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In re C.D.G.E.

Supreme Court of North Dakota

February 16, 2017

In the Matter of C.D.G.E.
A.P., Respondent J.E., Petitioner and Appellant

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

          Suzanne M. Schweigert, for petitioner and appellant.

          A.P., respondent; no appearance.


          TUFTE, JUSTICE

         [¶ 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 driver's license.

         [¶ 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 J.E.'s petition.


         [¶ 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 ...

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