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In re Guardianship of P.T.

Supreme Court of North Dakota

December 18, 2014

In the Matter of the Guardianship of P.T.; State of North Dakota, Petitioner and Appellee
v.
P.T., Child; J.W., Mother; J.V, Father; R.P., Legal Guardian; J.P., Legal Guardian; Sharla Price, Guardian ad litem, Respondents R.P. and J.P., Appellants; In the Matter of the Guardianship of M.T.; State of North Dakota, Petitioner and Appellee
v.
M.T., Child; J.W., Mother; G.M., Father; R.P., Legal Guardian; J.P., Legal Guardian; Respondents R.P. and J.P., Appellants; In the Matter of the Guardianship of A.M.-T.; State of North Dakota, Petitioner and Appellee
v.
A.M.-T., Child; J.W., Mother; G.M., Father; R.P., Legal Guardian; J.P., Legal Guardian; Respondents R.P. and J.P., Appellants; In the Matter of the Guardianship of R.T.; State of North Dakota, Petitioner and Appellee
v.
R.T., Child; J.W., Mother; J.G., Father; R.P., Legal Guardian; J.P., Legal Guardian; Sharla Price, Guardian at Litem Respondents R.P. and J.P., Appellants; In the Matter of the Guardianship of S.M.; State of North Dakota, Petitioner and Appellee
v.
S.M., Child; J.W., Mother; G.M., Father; R.P., Legal Guardian; J.P., Legal Guardian; Respondents R.P. and J.P., Appellants;

Page 368

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

Alexander J. Stock, Assistant State's Attorney, Bismarck, ND, for petitioner and appellee; submitted on brief.

Bryan D. Denham, Pampa, TX, for respondents and appellants R.P. and J.P.; submitted on brief.

Lisa Fair McEvers, Carol Ronning Kapsner, Daniel J. Crothers, William A. Neumann, S.J. Opinion of the Court by McEvers, Justice. The Honorable William A. Neumann, S.J., sitting in place of Sandstrom, J., disqualified. VandeWalle, Chief Justice, concurring in the result.

OPINION

Page 369

McEvers, Justice.

[¶1] R.P. and J.P. appeal from a juvenile court order terminating their guardianship. We affirm the juvenile court's findings that it is in the best interests of the children to terminate the guardianship.

I

[¶2] On April 5, 2013, the State petitioned for termination of R.P. and J.P.'s guardianship of their grandchildren, P.T., M.T., A.M.-T., R.T., and S.M., alleging the children were deprived, the children had been in foster care for 450 out of the previous 660 nights, and it was in the best interests of the children that the guardianship be terminated. A combined hearing was held on the petitions for termination of guardianship and the petitions for termination of parental rights of the children's parents, who failed to appear. At the hearing, various social workers of Burleigh County Social Services, including Sharon Dockter, testified on behalf of the State. R.P. and J.P. and several of the children also testified.

[¶3] After the hearing, the judicial referee granted the petitions terminating J.P. and R.P.'s guardianship, as well as the parental rights. Specifically, as is pertinent to this appeal, the judicial referee found 1) the children had been in foster care since May 18, 2011; 2) the children were deprived and the causes of deprivation are likely to continue, and the children are suffering or will probably suffer serious physical, mental, or emotional harm; 3) the affidavits of Sharon Dockter list the reasons the children are deprived, the reasonable efforts made, and the reasons the deprivation is likely to continue; and, 4) termination of the guardianship is in the children's best interests. R.P. and J.P. requested review of the judicial referee's findings regarding the termination of their guardianship under N.D. S.Ct. Admin. R. 13. After reviewing the matter, the district court, acting as the juvenile court, adopted the judicial referee's findings, and also adopted and incorporated the best interests of the child analysis from the State's post-hearing brief as its own findings.

[¶4] On appeal, R.P. and J.P. argue they have proven, by a preponderance of the evidence, that it is in the children's best interests to continue the guardianship.

II

[¶5] We do not set aside a juvenile court's findings of fact unless clearly erroneous. In re T.T., 2004 ND 138, ¶ 5, 681 N.W.2d 779. " A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law." Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256. " 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." In re B.B., 2010 ND 9, ¶ 5, 777 N.W.2d 350 (citation omitted) (quotation marks omitted). Further, we give due regard to the juvenile court's opportunity to judge the credibility of the witnesses. N.D.R.Civ.P. 52(a)(6).

[¶6] Under N.D.C.C. § 27-20-48.4(2), " [a]ny party to the proceeding in which the child's status was adjudicated,

Page 370

the director, or the child, . . . may petition for removal of a guardian on the grounds that the removal would be in the best interest of the child." The best interests factors of N.D.C.C. § 14-09-06.2(1) are applied in guardianship proceedings. In re Guardianship of Barros, 2005 ND 122, ¶ 4, 701 N.W.2d 402. The burden of proof is on the guardian to establish, by a preponderance of the evidence, that the guardianship should continue. Id. at ¶ 19.

[¶7] " The findings and order of the judicial referee have the effect of the findings and order of the district court until superseded by a written order of a district court judge." N.D. S.Ct. Admin. R. 13, § 10(a). A district court judge, acting as the juvenile court, must review the judicial referee's decision de novo. Interest of J.A.H., 2014 ND 196, ¶ 9, 855 N.W.2d 394; Interest of B.F., 2009 ND 53, ¶ 12, 764 N.W.2d 170; N.D. S.Ct. Admin. R. 13, § 11(b). " The juvenile court judge is given the ultimate ...


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