D. T., Matter of

• Decision Date: 12 December 1975
• Docket Number: No. 11459,11459
• Parties: In the Matter of the Neglect and Dependency of D. T.
• Court: South Dakota Supreme Court

Page 166

237 N.W.2d 166

89 S.D. 590

In the Matter of the Neglect and Dependency of D. T.

No. 11459.

Supreme Court of South Dakota.

Argued Sept. 10, 1975.

Decided Dec. 12, 1975.

Fred F. Hendrickson, Marvin D. Truhe, Rapid City, for appellant, Mother of D. T.

William J. Janklow, Atty. Gen., Peter H. Lieberman, Asst. Atty. Gen., Pierre, for respondent, State of South Dakota.

DUNN, Chief Justice.

On September 22, 1970, an amended petition* was filed alleging D. T. to be a dependent and neglected child because of conduct of the parents during a period from September 1969 to January 1970. After trial, the district county court on January 20, 1971, rights of the appellant and the parental rights of the appellant and the father in the child and placed D. T. with the Department of Public Welfare for the purpose of adoption. An appeal was taken by appellant (mother) from this decision for a trial de novo in circuit court. The father, M. T., did not appeal from this judgment. An adjudicatory trial de novo was held on May 18, and 19, 1972, in circuit court following which the court entered an adjudicatory order declaring that D. T. was a dependent or neglected child. On August 7, 1972, a dispositional hearing was held, and on January 28, 1974, the court entered findings and judgment terminating the parental rights of the appellant. From this adjudicatory order and judgment appellant has appealed to this court on the grounds that (1) the Phrase, 'neglected or dependent child,' as defined in SDCL 26--8--6, is unconstitutionally vague and indefinite; (2) the trial court erred in allowing relevant evidence of alleged abuse which occurred subsequent to the filing of the petition in this proceeding; (3) the trial court erred in admitting recorded testimony of state witnesses taken at the trial in district county court without a proper showing for such testimony under SDCL 15--6--26(d); and (4) the trial court's finding that the child was dependent and neglected was not supported by the evidence. We affirm both the adjudicatory order and judgment.

The evidence adduced from state witnesses actually present and testifying at the trial de novo in circuit court was to the effect that (1) the child slept on a mattress on the floor with a couple of blankets but no sheets, and the mattress was not clean; (2) two puppies, which were not housebroken, slept in the room with her, and they left messes on the floor which were not cleaned up promptly leaving a strong and unpleasant odor in the room; (3) appellant punished D. T. by striking her repeatedly with a belt and at times by striking her across the face causing a cut lip and a black eye; (4) the child was dirty and smelly from failure to bathe, change diapers and clothing; (5) on various occasions appellant would take the child with her to her job as a dogcatcher by day and leave her in a dirty compartment of the truck while appellant performed her work. Appellant would also take D. T. to her nighttime job as a barmaid, and the child was observed sleeping in a booth of the bar and also on one occasion in a parked car dressed only in pajamas and a jacket on a chilly night; (6) the child was hungry and showed bruises on her shoulders and an ulcerated diaper rash when delivered to the baby-sitter; and (7) on September 5, 1970, the Rapid City police were called to the residence of appellant and found that D. T. had been bruised quite badly on her back and bottom legs. Photographs of the child's body were taken and later admitted in evidence. The appellant admitted that she had disciplined the child by beating her repeatedly with a belt. It was on this occasion that the child was turned over to welfare pending a hearing and adjudication of the matter. This testimony was corroborated by recorded testimony of other witnesses taken at the trial in district county court which will be dealt with later in this opinion.

Appellant testified that she took the child in contravention of a court order for a period of two months beginning in May 1971, and that the child was very happy with her and that she loved her. She admitted to being an irresponsible parent in the past, but with her present stable marriage contended that she could maintain a secure future for the child. Documentary evidence was introduced to show that appellant took D. T. for regular medical treatment. Various witnesses testified that appellant was a good and loving mother, a good housekeeper and that she had matured after her divorce and remarriage to Daniel Boyd. Further, a comprehensive home study of appellant was made in her new home by the St. Louis, Missouri, Welfare Department. It found that appellant's home was clean and adequate, that appellant and her new husband were desirous of accepting the responsibility of raising D. T., and recommended that the child be returned to the natural mother under the Welfare Department's supervision.

On the basis of these facts, the trial court found that: (1) the appellant had subjected D. T. to mistreatment and abuse by battering her, (2) it was probable that D. T. would be battered in the future if she were returned to the appellant, and concluded that: (1) D. T. is a dependent and neglected child within the meaning of SDCL 26--8--6, and (2) the best interests of D. T. and the State of South Dakota would be served by terminating the parental rights of appellant, and by granting the South Dakota Department of Social Services, Division of Social Welfare, adoptive rights in the child.

The first assignment of error deals with the unconstitutionality of SDCL 26--8--6 as being vague and indefinite. The statute reads:

'Neglected or dependent child defined.--In this chapter unless the context otherwise plainly requires 'neglected or dependent child' means a child: whose parent, guardian, or custodian has abandoned him or has Subjected him to mistreatment or abuse; who Lacks proper parental care through the actions or omissions of the parent, guardian, or custodian; Whose environment is injurious to his welfare; whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for his health, guidance, or well-being; or who is homeless, without proper care, or not domiciled with his parent, guardian, or custodian through no fault of his parent, guardian or custodian. Provided however, notwithstanding any other provision of this chapter, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to have been neglected within the purview of this chapter.' (emphasis supplied)

Enactments of the legislature should be upheld unless they are clearly and unmistakably unconstitutional. City of Rapid City v. Rensch, 1958, 77 S.D. 242, 90 N.W.2d 380; Smith v. Peterson, 131 Cal.App.2d 241, 280 P.2d 522, 49 A.L.R.2d 1194.

The real question comes down to whether the terms, 'subjected him to mistreatment or abuse,' 'lacks proper parental care,' or 'whose environment is injurious to his welfare,' deal with practices "so vague that men of common intelligence must guess as to (their) meaning." State v. Dove, 1955, 75 S.D. 460, 67 N.W.2d 917. Certainly it is not necessary to cover all possible parental mistreatment in the statute. As stated in In Re Neglected Child, 130 Vt. 525, 296 A.2d 250:

'In the instance of neglect the many diverse circumstances which give rise to a finding of neglect must be considered when the standards embodied in (the statute) are viewed in light of the due process clause. Once this is done, it becomes apparent the standards embodied within (the statute) are detailed enough to govern the achievement of the purposes the act seeks to fulfill * * *.' 296 A.2d at 254.

It is concluded that the language of SDCL 26--8--6 does convey sufficiently definite warning as to proscribed conduct when measured by common understanding and practice. Due process requires no more. United States v. Petrillo, 332 U.S. 1,...