People ex rel. H.L.

386 N.W.2d 495, 1986 S.D. LEXIS 247
CourtSouth Dakota Supreme Court
DecidedApril 30, 1986
DocketNo. 14973
StatusPublished
Cited by5 cases

This text of 386 N.W.2d 495 (People ex rel. H.L.) 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
People ex rel. H.L., 386 N.W.2d 495, 1986 S.D. LEXIS 247 (S.D. 1986).

Opinion

WUEST, Justice.

This is an appeal from an adjudication of dependency and neglect, and an order of disposition changing custody of H.L., Jr. and B.L. from their mother to their father. We affirm.

K.M.L. (mother) and H.L., Sr. (father) were divorced on July 18, 1983. They had two sons, H.L., Jr., now ten years old, and B.L., now seven. Mother was awarded custody of the children subject to the father’s visitation rights. On June 29, 1984, at approximately 12:00 p.m., Lawrence County Deputy Sheriff Neis Juso (Juso) went to mother’s home in response to a report that H.L., Jr. and B.L. may have [496]*496been abused by their mother. Juso advised mother the boys would have to be placed in temporary custody, although she claimed she had merely spanked them for misbehaving. Juso testified at the adjudicatory hearing that he discussed the matter with H.L., Jr., while driving the children to the Lawrence County Sheriffs Office, and that H.L., Jr. told him his mother often spanked him with a fly swatter. The child said he was spanked and locked in the basement that morning for fighting with his brother, but he located the key, unlocked the door, and went to a neighbor’s house. He said his mother spanked him again when he returned home.

Juso and the two boys were met at the sheriffs office by father. Juso told him H.L., Jr. complained of being spanked with a fly swatter, and father requested an examination for welts and bruises. The examination revealed welts on H.L., Jr.’s lower back, right buttock and lower right thigh, as shown by two photographs received in evidence. The boys were then taken to a medical center and examined by a physician who prescribed medicine for an infection of B.L.’s posterior.

Father testified he was summoned to the sheriff’s office by the Department of Social Services (Social Services), and that when the children arrived they were very dirty and smelled. The boys told him they had not bathed in a week as there was no fuel to heat the water in mother’s home. Father further testified that when he took the children on a previous weekend they were dirty. He said he regularly exercised his visitation rights, and on seven occasions between May 1983 and June 1984, mother was not home when he returned the children. Father related an instance in November 1983 when mother informed him, upon his arrival to pick up the boys for visitation, that she would like him to keep them for awhile. He explained he had to work the following Monday, and she responded: Well, too bad. I won’t be there.” Father tried to return the children on Sunday evening, but mother was not at home. He drove to the house three more times, finally contacting the mother at 6:30 Monday morning, and was told to leave the boys with her neighbor, “Bones,” a twenty-seven-year-old male who lives with his parents. Father was finally able to return the children on Tuesday.

Father testified that on March 11, 1984, he tried to return the children after a week-, end visit. Mother was not home at 5:30 p.m., nor at 7:30 p.m., but called his residence at 9:30 p.m. and asked that he return the boys. When he arrived with H.L., Jr. and B.L., he was met by the mother’s boyfriend, Gary Seidel (Seidel), who lives with her and the children. Father said Seidel could barely walk, tripped and fell, weaved back and forth, slurred his speech and smelled strongly of alcohol. Mother admitted both she and Seidel had been drinking, but denied they were drunk. Father testified that on three other occasions, mother had been drinking when he returned the children.

In the fall of 1983, father consulted Lora Hawkins, a supervisor with Social Services, and apprised her of certain matters concerning his sons. The children rode the school bus and their father learned that on occasion the bus driver returned them to school because no one was at their home and they were not appropriately dressed for the weather. In December 1983, father was notified by the school nurse that B.L. had been badly bitten on the ear by the neighbor’s dog. The neighbor could not reach the mother and sent the child home on a school bus. The bus driver, however, returned B.L. to school and the nurse determined the boy should see a physician. An appointment was made and the doctor found the severity of the wound warranted stitches.

On June 4, 1984, father was informed that B.L. had been taken to the local hospital because of a high fever, which was diagnosed as a symptom of influenza. When father arrived at the hospital, he was asked to care for B.L. because mother had been drinking. H.L. Jr. spent that night with a friend of mother’s, apparently because her boyfriend, Seidel, had beaten her [497]*497and she was temporarily unable to care for the child. Mother explained that she and Seidel began drinking that afternoon. Later, she and her neighbor, “Bones,” took B.L. to the hospital. From there they went to a bar and stayed for an hour. When she returned home, Seidel asked if supper was ready. The dog had eaten the food prepared and, upon learning this, Seidel began hitting and kicking her. She stated that he threw a microwave oven out the door, grabbed her by the hair and dragged her. He ripped her shirt off and pushed her against a wall, at which time she ran to the bedroom, found another shirt and ran out the door. Mother said she drove to the doctor because she was dizzy and hurt, and spent the night in the hospital.

Mother testified that Seidel talked with Bob Raymond (Raymond) of West River Mental Health after the incident. Raymond suggested that Seidel receive counseling; mother, however, did not feel it was necessary. Seidel testified that he did not receive counseling after he beat mother. Mother stated that she and Seidel planned to get married.

Susan Walsh (Walsh), a social worker with Social Services, was assigned to the case and met mother on July 3, 1984. Mother admitted spanking H.L., Jr. with a fly swatter, explaining she had been very upset with his behavior and spanked him too hard. Mother told Walsh she spanked as a last resort and used a fly swatter when this was done. Mother agreed to receive counseling from West River Mental Health.

On August 9, 1984, Walsh visited the children alone. H.L., Jr. told her his mother spanked him often, at least twice a week with a fly swatter. He said his father also spanked him, but did not hit as hard as his mother. Walsh said H.L., Jr. wanted to live with his father. He indicated that his mother and Seidel drank a lot and his father did not. B.L. indicated he wanted to live with his mother if she would be as nice as she was when the social workers were there.

On August 23, 1984, Dr. Robert Arnio (Dr. Arnio), a psychologist, evaluated the two boys. Father informed the psychologist that B.L. had received numerous medical examinations, and the physician had requested counseling for gastrointestinal problems. There was no definitive medical diagnosis, and the problem lessened when the child was with his father. Father also reported that H.L., Jr. had problems paying attention at school, and had seen the school counselor. H.L., Jr. told Dr. Arnio that his mother used more physical discipline than his father, and that his father spanked him four times during weekend visits, while his mother spanked him over one hundred times. Dr. Arnio stated that it was unusual for a child to quantify such things in that magnitude. H.L., Jr. also indicated his mother yelled more and used more verbal intimidation. The child related the incident in which he was locked in the basement while his mother and brother went to town. Dr.

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Bluebook (online)
386 N.W.2d 495, 1986 S.D. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-hl-sd-1986.