In re of S.M.

384 N.W.2d 670, 1986 S.D. LEXIS 345
CourtSouth Dakota Supreme Court
DecidedMarch 26, 1986
DocketNo. 15093
StatusPublished
Cited by37 cases

This text of 384 N.W.2d 670 (In re of 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 of S.M., 384 N.W.2d 670, 1986 S.D. LEXIS 345 (S.D. 1986).

Opinion

HERTZ, Acting Justice.

The parents of S.M. appeal from the trial court’s order which terminated their parental rights. We affirm.

B.M. the mother, and C.M. the father, both of whom are appellants herein, are the parents of three daughters. The M.’s children are all named S.M. The oldest daughter was born on March 22, 1982. The middle daughter, and the only child concerned in this appeal, was born on March 12, 1983. The last daughter was born on May 29, 1984.

S.M. was born seven weeks premature on March 12, 1983. B.M. delivered the child through an emergency cesarean section operation. S.M. weighed four pounds one and one-half ounces at birth. She was stable and did not have premature lung disease. S.M. was in the intensive care unit for seven weeks. B.M. did not visit the infant regularly due to the fact that she had another toddler at home, and because she was recovering from the surgery. At the time of S.M.’s birth, B.M. was seventeen years old.

The record suggests that B.M. may have been physically abused by her own father. She experienced many problems with her parents, especially in regard to C.M., of whom her parents did not approve. C.M. is the father of all three children. Although the older daughter was born out of wedlock, C.M. and B.M. were married before S.M. was born.

On September 6, 1983, the State of South Dakota, (State), filed a petition which alleged that S.M. was a dependent and neglected child in accordance with SDCL 26-8-6. The petition alleged that the Department of Social Services, (Department), continued to receive complaints concerning the lack of proper care for the M.’s children, that the family had been living in a car, and that a Sioux Falls pediatrician had seen S.M. and confirmed the need for intervention.

S.M. was removed from the M.’s home on September 2, 1983, and placed in protective custody. A police officer brought the child to the Children’s Inn, (C.I.), which is a temporary shelter for abused women and children. The C.I. counselor who was on duty when S.M. was admitted, testified that the reason why the child was brought to the shelter was alleged abuse on the part of the father.

B.M. had previously taken refuge at C.I. on June 25, 1983. At that time, she stated that C.M. had been abusing her and that she was afraid her children were in danger. B.M. indicated that he had hurt the girls in the past, and had beaten her (B.M.) that day. The C.I. counselor discussed the various options available to B.M. at this time. B.M. and her mother decided to go to the police station. Shortly thereafter, B.M.’s mother called C.I. and stated that B.M. and C.M. had reconciled because the police [672]*672could not help. At the termination hearing on May 2, 1985, B.M. denied that her husband had ever abused her or the children.

S.M. was hospitalized on June 29, 1983, because she was coughing and having trouble breathing. She was in the hospital for twelve days during which time her breathing problems cleared up. As part of S.M.’s hospital discharge plan, the M. family was referred to the Visiting Nurses Association, (V.N.A.). V.N.A. provides nursing or parenting skills in the home. In the instant case, the doctors were concerned about S.M. because they had received reports that she was not receiving proper care, was very small and sick, and because B.M. was very young and immature. Over the summer of 1983, V.N.A. nurses visited the M. family.

During July and August of 1983, the V.N.A. nurses had a difficult time locating the M.’s. They moved frequently and often stayed with family and friends. During August of 1983, the M.’s lived in a car with their two daughters. B.M. claimed at trial, however, that they only slept in the car a few nights. The car was a 1964 Mercury Montclair which had been converted into a pickup. The back seat had been removed so the family was confined to the front seat.

A V.N.A. nurse visited the M.’s home on September 2, 1983. S.M. weighed fourteen ounces less than she had weighed on August 3, 1983. The nurse reported that S.M.’s disposable diaper was saturated with urine, and that the older child’s leg had dried feces on it. B.M. had dressed S.M. in a dish towel because she had no more diapers to put on the child. At this time, the nurse observed bruises about the body, and a large scratch on the back of S.M.’s head. As a result of this visit, the nurse called the Department. Thereafter, a Department supervisor and social worker went to the M.’s home to determine whether the baby’s bruises were serious. They tried to convince C.M. and B.M. to take S.M. to a doctor. Only after the social workers threatened them with police intervention did C.M. and B.M. finally agree.

Consequently, the social workers brought the child, who was accompanied by B.M., to the clinic for an examination. The pediatrician, Dr. Blake, (Blake), was concerned about S.M.’s bruises because B.M. could not give him an adequate explanation for them. She told the doctor that S.M. had slept on the floor one night, and when S.M. awoke, she had the bruises. B.M. did not know how the abrasion on the top of S.M.’s head had occurred. However, she stated that the older daughter had pinched S.M. on the arm.

Blake diagnosed S.M. as a suspected abused or neglected child based on the numerous bruises, the varying ages of the bruises, and the lack of an adequate explanation for the bruises from B.M. As mentioned initially, S.M. was removed from the home and placed in protective custody at C.I. on September 2, 1983. S.M. remained there for five days. On September 7, 1983, S.M. was placed in foster care.

After S.M. was removed from the M.’s, both parents blamed their older child for the baby being at C.I. At the trial on May 2, 1985, both parents denied physically abusing their children. They continued to blame the older child for the bruises on S.M., however, each parent’s version was slightly different. C.M. claimed the bruises occurred when the M.’s were living in the car because the older child stepped on S.M. while C.M. was reading the phone book or newspapers. B.M. claimed that when they lived in the car, the older child kicked the younger child during her sleep.

On November 1, 1983, C.M. and B.M. admitted that their daughter, S.M., was dependent and neglected and signed a stipulation. The stipulation provided in relevant part:

(1) Respondent parents will regularly counsel with Kathy Buchholtz and/or such other persons or agencies as she may designate.
(2) Respondent parents will faithfully attend such counseling, training, and educational sessions, meetings or classes as Kathy Buchholtz or her successor may designate for the pur[673]*673poses of improving parenting skills or otherwise designed to improve their suitability as parents.
(3) Respondent parents will permit the guardian of any child in their care or any person designated by the Court to see and examine, at all reasonable times and places, any child then in their custody and will fully cooperate with such person in evaluating their circumstances and progress.
(4) Respondent parents will peacefully surrender any child in their custody should that child’s guardian so require.

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384 N.W.2d 670, 1986 S.D. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-of-sm-sd-1986.