In re S.A.

• Decision Date: 07 December 2005
• Docket Number: No. 23473.,No. 23488.,23473.,23488.
• Citation: 2005 SD 120,708 N.W.2d 673
• Parties: In the Matter of S.A., A.A., E.A., and A.A., Alleged Abused/Neglected Children.
• Court: South Dakota Supreme Court

Page 673

708 N.W.2d 673

2005 SD 120

In the Matter of S.A., A.A., E.A., and A.A., Alleged Abused/Neglected Children.

No. 23473.

No. 23488.

Supreme Court of South Dakota.

Argued October 3, 2005.

Decided December 7, 2005.

Amanda M. Wilcoxon, Minnehaha County Public Defender's Office, Sioux Falls, for appellant Mother H.A.

Richard L. Johnson, Sioux Falls, Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, for appellant Father H.A. (E.A., Sr.).

James E. Carlon, Special Assistant Attorney General, Pierre, for appellee State of South Dakota.

Cynthia A. Howard, Minnehaha County Office of the Public Advocate, Sioux Falls, for appellee Minor Children.

ZINTER, Justice.

[¶1.] The circuit court adjudicated S.A., A.A., E.A., Jr., and A.A. abused and neglected children. After dispositional hearings, the circuit court terminated the parental rights of H.A. (Mother) and H.A. (Father). Father appeals the trial court's determination that the children were abused/neglected. Both Mother and Father appeal the trial court's termination of their parental rights. We affirm.

Facts and Procedural History

[¶2.] Mother and Father are the parents of four children: S.A. (daughter, age 11), A.A. (daughter, age 9), E.A., Jr. (son, age 9), and A.A. (daughter, age 5). On February 21, 2003, E.A., Jr.'s school principal, Jackie McNamara, observed marks on E.A., Jr.'s neck behind his ears and on his back. When Ms. McNamara asked about the marks, E.A., Jr. responded that Mother hit him when he did not want to go to bed.

[¶3.] Ms. McNamara called the Department of Social Services (DSS). Liana Van Ormer, along with police officers Johnson and Colwill, photographed the injuries and interviewed E.A., Jr. He told Ms. Van Ormer that the injuries were caused by Mother hitting him. Dr. Kaplan later examined E.A., Jr. and opined that E.A., Jr.'s injuries were consistent with the child's hitting explanation. However, Dr. Kaplan thought the injuries were caused by a "geometric object," rather than a hand.

[¶4.] The police placed the children in protective custody at the Children's Inn, a domestic abuse shelter. While at the Children's Inn, the children were interviewed and participated in counseling. During the interviews and counseling sessions, the three older children shared numerous stories of other abuse, indicating that they had been hit with belts, flyswatters, and spatulas.¹

[¶5.] At the adjudication hearing, both Mother and Father denied that they used any type of physical discipline with their children. Father also relied on the testimony of Mariann Johnson, a family friend and daycare provider. Both Johnson and Father stated that they did not notice marks on E.A., Jr.'s neck on the morning in question. The trial court, however, after hearing all of the evidence, found clear and convincing evidence that the children were abused/neglected.

[¶6.] After the adjudicatory hearing and while still in protective custody, the children continued to disclose further instances of abuse and neglect in the home. The children disclosed not only instances of child abuse but also abuse between the parents. Furthermore, S.A. told one of the counselors that she babysat the youngest child A.A. "a lot" and had to watch for the police while Mother and Father shoplifted. S.A. also revealed that Father had told her to keep the fighting between Mother and Father and the abuse of the children a secret.

[¶7.] Another disclosure occurred when S.A. and Tara Olson-Larson, a licensed children's therapist, were looking at a book regarding foster care, abuse, and the legal system. During this counseling session, S.A. turned the book back to a page on sexual abuse and asked, "what if this happened to me?" S.A. then told Ms. Olson-Larson that when S.A. was about eight or nine, Father came home intoxicated while she was getting ready to take a bath, and he touched her in her private area. After making this statement, Colleen Brazil, a forensic interviewer, talked with S.A. In a videotaped interview, S.A. told Brazil the same story, indicating that Father got on his knees and touched her with his tongue on her skin and inside her private area.²

[¶8.] Notwithstanding the children's numerous allegations, Mother and Father denied that they ever physically abused the children. They also denied that there was any abuse between them or that they fought in front of the children. DSS, however, established a current history of domestic abuse. One incident occurred in 2001 when Mother actually called the Children's Inn, reported domestic abuse by Father, and stated that he hit her and was angry all the time. Further, on October 3, 2003, while this case was pending, Mother and her attorney met with DSS and the Children's Inn. On this occasion, Mother indicated that Father was emotionally, verbally, and physically abusive for the last 10 years and that she was scared but felt "stuck."³ She also suggested that Father caused the injuries to E.A., Jr. but felt the children were blaming her because they were afraid of him. Significantly, even after being confronted with documented evidence of domestic abuse, Mother and Father continued to deny all allegations of physical abuse between them and claimed the police reports were false. Mother even denied the 2003 incident at the Children's Inn, claiming DSS and the Children's Inn "misunderstood" her.

[¶9.] After the trial court found the children abused and neglected, DSS attempted to work with the parents to return the children to the home. Although Mother and Father completed many of the necessary requirements, the professionals that provided the services indicated that the parents were being untruthful. The professionals recommended that Mother and Father's parental rights be terminated.⁴

[¶10.] At the dispositional hearing, Mother and Father claimed that they were not given a fair opportunity to demonstrate what they had learned through the counseling sessions and other services. The trial court, however, found that DSS had already made reasonable but unsuccessful efforts to rehabilitate the family. The court relied in part upon the parents' untruthfulness in denying any physical abuse between the two of them and with the children even when confronted with overwhelming evidence to the contrary. Therefore, the court found the conditions that led to the removal of the children remained with little likelihood that they would be remedied. The court ultimately found that termination of parental rights was the least restrictive alternative and in the best interests of the children. On appeal, Father raises the following issue:

(1) Whether the trial court's finding of abuse and neglect was supported by clear and convincing evidence.

Mother and Father jointly raise the following issues:

(2) Whether the trial court erred in admitting hearsay statements of the children; and

(3) Whether termination of parental rights was the least restrictive alternative and in the best interests of the children.

Analysis and Decision

Finding of abuse and neglect

[¶11.] We review the trial court's findings of fact under the clearly erroneous standard; therefore, they will not be set aside unless "we are left with a definite and firm conviction that a mistake has been made." People ex rel. J.S.B., Jr., 2005 SD 3, ¶ 12, 691 N.W.2d 611, 615 (citing In re T.H., 396 N.W.2d 145, 148 (S.D.1986)). We also give due regard to the trial court's opportunity "to judge the credibility of the witnesses." Matter of D.H., 354 N.W.2d 185, 188 (S.D.1984).

[¶12.] The State has the burden of proving that the children were abused or neglected by clear and convincing evidence. People ex rel. D.T., 2003 SD 88, ¶ 5, 667 N.W.2d 694, 697 (citing Matter of J.A.H., 502 N.W.2d 120, 123 (S.D.1993)). Father contends that because of inconsistencies in the testimony⁵ there was not clear and convincing evidence that the children were abused and neglected. Although there was inconsistent evidence presented at the adjudicatory hearing, those inconsistencies were considered by the trial court. Furthermore, the trial court's findings were based on the credibility of the parents and other witnesses. The trial court specifically noted that it was able to judge the credibility of the parents who testified and was able to view E.A., Jr.'s videotaped interview with Ms. Brazil. The trial court ultimately found that "[t]he videotape of [E.A., Jr.] giving his version of the events to Ms. Brazil [was] ultimately ... the most compelling piece of evidence presented. In it, the Court ha[d] the opportunity to judge for [itself, E.A., Jr.'s] credibility in giving his story."

[¶13.] After reviewing the record and giving due regard to the trial court's opportunity to judge the credibility of these witnesses, we cannot conclude that the trial court's findings were clearly erroneous. Rather, the marks on E.A., Jr., his volunteered statement to his principal, the statements of the other children, the testimony of the professional service providers, and E.A., Jr.'s videotaped interview all support the finding of abuse/neglect.

Hearsay Statements of the Children

[¶14.] Mother and Father argue that because the children's statements were introduced through counselors and interviewers,⁶ they were denied the opportunity to cross-examine the children. Although the parents concede that the statements were admissible under the rules of evidence,⁷ they contend that admitting the children's hearsay statements violated their constitutional right to due process because they did not have the opportunity to cross-examine the children. A violation of a constitutionally protected right at trial presents a question of law, which is reviewed de novo. State v. Carothers, 2005 SD 16, ¶ 7, 692 N.W.2d 544, 546 (citations omitted).

[¶15.] The United States Supreme Court has clearly stated that natural parents have a fundamental liberty interest in the care, custody, and management of their...