McGurren v. S.T.

McGURREN, D. Thomas Plaintiff Appellant,

v. al., Respondents Appellees. et

S.T.

Civ. No. 9191. Court of North

Supreme Dakota.

May 1976. Morris,

Gregory D. Bismarck, for appellee S. T.

SAND, Judge. This is appeal from the order of the Juvenile Court of Burleigh County dismiss- ing the petition MeGurren, of Thomas D. Director of Juvenile Court Services for Bur- leigh County, for termination of the parental rights of the mother of Baby Boy T.

Baby Boy 19, T. was born June 1975. At Baby Boy the time T.’s birth his mother years old was thirteen and unmarried. On Baby Boy the date of T.’s birth the child was Burleigh taken County Social Services, pursuant ato temporary order of juvenile court, placement for in a foster mother, therefore, home. The has never or control of her son. MeGur- petition on ren filed a June 1975, alleg- ing Baby T. was Boy deprived 27-20, Chapter under North Dakota Centu- Code, ry asking juvenile court to parental rights of the mother care, and to transfer the custody, and con- trol of the child to the Executive Director of the Social Board Services of North Dako- ta, or a licensed child-placing agency willing accept for the purpose of placing the infant adoption or in a foster home. hearing petition was set for July 21 and was continued to December which time the court denied the petition for termination of the rights of the Custody Baby mother. Boy T. was con- Burleigh tinued with the County Social until a Services decision could be reached on placement the immediate of the child. The MeGurren, petitioner, has appealed from this order of the dismissing court peti- his tion. contends MeGurren that sufficient evidence exists to find the child was a de- prived Chapter child under 27-20 and to grant petition and that denial petition deprive will the child of right Olson,- John M. Atty., State’s and Robert “pursue happiness and obtain under Article Bennett, P. Atty. (argued), I, Asst. State’s of the Constitution of the State of plaintiff-appellant. North Dakota.” Nodland, Bismarck,

Irvin B. filed During a brief oral argument, peti- counsel for as Guardian ad Litem for Baby Boy T. tioner-appellant argued also in the alterna- fering case should be remanded or will probably tive that suffer serious He with instructions. mental, moral, or emotional constituted argument if then asked harm; was or by him that the record before an admission “c. ...” adequate the relief support us 27-20-02(5), NDCC defines a “de- here and also requested one child” as prived who: responded that he for a He asked court. proper parental without “a. Is care or court had not because remand control, subsistence, education as re- by this court the decision rendered followed by law, or other quired care or con- H., (N.D.1973),and In re necessary for his physical, trol men- give case should remanded health, tal, morals, emotional apply opportunity deprivation is not pri- and the due set out rule of law case. marily to the lack of financial means presented in this case is some- issue guardian, or parents, of his other H., supra, but to that In re what similar custodian; distinguishing are some fac- factually there placed “b. Has been adoption for care or H., adjudged re mother was tors. In In law; in violation of or and was the care and unruly child under “c. Has been abandoned by parents, Also, authority. custody of the State guardian, other custodian.” a had found the child de- juvenile court H., facts is prived child. Neither one of these In re supra, In this court after the instant case. The court in In present in referring North Dakota Uniform Ju Act, re the issue as: H. stated jurisdic venile Court which conferred “ court, court to upon tion May . . . terminate rights, stated: parental evidence indicat- prognostic the basis of inability provide prop- mother’s ing the “Thus, 27-20-44(l)(b) requires that § child, care for her terminate parental er establish three factors evidence before a rights the mother in parental may court terminate the paren- child, the mother has never had where parent. of a rights These tal factors are: her ma- opportunity demonstrate child is 1) ‘deprived a child’with- because the of the ternal abilities purview the Uniform Juvenile county wel- placed in the child had been Act, Chapter 27-20, N.D.C.C.; 2) Court immediately upon board its birth?” fare that the conditions and causes of the dep- likely are rivation to continue or will not 27-20-08, NDCC, states that the Section remedied; 3) that by reason of original juris- has juvenile court exclusive continuous or irremediable these condi- proceedings for the termination diction causes suffering tions and the child is rights, except they where are a parental serious probably will suffer Therefore, adoption proceeding. part of an moral, mental, or emotional harm.” governed are proceedings by the Uni- these Act, 27-20, Chapter Court form Juvenile However, fitness is another factor to be NDCC. a hearing considered and on this factor is constitutionally required. In Kottsick v. 27-20-44, NDCC, states: Carlson, 241 N.W.2d 842 we by court order “1. The said, parent a “the child has a constitu- parent of a re- parental with right to be tional heard on his fitness before child if: to his spect can be deprived of his “a. . child.” rights of the a deprived The child is child and “b. H., appellant supra, in In re finds that the conditions and

the court deprivation the child was not a likely argued “deprived are causes 27-20-02(5)(a) because, or will not be remedied and under § continue child” child is suf- no by though any pa- reason thereof the it had at time received 694 care, had care. always procedure it former

rental trial de novo. The court that it would not limit- stated of fact findings are reviewable without ref a of the stat- so literal construction clearly ed erence to erroneous rule of Rule stated, at 206 N.W.2d 874: ute. 52(a), North Dakota Rules Civil Proce “Therefore, dure, such findings we 27-20- but ap conclude entitled to weight. In N.D.C.C., preciable L., 02(5)(a), should construed so Interest of M. H., 289 (N.D.1976); within its definition 239 N.W.2d In to include re 206 (N.D.1973); N., the child of a mother 871 ‘deprived child’ N.W.2d In re A. who, having opportu- had the (N.D.1972); Z., while never N.W.2d In re J. thereby (N.D.1971). nity to care for her abilities, her maternal demonstrate (de novo) review We therefore anew presently incapable pro- shown to be at produced evidence the hearing. viding for her child. proper The mother was years thirteen old would be consistent construction Such time of the birth Baby Boy T. She lives purpose of the Uniform with the stated (hereinafter with her divorced mother (Ch. 27-20, N.D.C.C.), Act Court Juvenile grandmother) and her sixteen-year old care, protec- provide which is to in a mobile brother home. She a student moral, tion, mental, and wholesome grade. in the seventh development (§ aof child 27-20- physical N.D.C.C.), such since construction The mother does job, not have a steady enable take she has although on occasion earned money pursuant of a child to 27-20- babysitter for as a friends. Her total fi- N.D.C.C., solely upon the basis of suf- to nancial resources amount and a $50 prognostic evidence that the moth- ficient is dependent stereo. on her She mother for providing incapable proper of er would be although she on support, does occasion re- child, care for the without re- parental her money from ceive father. The mother subjected the child be to quiring that an able get claims she will be to money from deprivation actual if she needs it. Welfare custody.” takes The mother attends school from 8:30 a. reasoning is valid and This have grandmother p. m. to m. The 3:30 works as to this case application depending days a four a waitress week from 11:00 a. developed. Nevertheless, that are facts m., p. m. and four evenings to 2:00 or five a be case must decided on own set instant its p. m. to week from 6:00 11:00or p. 12:00 m. ad hoc of facts on an basis. The mother claims that her sister, older who is married and has a child own, juvenile court her The found that it had not willing to care would be for Baby Boy proved convincing clear and T. been evi- she, during day while Baby Boy mother, a is at deprived child, T. is dence 27-20, school. mother would care by Chapter for the as defined NDCC. The evenings. child in She has not partici- court stated that mother has had no pated in social activities display ability provide past to she opportunity to so control, care, expect does not to miss parental anything by caring or subsistence and child. “any failed to show for the She inability State claims enough there is part provide of the mother home for the on the room at child and that will he mental, or emotional stay health in her bedroom with her. child, any forthcoming nor was evidence at home The situation between the moth- any depravity adversely moral which would er child’s grandmother and the is somewhat the child’s interests.” affect grandmother uncertain. The testified that court’s has scope

This review de mother caused some prob- control Chapter cases under 27- cisions lems since birth the child. The NDCC, grandmother is much broader than other believes that the mother court, is equivalent cases tried to the having blames her for the child been taken

695 parent. V., stated that she can be taken from its In re J. grandmother her. from (N.D.1971). should have the 487 the mother 185 N.W.2d think didn’t things for were “a lot of there because Supreme Court, The Minnesota in discuss- being kept besides girl old year a 13 preference, ing parental stated that: How- baby.” of a taking care home settled to cita- require is too well “It it would be best ever, testified also she right parent of a tions that the child because she have did the mother if paramount child is superi- of a otherwise. live with fit to not be would any person; that of that a or to that she believed testified grandmother a presumed fit and suit- mother is caring capable entrusted with the person able help her care for that she baby child; and that burden of of her him. presumption upon this rests disproving in a termination premise The basic challenging Larson, it.” In re person has rights case is that parental 490, 91 N.W.2d Minn. 448 at 453 252 fundamental, his child. right natural (1958). recognized to be of has been right This also, County, Burrien v. 217 See Greene However, this is dimension. constitutional (Va.1975); Priviksma, 854 Tester v. S.E.2d N., In re A. 201 right. an absolute (1975). 367 N.Y.S.2d Misc.2d 629 Z., In re J. (N.D.1972); N.W.2d H., In 206 N.W.2d 871 In re (N.D.1971). refused to terminate the this court strong has noted a Legislature sixteen-year of a old unwed mother guardianships. preference judged unruly child and had been who NDCC, Chap 27-20-01, states that care, custody, protection under the 27-20, NDCC, shall be construed to ter Authority. Youth The court State family in a environ purposes its achieve that sufficient evidence had been found “separating the possible, ment whenever for it to make a presented finding that the necessary only when child from but that the deprived, child was court could public in the interest of welfare or deprivation likely was say not that 27-20-01(3), NDCC. safety.” Section continue, therefore could not and provisions 27-20- Pursuant rights. The court had heard the mother’s Act is to Juvenile Court 01(1), the Uniform counselors and testimony from social work- interpreted to effectuate be construed ability of the mother to ers as purposes: following public child, remanded so that but addi- care, protection, provide “1. To could be received. In the tional evidence moral, mental, physi- and wholesome hand, only the mother of the child at case coming of children with- development cal (grandmother child) and her mother of the provisions; in its presented The State no witnesses testified. testify as to the fitness of the mother to her child. care for Juve- Dakota Uniform Under the North not parents’ rights may Act the Court nile Scarlett, (Iowa In In re 231 N.W.2d 8 that unless it has been shown terminated 1975), Iowa court was faced with a deprived child and child is a H., supra. to that in In re similar problem likely to continue so that deprivation petitioned pa- to terminate the The State mental, serious will suffer child thirteen-year rights of a old unwed rental moral, harm. 27-20- or emotional adjudged had been a delin- who addition, In the “fitness” 44(l)(b), NDCC. and was under the quent is to be considered. finding court. The that delinquent was a child was based proof lies on the mother The burden factors, including glue sniff- re statutory that a number to show petitioner smoking marijuana, and a course ing, met before the child have been quirements 696 begun when she was promiscuity

sexual decision to the court. The old. The court found she was years stated, eleven at page 572: parents. of control of her out completely opinion of the “We are that the state of was evidence from number of wit- There family duplicated McMaster in hun- nesses, workers, doctors, including social dreds of thousands of families, American officers, that mother was probation —transcieney and incapacity, poverty and totally unprepared to take the unsuited instability. witness undoubtedly caring for a child. The responsibility he correct when stated living evidence, court, on this terminated the household McMaster ‘allow mother, that, stating though rights of the child to maximize her potential.’ How- prognostic, of the evidence was “we much ever, we do not believe the legislature happening tragic not await need contemplated that rights could protect Jeremy.” events be terminated because par- the natural Kester, court cited In the Interest of are unable to ents furnish surroundings 107, (Iowa 1975), it 110 where 228 N.W.2d which would enable child to grow up said: as we would desire all children to do. proceeding “A termination is not like a . The best interests the child injury injury action where an personal however, paramount; the courts can- damages proved must be not sever the McMaster’s parental rights The termination statute is recovered. many when thousands of children are be- as well as remedial. The stat- preventive ing under basically raised the same cir- prevent probable action to ute mandates cumstances this child.” harm to children and does not require Adoption In In re of Hyatt, 24 Ariz.App. delay until after harm has been P.2d (1975), 1068 the Arizona done.” said: Blum, also, v. Or.App. See State “The state and its courts should do (1970). P.2d power in everything their to keep the Supreme The North Dakota Court In in together and not family destroy it. . N., re 201 N.W.2d 118 termi- A. If, reason, for some there is difficulty in a nated bat- . . encountered . [social services] stated, The court page tered child case. agencies are available give which can 121: family support the needed preserv- while approve “This court does not a termi- ing unity. its There are many families in effect, is, prospective nation parent is incapacitated which one only possibility If a of a operation. correction living, is but parent one this does not exists, existing an situation it be in justify power the leviathan of the state believe, adjourn we to preferable, the upon away to descend it and snatch hearing temporary under a order of child.” without a placement future termination rehearing, aUpon if the date. conditions The Supreme Massachusetts Court in Pe exist, may still an immediate termination England of tition New Home Little Wan then be made.” derers, 328 N.E.2d 863 (Mass.1975),had however, case, court held that this it consideration a The in under case involving a given would be best the child to terminate the had up who her unborn child relationship immediately. parental for adoption to Home changed and later mind and her wanted returned aft McMaster, (Or. In State v. 486 P.2d 567 er ten months. The court held that the best 1971), Oregon the court refused to termi lay the interests of child in rights the of parental remaining nate in its who had home. The court away present their taken from them be found that also let an neglect, approach cause but refused to mother “took unrealistic her to time, leaving have at that problems them and never worked practical out a by error or allowing granting herself or not implement plans her the termi- way to court stated: nation of mother’s parental rights. the child.” However, because a new requirement1 has support to reaching our conclusion “In this, the hearing added since on finding, point we wish to with been rather judge’s any judgment do not lend affirm approv- that we than emphasis consent for we it would dispensing parental with believe be in further al to justice reasons.” than substantial other interest remand case to with juvenile court instructions di- and however, are, some differences be- There regarding what need be accom- rections case and the in- the Massachusetts tween plished any further hearings stant case. the child, The mother of held. because case, given had never the mother In our (the years State has this tender made her and, additionally, adoption child for up the is entitled point) main ex- its available court, not court, did or the trial counseling parent-and-child pert rela- justifying the termination finding amake obligations, and along with the ramifi- tions ac- court’s rights. responsibilities arising cations and from Thus, contrary. the Massa- to the tion was relationship before any such further hear- distinguishable from readily case is chusetts may question held on the ings be of termi- applicable. and not our situation rights. grand- nating it case law as has From mother, of the immediate because relation- years, developed appears over the it been unit, family should also ship of receive paren grounds for termination counseling as to what her role expert should attitude, con upon rest rights tal must must be. other matters relat duct, ability, and such duties, parent’s responsibilities, ing us, On the record before the State be, child which and and showing urgen made no existing has as are, collectively referred to frequently parental rights. any terminate the At cy to Nevertheless, relationship “fitness.” hearing required the State will be future consisting of a bundle of and child three basic requirements set establish rights necessary for the human essential NDCC, 27-20-44(l)(b), in addition out carefully must society be preservation parent’s paren unfitness before jealously guarded. “best and balanced may be terminated. re We will tal pa termination child” in interest case expert testimony quire this adoption with rights in connection rental obtained, if particularly it is established includes, meaning which on a takes is deprived, the child defined in the things, relationship the total amongst statute, whether or such condition parent pertaining child and between so as cause Baby T. to is irremediable values, heterogeneous rights, involving mental, moral, serious suffer duties, concepts. harm future. emotional We realize meager in this case rather The record prognostic such evidence will some of the evidence primarily and consists speculative, but with the what aid of such grandmother of child. the mother testimony court will expert our is on a though Even review position correctly ap to more better in a basis, may give we nevertheless novo de probabilities, the which is all we proach juvenile weight to the court’s appreciable expect. can mortals findings testimony and its of the evaluation 27-20-48, together a law as matter of with We cannot of fact. NDCC, 27-20-49, provides ap- juvenile committed the court conclude that rights par- 2d which the (Carney), resolved between 1. Kottsick v. Carlson child, particularly Stanley holding and v. ent between an unwed based the Illinois, father his 31 L.Ed. and child. S.Ct. 405 U.S. guardian hrving a and the Without payment the pointment necessary facts or appointment testimony that expenses. such be appropriate, we can- contemplates counsel for any ad litem not with guardian reasonableness state that the guardian in this of the positions This was done case. ad child. litem are enti- the special to tled consideration should be a guardian ad litem filed brief They implemented. are, however, entitled posi in which he this court stated with However, consideration. we to believe that record not He claims that the does tion. guardian the able ad litem will make his part right on the of the State a substantiate again at views known a further hearing or parental rights. the mother’s to such and views will proceeding given be due disagree with this. He not states his doWe consideration. upon information now made position, based The case is remanded with to instructions available, the child that best interests of the juvenile court to enter the judgment on likely by granting served be most would affirming the trial remand court unless the child to custody Burleigh County the State, days ten the remand, within office. is his It Commissioner’s Juvenile writing, petitions juvenile the court for a that position custody such should further hearing on further this matter. In the by requiring an order accompanied proceedings request- event that further are first tender commissioner

juvenile ed and will be the court shall first and, grandmother the baby the to require compliance with the directions set rejected, is the of the child event such offer hereinbefore. out should then make commissioner juvenile No costs party. allowed either placement and as temporary such juvenile by the may be determined commis ERICKSTAD, J.,C. and and PAULSON guardian discretion. The ad in his sioner JJ., PEDERSON, concur. teen argues only that the mother litem subject rules, accordingly is to the and ager VOGEL, (dissenting). Justice dictates, guidance and I affirm district ruling, court If the mother is to grandmother. remain in remanding than rather further proceed- grandmother, if the home of and ings. home, baby to be in that it would be is also grandmother majority opinion abso have states essential that “We as a matter of law lay down the cannot conclude right and entitled lute by court committed error al- regulations manner of rules lowing granting the termination of the Baby grand T. If the rearing child parental rights.” I mother’s agree. That responsibility burden and finds that participation end our should in the case. intolerable, responsibility burden affirm, any gratuitous should without We were custo no less intolerable would be court. directions granted to the natural moth dy of the child Finally, position guardi it is er. only question before the that in event ad litem and counsel was the parental rights court whether to, unwilling grandmother or unable mother should be terminated. The to, accept custody, in the further event only question presented same one placed temporarily were to be in some agreed us. all We are the answer home, rights privileges visitation negative on should be the record us. mother, just as provided should be any interested party petition Since can rights granted by daily courts visitation any court time to reopen the natural whose children have long so case are not ter- from minated, removed them reason reopen been or the can on its own cases, separation divorce motion, point order in in directing I see no the court cases, delinquency holding cases. to consider a new hearing.

Case Details

Case Name: McGurren v. S.T.

Court Name: North Dakota Supreme Court

Date Published: May 12, 1976

Citation: 241 N.W.2d 690

Docket Number: Civ. 9191

Court Abbreviation: N.D.