B. E., Matter of

Decision Date31 December 1979
Docket Number12571,Nos. 12558,s. 12558
PartiesIn the Matter of B. E., B. L., and L. S. M., Alleged Dependent Children and Concerning B. M. and R. M.
CourtSouth Dakota Supreme Court

Thomas J. Farrell of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for appellant father, R. M.

Mary E. Leary of East River Legal Services, Sioux Falls, for appellant mother, B. M.; Peter Gregory of East River Legal Services, Sioux Falls, on brief.

Timothy J. McGreevy of Dana, Golden, Moore & Rasmussen, Sioux Falls, for respondent children.

Janice C. Godtland, Asst. Atty. Gen., Pierre, for respondent State of South Dakota; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

HENDERSON, Justice.

ACTION

These two appeals are from the adjudicatory and dispositional hearings in which B.E., B.L., and L.S.M. were adjudged to be dependent children and appellants' parental rights were terminated. These appeals question the constitutionality of certain statutes, assert violations of substantive due process rights, and allege various evidentiary errors. For clarity and convenience appellants will be referred to as mother and father. The dispositional order permanently terminating both appellants' parental rights is reversed.

PROCEDURAL FACTS

On September 29, 1977, a petition was filed alleging that the children, B.E., B.L., and L.S.M., were dependent within the meaning of SDCL 26-8-6. That same day an order was entered appointing a guardian to take temporary custody of the minor children. A combined adjudicatory and dispositional hearing on the merits of the petition was concluded on January 19, 1978.

The children remained in the custody of the state following the trial. On May 19, 1978, the court entered its order of adjudication and decree of disposition finding the children dependent under SDCL 26-8-6 and terminating the parental rights of both appellants, naming the "Director of Service Administration" as guardian for purpose of adoption.

FACTS

The appellant parents were divorced February 4, 1977. Pursuant to the terms of the divorce, the mother was granted custody of the three minor children B.E., B.L., and L.S.M., ages three, one, and one month respectively, under the supervision of a Court Services officer. The father was permitted visitation rights one evening and on alternating Saturdays and Sundays. He was not obligated to pay child support until one year after the entry of divorce so that he could pay delinquent bills which the parties had accumulated.

Several incidents occurring in August and September, 1977, prompted the removal of the three children from the mother's residence. The home was first visited on August 16, 1977, by Ms. Tracy, a Court Services officer, after receiving a complaint through the Department of Social Services. It was not until this time that the Court Services Department became aware of the provision in the divorce decree calling for supervision of the home. Ms. Tracy was met at the door by a babysitter. She testified that the house was unkempt, smelled, and the children appeared quite dirty. Approximately two days later, Ms. Tracy visited with the mother to discuss her problems. The mother indicated that she was concerned about the children and that she needed to get away for a period of time; however, no assistance was offered at that time.

On August 20, 1977, the children were left with a fifteen-year-old girl, unequipped to feed, bed, or clothe them. The police were contacted by a neighbor the following afternoon when the mother failed to return. The officer who responded to the call described the house and children as being extremely dirty. A social worker then removed the children and released them the following day to their grandmother. Shortly thereafter, the mother contacted Ms. Tracy stating that she had been under a great deal of strain and sought assistance in her attempt to adequately care for her children. She had considered the possibility of placing the youngest child for adoption with one of the relatives. The mother additionally contacted the Social Services requesting that the children be placed for approximately one month with that office. Testimony disclosed that Social Services offered her no assistance, indicating that they did not provide babysitting service to allow a mother vacation time away from her children. A social worker, Ms. Rollings, testified at the hearing that it was not uncommon to provide occasional daily foster care on an intermittent basis; however, this alternative was not suggested to appellant.

On September 15, 1977, the Department of Social Services again received a complaint about the mother's home. A social worker investigated and found a babysitter in charge. He stated that the home was filthy and in shambles. There was no bedding, mattresses were stained and odorous, dirty clothes were strewn about the house, garbage was piled high near the refrigerator, and dirty dishes were left in the kitchen sink. The children's clothing was extremely soiled and the youngest ran about without a diaper and smelled of urine. Flies were rampant and food was scarce. There was rancid hamburger on the kitchen table where two of the children were preparing to eat. A young teenage girl had been babysitting that week, although the mother dropped in occasionally during that time.

On September 17, two police officers had occasion to visit the appellant's residence pursuant to a call by two concerned teenage girls. Upon arrival, the officers found a hysterical six-year-old boy who had supposedly been left in charge of appellant's two older children. The officers testified that the house reeked with an intense, pervading odor of rotting food and urine; the toilet In late September, appellant's brother picked up the two older children, washed them, and took them over to a sister's home to spend the night. The sister testified that she went to the home to get clothing for the children and described its state in similar terms. She contacted Ms. Tracy the next day, not knowing the whereabouts of her sister. Ms. Rollings picked up B.E. and B.L. on the evening of September 27, and placed them in a foster home. L.S.M., who was staying with a babysitter, was placed in the foster home two days later.

was plugged and the bathtub was full of fetid water that attracted flies. The mother returned home while the officers were present, stating that she had been at her mother's home doing laundry.

The mother contacted Ms. Rollings on several occasions to check up on her children while they remained in temporary custody of the Department of Social Services. Visitations were scheduled and the record reflects they went extremely well.

The father, upon discovering that there had been complaints about the care of the children, talked with Department of Social Services personnel and Court Services officers expressing his concern about the children and his desire to obtain custody. The record reveals that after the divorce, from February to August, 1977, he saw the children on three occasions. Although his visits were infrequent, the mother discouraged him from seeing the children, even to the extent of calling the police to prevent him from entering the home. He did, however, visit the children several times while they were in the foster home.

Pending the divorce, the father had custody of the children for two-week intervals during a six-month period. His grandmother testified that while he had the children, he took very good care of them, always making sure that they were properly clothed, fed, and washed. At the time of trial, he was gainfully employed, earned a sufficient income to provide for the children, and was making arrangements for the purchase of a new home. Ms. Rollings and children's counsel recommended to the court at trial that the mother's parental rights be terminated and that the children be placed in custody of the father under supervision.

On the basis of these facts the trial court found that: Neither parent appeared to have sufficient parental care and concern for the children to provide for them the necessary physical care and emotional support. The court concluded: (1) B.E., B.L., and L.S.M. are dependent children within the meaning of SDCL 26-8-6 and (2) the best interests of all three children would be served by terminating the parental rights of both parents.

ISSUES

The mother appeals this adjudicatory order and judgment on the grounds that: (1) The phrase neglected or dependent child, as defined in SDCL 26-8-6, is unconstitutionally vague and indefinite; (2) both SDCL 26-8-6 and SDCL 26-8-36 are violative of substantive due process in that neither section requires as a prerequisite to termination of parental rights a showing of a high and substantial degree of harm to the children, nor that less drastic alternatives be considered prior to resorting to termination; and (3) the trial court's finding that the children were dependent and neglected was not supported by the evidence. The father appeals on the grounds that: (1) The evidence was insufficient to support the findings of fact entered by the court, and (2) the court abused its discretion in terminating his parental right. The children also appeal asserting the court erred in terminating the father's parental rights.

DECISION
I

We first examine appellant-mother's contention that SDCL 26-8-6, defining neglected or dependent children, is unconstitutionally vague and overbroad. This court has repeatedly upheld the constitutionality of this statute. Matter of V.D.D., 278 N.W.2d 194 (S.D.1979); Matter of N.J.W., 273 N.W.2d 134 (S.D.1978); People in Interest of D.K., 245 N.W.2d 644 (S.D.1976); Matter of D.T., 89 S.D. 590, 237 N.W.2d 166 (1975). We find no reason to deviate from our position on this issue and reaffirm the principles stated therein.

II

We disagree with the mother's contention that a high and substantial degree of harm to the child must first be...

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