VANDE WALLE, Justice.
The parents of J. A., D. D., E. D. (Jr.), and T. A. appeal from a juvenile court order terminating their parental rights. We affirm.
D. D., E. D. (Jr.), and T. D. are the natural children of both parents. J. A. is the natural child of V. D. by a previous marriage. At the time of the termination proceedings in 1978, J. A. was seven years old; E. D. (Jr.) and D. E., twins, were four years old; and T. D. was three years old. In October 1976 a petition alleging deprivation of the children was filed by Thomas L. Zimney, Assistant State's Attorney, Grand Forks County, after a complaint of abuse had been made to the Grand Forks County Social Service Center. The children were then placed under the temporary care, custody, and control of the Director of the Grand Forks County Social Service Center
Subsequent hearings before the juvenile referee, resulting in orders approved by the juvenile court, were conducted over a period of several months. On November 23, 1977, a petition for termination of parental rights was filed by Clarence O. Ohlsen, Director of the Grand Forks County Social Service Center. That petition was heard before the juvenile court on January 17, 18, and 19, February 8, 22, and 23, and March 1, 1978. The juvenile court issued its order terminating parental rights on April 24, 1978, after hearing some 25 witnesses whose testimony covered approximately 800 pages. The juvenile court found the children to be deprived because of physical abuse by the parents, neglect of the children by the parents, total lack of love and respect for the well-being of the children by the parents, the unhealthy condition of the children caused by the parents, and the condition of the home. The juvenile court further found that the causes and conditions of the deprivation were likely to continue or would not be remedied in the future and that by reason thereof the children were suffering or would probably suffer serious physical, mental, moral, or emotional harm.
The parents present four issues on appeal:
"1. Did the trial judge abuse his discretion by interrogating certain witnesses as to the likelihood that the causes and conditions of deprivation would continue?
"2. Was counsel for respondent required to object to the Judge's questioning of the witnesses in order to raise the issue on appeal?
"3. Were respondents required to submit to a physical and mental examination under Rule 35 of the North Dakota Rules of Civil Procedure?
"4. Did Petitioner present clear and convincing evidence that the causes and conditions of deprivation are likely to continue or will not be remedied?"
With respect to the first issue, the parents argue that the trial judge abused his discretion by interrogating certain witnesses as to whether or not the causes and conditions of deprivation of the children would continue. The parents concede that a limited amount of interrogation by the trial court is permissible, but argue that, by its questions, the trial court assisted the petitioner in proving one of the necessary elements required in Section 27-20-44(1)(b), N.D.C.C., for termination of parental rights: that the causes and conditions of the deprivation are likely to continue or will not be remedied.
The parents urge that in a case involving the termination of parental rights, we should adopt the rule applicable in criminal proceedings, i. e., that the judge's discretion in questioning witnesses should be more limited than it is in a civil proceeding. See 98 C.J.S. Witnesses, § 348; State v. Yodsnukis, 281 N.W.2d 255 (N.D.1979). In support of their position the parents point out that the termination of parental rights is akin to a criminal proceeding because the termination of parental rights may have more serious consequences than many criminal proceedings and that the standard of proof is higher in termination proceedings as compared to other civil proceedings.
Ohlsen, however, refers us to Section 27-20-24(1), N.D.C.C., which provides, in part, that hearings conducted under the Uniform Juvenile Court Act are to "be conducted by the court without a jury in an informal but orderly manner, . . ." Ohlsen also points out that in at least two previous decisions this court has indicated that proceedings in juvenile court in this State are civil in nature and not criminal. See In re R. Y., 189 N.W.2d 644 (N.D.1971); In re Whiteshield, 124 N.W.2d 694 (N.D.1963).
In urging us to adopt the rule applicable in criminal proceedings relative to the questioning of witnesses, the parents have impliedly recognized that in civil proceedings the judge has broader discretion to question witnesses and that under the rule applicable to civil proceedings the questioning of witnesses by the judge in this particular instance did not constitute an abuse of that discretion. In Messer v. Bruening, 32 N.D. 515, 156 N.W. 241 (1916), this court, in Syllabus No. 5, stated:
This position was repeated in Miller v. Miller, 79 N.D. 161, 55 N.W.2d 218 (1952), and is now embodied in Rule 614(b), N.D.R.Ev.
The parents note, however, that in In the Interest of R. L. D., 253 N.W.2d 870 (N.D. 1977), this court held that the burden is on the State, as the party challenging the right of the natural parents to the care, custody, and control of their child, to prove by clear and convincing evidence the existence of the factors necessary to terminate parental rights. They allege that by the questioning of certain witnesses the trial court assisted the State in satisfying this burden. The objections of the parents primarily involve questions by the trial court to witnesses concerning the probability of continued deprivation of the children — one of the elements the State has the burden of proving.
In view of our conclusion with regard to the preceding issue, it does not appear necessary to consider whether counsel for the parents was required to object to the judge's questioning of the witnesses in order to raise the issue on appeal. The record, of course, reflects no such objection. Rule 614(c), N.D.R.Ev., provides that objections to the interrogation of witnesses by the court may be made at the time or at the next available opportunity when the jury is not present. Because a jury is not used in termination proceedings, there appears to be no good reason for counsel for the parents to fail to object at the time of the questioning by the trial judge if counsel felt an objection was warranted. Failure to object at trial may give the impression that objection on appeal is an afterthought on the part of counsel. More important, however, failure to object to the questioning at the time of trial does not permit the trial judge to consider the objections of counsel and to adjust his future questions if such objections have merit. We agree with the statement in Weinstein & Berger, Evidence, ¶ 614, at 614-15, quoted from the Project of a Committee of New York Trial Lawyers, Recommendation & Study Relating to the Advisory Committee's Preliminary Draft of the Proposed Federal Rules of Evidence 196 (1970):
Prior to the service of the petition to terminate parental rights, but after initial proceedings, including the filing of a petition to have the children declared deprived and taken into custody, Thomas L. Zimney, the Assistant State's Attorney of Grand Forks County, moved the court for an order requiring the parents to submit to a physical and mental examination. Judge Kirk Smith granted the motion after conducting a hearing. The petition to have the children declared deprived and taken into custody was predicated on a complaint of abuse. The motion to require the parents to submit to a physical and mental examination was made under Rule 35, N.D.R. Civ.P. The affidavit in support of the motion, executed by Zimney as petitioner, states that the examination was necessary "in order that a determination would be made as to [the parents'] ability to obtain physical custody of the above-named children or any one of them individually." The affidavit in support of the motion for examination also stated that Zimney understood that the parents "have been evaluated by some agency" other than the Child Evaluation and Treatment Program, University of North Dakota Medical Center, which he requested conduct the second examination.
Rule 35(a), N.D.R.Civ.P., provides:
The parents argue that they did not place their physical and mental condition in controversy either by a claim or defense, and that it has not been shown that the "good cause" and "in controversy" requirements of Rule 35, N.D.R.Civ.P., have been met. They urge that the testimony of Dr. Lipp, the person who examined the parents under the order of the court granting the motion for examination, should be disregarded by this court in determining the next issue — whether Ohlsen presented clear and convincing evidence that the causes and conditions of deprivation are likely to continue or will not be remedied.
Ohlsen argues that the "good cause" and "in controversy" requirements of Rule 35 are met because he was required to show that the deprivation of the children was likely to continue in the future. In this regard he argues that the physical and mental examination would be useful and necessary because it was conducted in part for the purpose of determining the ability of the parents to provide adequate parental care for their children in the future. We do not find this argument persuasive.
Ohlsen also argues that because the parents had secured their own independent evaluation and were withholding the reports of such evaluation from him and the trial court, the matter was placed in controversy by the parents. Because we base our conclusion on another ground, we do not need to resolve this issue.
Ohlsen also points out that the objection to the introduction of the testimony of Dr. Lipp at the hearing on termination of parental rights was based on the physician- and psychotherapist-patient privilege under Rule 503, N.D.R.Ev., and that the privilege is not applicable to a court-ordered examination.
At the hearing on termination of parental rights before Judge Bakken, the testimony of Dr. Lipp was objected to under Rule 503, N.D.R.Ev., and this court's decision in Interest of R. D. S., 259 N.W.2d 636 (N.D. 1977). The record does not reveal that that objection was made under Rule 35, N.D.R. Civ.P. It is clear to us that at the time of the termination hearing before Judge Bakken, the examination ordered by Judge Smith had already taken place and the exception in Rule 503(d)(2), N.D.R.Ev., would be applicable to any claimed physician- and psychotherapist-patient privilege. The parents did not renew the objection to the
The parents' reliance upon Interest of R. D. S., supra, was also not well founded. In that decision this court stated:
The parents appear to have argued in the juvenile court that the physician- and psychotherapist-patient privilege was not abrogated in this proceeding by Section 50-25.1-10, N.D.C.C., because in this case, according to them, the initial termination petition contained no specific allegation that the proceeding was brought pursuant to Chapter 50-25.1, N.D.C.C.
At the time of the hearing before Judge Smith on the court-ordered examination, a petition alleging deprivation was pending in juvenile court. That petition alleged that it was "based upon an investigation by the Grand Forks County Social Service Center and other reliable informants on a complaint of Abuse. . . ." [Emphasis added.] Thus the suggestion in Interest of R. D. S., supra, that the provisions of Chapter 50-25.1 [Child Abuse and Neglect] apply to a deprivation proceeding only if there are specific allegations in the petition that the proceedings are held pursuant to that chapter and that the prerequisites of that statute have been met, was substantially complied with; it is apparent that the petition was based upon a complaint of abuse, and, although that complaint is not part of the record, Mrs. Wy Sheppard testified at the termination hearing that she made the complaint to the Social Service Center of Grand Forks County. The petition for termination of parental rights refers to the existence of the petition alleging deprivation and the proceedings resulting therefrom. Furthermore,
Because the objection to the testimony of Dr. Lipp was based upon Rule 503, N.D.R.Ev., and this court's opinion in Interest of R. D. S., supra, neither of which forms a basis for sustaining an objection to the admission of that testimony, we believe the trial court properly admitted Dr. Lipp's testimony. Whether or not the trial court should have sustained an objection to the admission of Dr. Lipp's testimony on the basis that Judge Smith had no authority to order an examination of the parents by Dr. Lipp, because the parents had not placed their physical or mental condition in controversy, is a question we need not decide.
In their fourth issue, the parents question whether the petitioner, Ohlsen, has presented clear and convincing evidence that the causes and conditions of deprivation are likely to continue or will not be remedied. The parents correctly point out that, in order that the court may terminate parental rights, it must find: (1) that the child is a "deprived child" as that term is defined by Section 27-20-02(5), N.D.C.C.; (2) that the conditions and causes of the deprivation are likely to continue or will not be remedied; and (3) that by reason thereof the child is suffering or probably will suffer serious physical, mental, moral, or emotional harm. Sec. 27-20-44(1)(b), N.D. C.C. See also In re H., 206 N.W.2d 871 (N.D.1973). These three factors must all be proved by clear and convincing evidence if the court is to terminate parental rights. See, e. g., In Interest of R. L. D., supra. The parents have not raised on appeal the question whether or not the children were, in fact, deprived, or whether or not by reason of deprivation the children are suffering or probably will suffer serious physical, mental, moral, or emotional harm. We therefore assume that they admit that the children were deprived and that by reason of such deprivation the children are suffering or probably will suffer serious physical, mental, moral, or emotional harm.
In considering this matter, our scope of review is broader than it is in other cases appealed to this court. Although we give appreciable weight to the findings of the juvenile court, we are not bound by the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P., and we re-examine the evidence in a manner comparable to the former trial de novo. See, e. g., Jacobson v. V. S., 271 N.W.2d 562 (N.D.1978); Sec. 27-20-56(1), N.D.C.C.
We have recognized that parents have a constitutional right to the custody and companionship of their children. See, e. g., In re J. Z., 190 N.W.2d 27 (N.D.1971). But we have also held that this right is not absolute and that parents are not entitled to custody of their children under all circumstances. See, e. g., Interest of R. D. S., supra. Parents are entitled to a presumption that they are fit parents, and the burden of disproving this presumption of parental fitness is on the challenger. See, e. g., Bjerke v. D. T., 248 N.W.2d 808 (N.D. 1976). We have noted reluctance to remove a child from the parents unless diligent effort has been made to avoid such separation and we have been sensitive to the argument that it is dangerous to allow social workers to determine how a family is run.
Our review of the testimony presented to Judge Bakken at the termination hearing leads us to conclude that his determination that the causes and conditions of deprivation are likely to continue or will not be remedied is supported by clear and convincing evidence.
Counsel for the parents has categorized the witnesses presented by Ohlsen into five groups: (1) neighbors of the respondents; (2) teachers; (3) foster parents; (4) social workers; and (5) a psychologist. He dismisses the testimony of the neighbors on the ground that it is "stale," i. e., it concerns happenings and events that occurred some two years prior to the termination hearing. He concedes, however, that the testimony of one witness, Ms. Waxvik, who was living next door to the parents at the time of the hearing, was pertinent. While the testimony of previous neighbors may be "stale" when considered by itself, that testimony is revealing when considered together with the testimony of Ms. Waxvik because it presents a repetitive pattern of abuse that did not substantially change during that period.
In addition, Section 27-20-29(4), N.D. C.C., provides that in hearings on the issue of the disposition of a deprived child, "all evidence helpful in determining the questions
This court has previously held that this provision "clearly shows that the Legislature intended that the court should consider all relevant evidence bearing upon the issues relating to the proper disposition of the case once the court has determined that a child is a `deprived child.'" In Interest of R. W. B., 241 N.W.2d 546, 553 (N.D.1976). In In Interest of R. W. B., supra, we cited with approval decisions from several other jurisdictions holding that evidence of previous abuse and deprivation may be considered in determining whether deprivation is likely to continue and that the children will probably suffer therefrom.
The testimony of the teachers who taught the children after they were removed from the custody of their parents pursuant to previous hearings was that the children had shown great improvement. The parents argue that any child who had been given the special attention that these children received from the teachers would show great improvement. We cannot, however, dismiss such testimony so lightly because the reason the children were given so much attention was that, according to the testimony of the teachers, they were in need of such attention at the time they came under the tutelage of these teachers. The testimony of the teachers may not be sufficient, of itself, to satisfy the requirement of clear and convincing evidence that the causes of deprivation will continue or would not be remedied in the future, but when considered with the other testimony offered, it surely had probative value.
The parents argue that the testimony of the foster parents should not be given weight with regard to whether or not the deprivation will continue, although they concede it is of probative value in determining whether or not the children were deprived at the time they were received into the foster homes. We agree with the parents, as this court has previously indicated that,
The parents also argue that testimony from the foster parents concerning continued deprivation should have no weight because the foster parents neither observed the parents nor knew of any attempted improvements by the parents. A review of the testimony reveals that some of the foster parents who testified had little or no contact with the parents and made few, if any, observations regarding continued deprivation. In some instances they were not examined about that issue. However, other foster parents did testify about matters pertinent to that issue. For example, Mrs. Doris Beal, who had D. D. in her home, was asked whether he was given visitation with his parents during the time he was in her home. After answering that there were such visitations, Mrs. Beal was asked how the child would react when he got back to her home after the visits with his parents. In response, she said:
Insofar as the testimony of the social workers is concerned, we have previously noted our sensitivity to the argument that it is dangerous to allow social workers to determine how a family is run. See Bjerke v. D. T., supra, 248 N.W.2d at 814. That does not mean, however, that the testimony of social workers should be disregarded. The parents argue that the testimony of the social workers was remote in time and that the parents mistrusted the Social Service Center. We have already held that evidence of previous abuse and deprivation may be considered in determining whether deprivation is likely to continue. See In Interest of R. W. B., supra. The parents testified about their mistrust of the Social Service Center. That testimony is to be considered with the other evidence introduced and given its proper probative value. We do not conclude that the refusal by the parents of certain services offered by the Social Service Center to better the home atmosphere of the parents and their child-rearing capabilities is, of itself, indicative of continuing deprivation. It is, however, another factor which may be considered by the juvenile court and by this court in reaching a decision.
Beverly Bjork, who holds a master's degree in special and language development of small children, was an employee of the Grand Forks County Special Education Board, working to identify children in need of special education and working with the children and parents involved in this proceeding, was asked what would happen to the children if they were returned to the same environment (the parents' home). She responded:
Dr. Leland H. Lipp, who is a clinical psychologist and for ten years has been director of the Child Evaluation and Treatment Program at the University of North Dakota Medical Center Rehabilitation Hospital in Grand Forks, holds a Ph.D. in clinical psychology. He testified as follows:
This testimony was elicited after questions and answers covering several pages in the transcript were asked concerning Dr. Lipp's contact with the children and their parents and his qualifications to answer those questions. Dr. Lipp also testified that if the parents were involved in an intensive parental training program in general development, it might be possible that they could assume their role of parenting. However, his testimony also revealed that no such intensive program was available in the area and that such a program would be substantial and long-term.
We have previously indicated that if treatment cannot be successfully undertaken in a time frame that would permit the children to return to the parental home without causing a severe dislocation from the emotional attachments that they may form during long-term foster care, parental rights may be terminated even though such long-term care may assist the parents in their problems. Thus, in In the Interest of R. W. B., supra, we stated:
Finally, Irene M. Dybwad, of the Grand Forks County Social Service Center, also was asked if, in her opinion, the deprivation would continue:
This court has previously recognized that a failure by the parents to recognize the seriousness of their actions that result in deprivation to their children is evidence that the deprivation is likely to continue. See In Interest of R. W. B., supra.
The testimony of Ms. Swenson and Dr. Lindenfeld contradicts that of other witnesses, but that does not mean the evidence that the deprivation is likely to continue is less than clear and convincing. Ms. Swenson and Dr. Lindenfeld entered the picture after initial complaints of abuse and deprivation were filed. They did not have the opportunity to observe the parents with all four children. The testimony of these two individuals is of probative value but it does not alter the conclusion, in our minds, that Ohlsen proved by clear and convincing evidence that the cause of deprivation of these four children was likely to continue.
The order terminating the parental rights of E. D. and V. D. is affirmed.
ERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.
"If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise."
The parents have raised no constitutional argument in this appeal.