In re Guardianship for THM, 21635.

• Citation: 2002 SD 13,640 N.W.2d 68
• Decision Date: 30 January 2002
• Docket Number: No. 21635.,21635.
• Parties: In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP FOR T.H.M. and M.M.M., Minor Children.
• Court: Supreme Court of South Dakota

640 N.W.2d 68

2002 SD 13

In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP FOR T.H.M. and M.M.M., Minor Children.

No. 21635.

Supreme Court of South Dakota.

Argued October 3, 2001.

Decided January 30, 2002.

Rehearing Denied March 14, 2002.

Sandy J. Steffen of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, for appellee, children.

Stanley E. Whiting, Winner, for appellee, grandmother.

Neil Carsrud, Dakota Plains Legal Services, Mission, for appellant, mother.

GILBERTSON, Chief Justice.

[¶ 1.] Melanie Regalado (Grandmother) brought Guardianship proceedings to gain custody of T.H.M. and M.M.M., minor children of Ardith Perry (Mother), on grounds of abuse and neglect. The trial court determined the children to be abused and neglected, determined Mother to be unfit, terminated Mother's custodial rights, and granted custody to Grandmother. Mother appeals on grounds that the guardianship proceeding was not the proper means in which to transfer the custodial rights of a parent to a non-parent where abuse and neglect was the basis for the transfer and that Mother was denied her constitutional right to procedural due process. We affirm as to the creation of a guardianship, but reverse and remand as to the determination of abuse and neglect and transfer of custody.

FACTS AND PROCEDURE

[¶ 2.] T.H.M. and M.M.M. are the natural children of Michael M. and Mother. Michael was the eldest son of Grandmother. T.H.M. was born September 16, 1993. M.M.M. was born May 23, 1995.¹

[¶ 3.] Michael and Mother were married in February of 1994 and spent a significant amount of time between the years of 1993 and 1997 living in Grandmother's home, in both Colorado and California. After Michael committed suicide on December 21, 1997, Mother allowed the children to have extended visits with Grandmother in California. When this action began, the children had been staying with Grandmother for five months, with Mother's permission.

[¶ 4.] Grandmother commenced proceedings pursuant to the South Dakota Guardianship Act, SDCL chapter 29A-5, on November 29, 1999, alleging it would be in the best interests of the children if she were appointed guardian and conservator for T.H.M. and M.M.M. Mother filed a motion for summary judgment. Grandmother responded by moving to amend her application to allege the children were abused and neglected and Mother was unfit. Grandmother's motion was granted. Mother then filed a motion to dismiss on grounds that guardianship proceedings were not the proper means to involuntarily transfer custody from a parent to a non-parent. Mother asserted that the proceedings should be held pursuant to SDCL chapters 26-7A (Juvenile Court) and 26-8A (Protection of Children from Abuse or Neglect). Mother also filed a writ of habeas corpus, alleging her children were being illegally held from her custody. The trial court denied Mother's motion to dismiss, dismissed the writ of habeas corpus, and entered an order for interim custody in favor of Grandmother based upon the best interests of the child standard.

[¶ 5.] In response to Mother's objection to telephonic testimony of the out-of-state witnesses and an ex parte motion filed by the children's court appointed attorney, the trial court also entered an order authorizing travel expenses so that the attorney could travel to California to take depositions. Mother's own requests for a court appointed attorney and authorization for travel expenses were denied.² The children's attorney deposed nine witnesses in California on May 15, 2000. Mother was financially unable to attend or participate in these depositions. Copies of the depositions were provided to Mother on the first day of trial and, over the objections of Mother's attorney, were admitted into evidence the following day.

[¶ 6.] Mother's attorney also filed a motion to dismiss on grounds that SDCL 29A-5-203, the guardianship provision, unconstitutionally infringed upon Mother's Fourteenth Amendment due process rights to the "care, custody, and control" of her children. The trial court, however, refused to rule on the motion. The court concluded, as a matter of law, that Mother was unfit,³ that compelling reasons existed to separate T.H.M. and M.M.M. from their half-siblings, and that it was in the best interests of the children to transfer custody to Grandmother. Mother appeals, raising the following issues:

1. Whether a guardianship proceeding commenced by a non-parent and based upon allegations of abuse and neglect is a proper proceeding to terminate the custodial rights of a natural parent.

2. Whether Mother was deprived of her constitutional right to procedural due process when the trial court allowed a non-parent to use the South Dakota Guardianship Act to involuntarily terminate her custodial rights.

STANDARD OF REVIEW

[¶ 7.] This case involves a matter of statutory interpretation. It is well settled that "[s]tatutory interpretation presents a question of law reviewable de novo." Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480). This Court need only construe a statute if the plain meaning of the statute is ambiguous. Our rules of statutory construction are as follows:

The purpose of statutory construction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain, and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed.

Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17) (additional citations omitted). In a case where two statutes touch upon the same subject matter, there is a presumption that the Legislature intended the two to coexist and that it "did not intend an absurd or unreasonable result." Id. Therefore, the statute with more specific language "relating to a particular subject will prevail over the general terms of another statute." Id.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether a guardianship proceeding commenced by a non-parent and based upon allegations of abuse and neglect is a proper proceeding to terminate the custodial rights of a natural parent.

[¶ 9.] Proceedings instituted under the South Dakota Guardianship Act, set forth in SDCL chapter 29A-5, are not the proper means of transferring custody from a parent to a non-parent without a prior determination of a parent's unfitness. See Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953)

(holding mother's disqualification as custodian is prerequisite to award of custody to any other person) overruled on other grounds by

Matter of Termination of Parental Rights of P.A.M., 505 N.W.2d 395 (S.D.1993). When allegations of abuse and neglect serve as the basis for such a determination, the action becomes an adjudication of abuse and neglect. SDCL 29A-5-106 provides:

Nothing in this chapter affects the provisions of chapters 26-7A, 26-8A, 26-8B and 26-8C relating to the appointment of guardians and conservators and the administration of guardianships and conservatorships for children who have been adjudicated to be delinquent, abused, neglected, or in need of supervision.... In the event of any inconsistency or conflict, the provisions of chapters 26-7A, 26-8A, and 26-8C or of Title 27A shall control, and the provisions of this chapter are in all respects to be supplementary thereto.

(emphasis added). Thus, where allegations of abuse and neglect serve as the grounds for the guardianship petition, as was the case here, the statutory provisions specifically relating to abuse and neglect proceedings, as well as the provisions relating to juvenile court, must control. See Martinmaas, 2000 SD 85

at ¶ 49, 612 N.W.2d at 611.

[¶ 10.] Adjudication of abuse or neglect is done in juvenile court pursuant to SDCL chapters 26-7A and 26-8A. SDCL 26-7A-2 provides for exclusive jurisdiction of the juvenile court as to dependent or neglected children. These chapters were enacted for the particular purpose of "establish[ing] an effective state and local system for the protection of children from abuse or neglect." SDCL 26-8A-1. In so doing, the law requires that these statutes be liberally construed in favor of the child, the parents, and the state. SDCL 26-7A-6. The numerous constitutional safeguards embedded within chapters 26-7A and 26-8A also afford substantial protection. Similar provisions cannot be found in the more general Guardianship Act.

[¶ 11.] The Department of Social Services (DSS) cannot be bypassed when custody is being involuntarily taken from a natural parent in favor of a non-parent. See SDCL 26-8A-27; Matter of Z.Z., 494 N.W.2d 608, 610 (S.D.1992) (holding custody and guardianship of child whose natural parent is adjudicated unfit mandatorily vests with social services). Abuse and neglect allegations trigger the State's interest, as parens patriae, in protecting the welfare of the child. SDCL 26-8A-1. See also Matter of N.J.W., N.G.B., and K.F.B., 273 N.W.2d 134, 137 (S.D.1978)

(holding State, as parens patriae, takes strong interest in care and treatment of children within its borders). The State is the only party that may seek to involuntarily deprive a parent of custody and place the custody of the child with a non-parent when abuse and neglect is the contested issue.⁴ The Legislature has delegated the State's authority to DSS, an agency uniquely qualified in this area. SDCL 26-8A-8; 9. The trial court usurped this role when it allowed Grandmother to by-pass mandatory custody proceedings by using the more...