982 N.W.2d 851
N.D.2022Background:
- T.K. (mother) petitioned in Sept. 2021 to terminate D.D.G.’s (father) parental rights for abandonment as to three children (born 2008, 2009, 2014).
- Mother alleged father had history of drug use and domestic abuse, had limited visits (one in 2019, one in 2020), no contact with two younger children for years, and provided no financial support.
- At evidentiary hearing both parents and relatives testified; father admitted limited contact, said he stayed away at mother’s request, offered means for contact that mother rejected, and had not paid support but initiated child-support paperwork.
- District court found father loves the children, stayed away to avoid conflict at mother’s request, did not intend to abandon them, and there was not clear and convincing evidence of abandonment.
- Mother moved for a new trial citing insufficient evidence and newly discovered evidence (an April 2022 arrest). The district court denied the motion, finding the new evidence would not change the outcome and that mother contributed to the lack of contact.
- Supreme Court of North Dakota affirmed both the denial of termination and denial of the new-trial motion.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether father abandoned the children warranting termination under N.D.C.C. § 27-20.3-20(1)(a) | T.K.: Clear and convincing evidence of abandonment—lack of communication, no support, prior abuse, minimal visits | D.D.G.: He stayed away because mother forbade contact; he offered ways to communicate; loves children and did not intend to abandon | Court: No clear and convincing evidence of abandonment; denial of termination affirmed |
| Whether denial of a new trial was an abuse of discretion based on alleged newly discovered evidence (April 2022 arrest) | T.K.: Arrest shows ongoing criminality that would justify termination; original decision lacked evidentiary support | D.D.G.: New charges would not change findings; mother prevented contact; no basis for new trial | Court: No abuse of discretion; new evidence would not have changed outcome; denial affirmed |
Key Cases Cited
- In re C.A.R., 950 N.W.2d 186 (N.D. 2020) (standard for termination: clear and convincing proof and factors for abandonment)
- In re Adoption of I.R.R., 839 N.W.2d 846 (N.D. 2013) (factors to evaluate parental abandonment and duties)
- B.L.L. v. W.D.C., 750 N.W.2d 466 (N.D. 2008) (intent to abandon may be inferred from conduct)
- In re R.M.B., 402 N.W.2d 912 (N.D. 1987) (intent to abandon can be inferred from actions)
- In re C.D.G.E., 889 N.W.2d 863 (N.D. 2017) (court has discretion under permissive "may" termination language; denial not abuse absent harm to child)
- In re D.R., 525 N.W.2d 672 (N.D. 1994) (denying termination may be error where denial seriously affects child welfare)
- Lessard v. Johnson, 936 N.W.2d 528 (N.D. 2019) (standard for abuse of discretion on motion for new trial)