Interest of A.D.

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 17, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 205In the Interest of the Guardianship of A.D.
S.K. and A.K., Petitioners and Appellees
v.
A.D., Child; M.K., Mother;
Jim Jacobson, Guardian ad Litem, Respondents
and
L.D., Father, Respondent and Appellant
No. 20200299
Appeal from the Juvenile Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Patrick W. Waters, Bismarck, N.D., for petitioners and appellees; submitted on
brief.
Laura C. Ringsak, Bismarck, N.D., for respondent and appellant; submitted on
brief.
Interest of A.D.
No. 20200299
Tufte, Justice.
[¶1] L.D., father of A.D., appeals a juvenile court order granting a
guardianship for A.D. The father argues the court erred by finding A.D. to be
a deprived child and failing to address the best interest factors and make an
exceptional circumstances finding. We affirm.
I
[¶2] In June 2020, A.D.’s aunt and uncle petitioned the juvenile court to
appoint them guardians of A.D., alleging A.D. was a deprived child as defined
by statute. A.D.’s father and mother opposed the guardianship. After a trial,
the judicial referee granted the guardianship, finding A.D. to be a deprived
child. The father requested review by a district court judge. After review, the
district court judge adopted the judicial referee’s findings and affirmed the
order granting the guardianship. The father appeals.
II
[¶3] The father challenges findings of the judicial referee. “The findings and
order of the judicial referee have the effect of the findings and order of the
district court until superseded by a written order of a district court judge.” N.D.
Sup. Ct. Admin. R. 13, § 10(a). The district court judge may review the judicial
referee’s findings and order on the judge’s own initiative, and must do so if
timely requested by a party. Id. at § 11(a). The district court judge reviews the
record de novo, and the court may adopt the referee’s findings, remand to the
referee for additional findings, or reject the findings and issue its own findings.
Id. at § 11(b)-(c). The juvenile court has exclusive original jurisdiction of
proceedings to grant a guardianship for a child, except the testamentary
appointment of a guardian for a minor governed by N.D.C.C. ch. 30.1-27.
N.D.C.C. § 27-20.1-02.
When the juvenile court judge reviews the referee’s findings and
order, the findings and order survive only to the extent the judge
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chooses to adopt them. Upon review, the referee’s findings and
order constitute recommendations to the juvenile court judge. The
juvenile court judge is given the ultimate authority to be the fact
finder and adjudicator and to issue a final disposition. Once the
juvenile court judge issues a final order, there remains no decision
of the referee to reinstate if this Court were to reverse the juvenile
court judge’s decision.
In re J.A.H., 2014 ND 196, ¶ 9, 855 N.W.2d 394 (quoting Interest of B.F., 2009
ND 53, ¶ 15, 764 N.W.2d 170).
[¶4] Here, the district court adopted the judicial referee’s findings as its own
under N.D. Sup. Ct. Admin. R. 13, § 11(b)(1). We do not set aside a juvenile
court’s findings of fact unless they are clearly erroneous. N.D.R.Civ.P. 52(a)(6).
A finding of fact is clearly erroneous if there is no evidence to support it, if it is
clear to the reviewing court that a mistake has been made, or if the finding is
induced by an erroneous view of the law. J.A.H., 2014 ND 196, ¶ 7.
III
[¶5] The father argues the juvenile court erred by finding A.D. was a deprived
child.
[¶6] A.D.’s aunt and uncle petitioned the juvenile court for a guardianship
under N.D.C.C. ch. 27-20.1, alleging A.D. was a deprived child. Section 27-20.1-
11(1)(d) (amended 2021), N.D.C.C., allows the court to appoint a guardian if it
finds by clear and convincing evidence that the appointment is in the child’s
best interest and the child is deprived.1 A deprived child includes a child who
has been abandoned by the child’s parents. N.D.C.C. § 27-20-02(8)(c) (repealed
2021).2 Abandon means:
As to a parent of a child not in the custody of that parent, failure
by the noncustodial parent significantly without justifiable cause:
1 The 2021 Legislative Assembly changed the language from “deprived child” to “child in need of
protection.” 2021 N.D. Sess. Laws ch. 245, § 18.
2 Chapter 27-20, N.D.C.C., was repealed by the 2021 Legislative Assembly, but was in effect
throughout the entirety of this case. 2021 N.D. Sess. Laws ch. 245, § 45.
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(1) To communicate with the child; or
(2) To provide for the care and support of the child as required by
law[.]
N.D.C.C. § 27-20-02(1)(a) (repealed 2021). In deciding whether a child has been
abandoned, we have outlined a number of considerations:
We look to such factors as the parent’s contact and communication
with the child, the parent’s love, care and affection toward the
child, and the parent’s intent. Also relevant is the parent’s
acceptance of parental obligations, such as to care for, protect,
support, educate, give moral guidance to, and provide a home for
the child. A parent’s negligent failure to perform his parental
duties is significant to the issue of abandonment.
In re Adoption of H.G.C., 2009 ND 19, ¶ 12, 761 N.W.2d 565 (cleaned up).
[¶7] The juvenile court found by clear and convincing evidence that the father
has not provided care for or had any contact with A.D. since 2007 or 2008, and
has not made any significant attempts to locate A.D. or have A.D. placed in his
care. The court found that although the mother testified she attempted to hide
A.D. from the father due to “what the father did to her [the mother],” the father
has been aware of A.D.’s whereabouts since at least late 2019. In 2019, the
father attempted to speak with A.D. on the telephone, but A.D. refused. The
court found the father made no further attempt to contact A.D. The court found
the father had abandoned A.D. The juvenile court’s findings are not clearly
erroneous.
IV
[¶8] The father asserts the juvenile court did not address the best interest
factors under N.D.C.C. § 14-09-06.2.
[¶9] Under N.D.C.C. § 27-20.1-11(1), the juvenile court must find by clear and
convincing evidence that the guardianship appointment is in the child’s best
interest. See also N.D.C.C. § 27-20.1-12(1) (requiring the court to make
findings as to whether the appointment of the guardian is in the child’s best
interest). “The best interests factors of N.D.C.C. § 14-09-06.2(1) are applied in
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guardianship proceedings.” In re Guardianship of P.T., 2014 ND 223, ¶ 6, 857
N.W.2d 367. Those factors include, when applicable:
a. The love, affection, and other emotional ties existing between
the parents and child and the ability of each parent to provide
the child with nurture, love, affection, and guidance.
b. The ability of each parent to assure that the child receives
adequate food, clothing, shelter, medical care, and a safe
environment.
c. The child’s developmental needs and the ability of each parent
to meet those needs, both in the present and in the future.
d. The sufficiency and stability of each parent’s home
environment, the impact of extended family, the length of time
the child has lived in each parent’s home, and the desirability
of maintaining continuity in the child’s home and community.
e. The willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the
other parent and the child.
f. The moral fitness of the parents, as that fitness impacts the
child.
g. The mental and physical health of the parents, as that health
impacts the child.
h. The home, school, and community records of the child and the
potential effect of any change.
i. If the court finds by clear and convincing evidence that a child
is of sufficient maturity to make a sound judgment, the court
may give substantial weight to the preference of the mature
child. The court also shall give due consideration to other
factors that may have affected the child’s preference, including
whether the child’s preference was based on undesirable or
improper influences.
j. Evidence of domestic violence. In determining parental rights
and responsibilities, the court shall consider evidence of
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domestic violence. If the court finds credible evidence that
domestic violence has occurred, and there exists one incident
of domestic violence which resulted in serious bodily injury
or involved the use of a dangerous weapon or there exists
a pattern of domestic violence within a reasonable time
proximate to the proceeding, this combination creates a
rebuttable presumption that a parent who has perpetrated
domestic violence may not be awarded residential
responsibility for the child. This presumption may be overcome
only by clear and convincing evidence that the best interests of
the child require that parent have residential responsibility.
The court shall cite specific findings of fact to show that the
residential responsibility best protects the child and the parent
or other family or household member who is the victim of
domestic violence. If necessary to protect the welfare of the
child, residential responsibility for a child may be awarded to
a suitable third person, provided that the person would not
allow access to a violent parent except as ordered by the court.
If the court awards residential responsibility to a third person,
the court shall give priority to the child’s nearest suitable
adult relative. The fact that the abused parent suffers from
the effects of the abuse may not be grounds for denying that
parent residential responsibility. As used in this subdivision,
“domestic violence” means domestic violence as defined in
section 14-07.1-01. A court may consider, but is not bound by, a
finding of domestic violence in another proceeding under
chapter 14-07.1.
k. The interaction and inter-relationship, or the potential for
interaction and inter-relationship, of the child with any person
who resides in, is present, or frequents the household of a
parent and who may significantly affect the child’s best
interests. The court shall consider that person’s history of
inflicting, or tendency to inflict, physical harm, bodily injury,
assault, or the fear of physical harm, bodily injury, or assault,
on other persons.
l. The making of false allegations not made in good faith, by one
parent against the other, of harm to a child.
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m. Any other factors considered by the court to be relevant to a
particular parental rights and responsibilities dispute.
N.D.C.C. § 14-09-06.2(1).
[¶10] The juvenile court made the following findings by clear and convincing
evidence. The father has not cared for or had any contact with A.D. since 2007
or 2008, has not made any significant attempts to locate A.D. or have A.D.
placed in his care, and has failed to enroll in any program to rebuild his
relationship with A.D. Neither parent has provided any physical, emotional,
psychological, or financial care for A.D. for the last four years. A.D. testified
that her father committed severe domestic violence against her mother, she
was afraid of her father, did not know her father, and did not want to live with
him. A.D. testified she has grown close to her aunt and uncle and their family,
and she feels safe, loved, and welcomed in their home. The court found this
testimony credible in all material respects. The court found that A.D. was
mature and reasonable, giving substantial weight to A.D.’s expressed
preference to grant the guardianship, and that A.D.’s preference was not based
on undesirable or improper influences. A.D. was without proper parental care
or control, subsistence, education as required by law, or other care or control
necessary for her physical, mental, or emotional health or morals, and the
deprivation was not due primarily to the lack of financial means of the parents.
A.D. was abandoned by both parents, and the guardianship was best suited for
the protection and physical, mental, and moral welfare of A.D. The court found
the aunt and uncle were fit and willing to serve as guardians, and the
guardianship was in A.D.’s best interest.
[¶11] The father contends the juvenile court erred because it did not address
the best interest factors. Section 27-20.1-11(1), N.D.C.C., requires the court to
find by clear and convincing evidence that the appointment of a guardian is in
the child’s best interest. The court found the child was abandoned by both
parents. The mother did not appeal, and we have now affirmed the finding as
to the father. We are able to discern how the court’s findings apply to the
statutory best interest factors. The court was not required to specifically
identify and discuss each best interest factor. The court made sufficient
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findings to conclude that the guardianship was in the best interest of A.D. See
State v. P.K., 2020 ND 235, ¶ 15, 951 N.W.2d 254 (stating, “A court’s findings
are adequate if this Court is able to discern the factual basis for the court’s
decision, and the findings afford a clear understanding of its decision.”). The
juvenile court did not err in finding the guardianship was in A.D.’s best
interest.
V
[¶12] The father argues the juvenile court was required to find exceptional
circumstances existed in order to grant the guardianship, citing Interest of
G.L., 2018 ND 176, ¶ 7, 915 N.W.2d 685, which provides:
When there is a custody dispute between a natural parent and a
third party the test is whether or not there are exceptional
circumstances which require that in the best interest of the child,
the child be placed in the custody of the third party rather than
with the biological parent. The court cannot award custody to a
third party, rather than the natural parent, under a ‘best interest
of the child’ test unless it first determines that ‘exceptional
circumstances’ exist to trigger the best-interest analysis. Absent
exceptional circumstances the natural parent is entitled to custody
of the child even though the third party may be able to offer more
amenities.
[¶13] In Interest of G.L., the mother moved to terminate a voluntary
guardianship over her daughters. 2018 ND 176, ¶¶ 2-3. The guardianship was
previously stipulated to by her and the father and ordered by the juvenile court
after a finding of deprivation. Id. at ¶ 2. After a hearing on the motion to
terminate the guardianship, the court found the impediments creating the
deprivation had been removed, made findings on the best interest factors, and
continued the guardianship. Id. at ¶¶ 3-5. We reversed and remanded,
concluding the court was required to make findings on whether exceptional
circumstances existed before continuing the guardianship after the causes of
the children’s deprivation had been removed. Id. at ¶¶ 11-12.
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[¶14] Interest of G.L. cites to Worden v. Worden, 434 N.W.2d 341 (N.D. 1989),
for support. Worden was a custody case stemming from a divorce. Id. at 341.
The trial court awarded custody of the child to the mother’s husband, who was
not the child’s natural father, finding the mother’s unstable lifestyle and the
natural father’s failure to visit the child constituted exceptional circumstances.
Id. at 342. This Court reversed the husband’s custody award, concluding
exceptional circumstances did not exist. Id. at 343. We noted, however, that the
case was not one of deprivation under N.D.C.C. ch. 27-20, stating:
Where a natural parent’s fitness to provide a minimal
standard of adequate care for a child is at issue, proceedings under
the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C., are
available to protect and safeguard the interests of both parent and
child. If [the mother]’s “unstable lifestyle” to which the trial court
refers is serious enough to raise an issue of child deprivation,
appropriate proceedings can be commenced under Chapter 27-20,
N.D.C.C. It is improper to deprive [the mother] of [the child]’s
custody on the ground of unfitness in these proceedings, because
parental fitness is not the appropriate test.
Worden, 434 N.W.2d at 343; see also Hamers v. Guttormson, 2000 ND 93, ¶ 9,
610 N.W.2d 758 (same); Hust v. Hust, 295 N.W.2d 316, 320 (N.D. 1980) (stating
that once a child is found to be deprived, “the parents’ fundamental right to the
child’s custody was subrogated to the court’s authority to make a custody
determination in the best interests of the child pursuant to Section 27-20-30,
N.D.C.C.”).
[¶15] In Interest of P.T.D., 2017 ND 248, ¶ 10, 903 N.W.2d 83, we further
explained that the exceptional circumstances determination is not required
once the court finds the child is deprived:
[T]he juvenile court was not required to find exceptional
circumstances to place the children with their grandmother and
Stutsman County Social Services. The authority [the mother]
relies upon relates to domestic relations under N.D.C.C. tit. 14 and
does not apply to the removal and placement of a deprived child.
We have noted the test for placing a child in the custody of someone
other than a natural parent under N.D.C.C. tit. 14 differs from the
8
standard for determining parental fitness, which is governed by
N.D.C.C. tit. 27. See Hamers v. Guttormson, 2000 ND 93, ¶ 9, 610
N.W.2d 758. Under N.D.C.C. § 27-20-30, a deprived child may be
placed with a person or agency best suited to the protection and
welfare of the child. The statute does not require a finding of
exceptional circumstances to place a child with a relative or social
services, but rather only requires the juvenile court find the child
is deprived under N.D.C.C. § 27-20-02.
[¶16] In In re R.K., 2002 ND 111, ¶¶ 8-14, 646 N.W.2d 699, we reversed a
juvenile court order placing a child with his grandparents where the court
made no finding of exceptional circumstances. The court found the child was
deprived because his mother was unable to provide adequate care for him, but
made no similar finding with regard to the father. Id. at ¶ 10. We concluded it
was error to place the child with the grandparents without first finding that
the child was deprived as to both parents or that exceptional circumstances
required the placement. Id. at ¶¶ 12-13.
[¶17] In Interest of Guardianship of J.O., 2021 ND 76, ¶ 15, 958 N.W.2d 149,
we concluded that the juvenile court did not err when it extended a
guardianship for reasons of deprivation under ch. 27-20 and made no finding
of exceptional circumstances. However, we went on to state the exceptional
circumstances determination is required when the guardianship is first
implemented. Id. at ¶ 14. Whether an exceptional circumstances finding is
required to grant a guardianship for a deprived child was not at issue in
Guardianship of J.O. This statement was dictum because the case concerned
whether to extend a guardianship, not whether to establish one. Further, we
cited Worden for that proposition, which, as discussed above, was a divorce
proceeding under N.D.C.C. tit. 14, not a deprivation case under N.D.C.C. tit.
27.
[¶18] An exceptional circumstances finding is required when both a parent and
non-parent are suitable candidates. However, when the child is deprived by the
parents, no finding of exceptional circumstances is required to be made by the
court to grant a guardianship. The finding of deprivation eliminates the need
for a finding of exceptional circumstances. Accordingly, because A.D. is a
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deprived child, the juvenile court was not required to make a finding of
exceptional circumstances in order to grant the guardianship.
VI
[¶19] We affirm the juvenile court order granting a guardianship for A.D.,
concluding A.D. was a deprived child by way of abandonment, and the juvenile
court was not required to specifically identify and discuss each best interest
factor or make a finding of exceptional circumstances.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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