In re S.W.

398 N.W.2d 136, 1986 S.D. LEXIS 362
CourtSouth Dakota Supreme Court
DecidedDecember 23, 1986
DocketNo. 15190
StatusPublished
Cited by12 cases

This text of 398 N.W.2d 136 (In re S.W.) 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 S.W., 398 N.W.2d 136, 1986 S.D. LEXIS 362 (S.D. 1986).

Opinion

TALBOTT, Circuit Judge.

D.W. (Mother), appeals from an order terminating her parental rights over S.W., V.W., and L.W. (children). We affirm. The natural father’s parental rights were terminated by publication pursuant to SDCL 26-8-16. He is not a party in this appeal.

Mother is forty-six years old and has three children ranging from ages seven to fourteen. She has an I.Q. ranging between sixty-three and sixty-six. Different aspects of her development have been arrested around the five year age.

Mother has had a very extensive history of intervention by social service agencies.1 In April 1984, the South Dakota Department of Social Services (Social Services) was again contacted because of the condition of Mother’s home. Mother received help from Intensive Placement Prevention Program (IPPP), a home-based family service that works with the family. A protective payee was appointed to help Mother prepare budgets and handle money. The family received assistance in the form of parenting counseling, home management, transportation, and a parent aid. In spite of the various aids given to Mother, the children often had poor hygiene and were poorly clothed, and the house was often in an unacceptable or uninhabitable condition. There were also times when the social workers’ scheduled visits to the home were hampered by Mother’s absence or noncooperation.

On May 31, 1985, Social Services was given temporary custody due to the fact that two of the children had been with Mother and R.B.O.A. (Stepfather, Mother’s live-in boyfriend at the time and present husband)2 in a car during a robbery on May 29, 1985. A new petition3 was filed [138]*138on June 6, 1985, alleging that the children were dependent and neglected. The three children were adjudicated dependent and neglected on June 17, 1985. The disposi-tional hearing was held on September 26, 1985. On October 31,1985, findings of fact and conclusions of law were filed. The trial court found that the reasonable efforts made by Social Services to prevent the need for removal of the children and to make it possible for their return had failed. Specifically, the trial court stated in its dispositional findings of fact that the Mother had failed to provide proper parental care to the children in the following ways:

Although the Department of Social Services has managed to find improved physical facilities for the home, as recent as one and a half (sic) weeks prior to this hearing, the house was in total disarray. When visited by social workers at that time, the home had piles of unwashed dishes, large amount of trash within the house, beer cans lying around, very few food staples, and a distinct odor noticeable even before entering the house. There was additional evidence at the hearing that the children were poorly groomed when in their mother’s custody. Baths were few and far between and the children were dressed in soiled and spotted clothing.
Testimony was also given that the youngest child has a speech problem which can most likely be attributed to a lack of stimulation in the home. She has no physical disability. Although this condition has improved through therapy, testimony indicated with home supplementation, accelerated improvement would have been likely. This was not possible, however, due to difficulty in working with the mother as well as difficulty in contacting her.
A counselor from the mental health center who had previously evaluated the children, testified that the environment with their mother had a negative impact on the children and a return to her would be detrimental.
Additionally, the mother has recently remarried. Her current husband has an extensive criminal background, is currently awaiting sentencing on a felony and habitual criminal charges. The influence of such a man on the children would likely be detrimental, (emphasis added by this court)

In light of these conditions, the trial court found that the least restrictive alternative was to terminate Mother’s parental rights. A termination order was filed October 31, 1985. Mother filed an appeal from the order of adjudication and order of disposition on November 18, 1985. On December 19, 1985, a judgment of conviction was entered against Stepfather sentencing him to fourteen years in the South Dakota penitentiary for second-degree burglary.

On appeal Mother argues that the conviction and incarceration of Stepfather constitutes new evidence requiring reversal and remand for a new trial. Mother bases her request for a new trial on our language in In re Matter of D.H., 354 N.W.2d 185, 192 (S.D.1984), stating, “The general rule is that appeal from a judgment or order strips the trial court’s jurisdiction over the subject matter of the judgment or order, except as to certain trivial matters, and this court then has jurisdiction until determination of the appeal.”

SDCL 26-8-63 provides that a parent or a child adjudicated under Chapter 26-8 may petition the court for a new hearing on the ground that new evidence has been discovered.4 SDCL 15-6-59(a) provides that a [139]*139new trial may be granted when there is newly discovered evidence.5 This statute mandates that a motion for a new trial must be made upon affidavits attached to and made part of the motion. Before a new trial is granted upon the basis of newly discovered evidence, an appellant must show that this new evidence will change the outcome of the case. Lee v. Braggman, 39 S.D. 175, 162 N.W. 788 (1917); Skinner v. Krotter Co., 72 S.D. 622, 38 N.W.2d 145 (1949); Basin Electric Power Coop. v. Gosch, 90 S.D. 222, 240 N.W.2d 96 (1976). SDCL 26-8-63.

We find no “petition” of the Mother and no supporting affidavits. Apparently, Mother merely relies on having addressed the request in her appellate brief. Notwithstanding this deficiency in this record, we will address the request.

It is obvious that the conviction and incarceration of Stepfather does not constitute “newly discovered evidence.” The trial judge and Mother were aware that Stepfather was awaiting sentencing on a felony and habitual criminal charges and were further apprised of Stepfather’s extensive criminal background. The trial judge most likely realized that Stepfather’s upcoming sentencing would result in a substantial period of incarceration. Therefore, the sentence of Stepfather is not “newly discovered evidence.”

Even if the sentence was found to constitute “newly discovered evidence,” there was additional evidence presented to the trial court which indicates that Stepfather’s presence in the home was merely one of many factors which led to the termination of the parental rights.

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Matter of SW
398 N.W.2d 136 (South Dakota Supreme Court, 1986)

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Bluebook (online)
398 N.W.2d 136, 1986 S.D. LEXIS 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sw-sd-1986.