Appeal from the Juvenile Court of Grand Forks County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice
[¶1] W.M. appealed from a juvenile court judgment terminating his parental rights in his child, J.S.L. We affirm, holding the court did not err when it found clear and convincing evidence existed that J.S.L.'s deprivation was likely to continue, J.S.L. would likely suffer harm absent a termination of parental rights, and reasonable efforts were made to reunify the family once J.S.L. was removed into foster care.
[¶2] In August of 2007, the Child Protection Program at Grand Forks County Social Services received a report that T.L., at the time pregnant with J.S.L., had overdosed on medication. T.L. stated that she had taken the medication in an attempt to harm herself and her unborn child, and was placed in a psychiatric ward. Within two weeks J.S.L. was born and subsequently removed from the hospital and placed in foster care. At the time of J.S.L.'s birth, W.M. was living with T.L. but he had not yet acknowledged paternity of the child. However, over the next two months, both T.L. and W.M. attended visitation sessions with J.S.L. Katrina Johnson, a foster care case manager at Grand Forks County Social Services, testified at trial that she had supervised these sessions, and noted that on several occasions W.M. would fall asleep during visitation. While W.M. would correct his sleeping behavior in the "short-term," Johnson testified she had to remind him to stay awake on future visits.
[¶3] In October of 2007, T.L. began serving a prison sentence for unrelated charges for four years with two years suspended. In July of 2008, W.M. told a social worker that he and T.L. were still a couple, but that he was considering ending their relationship. Throughout the duration of their time together, T.L. and W.M. each faced charges of domestic violence for abusive acts against the other. In January of 2001, W.M. pled guilty to a charge of simple assault for striking T.L. in the face. In November of 2001, W.M. pled guilty to a charge of violating a temporary domestic violence protection order by coming into contact with T.L. In September of 2003, T.L. pled guilty to a charge of simple assault for striking W.M. in the head.
[¶4] During the time that T.L. was incarcerated in October of 2007, W.M. established his paternity as J.S.L.'s biological father. W.M. then began his own weekly visitation schedule with J.S.L. and attended sessions with Social Services to work on developmental tasks regarding the child. W.M. also had meetings with an infant development worker to cultivate ideas and goals that he could work on to help J.S.L. meet her developmental milestones. Johnson testified that she would have to intervene during W.M.'s visits with J.S.L. because:
[J.S.L.] would get very upset and fussy and cry to the point where co-workers would complain or be concerned of [J.S.L.'s] well-being because she would be so upset so we would have to intervene and kind of assist [W.M.] of finding a way to help soothe her. . . . It was pretty much every visit, and usually at least once.
Johnson noted that W.M. appeared to fall asleep again during one of these visits. Further, while W.M. generally attended his scheduled visits with J.S.L., there was a period of approximately one month, between the end of January 2008 to February 2008, during which he did not attend any visitations, explaining to Social Services that he "felt it was too cold."
[¶5] Around the time W.M. began his own visitation schedule with J.S.L., he completed a chemical dependency evaluation at Northeast Human Service Center ("Northeast"). The recommendation from the report was that W.M. complete chemical dependency treatment, follow through with a case manager at Northeast, and look into entering gambling addiction treatment. An offer to attend chemical dependency treatment was made to W.M. in November of 2007, but he refused to attend. He again turned down treatment in January of 2008. W.M. did begin the program in March of 2008 and completed it in June of that year. Before he entered the program, W.M. had not maintained sobriety, and admitted to Social Services that he had consumed alcohol at least once after completing treatment, and had therefore not attended his Aftercare program. While W.M. told Social Services that he would not drink in front of J.S.L., he did not make a similar commitment to refrain from drinking altogether.
[¶6] Once W.M. completed his chemical dependency program, he was allowed to begin working with Ann Tollefsrud, a social worker with Grand Forks County Social Services, on parenting skills training. W.M. also began working with a parenting aide, both individually and jointly with J.S.L. Tollefsrud testified she had to intercede on occasion to assist W.M. when handling J.S.L.; in one instance, he dumped Cheerios on J.S.L.'s high chair tray, and the child began stuffing them into her mouth, causing Tollefsrud to intervene out of concern that J.S.L. would choke. Tollefsrud also testified that she had to encourage W.M. to be more interactive with J.S.L. as he was "pretty quiet and he didn't really say too much . . . and the child was kind of waiting for something to happen." In particular, Tollefsrud told W.M. to smile and talk to his daughter. Tollefsrud further testified that, on another occasion, when J.S.L. began to cry, W.M.'s only idea was to console her with her bottle; when he was unable to find the bottle he became agitated and began repeating aloud that J.S.L. needed a bottle, leaving her on the floor without trying to pick her up, console her, or give her a pacifier. Tollefsrud testified she believed that W.M. would become uncomfortable when J.S.L. began to fuss, and was at a loss at how to calm her down beyond feeding her. At trial, Tollefsrud gave a general assessment of W.M.'s ability to adapt to Social Services' suggestions:
[I]f you tell [W.M.] something, he may remember that fact but he doesn't know how to implement it through other things. . . . [I]f you were to say the baby doesn't need the pacifier today, he might not know that maybe later on the baby's going to need that. You know, he doesn't have that skill to assess different times that the child may need something. So he may follow your, just that one direction.
[¶7] While W.M. was given parental skills training, the Child Protection Program assembled a Child Protection Assessment Report ("CPA Report") on J.S.L. The Report was based on information provided from several individuals, including social workers, case managers, and a psychologist. The Report was primarily concerned with T.L., but also contained some basic information about W.M., including general information about his chemical dependency and mental health. Based on the findings of the CPA Report, the Program team found there to be psychological maltreatment of J.S.L., and that T.L. and W.M. both lacked the ability, knowledge and parenting management skills to be able to provide care and keep a child safe.
[¶8] In April of 2008, Grand Forks County Social Services filed a petition to involuntarily terminate the parental rights of T.L. and W.M. A hearing was held in August of 2008. During the course of the trial, the juvenile court allowed the CPA Report into evidence over objection by T.L.'s counsel that the Report was inadmissible hearsay. The court found that the Report was admissible under the residual exception in Rule 807 of the North Dakota Rules of Evidence. Also at trial the issue arose over W.M.'s mental health status. W.M.'s counsel objected to any social worker testifying as an expert witnesses. In response to the objection during Johnson's testimony, the court stated:
I'm going to reserve ruling on her expertise. It depends upon what the question is as to whether she . . . can answer the question based . . . on her experience and training to be qualified as an expert. Experts can testify about certain things and not other things and sometimes it's expert testimony and sometimes it's just based upon what her observations are. So I'm going to reserve ruling on, on qualifying her as an expert because she may be an expert in some areas and not in other areas.
The court made similar rulings on the other witnesses at trial.
[¶9] While none of the witnesses were qualified as experts on mental health, the witnesses made several non-diagnostic references to W.M.'s condition which they observed and came to know through working with W.M. over the period of several months. Johnson testified that, while she was working with W.M., she had concerns about his mental health and chemical dependency, as well as his relationship with T.L. Johnson also described a meeting she had with W.M. where he "became very angry and physically got agitated and made a comment about feeling like hurting somebody so he left the meeting." Johnson also testified that there were instances where W.M. would call her a "bitch" during meetings. Shari Fielder, the supervisor of the Grand Forks County Social Services Child Protection Program, testified on direct examination that Social Services had concerns over W.M.'s mental health. On cross-examination, W.M.'s counsel again raised the issue of W.M.'s mental health with Fielder. During this examination, Fielder testified that her knowledge of W.M.'s mental health and chemical dependency problems came directly from W.M. and through follow-up reports by individuals with whom W.M. worked on his mental health problems. W.M.'s counsel asked Fielder if she was aware of what W.M.'s diagnosis was, to which Fielder responded that she had learned he was diagnosed with a schizoaffective disorder. Later, during the cross-examination of Kris Beck, the lay guardian ad litem appointed to J.S.L.'s case, W.M.'s counsel again probed the witness on W.M.'s mental health, and for the first time elicited testimony that W.M. had suffered from hallucinations where he believed that angels were directing his actions, that he argued with these angels over whether he should take a certain direction, and that he could read people's spirits and thoughts.
[¶10] Fielder, Johnson, Tollefsrud and Beck each testified that, in their opinion, J.S.L. was a deprived child and the court should terminate the parental rights of T.L. and W.M. On August 25, 2008, the juvenile court issued its memorandum decision, finding that J.S.L. was a deprived child, that the deprivation was likely to continue, and that it would be in the best interests of the child to terminate the parental rights of T.L. and W.M. Specifically, the court found that both T.L. and W.M. suffered from mental problems which would likely endanger the child, and that W.M. also had chemical dependency problems which would make caring for J.S.L. dangerous. The court also found that reasonable efforts had ...