Interest of J.J.G., M.K.G. & O.J.G.

                                                                             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

                                

In the Interest of J.J.G., M.K.G. and O.J.G., minor children


T.K.,                                                Petitioner and Appellant
   v.
D.D.G.,                                              Respondent and Appellee

                                No. 20220159

Appeal from the District Court of McKenzie County, Northwest Judicial
District, the Honorable Robin A. Schmidt, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Emily M. Ramage, Williston, ND, for petitioner and appellant; submitted on
brief.

Mark C. Sherer, Dickinson, ND, for respondent and appellee; submitted on
brief.
                    Interest of J.J.G., M.K.G. & O.J.G.
                               No. 20220159

VandeWalle, Justice.

[¶1] T.K. appealed from an order denying her petition to terminate D.D.G.’s,
parental rights to the children J.J.G., M.K.G., and O.J.G and from an order
denying her motion for a new trial. On appeal, T.K. argued the district court
erred by failing to terminate D.D.G.’s parental rights, there was clear and
convincing evidence he abandoned the children, and the court erred by denying
her motion for a new trial. We conclude the district court’s findings are not
clearly erroneous and the court did not abuse its discretion by denying the
motion for a new trial. We affirm.

                                       I

[¶2] T.K., the mother, and D.D.G., the father, have three children together.
J.J.G. was born in 2008, M.K.G. was born in 2009, and O.J.G. was born in 2014.

[¶3] In September 2021, the mother petitioned to terminate the father’s
parental rights, alleging the father abandoned the children. She alleged the
father has a history of drug use, he abused her in front of the children, he has
not seen or communicated with the two younger children for three years, he
had one visit with the oldest child in 2019 and another visit in 2020, and he
has not provided any financial support for the children.

[¶4] An evidentiary hearing was held; and the mother, father, and other
relatives testified. The district court denied the mother’s petition, concluding
there was not clear and convincing evidence the father abandoned the children.
The mother moved for a new trial under N.D.R.Civ.P. 59. The district court
denied the motion.

                                      II

[¶5] The mother argues the district court erred by denying her petition to
terminate the father’s parental rights. She claims there was clear and
convincing evidence he abandoned the children.



                                       1
[¶6] Under N.D.C.C. § 27-20.3-20(1)(a), the court “may terminate the
parental rights of a parent . . . if [t]he parent has abandoned the child.” For a
parent of a child not in the custody of that parent, “abandon” means “failure
by the noncustodial parent significantly without justifiable cause: (1) [t]o
communicate with the child; or (2) [t]o provide for the care and support of the
child as required by law.” N.D.C.C. § 27-20.3-01(1).

[¶7] We have said there are a number of factors the court should consider in
deciding whether a child has been abandoned, including:

      [T]he parent’s contact and communication with the child, the
      parent’s love, care and affection toward the child, and the parent’s
      intent. Also relevant is the parent’s acceptance of parental
      obligations such as providing care, protection, support, education,
      moral guidance, and a home for the child. A casual display of
      interest by a parent does not preclude a finding of abandonment,
      and a parent’s negligent failure to perform parental duties is
      significant to the issue.

In re C.A.R., 

, 

 (quoting In re Adoption of
I.R.R., 

, 

). “It must be shown the parent
possessed ‘intent to abandon [the children], which may be inferred from a
parent’s conduct.’” B.L.L. v. W.D.C., 

, ¶ 6, 

 (quoting
In re R.M.B., 

 (N.D. 1987)).

[¶8] “A party seeking termination of parental rights must prove all of the
elements by clear and convincing evidence.” In re C.A.R., 

.
Whether a child has been abandoned is a question of fact, which will only be
reversed on appeal if the finding is clearly erroneous. 

 A finding is clearly
erroneous when there is no evidence to support it, it is induced by an erroneous
view of the law, or if we are left with a definite and firm conviction a mistake
has been made. 

[¶9] Furthermore, N.D.C.C. § 27-20.3-20 states the court “may” terminate
parental rights if the elements have been met, and therefore the court has
discretion in deciding whether to terminate parental rights. See In re C.A.R.,

 (holding the court has discretion to terminate parental rights


                                       2
under N.D.C.C. § 14-15-19 because the statute uses the word “may,” which is
permissive and operates to confer discretion). If a petitioner proves the
statutory elements by clear and convincing evidence, then the court has
discretion under N.D.C.C. § 27-20.3-20 to decide whether to terminate parental
rights. See id.; In re C.D.G.E., 

, ¶ 4, 

. However, “[a]
district court’s discretion under the statute is not unlimited. For example, if
the evidence establishes that denying a petition to terminate parental rights
‘would seriously affect [the children’s] emotional well being,’ the district court
would err if it denied the petition.” In re C.D.G.E., at ¶ 4 (quoting In re D.R.,

 (N.D. 1994)).

[¶10] The district court denied the mother’s petition, finding there was not
clear and convincing evidence the father abandoned the children. The court
found the father’s behavior toward the mother while they were in a
relationship was not acceptable, the father has not had a stable living or
employment situation in the past few years, and the father has not had much
contact with the children in the last few years. The court further found:

      However, it is undisputed that [the father] loves and cares for his
      children. He has stayed away from them because it is what [the
      mother] wanted. He does not want to cause more conflict in the
      children’s lives. The court finds he would like to have a relationship
      with his children, but is unsure how to establish one considering
      everything that has happened. Admittedly, [the father] has not
      taken steps to establish a parenting time plan within the court
      system that would ensure his rights.

The court found the father did not intend to abandon the children. The court
also found the father has not paid child support and he will be ordered to do so
in a separate, pending child support case once this case has concluded.

[¶11] The father testified that he attended some of the oldest child’s sporting
events in 2021 and that he last saw the other children in 2020. He testified the
mother asked him not to contact her, he is not allowed to speak with the
children, he does not have the mother’s cell phone number or address, and he
is not allowed to contact the mother or the children because it would cause
more issues and he does not want to cause problems for his children. He also

                                        3
testified that he offered to send a phone and pay the monthly fees so the
children could call him, but the mother rejected his offer, and that he is only
allowed to contact the children through the mother’s boyfriend. The father
testified he has not made any child support payments for the children, but he
sent in paperwork for child support to be determined and he has offered to give
the mother money for the children. The father testified he would like a
relationship with the children and he loves them. The mother testified that she
has never given the father her current address or phone number or informed
him of when the children had school events or activities and that she does not
want him to call.

[¶12] The district court found the father did not intend to abandon the children
and there is not clear and convincing evidence of abandonment. Evidence in
the record supports the court’s findings.

[¶13] Furthermore, even if there was clear and convincing evidence of
abandonment, the district court had discretion to terminate the father’s
parental rights. This Court has previously said if one of the required statutory
factors for termination has been established, “a district court does not abuse
its discretion in denying a parental-termination petition unless the petitioner
establishes that denying the petition would seriously affect the child’s welfare.”
In re C.D.G.E., 

, ¶ 10. The mother has not established that denying
the petition seriously affects the children’s welfare.

[¶14] The district court’s findings are not clearly erroneous, and the court did
not err in denying the mother’s petition.

                                      III

[¶15] The mother argues the district court erred by denying her motion for a
new trial.

[¶16] The district court has discretion in deciding whether to grant a motion
for a new trial, and the court’s decision will not be reversed on appeal unless
the court abused its discretion. Lessard v. Johnson, 

, 

. A court abuses its discretion when it acts in an arbitrary,


                                        4
unreasonable, or unconscionable manner, it misinterprets or misapplies the
law, or its decision is not the product of a rational mental process leading to a
reasoned determination. 

[¶17] The mother moved for a new trial under N.D.R.Civ.P. 59, arguing there
was insufficient evidence to justify the district court’s decision denying her
petition to terminate and there was newly discovered evidence. The mother
alleged the father was arrested in April 2022 for driving under suspension and
possession of a controlled substance with intent to distribute. She also alleged
the court’s decision denying her petition to terminate was based on findings
that were not supported by the evidence.

[¶18] The district court denied the mother’s motion for a new trial. The court
explained it considered the father’s prior criminal history, the father had been
charged with new crimes, but even if the father was guilty of the new crimes it
would not change the court’s conclusion. The court also stated the mother was
partially responsible for the father’s lack of contact with the children, she did
what she could to prevent him from contacting the children, and the mother
cannot use her behavior against him to justify terminating his parental rights.
The court found the father has not shown disregard for the children’s general
welfare and the father was trying to prevent further conflict by staying away
according to the mother’s wishes. The court concluded the situation did not
warrant termination, and the court was not convinced the father abandoned
the children or that it would promote the children’s welfare to terminate his
rights.

[¶19] The district court did not abuse its discretion by denying the mother’s
motion for a new trial.

                                      IV

[¶20] We affirm the district court’s order denying the mother’s petition to
terminate the father’s parental rights and the order denying the mother’s
motion for a new trial.




                                       5
[¶21] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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