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In re B.H.

Supreme Court of North Dakota

July 18, 2018

In the Interest of B.H., A Child
v.
B.H., child; C.H., father; and Lisa Borseth, Lay Guardian ad Litem; and Christopher Jones, Executive Director of North Dakota Department of Human Services, Respondents Leslie Johnson, L.S.W., Cass County Social Services, Petitioner and Appellant and S.H., mother, Respondent and Appellee

          Appeal from the Juvenile Court of Cass County, East Central Judicial District, the Honorable Scott A. Griffeth, Judicial Referee.

          Constance L. Cleveland, Fargo, N.D., for petitioner and appellant.

          Jay R. Greenwood, Fargo, N.D., for respondent and appellee.

          OPINION

          Tufte, Justice.

         [¶ 1] Cass County Social Services ("Cass County") appeals a juvenile court order denying termination of parental rights. Because the juvenile court did not abuse its discretion, we affirm.

         I

         [¶ 2] B.H., born in June 2016, is the child of S.H. (mother) and C.H. (father). In July 2016, the juvenile court concluded that B.H. was a deprived child within the meaning of N.D.C.C. § 27-20-02(8); found that B.H. had been subjected to aggravated circumstances pursuant to N.D.C.C. § 27-20-02(3) due to prenatal exposure to methamphetamine; and ordered that B.H. be removed from the custody of the parents for a period of one year. The court also ordered that a treatment plan be developed in an effort to reunite B.H. with his parents. B.H. was returned to the parental home in October 2016.

         [¶ 3] In March 2017, the mother and father tested positive for methamphetamine. B.H. remained in the home because the father intended to vacate the home and the mother committed to re-engage in treatment services. The father, who had pressured the mother to use drugs prior to the March test, left the home, but soon returned. In October 2017, both mother and child tested positive for methamphetamine. The father stated he could not be given a hair follicle test for methamphetamine because he had removed all his hair. B.H. was removed from the home, and Cass County petitioned for termination of both parents' parental rights. After a trial, the juvenile court denied termination of parental rights, stating:

The Court cannot find by clear and convincing evidence that the conditions and causes of deprivation are likely to continue, or will not be remedied as required by N.D.C.C. 27-20-44(l)(c)(1). The respondent [S.H.] has participated in treatment, maintained sobriety, is gainfully employed, and has established stable housing for an extended period of time. If [S.H.] is able to maintain her current sobriety and related improvements, the conditions of deprivation may be abated. At a time proximate to the most recent positive drug screens for [S.H.] and the minor child of the parties [C.H.] has admitted to relapse in his use of methamphetamine. This provides a feasible explanation for the positive drug screens of [S.H.] and the child at least to a level that precludes clear and convincing evidence that deprivation is likely to continue absent termination. This evidence is in conjunction with [C.H.] and [S.H.] no longer residing together.
At present, there are compelling reasons not to seek termination of parental rights, including: [S.H.] and [C.H.] have demonstrated a willingness to engage in chemical dependency treatment, maintain contact with family support networks to ensure monitoring and safety, as well as, demonstrate an ability to maintain periods of sobriety. There is also undisputed testimony of a strong bond between the child and both parents and no apparent deficits in the parents' parenting skills or willingness to care for the child.

         The juvenile court ordered continued removal of B.H. from the custody of his parents for a period of one year.

         II

         [¶ 4] Cass County argues that because the juvenile court found aggravated circumstances, it erred by denying termination of parental rights. Section 27-20-44(1)(b), N.D.C.C., provides, "The court by order may terminate the parental rights of a parent with respect to the parent's child if... [t]he child is subjected to aggravated circumstances as defined under subsection 3 of section 27-20-02." Section 27-20-02(3), N.D.C.C., defines aggravated circumstances, in relevant part, as circumstances in which a parent "[s]ubjects the child to prenatal exposure to chronic or severe use of alcohol or any controlled substance as defined in chapter 19-03.1 in a manner not lawfully prescribed by a practitioner." N.D.C.C. § 27-20-02(3)(g).

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 ...

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