In Interest of A.D., 15488

• Decision Date: 09 December 1987
• Docket Number: No. 15488,15488
• Citation: 416 N.W.2d 264
• Parties: In the Interest of A.D., Alleged Dependent and Neglected Child, and D.A.D., Father.
• Court: South Dakota Supreme Court

Page 264

416 N.W.2d 264

In the Interest of A.D., Alleged Dependent and Neglected

Child, and D.A.D., Father.

No. 15488.

Supreme Court of South Dakota.

Submitted on Briefs April 24, 1987.

Decided Dec. 9, 1987.

Tim D. Tucker of Morgan, Theeler, Cogley, Padrnos & Tucker, Mitchell, for appellant father.

Janice Godtland, Asst. Atty. Gen., Pierre, for appellee State; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

PROCEDURAL HISTORY

McKEEVER, Circuit Judge.

This is a dependency and neglect action in which the parental rights of D.A.D. (father) were terminated as to A.D. (his minor daughter). Father has appealed contending the trial court erred by:

1. Allowing the mother (D.R.D., mother of A.D. and girl friend of father) to participate through her counsel, by presenting evidence and cross-examining witnesses at the dispositional hearing after the mother voluntarily had her parental rights terminated, and by,

2. Terminating his parental rights since termination was not the least restrictive alternative in his case.

We reject father's contentions and affirm the dispositional order of the trial court.

FACTS

Father was born in 1960, one of five children. At the time of father's birth and during his early youth, the family had severe financial problems. When father was seven years of age, his father was sent to the state penitentiary after being convicted of grand larceny.

The financial conditions of the family stabilized somewhat when father's father was released from confinement and began a career as a truck driver. However, this profession took the father out of the home for the most part, and the mother was left with the responsibility of raising the family.

Father's parents were no doubt well-intended people who apparently brought neither a well-developed value system nor a meaningful degree of parenting skills to their marriage. During his first teenage year, father was arrested for breaking and entering and was placed on probation. This began a thirteen year history of minor and major criminal offenses including: joy-riding, trespassing, driving with an expired driver's license, criminal mischief, shoplifting, vandalism, arson, tampering with a motor vehicle, felony possession of a firearm, and aiding and abetting third-degree burglary. Father also has a long history of violating probation. In 1981 he left the state of Nebraska while on probation and was extradited from Colorado as a fugitive. Since his thirteenth birthday, his history also includes: placement in foster homes, a group home for adolescents, juvenile detention center, jail, and three prison confinements following convictions on felonies. He has never had long period of steady employment. His lifestyle has been a consistent pattern of moving in with women and being supported by them for those periods of time in which he has not been incarcerated.

In July 1984, father met mother. The couple lived together without the benefit of marriage for approximately seven months. On March 11, 1985, father was sentenced to two-and-a-half years in the South Dakota State Penitentiary for aiding and abetting in third-degree burglary. A.D. was born on September 17, 1985, while father was incarcerated. A.D. was conceived and born at a time when mother was legally married to a man other than father. Consequently, for a period of time there existed some uncertainty as to whom the actual father of A.D. was. After blood tests, it was fairly well determined that father was A.D.'s father. A.D.'s mother suffered many personal problems and voluntarily had her parental rights to A.D. terminated on May 5, 1986. On May 26, 1986, father admitted to a petition of dependency and neglect regarding A.D. A dispositional hearing was held on July 9, 1986, in connection with this petition.

While in the state penitentiary father contacted the Department of Social Services by phone on approximately eleven occasions expressing concern about A.D.'s mother and, in five or six of those calls, concern about A.D. Since A.D.'s birth, father has seen her on only two occasions when she was brought for visitations at the state penitentiary. During the contacts with Social Services and at the dispositional hearing, father expressed a desire to retain custody of his child upon his release from the state penitentiary. He indicated to Social Services that he would be willing to take any necessary parental training to acquire custody of A.D. No training was provided since father was incarcerated and the Department of Social Services had concluded they would recommend termination of his parental rights because this was in the best interest of A.D. After a dispositional hearing, the trial court filed an order terminating father's parental rights to A.D.

DECISION

I.

WHETHER ALLOWING MOTHER TO PARTICIPATE AS A PARTY IN FATHER'S DISPOSITIONAL HEARING UNDER THE FACT SITUATION OF THIS CASE WAS PREJUDICIAL ERROR.

According to the rules of civil procedure, in order to participate as a party in a legal action, it is necessary for a person or entity to have a legal interest to assert or protect in connection with the matter at bar. 59 Am.Jur.2d Parties Sec. 30 (1987). Due to the fact that mother's parental rights had been terminated prior to father's dispositional hearing, she was not a party because she had no legal rights to assert or protect at the dispositional hearing. Certainly, there is nothing that would have prevented her from participating as a witness had she appeared in person and had relevant testimony to offer concerning the welfare of the child or the capacity of father to take care of the child's needs. However, the query presented to us is whether the trial court erred by allowing mother to appear as a party through counsel at father's dispositional hearing.

In two recent cases, Justice Henderson, writing for the majority of this court, pointed out that the rules of civil procedure are to be used in all dependency and neglect adjudicatory hearings, but all other hearings under SDCL Chapter 26-8 (which would include a juvenile dispositional hearing) "... shall be conducted under such rules and regulations as the court may prescribe and designed to inform the court fully as to the exact status of the child and to ascertain its history and environment and the past and present physical, mental, and moral conditions of the child, and of its parents...." Matter of C.J.H., 371 N.W.2d 345, 350 (S.D.1985); People ex rel G.H., 390 N.W.2d 54 (1986); SDCL 26-8-30.

Consequently, the trial court did not exceed the latitude it has in dispositional hearings by allowing a non-party to appear through counsel if it did so in making its final determination as to disposition to be best informed about the welfare and conditions of the child or parent. In this case, mother's attorney appeared and was allowed to ask questions along with the state's attorney and the attorney for the child. The questions he posed were on the subject matters that were also covered by the other two attorneys or no doubt would have been covered had they not been asked by mother's attorney. The information elicited led directly to father's qualifications to be a parent. The criminal records and the family background studies used by mother's attorney to ask questions of father were certainly pertinent to the trial court's need to acquire information in order to make its final determination as to disposition.

However, because the state was represented by the state's attorney at the hearing, and the child was being represented by his own court-appointed attorney, there exists no apparent need on the face of the record for the trial court to allow mother's counsel to participate in this hearing. But even if there was no reason for mother's counsel to appear, the question is not "Was there error?" but "Was there prejudicial error?"

The basic rule is that the burden is on the appellant to show not only error but prejudicial error. Ryken v. Blumer, 307 N.W.2d 865 (S.D.1981); citing Lytle v. Morgan, 270 N.W.2d 359, 362 (S.D.1978). Prejudicial error "is that which in all probability must have produced some effect upon the final result and affected the rights of the party assigning it." K & E Land & Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983). See also Koupal & Anton, Inc. v. Wieczorek, 375 N.W.2d 639 (S.D.1985); Wang v. Wang, 393 N.W.2d 771 (S.D.1986); People in Interest of H.L., Jr., 386 N.W.2d 495 (S.D.1986); Matter of S.L., 349 N.W.2d 428 (S.D.1984); and Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958).

From the information stated above, the court has concluded that the father has not shown prejudicial error and a substantial likelihood that a different result would have been reached had mother's attorney not been allowed to participate in this litigation, even if the trial court had no basis to allow a non-party to participate through counsel. Therefore, it is the conclusion of this court that the father's argument that the trial court committed prejudicial error in allowing mother's attorney to participate as applied to this situation is without merit.

II.

WHETHER TERMINATION OF FATHER'S PARENTAL RIGHTS WAS THE LEAST RESTRICTIVE ALTERNATIVE BASED UPON ALL THE FACTS AND CIRCUMSTANCES OF THIS CASE.

The trial court, in its dispositional findings of fact, in part, found as follows:

# # 7 Reasonable efforts to provide appropriate services to the natural father would be unavailing both during and after his incarceration.

# 11 The natural father is unfit as a parent and it is contrary to the best interests and welfare of the child to relinquish her to the care of the natural father for the following reasons: ¹

# 15 The least restrictive alternative available to commensurate with the best interests and welfare of the child, and with due regard to the parental rights of the natural father, requires termination of all parental rights of the natural father, ... in respect to his child, A.D.

Father...