In the Matter of C.D.G.E.
A.P., Respondent J.E., Petitioner and Appellant
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
Suzanne M. Schweigert, for petitioner and appellant.
respondent; no appearance.
1] J.E. appeals a district court order denying his petition
to terminate A.P.'s parental rights to their child,
C.D.G.E. We affirm, concluding the district court did not
abuse its discretion by denying the petition where it was not
established that denying the petition would seriously affect
the child's welfare.
2] C.D.G.E. was born in 2010. Since 2014, J.E. has had
primary residential responsibility of the child. A.P. is
obligated to pay monthly child support payments. Because she
is currently in arrears, she is prevented from obtaining a
3] J.E. petitioned the district court to terminate A.P.'s
parental rights. With his petition, he submitted an affidavit
from A.P. in which she consented to terminating her parental
rights. The petition referenced N.D.C.C. § 14-15-19,
which applies only "in connection with an adoption
action, " which was never contemplated here. All further
proceedings, including J.E.'s proposed default order,
J.E.'s argument at the hearing on the petition, and
motion to reconsider, were considered by the parties and the
district court under N.D.C.C. § 27-20-45, which governs
termination of parental rights where no adoption is pending.
At the parental-termination hearing, J.E. argued that A.P.
had both (1) abandoned her child and (2) consented to
terminating her parental rights. The district court denied
the petition without finding on the record whether A.P. had
abandoned the child. In denying J.E.'s petition, the
district court found that A.P. had not validly consented to
terminating her parental rights. Ultimately, the district
court denied the father's petition, concluding the
child's welfare would not be served by terminating
A.P.'s parental rights.
4] We begin with the text of N.D.C.C. § 27-20-44, which
provides: "The court by order may terminate the parental
rights of a parent with respect to the parent's child if
[t]he parent has abandoned the child... or... written consent
of the parent acknowledged before the court has been
given." The petitioner must establish his allegations in
support of parental-rights termination by clear and
convincing evidence. In re J.C., 2007 ND 111, ¶
12, 736 N.W.2d 451 (citing Santosky v. Kramer, 455
U.S. 745, 769 (1982)). Only if this elevated standard of
proof is met does the district court have discretion under
the statute to consider whether termination of parental
rights would promote the child's welfare. Adoption of
K.S.H., 442 N.W.2d 417, 420 - 21 (N.D. 1989) ("The
statute uses the word 'may' which as ordinarily
understood in a statute is permissive rather than mandatory
and operates to confer discretion."). "The primary
purpose of the Uniform Juvenile Court Act is to protect the
welfare of the child and, thus, the best interest of the
child is one factor to be considered in determining the
necessity of terminating parental rights." Interest
of D.S., 325 N.W.2d 654, 659 (N.D. 1982). A district
court's discretion under the statute is not unlimited.
For example, if the evidence establishes that denying a
petition to terminate parental rights "would seriously
affect [the children's] emotional well being, " the
district court would err if it denied the petition.
Interest of D.R., 525 N.W.2d 672, 674 (N.D. 1994).
5] On appeal, J.E. argues that the district court clearly
erred in failing to find both abandonment of their child and
consent to termination of A.P.'s parental rights.
Although the district court failed to make a finding on
abandonment, it found A.P. did not consent to terminating her
parental rights. We first address whether the district court
erred by finding A.P. did not consent to terminating her
parental rights. Only if there was consent do we determine
whether the district court abused its discretion in denying
6] A district court may terminate parental rights if the
parent gives "written consent." N.D.C.C. §
27-20-44(1)(d). Whether there was written consent is a
finding of fact. The district court found there was not valid
consent. "A finding of fact is clearly erroneous if it
is induced by an erroneous view of the law, there is no
evidence to support it, or if we are left with a definite and
firm conviction a mistake has been made." In re
G.R., 2014 ND 32, ¶ 6, 842 N.W.2d 882. The district
court had two reasons for finding the mother did not consent
to terminating her parental rights. First, it found the
record failed to establish the mother was advised that
counsel would be provided to her if she could not afford to
hire an attorney. Second, it found the mother probably would
not have consented had she known she would have had "an
ongoing obligation to support the child."
7] We are convinced that the district court's finding
that A.P. did not validly consent was clearly erroneous.
First, the record reflects that she waived her right to legal
counsel. Her written-consent affidavit stated she knew she
had "the right to legal counsel" and had "been
advised as such." At the hearing, she affirmed she had
signed the written-consent affidavit. Although she did not
expressly state that she understood she could apply for
appointed counsel, an express acknowledgment of this is not
required to support the signed, written consent she
acknowledged on the ...