In re the Alleged Dependent & Neglected Status of Z.Z.

494 N.W.2d 608, 1992 S.D. LEXIS 167

• Court: South Dakota Supreme Court
• Decided: December 30, 1992
• Docket: Nos. 17560, 17632
• Status: Published

Opinions

AMUNDSON, Justice.

Mother appeals from an order terminating her parental rights to her Son and giving the South Dakota Department of Social Services (DSS) full legal and physical custody of Son with full adoptive rights. Mother’s father (Grandfather) appeals from an order denying his petition for guardianship of Son. Son’s father voluntarily terminated his parental rights after paternity testing and has no part of this appeal. We affirm.

FACTS

Mother is 23 years old. When she was 13 years old her parents began contemplating divorce. Since that time she has been involved with drugs and alcohol. Because of her problems with alcohol and drugs she has received in-patient treatment in North Dakota, South Dakota, Minnesota and Colorado, which has met with little success. She is now “treatment wise” and able to give information to make her appear genuine in treatment efforts. In reality, however, she continues to blame everyone but herself for her problems, and, during the pendency of this action continued to use alcohol and drugs to the extent that at one point she resorted to huffing “whiteout”.

Because of her home, alcohol and drug problems, Mother left Hot Springs and lived with her grandparents to complete high school. She moved to Kansas City, had a series of boyfriends, and became pregnant. During her early pregnancy she continued to use cocaine and marijuana. Son was born on June 6, 1989.

Shortly after Son’s birth, Mother developed severe religious delusions, confusion, feelings of paranoia, and behavioral disinhi-bition. She was hospitalized in the Colorado State Hospital’s psychiatric unit for two weeks. After her release on August 12, 1989, she returned to South Dakota where the behavior precipitating this action occurred. On August 20, she took Son to the Presbyterian Church, praised Satan during the services, and took Son to the altar following the service and continued her praise of Satan. Parishioners, worried that Mother would harm Son, contacted law enforcement and mental health officials.

Since that time, Mother has received inpatient psychiatric treatment in Rapid City and at the Mayo Clinic where she was diagnosed as suffering from bi-polar disorder, manic phase, and chemical dependence, primarily cocaine. Lithium improved Mother’s psychosis. If she stays away from drugs and alcohol and continues to consistently take her medication the psychotic disorder should resolve itself. She has been unable, however, to abstain from drugs or alcohol or consistently take her medication.

Grandfather is 45 years old. He and Grandmother have taught school in Hot Springs for over twenty years. Although they claim they will divorce when their house sells, they have contemplated such an action for ten years and continue to live together. During the pendency of this action, Grandfather cared for Son part of the time and they do have a bond and a good relationship. Grandmother, while not neglecting or threatening Son, did little to care for Son. Much of the tension between Grandfather and Grandmother stems from their differing approaches to Mother, her problems, and the way social services has handled the case. Although he claims that he will keep Son from Mother if granted guardianship, (and he did so with one exception while he was Son's guardian), Grandfather has faith that Mother will solve her problems and believes that nobody has the right to take Son from her.

I.

WHETHER TERMINATION OF MOTHER’S PARENTAL RIGHTS WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE?

The United States Supreme Court in Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, 237 (1960) stated:

In a series of decisions this court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.

This principle has been referred to at time as the “least restrictive alternative.” Consequently, in 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 Interest of A.D., 416 N.W.2d 264, 267 (S.D.1987).

Mother admits that she is not a perfect parent. She loves Son, has bonded with him, and believes that she has cared for him appropriately. She claims that she is exhibiting a pattern of progress with her battle over drugs, alcohol, and mental illness.

Unfortunately, the record does not support her contentions other than it is clear that she loves Son. Mother has had a ten year struggle with drugs and alcohol. Voluntary and involuntary treatment has not met with success. Her battle with mental illness has not been as long-term, but she has exhibited the same inability to follow the medical procedures necessary to contend with it. In addition, she showed a lack of interest in her partial care program, a program designed to help the chronically mentally ill cope with independent living. Counselors, social workers, and doctors have found her prognosis poor. Her counselor found Mother’s prognosis for staying drug and alcohol free “guarded to poor.” Her therapist testified that Mother’s progress in maintaining sobriety was minimal and that her pattern was to “move ahead a little bit and then make five steps back.” Her psychiatrist testified that Mother’s psychotic disorder would resolve itself if she stayed away from drugs and alcohol, stayed very close to treatment programs, and consistently took her medication. Everything is contingent on Mother’s abstinence from alcohol and drugs. Her track record is abysmal.¹

The best interests of the child must always prevail. Matter of S.M., 384 N.W.2d 670 (S.D.1986). Children are entitled to a stable, healthy environment now; they are not required to wait for a parent to acquire parenting skills that may never develop.² People in Interest of M.J.B., 364 N.W.2d 921 (S.D.1985). “We have repeatedly held, in a long line of cases, that 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.” Matter of A.M., 292 N.W.2d 103, 105 (S.D.1980).

Mother’s problems are so overwhelming that she cannot care for herself, no less a child. When it appears “that all reasonable efforts have been made to rehabilitate the family, that the conditions which led to the removal of the child still exist and there is little likelihood that those conditions will be remedied so the child can be returned to the custody of the child’s parents, the court shall affirmatively find that good cause exists for termination of the parental rights of the child’s parents ...” SDCL 26-8A-26. The trial court did not err on this point.

II.

WHETHER GRANTING GRANDFATHER GUARDIANSHIP WAS AN ALTERNATIVE?

We have affirmed the trial court’s determination that the termination of Mother’s parental rights was the least restrictive alternative available.³ Under this circumstance, custody and guardianship of Son mandatorily vests with social services for the purpose of placing the child for adoption. SDCL 26-8A-27. Consequently, the issue Grandfather raises is moot. See, Investigation of Hy. Const. Ind. v. Bartholow, 373 N.W.2d 419 (S.D.1985).

Affirmed.

MILLER, C.J., and WUEST and SABERS, JJ., concur. HENDERSON, J., dissents.

1 .For example, on July 3, 1990, Mother admitted herself to the psychiatric unit of Rapid City Regional Hospital after testing revealed drug and alcohol use. She was discharged July 6, 1990. On July 30, 1990, testing again revealed drug and alcohol usage. Mother admitted that she had been drinking steadily and that she had been arrested and placed in protective custody in Fall River County on several occasions. On August 31, 1990, Mother admitted herself to the Addiction Recovery Center. She checked out on September 2, 1990, returned drunk, and was readmitted. Two weeks later Mother stole correction fluid and was found huffing it. On September 28, 1990, Mother completed treatment. During the first week of October 1990, Hot Springs police received a report that Mother was drunk and causing problems in a bar. Testing on October 12, 1990, indicated Mother’s use of alcohol. On October 15 Mother admitted to drinking two beers the prior Sunday. On October 29, 1990, a DSS worker saw Mother with a beer in her hand. DSS later received information that Mother was drunk that night. On November 11, 1990, Mother was arrested in Wyoming for public intoxication. On November 20, 1990, a complaint was filed against Mother for threatening an AA member when Mother was drunk. Mother’s attorney then got her admitted to Friendship House. She was kicked out due to alcohol consumption. On January 16, 1991, Mother was arrested for disorderly conduct; testing revealed alcohol and drugs. On February 6, 1991, Mother was voluntarily admitted to Rapid City Regional for a medication check. She admitted she had been on a drinking binge for quite a while.

2 . The petition in this case has been pending since August 1989 and Mother has received DSS services, drug and alcohol treatment, and mental health services since that time. At the dispo-sitional hearing in March 1991 Mother’s psychiatrist testified that Mother could possibly remain chemically free in two or three years. Son, who had already waited for this possibility for two years cannot and should not be required to wait another three years for something that may not happen then.

3 . Much has been made of the fact that DSS recommended guardianship for Grandfather. The record reflects that DSS has not been inconsistent. DSS recommended termination of Mother’s parental rights. If the trial court did not find that termination was the least restrictive alternative, DSS, as an alternative, recommended guardianship. The trial court, however, determined that termination of Mother’s parental rights was the least restrictive alternative and that therefore Grandfather had no legal right to receive guardianship. Interestingly, the trial court also entered extensive findings to support its conclusion that denial of Grandfather’s petition for guardianship is also in Son’s best interest.