Adoption of A.S. , 2018 ND 265 ( 2018 )

Filed 12/6/18 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2018 ND 265
In the Matter of the Adoption of A.S.
C.N.D., Petitioner
v.
C.M.A.S., Respondent and Appellant
and
A.S., North Dakota Department
of Human Services, Respondents
and
M.S. and C.S., Interested Parties and Appellees
No. 20180326
In the Matter of the Adoption of Z.S.
C.N.D., Petitioner
v.
C.M.A.S., Respondent and Appellant
and
Z.S., North Dakota Department
of Human Services, Respondents
and
M.S. and C.S., Interested Parties and Appellees
No. 20180327
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Richard L. Hagar, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Kyle R. Craig, Minot, ND, for respondent and appellant.
Erica J. Shively, Bismarck, ND, for interested parties and appellees.
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Adoption of A.S.
No. 20180326
Adoption of Z.S.
No. 20180327
McEvers, Justice.
[¶1] C.S. appeals from a district court’s order terminating his parental rights to A.S.
and Z.S. C.S. argues the district court erred in finding he abandoned the children and
finding the causes of deprivation were likely to continue. We affirm, concluding the
district court did not clearly err in finding the causes of deprivation were likely to
continue.
I
[¶2] In August 2017, C.D. petitioned to terminate her and C.S.’s parental rights to
A.S. and Z.S., and to place the children in an adoptive home through an identified
adoption placement. In her petitions, C.D. alleged it was in the best interests of the
children to terminate C.S. and C.D.’s parental rights and that remaining in C.S. or
C.D.’s care was contrary to the children’s welfare and wellbeing. In March 2018, the
district court held a hearing on the matter and heard evidence relating to C.S.’s history
of incarceration, living arrangements, abuse of C.D., abandonment of the children,
and history of drug use.
[¶3] C.S., the biological father, and C.D., the biological mother, had two children,
A.S., born in January 2014, and Z.S., born in August 2015. C.S. and C.D. were never
married, but they lived together periodically. C.S. and C.D. began to use drugs in
2012 and continued to use drugs regularly until November 2017, when both claimed
they attempted sobriety.
[¶4] C.D. and C.S. got into an altercation and C.S. attempted to “run off” with A.S.
At the time of the altercation, C.D. was pregnant with Z.S. As a result of the
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altercation, a year-long protection order was issued in 2015 in Minnesota, prohibiting
C.S. from contacting C.D.
[¶5] C.D. testified C.S. has only seen Z.S. three times since his birth and Z.S. does
not know C.S. C.S. admitted that during 2015 and 2016, he was incarcerated for 157
days, including time spent at a rehabilitation center in Jamestown and in the last two
years he has been incarcerated for approximately six months. C.S. was on supervised
probation, and was participating in the drug court program since November 2017.
C.S. admitted to using methamphetamine in February 2018. C.S.’s probation officer
testified that the drug court program is, at a minimum, a 12-month program. The
probation officer also testified that due to C.S.’s inability to meet the requirements of
the drug court program, he was placed in Centre, Inc., a halfway house, to achieve
residential stability. C.S. testified he will continue to reside at Centre, Inc., for an
undetermined amount of time, and the children would not be able to reside there with
him. C.S. testified the last time he saw either Z.S. or A.S. was Father’s Day of 2017.
C.S. admitted he was at risk to use drugs again if his parental rights are terminated.
[¶6] C.S. testified he provided support to A.S. and Z.S. when his wages were
garnished. Since 2015, C.S. had convictions for false reports to law enforcement
officers, possession of controlled substances, unauthorized use of personal identifying
information, burglary, theft, possession of drug paraphernalia, and possession of a
concealed weapon.
[¶7] In July 2018, the district court entered an order terminating the parental rights
of C.S. and C.D. C.S. appealed from the court’s order terminating his parental rights,
arguing that the court erred by (1) finding he abandoned his children, and (2)
determining the causes of deprivation were likely to continue.
II
[¶8] Section 14-15-19(3), N.D.C.C., authorizes a court to terminate parental rights
on the ground:
a. That the minor has been abandoned by the parent;
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b. That by reason of the misconduct, faults, or habits of the parent
or the repeated and continuous neglect or refusal of the parent,
the minor is without proper parental care and control, or
subsistence, education, or other care or control necessary for the
minor’s physical, mental, or emotional health or morals, or, by
reason of physical or mental incapacity the parent is unable to
provide necessary parental care for the minor, and the court
finds that the conditions and causes of the behavior, neglect, or
incapacity are irremediable or will not be remedied by the
parent, and that by reason thereof the minor is suffering or
probably will suffer serious physical, mental, moral, or
emotional harm; or
c. That in the case of a parent not having custody of a minor, the
noncustodial parent’s consent is being unreasonably withheld
contrary to the best interest of the minor.
“The petitioner must establish all of the elements for termination by clear and
convincing evidence.” In re G.R., 2014 ND 32, ¶ 5, 842 N.W.2d 882 (citation
omitted). “Clear and convincing evidence is evidence that leads to a firm belief or
conviction the allegations are true.” Id. (citation omitted).
[¶9] “A court’s decision to terminate an individual’s parental rights is a question of
fact, and that decision will not be overturned unless it is clearly erroneous.” In re
M.R., 2015 ND 233, ¶ 6, 870 N.W.2d 175. A finding of fact is clearly erroneous
under N.D.R.Civ.P. 52(a) if it is induced by an erroneous view of the law, if there is
no evidence to support it, or if, on the entire record, the Court is left with a definite
and firm conviction a mistake has been made. In Interest of A.B., 2017 ND 178, ¶ 12,
898 N.W.2d 676. This Court does not re-weigh evidence, and gives “due regard to
the trial court’s opportunity to judge the witnesses’ credibility.” Id. at ¶ 12.
A
[¶10] C.S. argues the district court erred in determining the causes of deprivation for
the children were likely to continue because in reaching its decision, the court relied
“solely” on past evidence of C.S.’s incarceration. C.S. does not appeal the district
court’s finding of deprivation.
[¶11] For a finding of continued deprivation, this Court has said:
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To determine whether the conditions and causes of the
deprivation are likely to continue, evidence of past or present
deprivation alone is insufficient, but evidence of the parent’s
background, including previous abuse or deprivation, may be
considered. The amount of contact the parent has had with the child
may also be considered. Prognostic evidence or evidence that forms
the basis for a reasonable prediction as to future behavior must be
evaluated. Prognostic evidence includes the reports and opinions of the
professionals involved.
In re D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697 (internal citations omitted).
Furthermore,
[i]ncarceration does not alone constitute continued deprivation, but the
harm a parent’s incarceration may cause the children “may be
established by prognostic evidence that a parent’s current inability to
properly care for the child will continue long enough to render
improbable the successful assimilation of the child into a family if the
parent’s rights are not terminated.” When a parent, voluntarily and
without reasonable justification, makes himself unavailable to care for
and parent young children, the children should not be expected to wait
or assume the risk involved in waiting for permanency and stability in
their lives.
In re K.J., 2010 ND 46, ¶ 9, 779 N.W.2d 635 (citing In re T.A., 2006 ND 210, ¶ 16,
722 N.W.2d 548 (citations omitted)).
[¶12] C.S.’s probation officer testified the earliest C.S. could be released from the
drug court program is November 2018 with complete compliance with the program,
but the year-long minimum can be extended. Since beginning drug court, C.S.
admitted to violating the program’s policy against drug usage by snorting and
smoking methamphetamine in February 2018. C.S.’s probation officer testified that
C.S. was placed on “day reporting” due to instances where he was late or wholly
failed to attend the intensive outpatient treatment. C.S. failed to meet the daily
reporting requirements. As a result of his noncompliance with the “day reporting”
and the drug usage, C.S. was placed at Centre, Inc., resulting in C.S. being unable to
provide a home for A.S. and Z.S.
[¶13] “Failure to follow the recommendations for addiction recovery demonstrates
an indifference toward one’s obligations and responsibilities as a parent.” In re E.R.,
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2004 ND 202, ¶ 8, 688 N.W.2d 384 (citation omitted). The district court made the
following findings in its order terminating parental rights:
[C.S.] has not exercised parental care for his two minor children.
[C.S.] has not contributed in any positive way to the children’s
physical, mental, or emotional health, or their morals. The children
were without a stable living environment, received inadequate medical
care, were exposed to violence and drug usage, and were not given the
love and affection necessary for an infant to establish that most
important requirement of emotional bonding.
Additionally, there was no evidence presented to provide any
reasonable expectation that such deprivation of the children, by [C.S.’s]
misconduct, faults, habits, and neglect, will stop, or in any way be
remedied, in the near future. These two children have suffered, and
would continue to suffer, under the lack of care given by [C.S.].
“When a parent, through voluntary actions, without reasonable justification, makes
herself unavailable to care for and parent a young child, the child should not be
expected to wait or assume the risk involved in waiting for permanency and stability
in her life.” E.R., at ¶ 9 (citation omitted).
[¶14] Finally, a licensed social worker overseeing the transition of A.S. and Z.S. into
the identified adoptive home testified A.S. needs intensive therapy. The social worker
expressed concern for the basic care of A.S. and Z.S.—their food, shelter,
safety—considering C.S.’s use of illegal substances, residential instability, and
inability to tend to the emotional needs of the children. C.S. had no substantive plan
to address A.S.’s behavioral issues.
[¶15] There was clear and convincing prognostic evidence the deprivation is likely
to continue and will not be remedied in the near future if C.S.’s rights are not
terminated. We conclude the district court’s finding that the deprivation is likely to
continue is not clearly erroneous.
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B
[¶16] C.S. argues the district court erred in finding he abandoned A.S. and Z.S.
Because N.D.C.C. § 14-15-19(3) provides three independent grounds for terminating
parental rights, and because we have affirmed the court’s finding, under subsection
(b), that the deprivation is likely to continue, we need not address the issue of
abandonment. “We need not address questions, the answers to which are unnecessary
to the determination of an appeal.” Olander Contracting Co. v. Gail Wachter Invs.,
2002 ND 65, ¶ 48, 643 N.W.2d 29 (citations omitted).
III
[¶17] The order terminating parental rights is affirmed.
[¶18] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.
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