In re L.A.

507 N.W.2d 83, 1993 S.D. LEXIS 132

Opinions

SABERS, Justice.

Father appeals from a Decree of Disposition terminating his parental rights to his twin daughters. We reverse.

FACTS

Mother gave birth to twin girls E.A. and L.A. on November 22,1988. Father requested a paternity test in February, 1989 but was advised that a blood test could not be performed at that time due to the age of the children. Shortly after the birth of the children, Mother and Father, who were never married, discontinued living together. Other than the removal of the children by the State and placement in foster care, Mother has had sole custody.

An Amended Petition was filed January 8, 1990 requesting the court to find the children dependent and to terminate the parental rights of Mother and Father. Father was notified in March, 1990 that he had been named as the alleged father of the children. After several phone conversations, paternity remained unresolved and Father was served with a summons and complaint in May, 1990. Father requested a blood test, the results of which indicated a 99.7 percent probability that Father was the father of L.A. and a 99.81 percent probability that he was the father of E.A. Paternity was established in October and Father began visiting the children in December, 1990. He was declared the father of the children on May 8, 1992.

Following a dispositional hearing, the court ordered the transitional return of physical custody in the children to Mother contingent upon specific conditions.

Footnotes

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* Legal custody remained with the Department of Social Services (DSS). Father’s parental and custodial rights to the children were terminated and he appeals.

DECISION

We must determine whether the trial court was clearly erroneous in finding by clear and convincing evidence that the termination of Father’s parental rights was in the children’s best interests as the least restrictive alternative. In re S.W., 428 N.W.2d 521, 525 (S.D.1988). It is established that:

[I]n a termination of parental rights at a dispositional hearing, the trial court must find by clear and convincing evidence that termination of parental rights is in the child’s best interest and the state must show that there is no narrower means of providing for the best interests and welfare of the child.

In re Z.Z., 494 N.W.2d 608, 609 (S.D.1992) (citing In re A.D., 416 N.W.2d 264, 267 (S.D.1987)). “Although the primary focus of the dispositional court is the best interests of the child, the termination of parental rights is a drastic, final step that should be exercised with great caution.” In re S.H., 337 N.W.2d 179, 181 (S.D.1983) (citation omitted). Termination must be the least restrictive alternative available, Z.Z., 494 N.W.2d at 609; In re R.H., 349 N.W.2d 65, 67 (S.D.1984), and should be ordered only upon a showing that services to the family are unavailing. In re J.Z., 410 N.W.2d 572, 576 (S.D.1987) (Miller, J., dissenting) (citations omitted), reh’g granted, 423 N.W.2d 813 (S.D.1988); In re 320 N.W.2d 795 (S.D.1982); In re R.Z.F., 284 N.W.2d 879 (S.D.1979).

The trial court’s findings of fact cannot be set aside unless they are clearly erroneous and we are, after a review of all the evidence, left with a definite and firm conviction that a mistake has been made. Z.Z., 494 N.W.2d at 610, (quoting In re A.M., 292 N.W.2d 103, 105 (S.D.1980)). A review of the record indicates that the trial court was clearly erroneous and termination of Father’s parental rights was not the least restrictive alternative.

According to Findings of Fact XXIV, XXVI, and XXVIII, Father does not relate well to the children and their needs, there is little likelihood that his deficiencies will be remedied, and he is unfit. It is undisputed that both Mother and Father are alcoholics and Father has received treatment for his alcoholism approximately ten times. Father, however, admitted he was an alcoholic at the dispositional hearing and testified that he was attending Alcoholics Anonymous meetings a minimum of twice a week. While testimony was presented alleging abusive behavior on the part of Father, the credibility of the witnesses was called into question and no evidence was presented which indicated that Father had been abusive to either of the children.

As the United States Supreme Court stated in Santosky v. Kramer,

[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.... If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.

455 U.S. 745, 753, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606 (1982). At the time of the dispositional hearing, Father had attempted to stabilize his life in order to provide a secure environment for the children should he be awarded custody. He was working part-time in the construction industry and was planning on attending Mankato State University to pursue an additional degree as well as a post-graduate degree. He had rented a two-bedroom apartment close to campus, taken parenting classes, and investigated support programs available to him in Minnesota and the Mankato area including the YMCA, the Community Educational Service Program and Social Services.

Additionally, clinical psychologist Dr. Bill Arbes (Arbes) testified that Father was highly committed to, and genuinely interested in, the welfare of the children. Arbes stated that Father could, under appropriate conditions, properly parent the children and that there could be a trial placement of the chil dren with the Father for three months without the children suffering permanent harm. Therefore, Findings of Fact XXIV, XXVI, and XXVIII are clearly erroneous.

According to Findings of Fact XXV and XXX, appropriate services to Father have failed, further services would be unavailing, and the least restrictive alternative available required termination of all parental rights of Father. A review of the record, however, indicates that the only “service” offered to Father was visitation of his children, which Father handled responsibly and successfully. According to Michael Sauers, a social worker for Child Protection Services, paternity was established in October, 1990 and Father began exercising his visitation rights in December, 1990. Other than when the children were in Sturgis, South Dakota, Father visited the children at the Child Protection Offices in Brookings and Sioux Falls regularly and took the children to the zoo and the park. Sauers testified that the visitations went very well. The children appeared excited when they saw their father and called him “Dad”.

In In re S.M.M., the father’s parental rights were terminated, but only after the trial court exhausted all alternatives short of termination. 349 N.W.2d 63, 65 (S.D.1984). Unlike S.M.M., Father has never had custody of the twins. Nor has he “been given the benefit of alternatives short of termination” such as “intensive counseling on child care, parenting skills, parent aid, nutritional aid, ... ADC and food stamps,” id., and we cannot say that “efforts to assist [him] through the use of social services prove[d] unavailing.” Id. In fact, there have not been any efforts on the part of Social Services to assist this Father. Therefore, Findings of Fact XXV and XXX are also clearly erroneous.

After examining all of the evidence, we conclude that less restrictive alternatives to termination exist and that the evidence in support of termination was not sufficiently clear, direct, weighty, and convincing to justify the termination of Father’s parental rights. Therefore, we reverse.

WUEST, J„ concurs. HENDERSON and AMUNDSON, JJ., concur specially. MILLER, C.J., concurs in result.

Physical custody was granted to Mother contingent upon:

1. Absolute sobriety on the part of the mother;

2. Continued extensive and consistent psychotherapy on the part of the mother, with monthly status reports filed by the mother’s counselor(s) with the DSS, until further Order of the Court;

3. Gainful employment or attendance at school on the part the mother; and

4. Quarterly updates from the DSS filed with the Court until further Order of the Court.