#25665-a-SLZ
2011 S.D. 81
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
IN THE MATTER OF M.V., ALLEGED ABUSED/NEGLECTED CHILD.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
HONORABLE GENE PAUL KEAN Retired Circuit Judge
MARTY J. JACKLEY Attorney General
JEREMY D. LUND Special Assistant Attorney General Department of Social Services Pierre, South Dakota Attorneys for petitioner and appellee State of South Dakota.
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for respondent and appellant Mother Y.Z.
CONSIDERED ON BRIEFS ON OCTOBER 03, 2011
OPINION FILED 12/07/11 #25665
ZINTER, Justice
[¶1.] A one-month old child was taken to the hospital in critical condition
after the child’s father called emergency services. The father was caring for the
child while the child’s mother was at work. Doctors determined that the child’s
injuries were consistent with non-accidental trauma, and they reported the case as
potential child abuse. The State took custody of the child and started an abuse and
neglect proceeding. Months later, the child was adjudicated abused or neglected.
Following a period of State supervision, the child was returned to his mother and
the case was dismissed. Mother appeals multiple rulings made during the abuse
and neglect proceeding. We affirm.
Facts and Procedural History
[¶2.] M.V. (Child) was born in August 2008. Other than a bit of jaundice
and an eye infection that cleared up, Child was a healthy baby. Y.Z. (Mother)
stayed home with Child for the first month, but returned to work part-time as a
research physician at Sanford Hospital. At that point, U.V. (Father), who was a
stay-at-home father, became Child’s primary caretaker while Mother worked.
[¶3.] On October 1, 2008, Father pointed out red marks on Child. He called
them allergies, but Mother told Father the marks were bruises. Father thought he
was possibly holding Child too tight or that the bruises occurred when he was
holding Child while working on his computer.
[¶4.] The next day, Mother fed Child in the morning, went to work as usual,
and came home for lunch around 11:15 a.m. Around 2 p.m., Mother left Child in
Father’s care and returned to work. At that point Child had suffered no injuries.
-1- #25665
[¶5.] Later that afternoon, Father called for emergency services, and law
enforcement responded. The officers found Father holding Child, who was gasping
for air. Mother was not present. An officer placed Child on the ground while
continuing to support Child’s head, neck, and back to ensure that Child continued to
breathe. Within a short time, an ambulance arrived. An oxygen mask was placed
on Child’s face. An officer carried Child to the ambulance where Child was placed
on a cot.
[¶6.] On the way to the hospital, Child was intubated by ambulance
technicians. Child was turned over to medical personnel for treatment at the
hospital. Dr. Robert Cheatham observed bruising in the pattern of a human hand.
Dr. Cheatham also observed subdural and subarachnoid hemorrhages, massive
cerebral edema, and respiratory failure, all of which was noted as being consistent
with Child having been shaken. Dr. Nancy Free observed Child’s injuries and
concluded that Child sustained non-accidental trauma. From observing Child’s
CAT scans and history, Dr. Susan Duffek, a pediatric radiologist, also determined
that Child suffered from non-accidental trauma.
[¶7.] Later that night, officers were called back to the hospital. The officer
that had earlier accompanied Child to the hospital now observed injuries that she
had not seen before: multiple bruises and a swollen-shut right eye. Dr. Free
reported that the Child’s injuries were consistent with child abuse. Dr. Free opined
that the pattern bruising on Child’s extremities was consistent with a
circumferential squeeze by an adult hand and that the linear bruising on Child’s
shoulder was consistent with Child being pushed or thrown against an object or
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something being pulled against Child’s skin. Dr. Free also noted bruises on Child’s
face. Considering the bruising, subdural bleeding and extensive brain swelling, Dr.
Free diagnosed non-accidental, abusive head trauma. Dr. Free noted that Child
was only one month old and was not capable of moving and bruising himself in the
manner observed. 1
[¶8.] Child was taken into temporary custody by the State. In October 2008,
the State filed a petition alleging that Child was an abused or neglected child. In
early 2009, Child was placed with Mother for trial reunification. An adjudicatory
hearing was held in April 2009. Mother argued that Child was not abused or
neglected. In the alternative, Mother argued that the court should make separate
findings for Mother and Father, and the findings should indicate that Mother was
not at fault. The circuit court found Child to be abused or neglected under SDCL
26-8A-2 subsection (1) (a child subject to mistreatment or abuse) and subsection (3)
(a child whose environment is injurious to the child’s welfare) but not under
subsection (5) (a child who is without proper care through no fault of the child’s
parent). 2
1. Dr. Bonnie Bunch testified at the adjudicatory hearing. She agreed with the diagnosis that all of Child’s injuries indicated this was non-accidental trauma.
2. SDCL 26-8A-2 provides in relevant part:
In this chapter and chapter 26-7A, the term, abused or neglected child, means a child: (1) Whose parent, guardian, or custodian has abandoned the child or has subjected the child to mistreatment or abuse; ... (continued . . .) -3- #25665
[¶9.] The court dismissed the abuse and neglect action as to Mother on May
5, 2010, and restored legal custody to Mother subject to a six-month protective
period of supervision. The court did not dismiss the case as to Father because
criminal charges of aggravated assault and abuse or cruelty to a minor were still
pending. On July 30, 2010, Father was acquitted of the criminal charges. A month
later, the State moved to dismiss the abuse and neglect action because the State
had provided all the assistance it could and it had no further reason to stay
involved. The court subsequently dismissed the abuse and neglect action as to
Father.
[¶10.] Mother raises six issues on appeal. Three of those issues do not merit
discussion. We address the following questions:
1. Whether the circuit court erred in declining to make separate findings regarding Mother’s and Father’s culpability.
2. Whether the circuit court clearly erred in finding Child abused or neglected.
3. Whether the circuit court erred in declining to alternatively find that Child was abused or neglected under SDCL 26-8A-2(5).
Decision
[¶11.] Mother argues that South Dakota’s Rules of Civil Procedure required
the circuit court to make separate findings of fact regarding Mother’s role in any
________________________ (. . . continued) (3) Whose environment is injurious to the child’s welfare; ...
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#25665-a-SLZ
2011 S.D. 81
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
IN THE MATTER OF M.V., ALLEGED ABUSED/NEGLECTED CHILD.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
HONORABLE GENE PAUL KEAN Retired Circuit Judge
MARTY J. JACKLEY Attorney General
JEREMY D. LUND Special Assistant Attorney General Department of Social Services Pierre, South Dakota Attorneys for petitioner and appellee State of South Dakota.
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for respondent and appellant Mother Y.Z.
CONSIDERED ON BRIEFS ON OCTOBER 03, 2011
OPINION FILED 12/07/11 #25665
ZINTER, Justice
[¶1.] A one-month old child was taken to the hospital in critical condition
after the child’s father called emergency services. The father was caring for the
child while the child’s mother was at work. Doctors determined that the child’s
injuries were consistent with non-accidental trauma, and they reported the case as
potential child abuse. The State took custody of the child and started an abuse and
neglect proceeding. Months later, the child was adjudicated abused or neglected.
Following a period of State supervision, the child was returned to his mother and
the case was dismissed. Mother appeals multiple rulings made during the abuse
and neglect proceeding. We affirm.
Facts and Procedural History
[¶2.] M.V. (Child) was born in August 2008. Other than a bit of jaundice
and an eye infection that cleared up, Child was a healthy baby. Y.Z. (Mother)
stayed home with Child for the first month, but returned to work part-time as a
research physician at Sanford Hospital. At that point, U.V. (Father), who was a
stay-at-home father, became Child’s primary caretaker while Mother worked.
[¶3.] On October 1, 2008, Father pointed out red marks on Child. He called
them allergies, but Mother told Father the marks were bruises. Father thought he
was possibly holding Child too tight or that the bruises occurred when he was
holding Child while working on his computer.
[¶4.] The next day, Mother fed Child in the morning, went to work as usual,
and came home for lunch around 11:15 a.m. Around 2 p.m., Mother left Child in
Father’s care and returned to work. At that point Child had suffered no injuries.
-1- #25665
[¶5.] Later that afternoon, Father called for emergency services, and law
enforcement responded. The officers found Father holding Child, who was gasping
for air. Mother was not present. An officer placed Child on the ground while
continuing to support Child’s head, neck, and back to ensure that Child continued to
breathe. Within a short time, an ambulance arrived. An oxygen mask was placed
on Child’s face. An officer carried Child to the ambulance where Child was placed
on a cot.
[¶6.] On the way to the hospital, Child was intubated by ambulance
technicians. Child was turned over to medical personnel for treatment at the
hospital. Dr. Robert Cheatham observed bruising in the pattern of a human hand.
Dr. Cheatham also observed subdural and subarachnoid hemorrhages, massive
cerebral edema, and respiratory failure, all of which was noted as being consistent
with Child having been shaken. Dr. Nancy Free observed Child’s injuries and
concluded that Child sustained non-accidental trauma. From observing Child’s
CAT scans and history, Dr. Susan Duffek, a pediatric radiologist, also determined
that Child suffered from non-accidental trauma.
[¶7.] Later that night, officers were called back to the hospital. The officer
that had earlier accompanied Child to the hospital now observed injuries that she
had not seen before: multiple bruises and a swollen-shut right eye. Dr. Free
reported that the Child’s injuries were consistent with child abuse. Dr. Free opined
that the pattern bruising on Child’s extremities was consistent with a
circumferential squeeze by an adult hand and that the linear bruising on Child’s
shoulder was consistent with Child being pushed or thrown against an object or
-2- #25665
something being pulled against Child’s skin. Dr. Free also noted bruises on Child’s
face. Considering the bruising, subdural bleeding and extensive brain swelling, Dr.
Free diagnosed non-accidental, abusive head trauma. Dr. Free noted that Child
was only one month old and was not capable of moving and bruising himself in the
manner observed. 1
[¶8.] Child was taken into temporary custody by the State. In October 2008,
the State filed a petition alleging that Child was an abused or neglected child. In
early 2009, Child was placed with Mother for trial reunification. An adjudicatory
hearing was held in April 2009. Mother argued that Child was not abused or
neglected. In the alternative, Mother argued that the court should make separate
findings for Mother and Father, and the findings should indicate that Mother was
not at fault. The circuit court found Child to be abused or neglected under SDCL
26-8A-2 subsection (1) (a child subject to mistreatment or abuse) and subsection (3)
(a child whose environment is injurious to the child’s welfare) but not under
subsection (5) (a child who is without proper care through no fault of the child’s
parent). 2
1. Dr. Bonnie Bunch testified at the adjudicatory hearing. She agreed with the diagnosis that all of Child’s injuries indicated this was non-accidental trauma.
2. SDCL 26-8A-2 provides in relevant part:
In this chapter and chapter 26-7A, the term, abused or neglected child, means a child: (1) Whose parent, guardian, or custodian has abandoned the child or has subjected the child to mistreatment or abuse; ... (continued . . .) -3- #25665
[¶9.] The court dismissed the abuse and neglect action as to Mother on May
5, 2010, and restored legal custody to Mother subject to a six-month protective
period of supervision. The court did not dismiss the case as to Father because
criminal charges of aggravated assault and abuse or cruelty to a minor were still
pending. On July 30, 2010, Father was acquitted of the criminal charges. A month
later, the State moved to dismiss the abuse and neglect action because the State
had provided all the assistance it could and it had no further reason to stay
involved. The court subsequently dismissed the abuse and neglect action as to
Father.
[¶10.] Mother raises six issues on appeal. Three of those issues do not merit
discussion. We address the following questions:
1. Whether the circuit court erred in declining to make separate findings regarding Mother’s and Father’s culpability.
2. Whether the circuit court clearly erred in finding Child abused or neglected.
3. Whether the circuit court erred in declining to alternatively find that Child was abused or neglected under SDCL 26-8A-2(5).
Decision
[¶11.] Mother argues that South Dakota’s Rules of Civil Procedure required
the circuit court to make separate findings of fact regarding Mother’s role in any
________________________ (. . . continued) (3) Whose environment is injurious to the child’s welfare; ... (5) Who is homeless, without proper care, or not domiciled with the child’s parent, guardian, or custodian through no fault of the child’s parent, guardian, or custodian; . . . .
-4- #25665
abuse or neglect of Child. The Rules of Civil Procedure in SDCL chapter 15-6 apply
to adjudicatory hearings except as otherwise provided. SDCL 26-7A-56. Under the
Rules of Civil Procedure, a circuit court is required to make findings on all disputed
issues of material fact. DeHaven v. Hall, 2008 S.D. 57, ¶ 38, 753 N.W.2d 429, 441.
However, a fact is not material unless it affects the outcome of the suit. Fin-Ag, Inc.
v. Pipestone Livestock Auction Mkt., Inc., 2008 S.D. 48, ¶ 21 n.13, 754 N.W.2d 29, 40
n.13. Therefore, there is no obligation to make findings on issues not necessary to a
determination of the action. Davies v. Toms, 75 S.D. 273, 281, 63 N.W.2d 406, 410
(1954).
[¶12.] In this case, the only issue necessary to determine the action was the
status of the child, i.e., whether Child was abused or neglected under SDCL 26-8A-
2. An “[a]djudication of a child as an abused or neglected child is an adjudication of
the status or condition of the child who is the subject of the proceedings and is not
necessarily an adjudication against or in favor of any particular parent, guardian,
or custodian of the child.” SDCL 26-8A-1. Therefore, specific findings regarding
Mother’s culpability were not necessary to adjudicate Child’s abused or neglected
status.
[¶13.] Mother, however, argues that she was prejudiced by the court’s failure
to make separate findings. Mother points out that an adjudication of abuse or
neglect constituted grounds for placement of her name on the central registry for
child abuse or neglect. See ARSD 67:14:39:03(2) (providing that a person’s name
shall be placed on the central registry if there “is a court finding of abuse or
neglect”). Mother contends that placement of her name on the registry jeopardizes
-5- #25665
her job as a research physician at Sanford Hospital because placement on the
registry prevents employment in any institution like Sanford that “receive[s]
children for care” or “provides care for mothers and their children.” See SDCL 26-6-
1; SDCL 26-6-14.11.
[¶14.] As previously noted, however, an abuse and neglect adjudication
involves the status of children, not their mothers or fathers. Furthermore, if
Mother is improperly placed on the child abuse registry, that placement will occur
by act of the Department of Social Services. Therefore, Mother’s remedy is with the
Department rather than the juvenile court that is adjudicating the status of the
child. 3 Because specific findings regarding Mother’s role in the abuse or neglect
were not necessarily required to adjudicate Child’s status, the circuit court did not
err in declining to make separate findings regarding Mother’s relative role in the
abuse or neglect.
[¶15.] Mother next argues that the circuit court clearly erred in finding that
Child was abused or neglected. Whether a child has been abused or neglected is a
question of fact that is reviewed for clear error. People ex rel. D.A.J., 2008 S.D. 92,
¶ 13, 757 N.W.2d 70, 74. We will not set aside such findings unless “we are left
with a definite and firm conviction that a mistake has been made.” Id. This Court
“give[s] due regard to the [circuit] court’s opportunity to judge the credibility of
witnesses.” Id.
3. Indeed, Mother’s reply brief reflects that Mother initiated administrative proceedings with the Department of Social Services to remove her name from the central registry. It further appears that her name was removed and the administrative matter was dismissed without prejudice pending the outcome of this appeal.
-6- #25665
[¶16.] Mother contends that Child’s injuries were inflicted by law
enforcement officers, ambulance technicians, or medical personnel treating Child.
The circuit court, however, found that Child was injured prior to the emergency
response and the medical treatment. The evidence supports that finding. Dr.
Duffek testified that Child’s hemorrhaging could not have been caused by a lack of
oxygen due to improper intubation by emergency medical personnel. Moreover,
Mother cites no medical testimony or other evidence even suggesting that the
pattern bruising, bleeding, and swelling of the brain could all be the result of
emergency medical treatment.
[¶17.] On the contrary, Dr. Cheatham, Dr. Free, Dr. Duffek, and Dr. Bunch
all diagnosed Child’s injuries as being consistent with non-accidental injury. Dr.
Cheatham and Dr. Free testified that the bruising was in the pattern of a human
hand. Dr. Free testified that the linear bruising was consistent with Child being
pushed or thrown against an object or something being pulled against Child’s skin.
All four doctors indicated the swelling and bleeding in Child’s brain was evidence of
non-accidental trauma. Finally, there was evidence that the pattern and amount of
bleeding could only have been caused by some type of violent action, such as violent
shaking or a high-speed motor-vehicle accident. Considering all the evidence, the
circuit court did not clearly err in finding that Child was abused or neglected.
[¶18.] Mother finally argues that the circuit court erred in failing to
alternatively find that Child was abused or neglected under SDCL 26-8A-2(5). The
circuit court found that Child was abused or neglected under SDCL 26-8A-2(1) and
(3). The court made no finding with respect to SDCL 26-8A-2(5). We have
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previously held that proof of any one of the subsections of the abuse and neglect
statute standing alone is sufficient to sustain adjudication of abuse or neglect. See
In re S.L., 419 N.W.2d 689, 693 (S.D. 1988) (construing the predecessor statute,
SDCL 26-8-6). Because the court found that Child was abused or neglected under
SDCL 26-8A-2(1) (mistreatment or abuse) and SDCL 26-8A-2(3) (injurious
environment), the court was not required to make additional findings under SDCL
26-8A-2(5) (whether Child was without proper care through no fault of the Child’s
parent).
[¶19.] Affirmed.
[¶20.] GILBERTSON, Chief Justice, and KONENKAMP and WILBUR,
Justices, concur.
[¶21.] SEVERSON, Justice deeming himself disqualified, did not participate.
-8-