In re S.W.

428 N.W.2d 521, 1988 S.D. LEXIS 120
CourtSouth Dakota Supreme Court
DecidedAugust 17, 1988
DocketNos. 16038, 16044
StatusPublished
Cited by10 cases

This text of 428 N.W.2d 521 (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., 428 N.W.2d 521, 1988 S.D. LEXIS 120 (S.D. 1988).

Opinion

MORGAN, Justice.

On February 23,1987, the State of South Dakota (State), filed a complaint alleging that I.S.’s (mother) five children were dependent and neglected. At the adjudicatory hearings on May 8 and May 15, 1987, the trial court declared S.W. (dob 12/16/74), J.B. (dob 10/12/76), M.B. (dob 1/10/78), B.B. (dob 3/23/79), and R.B. (dob 3/9/81) (collectively the children) to be dependent children within the meaning of SDCL 26-8-6.1 Dispositional hearings on August 21 and 28, 1987, resulted in the termination of mother’s parental rights, pursuant to SDCL 26-8-35.2. Mother and children appeal from the trial court’s disposition.

Mother raises the following issues on appeal: (1) Whether the admission of certain testimony by a pediatrician was reversible error; (2) whether the trial court erred in finding the children dependent and ne-[523]*523gleeted; and (3) whether the trial court erred in terminating mother’s parental rights.

Children raise the following issues: (1) Whether termination of mother’s parental rights was the least restrictive alternative; and (2) whether termination was in the best interests of the children. We first address the issues pertaining to the adjudicatory phase of the proceedings.

Mother first contends that the trial court erred in admitting testimony of the pediatrician who examined the children. She argues that the trial court impermissibly admitted testimony of the pediatrician who examined the children when they were removed from the home. The testimony mother is particularly concerned about involves a conversation between S.W. and the pediatrician, which, in summary, discloses:

—That S.W. had attempted on numerous occasions to run away;
—That men who came to her mother’s house were very mean;
—That one of these men had kicked the boys on their back, legs and buttocks;
—That two years previously one of the men mother allowed in the home had attempted to sexually molest R.B.;
—That two of mother’s friends had been physically abusive toward the children; and
—That one of the young men had been physically abusive toward mother.

Mother’s counsel objected to the testimony as not going to diagnosis or treatment, as being hearsay and therefore not relevant. The objection was overruled, but without explanation.

The trial court was not in error. Such testimony is admissible under settled law. United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980); State v. Bawdon, 386 N.W.2d 484 (S.D.1986); People in Interest of M.W., 374 N.W.2d 889 (S.D.1985); State v. Garza, 337 N.W.2d 823 (S.D.1983); Matter of S.J.Z., 252 N.W.2d 224 (S.D.1977); SDCL 19-16-8. The statements complained of here were made to a pediatrician during a general physical exam. Pediatricians are trained to identify child abuse. In cases such as this, where statements made by the child to a pediatrician during an examination are related to some form of child abuse, the trial court is given fair leeway in admitting such evidence. The statements made here were primarily concerned with “what kind of things happen at home” rather than “who does what”. Therefore, the trial court did not err in admitting testimony of the pediatrician as going to her diagnosis and treatment. SDCL 19-16-8; Bawdon, supra.

Mother next contends that the trial court erred in finding the children dependent within the meaning of SDCL 26-8-6.2 The correct standard of proof at the adjudicatory stage of dependency and neglect proceedings is the “clear and convincing [524]*524evidence” standard, Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599, 603 (1982); People in Interest of L.A., 334 N.W.2d 62, 64 (S.D.1983), with “clear and convincing evidence” being that evidence that is so clear, direct, weighty, and convincing as to allow the trier of fact to reach clear conviction of precise facts at issue, without hesitancy as to their truth. Matter of S.H., 337 N.W.2d 179, 180 (S.D.1983); L.A., supra.

The trial court’s findings of fact and conclusions of law at the adjudicatory stage state:

V.
The children lack proper parental care through the actions or omissions of the parent, [mother]; the children have been subjected to an environment injurious to their welfare; the parent, [mother] has failed or refused to provide proper or necessary subsistence, education or medical care or any other care necessary for their health, guidance or well-being.
VII.
... [A] pediatrician testified as to her exam of and interviews of these children
A) She found that the children had a significantly high number of bruises and scars for children of that age,
B) She testified as to the children’s statements, especially [S.W.’s], that the adults in the home kicked, slapped and bit them.
C) [S.W.] told [pediatrician] that she slept with a baseball bat for protection.
D) [Pediatrician’s] diagnosis of these children was suspected child abuse.
VIII.
The children’s teachers ... described lack of academic advancement, lack of hygiene, hunger and tiredness [at] school.
A)[Teacher] noted [B.S.’s] regression after Christmas 1986.
IX.
The foster mother, ... described how [J.B.] and [M.B.] had regressed_
X.
[Mother’s] brother, testified as to the number of young males in the home, the concern he had for the children because of the inconsistency of discipline and turmoil in the home.
XI.
The Department of Social Services’ workers testified the same problems have continued since the Department of Social Services’ involvement ended in November 1986.
A) [Mother] cannot control the abusive males in the home.
B) [Mother] cannot keep these individuals from physically harming the children.
C) [Mother] is unable to set realistic limits for her children, i.e.

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Bluebook (online)
428 N.W.2d 521, 1988 S.D. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sw-sd-1988.