Interest of K.S.D., a child Jacqueline A. Gaddie, Assistant State's Attorney, Petitioner and Appellee
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
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,
from the Juvenile Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Jon J. Jensen,
Jacqueline A. Gaddie, Assistant State's Attorney, Grand
Forks, N.D., petitioner and appellee; submitted on brief.
J.K. Essig, Grand Forks, N.D., for respondent and appellant;
submitted on brief.
J. Louser, District Court Judge.
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.
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.
The father asserts the evidence is insufficient to support a
termination of his parental rights.
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.
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
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.
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.
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.
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.
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.
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, ...