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In re K.S.D.

Supreme Court of North Dakota

December 7, 2017

Interest of K.S.D., a child Jacqueline A. Gaddie, Assistant State's Attorney, Petitioner and Appellee
v.
K.S.D., child; H.L.K., mother; Christopher D. Jones, the Executive Director of the North Dakota Department of Human Services, Respondents and R.W.D., father, Respondent and Appellant Interest of J.S.D., a child Comment Comment Jacqueline A. Gaddie, Assistant State's Attorney, Petitioner and Appellee
v.
J.S.D., child; H.L.K., mother; Christopher D. Jones, the Executive Director of the North Dakota Department of Human Services, Respondents and R.W.D., father,

         Appeal from the Juvenile Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge. REMANDED.

          Jacqueline A. Gaddie, Assistant State's Attorney, Grand Forks, N.D., petitioner and appellee; submitted on brief.

          Megan J.K. Essig, Grand Forks, N.D., for respondent and appellant; submitted on brief.

          OPINION

          Stacy J. Louser, District Court Judge.

         [¶1] R.W.D. appeals from a juvenile court order terminating his parental rights to his two children, K.S.D. and J.S.D. We conclude clear and convincing evidence establishes that the children are deprived, the deprivation is likely to continue, and the children have been in foster care at least 450 of the previous 660 nights. We also conclude active efforts to prevent the breakup of this Indian family were made and those efforts have been unsuccessful. However, we conclude there is nothing in the record to satisfy the Indian Child Welfare Act ("ICWA") requirement of evidence beyond a reasonable doubt, including testimony of a qualified expert witness, that continued custody by the parents would likely result in serious emotional or physical damage to the children. We retain jurisdiction and remand for testimony from an ICWA qualified expert witness.

         I

         [¶2] H.L.K. (mother) and R.W.D. (father) are the parents of K.S.D., born in 2009, and J.S.D., born in 2010. The family has been involved with Grand Forks County Social Services ("GFCSS") since October 2010. The children have been in foster care approximately half their lives. In June 2017, GFCSS filed a petition to terminate the mother's and the father's parental rights. The mother consented to termination, and the father's parental rights were involuntarily terminated by the juvenile court.

         II

         [¶3] The father asserts the evidence is insufficient to support a termination of his parental rights.

         [¶4] This Court reviews "the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." N.D.C.C. § 27-20-56. The juvenile court's decision will not be reversed on appeal unless the findings of fact are clearly erroneous under N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Interest of K.J., 2010 ND 46, ¶ 5, 779 N.W.2d 635.

         [¶5] Under N.D.R.Civ.P. 52(a), this Court does not re-weigh conflicting evidence, and gives due regard to the trial court's opportunity to judge the credibility of witnesses. See Interest of J.S.L., 2009 ND 43, ¶ 12, 763 N.W.2d 783; Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144. "A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court." Brandt, at ¶ 12. The court's findings should provide "sufficient specificity to enable a reviewing court to understand the factual basis for the trial court's decision." Id.

         [¶6] When Indian children are involved in proceedings such as this, state and federal law create a dual burden of proof for the party seeking termination of parental rights. In addition to proving deprivation under state law by clear and convincing evidence, the state must prove beyond a reasonable doubt that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f); see Matter of Bluebird, 411 S.E.2d 820, 823 ( N.C. Ct. App. 1992). Below, we separately consider the state and federal law based elements of this termination proceeding.

         A

         [¶7] Under North Dakota law, the juvenile court may terminate parental rights if: (1) the child is deprived; (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. N.D.C.C. § 27-20-44(1)(c); In re C.R., 1999 ND 221, ¶ 4, 602 N.W.2d 520. "The party seeking parental termination must prove all elements by clear and convincing evidence." Id.

         [¶8] Here, the juvenile court found GFCSS first had contact with the family in October 2010 in response to concerns of excessive alcohol use by the mother and father at Altru Hospital, following the premature birth of J.S.D. Following investigation of the incident, GFCSS made a finding of "services recommended, " including a determination that the children were at "high risk." GFCSS made the high-risk determination based on the age of the children, the parents' substance abuse and legal issues, housing instability, relationship problems between the parents, and overall caring for the children.

         [¶9] GFCSS implemented a safety plan which included a prohibition of the father supervising the children alone because he was unable to do so safely. Specifically, the father was not to hold J.S.D. because the father's history of alcohol abuse resulted in seizures.

         [¶10] The family's second contact with GFCSS was in January 2011 after receiving a report of suspected child abuse and neglect. During a home check, a GFCSS social worker discovered that the father had been the caregiver to the children all day, which was outside of the safety plan. When the social worker arrived, the father was intoxicated to the point he could barely walk and his speech was slurred. This investigation resulted in a finding of "services required" based on a determination of physical neglect and maltreatment of vulnerable children. GFCSS subsequently provided the family with extensive services for problems related to domestic violence, alcohol and drug use, parenting, child's needs, stability, and employment.

         [¶11] Shortly after the second contact with GFCSS, the father was incarcerated for physically assaulting the mother. The children were present during the assault, and K.S.D. is fearful of the father as a result. J.S.D. has no memory of the incident. The father had minimal contact with the children from February 2011 until November 2013. During this time, there were several reported incidents involving lack of supervision and exposure to drug paraphernalia while the children were in the care of the mother. In November 2013, the children were removed from the home because of the mother's continued drug use. Since then, ...


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