C.L., Matter of

• Decision Date: 15 September 1986
• Docket Number: 15186,Nos. 15185,s. 15185
• Parties: In the Matter of the Dependency and Neglect of C.L. and R.P., and Concerning Their Parents, D.L.P. and C.P. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 81

397 N.W.2d 81

In the Matter of the Dependency and Neglect of C.L. and

R.P., and Concerning Their Parents, D.L.P. and

C.P.

Nos. 15185, 15186.

Supreme Court of South Dakota.

Considered on Briefs Sept. 15, 1986.

Decided Nov. 26, 1986.

Dale A. Wein of McNeary & Moen, Aberdeen, for appellants D.L.P. and C.P.

Jeffrey T. Sveen of Siegel, Barnett & Schutz, Aberdeen, for appellees C.L. and R.P.

Julie T. Lovrien, Deputy State's Atty., Aberdeen, Janice Godtland, Asst. Atty. Gen., Dept. of Social Services, Pierre, for appellee State.

WUEST, Chief Justice.

This is an appeal by the parents from disposition orders of the trial court terminating the parental rights of D.L.P. (Mother) and C.P. (Father) to C.L. and R.P. (children). We affirm.

An adjudicatory hearing was held for both of these children and both were found to be dependent and neglected children. After a dispositional hearing for both, the trial court entered an order terminating the parental rights of the parents. (C.P. is the father of R.P. but not C.L.). This Court heard an appeal from this mother in another termination case when her parental rights were terminated to an infant daughter in 1984. Matter of A.L.P., 368 N.W.2d 617 (S.D.1985).

Mother testified that C.L., was abused physically by her father (Grandfather), her brother and her ex-husband, and was sexually abused by a retarded uncle, who resided in Grandfather's home. She agreed that it would be unsafe to ever allow C.L. to live in or visit there unless D.L.P. was present at all times. Nevertheless, visits to the home by C.L. continued to be unsupervised by Mother. In early January, 1985, Mother and her son moved into her parents' home.

Officials from the Welfare Department visited Mother at the home and offered to help her find employment and independent living away from the home, but Department was refused on four occasions. Out of concern for C.L., about six years old, he was interviewed at school. He was then removed from the home on January 18, 1985.

When C.L. was first transferred to temporary foster care, he was unclean, had dirty matted hair, and disagreeable body odor. His clothing was soiled, torn, and over-sized. He often soiled his pants and would urinate on floors and walls when distraught. He did not know how to wipe his nose or how to wipe after a bowel movement. He did not know how to eat properly at the table with eating utensils and did not know what a bar of soap was meant for. C.L. also exhibited violent behavior problems and socially delayed behavior.

Two social workers with the Department testified at C.L.'s adjudicatory and dispositional hearings that when shown anatomically correct male dolls, C.L. immediately removed the clothes from the smaller doll and pulled down the pants on the larger doll. He was surprised that they were sexually accurate. He named the small doll "C" and the large doll "uncle H." He placed them side by side on their backs and placed the man doll's hand on the small doll's penis while also placing the small doll's hand on the man doll's penis. He moved the hands up and down on the dolls' penises. Both Mother and Grandfather had indicated that the uncle, who is retarded, had to be watched closely. Uncle H had been caught with C.L. in the bathroom masterbating. C.L. indicated these things had occurred often.

After the removal of C.L. from his mother, efforts were begun to get the family reunited. Due to the sexual abuse, Mother was told she would have to establish independent living away from her parents. In May, 1985, Mother moved into an apartment in Aberdeen with the assistance of the Department, and Brown County paid the first month's rent. Father was released from jail at this time after serving a sentence for DWI. The second month's rent was not paid, however, and the couple was evicted. Mother's tax refund check had been spent on a television and a stereo. Neither parent was employed. The couple's only income was food stamps.

The couple received classes on getting into the job market three times a week. Some classes lasted up to two hours. The counseling covered personal hygiene, self esteem and job skills. Father was offered vocational rehabilitation which he refused.

The couple was exhibiting no motivation to accept the help being offered. Their personal hygiene had not improved and they were missing appointments without explanation. After six weeks the parents informed the program director that they had temporarily lost custody of their three-week-old son, R.P., after an episode of domestic violence and child abuse. The couple showed no remorse over losing the baby.

The couple was physically violent on almost a daily basis, and they were separated twice during a three month period. Child protection counselors worked with the couple to deal with the continued physical violence but with little success. The violent episodes continued in spite of the help. The couple would even break into arguments while at counseling sessions in the presence of C.L. and the counselor. Alcohol treatment had no impact on Father, but there was some improvement by Mother. Nevertheless, the violence continued, and Mother was still the one who often initiated the physical hitting. Testimony indicated the violence was learned behavior and would require an extended period of time to control.

Despite a great deal of time spent in the home and visits with the children, attempts to improve parenting skills were also a failure. Parents failed to practice what had been taught them. Acceptable improvement was projected to be one to three years away.

In a portion of the dispositional order for C.L., the trial court summarized the frustrated attempts made at getting this family back together.

These people have been offered every available resource in this community. This has actually been going on with this family since August of 1983 when the first problems with the family were reported regarding the abuse of their infant daughter A.L.P. During that period they received the services of the Intensive Prevention Placement Program where a worker was assigned to spend a great deal of time in the home with the family and give extensive aid in handling all family and child rearing problems. Eventually that program failed and the infant A.L.P. was permanently removed from the family. There has actually been a period of close to two years of working and providing services to this family and still they are in their same old path of fighting both physically and verbally, making no effort to work and support themselves or their children. The violence in the home continues on almost a daily basis. There have been no substantial progress in the field of good parenting or temper control. The possibility of improving to a minimum standard of parenting would take at least one and a half years and this would only be if the motivation was there. After two years of giving assistance to this family the only improvements are very minimum. Clinton could not possibly be returned to his parents at this time without losing all of the gains that have been made toward bringing him to the stage of being a normal child. Further waiting for these parents to straighten themselves out is not a feasible solution.

A similar finding was made as to R.P. The baby had been subjected to mistreatment in the same pattern as had A.L.P. During violent fights, Mother threatened and abused the child to get at her husband. R.P. also had serious physical and medical problems which placed him in a high risk category for physical abuse. It was shown that special needs children are more apt to be abused since an irritable baby places more demands on the parents and requires higher than average parenting skills. R.P. did not receive even basic parental protection and care. The parents were not capable of providing average care and would not be able to for some time. Further, R.P. had serious medical problems and increased care requirements which could not be provided by Mother and Father even if they eventually could perform at average parental levels.

On appeal, the parents contend that the trial court erred when it allowed the testimony of the social workers which described C.L.'s behavior with the anatomically correct dolls. The parents argue that C.L.'s play-acting constituted nonverbal conduct intended as an assertion and thus became nonverbal hearsay statements offered to prove the sexual abuse of C.L. The trial court allowed the social workers' testimony as to the nonverbal conduct by C.L., but the court did not rule whether the play-acting was admissible as nonhearsay or whether it was hearsay admissible under a hearsay exception.

Hearsay testimony is not admissible in adjudicatory hearings unless it falls within one of the recognized exceptions. People In Interest of M.W., 374 N.W.2d 889 (S.D.1985). Evidence concerning C.L.'s playing with the dolls was presented in the adjudicatory hearing and not in the dispositional hearing alone, so the hearsay rules will apply. In the Matter of C.J.H., 371 N.W.2d 345 (S.D.1985). Hearsay includes nonverbal conduct if it is intended as an assertion. SDCL 19-16-1; State v. Bawdon, 386 N.W.2d 484 (S.D.1986).

The state argues that the conduct, if hearsay, is admissible under the residual hearsay exception of SDCL 19-16-35. However, a statement admitted under the residual exception to the hearsay rule may be admitted only after the declarant is deemed unavailable as a witness. SDCL 19-16-35; People In Interest of M.W., supra; State v. McCafferty, 356 N.W.2d 159 (S.D.1984). Although C.L. was six years old and socially delayed, there was no determination by Judge Ramynke that he would be unable to testify meaningfully. The other elements of the exception may have existed, but the initial test of unavailability was not met.

South Dakota has a "tender years" exception to the hearsay rule in SDCL 19-16-38. The statute allows otherwise inadmissible statements...