C.V., Matter of

• Decision Date: 12 March 1998
• Docket Number: No. 20277,20277
• Citation: 1998 SD 47,579 N.W.2d 17
• Parties: In the Matter of C.V., Alleged Abused/Neglected Child. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 17

579 N.W.2d 17

1998 SD 47

In the Matter of C.V., Alleged Abused/Neglected Child.

No. 20277.

Supreme Court of South Dakota.

Considered on Briefs March 12, 1998.

Decided May 13, 1998.

D. Sonny Walter, Sioux Falls, for appellant, Father.

Mark W. Barnett, Attorney General, Joan P. Baker Assistant Attorney General, Pierre, for appellee, State of South Dakota.

Laurel Olson Eggers of Laurel Olson Eggers PC, Sioux Falls, for appellee, Child.

KONENKAMP, Justice.

¶1 We are faced with the question whether in an abuse and neglect proceeding the circuit court violated a father's statutory and due process rights in failing to conduct an adjudicatory hearing, when it nonetheless provided him a dispositional hearing before terminating his parental rights. We conclude the court erred in not holding an adjudicatory hearing for the father, but nonetheless affirm because in the unique circumstances of this case, remanding to conduct such hearing would not change the outcome.

Facts

¶2 On September 13, 1993, with his two-year-old daughter, C.V., nearby, the father grabbed the mother's head and bit off her nose. It was his latest and most brutal act in a succession of violent acts against her. For this shocking savagery he received six years in the penitentiary. When the trial court terminated his parental rights four years later, he was still in prison, but was scheduled for discharge within weeks. An illegal alien classified under immigration law as an "aggravated felon," he was subject to immediate deportation upon release. During his time in prison he participated in alcohol treatment, yet declined counseling for domestic abuse. "I don't need it," he told the judge at the dispositional hearing. Although he was a virtual stranger to his child, he also informed the court that when he departed for Mexico, he wanted C.V. with him. Little in the record would commend such a result.

¶3 C.V. was born out-of-wedlock to the father and F.R.B. (mother) in 1991. They later married. C.V. was the mother's ninth child, but the father and mother's first. Over the years, aside from the father's adverse influence, the mother had her own desperate problems caring for her older children. One was killed in an accident. Another suffered brain damage when she beat the child, which resulted in her conviction for aggravated assault. The mother's remaining children were removed from her care by the Department of Social Services (DSS) due to her chronic alcoholism, homelessness, and frequent encounters with domestic violence. The many services DSS provided in connection with her older children were ineffective in correcting her problems.

¶4 C.V. was first removed from her parents' custody as a result of an incident of domestic violence in 1991 when she was only five weeks old. The mother was arrested for DUI and the father for assault in striking the mother and biting her on the face. Because of the parents' continuing problems with violence, alcoholism and homelessness, it was a year before C.V. was returned to their care. In 1993, the father was arrested and convicted of aggravated assault for the previously mentioned nose biting incident. While he was in prison, the mother's alcoholic excesses persisted and DSS received numerous referrals concerning her neglectful childcare. C.V. was finally removed from mother's custody when, despite repeated warnings from DSS, she left the child with a caregiver physically incapable of providing for the child.

¶5 On July 30, 1996, the State filed a petition alleging C.V. to be abused and neglected. A summons was issued notifying the parties of an adjudicatory hearing on the petition scheduled for October 3. On September 30, the trial court issued an order directing that the father be transported from the penitentiary to the courthouse for the October 3 hearing. The level of the father's participation at the hearing is unclear although he apparently was present. In any event, no adjudicatory hearing took place because mother, her counsel, the lawyer for C.V., and the deputy state's attorney stipulated that C.V. was abused and neglected. Based upon the stipulation, the trial court entered an adjudicatory order finding C.V. abused and neglected. The order also set forth conditions the mother would have to meet during the pendency of the dispositional hearing to retain her parental rights.

¶6 The mother did not meet the court's dispositional conditions and a hearing was noticed for August 5, 1997. At the hearing, all parties, including the father, were present and represented by counsel. Though she did not stipulate to termination of her parental rights, the mother essentially agreed not to contest the State's evidence. The father made no such agreement. He and his attorney participated in the hearing with a full opportunity to confront the dispositional witnesses and cross-examine them. The father's history of abusive treatment of the mother and his neglect of C.V. before he went to prison was presented through several State witnesses. On the stand, he admitted assaulting the mother and striking the mother's youngest son with a belt, but excused it by saying he was teaching the child a lesson on not hitting people. At the close of all the evidence, his counsel expressed some confusion over whether the hearing was adjudicatory or dispositional.The trial court advised that, because of mother's stipulation of abuse and neglect and the adjudication based upon her stipulation, the hearing was dispositional. The father immediately objected on the basis he was never afforded an adjudicatory hearing. His objections were overruled and the trial court later entered findings of fact, conclusions of law and an order terminating the mother's and the father's parental rights over C.V. The father appeals.

Jurisdiction to Terminate Parental Rights Absent Adjudicatory Hearing

¶7 The father argues the trial court had no jurisdiction to conduct the dispositional hearing and to terminate his parental rights because it failed to first hold an adjudicatory hearing. When the father objected during the dispositional hearing to the fact no adjudicatory hearing was held, the trial court reasoned such a hearing was unnecessary because of the mother's stipulation of abuse and neglect. Pointing out the adjudicatory hearing decides the status of the child, without necessarily assigning fault to either parent, the court denied the father's repeated requests for an adjudicatory hearing. In support of its determination, the court relied upon the following pertinent language from SDCL 26-8A-1: "[a]djudication of a child as an abused or neglected child is an adjudication of the status or condition of the child who is the subject of the proceedings and is not necessarily an adjudication against or in favor of any particular parent, guardian or custodian of the child."

¶8 The court's reasoning overlooked the father's status as an interested party. ¹ SDCL 26-7A-43 makes both parents parties to abuse and neglect proceedings by requiring that "parents" (plural) be included as named respondents in a petition. A summons for the hearing on a petition must be directed to both "parents." SDCL 26-7A-44. The summons must also be served on all the "persons or parties named" therein. SDCL 26-7A-47. ² "Every person or party" who receives a summons may appear and answer in response to the petition. SDCL 26-7A-53 (emphasis added). Most importantly, if a petition for abuse and neglect is "not admitted by all necessary parties" or if the petition is "denied by any necessary party," the trial court, "shall proceed with the adjudicatory hearing on the petition[.]" SDCL 26-7A-55 (emphasis added). Obviously, if after proper notice a parent fails to appear, the court may enter a default, but that did not occur here. SDCL 26-7A-53.The trial court omitted mandatory procedural requirements in bypassing the adjudicatory hearing for the father based upon the mother's stipulation alone. Under the above statutes, however, the court could only dispense with an adjudicatory hearing if all of the necessary parties, including the father, agreed. Here, the father did not agree. Thus, the trial court denied the father an adjudicatory hearing under SDCL 26-7A-55.

¶9 Normally, parents denied due process are entitled to litigate their "rights anew without prejudice from the adjudication proceedings from which [they were] excluded." ³ In Interest of Amanda H., 4 Neb.App. 293, 542 N.W.2d 79, 87 (1996). Yet, at this juncture we must ask if reversing for an adjudicatory hearing will truly produce any rational possibility of a different result. C.V. has waited for years on her dysfunctional parents and all a reversal seems to promise is more delay. The Nebraska Supreme Court confronted a similar quandary in the case of In Re Interest of Amber G., 250 Neb. 973, 554 N.W.2d 142 (1996). Two children were removed from their mother's care due to reports of sexual abuse and neglect. The father was not present for the adjudicatory hearing and was not named as a parent in the petitions filed on behalf of the children. On appeal from an order of permanent guardianship for the children, the father challenged the juvenile court's jurisdiction because it was never alleged he abused and neglected the children. In rejecting his contentions, the Court held:

[T]he rights of the parent and the child are protected by the separate adjudication and dispositional phases of the dependency proceeding. A petition ... is brought on behalf of the child, not to punish the parents. The purpose of the adjudication phase of the proceeding is to protect the interests of the child; the purpose of the dispositional phase is to determine placement and the rights of the parties in the action. It is not improper for the court to sustain jurisdiction at the adjudication phase if the State makes a proper prima facie showing of lack of proper parental care in the child's present living situation.

In this case...