State v. Gress
2011 ND 193
| N.D. | 2011Background
- R.G. was placed on criminal probation in 2003; probation revoked in 2009 and he received a three-year prison term.
- In Sep 2009, four of R.G.'s children, all under age four, were taken into protective custody after their mother left them with relatives and did not return.
- In May 2010, the State petitioned to terminate parental rights; the juvenile court terminated the mother's rights and found deprivation as to R.G. but did not terminate his rights at that time.
- The court noted R.G. expected to be paroled in Jan 2011 to a halfway house, with release contingent on completing a drug and alcohol program.
- In Dec 2010, the State filed a second petition to terminate R.G.'s parental rights, alleging the children had been in state custody for 15 of the last 22 months and citing ongoing uncertainty about reunification.
- A judicial referee terminated R.G.’s parental rights, explaining that R.G.’s delayed release and lack of certainty about reunification, combined with deprivation and time in foster care, supported termination under NDCC § 27-20-44(1)(c)(2). The juvenile court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deprivation plus time in state custody supports termination | R.G. argues the evidence does not justify termination under 27-20-44(1)(c)(2). | State contends deprivation plus 450 of 660 nights in care meets termination criteria. | Yes; evidence supports termination under 27-20-44(1)(c)(2). |
| Whether the juvenile court abused its discretion in terminating rights | R.G. asserts termination was arbitrary or unjust given reunification prospects. | State argues continued foster care harms children and termination serves best interests. | No; court did not abuse discretion. |
| Whether the state was required to terminate under this provision or could choose disposition | R.G. claims court should have pursued disposition rather than termination. | State contends discretionary termination is available when criteria are met. | Discretionary termination available when criteria are met. |
Key Cases Cited
- In re F.F., 2006 ND 47 (ND) (recognizes 450/660 nights framework as discretionary, not mandatory, and discusses termination vs. disposition)
- In re K.B., 2011 ND 152 (ND) (confirms termination requires clear and convincing evidence under §27-20-44(1)(c)(2))
- In re L.J., 2007 ND 74 (ND) (summarily affirms termination under long custody duration provisions)
- In re D.C.S.H.C., 2007 ND 102 (ND) (abuse of discretion standard in juvenile termination proceedings)