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In re R.L.-P.

Supreme Court of North Dakota

February 13, 2014

In the Interest of R.L.-P., a Child. State of North Dakota, Petitioner and Appellee
v.
R.L.-P., child; S.L.-C., Mother; N.P., Father; Barbara Oliger, Guardian Ad Litem, Respondents. S.L.-C., Mother and N.P., Father, Appellants. In the Interest of L.L.-P., a Child. State of North Dakota, Petitioner and Appellee
v.
L.L.-P., child; S.L.-C., Mother; N.P., Father; Barbara Oliger, Guardian Ad Litem, Respondents. S.L.-C., Mother and N.P., Father, Appellant. In the Interest of A.L.-P., a Child. State of North Dakota, Petitioner and Appellee
v.
A.L.-P., child; S.L.-C., Mother; N.P., Father; Barbara Oliger Guardian Ad Litem, Respondents. S.L.-C., Mother and N.P., Father, Appellant. In the Interest of A.L.-P., a Child. State of North Dakota, Petitioner and Appellee
v.
A.L.-P., child; S.L.-C., Mother; N.P., Father; Barbara Oliger, Guardian Ad Litem, Respondents. N.P., Father, Appellant. In the Interest of R.L.-P., a Child. State of North Dakota, Petitioner and Appellee
v.
R.L.-P., Child; S.L.-C., Mother; N.P., Father; Barbara Oliger, Guardian Ad Litem, Respondents. N.P., Father, Appellant. In the Interest of L.L.-P., a Child. State of North Dakota, Petitioner and Appellee
v.
L.L.-P., Child; S.L.-C., Mother; N.P., Father; Barbara Oliger, Guardian Ad Litem, Respondents. N.P., Father, Appellant.

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[Copyrighted Material Omitted]

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Britta K. Demello Rice, Assistant State's Attorney, Burleigh County State's Attorney's Office, Bismarck, N.D., for petitioner and appellee.

Thomas M. Jackson, Bismarck, N.D., for respondent and appellant S.L.-C.

Matthew J. Arthurs, Bismarck-Mandan Public Defender Office, Bismarck, N.D., for respondent and appellant N.P.

SANDSTROM, Justice.

[¶ 1] S.L.-C., the mother, and N.P., the father, appeal separately from a juvenile court order terminating their parental rights to their three children. We conclude the court's findings that the children are deprived and have been in foster care more than 450 out of the previous 660 nights are supported by the evidence and are not clearly erroneous. We affirm.

I

[¶ 2] S.L.-C. and N.P. are the parents of R.L.-P., born in 2004; L.L.-P., born in

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2006; and A.L.-P., born in 2007. The parents are divorced, and the mother was awarded primary residential responsibility of the children. In January 2011, the children were taken from the mother's home into shelter care. In an affidavit, a social worker described the mother's home:

A welfare check was conducted on January 4, 2011 at the residence of [the mother], which resulted in [the mother's] arrest for Child Abuse and Neglect. Inside [the mother's] home, it was difficult to walk around due to the amount of debris on the floor including nails, clothing, toys, dishes with food, tools, and other misc items. The toilet was plugged and appeared to have been in that condition for a period of time; there was no tank cover. The bathroom was difficult to enter due to debris all over the hallway. There were no sheets on the mattresses on the floor in the children's bedroom upstairs. Per the officer's report, there was a broken mirror, broken glass, open scissors, knives that the children had access to as well as old food scattered across the floor and in the doorways.... At the time of the welfare check, [the mother] tested positive for Amphetamines, Methamphetamines, and THC. The oldest child had missed two days of school; [the mother] reportedly had called the school stating that he was sick. At the time of removal, he didn't appear to be sick. Following the removal, the children reported that the only thing they ate all day was bananas. The children were dirty, they smelled, and their clothing was filthy. The children were dressed improperly for the season. During the welfare check, one of the officers asked the children to put their shoes on to protect them from the debris on the floor.

[¶ 3] After a shelter care hearing, a judicial referee found there was cause to believe the children were deprived and continued shelter care of the children was required. Deprivation proceedings for the three children have been ongoing since January 2011.

[¶ 4] In November 2012, the state petitioned to terminate the parents' parental rights to the three children. In May 2013, a trial was held on the termination petitions and to determine a permanent plan for the children.

[¶ 5] After trial, a judicial referee found the mother has been the parent with primary residential responsibility since the parents divorced. The referee found that " [a]lthough this family had come to the attention of social services before, primarily because of domestic violence occasioned by the respondent father, it was [the mother's] illegal drug use that caused [the children] to be placed into foster care on 4 January 2011." The referee found the mother is apparently sober at this time, but her sobriety has been maintained under very controlled circumstances, and it is uncertain whether she will be able to maintain sobriety. The referee also found the mother has not had any personal visits with her children for a number of months and the oldest child declines to have telephone contact with her at this time.

[¶ 6] The referee found the father has had, and continues to have, significant mental health problems that interfere with his ability to parent. The referee also found the father has shown some initial interest in treatment programs but has not made much progress addressing these problems, and it is unclear whether he ever will.

[¶ 7] The referee issued separate, but similar orders for the three children. The referee found the children were first adjudicated deprived in April 2011 and are still deprived, being without proper parental care or control, subsistence, education as

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required by law, or other care or control necessary for their physical, mental or emotional health or morals. The referee found the children are in dire need of stability and have not formed a real attachment to their parents.

[¶ 8] The referee found it is in the best interests of the children that the parents' parental rights be forever terminated and ordered termination of those rights.

[¶ 9] The parents requested review of the referee's orders. A juvenile court adopted the referee's findings.

[¶ 10] The juvenile court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-20-03(1)(b). The parents' appeals are timely under N.D.C.C. § 27-20-56(1) and N.D.R.App.P. 2.2(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 11] The mother argues the juvenile court decision should be reviewed de novo.

[¶ 12] We recently explained the law for review of parental termination cases:

We will not reverse a juvenile court's findings of fact in a termination case unless they are clearly erroneous, and the court's decision to terminate parental rights is a question of fact. In re M.G., 2010 ND 157, ¶ 10, 786 N.W.2d 710. A finding is clearly erroneous when it is induced by an erroneous view of the law, there is no evidence to support the finding, or, on the basis of the entire record, this Court is left with a definite and firm conviction a mistake has been made. Id.
A court may terminate the parental rights of a parent if the child is deprived and the court finds " [t]he conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm." N.D.C.C. § 27-20-44(1). The party seeking termination must prove the required elements by clear and convincing evidence. M.G., 2010 ND 157, ¶ 10, 786 N.W.2d 710. Clear and convincing evidence is evidence that leads to a firm belief the allegations are true. Id.

Interest of A.W., 2012 ND 153, ¶¶ 9-10, 820 N.W.2d 128.

[¶ 13] The mother relies primarily on Interest of D.Q., 2002 ND 188, 653 N.W.2d 713, to argue the juvenile court's decision should be reviewed de novo. Her argument, however, is unpersuasive because Interest of D.Q. no longer controls review of termination proceedings after " this Court amended N.D.R.Civ.P. 52(a) to provide that findings of fact in juvenile matters shall not be set aside on appeal unless clearly erroneous." Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913. We therefore review the juvenile court's decision under the clearly erroneous standard. See id.

III

[¶ 14] The mother argues the juvenile court erred because there was not clear and convincing evidence to support termination of parental rights under the three-part test in N.D.C.C. § 27-20-44(1), which provides, in part:

The court by order may terminate the parental rights of a parent with respect to the parent's child if:
a. The parent has abandoned the child;
b. The child is subjected to aggravated circumstances as defined under subsection 3 of section 27-20-02;

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c. The child is a deprived child and the court finds:
(1) The conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; or
(2) The child has been in foster care, in the care, custody, and control of the department, or a county social service board, or, in cases arising out of an adjudication by the juvenile court that a child is an unruly child, the division of juvenile services, for at ...

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