Appeal from the Juvenile Court of Benson County, Northeast Judicial District, the Honorable Lee A. Chirstofferson, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
N.D. Supreme CourtInterest of A.L.,
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Kapsner, Justice.
[¶1] R.G. appeals from a juvenile court order confirming a judicial referee's decision to terminate his parental rights to four minor children. We affirm, concluding the court did not clearly err in finding the children are deprived and have been in the custody of social services for 450 out of the previous 660 nights and did not abuse its discretion in terminating R.G.'s parental rights.
[¶2] In 2003, R.G. was placed on criminal probation, and in March 2009, his probation was revoked and he was sentenced to a three-year prison term. In September 2009, R.G.'s four children involved in this action were all less than four years old and were residing with their mother when the children were taken into protective custody by Benson County Social Services and placed in foster care after the mother left the children with relatives and did not return for the children. The record reflects the mother did not return for the children because she had been jailed on a criminal charge.
[¶3] In May 2010, the State petitioned to terminate the parental rights of R.G. and the mother. In August 2010, the juvenile court terminated the mother's parental rights and also found the children were deprived as to R.G., but the evidence was not sufficient to terminate his parental rights. The juvenile court stated R.G. was anticipating being paroled in January 2011 with release to a halfway house for three to four months. The court also stated R.G.'s early release was contingent upon his completion of a drug and alcohol treatment program.
[¶4] In December 2010, the State filed another petition to terminate R.G.'s parental rights, alleging the children had been in the custody of social services and foster care since September 2009. An affidavit in support of the petition stated that the children had been in the custody of Benson County Social Services for fifteen out of the last twenty-two months, that R.G. had "problems following the rules" in prison, that he had been "kicked out" of the treatment program because of his conduct, that he did not know if he would be allowed back in the treatment program, that his "good behavior release date" was July 2012, and that the children deserved a stable environment, which could be accomplished by adoption.
[¶5] After a hearing, a judicial referee terminated R.G.'s parental rights to the four children, finding R.G. was not granted his early parole as anticipated because he had not yet completed his drug and alcohol treatment program due to his conduct in the prison facility. The referee said R.G.'s release had been delayed at least six months from what was expected in August 2010, which would result in the children being in foster care for more than 450 out of the previous 660 nights under N.D.C.C. § 27-20-44(1)(c)(2). The referee further explained there were several other "unknowns" about when R.G. could be reunited with his children, including whether he will complete the treatment program, and there were no compelling reasons to delay permanency for the children. The referee found sufficient evidence that the children would suffer harm by continuing them in foster care. The referee found:
[S]ince the children are not placed in the home of a relative that has been approved by the department [NDCC 27-20-20.1(3)(a)], the combination of finding of deprivation along with a finding that the children have been in an out of home placement for "four hundred fifty out of the previous six hundred sixty nights" is a sufficient basis for the termination of parental ...