In the Interest of R. H., D. D. H., M. L. H. and N. N. H., all minors under the age of 14 years. Roland WEISENBURGER, Director of Social Service Board of McIntosh County, North Dakota, Petitioner and Appellee, v. R. H., a minor, D. D. H., a minor, M. L. H., a minor, N. N. H., a minor, Terry Welch, guardian ad litem for said minors, Respondents and Appellees, and R. H. and G. H., natural parents of said minors, Respondents and Appellants.
Civ. No. 9406
Supreme Court of North Dakota
February 2, 1978
262 N.W.2d 719
PEDERSON, Justice.
B. E. Kretschmar, State‘s Atty., Ashley, for petitioner аnd appellee.
PEDERSON, Justice.
This is an appeal by the parents from a juvenile court order dated July 20, 1977, which found, as a fact, that each of their four children is deprived, and terminated all parental rights. After the broad review contemplated by
Issues for our consideration are:
(1) Whether a previous order dated April 27, 1977, not appealed, finding that the four children are deprived, is res judicata on that question.
(2) Whether the record in this case supports, by clear and convincing evidence, the finding that the four children are deprived.
(3) If the children are deprived, whether there is clear and convincing evidence in the record of this case that the causes and conditions of the deprivation are likely to continue.
(4) Whether portions of
The record establishes that a hearing was held in the afternoon of July 11, 1977, at which time the court announced that “. . . this is the time and place set by the Court for a continuation of the hearing on the petition for the termination of parental rights. . . .” [Emphasis supplied.] No record of any previous hearing on a petition for termination has been supplied to this Court; however, the record on appeal includes numerous documents, some labeled as exhibits, which may have been introduced at a previous proceeding where termination of parental rights was not an issue.
From the argument presented we learn that there had been a number of hearings prior to the July 11 hearing, one of whiсh resulted in an order, dated April 27, finding the four children to be deprived. From the only transcript submitted to us, that of the July 11 hearing, we learn that the petitioner (Director of the Social Service Board) requested that the court take judicial notice of all proceedings which had been had in “this matter prior to this time relative to the [four H children].” Objection was raised and the court reserved a ruling. Thereafter, at the conclusion of the petitioner‘s evidence, the motion was renewed with a specific request that the testimony of one Dr. Fleck be afforded judicial notice. The court stated that it would determine at which of the prior hearings Dr. Fleck‘s testimony was taken and that “if he gave his testimony on the April 15th hearing [the court would] permit his testimony to be mаde part of the record.” There is no record of any testimony taken at an April 15 hearing.
We have said that the burden of transmitting the transcript is the primary responsibility of the appellant and that the appellant cannot shift the burden to an appellee by simply failing to transmit the transcript. State ex rel. Olson v. Nelson, 222 N.W.2d 383, 387 (N.D. 1974). In that same case we said:
“If, however, an appellant makes a good-faith attempt to fulfill his burden [of
transmitting the transcript], the appellee should provide any additional parts of the transcript that he believes necessary.” [Insertion ours.]
In this case counsel for the appellants has contended that:
(1) Judicial notice was not taken pursuant to either request of petitioner;
(2) The entire record is before this Court; and
(3) The record on appeal forwarded by the clerk of the district court contains documents, placed as exhibits in earlier hearings, which have no place in this appeal.
None of these contentions was disputed by the Direсtor of the Social Service Board, who submitted the case on brief. We therefore consider the transcript now before this Court as satisfactory to the parties pursuant to
Because the testimony of Dr. Fleck was not made a part of the record on appeal, there is no way for this Court to consider it. Testimony admitted during a separate proceeding, whеre the termination of parental rights was not at issue, should not be judicially noticed, over objection, in a proceeding where a termination of parental rights is sought. Section
Section
1. Petition dated June 8, 1977, signed by the Director of the McIntosh County Welfare Board, alleging that “each of these children is without proper parental care or control, subsistence, education as required by law, or other care and control necessary for their physical, mental, or emotional health, or morals, and the deprivation is not due рrimarily to the lack of financial means of the natural parents,” and praying for “an Order forever terminating all parental rights.”
2. Amendment to Petition dated July 6, 1977, alleging that the children had been taken from their natural parents by order of the court and placed in a foster home in Traill County, and alleging that it was observed that the children had “black and blue marks,” mouth and eye swollen, and one was discovered later to have “a fracture of the left femoral shaft and oblique fracture of mid third of the left femoral shaft.”
3. Transcript of the hearing held on July 11.
5. Findings of Fact and Order of Disposition dated July 20.
6. Notice of Appeal from that Order.
7. Findings of Fact and Order of Disposition dated April 27.
Before parental rights may be terminated, three separate and distinct findings must be made: (1) that the child is a deprived child as that term is defined in
A deprived child is one who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of his parents, guardian, or other custodian.” Sectiоn
1.
Is the order of April 27 res judicata on the question of deprivation of the children? Petitioner cites Heasley v. Glinz, 142 N.W.2d 606 (N.D. 1966), in support of his position that we may not now review the question of deprivation. This position misapprehends a crucial aspect of
2.
Does the record before us contain clear and convincing evidence in support of a finding that the four children are deprived? The juvenile court‘s findings of fact restate, in statutory language, the definition of deprivation, that is, that each of the children is without (1) proper parental care or control, (2) subsistence, (3) education as required by law, (4) other care or control necessary for physical, mental, or emotional health, or morals, and (5) the deprivation is not due primarily to the lack of financial means of the parents.
Because all of the children were too young to be required to attend school at the time of the July 11 hearing, there is no education required by law. See, generally, Ch.
“In this western country, . . . many a home might have been broken wherе large families were raised by the pioneers in one room cabins of logs or sod, had . . . begrimed faces of children, playing on naked Mother Earth, been the only showing required.” In re Kelber, 51 N.D. 698, 200 N.W. 786, 789 (1924).
It may be correct to state that the conditions of cleanliness of the household initially led to the intervention by the juvenile court and the Social Service Board. Additional clear and convincing еvidence was discovered and introduced which displayed improper care and control of these children, and the effect therefrom upon their physical, mental and emotional health. The efforts by the Social Service Board to provide services to the family went far beyond assistance to improve cleanliness.
The parents here suggest that the stаndard of care required in the raising of children is the “minimum standard of care the community will tolerate,” citing Tamilia, Neglect Proceedings and the Conflict Between Law and Social Work, 9 Duquesne L.Rev. 579 (Summer, 1971); and M. Paulsen, Justice for the Child, “The Delinquency, Neglect & Dependency Jurisdiction of the Juvenile Court,” p. 44 (Rosenheim Ed. 1962).
We said in Interest of R. D. S., 259 N.W.2d 636 (N.D. 1977), that the parents’ efforts must “meet minimum standards of care,” and we now say that those “minimum standards of care which the community will tolerate” is an appropriate exрlanation of the term “proper care.” We cannot agree with contentions that this standard is any less than that of the “proper care” required by
The evidence, when considered cumulatively, clearly and convincingly establishes deprivation. Lack of “proper care,” as well as lack of minimum standards of care, was proven. We note, in particular, thе following:
1. The two youngest children, both in diapers, suffered from rashes and infections in the genital areas. It is clear from the testimony that this considerably exceeded a diaper rash in severity, and that it resulted from parental inattention.
2. The evidence established a complete lack of discipline in the home. The children‘s uncontrolled behavior resulted in some danger from ordinary household chemicals, from falls, and from each other. It was clearly established that the mother was not capable of exercising the necessary control.
3. Evidence of bruises and the baby‘s broken leg, although inadequate to establish abuse, clearly indicate real hazards or dangers to the children while in the parents’ care. One incident involved injury of one child by another, in the presence of both parents, with no effort being made to intervene.
4. The problems of the oldest child, having been diagnosed as involving childhood schizophrenia, were attributed in part to environmental factors. The evidence indicates that this child had not received adequate training in the basic skills of self care.
5. The homemaker, whose duty it was to аssist and teach the parents in the areas where they lacked the necessary ability to perform parental duties, reported parental inability to properly pick up a child and to bathe a child and failure to adequately interact with the children.
We find that deprivation was established by clear and convincing evidence. The degree
We deem it necessary to comment on an argument presented in behalf of the parents that, where mental illness is indicated, it would be more appropriate that a mental health commitment to the state hospital be sought pursuant to Ch.
3.
Is the evidence clеar and convincing that the causes and conditions of the deprivation are likely to continue? We think that it is not. We have referred to the problems which we encountered in examining the documents transmitted to this Court for this appeal, and we have identified those documents which comprise the record. It is quite obvious that evidence relating to the likelihood of the continuance of deprivation was not introduced at the hearing of July 11 (which is, quite properly, the only hearing for which we have a transcript) because the petitioner relied upon his motion requesting judicial notice to supply that evidence. Essential differences exist between termination proceedings and juvenile court proceedings where a termination of рarental rights is not sought. See
4.
Is
5.
Because we deem it necessary to remand this case for further consideration, we find it appropriate to comment on other matters and contentions raised. The parents cite a number of cases where social service agencies have tried, over substantial periods of time, to help parents provide an adequate environment for their children and then, only after many failures, have sought the termination of parental rights or of parental custody. Specifically mentioned were Interest of R. D. S., 259 N.W.2d 636 (N.D. 1977), where efforts were made for at least five years; In Interest of R. L. D., 253 N.W.2d 870 (N.D. 1977), eighteen months; Bjerke v. D. T., 248 N.W.2d 808 (N.D. 1976), eight months; In re J. V., 185 N.W.2d 487 (N.D. 1971), thirty months; and Welfare of
Finally, we think it appropriate to comment on the practice of appointing a social service employee as guardian ad litem. We believe it to be ill-advised. The practice is prohibited by statute when the social service agency is the petitioner in the matter. Sectiоn
“A party to a proceeding or his employee or representative shall not be appointed.”
The order of the juvenile court terminating the parental rights to the four H children under
ERICKSTAD, C. J., and PAULSON, VOGEL and SAND, JJ., concur.