Interest of N.L. , 2022 ND 235 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 22, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 235In the Interest of N.L., Jr., minor child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
N.L., Jr., Child; A.H., Mother; Respondents
and
N.L., Sr.; Respondent and Appellant
No. 20220311
In the Interest of J.L., minor child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
J.L., Child; A.H., Mother; Respondents and Appellees
and
N.L., Sr.; Respondent and Appellant
No. 20220312
Appeal from the Juvenile Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Zachary Ista, Assistant State’s Attorney, Grand Forks, ND, for petitioner and
appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for respondent and appellant.
Interest of N.L. and J.L.
Nos. 20220311 & 20220312
Crothers, Justice.
[¶1] N.L., Sr. appeals from the juvenile court’s order terminating his parental
rights. N.L., Sr. argues the court lacked subject matter jurisdiction to
terminate his parental rights, the Grand Forks County Human Service Zone
(GFCHSZ) lacked standing, and the court erred in finding GFCHSZ met the
requirements for termination of parental rights under the federal Indian Child
Welfare Act (ICWA) and N.D.C.C. § 27-20.3-19. We affirm.
I
[¶2] A.H. and N.L., Sr. are the biological mother and father of N.L., Jr., born
in 2015 and J.L., born in 2018. On August 9, 2020, N.L. and J.L. were removed
from their home after law enforcement performed a welfare check. After the
removal GFCHSZ was contacted for placement of the children. That same day
GFCHSZ sought and received an emergency temporary custody order for the
children. On November 19, 2020, the juvenile court granted full custody to
GFCHSZ for up to 12 months beginning August 9, 2020. On August 19, 2021,
the court extended full custody to GFCHSZ for no more than 12 months
beginning August 2, 2021.
[¶3] On March 4, 2022, GFCHSZ filed a petition for involuntary termination
of parental rights based on the children’s need for protection. On July 6, 2022,
the custody order was extended until trial on August 31, 2022. At the end of
trial the juvenile court requested the parties submit proposed findings of fact
and conclusions of law by September 14, 2022. On September 15, 2022, the
court issued its findings of fact and an order terminating parental rights.
II
[¶4] N.L., Sr. argues the juvenile court did not have subject matter
jurisdiction to grant the termination of parental rights. He claims the juvenile
court lost jurisdiction over the case when the order finding the children were
in need of protection expired on August 31, 2022, and it did not regain subject
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matter jurisdiction before issuing its termination of parental rights order on
September 15, 2022. He acknowledges a disposition order may be extended
under circumstances provided in N.D.C.C. § 27-20.3-26(4). But, he claims, the
absence of a disposition order under N.D.C.C. § 27-20.3-15 requires the
conclusion that the State cannot prove under N.D.C.C. § 27-20.3-20(1)(c) that
the children remain in need of protection. Under his theory, the lack of a then-
current dispositional order finding a child is in need of protection equates to
the juvenile court lacking subject matter jurisdiction to adjudicate the
termination of parental rights. In support of his argument, N.L., Sr. cites
N.D.C.C. §§ 27-20.3-02; 27-20.2-03; 27-20.3-20(1)(c) and Eastburn v. B.E., 545
N.W.2d 767, 770 (N.D. 1996). Each basis of legal support cited by N.L., Sr. will
be addressed in turn.
[¶5] Section 27-20.3-02, N.D.C.C., provides, “Jurisdiction as set forth in
section 27-20.2-03 is applicable to this chapter.” Under N.D.C.C. § 27-20.2-03,
“The juvenile court has exclusive original jurisdiction of the following
proceedings,” including “[p]roceedings for the termination of parental rights
except if a part of an adoption proceeding under chapter 27-20.3.”
[¶6] Under N.D.C.C. § 27-20.3-20(1)(c), the juvenile court “may terminate the
parental rights of a parent with respect to the parent’s child if:
c. The child is in need of protection and the court finds:
(1) The conditions and causes of the need for protection are
likely to continue or will not be remedied and for that reason
the child is suffering or will probably suffer serious physical,
mental, moral, or emotional harm; or
(2) The child has been in foster care, in the care, custody, and
control of the department or human service zone for at least
four hundred fifty out of the previous six hundred sixty
nights.”
A “Child in need of protection” means a child who:
“a. Is 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 need for services or protection is not due primarily to the lack
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of financial means of the child’s parents, guardian, or other
custodian;
b. Has been placed for care or adoption in violation of law;
c. Has been abandoned by the child’s parents, guardian, or other
custodian;
d. Is without proper parental care, control, or education as
required by law, or other care and control necessary for the child’s
well-being because of the physical, mental, emotional, or other
illness or disability of the child’s parent or parents, and that such
lack of care is not due to a willful act of commission or act of
omission by the child’s parents, and care is requested by a parent;
e. Is in need of treatment and whose parents, guardian, or other
custodian have refused to participate in treatment as ordered by
the juvenile court;
f. Was subject to prenatal exposure to chronic or severe use of
alcohol or any controlled substance as defined in chapter 19-03.1
in a manner not lawfully prescribed by a practitioner;
g. Is present in an environment subjecting the child to exposure to
a controlled substance, chemical substance, or drug paraphernalia
as prohibited by section 19-03.1-22.2; or
h. Is a victim of human trafficking as defined in title 12.1.”
N.D.C.C. § 27-20.3-01(5).
[¶7] A dispositional order containing a finding a child is in need of protection
is not the exclusive way to prove that fact during a termination of parental
rights proceeding. Even if it was, the defect would be one of proof and not
jurisdiction because nothing in N.D.C.C. Ch. 27-20.3 requires that a disposition
order be in place before termination of parental rights can be sought.
[¶8] We addressed a similar argument in Interest of T.H., 2012 ND 254, 825
N.W.2d 844. There, a child’s father argued under prior law that the failure to
extend an order of disposition deprived the juvenile court of jurisdiction to hold
a subsequent hearing. Id. at ¶ 6. We rejected the argument, stating:
“A court has jurisdiction to issue a valid order if it has
jurisdiction over the parties and the subject matter of the action.
The juvenile court had jurisdiction over the parties and had subject
matter jurisdiction because it ‘had the “power to hear and
determine the general subject involved in the action.”’ It is well
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settled that ‘unless a statute imposing a time limit declares that
the time limit is jurisdictional, we will not treat the time limit as
affecting the jurisdiction of a court or administrative agency.’
Section 27-20-36, N.D.C.C., does not state that the time limit for a
hearing is jurisdictional. The statutory violation did not divest the
juvenile court of jurisdiction to hold the hearing and its
permanency order extending T.H.’s placement is not void.”
Id. at ¶ 7 (cleaned up).
[¶9] N.L., Sr. also cites Eastburn v. B.E., 545 N.W.2d 767, 770 (N.D. 1996) for
support of his argument the juvenile court lost jurisdiction when the custody
order lapsed. Eastburn was a proceeding under the former law where this
Court affirmed a juvenile court order continuing a state social services agency’s
care, custody, and control of a mother’s children for 18 months. There, we
stated “before extending a disposition order, the juvenile court must find that
the child remains ‘deprived’ as defined by section 27-20-02(5), N.D.C.C.,
because the court would lack jurisdiction over the child under section 27-20-
03(1)(a), N.D.C.C., without such a finding.” Id.[¶10] While true Eastburn addressed “jurisdiction over the child,” this Court
did not take the next step suggested by N.L., Sr. and hold a valid deprivation
order was required before the juvenile court could terminate parental rights.
Rather, Eastburn only addressed extending a deprivation order and, in that
context, we made the unremarkable holding that the juvenile court did not
have jurisdiction over a child who was not alleged to be deprived. As explained
in another case, “[u]nder N.D.C.C. § 27-20-03(1)(a), the juvenile court has
exclusive jurisdiction over ‘proceedings in which a child is alleged to be . . .
deprived.’” Interest of J.B., 2018 ND 200, ¶ 5, 916 N.W.2d 787.
[¶11] “When jurisdictional facts are not disputed, the issue of subject matter
jurisdiction is a question of law, which we review de novo.” Sholy v. Cass
County Commission, 2022 ND 164, ¶ 9, 980 N.W.2d 49. Here, GFCHSZ
concedes the disposition and custody order briefly lapsed between the end of
trial and issuance of the termination order. However, the presence of that gap
does not support a conclusion the juvenile court did not have subject matter
jurisdiction to terminate N.L., Sr.’s parental rights. Rather, the juvenile court
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explicitly had jurisdiction over the proceeding. See N.D.C.C. § 27-20.3-02 and
27-20.2-03. Under N.D.C.C. § 27-20.3-20(1)(c) the State was required to prove,
and the juvenile court was required to find, certain facts, including that the
children were in need of protection. Nothing in N.D.C.C. chapter 27-23.3
requires a predicate order of disposition. Instead, N.D.C.C. § 27-20.3-20(1)(c)
simply imposes a proof requirement—that the children are in need of
protection. Therefore, the juvenile court had subject matter jurisdiction to
decide whether to terminate N.L., Sr.’s parental rights, and retained authority
to decide GFCHSZ’s petition after the disposition order expired.
III
[¶12] N.L., Sr. argues GFCHSZ lost standing to bring a petition for
termination of parental rights after the order giving it custody of the children
expired on August 31, 2022.
[¶13] “Standing is the concept used ‘to determine if a party is sufficiently
affected so as to insure that a justiciable controversy is presented to the court.’”
Whitecalfe v. North Dakota Dept. of Transp., 2007 ND 32, ¶ 15, 727 N.W.2d
779. “The litigant must have an interest, either in an individual or
representative capacity, in the cause of an action, or a legal or equitable right,
title, or interest in the subject matter of the controversy in order to invoke the
jurisdiction of the court.” Id. “Whether a party has standing to litigate an issue
is a question of law, which we review de novo.” Id. North Dakota law addresses
who may petition for termination of parental rights:
“A petition for termination of parental rights must be prepared,
filed, and served upon the parties by the state’s attorney. A petition
may also be prepared by any other person that is not the court,
including a law enforcement officer, who has knowledge of the facts
alleged or is informed and believes that they are true. A petition
prepared by any person other than a state’s attorney may not be
filed unless the director or the court has determined the filing of
the petition is in the best interest of the public and the child.”
N.D.C.C. § 27-20.3-21(2) (emphasis added).
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[¶14] GFCSHZ’s custody order expired between the end of trial and the
issuance of the termination order. However, GFCSHZ had custody of the
children when the petition for termination was filed on March 4, 2022. The
petition was prepared by the state’s attorney on behalf of GFCHSZ, in accord
with N.D.C.C. § 27-20.3-21(2). By virtue of the custody order, GFCHSZ had an
interest in a representative capacity, meaning they had standing to maintain
this action through trial. Due to the nature of these proceedings, and the fact
no other person or entity had legal custody of the children between trial and
when the juvenile court ordered termination of parental rights, we conclude
GFCHSZ continued to have a sufficient interest in the children to insure a
justiciable controversy was presented to the court. See Whitecalfe, 2007 ND 32,
¶ 15.
IV
[¶15] N.L., Sr. argues the juvenile court erred in finding GFCSHZ made active
efforts to prevent the breakup of an Indian family and the efforts were
unsuccessful.
[¶16] The Indian Child Welfare Act provides:
“No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported by
evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses that the continued custody of the child
by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.”
25 U.S.C.A. § 1912(f).
[¶17] IWCA, 25 U.S.C.A. § 1912(d), also requires that a party seeking to
terminate parental rights to an Indian child show evidence active efforts have
been made to provide remedial services and rehabilitative programs to prevent
the breakup of the Indian family, and those efforts were unsuccessful.
[¶18] The North Dakota legislature codified these federal requirements.
N.D.C.C § 27-20.3-19. Under N.D.C.C § 27-20.3-19(1)(a), “‘[a]ctive efforts’
means affirmative, active, thorough, and timely efforts intended primarily to
6
maintain or reunite an Indian family and that these efforts have proved
unsuccessful.” Examples of active efforts include conducting assessments of
the family, identifying services for the parents, involving the child’s tribe,
connecting the child to extended family members, keeping siblings together
when possible, supporting paternal visitation, and helping parents use
available community resources. N.D.C.C § 27-20.3-19(1)(a)(1-11); 25 CFR §
23.2.
[¶19] We review the juvenile court’s factual findings for termination of
parental rights under the clearly erroneous standard. Interest of A.C., 2022 ND
123, ¶ 5, 975 N.W.2d 567. “Under the clearly erroneous standard of review, we
affirm the decision of the juvenile court unless it is induced by an erroneous
view of the law, if there is no evidence to support it, or if, on the entire record,
we are left with a definite and firm conviction a mistake has been made.” Id.[¶20] N.L. and J.L. are members of the Spirit Lake Indian tribe through one
or both parents. Therefore, the IWCA and North Dakota’s Indian Child Welfare
Act apply to this proceeding.
[¶21] The juvenile court heard testimony from two GFCSHZ employees who
worked closely with the children, and from a qualified expert witness
appointed by the Spirit Lake Indian tribe as required by law. See 25 U.S.C.A.
§ 1912(f); N.D.C.C § 27-20.3-19(5). The witnesses testified that continued
custody of the children by the parents or an Indian custodian was likely to
result in serious emotional or physical damage to the children. See 25 U.S.C.A.
§ 1912(f); N.D.C.C § 27-20.3-19(5). The testimony included: the family’s history
with child protective service including exposure to domestic violence, exposure
to drugs and alcohol, and insufficient parenting; the children testing positive
for marijuana, amphetamines, and methamphetamines after they were
removed from the home; a police search of the home finding multiple dangerous
and child accessible items including scissors, a dagger, nails, gabapentin pills,
and garbage; how the parents cannot maintain a stable home environment;
how both children require high care for specific needs and the parents have not
shown they can provide that care.
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[¶22] The witnesses provided examples of active efforts made to prevent the
breakup of the Indian family. See 25 U.S.C.A. § 1912(d); N.D.C.C § 27-20.3-
19(2). The efforts included services through law enforcement, child protection
services, family preservation services, foster care case management,
recommendations for alcohol and drug evaluation and treatment for both
parents, mental health services for both parents, random drug screenings,
medical care, dental care, vision services, early intervention services, speech
therapy for the children, and supervised parental visits. The witnesses
testified why these efforts were unsuccessful. The expert witness testified the
Spirit Lake Indian tribe remained active in this case, and agreed with
GFCSHZ’s permanent plan for the children—including termination of N.L.,
Sr.’s parental rights.
[¶23] The juvenile court’s decision did not rely on erroneous views of the law.
The decision was based on evidence before the court. Therefore, the juvenile
court did not err in finding that GFCSHZ made active efforts to prevent the
breakup of an Indian family and that the efforts were unsuccessful.
V
[¶24] We affirm the juvenile court’s order terminating parental rights.
[¶25] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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