In re D.F.

• Decision Date: 24 January 2007
• Docket Number: No. 23990.,23990.
• Parties: In the Interest of D.F., Alleged Abused or Neglected Child and concerning L.A., f/k/a L.D., Respondent.
• Court: South Dakota Supreme Court

727 N.W.2d 481

2007 SD 14

In the Interest of D.F., Alleged Abused or Neglected Child and concerning L.A., f/k/a L.D., Respondent.

No. 23990.

Supreme Court of South Dakota.

Considered on Briefs October 2, 2006.

Decided January 24, 2007.

Drew Duncan of Zimmer, Duncan & Cole, LLP, Parker, South Dakota, Attorneys for appellant Mother, L.A.

Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Division of Legal Services Department of Social Services, Pierre, South Dakota, Attorneys for appellee State.

ZINTER, Justice.

[¶ 1.] Mother's and Father's parental rights were terminated in an abuse and neglect proceeding. Mother was served by publication and failed to appear at any of the hearings.¹ She subsequently moved to reopen, challenging the State's due diligence in attempting to locate her before the service by publication. She also challenged the circuit court's refusal to reopen to redetermine her parental fitness. The circuit court denied relief. We affirm.

[¶ 2.] D.F. was born on October 22, 1994, in Illinois. When D.F. was less than a year old, Mother brought him and his sister (born August 5, 1995) to visit Father who was staying with his mother (Grandmother) in Arkansas. After a violent marital disagreement and Mother's arrest on an Arkansas traffic offense, Mother left Arkansas, abandoning D.F. and his sister with Father and Grandmother. Mother returned to her parents' home in Illinois.

[¶ 3.] Father was subsequently granted a divorce from Mother in Arkansas. At all relevant times thereafter, D.F. resided with Father, and D.F.'s sister resided with Father or Grandmother. All four moved to South Dakota in 1999, but Grandmother and Father maintained separate households. It appears that D.F. resided with Father and his sister resided with Grandmother.

[¶ 4.] Mother moved often after leaving Arkansas in 1995. She moved from her parents' home in Illinois to Las Vegas, then back to Illinois. She next moved to South Carolina and then to Ohio. Mother then stayed with her parents in Florida, before moving to Arizona. Then, she moved to Las Vegas where she remarried. Thereafter, Mother and her new husband moved to Florida. Mother did not maintain contact with the children or their custodians prior to this abuse and neglect proceeding, which was commenced in 2002.

[¶ 5.] The Department of Social Services (DSS) brought this action based upon an allegation that D.F. was abused and neglected by Father and Father's new wife. Temporary custody of D.F. was placed with Grandmother. Father was personally served and appeared at multiple hearings. Mother could not be located and was served by publication pursuant to SDCL 26-7A-48.² She did not appear at any of the proceedings. The circuit court terminated Father's and Mother's parental rights on November 7, 2002. That decision was not appealed.

[¶ 6.] On May 21, 2004, Mother moved to reopen the termination proceedings under SDCL 15-6-60(b)(6). The circuit court initially granted the motion. However, the State moved to quash the order allowing the reopening. The State contended that SDCL 26-7A-108 prohibited modification of final judgments terminating parental rights in abuse and neglect cases. The State's motion to quash was granted. Mother appeals, raising two issues.

1. Whether the State failed to use due diligence in locating Mother prior to service by publication in violation of Mother's right to due process.

2. Whether the circuit court erred in denying the motion to reopen under SDCL 26-7A-108.

Due Diligence

[¶ 7.] Mother argues that due process precluded the termination of her parental rights without a showing that the State used due diligence in attempting to locate her before service by publication. Because "the validity of service of process is a question of law, `we review the trial court's decision de novo, with no deference given to the trial court's legal conclusions.'" Lekanidis v. Bendetti, 2000 SD 86, ¶ 15, 613 N.W.2d 542, 545 (quoting Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 6, 592 N.W.2d 596, 598 (citations omitted)). "`We [also] review constitutional questions de novo.'" Medearis v. Whiting, 2005 SD 42, ¶ 14, 695 N.W.2d 226, 230 (quoting State v. Aesoph, 2002 SD 71, ¶ 43, 647 N.W.2d 743, 757).

[¶ 8.] "At the outset, it is to be noted that the use of constructive [service] for in personam actions is not a per se violation of due process under the Fourteenth Amendment." United Nat. Bank v. Searles, 331 N.W.2d 288, 291 (S.D.1983) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). "Dispositive of the due process issue is a determination of whether or not the service of process was reasonably calculated under the circumstances to apprise interested parties of the pendency of an action against them." Id. at 290 (citing Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873). Therefore, "[s]ervice by publication is permitted upon a party who is out of state and who `on inquiry cannot be found.'" People in Interest of E.D.J., 499 N.W.2d 130, 132 (S.D. 1993) (quoting SDCL 26-7A-48; In re J.W.W., 334 N.W.2d 513, 516 (S.D.1983)).

[¶ 9.] However, "before service by publication . . . may be ordered, the party instituting the litigation must exhaust all reasonable means available in an effort to locate interested parties to the litigation." Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D.1992) (citing Ryken v. State, 305 N.W.2d 393 (S.D.1981)). See also, In Interest of E.D.J., 499 N.W.2d at 132 (stating that the record supported a finding that the state's efforts to locate parents were "due and diligent" in a parental rights termination proceeding). Ultimately, "[t]he test of the sufficiency of the showing of due diligence is not whether all possible or conceivable means of discovery are used, but rather it must be shown that all reasonable means have been exhausted in an effort to locate interested parties." Ryken, 305 N.W.2d at 395 (citations omitted). Therefore:

A diligent search is measured not by the quantity of the search but the quality of the search. In determining whether a search is diligent, we look at the attempts made to locate the missing person or entity to see if attempts are made through channels expected to render the missing identity. While a reasonable search does not require the use of all possible or conceivable means of discovery, it is an inquiry that a reasonable person would make, and it must extend to places where information is likely to be obtained and to persons who, in the ordinary course of events, would be likely to have information of the person or entity sought.

In re S.P., 672 N.W.2d 842, 846 (Iowa 2003). "Whether a party has exhausted all reasonable means available for locating interested parties must be determined by the circumstances of each particular case." Ryken, 305 N.W.2d at 395 (citation omitted).

[¶ 10.] Although Mother contends that all reasonable means were not utilized, she relies upon clearly distinguishable authority. For example, in In Interest of A. W., 224 Neb. 764, 401 N.W.2d 477 (1987), termination was sought following a mother's abandonment of her son who had been left with his grandmother. Although the mother was served by publication, no near relatives, not even the grandmother who had custody, were questioned about the mother's location. Furthermore, the grandmother and another social services worker knew the mother's location, yet they were not specifically questioned. Similarly, in In re S.P., a father's parental rights were terminated without personal service, but:

the search [for father] did not include the obvious inquiries a reasonable person would make under the circumstances. For example, the investigator did not talk to the children or their caretaker . . . or to the children's mother. These are the people who, in the ordinary course of events, would likely have information about [father].

672 N.W.2d at 848. Because no efforts were made to inquire of the available relatives, the children, or their caretakers, those courts understandably concluded that due diligence was not exercised.

[¶ 11.] In contrast, Nathan Schlimgen, D.F.'s Department of Social Services worker, testified that he made the reasonable inquiries that were not made in In Interest of A.W. or In re S.P. Specifically, Schlimgen unsuccessfully inquired of Father concerning Mother's location, Mother's parents' location, or collateral relatives who might be able to contact Mother. He testified:

Q. Did you know where she was?

A. No, I did not.

Q. Did you inquire of [Father] of her whereabouts?

A. Yes.

Q. Do you recall if he was able to give you an answer?

A. I believe his answer was that he did not know where she was.

Q. Was he able to provide information as to how to contact her parents who could get a hold of her?

A. No, I don't believe so.

Q. And, is it a fair statement to say that in a serious matter such as the termination of parental rights, you also ask for collateral relatives who might be able to get a hold of a parent whose parental rights may be terminated?

A. Yes.

Q. And [Father] was unable to give you that?

A. Correct.

Schlimgen further testified that he checked with the state child support enforcement agency to try to locate Mother, but that search turned up nothing.³

[¶ 12.] "[A] court must be satisfied, before it exercises its discretion to order service by publication, that a plaintiff has used due diligence in the attempt to locate and personally serve a defendant." Spade v. Branum, 2002 SD 43, ¶ 11, 643 N.W.2d 765, 769. In performing that duty, the circuit court also made a personal inquiry of Father and Grandmother. The circuit court asked Father and Grandmother, the separate custodians of Mother's young children, the following questions:

Court: And, the situation then with [Mother], you still don't know her whereabouts?

Father: No, I don't.

Court: The mother; you wouldn't know how to try...