J. L. H., Matter of, 13416

• Decision Date: 03 March 1982
• Docket Number: No. 13416,13416
• Citation: 316 N.W.2d 650
• Parties: In the Matter of J.L.H. and P.L.L.H. Neglected or Dependent Children.
• Court: South Dakota Supreme Court

Page 650

316 N.W.2d 650

In the Matter of J.L.H. and P.L.L.H. Neglected or Dependent Children.

No. 13416.

Supreme Court of South Dakota.

Submitted on Briefs Oct. 20, 1981.

Decided March 3, 1982.

Michael J. Williams, Asst. Atty. Gen., Pierre, for appellee State; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

C. J. Bormann of Bormann, Buckmeier & Bormann, Mobridge, for appellant mother.

MORGAN, Justice.

In this appeal, appellant mother is attacking the decree terminating her parental rights on the ground of insufficient evidence under the Indian Child Welfare Act, particularly section 1912(f) and, alternatively, as unrepresentative of the least restrictive alternative. We previously reviewed this case and remanded it in Matter of J.L.H., 299 N.W.2d 812 (S.D.1980). Upon remand, the trial court took additional testimony and again entered its findings of fact and conclusions of law and dispositional decree terminating appellant mother's parental rights. The mother appeals and we affirm.

The parties agree that our scope of review on questions of sufficiency of the evidence is as set out in Matter of A.M., 292 N.W.2d 103, 105 (S.D.1980);

[T]he trial court's findings of fact cannot be set aside unless they are clearly erroneous and we are, after a review of all of the evidence, left with a definite and firm conviction that a mistake has been made. (citations omitted)

Section 1912(f) of the Indian Child Welfare Act provides,

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Appellant raises three questions which arise from this provision. First, she contends that the record lacks evidence that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. The trial court specifically concluded,

That [J.L.H.] and [P.L.L.H.] have suffered emotional and physical damage as the result of failure of their mother, [G.L.H.] to provide proper parenting, and that said children are neglected or dependent children, pursuant to SDCL 26-8-6.

Our review of the record reveals evidence of conduct by appellant and other persons in and about the residence which supports the trial court's findings.

Second, appellant contends that the trial court erred as to the burden of proof which the Act requires to be beyond a reasonable doubt. The case was originally remanded upon the grounds that the trial court had erroneously applied the standard of clear and convincing evidence. Appellant's brief specifically states, "on remittitur from the Supreme Court, the parties concurred that the parties understood that the trial court had made its prior decision using the standard required by the Indian Child Welfare Act." The trial court's decree specifically ordered termination based on the standard of evidence "beyond a reasonable doubt." It also concluded,

That the evidence shows beyond reasonable doubt that continued custody of said children by [G.L.H.], should the same be restored to her, is likely to result in severe emotional and physical damage to them; that restoration of said children to her is not a viable alternative at this time, or in the foreseeable future. That they should be permanently removed from her care, custody and control.

In view of the decree's language and the trial court's conclusion this issue is frivolous.

Third, appellant urges that the testimony of Virginia Pearson, a social worker involved throughout the case, was inadequate to qualify her as an expert witness under section 1912(f). The educational qualifications of the social worker included a bachelor of science degree in business and "about fifteen hours in graduate study," most of which was in psychology or sociology. Appellant points out that she had no graduate degree in psychology, sociology or social work. South Dakota Codified Laws 19-15-2 permits qualification as an expert to be based on knowledge, skill,...