State v. P.T. (In re Guardianship of P.T.)

857 N.W.2d 367

In the Matter of the GUARDIANSHIP OF P.T.

State of North Dakota, Petitioner and Appellee

v.P.T., Child;

J.W., Mother;

J.V., Father;

R.P., Legal Guardian;

J.P., Legal Guardian;

Sharla Price, Guardian ad litem, Respondents.

R.P. and J.P., Appellants.

In the Matter of the Guardianship of M.T.

State of North Dakota, Petitioner and Appellee

v.M.T., Child;

J.W., Mother;

G.M., Father;

R.P., Legal Guardian;

J.P., Legal Guardian;

Respondents.

R.P. and J.P., Appellants.

In the Matter of the Guardianship of A.M.-T.

State of North Dakota, Petitioner and Appellee

v.A.M.-T., Child;

J.W., Mother;

G.M., Father;

R.P., Legal Guardian;

J.P., Legal Guardian;

Respondents.

R.P. and J.P., Appellants.

In the Matter of the Guardianship of R.T.

State of North Dakota, Petitioner and Appellee

v.R.T., Child;

J.W., Mother;

J.G., Father;

R.P., Legal Guardian;

J.P., Legal Guardian;

Sharla Price, Guardian ad Litem, Respondents.

R.P. and J.P., Appellants.

In the Matter of the Guardianship of S.M.

State of North Dakota, Petitioner and Appellee

v.S.M., Child;

J.W., Mother;

G.M., Father;

R.P., Legal Guardian;

J.P., Legal Guardian;

Respondents.

R.P. and J.P., Appellants.

Nos. 20140166

20140167

20140168

20140169

20140170.

Supreme Court of North Dakota.

Dec. 18, 2014.

Alexander J. Stock, Assistant State's Attorney, Bismarck, ND, for petitioner and appellee; submitted on brief.

Bryan D. Denham, Pampa, TX, for respondents and appellants R.P. and J.P.; submitted on brief.

Opinion

McEVERS, Justice.

[¶ 1] R.P. and J.P. appeal from a juvenile court order terminating their guardianship. We affirm the juvenile court's findings that it is in the best interests of the children to terminate the guardianship.

I

[¶ 2] On April 5, 2013, the State petitioned for termination of R.P. and J.P.'s guardianship of their grandchildren, P.T., M.T., A.M.-T., R.T., and S.M., alleging the children were deprived, the children had been in foster care for 450 out of the previous 660 nights, and it was in the best interests of the children that the guardianship be terminated. A combined hearing was held on the petitions for termination of guardianship and the petitions for termination of parental rights of the children's parents, who failed to appear. At the hearing, various social workers of Burleigh County Social Services, including Sharon Dockter, testified on behalf of the State. R.P. and J.P. and several of the children also testified.

[¶ 3] After the hearing, the judicial referee granted the petitions terminating J.P. and R.P.'s guardianship, as well as the parental rights. Specifically, as is pertinent to this appeal, the judicial referee found 1) the children had been in foster care since May 18, 2011; 2) the children were deprived and the causes of deprivation are likely to continue, and the children are suffering or will probably suffer serious physical, mental, or emotional harm; 3) the affidavits of Sharon Dockter list the reasons the children are deprived, the reasonable efforts made, and the reasons the deprivation is likely to continue; and, 4) termination of the guardianship is in the children's best interests. R.P. and J.P. requested review of the judicial referee's findings regarding the termination of their guardianship under N.D. Sup. Ct. Admin. R. 13. After reviewing the matter, the district court, acting as the juvenile court, adopted the judicial referee's findings, and also adopted and incorporated the best interests of the child analysis from the State's post-hearing brief as its own findings.

[¶ 4] On appeal, R.P. and J.P. argue they have proven, by a preponderance of the evidence, that it is in the children's best interests to continue the guardianship.

II

[¶ 5] We do not set aside a juvenile court's findings of fact unless clearly erroneous. In re T.T., 2004 ND 138, ¶ 5, 681 N.W.2d 779. “A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law.” Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256. “On appeal, we review the files, records, and minutes or the transcript of the evidence, and we give appreciable weight to the findings of the juvenile court.” In re B.B., 2010 ND 9, ¶ 5, 777 N.W.2d 350 (citation omitted) (quotation marks omitted). Further, we give due regard to the juvenile court's opportunity to judge the credibility of the witnesses. N.D.R.Civ.P. 52(a)(6).

[¶ 6] Under N.D.C.C. § 27–20–48.4(2), “[a]ny party to the proceeding in which the child's status was adjudicated, the director, or the child, ... may petition for removal of a guardian on the grounds that the removal would be in the best interest of the child.” The best interests factors of N.D.C.C. § 14–09–06.2(1) are applied in guardianship proceedings. In re Guardianship of Barros, 2005 ND 122, ¶ 4, 701 N.W.2d 402. The burden of proof is on the guardian to establish, by a preponderance of the evidence, that the guardianship should continue. Id. at ¶ 19.

[¶ 7] “The findings and order of the judicial referee have the effect of the findings and order of the district court until superseded by a written order of a district court judge.” N.D. Sup. Ct. Admin. R. 13, § 10(a). A district court judge, acting as the juvenile court, must review the judicial referee's decision de novo. Interest of J.A.H., 2014 ND 196, ¶ 9, 855 N.W.2d 394 ; Interest of B.F., 2009 ND 53, ¶ 12, 764 N.W.2d 170 ; N.D. Sup. Ct. Admin. R. 13, § 11(b). “The juvenile court judge is given the ultimate authority to be the factfinder and adjudicator and to issue a final disposition.” Interest of B.F., at ¶ 15.

[¶ 8] This case has a somewhat unusual posture. R.P. and J.P. were the legal guardians of the children prior to Burleigh County Social Services becoming involved. The deprivation alleged refers not only to the actions or inaction of the parents, but those of R.P. and J.P. as well. The petitions to terminate the guardianship alleged facts, if proven, sufficient to terminate the guardianship, as if the guardians had rights equal to the parents. The children were removed from the guardians' home after being adjudicated deprived. In this case, the judicial referee found the children were deprived, the causes of deprivation are likely to continue or will not be remedied, and the children are suffering or will probably suffer serious physical, mental, moral, or emotional harm. The judicial referee further found, “it is in the children's best interests for the parental rights and the guardianship to be terminated.” The judicial referee incorporated by reference the affidavits of Burleigh County social worker, Sharon Dockter, as well as the reports of the guardian ad litem, but did not include any analysis of the best interests factors. The district court judge, acting as the juvenile court, adopted the judicial referee's decision as her own under N.D. Sup. Ct. Admin. R. 13, § 11(b)(1). Additionally, the juvenile court adopted the best interests factor analysis contained in the State's post-hearing brief. Specifically, the juvenile court found:

[I]t is in the best interest of the children that the guardianship be terminated. Had I written the order concerning termination of the guardianship, I would have incorporated best interest findings as suggested by the petitioner in the petitioner's post-hearing brief.

I am adopting the best interest findings as set out in the petitioner's post-hearing brief, and with that addition, I adopt the Judicial Referee's Findings of Fact and Order.

The juvenile court made no separate best interests factor findings or analysis of its own. We prefer trial courts prepare their own findings of fact, but will not reverse solely because the court adopts proposed findings prepared by counsel. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 4, 700 N.W.2d 711 (discussing purpose of Rule 52(a), N.D.R.Civ.P.) (citations omitted).

Rule 52(a), N.D.R.Civ.P., requires a court to find facts specially and state its conclusions of law separately when an action is tried on the facts without a jury. The court must make findings of fact and conclusions of law which provide sufficient specificity to enable a reviewing court to understand the factual determinations made by the trial court and the basis for its conclusions of law and decision. The court's findings of fact ... should be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the court's decision.

Interest of T.R.C., 2014 ND 172, ¶ 9, 852 N.W.2d 408 (citations omitted) (quotation marks omitted).

[¶ 9] We are aware that judicial resources are strained, and referring to another document, rather than restating it, may provide a time savings to the court. While there is no absolute proscription to incorporating a document by reference, we emphasize here that it is not the preferred method and does not replace the importance of making findings. See Mahoney v. Mahoney, 516 N.W.2d 656, 659 (N.D.Ct.App.1994) (noting trial court incorporated by reference oral findings made at a hearing); Fed. Land Bank of Saint Paul v. Anderson, 401 N.W.2d 709, 711–12 (N.D.1987) (recognizing affidavit may incorporate by reference other documents). Contra Daniels v. Ziegler, 2013 ND 157, ¶ 13, 835 N.W.2d 852 (disapproving practice of incorporating arguments made in an appellate brief previously presented to the district court). The affidavits of Sharon Dockter and the guardian ad litem's reports incorporated by reference discuss facts that would clearly support termination of the guardianship under the best interests analysis. For example, Sharon Dockter's affidavit indicates R.P. and J.P. have not worked with the agency on services offered to reunify the children for almost two years. The children had been in foster care for 663 nights at the time of the affidavit, and Dockter testified at trial the time had been 1,022 nights. Rather than work with the agency, R.P. and J.P. dispute...