Lead Opinion
[¶ 1] M.H., father of the minor children, appealed the juvenile court’s .April 10, 2000, order granting full placement
I
[¶ 2] M.H. was granted custody of the four minor children on April 26, 1999, because of a significant change of circumstances since the original child custody determination granting custody to D.H., the mother, in 1995. The trial court found the mother had frustrated visitation between the father and the children and had attempted to alienate the children from their father. Stating the court had exhausted remedies available to correct the mother’s misbehavior, and because she had been a stubborn and defiant custodial parent, the court concluded the only option available was to change custody. The court also found in the order dated April 26, 1999, a change in custody to them father was in the best interests of the children. D.H. appealed that order to this Court.
[¶ 3] The physical transfer of the children to the father’s custody occurred on May 3, 1999. The children, who had been living and attending school in Bismarck, moved to live with their father in Dickinson. The children rеsisted the change and expressed their contempt for their father. The children resorted to acting-out behavior such as teasing and taunting the father, damaging walls and furniture in the home, verbally abusing their father, and making threats toward their father. On June 7, 1999, one of the children told a Stark County social wоrker that the father did not care about the kids and that he should smash the father’s head against the wall so they could all go home. On June 21, 1999, and July 8, 1999, similar statements were repeated. On June 7, 1999, one of the other children made suicidal statements which were repeated on June 21, 1999, and July 8,1999.
[¶ 4] On July 12, 1999, the children ran away when the father allowed them to travel to Bismarck to attend the Prairie Rose Games. On July 17, 1999, the children surrendered themselves to the custody of Stark County Social Services.
[¶ 5] The Director of Stark County Social Service Board petitioned the juvenile court for the temporary care, custody and control of each of the children under the authority of N.D.C.C. § 27-20-03(l)(a), because the children were unruly. On September 2, 1999, the juvenile court found the children unruly and gave the Director of Stark County Social Service Board temporary custody of the children. The juvenile court granted аuthority to place the oldest child in any location consistent with her best interests because she would be 18 years old within three months. The juvenile court restricted placement for the three younger children by requiring the director to make his placement decisions within the context of the distriсt court’s April 26, 1999, order and any subsequent changes to that order made by the North Dakota Supreme Court on the appeal of the April 26 order. The September 2, 1999, order by the juvenile court granting temporary custody to the Director of Stark County Social Service Board was not apрealed.
[¶ 6] The oldest child was placed with the mother. The three younger children were placed in foster care in Bismarck. On January 3, 2000, this Court affirmed the district court’s April 26, 1999, order changing custody to the father, however the denial of visitation for the mother for one year, also a part of that order, was reversed.
[¶ 7] The Director of Stark County Social Service Board subsequently petitioned the juvenile court for full placement au
II
[¶ 8] M.H., the father, argues the juvenile court erred in granting full authority for placement to the Director of Stark County Social Service Board. The father also claims the juvenile court has no right to issue an order contravening the divorce order.
[¶ 9] In an appeal from an order of the juvenile court, our review is comparable to a trial de novo in that we may reexamine the evidence. Interest of A.R.,
[¶ 10] The juvenile court has exclusive original jurisdiction over proceedings concerning unruly children. N.D.C.C. § 27 — 20—03(l)(a). The definition of an unruly child includes a child who “[i]s habitually disobedient of the reasonable and lawful commands of the child’s parent, guardian, or other custodian and is ungovernable; or who is willfully in a situation dangerous or injurious to the health, safety, or morals of the child or others” as described in N.D.C.C. § 27 — 20—02(17)(b). The juvenile court found the children to be unruly and each in need of treatment or rehabilitation. This finding was supported by evidence of the children’s specific actions and behavior including verbal abuse of their father, destruction of walls and furniture, physically striking their father, threats, suicidal statements, and running away. On the record in this case, the juvenile court had jurisdiction to grant temporary custody of the unruly сhildren to the Director of Stark County Social Service Board. Notwithstanding the custody provision in the decree of divorce, such authority is necessary in order to effect one of the public purposes of the Uniform Juvenile Court Act, “[t]o provide for the care, protection, аnd wholesome moral, mental, and physical development of children coming within its provisions.” N.D.C.C. § 27-20-01(1).
[¶ 11] The father also argues the juvenile court erred because there was insufficient evidence to establish a significant change of circumstances to warrant a modification of the September 2, 1999, order as required by N.D.C.C. § 27-20-37(2), which states “an order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child.” The juvenile court found the children had not established a relationship with their father. The juvenile сourt also found the children under stress in foster care, there was a possibility of further deterioration,
Ill
[¶ 12] After being given full placement authority, the Director of Stark County Social Service Board, as custodian, had broad discretion with placement as described in N.D.C.C. § 27-20-38:
Rights and duties of legal сustodian. A custodian to whom legal custody has been given by the court under this chapter has the right to the physical custody of the child and the right to determine the nature of the care, placement, and treatment of the child, including ordinary medical care as well as medical or surgical treatment for a serious physical condition or illness which in the opinion of a licensed physician requires prompt treatment, except for any limits the court may impose. The custodian also has the right and duty to provide for the care, protection, training, and education, аnd the physical, mental, and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.
Stark County Social Services had the obligation and right to determine the nature of the care, placement and treatment of the children consistent with their best interests.
[¶ 13] The children’s counselor, Dr. Doppler, testified the children’s relationship with their mother was very positive and she was their primary source of psychological support. In contrast, Dr. Doppler testified the children had never developed a good relationship with their father and now they were contemptuous and negative toward their father. Placement with their father would be problematic. The guardian ad litem report filed March 13, 2000, coincides with this analysis and recommends placement with the mother.
IV
[¶ 14] The father also аrgues the juvenile court erred by denying his motion to change the custodial agency. The record supports the juvenile court’s finding Stark County Social Services made considerable and reasonable efforts to prevent the removal of the children from the father’s home. The Directоr of Stark County Social Service Board referred to the expertise of other social workers in his agency as well as outside agencies and professionals such as Burleigh County Social Services, the Family Safety Center, psychologists from Badlands Human Service Center, and Dr. Doppler. Faced with the evidence of this case, the juvenile court did not err in denying the father’s motion to change the custodial'agency.
[¶ 15] Previous custody proceedings of this family indicate the current situation was directly the fault of the mother, who stubbornly frustrated the children’s visitation with their father in the yеars since the divorce and alienated the children against their father. In McAdams v. McAdams,
[¶ 16] Although the underlying standard in both the juvenile court and the divorce court is the best interests of the child, the divorce court applies that standard only between the two parents. The juvenile court must apply the standard on a broadеr scale which includes giving custody not only to the parents but may include placement with a foster parent or, if the child is found to be delinquent, an institution, or even terminating the parental rights if the juvenile court finds the children to be deprived. N.D.C.C. §§ 27-20-31, 27-20-32, 27-20-44. ■
[¶ 17] The mother’s behavior has poisoned the children’s relatiоnship with their father, a result the court has hoped to prevent. However, action by the court in this case was apparently too little and too late. The damage has been done and the children’s relationship with their father is poisoned by the mother’s actions. We recognize the result of the juvenile court order is to effectively reverse the prior custody order in the amended divorce decree, as affirmed by this Court. This case signals the need for earlier and effective intervention in cases such as this one, with truly egregious examples of one recalcitrant parent frustrating visitation and alienating children against the other parent.
[¶ 18] We are aware the case may be viewed as one in which one party is rewarded for her disobedience to court orders. It may be understood for the present as such a case. However, the futurе of these children, as a result of this disobedience, is clouded. The juvenile court attempted to protect the welfare of the children which is the underlying obligation of the court under the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20. In the Interest of N.W.,
[¶ 19] We affirm the juvenile court’s order granting full placement authority to the Director of Stark County Social Service Board and denying M.H.’s motion to change the custodial agency.
Notes
. We do not cite the prior case appealing the divorce order because this is a proceeding of juvenile court and N.D.C.C. § 27-20-56(1) states thе names of the children may not appear on the record on appeal.
Dissenting Opinion
dissenting.
[¶ 22] ‘We hold a parent who willfully alienates a child from the other parent may not be awarded custody based on that alienation.” McAdams v. McAdams,
[¶ 23] The majority acknowledges, at ¶ 15, “Previous custody proceedings оf this family indicate the current situation was directly the fault of the mother, who stubbornly frustrated the children’s visitation with their father in the years since the divorce and alienated the children against their father.”
[¶ 24] Here the majority, ignoring our case law, affirms de facto custody to the mother, while acknowledging, at ¶ 18, that “the future of these children, as a result of [the mother’s conduct], is clouded.”
[¶ 25] This toxic situation has been created by the mother’s injection of her
[¶ 26] I would reverse.
[¶ 27] Dale V. Sandstrom