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In re K.J.

March 16, 2010

IN THE INTEREST OF K.J., A CHILD IN THE INTEREST OF D.J., A CHILD IN THE INTEREST OF L.J., A CHILD
PAM SAND, L.S.W., PETITIONER AND APPELLEE
v.
R.J., MOTHER, RESPONDENT AND APPELLANT
DIRECTOR, CASS COUNTY SOCIAL SERVICES; K.J., A CHILD, D.J., A CHILD; L.J., A CHILD; JOHN DOE AND R.G., FATHERS; AND KATHY KASSENBORG, LAY GUARDIAN AD LITEM,
RESPONDENTS



Appeal from the Juvenile Court of Cass County, East Central JudicialDistrict, the Honorable Douglas R. Herman, Judge.

The opinion of the court was delivered by: Crothers, Justice

AFFIRMED.

[¶1] R.J. appeals from a juvenile court order adopting a judicial referee's decision to terminate her parental rights to her three minor children. We conclude the district court did not clearly err in finding that the conditions and causes of deprivation and the deprivation are likely to continue and that the termination of R.J.'s parental rights is necessary to prevent physical, mental or emotional harm to the children. We further conclude that N.D.R.App.P. 2.2, as applied in this case, did not unconstitutionally infringe on R.J.'s right to procedural due process. We affirm.

I.

[¶2] R.G. is the putative father of three minor children, and R.J. is their mother. In April 2007, the children were placed into protective custody with Cass County Social Services because of exposure to parental drug use, parental domestic violence, and unsuitability of the children's home. In May 2007, the juvenile court found the children were deprived and placed them in the full custody of Cass County Social Services for one year with authorization for out-of-home placement. R.J. was ordered to comply with a treatment plan in an effort to reunite her with her children. In February 2008, the State filed a petition for the termination of the parental rights of R.J. and of R.G.

[¶3] In January 2009, the judicial referee bifurcated the proceedings and terminated the parental rights of R.G. In February 2009, a trial on the petition to terminate R.J.'s parental rights was held before a judicial referee. In April 2009, the judicial referee issued findings and an order, terminating R.J.'s parental rights. R.J. requested juvenile court review of the judicial referee's findings and order. In August 2009, the juvenile court adopted the judicial referee's findings and order. In September 2009, R.J. filed a notice of expedited appeal under N.D.R.App.P. 2.2.

II.

[¶4] Under N.D.C.C. § 27-20-44(1)(c), a court may terminate parental rights if clear and convincing evidence establishes: "(1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral or emotional harm." Interest of J.S.L., 2009 ND 43, ¶ 12, 763 N.W.2d 783; see also Interest of D.D., 2006 ND 30, ¶ 18, 708 N.W.2d 900. "Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true." Interest of K.L., 2008 ND 131, ¶ 11, 751 N.W.2d 677. Under N.D.C.C. § 27-20-44(1)(c)(2), a court may also terminate parental rights if the child is a deprived child and the court finds: "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 four hundred fifty out of the previous six hundred sixty nights."

[¶5] "On appeal, findings of fact in juvenile matters shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. N.D.R.Civ.P. 52(a)." Interest of J.S.L., 2009 ND 43, ¶ 12, 763 N.W.2d 783. "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 B.J.K., 2005 ND 138, ¶ 10, 701 N.W.2d 924.

[¶6] In this case, R.G. has not appealed the termination of his parental rights. In terminating R.J.'s parental rights, the judicial referee found that the children were adjudicated deprived children on May 22, 2007, were placed in the full custody of Cass County Social Services for a period of one year with authorization for out-of-home placement and have continued to reside in foster care with their maternal grandmother since that time. The judicial referee found that although a service plan was put in place to reunify the children with their mother, including provision for a number of service plan goals and treatment, R.J. had been unable to complete the treatment plan and the children remained in out-of-home placements. After the termination petition was filed, R.J. was arrested for hindering law enforcement and for driving under the influence. The referee found that in March 2009, R.J. began serving a 48-month sentence for her involvement in a drug conspiracy charge, of which she must serve at least 85 percent of the sentence. The referee found that R.J. has been unsuccessful in addressing her chemical addiction, that R.J. admits to ongoing chemical use and that her prognosis for sobriety is "guarded at best." The referee found that the services and treatment provided to R.J. have not abated the causes of deprivation and that the children continue to be deprived, which is likely to continue for the foreseeable future. The referee further found R.J. failed to establish stable and secure housing, the children have all been diagnosed with mental health issues due to trauma and "[a]ll three children need consistency, predictability and stability in their environments and with caretakers so they can progress in treatment and address the barriers to normal, healthy development." The referee also specifically found the children had been out of the parental home since April 23, 2007, exceeding 450 out of the previous 660 nights. The referee found that "at a minimum," R.J. is unable to parent the children for the next three and a half years as a result of her incarceration, and that on R.J.'s release, it is unknown if and when she would be capable of assuming her parenting responsibilities. The referee found the children will be harmed absent a termination of parental rights and, from clear and convincing evidence, the children are in need of treatment or care as deprived children. The referee concluded it was contrary to the children's welfare to remain in the natural parents' home and that all reasonable efforts had been made to prevent removal of the children and to make it possible to return the children to their parents.

III.

[¶7] R.J. does not challenge the juvenile court's finding that the children were "deprived" as defined in N.D.C.C. § 27-20-02(8). Rather, she argues the court erred by finding the conditions and causes of deprivation are likely to continue. She asserts the petitioner did not clearly show she failed in her efforts to comply with the treatment plan and did not show that the circumstances for which the children were adjudicated deprived were unabated. R.J. concedes she will be unavailable to the children for approximately 48 months, but asserts she made "substantial progress" in completing the treatment plan goals and in demonstrating capacity to parent her children. She contends that she clearly demonstrated her ability to involve herself in the treatment process and that she possesses the capacity to meet the children's needs. R.J. also contends there is a "substantial likelihood" she will resume her role as a parent when she becomes available.

[¶8] "In determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough." Interest of E.R., 2004 ND 202, ¶ 7, 688 N.W.2d 384. "[T]here must [also] be prognostic evidence that forms the basis for reasonable prediction of continued or future deprivation." Id. Prognostic evidence, which forms the basis for a reasonable prediction as to future behavior and includes reports and opinions of the professionals involved, must be evaluated in deciding if a child's deprivation is likely to continue. Interest of D.F.G. and E.K.B., 1999 ND 216, ¶ 20, 602 N.W.2d 697. "When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency and stability in her life." Interest of E.R., at ¶ 9.

[¶9] Evidence must also demonstrate "that as a result of the continued deprivation, the child is suffering, or will in the future probably suffer physical, mental, moral, or emotional harm." Interest of E.R., 2004 ND 202, ¶ 10, 688 N.W.2d 384. "Assisting a parent to establish an adequate environment for the child by offering long term and intensive treatment is not mandated if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care." Interest of E.R., at ¶ 11; see also Interest of D.D., 2006 ND 30, ¶ 23, 708 N.W.2d 900. Under N.D.C.C. § 27-20-32.2(2), "reasonable efforts" must be undertaken to preserve and reunify families absent aggravated or other specific circumstances. However, "[i]t is not enough that a parent indicates a desire to improve behavior; rather, the parent must be able to demonstrate present capacity, or capacity ...


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