Court: North Dakota Supreme Court; October 15, 2002; North Dakota; State Supreme Court
T.S. Tammy appealed the termination of her parental rights to her children, K.S. Ken and A.S. Allen. The court found clear and convincing evidence that the children are deprived due to Tammy’s alcoholism and drug abuse, alongside the abusive environment created by her ex-husband, Kip. The children were removed from Tammy’s custody in October 2000 after she was found intoxicated and unconscious. In the subsequent hearings, Tammy admitted to the deprivation and surrendered custody. Despite numerous rehabilitation attempts, Stark County Social Services filed for termination of parental rights in July 2001, which Kip did not contest, supporting the termination for adoption purposes. Tammy did contest the petition, but the juvenile court ultimately terminated both parents' rights, concluding that the deprivation conditions would likely persist and that the children would suffer serious harm if not removed. On appeal, the court affirmed the juvenile court’s decision, emphasizing the requirement of clear and convincing evidence for termination under N.D.C.C. 27-20-44(l)(b)(l). The appellate review gave deference to the juvenile court's findings, recognizing its opportunity to assess the witnesses directly.
To terminate parental rights, the court must establish that the child is deprived, as defined in N.D.C.C. 27-20-02(8)(a), meaning the child lacks adequate parental care, education, or necessary support for health and morals, without such deprivation being primarily due to the parents' financial situation. At a November 2000 hearing, Tammy acknowledged the children's deprivation and voluntarily surrendered temporary custody to social services. During the October 2001 termination hearing, the juvenile court reviewed prior findings from the November 2000 proceedings, which confirmed the children's deprived status and custody removal from the parents. The court determined that previous orders do not prevent subsequent findings of deprivation in parental rights termination proceedings. Although judicial notice of prior orders is permissible, the November 2000 temporary custody ruling alone does not suffice as clear and convincing evidence of deprivation for terminating parental rights. Findings from the termination hearing revealed that Kip admitted he could not care for the children, and Tammy was also unable to provide proper care, independent of financial means. The appellate review of the termination order focuses solely on the evidence presented during the termination hearing, with any nonprejudicial errors by the lower court considered harmless and not grounds for reversal, provided that clear and convincing evidence supports the decision.
Considerable evidence presented at the termination hearing supported the juvenile court's determination that the boys are deprived children. Foster parent Annie Pikarski, who runs a therapeutic foster home, testified about the severe emotional, psychological, and physical abuse the boys endured prior to their placement. Ken, at three and a half years old, exhibited the physical and emotional development of an infant, showing signs of self-mutilation and extreme fear, particularly of being left alone. Allen presented as malnourished, with severe emotional delays and a fearful demeanor.
Licensed clinical psychologist Dr. Diedra Duchock evaluated the boys, diagnosing both with severe post-traumatic stress disorder (PTSD) stemming from significant trauma, including violence, neglect, and lack of basic care in their previous home. She described Ken as highly agitated and fearful, while Allen was emotionally delayed and also extremely frightened. Dr. Duchock recommended that contact with their biological mother, Tammy, be suspended due to the trauma it caused the boys.
The juvenile court concluded that there is clear and convincing evidence that Ken and Allen are deprived children and that the conditions causing their deprivation are likely to persist. Tammy contested this finding on appeal, arguing that there was insufficient evidence to suggest the deprivation would continue.
To terminate parental rights due to deprivation, it is necessary to provide prognostic evidence indicating that the deprivation is likely to continue unremedied; historical evidence alone is insufficient. Prognostic evidence must show that the parent is currently unable to provide adequate care for the child, even with assistance from social services, and that this inability will persist long enough to hinder the child's successful integration into a new family. A lack of cooperation from the parent is significant in assessing the potential for ongoing deprivation.
Tammy has struggled with alcohol addiction since her teenage years and acknowledged her alcoholism in 1998. However, she has repeatedly failed to engage in treatment programs necessary for recovery, often prioritizing relationships with men who exacerbate her drinking issues. Her relationships have been marked by abuse, and she has experienced significant instability, moving between nine residences over two years, even attempting suicide at one point.
Tammy's attempts to seek help have been inadequate. During a scheduled intake interview for addiction services in November 2000, she arrived intoxicated and expressed a preference to stay with her boyfriend rather than seek treatment. Although she briefly enrolled in day treatment programs, she did not complete them or follow up with necessary counseling. Evidence indicates that she continued to abuse alcohol through the summer of 2001, raising concerns about her ability to provide a stable and nurturing environment for her children.
Corinne Karlin, a licensed addiction counselor, has been Tammy's case manager since August 1999 and testified that Tammy has not made significant progress in overcoming her alcohol addiction due to her failure to complete treatment and aftercare programs. Despite agreeing to participate in individual aftercare and co-dependency group sessions after finishing a day treatment program in March 2001, Tammy failed to follow through. Karlin indicated that Tammy's prognosis for recovery is very poor.
Terry L. Welch, appointed as guardian ad litem for Tammy's children, recommended the termination of Tammy and Kip's parental rights in his August 19, 2001 report. He noted that since engaging with the court in 2000, Tammy has not made a genuine effort to achieve sobriety or maintain contact with her children. Her alcohol addiction, coupled with disabilities including spinal damage, brain damage, and slight paralysis, has hindered her ability to meet her children's emotional and physical needs.
The evidence presented indicates a clear and convincing pattern of Tammy's inability to provide minimally adequate care for her children, Ken and Allen. Numerous failed attempts to address her addiction and lack of cooperation with social services underscore a poor prognosis for her parenting capabilities. The courts recognize that if a parent cannot successfully engage in treatment in a timely manner, children cannot remain in a state of uncertainty between foster care and the need for permanent placement. It is emphasized that a mere desire to improve is insufficient when the mental and physical health of children is at stake.
Tammy has been provided ample opportunities to address her addictions, improve her parenting skills, and create a safe environment for her children but has consistently failed to do so. Although she completed a day treatment program for alcohol addiction, she neglected to participate in aftercare and counseling, contributing to her ongoing alcohol abuse. Tammy has not attended parenting or educational classes and has not made significant improvements in her living situation or parenting capabilities, which prevents her from providing adequate care for her children.
The trial court determined that the causes of deprivation for her children, Ken and Allen, are likely to persist due to Tammy's lack of meaningful engagement in treatment for her alcoholism, her involvement with unstable and abusive partners, frequent relocations, and insufficient cooperation with social services. The court found clear and convincing evidence that the children's deprivation conditions are unlikely to be remedied.
For parental rights termination, it is necessary to demonstrate that parental misconduct results in harm to the children. The trial court concluded that the children have already experienced and will continue to face physical, mental, or emotional harm due to deprivation, including post-traumatic stress disorder. Without a stable and nurturing environment, the children are unable to lead functional lives.
Testimony from their foster mother highlighted the boys’ malnourished state, emotional trauma, and developmental delays upon entering her care, emphasizing the need for gradual developmental support. Expert testimony from Dr. Duchock indicated that the boys have suffered significant emotional damage and developmental retardation, requiring a stable environment, ongoing therapy, and consistent nurturing for at least two more years. The prognosis for Tammy’s ability to parent effectively is deemed very poor, indicating that without intervention, the boys' future well-being is at serious risk.
Tammy has made some efforts to address her alcohol addiction, but significant evidence indicates she continued to abuse alcohol, maintain unhealthy relationships, and neglect her responsibilities, such as not completing parenting courses. Despite recognizing her attempts to improve, the court emphasizes the prolonged deprivation of her children and the severe harm they have suffered. The need for consistent and stable care is critical for the children's well-being, and their current situation is deemed unacceptable, straddling foster care and the need for a permanent home. Clear and convincing evidence demonstrates that the children, Ken and Allen, are deprived not due to financial issues but because of ongoing harmful conditions linked to their parents. The court concludes that if parental rights are not terminated, the boys will continue to experience significant harm. Consequently, the juvenile court's decision to terminate Tammy and Kip's parental rights is affirmed. The judges concur in this ruling, and the parties' names are pseudonyms.
