State v. J.C. (In re J.C.)

1

2024 ND 9

In the Interest of J.C., minor child

State of North Dakota, Petitioner and Appellee v. J.C., child, J.C., father to J.C., Respondents and T.W., mother, Respondent and Appellant In the Interest of M.W., minor child State of North Dakota, Petitioner and Appellee v. M.W., child, Unknown, father to M.W., Respondents and T.W., mother, Respondent and Appellant

Nos. 20230377, 20230378

Supreme Court of North Dakota

January 22, 2024

Appeal from the Juvenile Court of Ward County, North Central Judicial District, the Honorable Kelly A. Dillon, Judicial Referee.

Rozanna C. Larson, State's Attorney, Minot, ND, for petitioner and appellee.

William R. Hartl, Rugby, ND, for respondent and appellant.

REVERSED AND REMANDED.

Bahr Justice.

[¶1] T.W. appeals from a juvenile court order terminating her parental rights to J.C. and M.W. We hold the court abused its discretion when it took judicial notice of or considered evidence beyond the evidentiary record. We further hold the court erred by making clearly erroneous findings. Despite these errors, there is sufficient evidence in the record to support the court's decision to terminate T.W.'s parental rights; however, we are unable to discern whether the court abused its discretion by relying on the inadmissible evidence when it decided to terminate T.W.'s parental rights. Therefore, we retain jurisdiction under N.D.R.App.P. 35(a)(3)(B) and remand with instructions for the court to issue an order based only on the evidence received at trial.

I

[¶2] T.W. is the mother of J.C. and M.W. The Ward County Human Services Zone placed both children into foster care on April 14, 2021. At the time of the children's removal from T.W T.W. was in a relationship with A.W A.W contributed to the treatment of the children which led to their removal. Following their placement in foster care, T.W. pled guilty to three counts of child abuse. The juvenile court sentenced T.W. to ten years with 4 years to serve in custody.

[¶3] The State filed a petition to terminate parental rights in December 2022. The juvenile court held a trial in September 2023. The court found the children had "been in foster care a total of 1123 continuous nights as of the date of the trial." The court further found T.W. is still attempting to maintain a relationship with A.W. despite a no contact order and, due to T.W.'s continued contact with A.W, the need for protection of the children is likely to continue. The court ordered the termination of T.W.'s parental rights.

II

[¶4] "[N]atural parents have a fundamental right to their children, 'which is of a constitutional dimension.'" In re W.E., 2000 ND 208 ¶ 30, 619 N.W.2d 494 (quoting In the Interest of L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573). "The constitutional protections, although not absolute, require that '[a]ny doubts should be resolved in favor of the natural parent [,] and parental rights should be terminated only when necessary for the child's welfare or in the interest of public safety.'" Id. (quoting L.F., at ¶ 9).

[¶5] Termination of parental rights is governed by N.D.C.C. § 27-20.3-20. Under section 27-20.3-20(1)(c)(1), the court may terminate parental rights if the child is in need of protection and the court finds "[t]he 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[.]" Under section 27-20.3-20(1)(c)(2), the court may terminate parental rights if the child is in need of protection and the court finds "[t]he 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[.]"

[¶61] Termination of parental rights proceedings under N.D.C.C. ch. 27-20.3 are governed by the North Dakota Rules of Juvenile Procedure and, to the extent they are not inconsistent with the Rules of Juvenile Procedure, the North Dakota Rules of Civil Procedure. N.D.R.Civ.P. 1, 81(a). The North Dakota Rules of Evidence apply to termination of parental rights proceedings. N.D.R.Ev 101(a), 1101(a), (b).

[¶7] "We will not overturn a juvenile court's findings of fact in a termination proceeding unless the findings are clearly erroneous under N.D.R.Civ.P. 52(a)." In re A.B., 2017 ND 178, ¶ 12, 898 N.W.2d 676. "A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if 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. "In reviewing findings of fact, a 'reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.'" Id. (quoting N.D.R.Civ.P. 52(a)(6)).

A

[¶18] Referring to the permanency hearings as "underlying files," the juvenile court wrote the underlying files "are incorporated into this matter as agreed to by the parties." T.W. asserts she did not agree to the court considering the permanency hearing files, and the State concedes the record does not reflect the parties agreed to the court considering the permanency hearing files.

[¶9] T.W. argues the juvenile court abused its discretion by taking judicial notice of and relying on the affidavits in the permanency hearings. The State responds that the affidavits were part of the juvenile court records leading up to the proceeding and that the affiants testified at the hearing. "We review a . . . court's decision to take judicial notice under an abuse of discretion standard." Koon v. State, 2023 ND 247, ¶ 11; Orwig v. Orwig, 2021 ND 33, ¶ 6, 955 N.W.2d 34.

[¶10] Under this Court's precedent, juvenile courts may examine orders in past cases:

[I]n parental termination proceedings, due process and notice requirements prohibit a juvenile court from taking judicial notice of testimony in proceedings where termination is not an issue, but where termination is a culmination of prior proceedings the court need not operate in a vacuum regarding the results of those proceedings and may take judicial notice of orders in prior proceedings.

In re J.C., 2007 ND 111, ¶ 9, 736 N.W.2d 451. However, "[t]he court may only take judicial notice of the evidence as presented, and not for the truth of the matters asserted by the evidence." Wessman v. Wessman, 2008 ND 62, ¶ 19, 747 N.W.2d 85 (quoting State v. Bergstrom, 2006 ND 45, ¶ 18, 710 N.W.2d 407).

[¶11] The juvenile court went beyond considering the orders in the permanency cases; the court's order specifically references and relies upon "affidavits in the underlying files [.]" The court's order also cites facts referred to in the affidavits. Although the court was allowed to consider the orders in the permanency proceedings, it could not consider testimony, including statements in affidavits, from the permanency proceedings. See J.C., 2007 ND 111, ¶ 9. The court abused its discretion by relying on the affidavits in the permanency proceedings.

B

[¶12] The juvenile court relied on statements in an affidavit submitted in the termination proceeding. T.W. argues the court erred in doing so. The State responds that the affidavit was in the record.

[¶13] The State did not offer and the juvenile court did not receive the affidavit as evidence. An affidavit filed in a case is part of the court's file or record. However, generally an affidavit only becomes part of the evidentiary record when a party offers it and the court receives it into evidence. The court abused its discretion by relying on an affidavit the State never offered and the court never received into evidence. In re Skorick, 2020 ND 162, ¶ 10, 946 N.W.2d 513 (the court abused its discretion when it considered an expert report the State did not offer into evidence at the commitment hearing); Wetzel v. Schlenvogt, 2005 ND 190, ¶ 23, 705 N.W.2d 836 (petitions for protective orders and affidavits are inadmissible hearsay under N.D.R.Ev. 801(c)).

C

[¶14] The juvenile court's order references and quotes the guardian ad litem's reports. T.W. argues the juvenile court erred and abused its discretion when it considered the guardian ad litem's reports. She explains the guardian ad litem did not testify regarding all of the content of her reports and the State did not introduce the reports into evidence. The State responds the guardian ad litem's reports were part of the juvenile court record.

[¶15] As previously noted, there is a distinction between the court file or record and the evidentiary record. Generally, a document in the court file is not part of the evidentiary record unless a party offers the document and the court receives it. See Skorick, 2020 ND 162, ¶ 10.

[¶16] The State provides no authority for the proposition a juvenile court may consider a guardian ad litem's report as substantive evidence despite the State not offering the report into evidence. "One of the fundamental precepts of our judicial system is that the finder of fact must rely only on the evidence presented in court." Green v Green, 1999 ND 86, ¶ 10, 593 N.W.2d 398 (holding the court committed reversible error when it relied on evidentiary facts in a guardian ad litem's report not introduced into evidence). The juvenile court abused its discretion by relying on the guardian ad litem's reports the State never offered and the court never received into evidence.

[¶17] We conclude the juvenile court abused its discretion when it took judicial notice of or relied on statements in affidavits from the permanency proceedings, statements in an affidavit filed in the termination proceeding, and the guardian ad litem's reports, none of which the State offered as evidence or the court...