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In re C.N.

Supreme Court of North Dakota

November 21, 2013

In the Interest of C.N., a child
v.
C.G., father of the child, Respondent and Appellant. Barbara L. Whelan, Petitioner and Appellee

Page 842

Barbara L. Whelan, State's Attorney, Walsh County Courthouse, Grafton, ND, petitioner and appellee; submitted on brief.

Page 843

Jay Dennis Knudson, Grand Forks Public Defender Office, Grand Forks, ND, for respondent and appellant.

CROTHERS, Justice.

[¶ 1] C.G. appeals from a juvenile court judgment terminating his parental rights and directing him to pay child support for his son, C.N. C.G. argues that the juvenile court was clearly erroneous in finding C.N. is a deprived child and that aggravated circumstances warrant termination. C.G. argues the juvenile court erred in ordering C.G. to pay child support despite terminating his parental rights. We affirm the judgment terminating the parental rights of C.G. and ordering him to provide child support.

I

[¶ 2] C.N. was born in March 2009 and resides with his mother and siblings in Grafton. C.N. never has been in the custody of any agency or person other than his mother. C.G. is C.N.'s biological father.

[¶ 3] C.G. was arrested in January 2009 and charged with continuous sexual abuse of a child in violation of N.D.C.C. § 12.1-20-03.1, a class AA felony. After a jury trial, C.G. was sentenced to life imprisonment and after serving thirty years, the balance of the sentence was suspended for a period of twenty years of supervised probation. C.G. continuously sexually abused C.N.'s half-sister who C.N. currently lives with and foreseeably will continue to live with indefinitely. C.G. has been incarcerated since before C.N.'s birth and will be incarcerated until well after C.N.'s eighteenth birthday. C.N. does not know C.G., and if asked who his father is, C.N. states his father is the biological father of his half-siblings.

[¶ 4] C.G. appealed his conviction for continuous sexual abuse of a child, arguing that the district court erred by failing to use a special verdict form, that insufficient evidence existed to support his conviction, that the court erred in refusing to consider his challenge of the makeup of the jury and that his sentence violates the Eighth Amendment prohibition against cruel and unusual punishment. State v. Gomez, 2011 ND 29, ¶ 1, 793 N.W.2d 451. This Court affirmed that judgment. Id.

[¶ 5] While incarcerated, C.G. attempted to communicate with C.N.'s mother to obtain visitation and contact with C.N. The juvenile court judge allowed this communication because only C.G.'s probation terms limited contact and C.G. still is incarcerated. C.N.'s mother asserted the communications caused her great distress. The State brought this action to terminate C.G.'s parental rights. The juvenile court found C.N. is a deprived child and aggravated circumstances are present. The juvenile court terminated C.G.'s parental rights, directing him to pay child support for C.N.

II

[¶ 6] " Under N.D.C.C. § 27-20-44(1)(b)(1), parental rights may be terminated if there is clear and convincing evidence: (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 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." In re M.G., 2010 ND 157, ¶ 10, 786 N.W.2d 710 (quoting Interest of D.H., 2010 ND 103, ¶ 19, 783 N.W.2d 12). Certain aggravated circumstances also may result in the termination of parental rights, such as prohibited conduct toward children and a lengthy

Page 844

incarceration. N.D.C.C. § ...


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