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In re B.B.

January 12, 2010

INTEREST OF B.B., A CHILD
HALEY L. WAMSTAD, GRAND FORKS COUNTY ASSISTANT STATE'S ATTORNEY, PETITIONER AND APPELLEE
v.
B.B. (CHILD), RESPONDENT AND B.J.F. (MOTHER) AND S.L.B. (FATHER), RESPONDENTS AND APPELLANTS



Appeal from the Juvenile Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

[¶1] S.L.B. and B.J.F., parents of B.B., separately appealed a juvenile court order extending placement of B.B. in the custody and control of the Director of Grand Forks County Social Services for a period of twelve months. B.J.F. failed to submit an appellate brief. Under N.D.R.App.P. 31(c), "[i]f an appellant fails to file a brief within the time provided by this rule or within a time extended by the court, the court on its own motion may dismiss the appeal." Because B.J.F. failed to submit a brief, she abandoned her claims, and we dismiss her appeal. See Johnson v. Schlotman, 502 N.W.2d 831, 836 (N.D. 1993). Regarding S.L.B.'s appeal, we affirm the juvenile court's order of April 2, 2009.

I.

[¶2] In September 2004, B.B. was removed from his home and placed in foster care after the juvenile court concluded B.B. was deprived. In September 2005, B.B. returned to live with his father, S.L.B. The State again filed a petition alleging that B.B. was deprived, and in June 2006, the juvenile court ordered B.B. in to foster care. Social Services recommended S.L.B. complete programming with the goal to return B.B. to one of his parents. S.L.B. appealed the 2006 juvenile court order finding B.B. was deprived and placing him in the custody of Social Services. Our Court affirmed the order. Interest of B.B., 2007 ND 115, ¶ 1, 735 N.W.2d 855. In July 2006, Social Services recommended S.L.B.: (1) maintain contact with B.B., (2) maintain contact with Social Services, (3) complete an alcohol and drug evaluation, (4) obtain parenting and psychological assessments, (5) complete a sex offender evaluation, (6) complete random urinalysis testing, and (7) complete a domestic violence offender treatment program. Social Services also requested that S.L.B. follow any recommendations following services. In March 2007, Social Services placed B.B. with a paternal aunt and uncle in Washington. In June 2007, the State petitioned for an extension of placement of B.B. for twelve months. The juvenile court concluded that B.B.'s deprivation continued, and it extended B.B.'s placement for twelve months. S.L.B. appealed that August 2007 order to this Court, and we affirmed. Interest of B.B., 2008 ND 51, ¶ 1, 746 N.W.2d 411.

[¶3] The State petitioned for a permanency hearing in June 2008, alleging continuing deprivation and requesting an extension of the prior deprivation order. In the petition, the State alleged B.B., then ten- years-old, continued to be deprived because S.L.B. had not completed all of his assigned tasks, had not addressed his mental health problems in a consistent manner, had demonstrated problems with anger, and had maintained contact with the mother, B.J.F., despite contrary recommendations. The juvenile court held a hearing and ultimately found that the deprivation continued and ordered that B.B. continue to remain in the care, custody, and control of Social Services until July 6, 2009. S.L.B. appealed the April 2, 2009, juvenile court order.

[¶4] On appeal, S.L.B. argues the juvenile court (1) erred in finding B.B. continues to be deprived, (2) erred in finding reasonable efforts have been made for reunification, (3) failed to appoint independent legal counsel for B.B., and (4) failed to grant his motion for a visit and to return the child to North Dakota.

II.

[¶5] S.L.B. argues the juvenile court erred in finding B.B. continued to be a deprived child. This Court will not overturn a juvenile court unless the findings of fact are clearly erroneous. N.D.R.Civ.P. 52(a). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made." Interest of B.B., 2008 ND 51, ¶ 4, 746 N.W.2d 411. On appeal, we review the files, records, and minutes or the transcript of the evidence, and we give "appreciable weight to the findings of the juvenile court." N.D.C.C. § 27-20-56(1). This Court gives the juvenile court due regard because the juvenile court has the opportunity to assess the credibility of the witnesses. N.D.R.Civ.P. 52(a); Interest of T.T., 2004 ND 138, ¶ 5, 681 N.W.2d 779.

[¶6] Under N.D.C.C. § 27-20-02(8)(a), a child is deprived when he or she is "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian." "Clear and convincing evidence must support a finding of deprivation." Interest of B.B., 2008 ND 51, ¶ 6, 746 N.W.2d 411. If the court determines a child is deprived, it may make an order of disposition best suited to the protection and physical, mental, and moral welfare of the child:

a. Permit the child to reside with the child's parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.

b. Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the following:

(1) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.

(2) The director of the county social service board or other public agency authorized by law to receive and provide care for the child.

....

d. Require the parents, guardian, or other custodian to participate in treatment.

e. Appoint a fit and willing relative or other appropriate individual as the child's legal guardian.

f. In cases in which a compelling reason has been shown that it would not be in the child's best interests to return home, to have parental rights terminated, to be placed for adoption, to be placed with a fit and willing relative, or to be placed with a legal guardian, establish, by order, some other planned permanent living arrangement.

N.D.C.C. § 27-20-30(1). A juvenile court may extend a disposition order if:

a. A hearing is held before the expiration of the order upon motion of a party or on the court's own motion;

b. Reasonable notice of the hearing and opportunity to be heard are given to the parties affected;

c. The court finds the extension is necessary to accomplish the purposes of the order extended; and

d. The extension does not exceed twelve months from the expiration of an order limited by subsection 3 or two years from the expiration of any other limited order.

N.D.C.C. § 27-20-36(4). The juvenile court must also find the child remains deprived, because the court would lack jurisdiction without that finding under N.D.C.C. § 27-20-03(1)(a). Interest of B.B., 2008 ND 51, ¶ 5, 746 N.W.2d 411 (citing Eastburn v. B.E., 545 N.W.2d 767, 770 (N.D. 1996)).

[¶7] "[A] pattern of parental conduct can form a basis for a reasonable prediction of future behavior." Interest of B.B., 2008 ND 51, ¶ 9, 746 N.W.2d 411. "[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. See Interest of N.W., 510 N.W.2d 580, 582 (N.D. 1994) (noting the juvenile court ...


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