Gaddie v. A.D.S.

MARING, Justice,

dissenting.

[¶ 19] Because I believe there is evidence in this record to support the juvenile court’s finding that R.S. is a deprived child and I am not left with a definite and firm conviction the juvenile court made a mistake in finding R.S. is a deprived child, I respectfully dissent.

[¶20] Under N.D.C.C. § 27-20-02(8)(a), a “[d]eprived child” means a child “without 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, guardian, or other custodian.”

*284[¶ 21] Proper parental control refers to the minimum standard of care which the community will tolerate. In Interest of K.R.A.G., 420 N.W.2d 325, 327 (N.D.1988). We have said a pattern of parental conduct can form a basis for a reasonable predication of future behavior. In re B.B., 2008 ND 51, ¶ 9, 746 N.W.2d 411. A child may be deprived even though the child has been receiving adequate foster or other proper care from a source other than the parent. In Interest of T.J.O., 462 N.W.2d 631, 633 (N.D.1990).

[¶ 22] Deprivation must be established by clear and convincing evidence. In re B.B., 2008 ND 51, ¶ 6, 746 N.W.2d 411. A juvenile court’s finding that a child is deprived is a finding of fact governed by the clearly erroneous standard of review in N.D.R.Civ.P. 52(a). See In re B.B., at ¶ 4. “ ‘A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.’ ” In re T.A., 2006 ND 210, ¶ 11, 722 N.W.2d 548 (citation omitted). A trial court’s choice between two permissible views of the evidence is not clearly erroneous, and simply because this Court may have viewed the evidence differently does not entitle this Court to reverse a trial court. Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144. Under N.D.R.Civ.P. 52(a), this Court does not reweigh conflicts in the evidence, and we give due regard to the trial court’s opportunity to judge the credibility of the witnesses. Brandt, at ¶ 12. When a party appeals a juvenile court order, we review “the files, records, and minutes or transcript of the evidence” and we give “appreciable weight to the findings of the juvenile court.” N.D.C.C. § 27-20-56(1).

[¶ 23] On July 20, 2009, Grand Forks County Social Services received custody of A.D.S., who was seventeen years old. A.D.S.’s parents agreed that A.D.S. and her one-year old child, R.S., would live with AD.S.’s father in Fargo, but she ran away from her father’s house with R.S. on August 12, 2009, and their whereabouts were not known until police located them approximately three weeks later on September 3, 2009, in East Grand Forks at the home of AD.S.’s mother’s boyfriend.

[¶ 24] A licensed Grand Forks County social worker, Jacki Lund, testified that AD.S.’s mother denied knowing the whereabouts of A.D.S. and R.S. during that time. Lund also testified that A.D.S. had difficulty following rules and respecting the county’s position as her custodian. Lund testified that after Grand Forks County Social Services had custody of both A.D.S. and R.S., A.D.S. on numerous occasions had received permission to go some place and she was not where she said she would be, that A.D.S. failed to go to school and no one knew where she was when she was not at school, and that social services had implemented a visitation plan for R.S. to see his father but A.D.S. ignored the visitation plan and took R.S. to his father’s mother’s house without notifying social services. Lund explained there was “a lack of, of follow-through with rules both in the foster home and from case management through me,” and A.D.S. had a “lack of understanding how her behaviors are impacting R.[S.]” Lund opined that R.S. was deprived:

The basis is that I’ve got a 17 year old juvenile who has a 17 month old baby. And the 17 year old is making, A.[D.S.], is making poor choices for herself which affects R.[S.’s] future. And I believe that based on her decisions and how it affects R.[S.] that he continuance [sic] to be deprived.
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*285I feel that he’s deprived because she puts him in situations that the adults in her life are not aware of. She puts him with people that we don’t know, that we’re not familiar with. It’s, she puts, she’s not forthcoming in where she’s going and what she’s doing and therefore we don’t know where R.[S.] is and we don’t know who he’s with and what’s taking place when she’s with him. So I believe the deprivation comes with her poor choices for herself, therefore, it’s affecting him because if we don’t know where she is, we don’t know where he is, and we can’t keep him safe if we can’t keep her safe.

[¶ 25] R.S.’s guardian ad litem, Lloyd Rath, testified that A.D.S. makes bad decisions in her life that affect R.S. but as long as A.D.S. was in foster care, he was not concerned about R.S. Rath testified, however, that A.D.S. would turn 18 in May 2010 and she thereafter would not be in foster care. Rath testified that A.D.S. told him that she had been staying with her mother at her mother’s boyfriend’s house after she ran away from her father’s home with R.S. Rath testified that he was always concerned when A.D.S. was with her mother. A.D.S. and R.S. were initially living with A.D.S.’s mother when Grand Forks County Social Services received custody of A.D.S. on July 20, 2009, and A.D.S.’s parents agreed that she would live with her father in Fargo. There was evidence that social services first contact with A.D.S. was through services provided to her mother and that there had been a deprivation finding against A.D.S.’s mother. There was also evidence that A.D.S. preferred to live with her mother because she had not had to follow rules while living with her mother. This record also includes Rath’s report, which provides:

[A.D.S.] said that she has no intention of running from the foster home. She said it is OK in the foster home but it is not like being with her mother. [A.D.S.] wants everyone to know that she is a good mom. I was able to talk with [A.D.S.] that the concern is not about her being a good mom it is about the choices she makes that puts [R.S.] at risk. At this time both [A.D.S.] and [R.S.] are doing good. [A.D.S.] recently got in trouble in the foster home as she was not at the place she told the foster mother she would be at. She went to a friend[’]s home, left there early and went over to [R.S.’s] father[’]s house. She is currently grounded and feels that is fair.
[A.D.S.’s] concern is she does not wanted [sic] GFCSS to have a one year custody order. She could support an order that only goes till May 2010 as that is when she will be 18 and can leave foster care....

[¶ 26] There was evidence that A.D.S., while in the custody of Grand Forks County Social Services, ran away from her father’s home with R.S. and their location was not known for three weeks. During that time, A.D.S. allowed other individuals to care for R.S. and A.D.S. lacked knowledge about the parenting skills of those individuals. Lund testified social services had information that A.D.S. in the past had been with people that were not the best people for R.S. to be around. There was evidence that A.D.S. had obtained a restraining order against the mother of R.S.’s father, which Lund believed necessitated supervised visitation for R.S.’s father, and that while A.D.S. was in foster care with R.S., A.D.S. took R.S. to the home of the father’s mother in contravention of the visitation plan that Lund had developed for R.S. Lund testified the mother of R.S.’s father had recently been charged with possession of marijuana. Further, when A.D.S. failed to attend classes at school, no one knew where she *286was, and she did not return to the foster home to take care of R.S.

[¶ 27] In reviewing this record, I am mindful that A.D.S. herself was in the custody and control of Grand Forks County Social Services after July 20, 2009, and that R.S. was in the temporary custody and control of Grand Forks County Social Services for sixty days from September 3, 2009. There is evidence that while A.D.S. was in the custody of social services, she placed R.S. at risk when she left her father’s home with R.S. for three weeks without informing Grand Forks County Social Services of their whereabouts, that A.D.S. relied on individuals with unknown ability to care for R.S. during that time, and that A.D.S. took R.S. to the home of his father’s mother in contravention of a visitation plan imposed by Grand Forks County Social Services when R.S. was in the custody of Grand Forks County Social Services. The evidence in this record shows that while A.D.S. was in the custody of Grand Forks County Social Services, she has demonstrated a pattern of inadequate decision making on behalf of R.S. and that her pattern of decision making has placed R.S. at risk.

[¶ 28] Although R.S. may not have suffered any tangible harm while he has been in foster care, there is evidence in this record that A.D.S.’s pattern of decision making has subjected him to a risk of harm. R.S. may not have suffered any tangible harm yet, but the evidence establishes a risk of harm and a pattern of inappropriate decision making and failure to conform to established rules and I do not believe we must wait for some tangible harm to R.S. R.S. has been receiving adequate foster care primarily from a source other than A.D.S., but A.D.S.’s pattern of poor decision making and its affect on R.S. can form a basis for a reasonable prediction of future behavior.

[¶ 29] I believe there is evidence that A.D.S.’s pattern of conduct while herself in custody of Grand Forks County Social service is below the minimum standard of care for which the community will tolerate, which, in turn, constitutes evidence that A.D.S. failed to provide proper parental control or care for R.S. Although I agree with the juvenile court that this is a “difficult case” and I may have reached a different result if I had been the juvenile court, I am convinced there is evidence in this record to support the juvenile court’s finding that A.D.S. was not providing proper parental control or care for R.S. On this record, I cannot conclude, as a matter of law, that the State has not established R.S. was a deprived child. Giving due regard to the juvenile court’s opportunity to assess the credibility of the witnesses, I am not left with a definite and firm conviction the juvenile court made a mistake in deciding R.S. was a deprived child under N.D.C.C. § 27-20-02(8)(a).

[¶ 30] I would affirm the juvenile court order.

[¶ 31] DALE V. SANDSTROM, J., concurs.