means:
the exercise of due diligence, by the agency granted the authority over the child under this Chapter, to use appropriate and available services to meet the needs of the child and the child's family in order to prevent the removal of the child from the child's family or, after removal, to use appropriate and available services to eliminate the need for removal and to reunite the child and the child's family.
N.D.C.C. § 27-20-32.2(1).
¶21 The parent must be in a position to demonstrate present capacity or capacity in the near future to be an adequate parent. McBeth v. M.D.K., 447 N.W.2d 318, 322 (N.D. 1989). B.N. has the capacity now. Part of the reason for removal was that the children had been out of the home for an extended time. Therefore, it makes sense to determine whether or not the state can show reasonable efforts to avoid removal.
¶22 "Reasonable efforts" requires that if a child is removed from her family, social services use appropriate and available services to eliminate the need for removal. In this case social services testified that B.N. was making steady progress with the girls. He was having regular visitations with them. B.N. also was remarried and had two children, both girls, who all were developing a relationship with the minor children who were removed.
¶23 Alicia Aune, present case manager, expressed concern regarding whether B.N. and his current wife can supervise four young girls. Petitioner contends that because B.N. was unable to effectively direct the attention of all children all of the time during a visitation, that he is unable to meet the needs of the children. However, no evidence or testimony presented that gave an example of B.N. putting any of the children at risk during the visitations. Alicia Aune gave an example of why she felt the children were not properly supervised during visitations. During one of the visitations one of the children wondered off and it took B.N. and his current wife about three minutes before they realized she had wondered off, at which time they went to her and brought her back.
¶24 This example has been experienced by nearly every parent. This is not deprivation. Further, if there were concerns with B.N.'s parenting, social services had the capability to continue to monitor B.N. and the girls for a reasonable time after the child is returned to B.N. Furthermore, Social Services made no attempt to intervene or get involved with B.N. and his daughters who already lived with him. If there were such great concerns about his parenting ability, it seems logical that there would have been investigation in to the well being of all his children.
¶25 This Court has noted that "[i]t is not reason enough to deprive parents of custody that their home is not the best, or even that they are not the best parents that could be offered to the child, so long as the child does not suffer physical or moral harm, or lack of food or clothing." In the Interest of M.M.C., 277 N.W.2d 281, 286 (N.D. 1979). [citations omitted].
¶26 Throughout the trial, there seemed to be an underlying impression that Social Services had decided that the foster parents were better equipped to parent the girls and therefore placement should be with them. Alicia Aune, present case manager, noted that a bond had developed between the foster parents and the girls.(App. 51:17). The issue before the Court should not have been who social services thinks is a better parent, but it should have instead been whether or not a termination of parental rights was necessary based on deprivation of the children. This Court has said that "[e]vidence which compares the child-rearing skills of the mother and of the foster parents cannot alone form the basis of a finding of harm to the child, provided the mother's efforts meet minimum standards of care." In Interest of J.A., 283 N.W.2d 83, 93 (N.D.1979) [quoting In Interest of R.D.S., 259 N.W.2d 636, 638 (N.D.1977) ]. B.N.'s efforts, while not perfect, certainly met that minimum standard of care.
¶27 B.N. had made strides toward unifying his current family with the two girls. When he learned that he was a possible placement, he moved his entire family from out of state to North Dakota in order to facilitate that goal. He had shown that he is an adequate parent and could have provided a stable home environment for his two girls. From the beginning of the deprivation proceedings the stated goal of the permanency planning was to unify the children with their birth mother, L.P. The reunification with L.P. did not work out. Placement with B.N. seems to have been a mere afterthought. Though it may sound trite to say considering the length of time that transpired in this case, B.N. was never really given a shot to be the parent he could be until it was too late.
¶28 B.N. simply has not been provided a fair and just opportunity to be considered as a permanent home for his children. Social Services did not make reasonable efforts to return the girls to B.N.
CONCLUSION
¶29 While the District Court has considerable discretion in termination cases, the law requires that "[a]ny doubts should be resolved in favor of the natural parent[,] and parental rights should be terminated only when necessary for the child's welfare or in the interest of public safety." Adoption of K.S.H., 442 N.W.2d 417 (N.D. 1989). In this case it was a mistake to terminate the parental rights of B.N.
¶30 The decision to terminate B.N.'s parental rights in this case was clearly erroneous and B.N. respectfully requests this Court to reverse the District Court's Findings of Fact and Order for Termination of Parental Rights.
Submitted this 18th day of October, 2012
| Jay D. Knudson | |||||||
| ND Attorney No. 05907 | |||||||
| Attorney for Appellant | |||||||
| 405 Bruce Ave, Ste 101 | |||||||
| Grand Forks ND 58201 | |||||||
| 701-795-3910 |