Matter of Adoption of KSH , 1989 N.D. LEXIS 129 ( 1989 )

GIERKE, Justice.

E.H. (hereinafter “Edward”, a pseudonym) and I.H. (hereinafter “Ida”, a pseudonym), the paternal grandparents of the minor child K.S.H. (hereinafter “Kevin”, a pseudonym), appeal from a district court judgment entered October 12, 1988, which declined to terminate the parental rights of the natural father of Kevin, E.H. (hereinafter “Eugene”, a pseudonym), and upon that, denied the grandparents’ petition for adoption. We affirm.

Kevin was born on July 19, 1974, in Park River, North Dakota. Kevin’s parents were subsequently divorced and his mother voluntarily terminated her parental rights to Kevin on April 18, 1979. Kevin’s father, Eugene, has been hospitalized for a mental illness diagnosed , as schizophrenia and is currently on medication and has counseling, both on an inpatient and outpatient basis. Kevin has been living with his grandparents, Edward and Ida, by court order for most of his life.¹ However, Eugene has exercised visitation with Kevin on a fairly regular basis.

On June 20, 1988, Edward and Ida commenced proceedings to adopt Kevin. The reason that the grandparents initiated the adoption proceedings was that Kevin asked to be adopted by them. Kevin explained that he wanted to be adopted by his grandparents because he had a feeling of insecurity stemming from the fact that his grandparents had custody while his father maintained parental rights.

The trial court treated the case as a combined termination and adoption proceeding. While Eugene does not challenge the fact that Edward and Ida have custody of Kevin, he did not consent to the termination of his parental rights or to the adoption.² Accordingly, a hearing was held on August 29, 1988, to determine whether or not Eugene’s parental rights should be terminated and then, whether or not to allow Edward and Ida to adopt Kevin. The trial court declined to terminate Eugene’s parental rights and therefore denied Edward and Ida’s petition for adoption. This appeal followed.

The issue raised on appeal is whether or not a trial court has discretion under Section 27-20-44 to terminate parental rights and, if so, whether or not the trial court was correct in refusing to terminate the parental rights and denying the petition for adoption.

Our statute governing the termination of parental rights is part of the Uniform Juvenile Court Act which is codified in Chapter 27-20 of the North Dakota Century Code. This Court has recognized that cases involving the termination of parental rights are difficult. In Interest of M.N., 294 N.W.2d 635 (N.D.1980). Parents have a fundamental, natural right to their children which is of constitutional dimension. McBeth v. 343 N.W.2d 355 (N.D.1984). However, the parent’s right is not absolute and may be curtailed in certain circumstances. Asendorf v. M.S.S., 342 N.W.2d 203 (N.D.1983). The primary purpose of the Uniform Juvenile Court Act is to protect the welfare of the child, Kleingartner v. D.P.A.B., 310 N.W.2d 575 (N.D.1981), and the best interest of the child is one factor to be considered in determining the necessity that parental rights should be terminated. In Interest of J.K.S., 356 N.W.2d 88 (N.D.1984). Termination of parental rights is governed by Section 27-20-44 of the North Dakota Century Code which provides as follows:

“27-20-44. Termination -of parental rights.—

“1. The court by order may terminate the parental rights of a parent with respect to his child if:

a. The parent has abandoned the child;

b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; or

c. The written consent of the parent acknowledged before the court has been given.

“2. If the court does not make an order of termination of parental rights it may grant an order under section 27-20-30 if the court finds from clear and convincing evidence that the child is a deprived child.”

In the instant case, the trial court, in denying termination of the parental rights, stated in its memorandum opinion as follows:

“The child is deprived as defined by statute, i.e., this court has so repeatedly decreed in prior orders and such condition is here determined will likely not be remedied and because of it the child will probably suffer serious harm. Only on this basis is the court jurisdictionally able to terminate parental rights and allow the adoption. The father has been unable to care for the child and the prognosis is certain that he will never have that ability.... Petitioners have shown by clear and convincing evidence that this ground does exist for termination of parental rights. There is no compulsion upon the court to grant the request because the statute is framed as a discretionary decision. Although the ‘harm’ done will probably not change, I do not find deprivation, alone, sufficient reason to cut the parental bond. He has received loving care from his grandparents and the situation will not be changed by whatever this court does. A compelling reason to terminate is absent.”

Thus, the trial court found sufficient evidence to give it the authority to terminate parental rights under Section 27-20-44(l)(b). Nevertheless, the trial court interpreted the statute as discretionary with regard to the actual termination of parental rights. Accordingly, the trial court exercised its discretion in refusing to terminate the parental rights of the father because there was no compelling reason to do so.

We must initially determine whether or not the decision to terminate parental rights under Section 27-20-44 is discretionary with the trial court.

This Court has stated that in construing a statute, consideration must be given to the ordinary sense in which words are used, the context in which they are placed, and the purpose of the enactment as ascertained from the whole act. Stutsman County v. State Historical Soc. of North Dakota, 371 N.W.2d 321 (N.D.1985); see also Harding v. City of Dickinson, 76 N.D. 71, 33 N.W.2d 626 (1948); Section 1-02-02, N.D.C.C.

Subsection 1 of Section 27-20-44 specifically provides that “[t]he court by order may terminate the parental rights of a parent....” The statute uses the word “may” which as ordinarily understood in a statute is permissive rather than mandatory and operates to confer discretion. Timm v. Schoenwald, 400 N.W.2d 260 (N.D.1987); Harding v. City of Dickinson, supra; Novak v. Novak, 74 N.D. 572, 24 N.W.2d 20 (1946). Also, subsection 2 of Section 27-20-44 provides that even if the trial court does not terminate parental rights upon a finding of deprivation, it may grant an order under Section 27-20-30. Thus, the entire statutory scheme of Section 27-20-44 indicates that the trial court may exercise its discretion with regard to parental rights and the disposition of a deprived child.

Accordingly, we believe that the decision to terminate parental rights pursuant to Section 27-20-44 is discretionary. Having determined that termination of parental rights under Section 27-20-44 is discretionary, we must next decide whether or not in the instant case the trial court was correct in refusing to terminate parental rights.

Our scope of review in deprivation cases is governed by Section 27-20-56(1) of the North Dakota Century Code which provides that our review shall be based upon the files, records, and minutes or transcript of the evidence of the trial court. We give appreciable weight to the trial court’s findings and recognize the trial court’s opportunity to observe the demeanor of the witnesses, but we are not bound by those findings. See Section 27-20-56(1), N.D.C.C.; In Interest of A.M.A., T.N.A. and N.D.A., 439 N.W.2d 535 (1989); In Interest of L.J. and R.J., 436 N.W.2d 558 (N.D.1989); In Interest of J.A.L., 432 N.W.2d 876, 878 (N.D.1988). Thus, we are allowed to review the evidence in a manner similar to the former procedure of trial de novo. In Interest ofJ.A.L., supra; In Interest of R.M.B., 402 N.W.2d 912, 914 (N.D.1987).

In the instant case, the trial court explained in its memorandum opinion that:

“It is a tenet of natural law that the child belongs to the parent and that needs no elaboration. As we have become more civilized society finds it necessary to intervene in certain situations so that the child may be protected and nourished. The ultimate intervention is the stripping of a parent’s rights of their own offspring. In North Dakota, as elsewhere, the legal and constitutional rights of a parent to his child is paramount, but it is not absolute.

“It is the decision of this Court that the parental rights of [Eugene] will not be terminated....”

The trial court in denying termination noted that the decision to terminate parental rights was discretionary. The trial court recognized in the instant case that the child has received loving care from his grandparents and that the situation will not be changed by whatever decision the trial court made regarding termination.

Based upon our review of the testimony adduced at the hearing, giving appreciable weight to the findings of the trial court and its opportunity to observe the demeanor of the witnesses, we do not believe that it has been established that the child has suffered or will probably suffer serious harm if the parental rights of his father are not terminated. While the child’s insecurity was presented as evidence of serious harm, there was no expert testimony or other objective indications of harm, i.e., such as sleeplessness, diminished health, decreased school performance and attendance, etc., provided on this matter and we deem it insufficient to justify the termination of parental rights. Accordingly, we do not believe that the trial court’s decision not to terminate parental rights was incorrect. Therefore, we conclude that the trial court did not err in refusing to terminate parental rights of the father and in denying the grandparent’s petition for adoption.

For the reasons stated in this opinion, the decision of the district court is affirmed.

MESCHKE and LEVINE, JJ., concur.

1 . While the record neither includes the court order transferring custody of the minor child to the grandparents nor specifically indicates the basis of such an order, we assume that the court order transferring temporary legal custody of the child to the grandparents was pursuant to Section 27-20-30 of the North Dakota Century Code which provides as follows:

"27-20-30. Disposition of deprived child.— "1. If the child is found to be a deprived child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:

a. Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child;

b. Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the following:

(1) Any individual who, after study by the juvenile supervisor or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;

(2) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child;

(3) The director of the county welfare board or other public agency authorized by law to receive and provide care for the child;

(4) An individual in another state with or without supervision by an appropriate officer under section 27-20-40; or

c.Without making any of the foregoing orders transfer custody of the child to the juvenile court of another state if authorized by and in accordance with section 27-20-39 if the child is or is about to become a resident of that state.

"2. Unless a child found to be deprived is found also to be delinquent he shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children.”

We further note that almost every two years since 1978, the custody of Kevin, the minor child, was contested and the court has found Kevin to be a deprived child and has placed custody with his grandparents, Edward and Ida. Kevin has not lived with his father, Eugene, for approximately the past ten years with the exception of a six-week period from December of 1984 through January of 1985 at which time Kevin was removed to Edward and Ida's custody by court order.

2 . Our adoption statutes are found in Chapter 14-15 of the North Dakota Century Code which may be cited as the Revised Uniform Adoption Act.