In re People in Interest of D.S.
| Decision Date | 09 February 2022 |
| Docket Number | #29563 |
| Citation | 970 N.W.2d 547 |
| Parties | The PEOPLE of the State of South Dakota IN the INTEREST OF D.S., Child, and Concerning A.S. and A.B., Respondents. |
| Court | South Dakota Supreme Court |
JASON R. RAVNSBORG, Attorney General, MATTHEW W. TEMPLAR, Assistant Attorney General, Pierre, South Dakota, Attorneys for petitioner and appellee, State of South Dakota.
OLE J. OLESEN of Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for minor child, D.S., and appellant.
[¶1.] D.S., a fourteen-year-old male, was adjudicated for possessing a stolen motor vehicle and aggravated eluding. The court appointed an expert to conduct a psychological evaluation of D.S. prior to the dispositional hearing. At the hearing, D.S. requested a probationary sentence based on the expert's opinion that he could be treated in the community. The State requested that D.S. be placed with the Department of Corrections (DOC), arguing that D.S. had been on probation on four prior occasions for serious offenses, did not abide by the terms of probation and electronic monitoring, and was a risk to the community. The circuit court committed D.S. to the DOC. D.S. appeals this disposition, challenging the circuit court's findings that there was no viable alternative to DOC commitment and that a DOC commitment was the least restrictive alternative. We affirm.
[¶2.] On September 3, 2020, D.S. stole a Ford F-150 from the area around Canyon Lake in Rapid City, South Dakota. This was the fourth vehicle D.S. was alleged to have stolen since June 2019.1 He and two of his friends, M.A. and K.A., stole the pickup to go on a joyride to Belle Fourche, South Dakota. Police stopped the pickup on the interstate, shortly after midnight on September 4, 2020, after pursuing it through the city of Sturgis.
[¶3.] Meade County Deputy Sheriff Jarrod Vandewater first noticed the pickup as he was walking out of the Sturgis Common Cents gas station on Junction Avenue when he saw it strike a curb and then drive away at a high rate of speed. Deputy Vandewater pursued and caught up to the pickup. After the driver ran two stop signs, Deputy Vandewater activated his car's emergency lights. The pickup ran two more stop signs, cutting off two cars at the last intersection, before turning onto the I-90 on-ramp and driving on the shoulder of the interstate for half a mile before coming to a stop. Deputy Vandewater had called for reinforcement by this time and, because the pickup had been reported as stolen, performed a high-risk felony traffic stop with the assistance of Deputy Corey Jonas.
[¶4.] D.S., M.A., and K.A. were removed from the pickup which D.S. had been driving. D.S. volunteered that the pickup was stolen, and M.A. and K.A. admitted that they had helped D.S. steal it. The three juveniles were laughing, joking, and bragging about having stolen the pickup. Deputy Vandewater performed an inventory search on the pickup while waiting for a tow truck and found a loaded .22 caliber rifle and a loaded 9mm handgun. The juveniles reported that the guns were in the pickup when they stole it. D.S. was transported to the Juvenile Services Center (JSC) in Rapid City and remained there until September 8, 2020. D.S. was charged as a juvenile delinquent with three offenses: Count 1—Possession of a Stolen Motor Vehicle; Count 2—Aggravated Eluding; and Count 3—Possession of a Pistol by a Minor.
[¶5.] This incident was not D.S.’s first run-in with law enforcement. In July 2018, when D.S. was twelve years of age and living with his mother in Belle Fourche, he stole his mother's boyfriend's credit card and spent $700 on Amazon, PlayStation, and two pornography websites. This incident was adjudicated in Meade County, and D.S. was placed on probation for four months with ten days at JSC suspended and payment of restitution. He was charged with violating the terms of his probation for not obeying the rules at home, failing classes at school, not attending court-ordered after school programs, being suspended from school, ignoring curfew, violating house arrest, and breaking windows and other property at his home.
[¶6.] Adjudication of the above probation violations occurred in Meade County on May 16, 2019, when D.S. was before the court for a new delinquency petition for offenses involving false reporting to authorities and impersonation to deceive law enforcement. This petition arose from an incident in March 2019, when D.S. called Belle Fourche law enforcement, gave a false name, and informed them that the middle school was on fire when it was not. For the probation violations and the new counts, D.S. was given six months of probation which required him to attend counseling and pay restitution.
[¶7.] From February to May of 2019, D.S., now thirteen years of age, attempted Moral Reconation Therapy as part of his Meade County probationary requirements but was dropped from the program for continued behavioral issues and non-attendance. D.S. was also receiving individual counseling with Dr. Dewey Ertz, Ed.D., an educational psychologist, as a condition of his probation. Dr. Ertz did a psychological assessment of D.S. on May 3, 2019. In June 2019, D.S. stole his mother's boyfriend's pickup and some beer. He took the pickup for a joyride while drinking three of the beers and smoking marijuana. He was brought before the Meade County circuit court for this incident on September 3, 2019. D.S. was adjudicated as a delinquent and given six more months of probation and twenty days suspended at either JSC or the Rapid City Arise Youth Center2 (Arise).
[¶8.] In October 2019, D.S., still living in Belle Fourche, stole his father's girlfriend's car and drove it to Spearfish, South Dakota. Around this time, Dr. Ertz began recommending inpatient treatment, and D.S.’s family was exploring a potential placement at Canyon Hills Treatment Center in Spearfish. Before securing this placement, the family decided against inpatient treatment in South Dakota, as D.S.’s father was moving to Arizona and D.S. wanted to move with him instead. Before the move to Arizona occurred, D.S. was brought before the Meade County court on December 4, 2019, for violating his probation by stealing his father's girlfriend's car in October. The court adjudicated D.S. for violating his probation and assessed only a fine so that D.S. could move with his father to Arizona. D.S. turned fourteen on January 6, 2020.
[¶9.] In Arizona, D.S. reportedly stole items from the homes of his father and other family members. He was also caught with marijuana after having stolen it from a family member. He moved back to South Dakota to live with his mother prior to the September incident at issue here, but the record is unclear exactly when he arrived in South Dakota. However, he was in the community, not on probation, and in his mother's custody on July 27, 2020, at which time he stole a vehicle in Rapid City to drive to Belle Fourche with two friends. D.S. drank alcohol while driving the vehicle and the group threw the vehicle owner's belongings out of the car during the trip. D.S. was charged in October 2020 as a juvenile delinquent for the offense of grand theft in connection with this incident.
[¶10.] Following D.S.’s arrest and initial JSC detention for the September 3–4, 2020 theft at issue here, the court held a temporary custody hearing and placed D.S. at Arise. After nine days at Arise, D.S. was released into the community for supervision wearing an ankle monitor. On November 12, 2020, D.S. and the State entered into a plea agreement in which D.S. admitted to counts 1 and 2, possession of a stolen motor vehicle and aggravated eluding, of the State's petition. Pursuant to the plea agreement, the State then dismissed the remaining count of possession of a pistol by a minor and a pending petition alleging grand theft of a vehicle on July 27, 2020. The court adjudicated D.S. as a delinquent and set a dispositional hearing. In preparation for the hearing, the court ordered court services to prepare a juvenile social case study report (report) with recommendations. Additionally, the court ordered that D.S. obtain a psychological evaluation. D.S. remained on community supervision wearing an ankle monitor.
[¶11.] On November 30, 2020, D.S. violated the conditions of his release by letting the battery on his ankle monitor expire while staying at places other than his mother's house. D.S. and his mother told the community monitoring staff that D.S.’s girlfriend's house was D.S.’s uncle's house so that D.S. could stay there. Community monitoring staff went to the house and found D.S. hiding under his girlfriend's bed. D.S. was then placed back at Arise while awaiting his dispositional hearing.
[¶12.] D.S. got in trouble at Arise, however, by arguing with another juvenile and threatening to fight him. D.S. was escorted to another room to calm down where he subsequently threw a chair and let the water out of a water cooler. He was transferred to JSC after he settled down and remained there until his dispositional hearing.
[¶13.] The court services officer (CSO) assigned to prepare the report interviewed D.S. to obtain his history and background information. D.S. told the CSO that he did not believe he had a problem with alcohol, despite reporting blacking out and forgetting things when he drinks. D.S. reported that he did have a problem with marijuana, which he started using at age twelve. He stated that he vaped every day, had used mushrooms and huffed air duster several times, and had tried cocaine, Xanax
, and acid, once each. The CSO also noted that D.S. had been diagnosed by Dr. Ertz with Childhood Onset Type Conduct Disorder, Asperger's Disorder, Borderline Intellectual Functioning, and Bipolar Disorder.
[¶14.] The CSO recommended in the report that D.S. receive residential substance abuse treatment that could simultaneously address his mental...
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