J.H., In re, s. 20622

• Citation: 590 N.W.2d 473,1999 SD 36
• Decision Date: 18 March 1999
• Docket Number: Nos. 20622,20627,s. 20622
• Parties: In re the Matter of J.H., an abused or neglected child. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 473

590 N.W.2d 473

1999 SD 36

In re the Matter of J.H., an abused or neglected child.

Nos. 20622, 20627.

Supreme Court of South Dakota.

Considered on Briefs March 18, 1999.

Decided March 29, 1999.

Mark W. Barnett, Attorney General, Joan P. Baker, Assistant Attorney General, for appellant

Steven R. Smith, Andera Law Offices, Chamberlain, for J.H., child.

John J. Simpson, Winner, for T.H., mother.

Ron J. Volesky, Huron, for B.W., grandmother.

PER CURIAM.

¶1 In this case, the trial court ordered termination of Mother's and Father's parental rights and placement of Child pending open adoption with Grandmother in Washington. Under the order, Mother is allowed contact with, but not custody of, Child. The State appeals the order as to the trial court's placement decision. By notice of review, Mother appeals the order as to the trial court's termination decision. Grandmother filed an appellate brief as intervenor. Father does not appeal the termination of his parental rights. We affirm in part and reverse in part and remand.

FACTS

¶2 On March 28, 1997, Child (d.o.b. August 1, 1993) was taken into temporary physical custody by Department of Social Services (DSS) when his younger half-brother, J.G. (d.o.b. April 1, 1994), died as a result of physical abuse inflicted in their home. Although Mother was initially suspected, it was later determined that J.G. died at the hands of Child's Father, whom Mother was again dating. ¹ Within two weeks of this tragic event, the trial court received a letter from Child's maternal Grandmother offering her home in the state of Washington to Child if it was determined he could not return to his Mother. This letter provided the court with information on Grandmother's and step-Grandfather's work, finances, home, school and families in the area, and their relationship with Child. The letter further indicated her willingness to obtain counseling for Child, open their home to a home study, return to South Dakota for court hearings and to allow Child to maintain his relationship with family here, and encourage visitation with his parents as deemed appropriate by the court.

¶3 Mother was granted immunity for her cooperation with the State in the criminal investigation of J.G.'s death and her agreement to have no contact with Father. In spite of this, she maintained almost daily contact with Father. In July 1997, she married him. On September 8, she obtained a temporary protection order against him for acts of physical violence and threatened violence toward her. In August and September, Child stated on two separate occasions to Mother that J.G. was "in a box" because "dad hit him in the stomach" and that "dad burnt J.G."

¶4 At a hearing October 14, 1997, Father petitioned to have his parental rights to Child voluntarily terminated. At this time, Mother admitted the allegations of abuse and neglect of Child. Child continued to reside in the foster home in which he was placed in March and Mother was allowed unsupervised visitation. At a hearing November 26, visitation was ordered to be supervised due to an incident of prohibited contact of Child with Father and Mother together. ² After this order was entered, Mother scheduled only one visit with Child. This visit was to occur January 6, 1998; Mother neither appeared nor called to explain her absence. Child showed no emotion when told by DSS worker that his Mother was not coming.

¶5 Mother was incarcerated January 9, 1998 and charged in Beadle County with three felony counts involving possession, distribution and maintaining a residence for the use of methamphetamines. On February 18, 1998, she was sentenced in Lyman County to five years in the state penitentiary after pleading guilty to conspiracy and being an accessory to a felony in connection with J.G.'s death. ³ On April 7, 1998, Mother was sentenced in Beadle County to consecutive terms of two years and five years on the felony drug charges; these terms to run consecutively to the five-year sentence she received in Lyman County in February. ⁴

¶6 In March 1998, a home study of Grandparent's home in Washington as a possible placement for Child was completed. Letters from family friends and coworkers and supervisors of Grandmother's were sent to the court on Grandparents' behalf. Child had an unsupervised visit with Grandparents at their home which was a positive experience according to DSS and foster parents.

¶7 In May 1998, the court held its final dispositional hearing and entered its order and findings and conclusions on June 22, 1998. The order terminated both Father's and Mother's parental rights to Child. The order also placed custody of Child with Grandmother in Washington, decreeing that Grandparents be allowed to adopt Child with an open adoption provision for visitation by, but not custody with, Mother.

¶8 Both the State and Mother appeal the trial court's order. The State appeals the placement provision of the order and raises the following issues:

1. Whether the placement order violates SDCL 26-8A-27, and if so, whether this constitutes prejudicial error.

2. Whether the placement order violates SDCL 26-8A-27 and 25-6-17 regarding open adoptions.

3. Whether the State's Attorney effectively represented DSS as envisioned by SDCL 26-7A-9.

4. If the placement order is violative of statute, how is present placement in Washington affected and what can be done about it.

By notice of review Mother appeals from the termination provision of the order and raises the following issues:

5. Whether Mother was denied constitutional rights of due process and effective assistance of counsel at the November 26, 1997 hearing because her court-appointed attorney was ordered to proceed in her absence despite having been discharged by Mother.

6. Whether the termination order was void for lack of jurisdiction because it was not petitioned by the State's Attorney as required by SDCL 26-8A-24.

7. Whether the court erred because it failed to make the findings required by SDCL 26-8A-26.

Because termination of parental rights must precede any decision regarding placement for the purpose of adoption, see SDCL 26-8A-27; In re B.S., 1997 SD 86 p 19, 566 N.W.2d 446, 450, we address Mother's issues first.

ANALYSIS AND DECISION

¶9 1. Whether Mother was denied constitutional rights of due process and effective assistance of counsel at the November 26, 1997 hearing because her court-appointed attorney was ordered to proceed in her absence despite having been discharged by Mother.

¶10 Following the suspected incident of prohibited contact between Child and Father and Mother together, Child's attorney filed a motion to modify the existing visitation order that permitted unsupervised and extended weekend visitation. At the November 26, 1997 hearing on this motion, evidence was presented of the suspected prohibited contact when Father and Mother arrived together to pick up Child from the foster home for an extended weekend visitation.

¶11 Mother had notice of this hearing but elected not to appear or explain her absence. Mother's attorney informed the court on record that he had left telephone messages several days earlier trying to reach Mother to discuss the hearing. A person claiming to be Mother's friend returned his calls the morning of the hearing; Mother's attorney informed this person he would not discuss his client's affairs with her friends. When Mother finally contacted her attorney later that same morning, he told her of the importance of the hearing and raised his voice. Angered, Mother told him not to raise his voice with her, that he was fired and that another attorney would represent her at the 1:00 p.m. hearing. He reminded her he was court-appointed and the judge would determine his future representation of her. She again responded she would have another lawyer at the hearing.

¶12 Neither Mother nor another lawyer appeared at this hearing. The court so noted and told Mother's attorney he was still representing Mother and to proceed though Mother's attorney advised the court that without his client present he was not ready. Attorney for Child presented three witnesses who gave testimony regarding the possible sighting of Father in Mother's car when she came to the foster home to pick up Child for visitation. Mother's attorney cross-examined each of these witnesses.

¶13 At the close of evidence, Mother's attorney requested a continuance, claiming lack of five days' notice as provided by SDCL 15-6-6(d). The court found that actual notice by facsimile provided Mother with five days' notice, SDCL 15-6-5(f), and that, due to the facts presented at the hearing, there was good cause to waive the normal five-day notice period. The court ordered visitation to be supervised until Mother's attorney could meet with Mother and a full hearing could be scheduled to determine any further disposition. The record indicates no further action in this regard was taken by Mother or her attorney.

¶14 Although she frames this issue as one concerning her constitutional rights, Mother argues in her brief to this Court that the trial court abused its discretion in denying her attorney's verbal request for continuance. The argument is contrary to the factual record. The transcript indicates the trial court told Mother's attorney to schedule an expedited hearing when he learned the situation from his client. Mother's attorney responded that he would forward the court's order to Mother and she could let him know how she wanted to proceed. As noted above, there is no evidence of any response by Mother or her attorney on this matter although the opportunity was made available to her. Mother has failed to show an abuse of discretion by the trial court or that her constitutional rights were violated at this hearing.

¶15 Mother does not cite to any authority or part of the record to support her claim on this issue. There has been no showing that the trial court abused its discretion.

¶16 2....