| (Cite
as: 349 N.W.2d 428)
Supreme
Court of South Dakota.
In
the Matter of the Dependency and Neglect of S.L., H.L.
and M.B., and
Concerning
their Mother L.B.
No.
14246.
Considered
on Briefs Jan. 19, 1984.
Decided
May 23, 1984.
*430
Greg L. Peterson, Aberdeen, for appellant mother.
Daniel R. Moen, Aberdeen, for children.
Michael J. Williams, Asst. Atty. Gen., Pierre, for appellee State
of South Dakota; Mark V. Meierhenry, Atty. Gen., Pierre,
on brief.
MORGAN, Justice.
This is the second appeal by the mother, L.B. (L.B.),
from the decisions of the trial court adjudicating her three
children, S.L., H.L., and M.B. (children), dependent and neglected and
terminating her parental rights. On the first appeal
the case was remanded to the trial court with direction
to enter findings of fact and conclusions of law on
the dispositional hearing based upon the "clear and convincing evidence"
standard required by Santosky
v. Kramer,
455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
See
Matter of S.L.,
330 N.W.2d 528 (S.D.1983). On remand L.B. petitioned
the trial court for the opportunity to present additional evidence
on her rehabilitation. The trial court denied the
petition and entered revised findings of fact and conclusions of
law from which L.B. appeals. We affirm.
The record discloses that these children have been in the
system almost since birth. S.L., the oldest, was
born May 24, 1978. There were protective service
referrals and continuous services from the Department of Social Services
(Department) since that time. The first petition for
a declaration that S.L. was dependent and neglected was filed
on June 5, 1979. Even before the petition
S.L. was placed with her grandmother as a result of
L.B.'s incarceration. The first adjudicatory hearing on a
dependency and neglect petition involving all three children was held
in July 1981, followed by a dispositional hearing in August
1981. The adjudicatory hearing resulted in a finding
of dependency and neglect and the dispositional hearing resulted in
an order
giving Department legal custody of the children for six months
while L.B. maintained physical custody. The dispositional order
also required L.B. to undergo counseling, parenting classes and women's
therapy. No appeal was taken from either of
these decisions.
Approximately one month later, at 2 a.m., L.B. called her
caseworker Sue Wein (Wein) and told her to pick
up the children. When Wein arrived at the
apartment she tried to remonstrate with L.B., who packed a
bag of belongings and departed. The children were
taken into protective custody by the Brown County Sheriff's Department
and a detention hearing was held per SDCL 26-8- 23.1,
resulting in an order giving Department physical and legal custody
for two weeks. The record is unclear at
this point, but apparently the children were returned to L.B.
on or before the expiration of the two-week period because
in mid-October L.B. again requested foster care. Assistance
with the children was needed while she was hospitalized for
an emergency appendectomy. On this occasion, foster care lasted approximately
a week, whereupon the children were again returned to L.B.
Within a day or two, the police were called to
L.B.'s apartment where a violent fight was in progress involving
one R.W. The record indicates that R.W. was
not previously involved with L.B. but was looking *431
for someone else and threatening L.B.'s roommate, when L.B. injected
herself into the altercation. R.W. was arrested and
jailed. The following day, L.B. left the children
with a babysitter while she ran some errands.
She apparently learned that R.W. had been released from custody
whereupon she forged a check, purchased a bus ticket to
Sioux Falls, and fled town. After arriving in
Sioux Falls, she called the babysitter and instructed him to
call Department to again take the children. When
Department was contacted, they picked up the children and placed
them in foster care. The following day another
detention hearing was held, resulting in an order giving Department
legal and physical custody of the children for thirty days.
Upon L.B.'s return from Sioux Falls, she again
contacted Wein and requested return of the children.
Wein refused to return the children because, in her opinion,
the children were becoming emotionally damaged. A new
dependency and neglect petition was thereafter filed, resulting in the
proceedings from which this appeal arises.
The issues raised by L.B. on this appeal are virtually
the same as those raised on the first appeal.
Those issues have not been dealt with because of
the remand occasioned by the deficient dispositional findings and conclusions.
L.B. first complains
that the trial court erred in using a preponderance of the evidence standard
at the adjudicatory hearing. It appears to us that this issue is frivolous.
In the first place, the adjudicatory hearing was pre-Santosky,
therefore, the preponderance of the evidence standard would have been
adequate. A casual reading of the record discloses, however, that the
trial court, rather than using a preponderance of the
evidence standard, or even the stricter "clear and convincing evidence"
standard of Santosky,
employed the strictest standard possible and determined that the state
had shown "beyond a reasonable doubt" that the children lacked
parental care and were dependent and neglected.
The
next issue is whether the trial court committed error in the January 5
and February 2, 1982, adjudicatory hearings by admitting evidence of events
preceding the August 1981 order, which adjudicated and declared the children
to be dependent and neglected. For this proposition, L.B. cites us to
Matter of N.J.W.,
273 N.W.2d 134 (S.D.1978). That case, however, is distinguishable and
cannot be relied upon here. In N.J.W.,
the children were found not to be dependent and neglected in an earlier
proceeding and the trial court's admission of evidence from a time prior
to the earlier proceeding was an attempt to reconsider facts surrounding
issues already litigated. In this case, however, the prior determination
was that the children were dependent and neglected, nothing was being
relitigated. The trial court merely looked at evidence viewed in making
its original decision in order to broaden its focus beyond one incident
and get the complete picture before reaching the same conclusion. In
Matter of S.S.,
334 N.W.2d 59 (S.D.1983). Thus, the trial court's second decision adds
to the finality of the first decision and the purpose for applying the
doctrine of res judicata does not arise. N.J.W.,
supra. As we
recently said in S.S.,
334 N.W.2d at
61:
Termination
of parental rights are serious matters which touch the basic
fabric of our way of life--the family unit.
The decision to terminate requires evidence of sufficient magnitude to
convince the trial court that the best interests of the
children require the breakup of the family unit.
This decision cannot be made by focusing the court's attention
to one incident while the full picture is ignored.
Even if prior proceedings were not formally admitted at
the hearing, we have said that "trial courts may take
judicial notice of their own records or prior proceedings in
the same case." State
v. Olesen,
331 N.W.2d 75, 76 (S.D.1983) ....
As a third issue, L.B. alleges that the trial court erred by admitting
evidence at the adjudicatory hearings that was outside the allegations
of the petition. On this issue, L.B. relies on the due process requirement
*432
presented in N.J.W.,
supra. The
grounds upon which dependency and neglect are alleged are the only grounds
which may be considered in a determination of dependency and neglect.
Id.
The petition filed by Department on December 10, 1981, reads:
That
said children lack proper parental care through the actions or
omissions of their parent, L.B., who left them with a
babysitter at 9:00 a.m., October 26, 1981, and called at
9:15 a.m. to state that she was not returning to
pick up her children; that they should be placed
with the South Dakota Department of
Social Services. Her whereabouts were unknown at the
time.
L.B.'s brief points out only two apparent instances of error;
first, that the trial court admitted testimony regarding the
alleged condition of the apartment and, second, that the trial
court made findings regarding prior foster care.
[FN*]
FN*
We note that the brief also attempts to relate this
error to dispositional findings, but we find that wholly immaterial
to this consideration.
In reviewing the trial court's findings of fact, we see
nothing regarding the alleged condition of the apartment; further,
we presume that the trial court disregarded any testimony which
was improper; therefore, we find no error in the
first instance. N.J.W.,
supra.
The issue regarding admission of evidence on prior foster care,
is disposed of by our disposition of the immediately preceding
issue; we presume the trial court disregarded improper evidence.
We also note that the trial court can
take judicial notice of its files and records and that
indeed at least two prior instances of court ordered foster
care appear in the record. We, therefore, hold
that the trial court did not err in this instance.
L.B.'s fourth issue asserts that the trial court's findings supporting
its
conclusions that the children are dependent and neglected are clearly
erroneous. This court's standard of review is set out in two statutes.
First, "[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses." SDCL 15-6-52(a).
Second, "[i]f the court finds that the allegations of the petition
are supported ... by clear and convincing evidence in cases concerning
neglected and dependent children, the court shall sustain the petition[.]"
SDCL 26-8-22.10.
This court explained its application of the clearly erroneous standard
in In
Re Estate of Hobelsberger,
85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970), as
follows:
In
applying the clearly erroneous standard we must bear in mind
that our function is not to decide factual issues de
novo. The question for the appellate court is
not whether it would have made the same findings the
trial court did, but whether on the entire evidence it
is left with a definite and firm conviction that a
mistake has been committed.
In this case, the trial court viewed the evidence, listened
to the testimony of the witnesses, determined that the evidence
was sufficient to support the petition and adjudged the children
dependent and neglected. After reviewing the record and
giving proper deference to the trial court, we cannot say
that the findings are clearly erroneous.
L.B.'s fifth contention is that the evidence in this case does not support
a finding that L.B.'s parental rights should be terminated. She first
argues that the trial court was constrained by the petition to limit its
considerations to the events of October 26, 1981. She cites SDCL 26-8-
22.5, which provides, in pertinent part: "At the adjudicatory hearing
... the court shall first consider only whether the allegations of the
petition are supported ... by a preponderance of the evidence in cases
concerning neglected or dependent children." The standard has been
raised to "clear and convincing evidence" by Santosky,
supra and S.L.,
supra, and
has now been codified *433
by the 1983 amendment to SDCL 26-8-22.8. We note, however, that the statute
points to the adjudicatory
hearing. It is SDCL 26-8-22.11 which refers to the evidence at dispositional
hearings. This statute requires that
[a]fter
making an order of adjudication, the court shall hear evidence
on the question of the proper disposition best serving the
interests of the child and the public.
Such
evidence shall include, but not necessarily be limited to, the
social study and other reports.
As we pointed out in our discussion of the second
issue, the trial court may take judicial notice of records
and prior proceedings in the dispositional phase.
L.B. next suggests that
the trial court failed to consider less restrictive alternatives. After
an examination of the findings of fact and conclusions of law entered
by the trial court upon remand we disagree. Conclusion of Law IX states:
"The termination of parental rights of L.B. is the least restrictive
remedy available to the court which would be in the best interests of
the above named children"; Conclusion of Law X states "that
no remedy short of termination of parental rights would sufficiently protect
the physical and mental health of the above named children because all
available services have been attempted"; and, Conclusion of Law XI
states that "the court finds beyond a reasonable doubt that it is
in the best interests and welfare of the above children to terminate all
of the parental rights of L.B."
"While the fundamental nature of parents' rights to their children
mandates at least a reasonable effort to aid the parents,
termination of parental rights is justified when attempts to assist
a parent in providing better care for the child are
unsuccessful." Matter
of S.A.H.,
314 N.W.2d 316, 317 (S.D.1982) (citation omitted); Matter
of R.Z.F.,
284 N.W.2d 879 (S.D.1979); In
Matter of C.E. and D.E.,
283 N.W.2d 554 (S.D.1979). The circuit court in
this case concluded that termination of L.B.'s rights is the
least restrictive remedy available and is in the best interests
of the children.
Without going into detail, we find the findings of fact
to be generally supported
by the evidence in the record and hold that the
findings clearly support the conclusions of law cited above.
On remand, the trial court cited the mandate for
application of the "beyond a reasonable doubt" standard found in
Section D.3 of the Indian Child Welfare Act and reviewed
all evidence and testimony presented at the hearing under that
standard. Use of the higher standard leaves this
court little room to doubt the sufficiency of the evidence
in this case.
The sixth issue presented
in this appeal is whether the trial court committed error by admitting
hearsay evidence of L.B.'s failure to attend therapy sessions at the Northeastern
Mental Health Center. Error is not presumed on appeal. Alberts
v. Mutual Service Casualty Insurance Co.,
80 S.D. 303, 123 N.W.2d 96 (1963). L.B. has the burden of proving prejudicial
error and must establish from the record that under the evidence presented
the trier of fact might and probably would have returned a different verdict
if the alleged error had not occurred. Dwyer
v. Christensen,
77 S.D. 381, 92 N.W.2d 199 (1958). The circuit court found in its dispositional
findings of fact filed April 12, 1983, "that the court has limited
its consideration to those documents and reports that have been filed
with the court." Unless this finding is proven clearly erroneous,
L.B. cannot show prejudicial error.
We consider the two other
issues raised by L.B. to be utterly frivolous. First she contends that
the court lacked jurisdiction because the notice
provided for the January 5, 1982 adjudicatory hearing set the hearing
for 10 a.m. and it was rescheduled for 3 p.m. without service of further
notice. On this we merely note that L.B. appeared at the 3 p.m. hearing
and failed to object in any manner. Obviously no prejudice can be shown.
The other frivolous issue she attempts to raise is based upon the trial
court's failure to appoint legal counsel for one of the fathers. *434
L.B. has no standing to object to the failure of the trial court to appoint
legal counsel for another party.
Finally, L.B. asserts
that the circuit court erred when it entered the dispositional findings
of fact, conclusions of law and order upon remand without providing her
an opportunity to present additional evidence or to object to proposed
findings and conclusions. We note that this case was only remanded for
application of the proper standard of review to the evidence already gathered.
Nothing more was required, nor did we in our remand direct that additional
evidence be heard as we have in some cases.
L.B. further relies upon SDCL 15-6-52(a), which provides that a
court shall not sign any findings in cases tried without
juries until five days after service of the proposed findings,
during which time the parties may submit objections and proposals.
Reliance upon this statute is misplaced in this
situation in that the law was fully complied with when
the original dispositional order was issued. L.B. submitted
two alternative orders to the court
and both were denied. She had ample opportunity
to object to the original dispositional order which, while not
identical, had substantially the same content and the exact effect
as the dispositional order issued on remand. L.B. cannot complain
of inadequate notice or insufficient opportunity to be heard.
SDCL 15-6-52(a) requires that proposed findings and conclusions be served
on all parties, after the period for objection and proposals
"the court shall make or enter such findings and conclusions
as may be proper." People
In Interest of T.C.,
Etc., 278 N.W.2d 452 (S.D.1979). L.B. was presented
with the original proposed findings, conclusions and decree and was
allowed to object and present her own proposals; the
trial court is not required to serve its final decision
on the parties before signing and filing it. T.C.,
supra.
In the absence of a showing to the contrary,
this court assumes the circuit court acted within its jurisdiction;
the appellant must show the alterations in the findings
and conclusions and their prejudicial effect. T.C.,
supra.
We affirm the trial court's order terminating L.B.'s parental rights.
FOSHEIM, C.J., and WOLLMAN and DUNN, JJ., concur.
HENDERSON, J., concurs specially.
HENDERSON, Justice (specially concurring).
As I am unable to sift out the germane from
the ungermane in the majority opinion regarding the standard of
proof and the review thereof interwoven throughout the writing, and
as I believe that it is vital that a clear
picture evolve from this litigation, I am compelled to write
specially.
FIRST
The mother's parental rights concerning three children were terminated on
March 15, 1982. On appeal, this Court reversed
the Dispositional Order and remanded the case for findings of
fact and conclusions of law based upon a standard of
clear and convincing evidence. This pertained to the
Dispositional Order only. Matter
of S.L.,
330 N.W.2d 528 (S.D.1983); Santosky
v. Kramer,
455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
There was no appeal on the Adjudicatory Order.
I have reached back and reviewed the briefs and showing
of the mother, State, and children in S.L.,
330 N.W.2d 528, and not one hint or advocacy was
ventured concerning the fact that these children were Indian children
and that L.B. was an Indian mother. It is little
wonder that this Court sent the case back under a
clear and convincing standard of proof.
SECOND
Upon remand, the trial court formally entered Findings of Fact,
Conclusions of Law, and Order terminating the mother's rights based
upon a standard of reasonable doubt. This standard
was used because the trial court found that the mother
was *435
one-half blood Indian and eligible for membership in the Standing
Rock Tribe. The trial court further found that
this case involves Indian children and the mandates of the
Indian Child Welfare Act must be complied with.
A standard of proof beyond a reasonable doubt is required
for termination of parental rights to an Indian child.
See
Matter of K.A.B.E.,
325 N.W.2d 840, 843-44 (S.D.1982); 25 U.S.C.A. §
1912(f) (Supp.1981).
THIRD
Notice of these proceedings was given to the Standing Rock
Indian Tribe, with which the mother had affiliation, advising the
Tribe of its rights to intervene in the State action
or to request a transfer to the children's tribal court.
The Standing Rock Tribe elected to neither intervene nor request
a transfer. Thus, the matter continued in state court.
It appears, therefore, that the Indian Child Welfare Act,
and the burden of proof thereunder, was complied with and
met, and the clear and convincing standard of proof, with
respect to the termination of parental rights in these Indian
children, is inapposite.
349 N.W.2d 428
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