IN RE GUARDIANSHIP OF SMN

• Decision Date: 07 April 2010
• Docket Number: 25193.,25037,No. 25025,25025
• Citation: 781 N.W.2d 213,2010 SD 31
• Parties: In the Matter of the GUARDIANSHIP OF S.M.N., T.D.N. and T.L.N., Minors.
• Court: South Dakota Supreme Court

781 N.W.2d 213

2010 SD 31

In the Matter of the GUARDIANSHIP OF S.M.N., T.D.N. and T.L.N., Minors.

Nos. 25025, 25037, 25193.

Supreme Court of South Dakota.

Argued November 18, 2009.

Decided April 7, 2010.

COPYRIGHT MATERIAL OMITTED

Christina L. Klinger, May, Adam, Gerdes & Thompson, LLP, Pierre, South Dakota, for appellant, A.G. (# 25025).

Rose Ann Wendell, Pierre, South Dakota, for appellee, L.N. (# 25037, N.O.R.).

David W. Siebrasse, Pierre, South Dakota, for appellee, children.

Kelly Marnette, Hughes County State's Attorney, Pierre, South Dakota, for appellant, Hughes County (# 25193).

SEVERSON, Justice.

¶ 1. A.G. (Mother), the mother of S.M.N., T.D.N., and T.L.N., appeals the circuit court's order granting permanent guardianship to L.N. (Grandmother), the children's paternal grandmother, and awarding visitation to Mother pursuant to the South Dakota Guardianship Act (SDCL ch. 29A-5) and SDCL ch. 25-5. We affirm in part and reverse in part.

BACKGROUND

¶ 2. S.M.N., T.D.N., and T.L.N. are the biological children of Mother and R.N. (Father). Father is not a party to this proceeding. Throughout their relationship, Father abused drugs and alcohol and physically and emotionally abused Mother. S.M.N. was born on April 13, 2001. The Department of Social Services removed S.M.N. from her parents' care for a period of ten months in 2001. S.M.N. lived with an aunt during that time. T.D.N. was born on October 17, 2002, and T.L.N. was born on December 10, 2003. In April 2007, Mother left Father and received a protection order against him. Mother decided to leave Pierre, South Dakota, to start a new life for her family in Sioux Falls.

¶ 3. Grandmother played a vital role in the parenting of the children. Grandmother purchased groceries, paid rent, and provided other financial assistance to Mother and Father. Grandmother purchased beds, bedsheets, clothing, school supplies, and meal tickets for the children. She bought a washer and dryer for Mother and Father and washed the children's clothes. She has paid the fees for the children's involvement in activities. Grandmother often took the children to daycare in the morning and picked them up in the evening, and the daycare often contacted Grandmother when they needed something for the children. Grandmother regularly took the children to church and celebrated birthdays and holidays with them.

¶ 4. In August 2007, Mother decided to leave the children in Grandmother's care while she found a home and employment in Sioux Falls. Mother and Grandmother agreed that this arrangement would be temporary. Mother signed a typewritten agreement in the presence of her employer, making it clear she intended for Grandmother to care for her children on a temporary basis. Grandmother did not sign this agreement. Grandmother assured Mother she would return the children to Mother's care once she was established in Sioux Falls. Mother moved to Sioux Falls and visited the children in September and October 2007. She also had telephone contact with the children during this time.

¶ 5. Mother asked Grandmother to return the children to her care in December 2007. However, they ultimately agreed that Mother should wait until she received her income tax refund in March 2008. The children celebrated Christmas 2007 with Mother in Sioux Falls, but she returned the children to Grandmother's care. After this visit, Mother had limited telephone contact with Grandmother and the children. On March 16, 2008, Mother informed Grandmother that she would be coming to Pierre to get the children. Grandmother objected. On March 17, 2008, Mother drove to Pierre and attempted to remove S.M.N. from school. The school informed Grandmother and she arrived at the school a short time later. Grandmother and Mother began yelling at one another at S.M.N.'s school, upsetting S.M.N. to the point that she became physically ill. Grandmother removed S.M.N. from school and immediately contacted an attorney.

¶ 6. Grandmother filed a Petition for Appointment of Guardian and Request for Temporary Guardianship on March 17, 2008. The Petition was based on SDCL ch. 29A-5. The Petition alleged that if a temporary guardianship were not granted, the children would "suffer irreparable harm," that an "immediate need" for the guardianship existed, and that "the appointment would be in the best interests of the children." The circuit court granted Grandmother an ex parte temporary guardianship. Thereafter, Grandmother denied Mother visitation or telephone contact with the children. The circuit court later returned the children to Mother's custody pending a full hearing. Grandmother, however, filed a Motion to Reconsider, and the circuit court modified its order to alternate physical custody of the children between Mother and Grandmother on a weekly basis.

¶ 7. The circuit court held a full hearing on the Petition on August 13, 14, and 20, 2008. The circuit court concluded that Mother's presumptive right to the custody of her children under SDCL 25-5-29 was rebutted by proof that she abdicated her parental rights and responsibilities, and that extraordinary circumstances existed, which, if custody were awarded to her, would result in serious detriment to the children. Those extraordinary circumstances included Grandmother's provision of the children's physical, emotional, and other needs over a significant period of time; the existence of a stronger bonded relationship between the children and Grandmother as compared to the children and Mother such that a change in custody would cause the children significant emotional harm; and, an extended, unjustifiable absence of Mother's parental custody. The circuit court therefore granted Grandmother permanent guardianship of the children and awarded Mother visitation. Mother appeals.

¶ 8. Hughes County also raises an issue for this Court's consideration. On May 2, 2008, the circuit court appointed an attorney to represent Mother. On or about October 10, 2008, Mother's court appointed attorney submitted a Voucher for Compensation & Expenses of Court Appointed Attorney. On October 17, 2008, the circuit court authorized payment to Mother's court appointed attorney in the amount of $9,511.72 and ordered Hughes County to pay that amount. On November 21, 2008, Hughes County filed a Motion to Intervene and Objection to Order for Court Appointed Attorney. The circuit court refused to hear that motion based on lack of jurisdiction as the case was on appeal to this Court. Hughes County then filed a Motion to Intervene and Motion for Limited Remand for Purposes of Objecting to Order for Court Appointed Attorney with this Court on December 1, 2008. This Court issued an Order of Remand on January 9, 2009. The circuit court heard Hughes County's motion pursuant to the Order of Remand. The circuit court ordered Hughes County to pay attorney's fees to Mother's court appointed attorney, including those for the appeal.

STANDARD OF REVIEW

¶ 9. This case involves several matters of statutory interpretation. "Statutory interpretation is a question of law, reviewed de novo." Clough v. Nez, 2008 SD 125, ¶ 8, 759 N.W.2d 297, 301 (quoting Scheller v. Faulkton Area Sch. Dist. No. 24-3, 2007 SD 42, ¶ 5, 731 N.W.2d 914, 916). 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 this Court's only function is to declare the meaning of the statute as clearly expressed.

In re Guardianship and Conservatorship for T.H.M. and M.M.M., 2002 SD 13, ¶ 7, 640 N.W.2d 68, 71 (quoting 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)).

¶ 10. This case also raises questions about the proper application of constitutional standards. An appeal asserting an infringement of a constitutional right is also an issue of law to be reviewed under the de novo standard of review. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). Under the de novo standard of review, we give no deference to the circuit court's conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

¶ 11. The "circuit court's factual findings are reviewed under the clearly erroneous standard." In re Guardianship and Conservatorship of A.L.T. & S.J.T., 2006 SD 28, ¶ 37, 712 N.W.2d 338, 347 (citing Meldrum v. Novotny (hereinafter Meldrum II), 2002 SD 15, ¶ 18, 640 N.W.2d 460, 463) (additional citation omitted). "This means that we must give `considerable deference' to the circuit court's findings" of fact. Id. (quoting In re J.S.B., Jr., 2005 SD 3, ¶ 12, 691 N.W.2d 611, 615 (citing SDCL 15-6-52(a))). We are bound to "give due regard to the opportunity of the circuit court to judge the credibility of witnesses and to weigh their testimony properly." Meldrum II, 2002 SD 15, ¶ 18, 640 N.W.2d at 463 (citing Langerman v. Langerman, 336 N.W.2d 669, 670 (S.D. 1983)). Findings of fact are clearly erroneous when a complete review of the evidence leaves this Court with a "definite and firm conviction that a mistake has been made." A.L.T., 2006 SD 28, ¶ 37, 712 N.W.2d at 347 (quoting J.S.B., Jr., 2005 SD 3, ¶ 12, 691 N.W.2d at 615) (additional citation omitted). Whether the facts of the case constitute extraordinary circumstances of serious detriment to the welfare of the children, however, is a conclusion of law...