C.J.H., Matter of

• Decision Date: 17 July 1985
• Docket Number: 14765,Nos. 14745,s. 14745
• Citation: 371 N.W.2d 345
• Parties: In the Matter of C.J.H., J.J.H., and G.J.H., Alleged Dependent and Neglected Children and Concerning G.H. and C.H., Parents.
• Court: South Dakota Supreme Court

Page 345

371 N.W.2d 345

In the Matter of C.J.H., J.J.H., and G.J.H., Alleged Dependent and Neglected Children and Concerning G.H. and C.H., Parents.

Nos. 14745, 14765.

Supreme Court of South Dakota.

Argued May 20, 1985.

Decided July 17, 1985.

James D. Taylor of Tinan, Padrnos, Smith & Taylor, Mitchell, for Children, appellees.

Janice C. Godtland, Asst. Atty. Gen., Pierre, for appellee South Dakota Dept. of Social Services; Mark V. Meierhenry Atty. Gen., Pierre, on the brief.

Steven J. Bucher of Miller & Bucher, Plankinton, for appellant G.H., Father (# 14745).

Robert Swank of Hanson, Stiles, Anderson & Swank, Mitchell, for appellant C.H., Mother (# 14765).

HENDERSON, Justice.

G.H. (father) and C.H. (mother), appellants, appeal from an order terminating their parental rights over C.J.H., J.J.H., and G.J.H. (children). We affirm.

Appellants are divorced and have three daughters ranging in age from ten to six. Father had custody of the children pursuant to the Decree of Divorce. Mother is mentally disturbed and a self-confessed alcoholic. Father is a talented and industrious man who leads a very independent life-style. He is suspicious and distrusts the aid and advice offered by the Department of Social Services (Department). Appellants' marriage and relationship was fraught with violence, spousal abuse, alcohol consumption, and separations, but the children were never beaten or the center of this violence. ¹ This family unit has been the object of many social and community help organizations and has been involved with the Department since at least July 1978.

In October 1983, after being released from a treatment program for chronic alcohol addiction and related physical and psychological problems, mother returned to Letcher, South Dakota, to live with father and the children. On December 30, 1983, father became extremely angry because he thought the children had plugged up the sewer system. Father, thereafter, left the home. Upon his departure and fearing he would hurt them, mother and the children left the home and went to the Mitchell Police Department. These events transpired in the early evening and the temperature was five to ten degrees below zero. The children, although clad in winter coats, were not wearing underwear or socks. The underwear was saved to wear to school. One child had a large hole in her boot.

That night, the children were taken into the custody of the Department and on January 3, 1984, the Department filed a petition alleging them to be dependent and neglected children. ² An emergency hearing was conducted that same day and temporary custody was awarded to the Department.

The adjudicatory hearing was scheduled for February 3, 1984. On February 2, counsel for mother made a motion for continuance over the telephone. It appears mother had not contacted counsel for eighteen days and had been on an alcoholic binge and had been found by the police at her lawyer's request only the day before. She was in the Mitchell Area Alcohol and Drug Referral Center for detoxification and, according to her counsel, was not fully capable of understanding and not ready to participate in the hearing. Counsel asserted that mother would be denied due process if the hearing was not continued. The trial court denied the motion because 1) mother's incapacity was self-induced and thus not the typical case of a party being ill through no fault of their own; 2) the burden rests on the parties to insure their availability at the time of the hearing; and 3) mother's rights were fully protected by counsel.

After the examination of three witnesses during the adjudicatory hearing, appellants admitted the allegations of the petition. The trial court found the children to be dependent and neglected and the dispositional hearing was begun. Neither appellant appeals the trial court's dependency and neglect determination. After the examination of several witnesses, the dispositional hearing was rescheduled.

On April 2, 1984, two days before the scheduled continuation of the dispositional hearing, mother moved the trial court for an order requiring father to submit to a mental examination under SDCL 15-6-35(a). In support of the motion, mother asserted that all parties' mental conditions were in controversy, that all had been examined except father, and that such information was necessary for the trial court to determine the children's best interests. The trial court granted the motion, ordered the examination, and rescheduled the dispositional hearing. The dispositional hearing was continued and finally concluded on April 25, 1984. In his closing argument to the trial court, the State's Attorney admitted that he did not believe termination was the least restrictive means or that the parental rights of either appellant should be terminated.

The trial court, however, concluded that termination of father's and mother's parental rights to be the least restrictive alternative and in the children's best interests. It thereupon vested legal custody and care in Department. It is from the order terminating parental rights that appellants now appeal. Appellants' briefs present seven issues and we address them seriatim.

I.

Mother initially claims the trial court abused its discretion by denying her motion for a continuance and thereby prejudiced her fundamental right to due process. We disagree.

The grant or denial of a motion for a continuance is within the sound discretion of the trial court and will not be disturbed upon appeal unless there has been a clear abuse of discretion. State v. Rosales, 302 N.W.2d 804, 805-06 (S.D.1981). Here, mother voluntarily imbibed alcohol over several days time until she reached the point of requiring admission to an alcohol treatment program to detoxify herself. There is no contention that she was unaware of the date of the adjudication hearing. All other parties were prepared to proceed; mother was represented by counsel; and the children had already been in the custody of the Department for one month. Any impairment of mother's right to participate in the adjudicatory hearing was of her own accord. Under these circumstances, the trial court did not abuse its discretion in denying a continuance. See Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114 (1958); Anderson v. Anderson, 78 Pa.D. & C. 335 (1951); Ramsey v. Bird, 170 S.W. 1075 (Tex.Civ.App.1914).

II.

Father's first claimed error concerns the order requiring him to submit to a mental examination. This order was based on SDCL 15-6-35(a). Initially, father argues the trial court was without power to order the examination because civil discovery rules and statutes are not applicable to dependency and neglect proceedings because these are quasi-criminal and not civil in nature. This contention, however, is without merit.

Procedures determining the custody of dependent children are not criminal, Kent v. United States, 383 U.S. 541, 554-55, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84, 93-94 (1966), are not quasi-criminal, In re Guisti, 51 Nev. 105, 110, 269 P. 600, 601 (1928), but instead constitute a civil action, Board of Children's Guardians v. Gioscio, 210 Ind. 581, 585, 4 N.E.2d 199, 201 (1936), or a special proceeding of a civil nature, In re R.Y., 189 N.W.2d 644, 650-51 (N.D.1971). See also, 43 C.J.S. Infants Sec. 50 (1978). The Rules of Civil Procedure are used in all dependency and neglect adjudicatory hearings, Matter of V.D.D., 278 N.W.2d 194, 196 (S.D.1979), and all other hearings under SDCL ch. 26-8

shall be conducted under such rules and regulations as the court may prescribe and designed to inform the court fully as to the exact status of the child and to ascertain its history and environment and the past and present physical, mental, and moral condition of the child, and of its parents....

SDCL 26-8-30. Trial courts are empowered by SDCL 15-6-35(a) to order a mental examination in child custody cases when such is in controversy and good cause therefor is shown. See In re Marriage of Bingman, 209 N.W.2d 68, 71 (Iowa 1973), and Moninger v. Moninger, 202 Neb. 494, 500, 276 N.W.2d 100, 104 (1979). We deem this statute particularly applicable in dispositional proceedings in dependency and neglect actions and the trial court is empowered thereby to order a mental examination. The grant or denial of such a motion is, however, within the trial court's discretion.

Father next contends on this issue that if the trial court has discretion to order a mental examination, that discretion was abused because good cause was not shown. We disagree.

In the dispositional phase of dependency and neglect proceedings, a parent's fitness is in controversy and prior to the motion requesting a mental examination of father, testimony had been adduced which showed a violent and unstable family situation. All parties to this family and to this action had been examined except father. In order to determine the disposition which would be in the children's best interests, it was necessary for the trial court to have information concerning father's mental stability. Good cause existed for the issuance of the order and the trial court did not abuse its discretion.

Finally, father contends the trial court abused its discretion by ordering the examination to be conducted by a person other than a licensed physician. Father, however, did not object to the trial court's selection and, in fact, acquiesced in the person appointed. Having failed to object at the trial level, father cannot now be heard to complain. Weaver v. Boortz, 301 N.W.2d 673 (S.D.1981).

III.

Father's second claimed error is that certain exhibits admitted into evidence during the dispositional proceedings should not have been admitted because they lacked sufficient trustworthiness to meet the requirements of SDCL 19-16-10, which admits certain business records over hearsay objections. Under SDCL 19-9-14(7), however, the rules of evidence contained in SDCL chs. 19-9 to 19-18, inclusive,...