D.H., Matter of, 14284

• Decision Date: 24 May 1984
• Docket Number: No. 14284,14284
• Citation: 354 N.W.2d 185
• Parties: In the Matter of the Termination of Parental Rights Over D.H., and Concerning His Mother, G.H. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 185

354 N.W.2d 185

In the Matter of the Termination of Parental Rights Over D.H., and Concerning His Mother, G.H.

No. 14284.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1984.

Decided Aug. 15, 1984.

Michael J. Williams, Asst. Atty. Gen., Pierre, for appellee State of South Dakota; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Forrest C. Allred, Aberdeen, for appellant G.H.

Daniel R. Moen, Aberdeen, for appellee D.H.

MORGAN, Justice.

This appeal is from an order filed June 1, 1983, which terminated the parental rights of G.H., the mother, over D.H., her son. Notice of this appeal was filed July 20, 1983. Subsequently, on November 1, 1983, G.H. petitioned for a new hearing and on December 14, 1983, that petition was denied. We affirm the trial court's disposition of the petition for termination and the denial of the petition for new hearing.

On April 21, 1981, D.H. exhibited violent behavior at the grade school he attended and had to be physically restrained by the school principal for forty minutes. When G.H., the child's mother, was asked to take D.H. home, she responded that she could not handle him and did not want him. D.H. was placed in emergency protection and removed from the home at that time. Because no temporary foster home was available, D.H. was turned over to the South Dakota Department of Social Services (Social Services) and placed at the New Beginning Center. Judge Dobberpuhl signed a detention order on May 18, 1981, which gave Social Services custody of D.H. for purposes of a thirty-day evaluation. In a petition filed June 2, 1981, the State alleged that the child "lacked proper parental care through the actions and omissions of the parent ..." and requested a declaration that D.H. was dependent and neglected. Based on the thirty-day evaluation, an order dated June 29, 1981, placed D.H. in the physical and legal custody of Social Services for one year with a six-month review regarding the possibility of returning him to the home. It was further ordered that (1) D.H. receive treatment for his assaultive behavior and intense anger in the least restrictive environment, (2) that D.H. receive individual and family therapy, (3) that G.H. receive individual and family therapy, and (4) that G.H. cooperate with Social Services.

Six months later, in findings of fact and conclusions of law dated February 3, 1982, and based on a further dispositional hearing held January 26, 1982, the trial court reviewed the situation and found that G.H. had not undergone individual or family therapy and had not cooperated with Social Services. In its six-month review, the trial court also found that D.H. was dependent and neglected, as defined in SDCL ch. 26-8, and that G.H. had not abided by the court's prior order. D.H. was left in physical and legal custody of Social Services for a second six months under the conditions and stipulations set out in the prior June 29, 1981, order. The trial court further ordered that if G.H. continued to violate the order her parental rights would be terminated. Social Services filed a petition requesting termination of G.H.'s parental rights on July 7, 1982. The petition alleged that G.H. failed to cooperate in family and individual therapy and counseling and had indicated by her conduct that she had no desire to respect the requirements the court set out.

An adjudicatory hearing was held on January 25, 1983, and adjudicatory findings and conclusions, dated April 20, 1983, were filed on June 1, 1983. The trial court's crucial adjudicatory findings were that (1) D.H. had been a resident of Simmons House since April 1981, (2) that Social Services had worked with and provided services for G.H. from July 1981 to January 1983, (3) that G.H. did not cooperate and the efforts to assist her were unsuccessful, (4) that D.H.'s assaultive, aggressive, and defiant behavior increased when he had contact with G.H., and (5) G.H.'s refusal to cooperate has slowed D.H.'s treatment and progress. The trial court concluded that it found by clear and convincing evidence that D.H. suffered emotional damage from G.H.'s failure to provide proper parenting and that he was still dependent and neglected, pursuant to SDCL 26-8-6.

Dispositional findings and conclusions were also filed on June 1, 1983, and were also based on the hearing held on January 25, 1983. The trial court's relevant dispositional findings include: (1) that Social Services had furnished G.H. and D.H. with Aid to Dependent Children, parenting classes, individual therapy for mother and child, family therapy, financial planning and support services, (2) that G.H. failed to attend several classes and sessions and did not cooperate when she did attend, (3) that financial planning and support services were considered unsuccessful and were discontinued on that basis, (3) that G.H. refused to accept responsibility for D.H.'s problems and refused to admit to her own, (4) that the Social Services caseworker assigned to assist G.H. and D.H. believed that G.H.'s parenting skills had not improved and the child's interest would be best served if G.H.'s parental rights were terminated, and (5) that D.H.'s assaultive, aggressive, and defiant behavior results from G.H.'s influence and the prognosis for D.H.'s improvement is poor as long as G.H. continues her present stance.

The trial court's crucial conclusions included: (1) that the child's welfare demands a final resolution so that a measure of stability and permanence can be provided, and (2) that clear and convincing evidence indicates that termination of G.H.'s parental rights is the least restrictive alternative available and in the child's best interest. The termination decree was signed on April 20, 1983 and filed June 1, 1983. Notice of appeal was dated and filed on July 20, 1983.

On November 1, 1983, G.H. filed a petition for new hearing pursuant to SDCL 26-8-63, on grounds that new evidence had been discovered which could affect the prior termination decree. The affidavit which accompanied the petition alleged that no more could be done for D.H. at Simmons House and that Social Services was having difficulty placing D.H. for adoption. The petition for new hearing questioned whether, given these facts, termination of G.H.'s parental rights is in D.H.'s best interest. The trial court denied the petition; it found that the supporting affidavit did not sufficiently establish that new evidence had been discovered and that SDCL 26-8-61 precluded its jurisdiction. The trial court concluded that based on SDCL 26-8-61, which prohibits modification of termination decrees, it lacked jurisdiction to grant a new hearing in a termination case.

On this appeal G.H. complains first that the evidence was not sufficient to support termination of her parental rights. SDCL 26-8-35 provides in part that "when a child has been adjudicated to be neglected or dependent, the court shall enter a decree of disposition." The Code also provides that the requisite dispositional decree may terminate "all parental rights of one or both parents in the child when it finds that the best interest and welfare of the child so require." SDCL 26-8-36. The trial court must find by "clear and convincing evidence that termination of parental rights is in the best interests of the child." Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Matter of S.L., 349 N.W.2d 428 (S.D.1984); People in Interest of S.H., 323 N.W.2d 851 (S.D.1982). The trial court specifically concluded as a matter of law that it found by clear and convincing evidence that termination of G.H.'s parental rights is the least restrictive alternative available to serve the child's best interest. We note first that the trial court's rulings and decisions are presumed to be correct and this court will not seek reasons to reverse. Lytle v. Morgan, 270 N.W.2d 359 (S.D.1978). Second, if the required findings are made, this court may not reverse. Cf. Knodel v. Bd. of Cty. Comm. etc., 269 N.W.2d 386 (S.D.1978). Finally, we point out that if the record contains evidence to support the trial court's decision, this court will not disturb a trial court's finding of fact. McLaughlin Electrical Supply v. American Empire Ins., 269 N.W.2d 766 (S.D.1978).

This court's standard of review is set out in two statutes.

First, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." SDCL 15-6-52(a). Second, "[i]f the court finds that the allegations of the petition are supported ... by clear and convincing evidence in cases concerning neglected and dependent children, the court shall sustain the petition[.]" SDCL 26-8-22.10.

S.L., 349 N.W.2d at 432. This court does not decide factual issues de novo; the question before this court is not whether it would have made the same findings the trial court did, but whether the entire evidence leaves a definite and firm conviction that a mistake has been committed. S.L., supra, citing In Re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970); Matter of S.H., 337 N.W.2d 179 (S.D.1983); Matter of R.H., 300 N.W.2d 271 (S.D.1981). The trial court in this case viewed the evidence and listened to the testimony of the witnesses. It determined that the evidence clearly and convincingly showed that the child is dependent and neglected and terminated the mother's parental rights. We cannot say that the findings were clearly erroneous.

The record contains extensive testimony by the social workers assigned to work with D.H. and G.H. Sue Wein (Wein) testified that she was assigned to the case in July of 1981 and formulated a case plan which required personal contact with G.H. at least twice a month. Her goal was to offer support services ^* and any other assistance needed to make G.H.'s home a more fit place for D.H. to grow up. Wein also testified that parenting classes were...