In re the Dependency & Neglect of B. A. M.

290 N.W.2d 498, 1980 S.D. LEXIS 267
CourtSouth Dakota Supreme Court
DecidedMarch 26, 1980
DocketNo. 12727
StatusPublished
Cited by18 cases

This text of 290 N.W.2d 498 (In re the Dependency & Neglect of B. A. 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 the Dependency & Neglect of B. A. M., 290 N.W.2d 498, 1980 S.D. LEXIS 267 (S.D. 1980).

Opinion

HENDERSON, Justice.

ACTION

G.M., father and appellant, appeals from an adjudication of dependency and neglect and a disposition permanently terminating his parental rights to B.A.M., a minor. The mother of B.A.M. is deceased. Respondents, B.G., a cousin of the deceased mother, and her husband, J.G., presently have custody of B.A.M. by virtue of the trial court’s order that they be permitted to adopt B.A.M. Although represented by counsel, no brief was filed on B.A.M.’s behalf. We affirm.

PACTS

B.A.M. was born December 3,1970, to the union of appellant, G.M., and the deceased mother, M.M. The parents of B.A.M. were originally residents of the State of South Dakota. At the time of M.M.’s death, B.A.M. was living with her father and mother in Overland Park, Kansas. M.M. died on October 21, 1974, at her home in Kansas, by strangulation at the hands of appellant. Appellant was tried and convicted for first-degree murder, but the conviction was reversed by the Kansas Supreme Court. He was later retried and convicted of second-degree murder; the conviction was affirmed. On April 26, 1976, appellant was sentenced to a term of imprisonment to run from ten years to life in the Kansas State Prison, where he is now incarcerated.

During the proceedings below, respondents saw fit to introduce, and the trial court accepted into evidence, the entire proceedings of the murder trial and appellant’s judgment of conviction entered in the State of Kansas. The trial court, based upon that record and the testimony in these proceedings, entered Findings of Fact and Conclusions of Law. These findings included, in part, the fact that the appellant not only strangled his wife to death, but then set fire to the family’s home in an attempt to cover up the murder. Tragically, B.A.M. was in the home during the murder and was exposed to grave danger in the fire. In fact, her hair was singed and she vomited from inhaling a great deal of smoke. At the time of the murder, appellant was having an extramarital affair with an unmarried woman and exposed B.A.M. to this conduct. Indeed, on the very day of the murder, appellant took B.A.M. on an excursion with this woman.

Subsequent to the murder, and prior to his arrest, appellant brought B.A.M. to South Dakota and placed her with his mother for a short period of time. B.A.M. was then placed by appellant with the maternal grandparents in Mitchell, South Dakota, where she was loved and taken care of for one year and seven months. Thereafter, by court order and at the age of five and one-half years, she took up residency with the respondents at Aberdeen, South Dakota where she still resides. At the time of trial, she was age seven and one-half years.

The trial court found that the appellant had abandoned B.A.M.; that he had left her homeless;, that it would be psychologically harmful for B.A.M. to be returned to the care, custody, and control of appellant; - that respondents had obtained custody of B.A.M. under the circumstances outlined above, but additionally, because the deceased mother had asked respondents to care for B.A.M. should anything ever happen to her or appellant; that respondents were affording B.A.M. a normal, stable environment, and that her best interests would be served by remaining within the family of respondents who have other children; that B.A.M. had no emotional attachment to appellant; that B.A.M. lacked proper parental care through [501]*501appellant s gross misconduct in murdering B.A.M.’s mother; that appellant does not provide the proper and necessary subsistence, education, medical care, and fails to support B.A.M.; that B.A.M. is a dependent and neglected child within the meaning of our state statutes; that it would be in the best interests of B.A.M. that the parental rights of appellant be permanently terminated; and that it would be in the best interests of B.A.M. to remain in the permanent care, custody, and control of the respondents and that they be permitted to adopt B.A.M.

ISSUES

The following issues are presented:

I.
Did the trial court improperly admit into evidence the authenticated copies of appellant’s judgment of conviction and the complete trial transcript, of his murder trial? We hold that it did not.
II.
Did the trial court improperly find, by a preponderance of the evidence, that the appellant set fire to the family home, thereby exposing B.A.M. to the hazards of fire? We hold that it did not.
III.
Did the trial court properly find that B.A.M. heard or saw some of the events involving the murder of her mother, thereby creating trauma and an emotional detachment from the appellant? We hold that it did.
IV.
Did the trial court properly find that B.A.M. would have psychological problems if she were returned to the appellant? We hold that it did.
V.
Did the trial court improperly find that appellant abandoned his daughter and that his parental rights should be terminated? We hold that it did not.

DECISION

I.

Appellant contends that the admission of the transcript of his murder trial was highly prejudicial and that his conviction has little bearing on the court’s determination of whether B.A.M. is dependent or neglected within the terms of SDCL 26-8-6 or upon his fitness to have custody. On the contrary, such evidence was relevant and bore directly on the factual issues involved and was therefore not prejudicial.

The Supreme Court of Washington in addressing this issue held:

[A] parent’s inability to perform his parental obligations because of imprisonment, the nature of the crime committed, as well as the person against whom the criminal act was perpetrated are all relevant to the issue of parental fitness and child welfare, as are the parent’s conduct prior to imprisonment and during the period of incarceration.

In Re Sego, 82 Wash.2d 736, 740, 513 P.2d 831, 833 (1973). Likewise, in In Re Welfare of Scott, 309 Minn. 458, 244 N.W.2d 669 (1976), the Supreme Court of Minnesota held that the evidence introduced at the hearing regarding the trauma to which the child was subjected by appellant shooting the child’s mother within his presence was properly admitted. The court held that it was not the incarceration per se, but rather the conduct showing the volatile nature of his personality which resulted in his imprisonment, that justified the termination of his parental rights.

Here, the production of the transcript revealed the volatile nature of appellant’s conduct. Appellant’s actions in murdering his wife and setting fire to the house exposed B.A.M. to grave danger and caused her to suffer great emotional trauma. Accordingly, since this evidence was of probative force, the court did not err in receiving authenticated copies of the Kansas proceedings.

[502]*502II.

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Bluebook (online)
290 N.W.2d 498, 1980 S.D. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-dependency-neglect-of-b-a-m-sd-1980.