J. M. A., Matter of

• Decision Date: 19 December 1979
• Docket Number: No. 12739,12739
• Citation: 286 N.W.2d 324
• Parties: In the Matter of J. M. A., Alleged Dependent Child.
• Court: South Dakota Supreme Court

Page 324

286 N.W.2d 324

In the Matter of J. M. A., Alleged Dependent Child.

No. 12739.

Supreme Court of South Dakota.

Argued Nov. 9, 1979.

Decided Dec. 19, 1979.

Janice Godtland, Asst. Atty. Gen., Pierre, for respondent, State of South Dakota; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard L. Johnson, Sioux Falls, for appellants, Mr. and Mrs. A.

Mary Sue Donohue, Sioux Falls, for J. M. A.

MORGAN, Justice.

This is an appeal from the decision of the Circuit Court, Second Judicial Circuit, terminating appellants' parental rights to their two and one-half year old son. Appellants will be referred to as Mr. and Mrs. A., and their son will be referred to as J.A. We affirm the trial court.

J.A. was born in July of 1977 in Yankton, South Dakota. In August of that year, Mrs. A. was admitted to the Human Services Center for treatment which lasted until October 13, 1977. While Mrs. A. was hospitalized, Mr. A. assumed the care of J.A. Prior to J.A.'s birth, Mr. and Mrs. A. had received help from the Department of Social Services (Department) in the form of homemaker services and marital counseling. During Mrs. A.'s hospitalization, the Department continued to help Mr. A. by providing day care for the baby as well as homemaker services.

Sometime in August, Mr. A. moved to Sioux Falls where he stayed with relatives who assisted him in caring for J.A. When Mrs. A. was released from the Human Services Center, the couple moved to an apartment in Sioux Falls.

After Mrs. A.'s return, the couple's marital situation worsened, to a point where, in November of 1977, Mr. A. struck Mrs. A. and injured her. At that time, the social workers became concerned for the child's safety and persuaded Mr. and Mrs. A. to sign a "Home Contract" which essentially outlined certain measures the couple should take to protect the child from injury should violence erupt again. Included in the contract was a provision that the couple would take the child to the Children's Inn, a crisis facility, if they felt his safety was jeopardized by their fighting. Mr. and Mrs. A. used this facility several times.

The couple continued to have frequent fights and the Department was having little success in alleviating the marital problems. The couple was having financial problems since Mr. A. was unemployed and tension in the household increased. The social worker assigned to their case assisted them by continuing to arrange for day care services and homemaker services so that Mr. A. could job hunt and Mrs. A. could receive guidance in household management and child care techniques. Violence in the home intensified, however, and on December 6, 1977, the State filed a petition and affidavit alleging J.A. to be a dependent child. That same day, J.A. was removed from the home and placed in a foster home.

On January 6, 1978, in lieu of the adjudicatory hearing scheduled for that day, Mr. and Mrs. A., upon the advice of counsel, entered into a stipulation with the State which stated that the court would be justified in finding J.A. to be a dependent child and in terminating their parental rights. The stipulation went on to state that the State wished to give the parents a chance to prepare themselves for the parenting role and, therefore, a dispositional hearing would be adjourned for six months to provide the couple time to improve their situation. Certain conditions were placed on the couple including requirements that the couple get counseling from the Department; that Mr. A. get a job; and that the couple refrain from using violence to resolve their differences. Pursuant to this stipulation, J.A. was returned to the couple.

The home situation improved then for some time. Mr. A. found a job and the couple refrained from acts of violence. The harmony did not last, however, and in March and April of 1978, violence erupted again with Mrs. A. often being bruised and beaten.

Consequently, on May 5, 1978, an Order to Show Cause Why Parental Rights Should Not Be Terminated was issued and J.A. was again removed and placed with a foster family. A dispositional hearing was begun on July 6, 1978, but was adjourned after two days of testimony so that Dr. Thomas Aceto, a pediatric endocrinologist, could examine J.A. and prepare a report for the court. The hearing concluded on November 27, 1978, with the court terminating the parental rights of both Mr. and Mrs. A.

At the dispositional hearing, Dr. David Munson, a pediatric physician who treated J.A. from the time of the child's birth, testified on behalf of the State. According to Dr. Munson, J.A. suffered from developmental retardation, primarily in the areas of gross and fine motor skills. The doctor's opinion was based on results of the Denver Developmental Test, regularly performed on J.A. These tests are used by pediatricians to measure growth rate. Dr. Munson attributed the developmental delay to J.A.'s environment which he felt left J.A. emotionally deprived. Dr. Munson suggested that the problem was severe enough to create the possibility that J.A. might become autistic. Dr. Aceto and two of his colleagues, who had examined J.A. twice, concluded that J.A.'s problem is neurological but conceded that the child showed signs symptomatic of autism; that he will need an ideal home environment in order to improve developmentally; and that he would have a better prognosis if he had caretakers other than his natural parents.

The evidence adduced at the dispositional hearings shows that Mr. A. is a man with a violent temper who has been committed to Yankton several times. He was characterized by one social worker as suffering from an "explosive personality disorder." However, as the State concedes, Mr. A. has never physically abused J.A. or any of his children from former marriages. Instead, his violence is vented against other adults and primarily his wife. On one occasion, Mr. A. struck and injured a female social worker and was found guilty of simple assault. The State further concedes that Mr. and Mrs. A. have a genuine concern and affection for J.A. but argues that neither parent is capable of providing the type of environment conducive to improving J.A.'s developmental deficiencies.

Considerable testimony was presented by various social workers who had worked with Mr. and Mrs. A. The general consensus was that the couple was not benefitting from the services the Department was providing to help them improve their marital situation and parenting skills. The evidence showed that the couple continually received a variety of services from the Department from a time prior to J.A.'s birth throughout the dispositional proceedings. These services included parenting instruction, visiting nurses, homemaker and day care services, and marriage counseling. The testimony indicates that the various social workers felt that Mr. and Mrs. A. were not taking full advantage of all the assistance offered them by the Department because they were too preoccupied with their own personal and emotional problems which interfered with their ability to relate to J.A. Thus, although J.A. was never physically injured by either parent and was always kept reasonably well-clothed and fed, neither parent was able to form a true bond with the child who, according to Doctors Aceto and Munson, is withdrawn and manifests a severe inability to relate to people.

The trial court found that Mr. A. failed to demonstrate his ability to provide adequate care without violence and was unwilling or unable to improve his parenting skills largely due to his long-term personality disorder and his resentment at attempts at counseling. The court further found that Mrs. A. is unable to provide proper parental care because, even with counseling, she had demonstrated no improvement in that area and had left J.A. unattended several times. The trial court also found that Mrs. A. was incapable of divorcing her extreme marital problems from her responsibilities for J.A. Additionally, the trial court found that J.A. suffers from extensive physical and psychological problems which require a serene and calm environment which neither Mr. or Mrs. A. is able to provide.

Appellants argue that the trial court's findings are not supported by a preponderance of the evidence and that the court erred in terminating their parental rights because termination will not serve the child's best interests. The question presented for this court's determination " 'is not whether it would have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed.' " People in Interest of T.C., 278 N.W.2d...