In re J.Z.

423 N.W.2d 813, 1988 S.D. LEXIS 69

• Court: South Dakota Supreme Court
• Decided: May 11, 1988
• Docket: No. 15473
• Status: Published

Opinions

MILLER, Justice

(on reassignment on rehearing).

This case first came before this court in an appeal by L.Z. (Mother) from a circuit court order terminating her parental rights concerning her son, J.Z. We reversed, finding the evidence supporting the trial court’s order to be neither clear and convincing, and that less restrictive alternatives to termination of parental rights existed. Matter of J.Z., 410 N.W.2d 572 (S.D.1987).

State filed a petition for rehearing and this court granted rehearing by order of September 25, 1987. We heard oral argument on November 17,1987. The case was ultimately reassigned to this Justice on February 26, 1988.

On rehearing, we now conclude that the trial court did not err in terminating parental rights over J.Z. and we therefore affirm.

FACTS

A reading of our prior decision and dissent sets forth a detailed recitation of the facts. We will expand upon or reiterate those facts when dealing with the issues decided below.

DECISION

On appeal, we must ascertain whether the trial court was clearly erroneous in finding that the evidence supporting termination was clear and convincing. Matter of A.H., 421 N.W.2d 71 (S.D.1988); J.Z., supra; Matter of K.C., 414 N.W.2d 616 (S.D.1987). We have consistently stated that the trial court’s findings will not be set aside unless, after reviewing the evidence, we are left with a firm and definite conviction that a mistake has been made. Matter of L.B., 416 N.W.2d 598, 599 (S.D.1987); People in Interest of T.H., 396 N.W.2d 145 (S.D.1986); People in Interest of M.W., 374 N.W.2d 889 (S.D.1985); In re A.M., 292 N.W.2d 103 (S.D.1980).

We make our examination from the child’s point of view, not the parents’, remembering that the principal concern is the child’s best interests. People in Interest of C.L., 356 N.W.2d 476 (S.D.1984); In re R.Z.F., 284 N.W.2d 879 (S.D.1979). Children are entitled to stability and certitude in their lives. T.H., supra; People in Interest of J.S.N., 371 N.W.2d 361 (S.D.1985).

The trial court’s findings under attack in this appeal are as follows:

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3. That according to Frank Dame, a clinical psychologist, [Mother] is a paranoid schizophrenic and said psychiatric condition cannot be eliminated through treatment.

4. That according to Frank Dame, said psychiatric condition is not likely to improve and will likely cause further impulsive behavior and poor judgment on the part of [Mother].

5. That according to Frank Dame, [Mother] has great difficulty dealing with stress, and consequently, there is a severe potential threat of injury to said [J.Z.].

6. That [Mother] is unable to accept the responsibility of raising [J.Z.], nor does she possess the capability to provide a suitable home or proper parental care for [J.Z.].

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9. That the testimony of Frank Dame, an expert, is factually correct.

We believe that the trial court accurately characterized and evaluated the testimony of Dr. Dame. In addition to his testimony as outlined in our prior decision and dissent, we note that:

(1)Dr. Dame’s testimony indicated that Mother’s mental illness was life-threatening to J.Z.

(2) Dr. Dame’s testimony that Mother’s schizophrenia ‘was in remission and she no longer experienced hallucinations or delusions’ does not detract from his other testimony when considering his definition of ‘in remission’ as meaning:

That the person is not acutely psychotic. The person is not hallucinating nor is the individual delusional, but the individual’s thinking, reasoning and emotional experiences continue to bear major elements of a schizophrenic process.

(3) In response to cross-examination and argument that since Mother was past the five-year mark of her mental illness she would likely improve, Dr. Dame testified that her condition merely has a ‘tendency’ to improve over a period of time and that

in some individuals it — the research typically [takes] about a five-year period. For some individuals it’s less, for some individuals it’s longer, for some individuals the improvement is never obvious. The person remains in a lifelong pattern of vulnerability of stress, so in a supportive stable situation where the stress is not likely to change, some of these individuals can function in a level stable fashion. Where the stress is likely to be higher at times and lower at times, we typically see a pattern of unstable behavior.

(4) Dr. Dame further explained that because Mother lived in an unstable environment, coupled with her difficulties with the law, her alcohol abuse, her difficulties in parenting J.Z., her living condition, and her employment situation, her rate of improvement would be impeded.

(5) Dr. Dame’s original report, which was considered by the trial court, contained the following language:

The results of the testing suggest a long-term, chronic, paranoid schizophrenic diagnosis, which is at this time in remission. In spite of the improved behavioral stability that has been achieved through the use of anti-psychotic medications, (mother) is still exceptionally rigid and inflexible in her behavior, she is substantially below average in the use of her intellect, and is likely to continue experiencing severe difficulties in exercising mature judgment. The use of denial and projection as the prominent ego defense mechanisms, substantially reduces her ability to deal effectively with her environment, and perhaps most importantly it results in her being insensitive to her own needs and feelings as well as those of others. As is commonly the case, she has been deprived of a normal, healthy and emotionally responsive relationship with a parent figure, and as a result she is without the sensitivity, emotional responsiveness and nurturing behaviors that are necessary to raise a child.

Inasmuch as this psychotic condition cannot be eliminated through treatment and is likely to be permanently and severely handicapping, and inasmuch as there will be a continuing series of crises stemming from impulsive behavior and poor judgment, it is the recommendation of this examiner that (mother’s) parental rights be terminated.

Based upon all of the foregoing, coupled with the language in our prior decision and dissent, we conclude that the trial court’s findings were not clearly erroneous. Certainly it was a difficult decision in a most important, emotional action. However, we are not left with a firm and definite conviction that a mistake has been made.

We are truly sympathetic with Mother and her situation. We have even more sympathy for the child. However, we cannot base our decisions on sympathy. In re J.W.W., 334 N.W.2d 513 (S.D.1983); In re J.M., 479 So.2d 826 (Fla.App. 2 Dist.1985); In re W.D.N., 443 So.2d 493 (Fla.App. 2 Dist.1984). We must take the facts presented and apply the appropriate law without resorting to our emotions.

Being convinced that the trial court did not err, we affirm its decision.

WUEST, C.J., and MORGAN, J., concur. HENDERSON and SABERS, JJ., dissent.