Guardianship of Sedelmeier, Matter of, s. 17666

• Decision Date: 26 May 1992
• Docket Number: 17690,Nos. 17666,s. 17666
• Citation: 491 N.W.2d 86
• Parties: In the Matter of the GUARDIANSHIP of Elvis Aaron SEDELMEIER, a Minor. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 86

491 N.W.2d 86

In the Matter of the GUARDIANSHIP of Elvis Aaron SEDELMEIER a Minor.

Nos. 17666, 17690.

Supreme Court of South Dakota.

Considered on Briefs May 26, 1992.

Decided Oct. 21, 1992.

Stuart Tiede, Woods, Fuller, Shultz & Smith, Sioux Falls, for appellants Robert and Barbara Cumber.

Bill Froke, East River Legal Services, Sioux Falls, for appellees Kristine and Barry Bendt.

Patricia C. Riepel, Sioux Falls, for appellee Elvis Aaron Sedelmeier.

HECK, Circuit Judge.

Although this action was started by the filing of a petition for guardianship, it is, in actuality, a proceeding to determine whether a parent or unrelated person is entitled to primary custody of a young boy.

Elvis Aaron Sedelmeier (Aaron) was born February 8, 1981, to Kris and Randy Sedelmeier. When Aaron was a baby, his parents resided near Bob and Barb Cumber (Cumbers). The Cumbers baby-sat for Aaron. The Sedelmeiers marriage ended in divorce in 1983. Kris was awarded custody of Aaron.

About that time the Cumbers began to have a principal role in Aaron's care. Kris was always a part of Aaron's life and Aaron knew her as his mother. When Aaron was four years of age, the Cumbers asked to adopt Aaron. After some thought, Kris refused the request.

In 1985 Kris married Barry Bendt. In 1987 through 1989 Kris had severe medical problems. Three pregnancies resulted in the loss of all three babies during pregnancy. In early 1990 she was hospitalized for depression.

From 1983 to 1990, the Cumbers provided Aaron's primary care. Kris received counseling toward the end of this period and she decided that she would take a more active role in the rearing of Aaron. In August 1990, Kris took Aaron from the Cumbers to live with her. Shortly after returning to live with his mother, Aaron began to develop psychological problems. Kris and the Cumbers disagreed over custody of Aaron. Aaron was hospitalized for thirty days during which time a professional team of caretakers decided that Aaron should live with the Bendts with visitation for the Cumbers. Aaron overcame his major psychological problems. The Bendts moved out of state. Kris has denied visitation to the Cumbers. Aaron has lived with Kris and Barry continuously from August 1990 to the time of this appeal.

In legal contests between a parent and a non-parent for the custody of a child the threshold question is: Is the parent unfit to have custody of the child? The Cumbers attempted to establish that it would be in the best interests of Aaron to be in their custody. Without unfitness being established, there is no necessity to look to the best interest of the child.

The law presumes that the best interests and welfare of a minor will be best served by awarding its custody to the parent and the burden is upon those who claim otherwise to overcome such presumption by clear and satisfactory proof of abandonment or forfeiture or a legal surrender or unfitness of the parent to have custody. (emphasis supplied).

Sweeney v. Joneson, 75 S.D. 213, 216, 63 N.W.2d 249, 251 (1954).

In Blow v. Lottman, 75 S.D. 127, 129-131, 59 N.W.2d 825, 826-27 (1953), this Court said:

By nature and under the common law and by virtue of statutory provisions ..., a parent has a preferred legal right to custody of his or her own children. But under the common law and modern statutes as well, ... the state through the courts has a right under proper circumstances to terminate the parental right and deprive the parent of custody. To find the proper delicate balance between this right of the parent and the right of the state is the problem confronting courts in such cases as this where the parent but not the other claimant has a legal right.

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[T]here is in our opinion this helpful guide well recognized in the body of the law: the parents' right to custody over their own children should never be disturbed except upon a clear showing against the parent of "gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child." ... The fitness of this mother is therefore a matter of first consideration and her disqualification as custodian is a prerequisite to an award of custody to any other person; ....

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We cannot take the position that this finding of "the best interest of said children" carries an inference of the mother's unfitness. It is a false view of the law and of the issues involved to treat the action from the start as an equal contest between two contenders for the child, and without the preliminary determination against the parent's right to custody, to weigh the balance against the parent on a mere finding that it is for the best interest of the child to be given to the other party. (emphasis supplied).

We stated in Langerman v. Langerman, 336 N.W.2d 669, 671 (S.D.1983), that: "Other extraordinary circumstances affecting the welfare of the children can also operate to defeat the custody preference of a parent" without giving guidance as to what were "extraordinary circumstances."

Termination of parental custody should be guided by a finding of one or more of the factors set forth in the Juvenile Code at SDCL 26-7A-6. There, the following factors are listed for consideration when parental custody or parental rights should be terminated: a child whose parent has abandoned him or has subjected him to mistreatment or abuse; a child who lacks proper parental care through the actions or omissions of the parent; a child whose environment is injurious to his welfare; a child whose parent fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for his health, guidance, or well-being; a child who is threatened with substantial harm; a child who has sustained...