A. I., Matter of, 12774

• Citation: 289 N.W.2d 247
• Decision Date: 27 February 1980
• Docket Number: No. 12774,12774
• Parties: In the Matter of A. I., Alleged Dependent Child.
• Court: Supreme Court of South Dakota

Page 247

289 N.W.2d 247

In the Matter of A. I., Alleged Dependent Child.

No. 12774.

Supreme Court of South Dakota.

Argued Nov. 14, 1979.

Decided Feb. 27, 1980.

Janice C. Godtland, Asst. Atty. Gen., Pierre, for respondent State of South Dakota; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Mary Sue Donohue of Donohue & Donohue, Sioux Falls, for child.

John C. Quaintance, Sioux Falls, for appellant father.

FOSHEIM, Justice.

This is an appeal from an adjudication of dependency and neglect and a disposition terminating appellant-father's parental rights. We affirm.

The subject child, A.I., was born to appellant and K.K. in mid-1978. The parents lived together out of wedlock. The evidence reveals that on October 5, 1978, K.K. brought A.I. to a hospital for treatment of a respiratory problem. The examining pediatrician, however, noticed bruises located about the face, head, neck, chest, back, buttock, and left leg. X-rays revealed a broken arm. The buttock also exhibited an excoriation of the skin due to the chemical breakdown of urine. The physician's diagnosis was pneumonia and "battered child syndrome."

Adjudicatory and dispositional hearings were held in late November and early December of 1978. Testimony established that K.K. had offered various and conflicting explanations for A.I.'s condition. A Sioux Falls police detective quoted K.K. as saying the child fell out of her crib and bruised her head and also bumped her head on a stroller tray. She also claimed that she dropped the baby on the floor in an attempt to protect herself from an assault by another person. She reiterated the crib and assault incidents to an investigating social worker, but this time stated that A.I. actually fell out of the stroller onto the street. K.K. and appellant subsequently reverted to the original stroller tray version and further claimed that some of the child's symptoms were an allergic reaction to their pet cat. K.K. gave the crib explanation to examining medical personnel, but also expressed her belief that an acquaintance was responsible for the bruises and fractured arm. At the same time, according to the detective's testimony, she admitted throwing the child into the crib on two occasions and once striking the baby on the arm with the side of her hand. An acquaintance testified that, on one occasion, she witnessed K.K. strike the infant and that, as a general matter, K.K. treated the child very roughly. Various persons testified that the bruises on A.I.'s body were readily visible to the casual observer.

Appellant contends the trial court erred in finding that he did not provide proper parental care and, while present in the home and acting as a custodian of A.I., permitted her to suffer mistreatment and abuse. It is true that no evidence was introduced regarding direct acts of appellant which contributed to A.I.'s injuries. The obvious extent and appalling nature of the child's injuries, however, indicate that appellant knew or should have known of her condition. This fact, coupled with his failure to seek medical attention for the child's injuries, leads us to conclude that the findings of the trial court were not clearly erroneous. SDCL 15-6-52(a); Matter of B.E., 287 N.W.2d 91 (S.D.1979); In the Interest of D.K., 245 N.W.2d 644 (S.D.1976).

We cannot agree with appellant's further contention that certain findings of fact and conclusions of law entered for purposes of disposition were erroneous and that the trial court erred in not employing the least restrictive alternative. The court found that appellant was immature and exhibited a lack of parental care and concern for A.I. Testimony at the dispositional hearing established that appellant did not participate during visits (from the Visiting Nurses Association) designed to aid the parents in developing adequate parenting skills. On at least one occasion, he preferred to work on model airplanes. His lack of interest was further evidenced by his failure to appear at the dispositional hearing. Appellant claims that the court should not have noted this fact because the reason for his absence related to sleeping patterns necessitated by night employment. However, appellant's refusal to briefly modify his sleeping schedule in order to appear at and participate in a proceeding vital to his future relationship with his own child is significant. This is particularly true where the social worker testified that appellant's attitude toward counseling sessions and court proceedings was one of apathy and indifference. Further, during visits between the parents and child after the child's removal from their custody, appellant displayed little, if any, interest in the child's well-being or in developing his own parenting skills. Rather, his participation during these sessions was largely limited to discussion of subjects unrelated to the child or the parent-child relationship.

Appellant also claims that the trial court erred in finding he knew, or should have known, of the extensive bruising suffered by the child and that he failed to protect the infant. The record, however, clearly establishes that the trauma suffered by this child was apparent to casual observers, including neighbors.

Appellant also contends that the trial court did not employ the least restrictive alternative available and that his parental rights were terminated primarily as a result of the acts and omissions of the child's mother. We recognize the fundamental character of parental rights; however, the best interests of the child must always prevail. Matter of R.Z.F., 284 N.W.2d 879 (S.D.1979); Matter of N.J.W., 273 N.W.2d 134 (S.D.1978); In the Interest of D.K., supra. The Visiting Nurses Association rendered aid on a daily basis for two weeks following the birth of A.I. These visits, the purpose of which was to provide instruction on basic parenting skills such as proper feeding, bathing, parent-child interaction and symptom recognition, continued (albeit less frequently) until sometime prior to the child's hospitalization. Between the time of A.I.'s release from the hospital and the date of the dispositional hearing, weekly visits between the parents and child were arranged. As noted earlier, appellant did not participate in the instructional sessions provided by the Visiting Nurses Association and his attitude toward the child during the latter visitations was apathetic. The testimony of one of the visiting nurses, as well as that of the social worker who arranged the weekly parent-child meetings, firmly established that such sessions did not significantly improve either the level of concern for the child or the quality of appellant's relationship with the infant. We have held that where efforts to aid parents are unavailing,...