T.H. v. T.H.

812 N.W.2d 373

2012 ND 38

In the Interest of T.H., a childHeather Pautz, Barnes County Director of Social Services, Petitioner and Appellee,

v. T.H., a Child, A.S., Mother, K.H., Father, RespondentsK.H., Father, Appellant.

No. 20110084.

Supreme Court of North Dakota.

Feb. 17, 2012.

Rehearing Denied March 15, 2012.

Bradley Allen Cruff, Assistant State's Attorney, Valley City, N.D., for petitioner and appellee.

Jonathan T. Garaas, DeMores Office Park, Fargo, N.D., for appellant.

SANDSTROM, Justice.

[¶ 1] K.H. appeals from juvenile court orders, including an order of disposition extending placement of his daughter, T.H., in the custody and control of Barnes County Social Services and an order denying his motion to dismiss. He argues the juvenile court lacked jurisdiction, the court applied the wrong standard of proof in finding the child was deprived in 2008, the court erred in allowing his plea to the allegations of deprivation, the duration of the deprivation proceedings was excessive, and the court erred in finding the child continues to be deprived. We affirm.

I

[¶ 2] On October 3, 2008, the juvenile court entered an order for shelter care, finding there was probable cause the child, T.H., was deprived and ordering the child temporarily be removed from her parents' custody and placed in the custody of Barnes County Social Services for placement in foster care. At the hearing held before the order was entered, the child's father, K.H., was present, and the child's mother, A.S., appeared via telephone. A guardian ad litem was appointed to represent the child's interests in the proceedings.

[¶ 3] On October 31, 2008, a petition was filed alleging the child was deprived. The petition alleged medical and psychological neglect of the child by the father and his wife. The petition also alleged Social Services received three abuse or neglect reports about bruising on the child's face. Documents attached to the petition alleged the child had many mental health problems and recommendations were made to address the child's mental health, the father and his wife did not consistently keep the child's counseling appointments, the child was taken off prescription medication without advice from her doctor, the father and his wife failed to follow recommendations from mental health professionals, the child had various physical injuries, and the child's and her step-mother's explanations for the injuries did not always match.

[¶ 4] On November 21, 2008, a hearing was held on the petition, and the father appeared with his attorney. The parties entered a stipulation agreeing that if the evidence was heard, it was likely the court could find there was clear and convincing evidence the alleged events had occurred. On November 24, 2008, the juvenile court entered an order finding the child was deprived and ordering the child be placed in Social Services' care, custody, and control. The order stated it would remain in effect for no more than twelve months.

[¶ 5] In September 2009, a permanency hearing was held, and the father and the mother both appeared at the hearing. The court ordered the child continue to be placed in Social Services' custody, the father and his wife to attend family counseling, and the father's wife to attend individual counseling. The order was effective until March 2010.

[¶ 6] In December 2009, a second permanency hearing was held, and both of the child's parents appeared. The court found it was contrary to the child's welfare to return her to her home until her father and his wife addressed other problems through counseling and ordered the child's placement continue. The order was effective until March 2010.

[¶ 7] In March 2010, a third permanency hearing was held, and both parents appeared at the hearing. The court found it was contrary to the child's welfare to return home and ordered the placement continue. The order remained in effect until September 2010.

[¶ 8] On August 19, 2010, the father filed an objection and requested the matter be dismissed, arguing the court failed to find the child was a deprived child as required by law in the November 2008 order and claiming the court cannot extend the child's placement in foster care after October 2010 because placement in foster care cannot exceed a total of twenty-four months under N.D.C.C. § 27–20–36. On September 1, 2010, the court overruled the father's objection. The court found “the parties stipulated at the initial deprivation hearing that there was clear and convincing evidence to find that [the child] was a deprived child and this Court had subject matter and personal jurisdiction to enter an order.” The court also ruled the father's argument about a two-year limit on foster care was not supported by the law.

[¶ 9] On October 28, 2010, the court entered an order continuing the matter and extending Social Services' custody of the child until December 2010.

[¶ 10] A permanency hearing was held in December 2010. During the hearing, the father moved for dismissal, arguing the child was no longer a deprived child and the court lacked jurisdiction. The mother joined the father's motion. On December 23, 2010, the father filed a written motion for dismissal, arguing the court lacked personal jurisdiction, he was not properly served with the petition in 2008, there is no proof the mother was served with the petition, the child was not served as N.D.C.C. § 27–20–23 requires, and all of the parties had to be properly served for the court to acquire jurisdiction. The father also argued the child is no longer deprived and the purposes of the original order finding the child is deprived have been accomplished.

[¶ 11] On January 24, 2011, the court entered an order continuing the child's current placement until the matter could be fully heard. The order remained in effect until June 1, 2011.

[¶ 12] In March 2011, arguments were held on the motions to dismiss. On March 24, 2011, the court denied the motions to dismiss, finding the father and the mother did not properly preserve the personal jurisdiction issue because they failed to raise the issue when the proceedings began in 2008. The court also found the father and his wife were ordered to participate in counseling but their participation was sporadic, the father failed to make a good-faith effort to participate in counseling to rectify the child's psychological neglect, and the child continued to be deprived. The court ordered the child's placement would continue and the order would remain in effect until June 1, 2011.

[¶ 13] The father filed a notice of appeal, stating he was appealing multiple orders, including the order overruling his objection, the October 2010 order for continuance, the January 2011 order of disposition, and the March 2011 order denying the motions to dismiss.

[¶ 14] The juvenile court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–20–03(1)(a). The appeal was timely under N.D.C.C. § 27–20–56(1). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 27–20–56(1).

II

[¶ 15] The father argues the juvenile court lacked jurisdiction because the parties were not properly served with the initial summons and petition. He claims he did not receive some of the documents that were supposed to be attached to the petition, and he contends there is no evidence the mother or the child were ever served with the initial petition.

[¶ 16] A court must have both subject matter and personal jurisdiction to issue a valid order or judgment. Investors Title Ins. Co. v. Herzig, 2010 ND 138, ¶ 57, 785 N.W.2d 863. Personal jurisdiction is the court's power over a party. Id. The court acquires personal jurisdiction through service of process or by voluntary general appearance in the action, either personally or through an attorney or other authorized person. N.D.R.Civ.P. 4(b)(4). “ ‘In the absence of a previously made and properly preserved objection to the jurisdiction of the trial court, a general appearance amounts to a waiver of the right to object to the jurisdiction of the court over the person of the appearing party.’ ” Investors Title, at ¶ 64 (quoting Grey Bear v. North Dakota Dep't of Human Servs., 2002 ND 139, ¶ 30, 651 N.W.2d 611).

[¶ 17] The father claims he was not properly served with the initial deprivation petition. However, he appeared at the November 21, 2008, hearing on the petition, and he did not object to the court's jurisdiction or argue he had not been properly served. Furthermore, the father appeared at various hearings, including three permanency hearings, without objecting to the court's jurisdiction. The father waived any claim that the court lacked jurisdiction.

[¶ 18] The father also contends there is no evidence the mother and the child were properly served with the initial petition, and he claims the court must have personal jurisdiction over all of the parties to enter a valid order. First, the father does not have standing to assert defenses on behalf of third parties. See In re J.D.F., 2010 ND 160, ¶ 14, 787 N.W.2d 738 (a party must have standing to litigate the issues and a party generally cannot rest his claim on the legal rights of another). Second, although the mother was not present at the November 21, 2008, hearing, she did appear at the subsequent hearings without objecting to the court's jurisdiction. Under N.D.C.C. § 27–20–22(1), a child must be served only if the child is at least fourteen years old. In this case, the child was nine years old when the petition was filed, and therefore the child did not need to be served with the summons and petition. Furthermore, a guardian ad litem was appointed to represent the child's interests, and the guardian ad litem appeared at the hearings on the child's behalf.

[¶ 19] We conclude the juvenile court had personal jurisdiction and did not err in denying the father's motion to dismiss.

III

[¶ 20] The father argues the court applied the wrong evidentiary standard in...