| (Cite
as: 667 N.W.2d 694, 2003 SD 88)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota, In the Interest
of D.T., Jr., Minor
Child,
and
Concerning
P.T and D.T., Sr., Respondents.
No.
22522.
Considered on Briefs June
27, 2003.
Decided
July 23, 2003.
*696
Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney
General, Pierre, South Dakota, Attorneys for petitioner and appellee.
Scott B. Carlson, Minnehaha
County, Public Defender's Office, Sioux Falls, South Dakota, Attorney
for respondent and appellant, D.T., Sr.
PER CURIAM.
**1
Father appeals from an adjudication of abuse and neglect and a dispositional
order terminating his parental rights to his infant son D.T. Jr. (D.T.).
Mother's parental rights were also terminated, but she has not appealed.
We affirm.
FACTS
**2
On August 16, 2001, Mother gave birth to D.T. by caesarean section. After
the birth, Mother was prescribed Darvocet
[FN1] for pain. Two days after D.T. was born, Mother fell asleep in her
hospital bed while D.T. was lying on her chest and woke to find D.T. on
the floor. The fall resulted in two skull fractures and a brain hemorrhage.
[FN2] Father was in the hospital room when the child fell, but he was
sleeping. He stated that he awoke when he heard either his wife or the
child crying after the fall. One nursing report in the record noted that
Father smelled of alcohol that evening, but that he did not appear intoxicated.
FN1.
Darvocet is a pain reliever with codeine. One side effect of the drug
can be drowsiness.
FN2.
Although Mother was still taking Darvocet at the time the baby fell, it
should be noted that Mother had been warned of the danger of sleeping
with the infant in her bed. Before the child was born, a DSS worker visited
with Mother twice about the fact that Parents had not obtained a crib
for the baby. The worker testified that she warned mother about the danger
of sleeping with an infant in the bed, but Mother insisted that just as
her other children had slept with her, so would D.T.
**3
Hospital personnel informed the Department of Social Services (DSS) of
*697
the fall and a police officer was called to the hospital. Based on parents'
history of committing child abuse and neglect, the child was taken into
protective custody. DSS initiated abuse and neglect proceedings against
Mother and Father.
**4
The trial court found the child abused and neglected and terminated parental
rights. Father appeals raising three issues:
Whether
there was sufficient evidence that D.T. was abused and neglected.
Whether
the trial court erred in using the clear and convincing evidentiary standard
to find that termination of Father's parental rights was in the child's
best interest.
Whether
the trial court erred in finding that termination of Father's parental
rights was the least restrictive alternative.
STANDARD
OF REVIEW
**5
The State must prove a child is abused and neglected by clear and convincing
evidence. Matter
of J.A.H.,
502 N.W.2d 120, 123 (S.D.1993) (additional citations omitted). The trial
court's findings of fact will not be set aside unless they are clearly
erroneous and "due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses." Matter
of D.H., 354
N.W.2d 185, 188 (S.D.1984) (additional citations omitted).
ISSUE
ONE
**6
Whether there
was sufficient evidence that D.T. was abused and neglected.
**7
Upon the State's motion, the trial court took judicial notice of the fact
that both Mother and Father had their rights to other children terminated
for abuse and neglect. The court found that Mother had her rights to two
daughters terminated on March 26, 1996 and had her rights to her son,
C.S., terminated on January 20, 2000. Father has another son who is approximately
seventeen years old with whom Father has no contact. Mother and Father
also had their rights terminated to their son, C.T.
[FN3] on August 14, 2001--two days before D.T. was born. In its findings
of fact from the adjudicatory hearing, the court found that "the
prior cases show a pattern of abuse and neglect of children by these parents
and thus judicial notice of the prior cases is appropriate." In its
conclusions of law, the court stated, "[b]ased on the prior abuse
and neglect cases and the pattern of abuse and neglect demonstrated by
both parents in those cases, D.T., Jr., is an abused and neglected child[.]"
FN3.
This Court summarily affirmed this termination in Interest of C.T. on
May 21, 2002.
**8
The trial court conceded in its memorandum opinion that, "the actions
of [Parents] at the hospital ... would not be sufficient to support a
finding of abuse and neglect by clear and convincing evidence." It
is undisputed that the child was adjudicated abused and neglected based
on the history of abuse and neglect demonstrated by parents toward their
other children. Father argues that this was error and urges reversal.
**9
Father asserts that the legislature did not intend to allow courts to
take judicial notice of prior terminations during the adjudicatory phase
of the proceedings. In support of this assertion, Father cites SDCL 26-8A-26.1
and argues that it applies only to the dispositional phase of an abuse
and neglect proceeding. SDCL 26-8A-26.1 provides in part that a court
may find good cause exists for termination of parental rights when the
parent "[h]as had parental rights to another child involuntarily
terminated by a prior legal proceeding." *698
SDCL 26-8A-26.1 (5). Father is correct when he asserts that this statute
applies only to the disposition phase of the proceedings. However, this
is insufficient to show the trial court was not permitted to take judicial
notice of the prior terminations in the adjudicatory phase. There is nothing
in the statute that indicates that it was intended to limit the trial
court's discretion in determining whether and when to take judicial notice
of prior terminations. Father provides no other statutory authority for
his assertion regarding legislative intent nor has any authority been
found.
**10
Father's assertion that case law does not permit the trial court to take
judicial notice of prior terminations at the adjudicatory phase is equally
unavailing. It is well settled that trial courts are permitted to take
judicial notice of prior abuse and neglect adjudications. See
e.g., J.A.H.,
502 N.W.2d at 123; Matter
of L.B., 416
N.W.2d 598, 599 (S.D.1987); Matter
of R.Z.F.,
284 N.W.2d 879, 881 (S.D.1979); In
re K.D.E.,
87 S.D. 501, 506, 210 N.W.2d 907, 910 (S.D.1973). In J.A.H.,
this Court reiterated, "[i]t is appropriate for the trial court to
take judicial notice of earlier findings as to abuse and neglect."
J.A.H.,
502 N.W.2d at 123 (internal citations omitted). Father argues that our
holdings are strictly limited so that 1) the trial court may only take
such notice at the dispositional phase; and 2) there must be specific
incidents of physical or sexual abuse perpetrated upon D.T. in order for
the cases to apply. Father relies on language in K.D.E.
which provides,
[w]here
the trial court has determined that neglect or abuse exists in regard
to one child, it is within its discretion to determine the likelihood
of abuse of other children in the same family. If such is likely to exist,
then the court has the right to terminate any parental ties ... we cannot
allow the health, safety or life of a young child to be placed back into
an environment conclusively proved, as evidenced by the treatment of her
brother (the prior adjudication),
to be wholly unfit and improper.
K.D.E.,
87 S.D. at 506, 210 N.W.2d at 910 (internal citations omitted). Father
argues that because he was not asking for his son to be "placed back"
with him at the adjudicatory hearing, the trial court erred in taking
notice. The language and the facts of this Court's holding in J.A.H.,
which was decided twenty years after K.D.E.,
make it clear that trial courts are permitted to take judicial notice
of prior findings as to abuse and neglect at the adjudicatory stage of
the proceedings. In J.A.H.,
the child was taken from the mother shortly after birth and the State
initiated abuse and neglect proceedings. J.A.H.,
502 N.W.2d at 122. On State's motion, the trial court took judicial notice
of prior findings regarding the child's siblings at the adjudicatory hearing.
Id.
This Court upheld the adjudication of abuse and neglect and stated,
[p]rior
findings are relevant to the determination of whether abuse of other children
in this same family is likely and this determination is within the discretion
of the trial court.
J.A.H.,
502 N.W.2d at 123 (additional citations omitted).
**11
Father's assertion that it was necessary to show specific instances of
abuse against D.T. is unsupported by this Court's precedent. This Court
has upheld findings of abuse and neglect predicated upon evidence indicating
potential harm to the child. See
e.g., Interest of T.G.,
1998 SD 54,
¶ 24, 578 N.W.2d 921, 924. Trial courts need not make a finding of
specific instances of abuse before adjudicating a child abused and neglected.
J.A.H.,
502 N.W.2d at 123.
**12
Finally, if the Court were to accept Father's argument that judicial notice
*699
of prior terminations may only be taken during the dispositional phase,
the best interest of the children involved would not be served. Once a
trial court determines that a child is not abused or neglected, the proceedings
must end, and the child must be returned to the parents. If trial courts
are not permitted to take notice of prior terminations, children will
be returned to homes regardless of clear and convincing evidence from
prior adjudications that parents are abusive and/or neglectful. This result
would be untenable given the requirement that courts construe the child
protection statutes liberally for the purpose of protecting children from
abuse or neglect. See
e.g. Matter of T.A.,
2003 SD 56, ¶ 18, 663 N.W.2d 225, 232; D.H.,
354 N.W.2d at 191 (additional citation omitted).
**13
The trial court did not err in taking judicial notice of the prior terminations
at the adjudicatory hearing.
ISSUE
TWO
**14
Whether the
trial court erred in using the clear and convincing evidentiary standard
to determine that termination of Father's parental rights was in the child's
best interest.
**15
Termination of parental rights is proper only when the court finds by
clear and convincing evidence that termination is the least restrictive
alternative in keeping with the child's best interest. SDCL 26- 8A-27.
Father argues that the court erred in using the clear and convincing standard
of proof because this case involves the Indian Child Welfare Act (ICWA)
and the evidentiary standard is proof beyond a reasonable doubt. 25 U.S.C.
§ 1912(f). Father also argues that the State failed to meet the requirement
of providing an expert to testify. Id.
**16
ICWA applies only when the child involved is an "Indian child."
25 U.S.C. 1903(4) defines "Indian child" as:
any
unmarried person who is under age eighteen and is either (a) a member
of an Indian tribe or (b) is eligible for membership in an Indian tribe
and
is the biological child of a member of an Indian tribe
(emphasis supplied). The record contains a letter from the ICWA Director
for the Crow Creek Sioux Tribe informing DSS that D.T. is not eligible
for enrollment in the tribe. The applicability of ICWA is determined by
eligibility for membership
rather than enrollment with the tribe. Therefore, a statement that the
child is not eligible for enrollment is insufficient evidence to find
that ICWA does not apply unless the tribe's constitution and bylaws equate
membership with enrollment. Nonetheless, D.T. does not meet the statutory
criteria. D.T. is not a member of a tribe and therefore subsection (a)
does not apply. There is no evidence that either of the parents are members
of a tribe and therefore subsection (b) does not apply. Furthermore, [i]t
is incumbent upon the party asserting applicability of ICWA to prove the
child meets the criteria under ICWA. In
re A.S., 2000
SD 94, ¶ 13, 614 N.W.2d 383, 385 (citing In
re J.D.B.,
584 N.W.2d 577, 582 (Iowa Ct.App.1998); In
re A.M., 235
Neb. 506, 455 N.W.2d 572, 573 (1990)). Father failed to come forward either
here or before the trial court with evidence that D.T. meets the criteria.
The trial court did not err in finding ICWA inapplicable or in using the
clear and convincing evidentiary standard.
ISSUE
THREE
**17
Whether the
trial court erred in finding that termination of Father's parental rights
was the least restrictive alternative.
**18
The trial court may terminate parental rights if it is in the best interest
of the child and if termination is *700
the least restrictive alternative available. SDCL 26-8A-26. The best interest
of the child must be viewed from the child's, rather than the parents,
perspective. Interest
of E.D.J.,
499 N.W.2d 130, 135 (S.D.1993) (additional citations omitted). We reverse
only if the trial court was clearly erroneous in finding that termination
was the least restrictive alternative. A.S.,
2000 SD 94 at ¶ 19, 614 N.W.2d at 386 (citing In
re J.Y., 502
N.W.2d 860, 862 (S.D.1993)).
**19
Father argues that the trial court utilized the wrong standard for determining
whether there was a less restrictive alternative because ICWA should apply.
As noted above, the argument regarding ICWA is without merit.
**20
These facts create a close question. While courts should be slow to terminate
parental rights based solely on previous terminations, the child's best
interest must always prevail and there is a legitimate concern with preventing
abuse. Interest
of S.A.H.,
537 N.W.2d 1, 5 (S.D.1995) (stating, "[t]ermination proceedings are
preventative as well as remedial") (citing Interest
of A.R.P.,
519 N.W.2d 56, 61 (S.D.1994); Matter
of B.E., 287
N.W.2d 91, 95 (S.D.1979)). It appears inevitable that if D.T. were returned
to his parents' home, he would be abused and neglected. There is little
about the parents' home, relationship, parenting abilities and abusive
and neglectful tendencies that have changed since the first child was
removed in 1996.
[FN4]
FN4.
The trial court found that the same problems persisted in Parents' lives:
1)
inappropriate or no housing, insufficient finances, inappropriate care
of the children and domestic abuse;
2)
even with intensive services, Mother's parenting skills declined prior
to the 1996 termination;
3)
Mother and Father were married but lived together sporadically and Father
appeared at several meetings with black eyes inflicted by Mother;
4)
psychological evaluations of Parents indicate it would take years of intensive
individual and family therapy before either Parent could effectively parent
a child.
**21
Father asserts that the evidence at the dispositional hearing showed that
he had a good job, that he lived in an appropriate home containing the
necessities for a baby and that he had no alcohol or drug problem. However,
testimony at the dispositional hearing indicated that Father lacked parenting
skills and that it would take years for him to develop the necessary skills
to raise a child. Even if Father would faithfully attend parenting classes--an
assumption not supported by his previous behavior--there is still doubt
that he will ever be able to effectively parent a child.
[FN5]
FN5.
The findings of fact from the dispositional hearing indicate:
1)
the first time Parents attended parenting classes, the classes had to
terminate early due to domestic violence issues between Parents;
2)
the second time they attended parenting classes, they completed the classes
but the instructor testified;
a)
Parents could not understand the material even when provided individual
instruction; b)
Parents displayed difficulty with hygiene, anger control, nutrition and
knowing when a child should sleep;
c)
Mother indicated that if another child should take one of her children's
toys, she would tell the child to make sure no one was looking and then
hit the other child;
d)
apparently both parents were physically abused as children.
3)
Both parents attended the Rape and Domestic Abuse Center and testimony
indicated:
a)
Parents seemed unwilling to make any changes;
b)
Mother admitted hitting Father after she had been in the program for some
time;
c)
neither parent appeared to have any insight into their problems;
d)
counselors had poor prognosis for both parents;
e)
Father only attended because DSS told him to and he did not complete the
classes;
f)
Father displayed problems with anger control, failed to take responsibility
for his actions and was unable to identify inappropriate behavior;
g)
Mother completed classes but was referred to further counseling due to
issues with anger control and inability to implement the skills she had
learned; h)
Mother did not receive the additional counseling.
**22
Father continues to reside with Mother, who had her rights terminated
to *701
all of her surviving children and who was unable to effectively parent
D.T. or meet his psychological needs. Father knows Mother has violent
and abusive tendencies, and there is a long and continuing history of
domestic violence between Mother and Father. In fact, just days before
the final hearing in this case, law enforcement was dispatched to parents'
home after Father "head-butted" Mother, pushed her, tackled
and choked her and punched her until she kneed him in the groin and got
away from him. Father was arrested. Despite continuing problems and consistent
recommendations by DSS, Father persists in denying that he and Mother
need to attend counseling. This Court has noted that where parents are
living together, termination of the rights of only one parent serves no
purpose because the child would still be living in a potentially injurious
environment. Matter
of L.M.T. 305
N.W.2d 399, 403 (S.D.1981). Even assuming Father did remove himself from
this environment, his inability to recognize his problems, coupled with
his inability to effectively parent, preclude the possibility of placing
the child with him.
**23
Although substantial services were offered to both parents, they consistently
failed to follow through. We will not force the child to wait for his
parents to acquire parenting skills that may never develop. Matter
of J.Y., 502
N.W.2d 860, 861 (S.D.1993) (citing Interest
of A.D., 416
N.W.2d 264, 268 (S.D.1987)). The trial court was bound to consider the
best interest of the child. Placing the child with Father would expose
him to the abuse perpetrated by parents on the other children, and would
prevent the child from receiving proper parental care. In the best interest
of the child, there was no less restrictive alternative. The child needed
to be placed in a stable, nurturing environment which Father cannot provide.
Anything short of termination would deny the child the stability and care
he needs.
**24
Father has failed to show that the trial court erred in finding abuse
and neglect and terminating his parental rights. The trial court is affirmed.
**25
GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY,
Justices, participating.
667 N.W.2d 694, 2003
SD 88
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