In re C.J.H.

371 N.W.2d 345, 1985 S.D. LEXIS 313
CourtSouth Dakota Supreme Court
DecidedJuly 17, 1985
DocketNos. 14745, 14765
StatusPublished
Cited by31 cases

This text of 371 N.W.2d 345 (In re C.J.H.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re C.J.H., 371 N.W.2d 345, 1985 S.D. LEXIS 313 (S.D. 1985).

Opinion

HENDERSON, Justice.

G.H. (father) and C.H. (mother), appellants, appeal from an order terminating their parental rights over C.J.H., J.J.H., and G.J.H. (children). We affirm.

Appellants are divorced and have three daughters ranging in age from ten to six. Father had custody of the children pursuant to the Decree of Divorce. Mother is mentally disturbed and a self-confessed alcoholic. Father is a talented and industrious man who leads a very independent life-style. He is suspicious and distrusts the aid and advice offered by the Department of Social Services (Department). Appellants’ marriage and relationship was fraught with violence, spousal abuse, alcohol consumption, and separations, but the children were never beaten or the center of this violence.1 This family unit has been the object of many social and community help organizations and has been involved with the Department since at least July 1978.

In October 1983, after being released from a treatment program for chronic alcohol addiction and related physical and psychological problems, mother returned to Letcher, South Dakota, to live with father and the children. On December 30, 1983, father became extremely angry because he thought the children had plugged up the sewer system. Father, thereafter, left the home. Upon his departure and fearing he would hurt them, mother and the children left the home and went to the Mitchell Police Department. These events transpired in the early evening and the temperature was five to ten degrees below zero. The children, although clad in winter coats, were not wearing underwear or socks. The underwear was saved to wear to school. One child had a large hole in her boot.

That night, the children were taken into the custody of the Department and on January 3, 1984, the Department filed a petition alleging them to be dependent and neglected children.2 An emergency hearing was conducted that same day and temporary custody was awarded to the Department.

The adjudicatory hearing was scheduled for February 3, 1984. On February 2, counsel for mother made a motion for continuance over the telephone. It appears mother had not contacted counsel for eighteen days and had been on an alcoholic binge and had been found by the police at her lawyer’s request only the day before. She was in the Mitchell Area Alcohol and Drug Referral Center for detoxification and, according to her counsel, was not fully capable of understanding and not ready to participate in the hearing. Counsel asserted that mother would be denied due process if the hearing was not continued. The trial court denied the motion because 1) mother's incapacity was self-induced and thus not the typical case of a party being ill through no fault of their own; 2) the bur[349]*349den rests on the parties to insure their availability at the time of the hearing; and 3) mother’s rights were fully protected by counsel.

After the examination of three witnesses during the adjudicatory hearing, appellants admitted the allegations of the petition. The trial court found the children to be dependent and neglected and the disposi-tional hearing was begun. Neither appellant appeals the trial court’s dependency and neglect determination. After the examination of several witnesses, the disposi-tional hearing was rescheduled.

On April 2, 1984, two days before the scheduled continuation of the dispositional hearing, mother moved the trial court for an order requiring father to submit to a mental examination under SDCL 15-6-35(a). In support of the motion, mother asserted that all parties’ mental conditions were in controversy, that all had been examined except father, and that such information was necessary for the trial court to determine the children’s best interests. The trial court granted the motion, ordered the examination, and rescheduled the dispo-sitional hearing. The dispositional hearing was continued and finally concluded on April 25, 1984. In his closing argument to the trial court, the State’s Attorney admitted that he did not believe termination was the least restrictive means or that the parental rights of either appellant should be terminated.

The trial court, however, concluded that termination of father’s and mother’s parental rights to be the least restrictive alternative and in the children’s best interests. It thereupon vested legal custody and care in Department. It is from the order terminating parental rights that appellants now appeal. Appellants’ briefs present seven issues and we address them seriatim.

I.

Mother initially claims the trial court abused its discretion by denying her motion for a continuance and thereby prejudiced her fundamental right to due process. We disagree.

The grant or denial of a motion for a continuance is within the sound discretion of the trial court and will not be disturbed upon appeal unless there has been a clear abuse of discretion. State v. Rosales, 302 N.W.2d 804, 805-06 (S.D.1981). Here, mother voluntarily imbibed alcohol over several days’ time until she reached the point of requiring admission to an alcohol treatment program to detoxify herself. There is no contention that she was unaware of the date of the adjudication hearing. All other parties were prepared to proceed; mother was represented by counsel; and the children had already been in the custody of the Department for one month. Any impairment of mother’s right to participate in the adjudicatory hearing was of her own accord. Under these circumstances, the trial court did not abuse its discretion in denying a continuance. See Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114 (1958); Anderson v. Anderson, 78 Pa.D. & C. 335 (1951); Ramsey v. Bird, 170 S.W. 1075 (Tex.Civ.App.1914).

II.

Father’s first claimed error concerns the order requiring him to submit to a mental examination. This order was based on SDCL 15-6-35(a). Initially, father argues the trial court was without power to order the examination because civil discovery rules and statutes are not applicable to dependency and neglect proceedings because these are quasi-criminal and not civil in nature. This contention, however, is without merit.

Procedures determining the custody of dependent children are not criminal, Kent v. United States, 383 U.S. 541, 554-55, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84, 93-94 (1966), are not quasi-criminal, In re Guisti, 51 Nev. 105, 110, 269 P. 600, 601 (1928), but instead constitute a civil action, Board of Children’s Guardians v. Gioscio, 210 Ind. 581, 585, 4 N.E.2d 199, 201 (1936), or a special proceeding of a civil nature, In re R. Y., 189 N.W.2d 644, 650-51 [350]*350(N.D.1971). See also, 43 C.J.S. Infants § 50 (1978). The Rules of Civil Procedure are used in all dependency and neglect adjudicatory hearings, Matter of V.D.D.,

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Bluebook (online)
371 N.W.2d 345, 1985 S.D. LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cjh-sd-1985.