People Ex Rel. South Dakota Department of Social Services

2004 SD 131, 691 N.W.2d 586, 2004 S.D. LEXIS 212

• Court: South Dakota Supreme Court
• Decided: December 22, 2004
• Docket: None
• Status: Published

Opinions

KONENKAMP, Justice.

£¶ 1.] C.R. (mother) appeals the termination of her parental rights. We affirm.

FACTS

[¶ 2.] On April 25, 2002, mother took the day off from her employment in Winner, South. Dakota. Her daughter, J.G.R., age eight, had been expelled from school. In an apparent effort to leave her with some other, caretaker, mother had the child pack a suitcase. They traveled to Hot Springs, South Dakota. At the Fall River Feedlot, mother dropped off the child and drove away. Carrying her suitcase, J.G.R. walked into the office by herself and sat down. After half an hour, an office employee noticed the child sobbing. She had a note her mother had told her to give to “Connie,” stating, “Looking for someone who cares.” No one named Connie worked there. Mother knew the manager of the feedlot, but she hqd made no prior arrangements for the child to stay there; no one at the feedlot had prior knowledge that the child was going to be left there; and no one had any idea that they would be expected to care for the child. The child had been to the feedlot once or twice in the past.' J.G.R. was taken into protective custody by the sheriffs office. Mother was eventually located six hours later, one hundred fifty miles away, in Belvidere, South Dakota.

[¶ 3.] Mother received a court appointed attorney, Rose Ann Wendell, who appeared at the advisory hearing. Wendell was replaced by private counsel, Stanley Whiting. The adjudicatory hearing was continued as a result. Later, Whiting moved to withdraw based on mother’s request. A1 Arendt subsequently appeared on behalf of mother at a scheduling hearing. Shortly thereafter, Arendt also moved to withdraw based on a conflict with mother. Arendt was allowed to withdraw but the trial court indicated that the adjudicatory hearing would proceed as scheduled. Mother was not present at the hearing on the motion to withdraw. Mother filed a pro se motion for a continuance to obtain counsel. That motion was denied. The trial court adjudicated J.G.R. an abused or neglected child through the acts and/or omissions of mother.¹

[¶ 4.] After additional attorneys appeared for mother, this matter was set for a dispositional hearing. Mother was eventually represented by attorneys Marty Jackley and Jason Smiley at the disposi-tional hearing. The trial court heard evidence concerning mother’s prior decisions to leave J.G.R. with other caretakers for extended periods of time. Mother also failed to timely obtain a psychological evaluation or follow through with the recommendations. Mother was diagnosed with bipolar disorder, general anxiety disorder, and borderline personality traits. Mother took no steps to follow through with any treatment plan for her conditions. Additionally, mother refused to accept three different Department of Social Services (DSS) case service plans. Instead, she proposed her own plan to DSS to return the child or “see you later in federal court.” The trial court terminated mother’s parental rights.

ANALYSIS

ISSUE ONE

[¶ 5.] Whether the trial court’s decision to proceed with the adjudicatory hearing despite mother’s lack of counsel was a violation of her statutory or constitutional rights.

[¶ 6.] Mother appeared at the adjudicatory hearing without counsel. The trial court had previously allowed attorney Ar-endt to withdraw without appointing substitute counsel. At this adjudicatory hearing, mother persisted in her demands that she 'did not want' to proceed without the benefit of counsel. Although the trial court had initially appointed her counsel, that attorney was replaced by privately retained counsel. However, mother’s privately retained attorney was allowed to withdraw before the adjudicatory phase without the requirement of substitute counsel by the trial court. Mother did not obtain counsel before the adjudicatory hearing. As a result, and despite her objections, mother proceeded at the adjudicatory hearing pro se.

[¶ 7.] The following statements were made to the trial court by mother:

I don’t — I don’t know, but without right to counsel — you have noticed I am not very good at courtroom procedure, and. I need to talk to counsel before I even — I probably should even shut up my mouth. I, you know, I am sorry, my daughter, when it comes to my daughter, I want the best and I want somebody to aggressively represent me.

Objection. I am objecting to every witness, everything that the State calls. Every motion except for my motions for continuance and motion for change of venue, and motions for increased visitations. I request that they be tabled until I can obtain counsel.

[¶ 8.] The trial court proceeded in this matter. Its reasoning was summarized as follows:

I appointed an attorney for you out of Pierre at your request, which I never do down here. So I went above and beyond what I would normally do to give you the representation that you wanted. And then, for some reason, that representation did not work out. I don’t know what happened. I think that you then went and hired an attorney, so she was allowed to withdraw as counsel. So, the Court then went over and above what it normally does to get you an attorney to represent you in this case.

Essentially, the trial court determined that its obligation to ensure counsel for the adjudicatory hearing had ended.

[¶ 9.] SDCL 26-7A-31 specifically provides for a court appointed attorney for parents in an abuse and neglect proceeding. In addressing the right to effective assistance of counsel provided by this statute, this Court has adopted criminal procedures as a means to safeguard this right. See Interests of A.D., 2004 SD 39, ¶ 10, 678 N.W.2d 594, 598 (adopting Korth, 2002 SD 101, 650 N.W.2d 528 procedures to abuse and neglect appeals because “the difference in the nature of the case, i.e. civil rather than criminal, makes no difference in the duties court-appointed counsel owes his or her client”). Therefore, it is instructive to consider how this situation could have been dealt with in a criminal proceeding.

[¶ 10.] On this record, it is clear that mother was having conflicts with the various attorneys employed to represent her. However, in the criminal context such problems, which can lead to delay in a proceeding, can be dealt with through either the trial court’s denial of a motion to withdraw by counsel or a denial of a motion to substitute counsel made by the defendant. See State v. Loftus, 1997 SD 94, ¶ 14, 566 N.W.2d 825, 828 (affirming the trial court’s denial of defense counsel’s motion to withdraw after breakdown in attorney client relationship caused by defendant’s failure to cooperate with the attorney); State v. Irvine, 1996 SD 43, ¶ 12, 547 N.W.2d 177,181 (affirming trial court’s denial of substitute counsel when it would protract the litigation and it was defendant who caused the disruption).² The trial court did not use these procedures to deal with mother’s revolving door of attorneys.

[¶ 11.] The criminal context also highlights the important consequence of proceeding pro se and what must be done in order to make such a decision.

At a minimum a defendant must be aware of the dangers and disadvantages of self-representation. On appeal, waiver of the right to counsel will not be •found knowingly and intelligently made unless the trial court (1) warns the defendant of the dangers of self-representation or, (2) unless the record indicates circumstances from which this court can find the defendant was aware of the danger and made a knowing and intelligent waiver. While in some cases there may be a record showing a defendant is aware of the pitfalls .of self-representation, an admonition from the trial court is preferred as it eliminates any doubt.

State v. Bruch, 1997 SD 74, ¶15, 565 N.W.2d 789, 792. Additionally, a trial court, even after obtaining a valid waiver of counsel, may appoint counsel to assist as a legal advisor. In the Matter of John R. v. Jennifer A., 218 A.D.2d 694, 630 N.Y.S.2d 379, 381 (1995). However, the record must demonstrate that the party entitled to counsel “voluntarily, knowingly, and intelligently” waived that right. State v. Christian, 1999 SD 4, ¶ 23, 588 N.W.2d 881, 885. Without such a showing a defem dant is presumed not to have waived the right to counsel, a right that “is not to be taken lightly.” State v. Raymond, 1997 SD 59, ¶ 9, 563 N.W.2d 823, 825. Although mother had a right to proceed pro se, that is not a right she exercised willingly but fought against the entire way.

[¶ 12.] A trial court’s consideration of a request for substitute counsel or a motion to withdraw can properly take into account the effect further delay in the proceeding will have upon the child. In re Conley, 216 Mich.App. 41, 549 N.W.2d 353, 356 (1996). In this instance, the trial court should have considered the effects of further delay in this proceeding as well as mother’s statutory right to counsel when addressing attorney Arendt’s motion to withdraw. By way of comparison, the facts of this cáse are closely analogous to In re Baby Girl Elliott, 2004 WL 1485858 (OhioApp.2004) (unpublished). In that case, mother’s attorney also moved to withdraw because of a conflict with mother; Id. *8. Mother had a pattern of firing her attorneys and was on her third appointed attorney. Id. Moreover, there was a concern that this was a delaying tactic and it was necessary to resolve the matter for the sake of the child. Id. Therefore, the trial court denied the attorney’s motion to withdraw. Id. In affirming this decision, the court noted that although mother had a right to counsel, she did not have a choice of counsel. Id. It was also significant that mother would not likely be able to obtain counsel before the hearing date. Id. These factors all supported the denial of a motion to withdraw, which allowed the matter to continue while still preserving mother’s right to counsel. Although the denial of a motion to withdraw is not the only way to prevent delay and also preserve a parent’s right to counsel, this case is illustrative of what the trial court could have done here.

[¶ 13.] We therefore conclude that trial courts should be guided by the principles aptly stated in J.A.H. v. Calhoun County DHR, 846 So.2d 1093, 1095 (Ala.Civ.App.2002), wherein the court held that:

In the criminal context, when a defendant has established that his appointed attorney should be relieved of representation because of a conflict of-interest, the trial court must substitute new counsel. Although the basis of the constitutional right to counsel in criminal cases differs from the statutory right to counsel in termination-of-parental-rights cases, we see enough of a parallel between the two rights in this context to require a trial court that relieves an appointed attorney in a termination case of representation to appoint a substitute counsel so as to protect the parent’s already exercised right to counsel.

The trial court erred in allowing the adjudicatory heáring to continue without ensuring the assistance of counsel as required by SDCL 26-7A-31. This could have been accomplished by denying counsel’s motion to withdraw, denying a motion for substitute counsel, appointing new counsel, or obtaining a valid waiver.

ISSUE TWO

[¶ 14.] Whether the trial court abused its discretion in denying mother’s motion for a continuance before the adjudicatory hearing.

[¶ 15.] Mother alleges the trial court erred in denying her motion for a second continuance of the adjudicatory hearing so that she could obtain counsel. This Court has recognized that:

The granting or refusal of a continuance is within the sound discretion of the circuit court, and its rulings will not be reversed absent a clear abuse of discretion. The term abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. The burden rests on mother to insure her availability at the time of the hearing as a dependency and neglect hearing can proceed without the presence of the parent if the interests of the parent are accommodated.

Interest of E.D.J., 499 N.W.2d 130, 133 (S.D.1993) (internal citations omitted). Additionally:

In deciding whether or not to grant a continuance, a trial court must consider: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the eontinu-anee motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving .party or his counsel; (3) the prejudice caused to the moving party by the trial court’s refusal to grant the continuance; and, (4) whether there have been any prior continuances or delays.

Evens v. Thompson, 485 N.W.2d 591, 594 (S.D.1992) (internal citations omitted).

[¶ 16.] Here, further delay would have created a detrimental impact on the other parties to this proceeding. The State had three witnesses present that had traveled over 200 miles. Father was present and wanted to proceed. Child had been in the custody of DSS for more than seven months without adjudication. This hearing had been continued once before but there was no finding this was the result of bad faith or a dilatory tactic by mother. Under these circumstances, generally the trial court would not have abused its discretion in denying the motion for a continuance of the adjudicatory hearing. However, in light of the trial court’s error under issue one, the grant of a continuance or some other curative remedy to provide counsel to mother should have been ordered by the trial court. Proceeding without counsel or a valid waiver by mother was error justifying a continuance or-additional methods to safeguard mother’s right.

ISSUE THREE

[¶ 17.] Whether the error in failing to ensure representation by counsel at the adjudicatory phase requires reversal of the trial court’s disposition when mother was represented by counsel at the dispositional hearing.

[¶ 18.] An adjudicatory hearing is “a hearing to determine whether the allegations of a petition alleging that a child is abused or neglected are supported by clear and convincing evidence.” SDCL 26-7A-H2). Interest of D.M., 2004 SD 34, ¶ 6, 677 N.W.2d 578, 580. Moreover, “the adjudicatory hearing looks to the past, e.g. whether there has been abuse or neglect, while the dispositional hearing looks to the child’s future.... The focus of the disposi-tional hearing is the best interest of the child.” Interest of T.A., 2003 SD 56, ¶ 16, 663 N.W.2d 225, 232.

[¶ 19.] On rare occasions, this Court has applied harmless error analysis to the adjudicatory phase to affirm the termination of parental rights despite errors occurring below. See Interest of C.V., 1998 SD 47, ¶ 11, 579 N.W.2d 17, 22. The question is “if reversing for an adjudicatory hearing will truly produce any rational possibility of a different result.” Id. ¶ 9. With due regard for the facts of this case, and the overarching inquiry of what is in the best interests of this child, we conclude that the error was harmless in that it would not have changed the adjudication in this matter.

[¶ 20.] The adjudication phase “is brought on behalf of the child, not to punish the parents.” Id. Here, mother clearly abused or neglected her child by abandoning her some 200 miles from her home at a feedlot. Even with the benefit of counsel, it is inconceivable that the child would not have been adjudicated abused or neglected.³ See Hughes v. Division of Family Services, 836 A.2d 498, 512 (Del.2003) (holding that the absence of court appointed counsel during a dependency and neglect proceeding was harmless error). Furthermore, it is important for the purposes of this analysis to recognize that counsel was provided for the dispositional hearing in this matter, and thus mother was not left entirely to her own devices. See Briscoe v. State of Arkansas, 323 Ark. 4, 912 S.W.2d 425, 427 (1996) (finding harmless error when counsel had opportunity at the final hearing to present evidence mother left out when she improperly was required to proceed pro se during the initial phases). Although the trial court erred by not ensuring representation by counsel at the adjudicatory phase, that error was harmless because it did not taint the disposition of this matter, and remanding for an adjudicatory hearing would accomplish nothing.

ISSUE FOUR

[¶ 21.] Whether termination of parental rights was the. least restrictive alternative.

[¶ 22.] Mother contends that long term foster care would have been a less-restrictive alternative. Similar arguments have been rejected numerous times by this Court because long term foster care is generally not in a child’s best interests. Matter of S.W., 428 N.W.2d 521, 527 (S.D.1988). Children have a right to have a stable family environment. Matter of S.A.H., 537 N.W.2d 1, 6 (S.D.1995). Additionally, “the least restrictive alternative is viewed from the child’s point of view.” Id “Children have a right to be a part of a family and should not be required to wait for parents to acquire parenting skills that may never develop,” Id The testimony at trial established that mother made little, if any, progress in improving her parenting skills. Termination of parental rights was the least restrictive alternative when considering the best interests of the child.

ISSUE FIVE

[¶ 23.] Whether the trial court erred in determining reasonable efforts to reunite the family had been made.

[¶ 24.] DSS must exercise reasonable efforts to return children to their parents. SDCL 26-8A-21. Mother argues that she completed a substantial portion of the goals set for her by DSS. Mother did complete parenting classes and attend most of her visits with the child, except for two months of no visitation whatsoever. However, she failed to cooperate with DSS, keep them informed of her whereabouts, sign her case service plans, and, most importantly, refused to follow the recommendations of her psychiatric evaluation. Mother made no attempts to complete her necessary treatments or counseling and DSS’s efforts toward reunification were frustrated almost every step of the way by mother’s actions. The trial court did not err in determining that reasonable, but unsuccessful, efforts were made.

[¶ 25.] Affirmed.

[¶ 26.] SABERS, Justice, concurs. [¶ 27.] GILBERTSON, Chief Justice and MEIERHENRY, Justice, concur in result. [¶ 28.] ZINTER, Justice, concurs ■ specially. ■

1 . Mother petitioned for intermediate appeal from the adjudicatory order. That petition was denied by this Court on March 21, 2003, appeal no. 22711.

2 . A trial court is not at the attorney’s mercy when it comes to ensuring mother's right to counsel. SDCL 16-18-31 provides "[n]o attorney who has appeared of record in any civil or criminal proceeding shall be permitted to withdraw in any pending action except by order of the court after notice to all parties concerned.” Additionally, ''[a] lawyer must comply with applicable law requiring notice to or permission of a.tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” SDCL ch 16-18 App. Rule"l. 16(c).

3 . If this case were to be remanded it would be limited to the circumstances effecting the child at the time of the filing of the petition. Interest of C.V., 1998 SD 47, ¶ 11, n. 6, 579 N.W.2d at 22.