D.G. v. D.M.K.

• Citation: 1996 SD 144,557 N.W.2d 235
• Decision Date: 06 February 1997
• Docket Number: 19550,Nos. 19462,s. 19462
• Parties: D. G., Plaintiff and Appellant, v. D. M. K., a/k/a D. M., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 235

557 N.W.2d 235

1996 SD 144

D. G., Plaintiff and Appellant, v. D. M. K., a/k/a D. M., Defendant and Appellant.

Nos. 19462, 19550.

Supreme Court of South Dakota.

Argued Oct. 24, 1966.

Decided Dec. 31, 1996.

Rehearing Denied Feb. 6, 1997.

Kenneth E. Jasper, Rapid City, for plaintiff and appellant D.G.

Debra D. Watson of Watson Law Office, Rapid City, for defendant and appellant D.M.K.

Larry Plank, Black Hills Legal Services, Rapid City, for appellee C.K., minor child.

MILLER, Chief Justice.

¶1 In this action the trial court, on motion of Mother's former boyfriend, adopted the "equitable parent doctrine" and found boyfriend to be the "legal" father of Mother's child. The judge placed physical custody of the child with Mother and gave visitation to the equitable father. Both parties appeal. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

¶2 Mother met boyfriend (D.G.) either in October 1990 or in February 1991. ¹ They eventually began living together at D.G.'s residence in Rapid City, South Dakota, but never married. On August 6, 1991, Mother gave birth to a daughter, C.M. (Child). D.G. was present for the birth and helped Mother choose a name for the child. No father was listed on Child's birth certificate. She was given Mother's surname.

¶3 Following Child's birth, Mother and D.G. continued to live together for approximately seven months. During this time, D.G. financially supported Mother and Child, as well as providing assistance for Mother's two teenage sons from a previous marriage. In March of 1992, Mother and D.G.'s relationship began to deteriorate. Mother and Child moved to an apartment in Rapid City. They then moved to a trailer home owned by D.G. in nearby Black Hawk, before moving to another apartment in Rapid City. During this time, D.G. had sporadic contact with Child and provided some financial support to Mother.

¶4 Mother and D.G.'s relationship further deteriorated over the next several months. Mother ultimately filed for a protection order against D.G. alleging, among other things, that he was not Child's biological father. The circuit court entered its protection order on March 17, 1993, and ordered no visitation between D.G. and Child. The basis for the circuit court's refusal of visitation was that D.G. had made no showing of paternity.

¶5 D.G. commenced a paternity action on March 23, 1993. Blood test results conclusively determined he was not Child's biological father. Following the test results, D.G. acknowledged he was not Child's biological father and agreed to dismiss the paternity action. The circuit court, the Honorable Merton B. Tice presiding, dismissed D.G.'s paternity action "with prejudice and on its merits" as agreed by the parties.

¶6 In April of 1993, Mother moved with Child to Missouri. Mother struggled financially, at times having to live out of her car. After four months, she asked D.G. to care for Child while she settled in Missouri. He agreed and sent money to pay for Child's return to South Dakota. Mother brought Child to D.G. in October. She left telephone numbers and addresses where she could be reached and told D.G. she would return in two or three weeks.

¶7 Mother was unable to secure employment in Missouri as quickly as planned. By November, she still had not found employment or a place to live. ² On December 16, 1993, Mother signed a paternity affidavit listing D.G. as Child's father. D.G. also signed the affidavit and forwarded it to the State of South Dakota for issuance of a new birth certificate for Child. Mother contends she signed the affidavit solely to give D.G. a power of attorney to get medical attention for Child, should the need arise. The amended birth certificate listed D.G. as Child's father and listed Child's surname as his. Both parties acknowledge the amended birth certificate was signed and issued after the blood test results revealed D.G. was not Child's biological father.

¶8 Child remained with D.G. for the next year. Mother occasionally sent letters and telephoned. ³ During this time, Mother met and married M.M. She obtained her commercial driver's license and drove truck with her new husband. This work required Mother to travel extensively and made contacting her difficult.

¶9 In September of 1994, Mother traveled to Rapid City, South Dakota, to pick up Child. She returned to Missouri because she was unable to locate D.G. or Child while in Rapid City. She again returned to Rapid City on October 14, 1994. Despite the assistance of law enforcement, who accompanied Mother to D.G.'s residence, she was again unable to locate D.G. or her daughter. She returned to Missouri.

¶10 On October 19, 1994, D.G. commenced a second paternity action requesting that he be declared Child's father and further that he be awarded custody of Child. Mother answered the complaint denying D.G. was the father of Child and alleging that Judge Tice's order dismissing the original paternity action with prejudice barred D.G.'s second action as res judicata.

¶11 Mother filed a motion for return of custody and a hearing was scheduled for February 9, 1995. She failed to attend the hearing. ⁴ Following the hearing, the trial court, the Honorable Roland E. Grosshans presiding, entered an interim order directing the Department of Social Services (DSS) to conduct an investigation and home study of both parties. The trial court continued physical custody with D.G. and granted Mother supervised visitation.

¶12 On February 10, 1995, Mother returned to Rapid City. She secured employment in the area and resided in Rapid City throughout the custody proceedings. On March 10, 1995, after a preliminary investigation and allegations of sexual abuse against D.G., ⁵ the trial court placed legal custody of Child with DSS and physical custody of Child with Mother. D.G. was allowed visitation in the discretion of DSS. A "no contact" and mutual protection order between Mother and D.G. was also entered.

¶13 On April 11, 1995, a hearing was held on Mother's motion to dismiss. During this hearing, the court noted Mother's inability to pay her legal fees associated with contesting D.G.'s paternity action. Sua sponte, the trial court appointed Mother's attorney at county expense. The court found the appointment was necessary to ensure the court would receive all relevant information to determine the best interest of Child. A guardian ad litem and an attorney were appointed for Child on June 19, 1995.

¶14 Numerous experts testified at trial. ⁶ Through the various investigations, home studies and evaluations, several concerns about the prospective parents were presented to the court.

¶15 D.G. has had several encounters with law enforcement. ⁷ In 1987, he was convicted of felony sexual contact with a minor and served six years in the state penitentiary. Several years earlier, in 1973, D.G. had been in a serious automobile accident, resulting in a closed head injury with frontal lobe damage. He currently suffers from frontal lobe syndrome, a condition which causes him to have difficulties with impulsive behavior and lack of foresight and planning. D.G. has been able to compensate for these deficits through medication, organic healing of the wound and the support of his wife, M.L. who is a registered oncology nurse. ⁸ M.L. served as a surrogate mother to Child while the child lived with D.G.

¶16 Mother has a history of unreliability, often embellishing or fabricating stories to accomplish the immediate task at hand. Virtually nothing is known about her husband, M.M., other than he is currently on probation for a sexual assault conviction. Child has never met M.M. or interacted with his six-year-old son. During a home study and evaluation, Mother was observed to use appropriate parenting skills and appeared to have redeveloped a close emotional bond with her daughter.

¶17 Child suffers from great anxiety and a fear of separation from both D.G. and Mother. She denies being sexually abused, but drawings done by her as part of an evaluation indicated "red flag" warnings she had been exposed to a traumatizing event of a sexual nature. ⁹ Child has developed a bond with D.G. and has successfully reestablished her relationship with Mother.

¶18 The experts varied in their recommendations concerning the permanent placement of Child. ¹⁰ However, all agreed if placement was not with Mother, the child's close relationship with D.G. made him an appropriate alternative.

¶19 Following a court trial, D.G. was determined to be Child's legal father under the equitable parent doctrine. The trial court found it to be in the best interest of Child to place physical custody with Mother. D.G. was granted visitation and ordered to pay child support. Both parties appeal the decision.

¶20 I. Whether the trial court had the authority to appoint counsel for an indigent mother in a paternity action.

¶21 On appeal, D.G. contends the circuit court was without authority to appoint counsel for Mother at Pennington County expense. ¹¹ D.G. contends the appointment of counsel for Mother was improper and placed the parties on unequal footing in the proceedings because he was required to pay for his counsel while she was not. We conclude that D.G. lacks standing to raise this issue.

¶22 As we recently explained in Agar School District No. 58-1 Board of Education v. McGee, 527 N.W.2d 282, 284 (S.D.1995):

"Standing is established through being a 'real party in interest' and it is statutorily controlled." Wang v. Wang, 393 N.W.2d 771, 775 (S.D.1986). Under SDCL 15-6-17(a), "[e]very action shall be prosecuted in the name of the real party in interest." The real party in interest requirement for standing is satisfied if the litigant can show " 'that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the Defendant.' " Parsons v. South Dakota Lottery Commission, 504 N.W.2d 593, 595 (S.D.1993) (quoting Gladstone, Realtors...