dissenting.
In applying the law set forth by the majority to the facts presented in this case, I cannot agree that there is clear and convincing evidence that K. D. and T. D. are deprived children so as to warrant the drastic step of terminating parental rights.
As pointed out by the majority, Section 27-20-02, subsection 5a, defines a “deprived child” as one who:
“a. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of his parents, guardian, or other custodian; ...”
The majority cites the case of In re H., 206 N.W.2d 871 (N.D.1973), as authority for including within the definition of “deprived child”:
“. . . the child of a mother who, while never having had the opportunity to care for her child and thereby demonstrate her maternal abilities, is shown to be presently incapable of providing proper parental care for her child.” 206 N.W.2d at 874.
In re H. involved a 16-year-old unmarried mother who had never had custody and control of her child. The court there was concerned that a child not be subjected to actual deprivation prior to the juvenile court’s assuming custody.
The facts in the present case differ substantially. Here, the parents had physical custody of their four children and had the opportunity to demonstrate their abilities as parents. At the time the children were removed, K. P. was 10 years of age, M. D. was 5, K. D. was 2½, and T. D. was 13 months old. The reason for the removal of the children is not entirely clear from the record; however, one witness testified that complaints from neighbors about the children’s being left alone provided the impetus for the removal. All the evidence presented concerning the physical and mental well-being of the children was positive. There was no evidence that the children were abused or neglected prior to the time that they were removed from the parental home. Upon being placed in foster homes, none of the children demonstrated any unusual behavior problems. The two older children are top students and get along well with almost everybody. The district court had an opportunity to interview the two older children and stated that K. P. “is a mature young boy who I think was more at ease with myself than I would have expected ninety per cent of the children would be. He talked freely. He was nice appearing, polite, and the Court was sincerely impressed with the soundness of some of the things he talked about and the manner in which he presented himself.” Surely the parents are entitled to some credit for this result.
The majority completely ignored the evidence concerning Mrs. D.’s demonstrated maternal abilities and, instead, concluded that Mrs. D. is presently incapable of providing proper parental care. The facts upon which the majority reached this conclusion are not stated.
Mrs. D. was diagnosed as suffering from a manic-depressive condition and the drug Lithium was prescribed for her, which she began to take regularly in April of 1977. Testimony indicated that this treatment helped considerably to stabilize Mrs. D. Both Mr. and Mrs. D. testified that their marriage is the best it has been in eight years.
Two social workers from Louisiana testified based upon their contacts in that State with Mr. and Mrs. D. Juanita Messa’s contacts consisted of 13 personal visits in that State and about the same number of telephone conversations during a 3V2-month pe*9riod, all of which took place during the time Mrs. D. was not taking Lithium. Statements and opinions based on contacts with Mrs. D. prior to the time that she was regularly taking Lithium should be accorded little weight in determining her present ability to care for her children. Ms. Messa had no contact with the children. She testified that Mr. and Mrs. D. came to all of the sessions which were set up except for one which was cancelled due to illness.
The other Louisiana social worker, Cheryl Campos, had only two personal contacts with Mr. and Mrs. D., both of which took place while Mrs. D. was taking the Lithium medication. Ms. Campos testified concerning her first encounter with Mrs. D. She stated that at first Mrs. D. exhibited the manic state and then later became depressed. She testified that, “When asked very innocuous little questions she [Mrs. D.] seemed to feel that the weight of the world was depending on her coming up with the right answer.” It is not surprising that Mrs. D. felt that her answers to the questions asked by the social worker were crucial to her attempt to regain custody of her children. Ms. Campos gave her opinion of Mr. and Mrs. D.’s ability to provide care for their children based upon her clinical knowledge of Mrs. D.’s illness. Admittedly, her opinion is only speculation. She stated that Mrs. D.’s inability to function with her illness untreated was the primary reason that the marriage was not working and the children were not being properly cared for.
The evaluation of the parents by Dr. Wm. Van Veen, a Louisiana psychiatrist, is recognized by the majority as the most positive prognosis. It would seem that more weight should be given to the evaluation of a licensed psychiatrist concerning his clinical knowledge of Mrs. D.’s manic-depressive condition than to the opinion of a social worker. Dr. Van Veen described Mrs. D.’s response to Lithium as a “rather dramatic stabilization of her mood.” He also stated that “Both Mrs. [D.] and her husband think that the time is right for them to have their children back and I would tend to agree. That is, as long as Mrs. [D.] continues to take Lithium, which she should do indefinitely, the probability is that she will no longer have severe mood swings that would lead to bizarre or irrational behavior or significant marital difficulty.”
Dr. Van Veen also evaluated Mr. D. and concluded that there was nothing to indicate any significant mental problem in Mr. D. I am at a loss to understand why his parental rights to his children should be terminated.
Dr. Anthony Savoca, a Louisiana psychologist, evaluated only Mrs. D., and his evaluation was based upon various psychological testing methods.
The State has a very heavy burden of proof in cases such as this, and this burden is not met where the evidence leaves only an inference that the children are deprived. This court recognizes that termination of parental rights is a drastic measure which should not be ordered except upon a proper showing by clear and convincing evidence. See Interest of R. D. S., 259 N.W.2d 636, 639 (N.D.1977):
“ ‘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).”
As we stated in Interest of R. D. S., supra, 259 N.W.2d at 638,
“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).”
Mrs. D. had ten years to demonstrate her maternal abilities, and there is scant evidence that she was incapable of providing *10proper parental care and no evidence that the children were harmed as a result of the care she provided. Mrs. D. recognized her mental problems and consulted with her minister, who was going to arrange for someone to take care of the children until she could handle the situation. Her seeking assistance from others under such circumstances demonstrated the exercise of good judgment.
The majority stresses the financial problems of the parents as related by social workers. The financial means of the parents is not a proper consideration upon which to base a finding of deprivation. Sec. 27-20-02, subsec. 5a.
It should also be emphasized that the question of who serves as the psychological parent of a child is not properly to be considered when determining whether the child is “deprived” within the meaning of the statute, but is an important consideration only after deprivation has been clearly shown.
In determining whether Mr. and Mrs. D. are presently capable of providing proper parental care, their past efforts demonstrating their abilities should be considered as an important indicator. In addition, Mrs. D.’s response to Lithium treatments showed a drastic improvement in the stabilization of her mental condition as well as her marriage. Both Mr. and Mrs. D. expressed a sincere desire to regain custody of their children and are prepared to continue counseling in the event custody is returned to them.
I also emphasize that there is practically nothing in the record to support the termination of the parental rights of the father.
The State has not borne its burden of proving by clear and convincing evidence that the two younger children are deprived. Without a determination of deprivation there is no authority to terminate parental rights.
SAND, J., concurs.