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Johnson v. Johnson9/14/2000
of a constitutional dimension." In Interest of L.J., 436 N.W.2d 558, 561 (N.D. 1989) (citing Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D. 1981)). Although the natural parent's rights are not absolute or unconditional, " ue process provides certain procedural protections before the relationship may be terminated." In the Interest of A.S., 1998 ND 181, 14, 584 N.W.2d 853 (citing Matter of Adoption of J.W.M., 532 N.W.2d 372, 375 (N.D. 1995)).
[ ] It is "straightforward" that the strict scrutiny standard applies to statutes allowing termination of parental rights. K.A.S., 499 N.W.2d at 564. "It is beyond question in this jurisdiction that parents have a fundamental constitutional right to parent their children which is of the highest order." Id. (citations omitted). This highest standard of review for statutory review requires the state to prove it has a compelling interest that justifies burdening a parent's "fundamental right to enjoy a relationship with his or her child." Id. at 565.
[ ] We have repeatedly held that termination of parental rights, under the Uniform Juvenile Court Act, requires satisfaction of a three-part test. In the Interest of A.S., 1998 ND 181, 15, 584 N.W.2d 853 (the three-part test requires showing deprivation, showing that the cause of the deprivation will continue, and showing that the child is suffering or will suffer serious physical, mental, or emotional harm). All three parts of this test must be proven by clear and convincing evidence. Id. Notwithstanding our precedent, our procedural protections, our higher evidentiary proof standards, and the constitutional due process concerns, the majority remands this matter to the district court for a determination of whether the facts of this case support the theory of equitable adoption.
[ ] North Dakota has adopted the Uniform Child Custody Jurisdiction Act. Implicit within the act is the due process requirement that before a custody determination can be made, notice and an opportunity to be heard must be given to any contestant or to "any parent whose parental rights have not been previously terminated." N.D.C.C. § 14-14-04. "If any of these persons are outside this state, notice and opportunity to be heard must be given pursuant to section 14-14-05." Id. Likewise, under this State's adoption of the Uniform Parentage Act, notice requirements are implicit for adoption proceedings or termination of parental rights. N.D.C.C. §§ 14-17-23, 14-17-24.
[ ] Not surprisingly, considering there was apparently no attempt to notify David or Michelle Clayton, the record has no evidence that these procedural and constitutional safeguards were employed. The majority concludes the formalities required for compliance with our precedent and the constitution would be "antithetical" and it would be an imposition to require compliance with requirements such as simply notifying the natural parents. Even if it is an imposition, our constitution and due process concerns require notice, an opportunity to be heard, and heightened procedural requirements when fundamental rights are implicated.
[ ] The constitution requires that a fundamental right cannot be abrogated with less than exacting scrutiny. Here, concluding an equitable adoption may occur without the formal requisites required for termination of parental rights-without even notifying the parents-is constitutionally infirm.
II.
[ ] Certainly the doctrine of equitable adoption has been used in North Dakota, but it has not been used in the same context as the majority opinion. In each of the North Dakota cases cited by the majority, this Court used equitable adoption only in the context of inheritance; the cases di
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