In re M. S. M.

320 N.W.2d 795, 1982 S.D. LEXIS 337
CourtSouth Dakota Supreme Court
DecidedJune 16, 1982
DocketNo. 13609
StatusPublished
Cited by25 cases

This text of 320 N.W.2d 795 (In re M. S. M.) 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 M. S. M., 320 N.W.2d 795, 1982 S.D. LEXIS 337 (S.D. 1982).

Opinion

HENDERSON, Justice.

ACTION

Appellant C. S. M. (mother) appeals from an order of the trial court which perma[796]*796nently terminated her parental rights as to her infant daughter M. S. M. (child) pursuant to a dependency and neglect action. We affirm.

FACTS

During February of 1981, the mother began receiving social service counseling due to difficulty in coping with her domestic situation (e.g.s, fights between the mother and her husband; the mother receiving a black eye; the child heard crying and screaming; complaints by a neighbor of alcohol and drug use in the child’s presence; the mother telling a neighbor that her husband attempted to use a knife on the child). The mother’s second appointment was scheduled for February 24, 1981, but she failed to appear because of forgetfulness. A caseworker for the South Dakota Department of Social Services (Department) thereafter telephoned the mother and told her to schedule another appointment. However, the mother failed to do so.

On March 6, 1981, the Department learned that the mother was planning to leave town (the mother tried to sell the child’s crib and a backpack, neither of which she owned). When contacted by the Department as to why she was leaving, the mother gave several inconsistent explanations. By this time, J. M., the mother’s husband and the child’s father, had left for Illinois.1 A few days later, the mother met with a Department caseworker and agreed to see a counselor the next day. The caseworker took her to the appointment. A counseling session for the following week was missed because the mother felt that she could work things out on her own. Subsequently, she agreed to keep eight future counseling appointments.

The mother was arrested on March 31, 1981, for passing no-account checks. Her child was placed in temporary foster care while she remained incarcerated for one week. Upon her release from jail, the mother was required by the trial court to cooperate with the Department. A psychological evaluation was made of the mother at this time; she was diagnosed as having a dependent personality disorder with borderline intellectual functioning.

At this time, the mother began living with a local pastor who assisted her in obtaining employment as a waitress. This job lasted only two days because of her inability to handle the work. The mother visited her child on April 9, 1981. Four days later, the mother met with a caseworker and agreed to a case plan which she signed. The caseworker also contacted a previous employer of the mother to inquire about finding her employment. The employer, however, would not rehire the mother due to her poor past performance as an employee. After living at the pastor’s residence for approximately ten days, the mother left and began living with a friend. On April 20, 1981, the mother visited her child; however, on April 30,1981, the mother ostensibly visited her child as she spent most of the time talking with a receptionist.

An adjudicatory hearing was held on May 1,1981, to determine whether the child was dependent or neglected. The trial court so found and entered the following conclusion of law:

That termination of parental rights is not indicated at this time, but that temporary custody and control of said child should be given to the Office of Children, Youth and Family Services, for a period of six months, with authority to place in foster care and to provide necessary medical attention, with a view to restoration of said child to its mother if she cooperates in a program of treatment and training under the Division of Vocational Rehabilitation; that the Office of Children, Youth and Family Services shall report to the Court within 30 days as to the status of the case and present a plan of treatment and training for [the mother].

[797]*797On May 5, 1981, a Department caseworker set up treatment plans and counseling appointments for the mother and explained to her that upon completion of this program the child would be returned to her. The mother began working on May 7,1981, as a maid at a local hotel but was soon terminated due to her consistent failure to report for work.

On May 14, 1981, the mother failed to keep a scheduled appointment for a physical examination pursuant to her treatment plan. Thereafter, she met with a Department caseworker on May 26, 1981, and queried as to whether it would be best to allow the child to be adopted by the foster parents as the child seemed comfortable with them. She further expressed that possibly her child would not know her when returned to her.

A Department caseworker attempted to telephone the mother (where she was staying with a friend) near the end of May 1981 in an effort to set up a visit with her child but was told that she no longer lived there. Soon thereafter it was learned that the mother had leased an apartment but was evicted for failure to pay rent. Thereupon, she lived with other friends.

As a result of its previous experiences with the mother, the Department of Vocational Rehabilitation desired to conduct some tests on her to determine if she could benefit from one of its programs. Several appointments were scheduled for these tests, but the mother often failed to appear. A Department caseworker ultimately located the mother at a North Dakota residence to find out why the appointments were being missed. The mother explained that she believed that she did not need any assistance as she was not “sick in the head.”

Two appointments were made in June of 1981 to allow the mother to visit her child but the mother again failed to keep these appointments. A Department caseworker eventually contacted the state’s attorney to see about terminating the parental rights of the mother. In August of 1981, the mother returned a message left by the Department. At this time, the mother expressed no desire to adhere to any of the Department’s suggestions or plans and expressed that she would not divulge her address but had plans to move to McLaughlin, South Dakota.

On August 28, 1981, a dispositional hearing was held whereat the mother testified that she had not visited her child for three months because she “just wanted to sort of let things ride and wait and see what was going to happen.” The mother also stated at this hearing that she loved her child very much but did not cooperate with the aforementioned vocational rehabilitation program because she wanted to do things on her own. The Department caseworker, who attempted rehabilitation of the mother, testified that she believed that the Department had done all that it could in assisting her. This caseworker further testified that the mother did not want to cooperate and talked of giving up the child for adoption. Also, the caseworker related that at times the mother would only visit with her child for thirty minutes when the visitation period was scheduled for an hour. At the time of the dispositional hearing, the mother was unemployed and did not have her own residence. On September 8, 1981, the trial court ordered that the child be permanently removed from the mother and be placed in custody of the Department with full powers of adoption.

ISSUES
I.
Did the trial court err in finding the child to be dependent or neglected? We hold that it did not.
II.

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Bluebook (online)
320 N.W.2d 795, 1982 S.D. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-m-s-m-sd-1982.