IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|IN THE INTEREST OF J.P.|
|Williams County Social Services,|
|By Karin O'Cain,|
|J.P, minor child|
|District Court Case No. 53-2012-JV-00041|
|Supreme Court No. 20130048|
|IN THE INTEREST OF M.B.|
|M.B., minor child,|
|District Court Case No. 53-2012-JV-00060|
|Supreme Court No. 20130057|
|IN THE INTEREST OF A.B.|
|A.B., minor child,|
|District Court Case No. 53-2012-JV-00061|
|Supreme Court No. 20130058|
BRIEF OF APPELLANT
|Timothy C. Wilhelm Bar ID #03935|
|Attorney for Appellant L.P., mother|
|325 11th Ave. SW #4|
|Minot, ND 58701|
|TABLE OF CONTENTS|
|Table of Authorities||pg. ii|
|Statement of the Issues||Paragraph 1|
|Statement of the Case||Paragraph 2|
|Statement of the Facts||Paragraph 3|
|TABLE OF AUTHORITIES|
|Adoption of S.R.F., 2004 N.D. 150 ¶7, 683 N.W.2d 9||14|
|In Re D.C.S.H.C., 2007 N.D. 102 ¶6, 733 N.W.2d||17|
|Interest of E.R., 2004 ND 202, 688 N.W.2d 384||14|
|In Interest of E.R., 2004 N.D. 202, ¶7, 688 N.W.2d 384||20, 22|
|Interest of F.F., 2006 N.D. 47 711 N.W.2d 144||17|
|Interest of J.N., a child, 2012 N.D. 256 (2012)||14|
|In the Interest of J.S.L, 2009 ND 43, 763 N.W.2d 783||12|
|In Re K.B., 2011 N.D. 152 ¶7, 801 N.W.2d 416||14|
|State v. Gress, 2011 N.D. 193 ¶ 4, 803 N.W.2d 607||14|
|N.D.C.C. § 27-20-20.1(3)||18|
|N.D.C.C. § 27-20-21.1(2)(a)||17|
|N.D.C.C. § 27-20-20.1(3)||18|
|N.D.C.C. § 27-20-32.2(1)||17|
|N.D.C.C. § 27-20-30||18|
|N.D.C.C. § 27-20-30(3)(1)(f)||18|
|N.D.C.C. § 27-20-32.2(1)||20|
|N.D.C.C. § 27-20-44||16, 18|
|N.D.C.C. § 27-20-44(c)(2)||1, 15, 16|
|N.D.C.C. § 27-20-44(1)(c)(2)||16|
|N.D.C.C. § 27-20-56(1)||1|
|North Dakota Rules of Appellate Procedure||3|
|North Dakota Rules of Civil Procedure||14|
|North Dakota Rules of Evidence 602||12|
|North Dakota Rules of Evidence 801(a)||11|
|North Dakota Rules of Evidence Rule 801(c)||11|
|North Dakota Rules of Evidence 803||11|
|North Dakota Rules of Evidence 803(8)||12|
|North Dakota Rules of Evidence 805||12|
|North Dakota Constitution Art. IV §§ 2||3|
|North Dakota Constitution Art. IV §§ 6||3|
STATEMENT OF THE ISSUES
[¶1] The court erred in improperly allowing hearsay testimony during the termination hearing.
The court erred in issuing findings of fact and conclusions of law that were inadequate as a matter of law in support of its decision to terminate parental rights.
The court abused its discretion and erred in using N.D.C.C. 27-20-44(c)(2) as an alternative basis for the termination of parental rights.
The court erred in not ordering reinstatement of reasonable efforts to reunify following the wrongful removal of the children from a trial home placement.
The court erred in determining that the conditions and causes of the deprivation are likely to continue or will not be remedied.
STATEMENT OF THE CASE
[¶2] This is an appeal by L.P. the mother of J.P., M.B., and A.B. from the Findings of Fact, Conclusions of Law, and Order for Judgment entered by the Honorable David W. Nelson in the Juvenile Court, Williams County, North Dakota. The court's orders terminated the parental rights of L.P. to all three of her children. (App. 86-103). The procedural history of the case commences with a petition being filed alleging deprivation followed by a subsequent hearing resulting in an order of April 3, 2009, in which the children were adjudicated deprived but allowed to remain in their parental home pursuant to supervisory order. (App. 9-14). Thereafter on August 17, 2009, a temporary shelter care removal order was entered in which the children were removed from the parental home. (App. 15-20). A second petition was filed with relation to the children and following hearing on October 2, 2009, the court on October 8, 2009, found the children to be deprived and ordered their placement with Williams County Social Services for a period of time not to exceed August 5, 2010. (App.21-25 ). Thereafter a permanency hearing was held with relation to the children on July 23, 2010, and they were continued under the care custody and control of Williams County Social Services for a period of time not to exceed July 22, 2011 (App. 26-40). A second permanency hearing was held on July 13, 2011, with relation to the three children and their custody was continued with Williams County with a period of time not to exceed July 12, 2012 (App. 41-55). On November 10, 2011, the court issued an order dismissing the permanency order with relation to J.P. and returned her to the care of her mother. (App. 56). On January 4, 2012, the court issued an order for shelter care with relation to J.P. returning her to the custody of Williams County Social Services for a period of up to 60 days pending the filing of a petition. (App. 57-60). A petition was filed with relation to J.P. and she was adjudicated a deprived child and ordered for continued placement with Williams County on February 17, 2012. (App. 61-64) Thereafter petitions for termination of parental rights were filed with relation to all three children on April 5, 2012. (App. 65-85). Following hearing on November 26, 2012, the judgment terminating parental rights with relation to L.P. and each of three children was entered on January 23, 2013.
[¶3] This court has jurisdiction to hear this appeal under N.D. Const. Art. IV §§ 2 and 6, under N.D.C.C. § 27-20-56(1) and N.D.R. App. P. 2.2.
STATEMENT OF THE FACTS
[¶4] A.B. is a minor child, J.P. is a minor, and M.B. is a minor child. Respondent-Appellant is the mother to each of the children. Respondent E.B. is the father to A.B. and M.B. and respondent J.B. is the father to J.P.
[¶5] At the hearing of November 26, 2010, Karin O'Cain, a social worker with Williams County Social Services, testified that she was the case manager in this case. O'Cain indicated it was her duty to provide whatever might be required for the children to be safe and be reunified following their removal from the home. (Tr 00:07:08). O'Cain indicated she began working with the family in January of 2009 (Tr 00:07:57), and, over objection relating to the hearsay nature of the testimony, O'Cain was allowed to testify as to matters preceding her involvement with the case where she merely relied on reports filed by previous workers. (Tr 00:09:16 - Tr 00:13:07). Subsequent to her involvement with the family O'Cain indicated L.P. did complete a psychological evaluation in May of 2009 (Tr 00:37:18). O'Cain testified that the children were removed from the home in August of 2009 and placed in foster care with a goal of reunification. Following a foster care placement in Tioga she testified the children were thereafter placed in Wyoming with L.P.'s father in December of 2009. (Tr 00:54:10). O'Cain indicated L.P. was making visitation with her children while they were placed in Wyoming and that L.P. was working with social services and that concerns with L.P.'s home had generally been addressed. (Tr 00:56:30). She further indicated that intensive in-home began working in L.P.'s home when J.P. was transitioned back to her home in May of 2011 followed by A.B. and M.B. returning home in July of 2011 for trial home visit (Tr 00:58:25 - Tr
00:59:30). She indicated the trial home visit of J.P. extended to December 8, 2011, when she was removed due to an allegation of physical abuse by L.P. (Tr 01:02:30) and that on December 15, 2011, M.B. and A.B. were removed from L.P.'s home upon L.P. being arrested on a charge of child abuse against J.P. (Tr 01:03:30). O'Cain further acknowledged that although the charges against L.P. were dismissed, the children were never returned to the trial home placement (Tr 01:04:15). O'Cain testified that since December of 2011 A.B. and M.B. have been physically placed with L.P.'s mother (Tr 01:21:15). She acknowledged that prior to the removal of the children from trial home placement L.P. had been working with her (O'Cain), a parent aid, and an intensive in-home worker and she described L.P. as generally cooperative (Tr 01:37:15). O'Cain acknowledged that for the great majority of time under the care custody and control of her agency the children were in the care of a relative approved by the Williams County Social Services. (Tr 01:55:20 - Tr 01:58:30).
[¶6] Charles Pospishil, a child therapist, testified that he had been working with the children since 2011. (Tr 02:21:40). He indicated J.P. had a diagnosis of reactive attachment disorder. He testified that she had recently been returned to her mother's care prior to her beginning therapy (Tr 02:26:50). He indicated he felt the relationship between L.P. and J.P. could be resurrected (Tr 02:33:05). Pospishil indicated he had diagnosed A.B. and M.B. with adjustment disorder generally characterized by anxiety and oppositional behavior (Tr 02:42:10 - Tr 02:45:55). Pospishil testified that although L.P. had struggled in the past to provide steady care for the children he did not think a timeline of six months to a year was unrealistic for the children to be returned to the home and live in relative harmony (Tr 02:49:30). Pospishil indicated although without change, harm to the children will continue into the future based upon what had happened in the past, nonetheless if there was a meaningful change in the frequency of contacts and quality of contacts between L.P. and her children his prognostic opinion would change (Tr 02:51:35 - Tr 02:52:05). He further stated the children have indicated they miss their mother (Tr 03:00:30).
[¶7] Jeanette Raab, a parent aide with Williams County Social Services, testified that she began working with the family in 2010 by helping L.P. prepare for an upcoming trial home placement (Tr 03:12:55). She indicated she was helping L.P. put support services in place for the children's return to their home. She indicated she was successful in working with L.P. in preparing the home for the trial home placement (Tr 03:34:30). She indicated J.P. was removed from the home based on an allegation of child abuse made against L.P. (Tr 03:36:04). The other children A.B. and M.B. were removed from the home following L.P.'s arrest related to the J.P. allegation. Although charges were dismissed against L.P. the children were never returned to the home. Raab indicated she had been willing to keep working with the family in the home but that the children had been removed (Tr 03:47:15).
[¶8] L.P. testified that the initial removal of the children from her home in 2009 had been based on the conditions in the home and that at subsequent hearings she had agreed to continued custody by Williams County Social Services but didn't fully understand the proceedings and that the continuations of custody had been agreed to without testimony (Tr 03:50:45). She testified that initial placement of her children had been in a foster home in Tioga, North Dakota, between August 5 and December 23, 2009, followed by placement in her father's residence in Wyoming. She indicated the children remained with her father from December 23, 2009, until J.P. was returned to her home for trial home placement on May 5, 2011, and that M.B. and A.B. were returned to her residence shortly thereafter (Tr 03:54:05). L.P. indicated that following the return of her children to her home she began working with an intensive in-home worker named Paula Hickel. L.P. described the incident involving J.P. that resulted in the removal of J.P. from her home on December 8, 2011, indicating J.P. and M.B. were squabbling at the table and M.B.'s fingers were squished between two chairs. She indicated in breaking up this incident she never intentionally caused injury to J.P. but that J.P. did hit her head on the table. She further indicated that after J.P. was placed back into foster care A.B. and M.B. were left in their trial home placement and only removed because she was subsequently arrested approximately a week later based on allegations of child abuse. She indicated that charge was ultimately dismissed and that prior to the removal of the children things had been going well (Tr 03:57:09 - Tr 04:01:05). L.P. testified she realizes that she is not blameless in these matters but wants to retain her relationship with the children and parent them. Further she indicated she understands that the children cannot indefinitely remain in foster care and they do have a need for permanency and therefore asked the court for an additional six months to achieve reunification (Tr 04:02:02 - Tr 04:03:25). L.P. described difficulty in getting in contact with her case manager Karen O'Cain and that she felt she was being ignored.
[¶9] Karen O'Cain testified in rebuttal and indicated that although she had left messages on L.P.'s cell phone and with her mother she never went to L.P.'s home to initiate contact (Tr 04:18:25). O'Cain acknowledged on cross-examination that she had never had a case where she allowed months to pass without contact with her client and further acknowledged that after having not been able to have contact by phone or letter she should have gone to L.P.'s residence (Tr 04:20:50 - Tr 04:21:15).
[¶10] The court erred in improperly allowing hearsay testimony during the termination hearing.
[¶11] During the trial of this matter the court wrongfully received hearsay testimony by the supervising social worker, Karen O'Cain. Hearsay is defined at Rule 801(c) of the North Dakota Rules of Evidence as a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. A statement is defined by that rule at 801(a)(1) as an oral or written assertion. During her testimony Karen O'Cain was questioned relating to reports of suspected child abuse or neglect received by her agency dating from 2005 through 2008 relating to L.P. As Ms. O'Cain began this testimony from prior reports submitted to Williams County Social Services an objection to the nature of the hearsay testimony was lodged (Tr 00:09:16). The petitioner attempted to justify the testimony claiming the witness was testifying from records kept by her agency. Rule 803 of the North Dakota Rules of Evidence provides as follows:
Rule 803. "Hearsay exceptions; availability of declarant and material.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness;...
(8) public records and reports. Records, reports, statements or data compellations, in any form, of public offices or agencies, setting forth...(ii) matters observed pursuant to duty imposed by law as to which matters there was a duty to report,... However, factual findings may not be admitted under this exception unless the proponent furnishes to the party against whom they are offered a copy of the factual findings, or portion thereof as it relates to the controversy sufficiently in advance of it's offer in evidence to provide the adverse party with a fair opportunity to prepare..."
[¶12] In this case the respondent L.P. was not provided with prior notice or a copy of the allegations contained within the hearsay testimony. The witness testified as to several reports received by her agency and acknowledged on cross-examination that her testimony was based on reports between 2005 to 2009 which were submitted to her agency by others and of which she had no personal knowledge (Tr 01:23:00). The admission of this hearsay evidence over objection deprived the respondent of a fair opportunity for cross examination and unfairly placed before the court prejudicial information without sufficient guarantees of trustworthiness. The court considering the hearsay objection determined to allowed the testimony after O'Cain indicated the records had been located in her office (Tr 00:12:08). The testimony further is violative of N.D.R.Ev. 602 which indicates a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. In this case it was acknowledged that she had no involvement with the respondent prior to 2009. The matters testified to by O'Cain in this regard further are violative of N.D.R.Ev. 805 as containing hearsay within hearsay (Tr 00:13:07) in which O'Cain is quoting a social worker's summary of a reporter's allegation. With regard to hearsay within hearsay each part of the combined statements must conform to an exception of the hearsay rule provided in these rules. The petitioner did not offer any showing that the combined statements could each conform to an exception of the hearsay rule. The North Dakota Supreme Court in the case of In the Interest of J.S.L, 2009 ND 43, 763 N.W.2d 783, allowed under the public records exception found at N.D.R.Ev.803(8) the testimony relating to a child protection matter however the court predicated it's finding on the fact that a copy of the hearsay report had been furnished to the respondents in advance of trial. That did not occur in this case. In this case, the testimony should have been excluded and it's admission to the record constitutes err and unfair prejudice to L.P.
[¶13] The court erred in issuing findings of fact and conclusions of law that were inadequate as a matter of law in support of it's decision to terminate parental rights.
[¶14] In a termination case the state must establish all the elements for termination by clear and convincing evidence. See In Re K.B., 2011 N.D. 152 ¶7, 801 N.W.2d 416.This standard is well established in North Dakota law see Interest of E.R., 2004 N.D.202 ¶5, 688 N.W.2d 384 "The parties seeking parental termination must prove all elements by clear and convincing evidence." and Adoption of S.R.F., 2004 N.D. 150 ¶7, 683 N.W.2d 913 stating "clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true." In each of of the Findings of Fact, Conclusions of Law, and Orders for Judgment involving J.P., A.B., and M.B. the court failed to indicate, it found clear and convincing evidence to support its Findings of Fact and Conclusions of Law and as such the above mentioned Findings of Fact and Conclusions of Law are inadequate (App. 86-103). Further, the findings of fact in each of the cases are conclusory general findings of fact which do not comply with the requirement of N.D.R.Civ.P. 52(a) that findings be stated with sufficient specificity to assist in the appellate court's review and to afford a clear understanding of the court's decision. In this case, the court merely found in the findings of fact "6. That each of the minor children has been in the care, custody and control of Williams County Social Services for 627 (or 660 of the last 660 nights)." The court further found "7. That the children have been and are deprived children as that term is defined in North Dakota's Juvenile Court Act." These findings do not provide any of the specificity which is required for a court order terminating parental rights. In the Interest of J.N., a child, 2012 N.D. 256 (2012).In State v. Gress, 2011 N.D. 193 ¶ 4, 803 N.W.2d 607, this court stated that it cannot properly review a decision of the trial court if it does not provide an explanation of the basis for it's decision because the reviewing court would be left to speculate whether the court properly applied the law. Further the court in these three cases found that "the conditions and causes of deprivation were likely to continue or will not be remedied and that by reason thereof the child was suffering and/or will probably suffer serious physical, mental, moral and/or emotional harm." (App. 90, 96, 102) This conclusion once again was found without any elaboration as to a factual basis justifying the same. This matter must be reversed based upon inadequate findings of fact made by the trial court.
[¶15] The court abused it's discretion and erred in using N.D.C.C. § 27-20-44(c)(2) as an alternative basis for the termination of parental rights.
[¶16] The court's reliance on N.D.C.C. § 27-20-44(1)(c)(2) in this case constitutes an abuse of discretion. N.D.C.C. § 27-20-44 provides in relevant part
27-20-44 Termination of Parental Rights
"1. The court by order may terminate the parental rights of a parent with respect to the parent's child if:...
c. The child is a deprived child and the court finds:..
(2) The child has been in foster care in the care,
custody, and control of the department, or a
county social service board...for at least 450 out
of the previous 660 nights; emphasis added..."
[¶17] It is conceded that the above quoted section of North Dakota law constitutes an independent rationale for the termination of parental rights in a termination case, however, rigid adherence to that timeline is not mandatory and the court may exercise discretion, assuming the burden of proof has been met to decide whether termination is appropriate under that provision. In Re F.F., 2006 N.D. 47, 711 N.W.2d 144.
N.W.2d 144. Although the state must initiate termination proceedings in that situation under N.D.C.C. § 27-20-21.1(2)(a) the juvenile court has discretion whether or not to terminate parental rights pursuant to those guidelines. it is L.P.'s contention that a rigid adherence to those numbers under the factual scenario that is presented in this case shows the court acted in an arbitrary unreasonable, or capricious manner and therefore abused its discretion in relying on that subsection to support its termination decision. In Re D.C.S.H.C., 2007 N.D. 102 ¶6, 733 N.W.2d. 902.
[¶18] In this case clearly a mechanical application of the number of days provision was inappropriate. Although not directly controlling an analogy can be drawn to the provisions of N.D.C.C. § 27-20-20.1(3) which indicates a petition for parental rights need not even be filed if the child is being cared for by a relative approved by the department. In this case the testimony adduced at the termination hearing showed that each of the children had been either in the direct care of their mother L.P. or maternal grandparents for the great majority of the preceding 660 nights. Further, in lieu of termination the court may make an order for disposition under N.D.C.C. § 27-20-30 if it is in the child's best interest. N.D.C.C. § 27-20-30(3)(1)(f) indicates that placement with a fit and willing relative is another option available to the court and given the facts of this case including that the children had been placed in either a family home or with the respondent for the great majority of the time they had been under Williams County custody it was arbitrary and capricious and an abuse of discretion for the court to use a mechanical application of the nights in foster care provisions of N.D.C.C. § 27-20-44 as an independent rationale justifying termination.
[¶19] The court erred in not ordering reinstatement of reasonable efforts to reunify following the wrongful removal of the children from a trial home placement.
[¶20] N.D.C.C. § 27-20-32.2(1) requires the state to use "appropriate and available services to meet the needs of the child and the child's family in order to prevent 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." In this case it is clear a trial home placement designed to ultimately reunify the family was wrongfully terminated and reasonable efforts to reunify were transformed into an unreasonable decision to continue the children's placement out of home. The case manager, Karen O'Cain, testified that the goal for social services was reunification into the home of L.P. (Tr 00:48:15). A lengthy relative placement occurred with the children's maternal grandfather in Wyoming with L.P. making visits and continuing to work with social services. L.P. was also seeing a therapist, setting up intensive in-home services and generally addressing concerns relating to her home. J.P. was transitioned to L.P.'s home in May of 2011 and shortly thereafter A.B. and M.B. were placed in the home for a trial home visit in July of 2011 (Tr 00:54:10 - Tr 00:59:30). The children remained in home placement for almost half a year until their removal in December of 2011. (Tr 01:02:30 - Tr 01:03:30). The rationale for the removal of the children was that on December 8, 2011, J. P. had an injury that was allegedly caused by her hitting her face on a table. She indicated this had been caused by L.P., her mother. L.P. indicated the injury was inadvertent while she was attempting to break up an altercation between J.P. and M.B. (Tr 03:57:09 - Tr 03:59:05). J.P. was removed from the home at that time. M.B. and A.B. remained in the home until December 15, 2011, when they were removed predicated upon the fact L.P. had been arrested for child abuse. (Tr 01:03:30). The criminal charge against L.P. was dismissed. Nonetheless the children were never returned to the home after December 15, 2011. This scenario is patently unfair and represents a violation of the duty of social services to reunite the children with their family. The state points out a litany of services offered allegedly in an effort to provide reasonable efforts to reunify the children but the most significant effort, the trial home placement, was terminated wrongfully in a classic catch-22 situation where J.P. was removed due to an allegation that apparently could not be proved. Thereafter, although M.B. and A.B. were left in the trial home placement following that alleged incident, they were removed based on the arrest of L.P. and her unavailability at that time. Thereafter charges against L.P. relating to the J.P. incident were dismissed and yet the children were never returned to the trial home placement. It is elementary that trial home placement is the step in the reintegration process that immediately precedes a return of custody to the parent. In this case but for the unwarranted removal of the children from trial home placement it is likely custody could have been restored to L.P.
[¶21] The court erred in determining that the conditions and causes of the deprivation are likely to continue or will not be remedied.
[¶22] This court In Interest of E.R., 2004 ND 202, 688 N.W.2d 384 indicated, "in determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough, and there must be prognostic evidence that forms the basis for reasonable prediction of continued or future deprivation." In this case the only prognostic testimony that was offered was from Charles Pospischel, a therapist working with the children. Although Pospischel testified the children did need a stable attachment figure and that ongoing harm to the children would continue until that occurred, he indicated that could be achieved in this case. Pospischel indicated the children missed their mother (Tr 03:00:30). He indicated that although there needed to be changes, if they did occur in terms of frequency of contacts and quality of contacts his prognostic opinion would change as to where or not deprivation would continue (Tr 03:52:05). Pospischel testified the relationship with the mother could be resurrected (Tr 02:33:05) and indicated that with a change in the frequency of contacts and quality of contact with the children they could be reunified and live in relative harmony with L.P. within six months to a year. (Tr 02:49:30). Given the fact the placement of these children has been with family members for the overwhelming majority of time they have been in social service custody, that time period, which was requested by L.P., seems reasonable and the court erred in finding that the causes of the deprivation were not likely to be remedied.
[¶23] For the foregoing reasons the decision of the court to terminate L.P.'s parental rights to the children is clearly erroneous and the order of the juvenile court should be reversed. Reasonable efforts should continue to reunite the children with L.P. including reinstatement of the wrongfully terminated trial home placement.
|[¶24]||Respectfully submitted this 22nd day of February, 2013.|
|Timothy C. Wilhelm Bar ID #03935|
|Attorney for Appellant L.P., mother|
|325 11th Ave. SW #4|
|Minot, ND 58701|