Sheeley v. C.R.C. , 2001 N.D. LEXIS 95 ( 2001 )

KAPSNER, Justice.

[¶1] C.A.M.C. (“Connie”)¹ appeals from a juvenile court order terminating her parental rights to C.R.C. (“Courtney”), age 7. We conclude the evidence is clear and convincing that Courtney is a deprived child; the conditions and causes of deprivation are likely to continue or will not be remedied; and Courtney is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm from the deprivation if Connie’s parental rights are not terminated. We affirm.

I

[¶ 2] In 1994, Courtney was born to Connie and S.B. (“Steve”), who were never married. Later that year, Connie married another man, S.M. (“Simon”), and they had two children together. From March to July 1996, Courtney was placed in foster care in Wilkin County, Minnesota, after police responded to a domestic violence report. From August 1996 to July 1997, Courtney was again placed in foster care in Wilkin County when Connie was arrested and taken to a treatment center. After Connie and Simon moved to Traverse County, Minnesota, Child Protection Services conducted a child protection risk assessment, concluding Connie’s children were at a high risk of abuse or neglect and were hungry, not toilet trained, and smelled; Courtney had bruises and unexplained injuries; animal feces were left on the floor in the house; the parents had poor home management skills; and the children were not properly supervised and received no affection. Subsequently, Connie and Simon voluntarily entered a Child Protection Service Plan, but the agency found little to no visible progress after four months. In September 1998, Connie voluntarily placed Courtney with the child’s paternal aunt.

[¶ 3] In November 1998, Connie’s second child was placed in foster care, where he remained until parental rights were terminated. In July 1999, Connie divorced Simon and became romantically involved with M.E. (“Michael”). After Connie and Michael were evicted from their apartment, Connie moved into the YMCA but had to leave after 30 days for not following the rules. Until October 1999, Courtney remained with the paternal aunt who had agreed to adopt Courtney but changed her mind when Courtney became too difficult to manage. During the time Courtney lived with her paternal aunt, visitation between Connie and Courtney was minimal, especially between May and October 1999 when there was no direct contact despite opportunities to visit. In November 1999, Richland County Social Services obtained custody of Courtney, after the juvenile court found the paternal aunt was no longer able to provide care; Connie intended to move Courtney to her residence where a sexual offender also lived; and Courtney lived outside Connie’s home for the last year with few visitations. In January 2000, Connie moved in with R.S. (“Richard”), whom she married after a three-week engagement. Shortly later, Connie left Richard and started seeing Michael again, intending to live with both Richard and Michael in an efficiency apartment.

[¶ 4] In January 2000, the Richland County Juvenile Supervisor filed a petition to terminate parental rights to Courtney. Subsequently, Courtney’s father, Steve, voluntarily terminated his parental rights. After a hearing, the juvenile court also terminated Connie’s parental rights upon finding: (1) Courtney is a deprived child, and her deprivation was not caused by lack of financial means; (2) the deprivation is likely to continue, and Courtney will suffer serious physical, mental, moral, or emotional harm in the future; (3) Courtney was in foster care 33 months during her 70 months of age; (4) Connie visited Courtney only minimally, with no contact from May to October 1999 despite opportunities to visit; (5) Connie was unemployed but able to be employed, yet did not budget her income to pay rent and was evicted; (6) Connie was provided a variety of assistance from agencies in Minnesota and North Dakota; (7) even with the aid of government agencies, Connie would be unable to provide physical and emotional care for Courtney. Connie appeals.

II

[¶ 5] On appeal, we review juvenile court orders terminating parental rights similar to a trial de novo, by examining the files, records, and transcript of the evidence, giving appreciable weight to the juvenile court’s findings. In the Interest of W.E., 2000 ND 208, ¶ 6, 619 N.W.2d 494. Although we are not bound by the juvenile court’s findings, we give deference to the decision of the juvenile court, which had the opportunity to observe the demeanor and candor of witnesses. In the Interest of A.S., 1998 ND 181, ¶ 13, 584 N.W.2d 853.

III

[¶ 6] Parents have fundamental and natural rights to their children which is constitutionally protected; however, their rights are not absolute or unconditional, and parents must provide care that satisfies minimum community standards. In the Interest of L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573. Due process provides certain procedural protections before the parent-child relationship may be terminated. In the Interest of A.S., 1998 ND 181, ¶ 14, 584 N.W.2d 853. Absent abandonment or consent, termination of parental rights requires satisfaction of a three-pronged test in which the State must prove by clear and convincing evidence: (1) the child is deprived; (2) the conditions and causes of the deprivation are likely to continue or will not be remedied; and (3) the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm by reason of the deprivation. In the Interest of W.E., 2000 ND 208, ¶ 7, 619 N.W.2d 494; N.D.C.C. § 27-20-44.

A

[¶ 7] Connie argues the State failed to prove by clear and convincing evidence that Courtney is a deprived child; rather, the evidence demonstrates Connie is willing and able to provide for Courtney’s care when given the opportunity and support of outside agencies. Connie claims the only testimony offered at the trial regarding observations of her parenting skills was from social services in Wil-kin, Traverse, and Cass counties, but none from Richland County which initiated the termination proceedings. Connie asserts she voluntarily entered a Child Protection Service Plan in Traverse County in an attempt to keep the children in her home; however, Richland County requested termination of parental rights based on “outdated” evaluations from other counties which do not reflect that Connie made very significant changes toward being a good mother. Connie asserts the report of the guardian ad litem only refers to Courtney’s problems adjusting to foster care, not as a result of her contact with her mother, and Connie and Courtney have a mother-daughter bond which should be preserved.

[¶ 8] A deprived child is defined as one who lacks proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents. N.D.C.C. § 27 — 20—02(8)(a); see also In the Interest of W.E., 2000 ND 208, ¶ 8, 619 N.W.2d 494.

[¶ 9] As noted by the juvenile court, the record contains significant evidence that Courtney suffered both abuse and neglect from her parents and was living in an unsuitable environment. All the social services agencies involved with this family documented continuous reports of unkempt children, domestic violence, lack of supervision, and poor parenting skills. The family service workers testified that their attempts to assist Connie with parenting skills resulted in noncompliance, as Connie would follow the service plan and checklists for a brief time and then would give up, and the family situation would deteriorate again. The family service workers testified the only way a service plan would work for Connie was to have an in-home provider every day of the week, which was not feasible and not required by law. See In the Interest of D.R., 525 N.W.2d 672, 675 (N.D.1994) (“Even if a more consistent treatment could be contrived for [the mother], the scope of the necessary increased assistance, through constant supervised care for [the mother] and her children together, would be too extravagant and is not required by law.”).

[¶ 10] The juvenile court found almost half of Courtney’s life was spent outside her family home, that is, she was six years old at the termination proceeding and had spent 33 months in either foster care or firing with a paternal aunt. Moreover, Connie did not visit Courtney when she had the opportunity, after voluntarily placing her with a paternal aunt, and only visited after termination proceedings began. See In the Interest of A.M., 1999 ND 195, ¶ 8, 601 N.W.2d 253 (terminating parental rights after finding evidence the mother and her children had been involved with child protection services several times in other jurisdictions; the mother failed to complete treatment programs; one child had spent 35 of her first 51 months in foster care and the other child spent over one-third of her fife in homes other than with her parents; and the mother had only-very limited and sporadic contact with the children); see also In the Interest of D.F.G., 1999 ND 216, ¶ 15, 602 N.W.2d 697 (commending a parent who needs temporary assistance for opting to place a child in the custody of social services, but stating a parent who repeatedly places a child in protective custody for several years may be unable or unwilling to provide adequate care for the child).

[¶ 11] The record also provides evidence that Courtney’s deprivation was not due primarily to the lack of Connie’s financial means. The juvenile court concluded Connie’s money problem was not a lack of financial resources, but rather poor money management and the inability to set priorities to take care of the children. The juvenile court found Connie spent money on unnecessary expenses, yet consistently ran short of money to pay rent, which led to eviction. The record indicated Connie was provided a variety of assistance including homemaker’s aides, parental counseling, intensive family counseling, and money management, but she has been unable or unwilling to improve her budgeting and parenting skills. Connie’s continuing unstable lifestyle and romantic relationships are not evidence of positive changes.

[¶ 12] We conclude the evidence is clear and convincing that Courtney is a deprived child lacking proper parental care, and her deprivation is not due primarily to Connie’s lack of financial means.

B

[¶ 13] Connie argues the evidence was not clear and convincing that the conditions and causes of Courtney’s deprivation are likely to continue or will not be remedied. Connie asserts she has demonstrated a willingness to work with social services and should be given another chance, especially since she has made positive changes in her life by removing herself from a dysfunctional marriage. According to Connie, Richland County failed to make reasonable efforts to transfer foster care to Cass County where Connie resided or to assist her with parenting training; rather, Richland County proceeded “head first” into the termination process.

[¶ 14] In determining whether a child’s deprivation is likely to continue or will not be remedied, we consider prognostic evidence as a basis for reasonable predictions about future behavior. In the Interest of S.F., 2000 ND 161, ¶ 10, 615 N.W.2d 511. Prognostic evidence includes reports and opinions of professionals. In the Interest of D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697. In addition, we consider the lack of parental cooperation with social service agencies, which is insufficient to establish deprivation but is pertinent to whether deprivation will continue. S.F., at ¶ 10. The amount of contact a parent has had with the child may also be considered. D.F.G., at ¶ 20.

[¶ 15] Dr. John Molstre’s evaluation of Connie in March 1999 offers prognostic evidence of her future behavior. The evaluation noted Connie’s “low average” mental ability and concluded:

[Connie] is a dependant [sic], isolated, vulnerable and in some respects inadequate person who is in a highly dysfunctional relationship and facing multiple stressors. The impact on her ability to parent is dramatic and I believe her ability at the present time to take care of her children is limited and at this point I do not believe that [she] can successfully raise, parent, or provide for her children nor provide a safe and nur-turant home for them on a long term basis.... I believe that the prognosis for neglectful or abusive behavior towards [Courtney] is very real and that [Courtney] would indeed suffer emotional and physical harm if [she] were to live with [Connie].

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Ultimately, this is a situation that’s not likely to change unless [Connie] decides to leave [Simon], and even with the change, it is unlikely that she can care for her children. Termination would appear to be in the best interest of the child.

[¶ 16] Dr. Molstre also stated his evaluation and recommendation would not change based on Connie’s current lifestyle. He stated, “[I]t would suggest that the instability and the dependency and the immaturity has continued, and is basically further validated and ... would not change his opinion that [Connie’s] parental rights should be terminated.”

[¶ 17] Connie’s lifestyle has been continuously unstable in many aspects: relationships, living arrangements, and financial matters. Connie did not name any support network on which she could rely to assist her with parenting Courtney. For over four years, social services from various counties tried to make Connie a better parent by implementing a number of services, but the agencies saw little or no progress. The testimony indicated Connie would follow a parenting plan briefly, but then relapse into previous behavior. Furthermore, Connie visited Courtney only sporadically during the year Courtney was living with her paternal aunt. See In the Interest of L.F., 1998 ND 129, ¶¶ 18-24, 580 N.W.2d 573 (finding deprivation likely to continue unremedied based on the psychologist’s evaluation; failure to exercise visitation; lack of cooperation with recommended programs; and nomadic, unstable, and questionable living arrangements). Although Connie requests a second chance, we conclude she has been afforded numerous chances, and now Courtney deserves a chance at a stable environment. See In the Interest of A.S., 1998 ND 181, ¶ 29, 584 N.W.2d 853 (rejecting a mother’s request for a second chance, as unfortunately the deprived child will not be given a first chance unless immediately placed in a stable environment and given what precious little time remains to create a bonding relationship).

[¶ 18] We find ample prognostic evidence demonstrating the deprivation of Courtney is likely to continue and will not be remedied unless parental rights are terminated.

C

[¶ 19] Connie argues the evidence was not clear and convincing that Courtney was suffering or will probably suffer serious physical, mental, moral, or emotional harm from her deprivation. Connie contends Courtney’s physical and mental problems make it difficult for her to adapt to change and likely are the result of changes in her foster care dynamics, rather than from any deprivation involving Connie.

[¶ 20] To determine if the deprived child is suffering, or probably in the future will suffer, serious physical, mental, moral, or emotional harm, a showing of parental misconduct is insufficient without showing a resultant harm to the child from the deprivation. In the Interest of D.F.G., 1999 ND 216, ¶ 28, 602 N.W.2d 697. The deprivation is not required to be continuous, and the likelihood of serious mental and emotional harm to the child may be shown by prognostic evidence. Id. The best interests of the child is an important factor which also must be considered, although not the primary consideration in a termination proceeding. In the Interest of L.F., 1998 ND 129, ¶ 27, 580 N.W.2d 573.

[¶ 21] The juvenile court found the evidence showed Courtney’s development was delayed and that she suffered physically and emotionally from her deprivation. The social service assessments determined Connie’s children were at a high risk of abuse or neglect, including hunger, uncleanliness, lack of supervision, and no affection. The assessments also reported Courtney had bruises and unexplained injuries. In addition to the testimony of family service workers, mental health professionals concurred in their evaluations regarding the harm Courtney has suffered and likely will continue to suffer. Dr. Geiselhart testified Courtney suffers from reactive attachment disorder caused by a lack of a secure bonding relationship with anyone. The record shows at six years of age Courtney had spent almost half of her life outside her family home with minimal visits from Connie. When Connie finally visited Courtney at the psychiatric center, Dr. Geiselhart recommended visitation cease because of Courtney’s aggressive behavior following Connie’s visitation, and he noted Courtney’s behavior improved after Connie’s visitations ceased. Courtney also told Dr. Geiselhart she did not want to see Connie again. In addition, Dr. Molstre’s parental capacity evaluation reported Courtney “would indeed suffer emotional and physical harm if [she] were to live with [Connie].” Ultimately, Dr. Molstre concluded termination of Connie’s parental rights would be in Courtney’s best interests because it is unlikely that Connie can care for her children. See In the Interest of A.S., 1998 ND 181, ¶ 27, 584 N.W.2d 853 (emphasizing that a court need not wait fora tragic event to happen before terminating parental rights).

[¶ 22] We conclude the testimony and evaluations show Courtney has suffered and probably will suffer serious harm by reason of her deprivation.

IV

[¶ 23] Our review of the entire record demonstrates by clear and convincing evidence that Courtney is a deprived child, her deprivation is not due primarily to a lack of financial resources, the causes and conditions of her deprivation will likely continue unremedied, and Courtney is suffering or likely will suffer serious physical, mental, moral, or emotional harm. Therefore, we affirm the juvenile court’s decision to terminate Connie’s parental rights to Courtney.

[¶ 24] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ„ concur.

1 . All names in parentheses following initials are pseudonyms.