In re People in Interest of L.N.
| Decision Date | 09 February 2022 |
| Docket Number | #29586 |
| Citation | 970 N.W.2d 531 |
| Parties | The PEOPLE of the State of South Dakota IN the INTEREST OF L.N., Minor Child, and concerning K.N. and M.S.B., Respondents. |
| Court | South Dakota Supreme Court |
JASON R. RAVNSBORG, Attorney General, COURT ROPER, Special Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for petitioner and appellee, State of South Dakota.
KRISTI JONES of Dakota Law Firm, Prof. L.L.C., Sioux Falls, South Dakota, Attorneys for respondent mother and appellant.
[¶1.] The Department of Social Services (DSS) filed an abuse and neglect petition against Mother and Father involving the minor child, L.N. (DOB: 07/23/2011). The case proceeded through adjudication and dispositional hearings with the court entering a final order terminating Mother and Father's parental rights on December 17, 2020. Mother appeals, arguing the State failed to provide active efforts for reunification, that termination of her parental rights was not the least restrictive alternative, and that her due process rights were violated when termination proceedings occurred while she was mentally incompetent. We affirm.
[¶2.] L.N. is eligible for enrollment with the Oglala Sioux Tribe (Tribe), based upon Father's enrollment with the Tribe. Accordingly, the Indian Child Welfare Act (ICWA) applies. The Tribe was notified of this action in accordance with ICWA and neither participated nor intervened in the proceedings.
[¶3.] Prior to the commencement of these proceedings, DSS received three abuse and neglect referrals involving Mother. On January 24, 2013, DSS was informed that Mother, who was under the influence of methamphetamine and alcohol, violently assaulted Father in L.N.’s presence. L.N. was placed in DSS's custody but was returned to Mother's custody on February 8, 2013. DSS substantiated emotional abuse of L.N. by Mother.
[¶4.] DSS received another referral on December 4, 2014, concerning an incident when Mother choked her own mother in L.N.’s presence. L.N. was removed from Mother's care and remained in DSS custody until August 31, 2015, when she was returned to Mother's custody.
[¶5.] DSS received a third referral on November 23, 2016, concerning Mother's alleged physical abuse of L.N. after L.N. arrived at school with a bloody nose and black eye. L.N. told police officers and Child Protective Services (CPS) that Mother had hit her the night prior. DSS assumed custody of L.N. for approximately eighteen months. L.N. returned to Mother's custody on March 9, 2018.
[¶6.] In March 2019, L.N. disclosed claims of physical abuse by Mother. Law enforcement initially spoke to L.N. at school and later visited Mother's home. Janni Warne, a Family Service Specialist at DSS, joined law enforcement at Mother's home to conduct an Initial Family Assessment (IFA). When L.N. arrived home from school, she told Specialist Warne that Mother had physically abused her by hitting L.N.’s forehead with a wooden spoon and covering her mouth and nose, which restricted her breathing. Mother admitted she put her hand on L.N.’s mouth to quiet L.N. but denied restricting L.N.’s airflow. In response to L.N.’s report, Mother told L.N. that Mother would be going to jail for thirty-five years. L.N. was visibly upset by this comment and stated she loved her mom but was scared and did not want to be at home due to Mother's behavior. Mother originally claimed she did not know it was wrong to tell L.N. she was going to jail for thirty-five years, then later denied making the statement altogether, and eventually admitted to making the statement.
[¶7.] On the same day as the home visit, Specialist Warne put a Present Danger Plan (PDP)1 in place. L.N. was placed with her maternal grandfather and step-grandmother. On April 5, 2019, DSS held a rapid response meeting to discuss safety concerns regarding the situation. Mother stated she lacked patience with L.N. and had explosive behaviors once a month. Mother was unable to recall what she said or did during those times but noted she felt agitated, hyper, and panicked.
[¶8.] DSS filed an abuse and neglect petition on April 26, 2019. Lynn Plucker, a Family Service Specialist at DSS, was assigned to work with the family. A temporary custody hearing was scheduled for April 30, 2019. Mother requested, and was granted, a continuance to discuss her options with her attorney. The hearing was rescheduled for May 14, 2019. At the hearing, Mother denied the petition and requested physical custody of L.N. The circuit court denied Mother's request and placed temporary legal and physical custody of L.N. with DSS. DSS placed L.N. with her maternal grandparents.
[¶9.] DSS scheduled weekly visits between Mother and L.N. Mother attended visitation consistently throughout the proceedings. Although the visits were generally appropriate, staff at the visitation center stayed in the room to redirect the conversation when needed. During two of the visitations, Mother required this assistance. In January 2020, Mother was struggling to maintain her composure and verbally aggressive to staff during the visit. Police arrived on site, and the visit was prematurely terminated. In response, Mother falsely told L.N. that she was being sent to prison. In October 2020, Mother had a panic attack during a visitation. L.N. struggled after the visitation as old memories of abuse resurfaced. L.N. stated that she did not want to make her mom mad and that she feared her mom would harm her again.
[¶10.] In May 2019, Specialist Plucker directed Mother to seek counseling and suggested several counselors. Mother refused and indicated she would find her own counselor. Mother began counseling with Kristie Hamilton in May 2019. Shortly thereafter, Mother contacted DSS and requested funding for counseling. DSS contacted Hamilton and was told that Mother needed a higher level of care than Hamilton could provide. DSS offered assistance in obtaining a new counselor for Mother, but Mother refused assistance and again indicated she would find her own counselor. Mother then began counseling with Crystal Kapperman but completed only a few sessions with her.2
[¶11.] Specialist Plucker attempted to discuss a case plan with Mother throughout June 2019. Mother often spoke in incoherent and conflicting sentences. She would say something to Specialist Plucker and when asked to repeat it, Mother would deny having made the statement. Mother spoke of dead men breaking into her home and claimed that Koreans were attempting to take L.N. Mother admitted to using methamphetamine and was often agitated. Despite multiple attempts by DSS to review Mother's case plan with her, Mother often became frustrated and would request that DSS leave. Specialist Plucker and Mother never completed a full, in-person case plan review. Mother eventually requested the case plan be mailed to her, which DSS did.
[¶12.] Specialist Plucker obtained funding for Mother's counseling and scheduled a mental health evaluation with Southeastern Behavioral Health.3 In August 2019, Mother began counseling with Faith Carlson. Mother's sessions were sporadic—often whenever Mother showed up. Carlson attempted to make room in her schedule for Mother whenever she appeared.
[¶13.] Mother appeared with counsel for an adjudicatory hearing on August 8, 2019. Mother entered into a written stipulation for adjudication, admitting that L.N. was subjected to an environment that was injurious to her welfare. After advising Mother of her rights, the nature of the allegations in the petition, and that a disposition of termination could be entered, the court accepted Mother's admission and adjudicated L.N. to be abused and neglected.
[¶14.] Mother completed a new mental health evaluation with Southeastern Behavioral Health on September 11, 2019. Mother continued to tell Specialist Plucker about dead men entering her home and her belief that the government was watching her. Specialist Plucker requested Mother submit to a urinalysis (UA) on September 11, 2019. Mother refused and told Specialist Plucker that she may be positive for drugs other than marijuana. Two days later, Mother admitted she was using methamphetamine and submitted to a UA test, which was positive for methamphetamine. In total, Mother was requested to submit to approximately thirteen UA tests over the course of this case. Mother refused UA testing six times, had four negative tests, and three positive tests.
[¶15.] In October 2019, L.N.’s maternal grandparents, who had physical custody of L.N., requested that Specialist Plucker conduct a welfare check on Mother. Mother was not suicidal but continued to speak about government conspiracies, which often included conspiracies involving DSS. Because Avera Behavioral Health determined that Mother was not a danger to herself or others, she was not placed on a mental health hold.
[¶16.] In November 2019, a psychological evaluation was scheduled with Dr. Langenfeld. Dr. Langenfeld contacted Specialist Plucker to request additional time to complete the evaluation due to Mother's scattered thoughts while testing. Dr. Langenfeld ultimately recommended Mother seek chemical dependency treatment and psychiatric treatment with long-term counseling, preferably with the same counselor. In December 2019, Specialist Plucker enrolled Mother in a chemical dependency group at the Carroll Institute. Mother attended the group sporadically. Mother failed to complete the program and was eventually discharged for lack of attendance and mental instability.
[¶17.] Throughout January and February 2020, Mother believed she did not need any psychiatric appointments and refused to attend; however, Mother continued to see Carlson. On February 6, 2020, Mother requested Specialist Plucker to attend a counseling session with her. Carlson was not available, and Mother saw a different counselor. Mother made statements about wanting to...
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