In re A.A.B.

• Decision Date: 09 March 2016
• Docket Number: 27490.,Nos. 27488,s. 27488
• Citation: 877 N.W.2d 355
• Parties: In the Matter of the ADOPTION OF A.A.B., minor child. In the Matter of the Adoption of B.A.B., minor child.
• Court: South Dakota Supreme Court

877 N.W.2d 355

In the Matter of the ADOPTION OF A.A.B., minor child. In the Matter of the Adoption of B.A.B., minor child.

Nos. 27488

27490.

Supreme Court of South Dakota.

Argued Feb. 17, 2016.

Decided March 9, 2016.

Kathryn L. Morrison of Bangs, McCullen, Butler, Foye & Simmons, LLP, Pierre, South Dakota, Attorneys for appellees Troy & Twila Hansen.

Joseph N. Thronson, Special Assistant Attorney General Department of Social Services Pierre, South Dakota, Attorneys for appellant State of South Dakota.

SEVERSON, Justice.

[¶ 1.] Troy and Twila Hansen, Petitioners, filed petitions to adopt two minor children over which the South Dakota Department of Social Services (referred to throughout as DSS or Department) has custody. DSS moved to dismiss the petitions for lack of standing under the adoption statutes. The circuit court denied DSS's motions to dismiss the petitions, and we granted DSS's request for intermediate appeal.

Background

[¶ 2.] DSS received custody of A.A.B., born in September 2012, and B.A.B., born in October 2013, after a circuit court terminated parent's parental rights through abuse and neglect proceedings.¹ Petitioners are foster parents who have been caring for A.A.B. since January 2013. Since birth, B.A.B. has been in foster care with another family, the Homelvigs. DSS initially approached Petitioners to place B.A.B. in their home. However, Petitioners were unable to take B.A.B. at that time. In December 2013, just a few months after DSS placed B.A.B. with the Homelvigs, Petitioners told DSS that they could care for B.A.B. DSS determined that it wanted to place both siblings in the same home, but declined at that time to move B.A.B. Nearly a year later, in October 2014, DSS informed Petitioners that it wanted to place A.A.B. in the home of the Homelvigs with B.A.B.

[¶ 3.] In response, Petitioners filed petitions for adoption of A.A.B. and B.A.B. DSS moved to dismiss the petitions. It alleged that, without DSS's consent, Petitioners lacked standing to petition to adopt children that are in the custody of DSS. The circuit court disagreed and ruled that SDCL chapter 25–6 allows Petitioners to adopt children within the custody of DSS, without approval of DSS. Because the case presented a purely legal issue, the court did not hear testimony or make factual determinations. In this intermediate appeal, DSS raises a matter of first impression: Whether Petitioners may file a petition to adopt children in the custody of the Department of Social Services without its consent.

Analysis

[¶ 4.] "[T]he rights and procedures for adoption are governed by statute." In re Adoption of D.M. , 2006 S.D. 15, ¶ 10, 710 N.W.2d 441, 446. Interpretation of those statutes is a question of law reviewable de novo. Id. ¶ 3, 710 N.W.2d at 443. Petitioners contend they have standing under SDCL 25–6–2, which provides,

Any minor child may be adopted by any adult person. However, the person adopting the child must be at least ten years older than the person adopted.

In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating parental rights, the court shall give due consideration to the interests of the parties to the proceedings, but shall give paramount consideration to the best interests of the child.

DSS contends that SDCL 25–6–2is inapplicable to this case because these children were adjudicated abused and neglected under SDCL chapter 26–8A and Petitioners are not interested parties in the abuse and neglect proceedings.

[¶ 5.] SDCL 26–8A–29.1provides in part that: "No intervention may be allowed in a proceeding involving an apparent, alleged, or adjudicated abused or neglected child, including an adoption or guardianship proceeding for a child placed in the custody of the Department of Social Services pursuant to § 26–8A–27[.]" (Emphasis added.) In addition, a court that has terminated parental rights has continuing jurisdiction of an abused and neglected child for purposes of reviewing the status of the child until an adoption is complete. See SDCL 26–8A–29. However, Petitioners have not intervened into an abuse and neglect or adoption proceeding involving these children. They filed independent petitions to adopt both children under SDCL 25–6–2.² We disagree with DSS's position that there is no discernible difference between intervention and a petition for adoption.³ The ongoing jurisdiction of the court that terminated parental rights is not exclusive. SDCL 26–8A–29explicitly provides for adoption proceedings outside the abuse and neglect proceedings of SDCL chapter 26–8A. It provides: "The continuing jurisdiction of the court according to this section does not prevent the acquisition of jurisdiction of the child by another court for adoption proceedings according to law." Id. Further, SDCL 26–6–21provides:

Whenever a child welfare agency [which includes DSS by definition in SDCL 26–6–1] licensed to place children for adoption shall have been given the permanent care, custody, and guardianship of any child and the rights of the parent or parents of such child shall have been terminated by order of a court of competent jurisdiction, the child welfare agency may consent to the adoption of such child pursuant to the statutes regulating adoption proceedings.

(Emphasis added.) Thus, SDCL chapter 25–6 applies to the adoption of children in DSS's custody due to termination of parental rights pursuant to abuse and neglect proceedings.⁴

[¶ 6.] Next, DSS asserts that other statutes limit Petitioners' ability to adopt a child under SDCL 25–6–2. See Huber v. Dep't of Pub. Safety, 2006 S.D. 96, ¶ 14, 724 N.W.2d 175, 179(quoting Wildeboer v. S.D. Junior Chamber of Commerce, 1997 S.D. 33, ¶ 24, 561 N.W.2d 666, 670) ("[G]eneral statutes must yield to specific statutes if they are not consistent."). According to DSS, DSS must grant its consent before Petitioners can petition to adopt a child in DSS's custody. First, DSS directs us to SDCL 26–4–9.1, which provides: "The Department of Social Services shall establish a program of adoption services. The secretary of social services may adopt reasonable and necessary rules for the operation of the program of adoption services including ... [a]doptive applications and placements [.]" Pursuant to SDCL 26–4–9.1, DSS promulgated ARSD 67:14:32:17, which states:

An applicant shall not file a petition to adopt a child placed with them by the department without prior approval of the department. When the department has given legal approval to an applicant to begin legal proceedings for the completion of adoption, the department shall send legal information about the child to the applicant's attorney.

According to DSS, this regulation allows it to withhold its consent. However, "an administrative regulation cannot adopt requirements that 'expand upon the statute that it purports to implement.' " In re Luff Expl., 2015 S.D. 27, ¶ 17, 864 N.W.2d 4, 9(quoting State Div. of Human Rights, ex rel. Ewing v. Prudential Ins. Co. of Am., 273 N.W.2d 111, 114 (S.D.1978)). "[R]ules adopted in contravention of statutes are invalid." Id. (quoting Paul Nelson Farm v. S.D. Dep't of Revenue, 2014 S.D. 31, ¶ 24, 847 N.W.2d 550, 558). The rule promulgated by DSS contravenes SDCL 26–4–9.1. Agreeing with DSS's contention that it "alone [has] the authority to determine permanent placement of the children" would divest the circuit court of the jurisdiction entrusted to it under SDCL 25–6–6. See SDCL 25–6–6("The circuit court is vested with the jurisdiction to hear, try, and determine all matters relative to the adoption of children, subject to the right of appeal in the same form and manner as appeals are taken from the circuit court."). No statute allows DSS to prevent adoption filings in the circuit court. Even DSS's ability to promulgate rules on and select adoptive placement is subject to judicial oversight if certain conditions under SDCL 26–8A–29.1are met.⁵

[¶ 7.] The adoption statutes within SDCL chapter 25–6 also support that Petitioners can petition to adopt children within the custody of DSS. SDCL 25–6–11requires a petitioner to notify DSS of a petition to adopt a child in its custody and requires DSS to make a recommendation to the court as to the desirability of the adoption. In addition, both SDCL 25–6–11and 25–6–12allow for DSS to appear in adoption proceedings involving children in its custody. SDCL 25–6–11allows DSS to "appear in any procedure the same as the party in interest[.]"

[¶ 8.] We agree with Petitioners and the circuit court that if DSS has the ability to control who may petition for adoption with the circuit court, SDCL 25–6–11would be rendered meaningless. SDCL 25–6–11provides:

Upon the filing of a petition for the adoption of a minor child the petitioner therein shall notify the Department of Social Services, by mailing to the department a copy of the petition. The petitioner also shall notify the department of the date fixed for hearing the petition, or mail to the department a copy of the order fixing the date of the hearing. The department shall make a recommendation as to the desirability of the adoption. The department may appear in any procedure the same as the party in interest, and may request a postponement of hearing on the petition in the event more time is needed for its investigation. This section only applies to a child in the custody of the department.

(Emphasis added.) Providing DSS notice when a petition is filed to adopt a child within its custody is consistent with the right of any person to adopt any minor child. See SDCL 25–6–2. If DSS had the ability to prevent the filing of petitions to adopt, then notice to the Department would be unnecessary. And DSS would not need to request a postponement on the hearing to complete an investigation because it would have had the time needed to investigate the case before approving the petition for filing. Likewise, if DSS approval is a prerequisite to filing a petition with the circuit court, a recommendation by...