J.A.H., Matter of, s. 17901

• Decision Date: 23 June 1993
• Docket Number: Nos. 17901,17915,s. 17901
• Citation: 502 N.W.2d 120
• Parties: In the Matter of J.A.H., Alleged Dependent or Neglected Child.
• Court: South Dakota Supreme Court

Page 120

502 N.W.2d 120

In the Matter of J.A.H., Alleged Dependent or Neglected Child.

Nos. 17901, 17915.

Supreme Court of South Dakota.

Argued Feb. 9, 1993.

Decided June 23, 1993.

Mark Barnett, Atty. Gen., Karen E. Cremer, Asst. Atty. Gen., Pierre, for appellant State of S.D.

James E. Carlon of Carlon Law Office, Pierre, for appellee parents.

MILLER, Chief Justice.

This appeal arises out of the adjudication of a child as dependent and neglected and the trial court's subsequent restoration of the child to his parents at the conclusion of the dispositional hearing. State appeals the disposition and Parents, by notice of review, contest the trial court's adjudication of dependency and neglect. We affirm.

FACTS

B.H. (Mother) became pregnant at age nineteen by one man, married another, and then gave birth to D.N., a boy, on September 17, 1982. While married, she began living with another man, D.H. (Father), who fathered S.L.N., a boy born December 15, 1983, and D.N.H. (Brother), born February 20, 1986. Mother then divorced her husband and shortly thereafter, married Father. Another child, C.M.H. (Sister) was then born to Father and Mother (Parents) on October 10, 1987. Parents were living in Arizona in 1986 when they came to the attention of Arizona's Child Protection Service. In 1987, Parents moved to Pierre, South Dakota, where they came to the attention of South Dakota's Department of Social Services (DSS). In 1988, Parents and their three children moved to Germany as Father was in the United States Army. ¹ While in Germany, they enrolled in psychotherapy during which it became clear S.L.N. was being sexually abused and was physically and sexually abusing other children.

The family moved back to Pierre in January, 1989, when S.L.N. was six years old. He was removed from Parents' home the following month by DSS at Parents' request because he was sexually and physically abusing his younger brother. It was later determined S.L.N. was being sexually abused by Father. In March, Parents' rights to S.L.N. were voluntarily terminated. Brother and Sister were removed from Parents' home by DSS shortly thereafter following further investigation. Mother then left Pierre for six months with a male companion. Parents' rights to Brother and Sister were involuntarily terminated in April, 1990, because of neglect and sexual/physical abuse by Parents. ²

That fall, a DSS worker happened to see Mother checking into a hospital maternity ward. The worker immediately began making inquiries to determine whether Parents had received any counseling as perpetrators of sexual child abuse since the April involuntary termination of their parental rights to Brother and Sister. It was soon determined that Parents had received no such counseling. Another boy, J.A.H. (Child), was born to Parents on November 9, 1990. DSS filed a petition to have Child declared dependent and neglected. ³ An emergency removal hearing was set for November 19, by which time Child was ten days old. Parents' retained an attorney for the purpose of noticing the trial court and State that they would not be appearing. ⁴ Child was removed from Parents' home and placed in the temporary custody of DSS, though Parents were to have supervised visitation with Child.

State then filed a motion requesting the trial court to take judicial notice of the court files which had led to Parents' termination of their parental rights to Brother and Sister. The motion was granted over Parents' objections. State's motion requesting Child be declared dependent and neglected based on the proceedings involving Brother and Sister was denied.

An adjudicatory hearing was held in March, 1991, at which time Child was found to be dependent and neglected. The dependency and neglect findings of fact and conclusions of law from Brother and Sister's proceedings were considered and adopted in Child's proceeding. Custody was continued with DSS. In April, the parties stipulated to an interim dispositional order. In May, Parents filed a motion seeking the return of Child. The court ordered that attempts be made to unify Parents and Child. A dispositional hearing was held in January, 1992, after which the court ordered Child to "be placed with and returned to the physical and legal custody of his parents, D.H. and B.H., with protective supervision by the Department of Social Services, based on the court-approved plan which is attached hereto and incorporated by this reference."

State appeals the trial court's dispositional order and Parents, by notice of review, assert the trial court erred when it determined Child was dependent and neglected.

DISCUSSION

I. WHETHER THE TRIAL COURT WAS CLEARLY ERRONEOUS WHEN IT DETERMINED J.A.H. WAS A DEPENDENT AND NEGLECTED CHILD.

State must prove by clear and convincing evidence that a child is dependent and neglected. In re S.L., 419 N.W.2d 689, 692 (S.D.1988); Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982). Our prior decisions have established that it is appropriate for the trial court to take judicial notice of earlier findings as to abuse and neglect. See In re L.B., 416 N.W.2d 598, 599 (S.D.1987); In re R.Z.F., 284 N.W.2d 879, 881 (S.D.1979); In re K.D.E., 87 S.D. 501, 506, 210 N.W.2d 907, 910 (1973). Prior findings are relevant to the determination of whether abuse of other children in this same family is likely and this determination is within the discretion of the trial court. L.B., 416 N.W.2d at 599; R.Z.F., 284 N.W.2d at 881; K.D.E., 87 S.D. at 506, 210 N.W.2d at 910. Although prior findings of abuse and neglect are not necessarily conclusive, it is error for a later trial court to take evidence of the time prior to that adjudication of dependency and neglect. R.Z.F., 284 N.W.2d at 881; In re N.J.W., 273 N.W.2d 134, 137 (S.D.1978).

"This court does not decide factual issues de novo[.]" In re D.H., 354 N.W.2d 185, 188 (S.D.1984). We will not disturb the court's findings of fact "unless they are clearly erroneous and we are, after a review of all the evidence, left with a definite and firm conviction that a mistake has been made." In re A.M., 292 N.W.2d 103, 105 (S.D.1980); In re V.D.D., 278 N.W.2d 194, 197 (S.D.1979). Clear and convincing evidence is evidence "so clear, direct, weighty, and convincing as to allow the trier of fact to reach a clear conviction of the precise facts at issue, without hesitancy as to their truth." In re S.W., 428 N.W.2d 521, 524 (S.D.1988) (citations omitted).

Parents observe that there has been no specific incident of any abuse or neglect of Child and assert the trial court erred when it relied on the findings from the proceedings which led to the termination of their parental rights to Brother and Sister. ⁵ A finding of specific instances of abuse or neglect is not a predicate to an adjudication of abuse and neglect. K.D.E., 87 S.D. at 505-06, 210 N.W.2d at 910; SDCL 26-8A-2. ⁶ Parents have never admitted they are perpetrators of sexual child abuse and have never sought counseling for their aberrant behavior. The trial court heard testimony that before such counseling is effective, it is necessary for perpetrators to admit their acts. In view of additional testimony before the court that repeat incidents of sexual abuse by Parents is not only possible, but is likely, the trial court did not abuse its discretion by referring to the previous findings of abuse and neglect.

The record clearly supports the trial court's determination that Child is a member of a dysfunctional family which has, for several generations, been victims and perpetrators of sexual child abuse. Mother was herself the victim of continuing sexual child abuse by her adoptive father since 1969 when she was seven-years-old. In view of the entire evidence, we find the trial court was not clearly erroneous when it determined Child was abused or neglected.

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO TERMINATE PARENTAL RIGHTS.

The trial court's judgment of disposition ordered that Child "be placed with and returned to the physical and legal custody of his parents, D.H. and B.H., with protective supervision by the Department of Social Services[.]" State asserts the trial court abused its discretion when it did not terminate parental rights following its determination that Child was abused and neglected. Termination of parental rights is not as mechanical as State suggests. The finding of dependency and neglect by clear and convincing evidence does not of itself warrant termination of parental rights.

Termination of parental rights must be supported by clear and convincing evidence that it is in the best interests of the child and is also the least restrictive alternative available commensurate with those interests. State ex rel. K.C., 414 N.W.2d 616, 620 (S.D.1987). "The least restrictive alternative is viewed from the child's point of view ... as the prime concern of the court is the child. The best interests of the child must prevail." In re S., V. & L.W., 398 N.W.2d 136, 139 (S.D.1986); K.C., 414 N.W.2d at 620.

State asserts that since the determination had been made that Parents were sexual abusers who have not received counseling, "the only matter which was relevant in J.A.H.'s case was whether or not the parents had sought treatment as sexual abuse offenders." State asserts too much. This was not the only relevant consideration and the record reflects the trial court's consideration of additional issues. The trial court did find though, that "[t]he sole issue in dispute is whether [Parents] should have to undergo sexual abuse therapy before [Child] can be returned." But this observation and finding does not support State's assertion that the trial court improperly placed the concerns of Parents ahead of Child's concerns.

There was testimony before the trial court that even though Parents were not receiving sexual abuse therapy, they were participating in programs and...