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S.H.B. v. T.A.H., 786 N.W.2d 706, 2010 ND 149

Facts

S.B. and T.H. are the biological parents of a child born in 2006. The child has always been in S.B.'s custody. T.H. has a history of drug and alcohol abuse and has only seen the child once while incarcerated. He has provided minimal financial support and owes significant child support arrears. In 2009, S.B. filed a petition to terminate T.H.'s parental rights, alleging abandonment, but T.H. testified that he had attempted to contact the child, which S.B. denied.

T.H. has a lengthy history of drug and alcohol abuse, and numerous criminal convictions. He has seen the child only once, when S.B. brought the child to visit him while he was incarcerated.

Issue

Did T.H. abandon his child, thereby justifying the termination of his parental rights?

S.B. contends the juvenile court erred in finding that T.H. had not abandoned the child because the evidence demonstrated abandonment as a matter of law.

Rule

Under N.D.C.C. § 27–20–44(1)(a), a juvenile court may terminate parental rights if the parent has abandoned the child, which is defined as a failure to communicate or provide support without justifiable cause.

A party seeking termination of parental rights under the Uniform Juvenile Court Act, N.D.C.C. ch. 27–20, must prove all of the required elements by clear and convincing evidence.

Analysis

The juvenile court found that T.H. had not intended to abandon his child, noting his periodic requests for contact and his efforts to improve his life through treatment. The court applied the clearly erroneous standard of review, determining that the evidence supported T.H.'s claims of intent to maintain a relationship with the child despite his circumstances.

The juvenile court in this case found T.H. had not intended to abandon his child. The court pointed out that T.H. had periodically requested contact with the child, but was denied by S.B.

Conclusion

The Supreme Court affirmed the juvenile court's decision, holding that the evidence did not clearly establish T.H.'s intent to abandon his child.

Because the juvenile court's finding that T.H. did not intend to abandon the child is not clearly erroneous, the court did not err in denying the petition to terminate T.H.'s parental rights.

Who won?

T.H. prevailed in the case because the court found insufficient evidence to prove he had abandoned his child, as he had made efforts to maintain contact and improve his situation.

Petitioner must show that Respondent has the intent to abandon…. Petitioner has not shown by clear and convincing evidence that Respondent intends to abandon this minor child.

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