| (Cite
as: 323 N.W.2d 885)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota, in the Interest
of S. R., A Child, and
Concerning
B. R.--Mother, K. A.--Father, E. B.--Maternal Grandmother and Indian
Custodian.
No.
13601.
Argued April 29, 1982.
Decided
Sept. 1, 1982.
*886
Janice Godtland, Asst. Atty. Gen., Pierre, for appellee; Mark V. Meierhenry,
Atty. Gen., Pierre, on brief.
Wayne Gilbert, Rapid
City, for Child.
Mary Ellen McEldowney,
Black Hills Legal Services, Rapid City, for Mother.
Scott Sumner, Rapid City,
for Father.
Randal E. Connelly, Rapid
City, for Grandmother and Indian Custodian.
FOSHEIM, Justice.
The issues in this case relate to the Dependent, Neglected and Delinquent
Children Act, SDCL ch. 26-8, and the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C.A. § 1901 et
seq. On August
21, 1980, the court adjudicated S. R. a dependent and neglected child
within the meaning of SDCL 26-8-6. The ensuing Dispositional Order terminated
the parental rights of the mother and awarded sole custody to the child's
father. Both the mother and father are members of a Sioux Indian tribe.
The mother (appellant) appeals from the Dispositional Order. We affirm.
Appellant
asserts in her brief that the burden of proof at the adjudicatory hearing,
under the ICWA, is clear and convincing; conversely, at oral argument
she claimed the adjudicatory burden is beyond a reasonable doubt. We hold
that, under the ICWA, dependency and neglect must be proved by clear and
convincing evidence. Such a conclusion is indicated by reading together
25 U.S.C.A. § 1912(e) and (f).
[FN1] *887
The clear and convincing burden is preferred as this lesser showing best
protects the interests of the child, which is of paramount importance
at the adjudicatory hearing. People
in Interest of D. K.,
245 N.W.2d 644 (S.D.1976). Although the trial court did not state what
standard of proof it applied, a careful review of the record of the adjudicatory
hearing indicates the "serious emotional or physical damage"
requirement of 25 U.S.C.A. § 1912(e) was proved by clear and convincing
evidence. See:
People in Interest of P. M.,
299 N.W.2d 803 (S.D.1980); Matter
of S. J. Z.,
252 N.W.2d 224 (S.D.1977).
FN1.
25 U.S.C.A. § 1912(e) reads: No foster care placement may be ordered
in such proceeding in the absence of a determination, supported by clear
and convincing evidence, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to the child.
25
U.S.C.A. § 1912(f) reads: No termination of parental rights may be
ordered in such proceeding in the absence of a determination, supported
by evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or physical
damage to the child.
This brings us to these
issues regarding the Dispositional Order terminating appellant's parental
rights: (1) whether active efforts were made to prevent the breakup of
the family; (2) whether termination was supported by the requisite burden
of proof; and, (3) whether termination was the least restrictive alternative.
Concerning the first issue, the ICWA, 25 U.S.C.A. § 1912(d), states:
Any
party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under State law shall satisfy the
court that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.
This section does not specify a burden of proof. However, we assume that
the same burden required to prove serious emotional or physical harm under
§ 1912(f), beyond a reasonable doubt, would also be required to prove
active efforts by the party seeking termination. The trial court found
that while the child was placed with a foster parent, and later the father,
appellant made no effort to exercise consistent visitation although she
knew the opportunity for visitation was always available. The trial court
found that appellant was provided with various types of assistance and
direction in caring for her child, yet she failed to exhibit any interest
in proffered help or in expanding her knowledge of caring for her special
needs child. The trial court also found that it was apparent that appellant
would not respond in the future to any additional offers of assistance
and that further active efforts towards improvement would be fruitless.
Although the trial court
did not so find, it appears appellant's paint huffing addiction was the
cause of her inability to function as a parent. Repeated efforts
were made to impress upon appellant the vital importance of taking advantage
of available treatment programs. The evidence indicates she spurned help
and chose rather to deny her addiction. The frustration met by those trying
to help appellant was expressed by Rosalie Good Bear, an expert witness:
"[I]t's been my experience in working with huffers and chemically
dependent children that active efforts can only go so far and that if
the client himself or herself is not open or does not recognize the problem
and is not open to any kind of treatment, then it's unlikely that it would
be successful."
[FN2] After reviewing the record we conclude that the trial court's findings
concerning active efforts are supported by evidence beyond a reasonable
doubt.
FN2.
In Matter of
R. Z. F., 284
N.W.2d 879 (S.D.1979), we held that unsuccessful efforts to rehabilitate
a paint huffing parent justified termination of parental rights.
The next issue is whether
the burden of proof was met to terminate appellant's parental rights under
the ICWA. The ICWA, 25 U.S.C.A. § 1912(f), states:
No
termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable
doubt, including
testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
*888
The trial court found that the circumstances were such as would warrant,
beyond a reasonable doubt, a termination of the parental rights of appellant.
We recognize that review under the beyond a reasonable doubt standard
is more demanding than under the clear and convincing standard and we
have considered the evidence accordingly. City
of Sioux Falls v. Wolf,
79 S.D. 519, 114 N.W.2d 100 (1962); State
v. Liberman,
59 N.D. 252, 229 N.W. 363 (1930). In addition to the findings detailed
under the active efforts issue, the trial court found that appellant had
rarely seen the child in the two years since her birth, other than in
the first three months of the child's life, and that during those three
months the child's grandmother provided extensive care of the child. The
trial court found that the child has special needs and that her potential
for adequate development would be extremely doubtful, if not totally improbable,
were appellant given custody, control or involvement with the child in
any way. The trial court found that it is essential that the child receive
the benefit of a secure, permanent and loving environment, free from disruption;
but that the sporadic, inconsistent contact appellant would exercise,
were she given access to the child, would diminish the child's ability
to properly grow and bond to other individuals which is so necessary
for a healthy development. The trial court found that appellant is an
entirely unfit mother for the child, showing no sense of responsibility
or significant degree of interest in the child, and that the child would
be irreparably damaged by further contact with appellant in a parental
relationship. The trial court also found that Edel Isaac and Rosalie Good
Bear
[FN3] were experts within the purview of the ICWA and that their testimony
indicated that there would be serious emotional and physical damage to
the child if she were returned to the custody of appellant. After carefully
reviewing the evidence, we hold that the "serious emotional or physical
damage" requirement was proved beyond a reasonable doubt.
FN3.
Appellant argues that the trial court erred in qualifying these witnesses
as experts under the ICWA. We find this argument without merit. Based
on the qualifications these witnesses testified to, the trial court did
not abuse its discretion in accepting their testimony as expert.
Buckley v. Fredericks,
291 N.W.2d 770 (1980).
Finally appellant argues,
citing Matter
of B. E., 287
N.W.2d 91 (S.D.1979), that the least restrictive alternative was not followed
in terminating her parental rights to the child. In Matter
of B. E. at
95, we stated:
We
are acutely aware that termination of parental rights is a drastic, final
step that should be exercised with great caution.... We must be mindful
of the fact that the needs of the child must take priority over the wishes
of the parent. To mandatorily impose a less restrictive alternative in
each instance as a prerequisite for termination would thwart this underlining
principle in cases where immediate termination is the only viable means
to insure that the best interests of the child are protected.... When
confronted with this issue, we must determine pursuant to the principle
laid down in Shelton
v. Tucker,
364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), whether the court erred
in concluding, based on the findings of fact resulting from the dispositional
hearing, that no narrower or less restrictive means were available to
provide for the best interests and welfare of the child other than to
terminate the parental right. Matter
of N. J. W.
[273 N.W.2d 134], supra.
SDCL 26-8- 35 provides less intrusive measures which the court can consider
as an alternative to terminating parental rights. If, on a review of the
record, it appears that the state's compelling interest in the well-being
and welfare of the children can reasonably be insured by less intrusive
means, we must order that those alternatives first be implemented.
This issue is closely tied to whether the evidence met the beyond a reasonable
doubt standard needed to support a finding of serious emotional or physical
damage under *889
25 U.S.C.A. § 1912(f).
[FN4] Because we believe
the evidence supports the trial court's findings detailed above, and especially
its findings that appellant was unresponsive to efforts to assist her
and that the child would be irreparably damaged by further contact with
appellant in a parental relationship, we believe the trial court had no
reasonable alternative other than termination. The trial court's Dispositional
Order clearly reflects the State's compelling interest in the well-being
and welfare of the child and, under the circumstances of this case, we
do not see how the child's welfare could be insured by less intrusive
means.
FN4.
While we recognize the similarity between the two issues, the ICWA does
not require consideration of the least restrictive alternative to termination
of parental rights. Therefore the State need not prove beyond a reasonable
doubt that termination is the least restrictive alternative.
While termination of
appellant's parental rights was unfortunate, the spirit of the ICWA was
nevertheless fulfilled. The policy of the ICWA, as stated in 25 U.S.C.A.
§ 1902, is:
[T]o
protect the best interests of the Indian children and to promote the stability
and security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their families
and the placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture[.]
The trial court's Dispositional Order gave the child's father, also an
Indian within the meaning of the ICWA, sole custody, care and control
of the child. That disposition was based on a finding, supported by the
evidence, that the father is providing the child an appropriate environment
with the level of attention and love the child's special needs require.
Issues not discussed
are without merit or unnecessary to discuss in view of our decision and
the record before us. The trial court's Dispositional Order is affirmed.
All the Justices concur.
323 N.W.2d 885
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