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In re K.S.D.

Supreme Court of North Dakota

April 15, 2019

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

          Appeal from the Juvenile Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

          Jacqueline A. Gaddie, Assistant State's Attorney, Grand Forks, ND, for petitioner and appellee.

          Kiara C. Kraus-Parr, Grand Forks, ND, for respondent and appellant H.L.K.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] H.L.K., now known as H.G., appeals from an order denying her motion to withdraw her consent to terminate her parental rights to her children K.S.D. and J.S.D. We affirm, concluding H.G.'s motion to withdraw her consent was untimely under N.D.C.C. § 27-20-45(6).

         I

         [¶2] H.G. (mother) and R.W.D. (father), are the parents of the minor children K.S.D. and J.S.D. The family has been involved with Grand Forks County Social Services (GFCSS) since October 2010. In 2017, GFCSS petitioned to terminate the parents' parental rights. After a hearing on May 22, 2017, the mother signed a "consent to termination of parental rights" for both children. The juvenile court also signed the consent and included a statement, stating, "Before me appeared [H.G.], and acknowledged her consent to the termination of parental rights with respect to [K.S.D. and J.S.D.], children."

         [¶3] The father did not consent to termination of his parental rights and a trial was held for involuntary termination of his rights. On June 19, 2017, the juvenile court entered an order terminating the mother's and father's parental rights to both children. The court found the mother executed consent to the termination of her parental rights, she was questioned about the consent by the court, the court acknowledged her consent, and she did not participate in subsequent proceedings. The court also found proof beyond a reasonable doubt established the father's parental rights should be terminated, the children were deprived, the deprivation was likely to continue, the children were suffering or would probably suffer harm, the children had been in foster care for at least 450 of the previous 660 nights, and active efforts were made to prevent the breakup of the family. The court terminated the mother's and father's parental rights to both children. Judgment consistent with the court's order was entered on June 28, 2017.

         [¶4] The father filed a notice of appeal on July 19, 2017. On appeal, this Court held clear and convincing evidence established the children were deprived, the deprivation was likely to continue, the children had been in foster care at least 450 of the previous 660 nights, and active efforts to prevent the breakup of the family were made and were unsuccessful. See In re K.S.D., 2017 ND 289, ¶ 1, 904 N.W.2d 479. However, we retained jurisdiction and remanded for testimony from a qualified expert witness and findings required under the Indian Child Welfare Act. Id. A hearing was held on the issues remanded to the juvenile court, and the court made the required findings and ordered the father's parental rights be terminated. This Court affirmed the juvenile court's decision on May 7, 2018. See In re K.S.D., 2018 ND 103, 910 N.W.2d 834.

         [¶5] While the father's appeal was pending, the mother sent the juvenile court a letter, which was filed on February 9, 2018, stating that she wanted to appeal the voluntary termination of her parental rights. On April 20, 2018, the mother moved to withdraw her consent to terminate parental rights, arguing the children had not been adopted, it was in their best interests that the consent be withdrawn, and they should be returned to her custody. On May 9, 2018, the juvenile court denied the mother's motion to withdraw her consent, concluding it did not have jurisdiction to hear the mother's motion because the father's appeal was pending before this Court.

         [¶6] On May 18, 2018, the mother again moved to withdraw her consent to terminate parental rights. She argued withdrawing her consent was in the children's best interests, the children had not been adopted, and they should be returned to her custody. The State opposed the motion.

         [¶7] On June 21, 2018, the juvenile court denied the mother's motion. The court found the mother consented to termination of her parental rights and she failed to establish her consent was statutorily deficient. The court concluded the mother's motion was untimely under N.D.C.C. § 27-20-45(6) because she did not move to withdraw her consent within thirty days after the order terminating her parental rights was issued. The court also concluded the mother failed to establish her consent was obtained by fraud or coercion.

         II

         [¶8] The mother argues the juvenile court erred by denying her motion to withdraw her consent. She contends the court clearly erred in finding she consented to terminate her parental rights under N.D.C.C. § 27-20-44(d), her motion ...


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