Court: North Dakota Supreme Court; May 6, 2003; North Dakota; State Supreme Court
S.N. Sarah and K.K. Kevin appeal the termination of their parental rights to their daughters, B.N. Becky and K.K. Kelly, respectively, as determined in a Memorandum Opinion and Findings of Fact issued on August 28 and September 13, 2002. The court finds clear and convincing evidence that the children are deprived, the conditions leading to this deprivation are likely to persist, and the children risk serious harm if parental rights are not terminated. Sarah, the mother of Becky (9) and Kelly (4), has been subject to seven investigations by Burleigh County Social Services, primarily concerning her care of Becky prior to Kelly's birth. The first investigation in March 1994 identified neglect and emotional abuse, leading to recommendations for drug and alcohol evaluations and domestic violence treatment, which Sarah did not pursue. Subsequent investigations revealed ongoing issues, including inadequate supervision, failure to provide basic needs, and concerns about potential sexual abuse. Despite some compliance with recommendations during a fifth investigation—which followed a report of possible sexual abuse of Becky—the identity of the abuser was never confirmed. As a result of these findings, the court affirms the termination of parental rights.
A sixth investigation commenced on April 16, 1998, when Sarah moved her daughter Becky to live with her father and step-mother, Carl and Laura, after Becky witnessed a domestic assault. Sarah indicated this arrangement would last until the end of summer but never returned for Becky, who has since lived with her grandparents for nearly five years. On September 19, 1998, Sarah gave birth to Kelly while living with Kevin, who was later incarcerated multiple times in 1999. A seventh investigation began on December 3, 1999, due to reports of neglect concerning Kelly, leading to recommendations for psychological evaluations for Sarah and Kevin, which they completed.
On December 9, 1999, Kevin was arrested on drug charges while Kelly was present, resulting in his incarceration until January 2001. Following a physical altercation in February 2000, Sarah signed a 30-day parental affidavit allowing Kelly to be placed with Carl and Laura, where she has remained since. In July 2001, Social Services petitioned for custody of both children, and by a September 2001 order, they were found deprived and placed in the custody of Social Services for nine months, with their grandparents as licensed foster parents.
Kevin was incarcerated again in December 2001 for drug-related offenses. On April 26, 2002, Social Services filed a petition to terminate parental rights for both children, leading to a hearing on July 19, 2002. The juvenile court determined that Becky and Kelly were deprived, that the deprivation was likely to continue, and that serious harm was probable, subsequently ordering the termination of both parents' rights. Notices of appeal were filed by both parents. Kevin contends that Social Services did not prove Kelly's deprivation or the likelihood of continued deprivation, while Sarah concedes deprivation but joins Kevin's appeal arguments. The court disagrees with both parents' arguments.
A juvenile court's decision to terminate parental rights is reviewed similarly to a trial de novo, giving significant weight to the court’s findings due to its ability to observe witness demeanor. Termination requires clear and convincing evidence satisfying a three-pronged test: 1) the child is deprived, 2) the conditions causing the deprivation are likely to continue, and 3) the child is suffering or will likely suffer serious harm. A "deprived child" lacks adequate parental care, not primarily due to financial means. Parental rights, while constitutionally significant, are not absolute; parents must meet community care standards.
In this case, evidence supports that Becky and Kelly are deprived children due to physical neglect, inadequate supervision, medical neglect, emotional abuse, and sexual abuse, as established through multiple investigations by Social Services. Testimony revealed a lack of proper care, including inadequate schooling and medical supervision. Sarah failed to provide a safe environment, and Kevin contributed little due to his incarceration. Although historical deprivation can indicate future risks, additional prognostic evidence is necessary to predict ongoing deprivation. The court concluded that Becky and Kelly are indeed deprived children, meeting the requirements for termination of parental rights.
Clear and convincing evidence indicates that the deprivation faced by Becky and Kelly would likely persist if Sarah resumed parenting. Courts take into account parental cooperation with social service agencies when assessing the likelihood of ongoing deprivation. Despite numerous recommendations from Social Services for Sarah to improve her parenting skills—including evaluations, treatment programs, and classes—she only complied with psychological evaluations but failed to act on subsequent recommendations. This lack of initiative reflects a serious indifference to her parenting obligations. The record shows no indication that Sarah is willing or able to enhance her parenting abilities, suggesting that without intervention, Becky and Kelly will remain deprived.
Similarly, evidence suggests that Kelly will continue to experience deprivation if Kevin's parental rights are not terminated, as he has a lengthy criminal history and has been incarcerated for over half of Kelly's life. His ongoing struggles with substance addiction further compound the likelihood of future incarceration. Although imprisonment alone does not warrant parental rights termination, Kevin’s history and addiction indicate a probable recurrence of criminal behavior. His decision to re-offend upon learning about potential termination proceedings exemplifies a disregard for his parental responsibilities. Overall, both parents exhibit patterns of behavior that predict continued deprivation for their children.
Kevin has engaged in drug and alcohol evaluations and participated in self-help programs since his incarceration, expressing a desire to continue with a 12-step program post-release. Despite these efforts, his past unsuccessful treatment attempts raise concerns about his ability to provide effective parenting. The court emphasizes that parental intentions to change cannot compromise the welfare of the children, Becky and Kelly, who are at risk of suffering from their parents' ongoing dysfunction. Prognostic evidence indicates that both Sarah and Kevin are currently unfit to care for their children, with Dr. Lisa Hay's assessment highlighting Sarah's cognitive difficulties that hinder her parenting capabilities. Kevin acknowledges he will need time to stabilize his life before he can care for Kelly.
Becky and Kelly have been living with their grandparents for significant portions of their lives, and both parents have demonstrated limited involvement and support. The court notes that long-term treatment for parents is not required if it cannot be completed in a timeframe that allows for a stable transition back to the parental home without emotional disruption for the children. The conclusion is that due to the parents’ ongoing inability to care for the children, serious mental or emotional harm is likely if their parental rights are not terminated. Consequently, the juvenile court's decision to terminate Sarah’s and Kevin’s parental rights is upheld.
