People in Interest of BAR

344 N.W.2d 90, 1984 S.D. LEXIS 244
CourtSouth Dakota Supreme Court
DecidedFebruary 15, 1984
Docket14086
StatusPublished
Cited by5 cases

This text of 344 N.W.2d 90 (People in Interest of BAR) 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 in Interest of BAR, 344 N.W.2d 90, 1984 S.D. LEXIS 244 (S.D. 1984).

Opinions

FOSHEIM, Chief Justice.

M.R. (mother) appeals a decree terminating parental rights in her son B.A.R. (child). We affirm in part and remand in part.

The child was born November 24, 1978. On September 18, 1980, the Department of Social Services (DSS) filed a petition seeking termination of the mother’s parental rights. Paternity is unacknowledged. On January 15, 1981, the court, upon stipulation, found B.A.R. to be a dependent child within the meaning of SDCL 26-8-6, and the child was placed under the guardianship of DSS. A dispositional hearing took place in November and December 1981 after which the court entered a decree terminating the mother’s parental rights. After appeal and remand, another dispositional hearing took place on January 14, 1983. The trial court again terminated the mother’s parental rights, giving DSS authority to place the child for adoption.

The mother cites five claims of error. The first concerns the sufficiency of the evidence to support termination. After appeal of the first termination decision, we remanded for disposition under the “clear and convincing” evidentiary standard required by this court in People in Interest of S.H., 323 N.W.2d 851 (S.D.1982), and the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). At the hearing on remand the court received evidence of developments since the earlier termination. The mother now contends the trial court ostensibly reached the first disposition on a preponderance of the evidence standard and because the evidence introduced at the last hearing indicated progress on the part of the mother, the evidence could not have satisfied the “clear and convincing” standard. We disagree.

There is ample evidence in the record of physical child abuse, of lack of normal bonding between mother and child, and general lack of parental responsibility. Although the mother had improved in many respects by the time of the disposi-tional hearing on remand, none of the evidence demonstrates that she had become a better parent. The evidence introduced at the earlier dispositional hearing was, in our opinion, sufficiently “clear and convincing” to support a termination decision. It was not mitigated by the subsequent showing.

Appellant next urges that her parental rights were improvidently terminated because the first disposition was based in part on evidence received at a hearing without actual notice to her. The first disposi-tional hearing occurred on November 18, [92]*921981, while the mother was wandering about the United States. She had voluntarily chosen not to maintain contact with the court or her attorney and thereby failed to learn that her court-appointed counsel had been replaced and that a dispositional hearing had been set.

The new attorney’s inability to locate and meet with the mother made representation impossible. The court consequently relieved him of his appointment at the beginning of the first dispositional hearing. Coincidentally, the attorney received a call upon return to his office informing him that the mother was undergoing drug therapy in Minneapolis. The attorney returned to the hearing and, at the court’s direction, resumed representation of the mother. The matter was then continued to December 24, 1981, to give the attorney an opportunity to study the transcript of the portion of the hearing he had missed and to permit him to cross-examine witnesses and introduce additional evidence. The mother returned to South Dakota and testified at the December 24 hearing.

Although an argument can be made that the mother had constructive notice of the hearing through her attorney, In re Estate of Grimes, 87 S.D. 187, 204 N.W.2d 812 (1973), we need not reach this issue. Even without notice, appellant was not prejudiced. The trial court took great care to accommodate her interests. Not only did her counsel represent her during the balance of the first hearing after learning her whereabouts, but the hearing was then adjourned to give the mother an opportunity to testify and to cross-examine all witnesses against her.

Except for five weeks, the child had been in foster care continuously for fourteen months prior to the November hearing. His interest in the prompt resolution of his future warranted holding the hearing in the mother’s absence. She was wanted on criminal auto theft and false personation charges. Her departure from the jurisdiction and her failure to maintain contact with relatives, attorney, or the court justified the court in not continuing the matter until the mother should return to South Dakota at some unforeseeable future date. If the mother was at all injured by the lack of notice, it was her own doing. She had voluntarily broken off contact with all who knew her.

As a related issue, the mother maintains that her attorney’s absence from the first part of the dispositional hearing wrongfully deprived her of counsel. The United States Supreme Court has determined, however, that there is no constitutional right to counsel in a proceeding to terminate parental rights. Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), reh’g denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981). Although SDCL 26-8-22.1 creates a right to be represented by counsel at every stage of the proceedings, there is no absolute duty on the part of the court, absent a request, to provide that counsel for the parent. See SDCL 26-8-22.2. When the mother’s first attorney withdrew in her absence, the court appointed a replacement on its own motion. Because this appointment was not mandated by request, the court was exercising proper discretionary authority both in appointing the second attorney and in permitting him to withdraw from the case briefly during the first dispositional hearing. Even if the temporary absence of counsel were an abuse of discretion, the abuse was remedied when the attorney was given an opportunity to study the transcript of the testimony he had missed, cross-examine witnesses, and supplement the record.

Appellant argues that her parental rights were wrongfully terminated because rehabilitation of the family unit was frustrated by conduct of the State acting as legal guardian. The evidence suggests, however, that if there was lack of opportunity to demonstrate rehabilitation of the mother-son relationship, the fault was largely, if not wholly, due to the behavior of the mother. The child was placed in foster care in September 1980 after he had suffered physical abuse on several occasions. The mother stipulated to the de[93]*93pendency of the child and took him into her care again on January 21, 1981. On March 10, 1981, the mother requested that the child return to foster care because she could not handle him. She was asked a month later whether she would like the child back, but she replied that she was not ready. The mother occasionally cancelled her weekly visits with her child, and in June 1981 she called DSS to report that she had moved to Minneapolis.

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Bluebook (online)
344 N.W.2d 90, 1984 S.D. LEXIS 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-in-interest-of-bar-sd-1984.