Dasovick v. A. B.

PEDERSON, Justice. This is an appeal by a mother (A.B.) from a juvenile court order which (after a finding of deprivation) terminated her parental rights to her son (R.D.S.). Although A.B. argued that some of the evidence which related to the finding of deprivation was improperly admitted, we construe her overall argument as challenging only the termination of her parental rights. After the broad review contemplated by § 27-20-56, North Dakota Century Code, we find that termination of parental rights is not warranted under the evidence presented. See In re R.Y., 189 N.W.2d 644 (N.D.1971). A.B. suffers from a mental illness which has periodically required hospitalization and requires that she use medication prescribed to aid her in controlling her functioning. She has sought and received, over a period of years, assistance and counseling from her pastor, from the Memorial Mental Health Unit in Mandan, and from Morton County Social Services. At the time of the juvenile court hearing, she was a patient at the State Hospital. R.D.S. has been represented in the juvenile court proceeding and in this Court by a guardian ad litem. The petition which instituted the proceeding to terminate parental rights, in addition to alleging that R.D.S. is a deprived child, significantly alleges that R.D.S. (who was then almost ten years old) no longer wished to live in his mother’s home. At the hearing a letter to his mother was accepted as evidence which indicates that R.D.S. has changed his mind. The letter expressed deep love for his mother and stated that he was sorry for what he had done. On the basis of evidence not objected to, we concur in the finding that R.D.S. is a deprived child. In view of the existence of properly admitted, clear and convincing evidence supporting the finding of deprivation, we will not consider whether there was also privileged information wrongfully admitted.1 Ordinarily, in non638 jury cases, all testimony offered which is not clearly inadmissible should be admitted. Beck v. Lind, 235 N.W.2d 239 (N.D.1975); Matson v. Matson, 226 N.W.2d 659 (N.D.1975); Schuh v. Mery, 210 N.W.2d 96 (N.D.1973). The admissible evidence, which we have independently evaluated (and to which no objection was made), satisfies us that R.D.S. is a deprived child and that his placement in a foster home was a necessity: (1) A.B. was periodically hospitalized for mental illness; (2) A.B.’s current husband had instituted divorce proceedings and indicated no desire to care for R.D.S.; (3) A.B. had a propensity for shoplifting, even when accompanied by R.D.S.; (4) there was turmoil in the home which caused R.D.S. to react negatively at school and at home. A mother’s parental rights are paramount and have been recognized to be of constitutional dimensions, but they are not absolute rights. In re A. N., 201 N.W.2d 118 (N.D.1972); In re J. Z., 190 N.W.2d 27 (N.D.1971). See also, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Determining what is the “best interest of the child” is not the primary question before the court in a deprivation case or one to terminate parental rights. In Interest of M. L., 239 N.W.2d 289, 295 (N.D.1976). Before parental rights may be terminated, three separate and distinct findings must be made: (1) that the child is a deprived child; (2) that the causes and conditions of the deprivation are likely to continue or will not be remedied; (3) that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral or emotional harm. Section 27-20-44(1)(b), NDCC. McGurren v. S. T., 241 N.W.2d 690 (N.D.1976); In re H., 206 N.W.2d 871 (N.D.1973). Each of the three factual findings must be supported by clear and convincing evidence. In re J. Z., supra; Interest of R. W. B., 241 N.W.2d 546 (N.D.1976). A showing of parental misconduct without a showing that there is a resultant harm to the child is not sufficient. See footnote 2 in Bjerke v. D. T., 248 N.W.2d 808, 814 (N.D.1976), citing Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985 (1975). Evidence which compares the child-rearing skills of the mother and of the foster parents cannot alone form the basis of a finding of harm to the child, provided the mother’s efforts meet minimum standards of care. Our review of the evidence on the question as to whether the causes and conditions of the deprivation are likely to continue or will probably not be remedied leads us to conclude that the proof is far from clear and convincing, and leaves only an inference at best. Continuous efforts by social workers and counselors over an extended period could lead one to conclude that the cause of the deprivation is going to remain a life-long problem. Those efforts could also indicate that the problem is one of considerable gravity, but capable of solution. The testimony which reflected directly on the question was all optimistic and indicated that improvement had occurred and further improvement was likely. A.B.’s husband testified that “when she got help, she did not shoplift,” and “when she has no trouble with her medication, she is a pretty wonderful woman to live with.” The pastor, as well as the social worker and counselor who testified, either stated that they were not qualified to give a future evaluation or expressed the idea that progress was being made. A.B.’s own testimony is that she can and has quit shoplifting, believes in God, knows she can do the right thing, and believes she can follow the doctor’s orders. There is other favorable testimony: A.B. is able to deal with problems like any person; the petition to terminate parental rights and the pending divorce were in the nature of crises which [639] A.B. was able to handle; she has learned her lesson now; A.B. exercised very good judgment in committing herself voluntarily; when A.B. now has a problem, she takes her medication, prays, and seeks counseling; and A.B. now has a positive approach. The dissent places great weight on the use of past history, expressing the view that this is “especially important and necessary if the rules of evidence are so construed as to prevent the testimony of medical personnel who could help shed more light on what the future may hold.” While the trial court did refuse to hear the testimony of a medical doctor, the petition before the court alleged deprivation. Such an allegation does not bring into play the statutory abrogation of all but the attorney-client privilege as found at § 50-25.1-10, NDCC. Had the petition alleged neglect, and had the proceeding resulted from a report of child abuse or neglect, pursuant to Chapter 50-25.1, NDCC, the Rule 503 physician and psychotherapist-patient privilege would have been abrogated. The case of In Interest of M.L., supra, discusses the question of whether we might discourage parents suffering from emotional disturbances from seeking treatment if we base a determination of deprivation upon the absence of parental control during the period of treatment. How much more discouraging it would be were we to terminate parental rights because of deprivation arising out of seeking or receiving treatment. Fault, which might be considered a factor in these proceedings, should not be found to arise out of illness, mental or otherwise. We are not allowed to speculate as to what the psychiatrist from the State Hospital might have said about the permanence of A.B.’s mental illness if he had been permitted to testify. We are not convinced that petitioner has met the burden of showing by clear and convincing evidence that the conditions and causes of R.D.S.’s deprivation are likely to continue and will not be remedied. See In re H., 206 N.W.2d 871 (N.D.1973). “It is no slight thing to permanently deprive a parent of the care, custody and society of a child, or a child of the protection, guidance and affection of a parent, notwithstanding that the parent has erred in the past, and especially where there is yet a possibility that the parent may later demonstrate a rehabilitation by sufficient conduct and character in accord with the accepted standards and duties of motherhood.” [Emphasis added.] State v. Grady, 231 Or. 65, 371 P.2d 68, 69 (1962). It is easy to conclude that there might be a better home than that which his mother has provided for R.D.S. It is also easy to conclude, as the dissent does, that an adoptive home, which has been carefully evaluated by competent social service agencies, could provide that better home. It is, however, very naive to think that the adoption of a ten-year-old accomplishes those same things as the adoption of an infant. No matter what this Court says or does, R.D.S. will continue to know A.B. is his mother. Her imperfections in that role may have diminished the relationship but they are vastly short of eliminating it. We must not, in a rush to find a better home for R.D.S., forget that he has grown more than halfway into adulthood under the parenting of A.B. For better or worse, he takes that experience with him. Keeping State intervention in the matter of child rearing to a minimum, consistent with necessity, is essential to the American ideal, and compels a conclusion that temporary custody or court-directed supervision is adequate and more acceptable than permanent parental termination in this case. See Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The order of the juvenile court terminating the parental rights of A.B. to her son, R.D.S., under § 27-20-44, NDCC, is reversed. Because we agree with the finding that R.D.S. is a deprived child, this case is remanded to the juvenile court for disposition in accordance with § 27-20-30, NDCC, which authorizes continued supervision or the transfer of temporary legal custody. If [640] there is proof available that A.B.’s condition is permanent, further proceedings may be warranted. VOGEL and SAND, JJ., concur. Footnotes [1] We acknowledge the existence of some difficult questions as to the admissibility of evidence in juvenile proceedings. See Interest of R.W.B., 241 N.W.2d 546 (N.D.1976). In a deprivation case, Chapter 27-20, NDCC, requires a two-phased hearing. The same rules of evidence do not apply to both the first phase (sometimes called the adjudicatory hearing), at which the question for decision is whether the child is deprived, and the second phase (sometimes called the dispositional hearing), at which the question for decision is, what will be done for the benefit of the deprived child. It may not be significant in a deprivation case to keep the two phases separated as it would be in a delinquency case where the safequards described in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), apply. Perhaps unfortunately, our statutes apply the same procedural rules, regardless of the type of proceedings. There are some unfortunate inconsistencies in the language of the Uniform Juvenile Court Act (Chapter 27-20), the Child Abuse and Neglect Act (Chapter 50-25.1), and Rule 1101(d)(3), NDREv. The broad abrogation of all rights, except the attorney-client privilege (Section 50-25.1-10), cannot meet the standards of Gault if applied to the first phase of a delinquency proceeding. The North Dakota Rules of Evidence do not list any provision of either Chapters 27-20 or 50-25.1 as having been superseded, even though it might be argued that Rule 1101(d)(3) is inconsistent with the statutes. Before arguments are made that portions of Chapter 50-25.1 apply to a deprivation proceeding, there should be specific allegations in the petition that the proceedings are pursuant to that chapter and that the prerequisites of that statute are met. Procedures in Chapter 27-20 do apply to abuse and neglect cases brought under Chapter 50-25.1; however, the reverse is not true. It should also be noted that there may very well be a significantly different application of privilege rules to the child, in whose interest the proceedings are brought, [638] and to the mother of that child. The terms “adjudicatory hearing” and “dispositional hearing” are not words from the statute, but are used by social service workers, and are recognized and meaningful terms in some courts. See In Re P. L. H., 199 N.W.2d 587, 589 (S.D.1972), and In Interest of M.L., 239 N.W.2d 289, 293 (N.D.1976).