A.L.P., Matter of, s. 14584

• Decision Date: 12 April 1985
• Docket Number: 14594,Nos. 14584,s. 14584
• Citation: 368 N.W.2d 617
• Parties: In the Matter of the Dependency and Neglect of A.L.P., and Concerning Her Parents, D.L. and C.P. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 617

368 N.W.2d 617

In the Matter of the Dependency and Neglect of A.L.P., and Concerning Her Parents, D.L. and C.P.

Nos. 14584, 14594.

Supreme Court of South Dakota.

Considered on Briefs April 12, 1985.

Decided May 22, 1985.

Michael Williams, Asst. Atty. Gen., Pierre, for appellee State of South Dakota; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Jeffrey T. Sveen of Siegel, Barnett & Schultz, Aberdeen, for appellee child A.L.P.

Daniel R. Moen of McNeary & Moen, Aberdeen, for appellant mother D.L.

Curt R. Ewinger of Rice & Bowen, Aberdeen, for appellant father C.P.

WUEST, Acting Justice.

This is an appeal from a dispositional order terminating the parental rights of D.L. and C.P. (parents) of A.L.P. (child). Parents appeal and we affirm.

Child was born July 16, 1983. Parents were never married. When child was three weeks old, the mother threw her about ten feet onto a gravel driveway during an argument between parents at 2:00 a.m., after they had been drinking alcoholic beverages at a local bar accompanied by the child. The Aberdeen, South Dakota, Police were called and found parents' apartment filthy, cluttered, odorous, and moldy, with cigarette butts and stale food scattered throughout the kitchen. Child was promptly removed from the home by the Department of Social Services (Department), pending further investigation.

An adjudicatory hearing was held August 3, 1983, and child was determined to be neglected and dependent, having been subjected to mistreatment by parents. Child's environment was injurious to her welfare and she lacked proper parental care through the actions or omissions of her parents. Pursuant to a dispositional hearing, it was determined that both legal and physical custody of child was to be with Department for the purpose of placing child in foster care for a period of six months. Department was to work with parents toward the goal of returning child to parental custody once Department had determined it would be in the child's best interests. Parents were ordered to cooperate with the Intensive Prevention Placement Program (IPPP) offered by Department; attend mental health counseling appointments with a therapist at Northeastern Mental Health Center (Health Center); receive alcohol treatment through the Health Center and Alcoholics Anonymous (AA); consume no alcohol for the six-month period; allow announced and unannounced visits by Department in the home; participate in no further acts of violence; and, participate in a program of visitation with child as arranged by Department.

Department began working with parents within a few days after removal of child from the home. Department's IPPP was instituted with regular visits by Kevin Cantwell, Protective Service Worker, and Becky Grandpre, Intensive Placement Worker. Child was brought for home visits under the supervision of a social worker. The IPPP involves visits by the IPPP worker to the home to work with parents in proper parenting skills, abuse problems, personal hygiene, and cleanliness of the home. The program was also involved with alcohol problems of parents and the father's unemployment. The basic objective of the program was to reintegrate child into the family.

On October 27, 1983, parents were told child could be placed in the home on October 31, if the home was completely cleaned. Child was returned to parents on that date. On November 7, 1983, father got drunk. When the protective service worker visited the home during the afternoon of November 15, the apartment was filthy and child had not been bathed. In the afternoon of November 17, the police were again called to the home on a report of child abuse. Parents had a fight, in which father threw kool-aid on mother and she pulled his hair and threw chairs. Father locked himself in the bathroom. The mother pushed her five-year-old son by an earlier boyfriend causing him to fall and hit his head. Child started crying and mother went to the bassinet and struck child in the face. Father tried to call the police but mother ripped the telephone off the wall. When child was removed from the home, there was a red mark on the bridge of her nose, several bruises including one on her left eye and forehead, and a red mark around her neck, which was foul smelling from not being kept clean. Child was taken to the hospital emergency room and examined. Child was again placed in foster care. The police told father to leave mother's apartment for that night but he returned at approximately 8:00 a.m. the next day. Parents went to a grocery store and got into another argument. Mother hit her head against a pop machine until she broke the glass. After this occurrence, child was again removed from the home and a new petition filed alleging child to be dependent and neglected.

Department continued to work with parents in the counseling programs previously offered, and the protective service worker advised that parents needed to focus more attention on the mental health therapy and alcohol counseling. Department continued regular scheduled visits and arranged further supervised home visits for child, but on at least two occasions parents were not home at the time of the scheduled appointments. When child visited the home, she screamed most of the time and did not want to be held by her parents. The parents got into another argument on December 23, 1983, and mother became angry and punched a hole in the wall with her fist, tore a door off the hinges by kicking, hitting and pulling it, and banged her head against a concrete wall, which caused her face to be sore for several days.

A hearing was scheduled on the second petition for December 20, 1983. On that date, the petition was amended and served upon parents and the hearing re-set for February 21, 1984. At the time of hearing, the petition was again amended for clarification. Parents were present and represented by counsel. At the hearing, both counsel for parents moved the court to consider the second amended petition, pursuant to SDCL 26-8-35.1, ^* which provides for a dispositional hearing. This motion was granted and the following occurred:

THE COURT: Mr. Moen and Mr. Ewinger, what is your position regarding the notification of the parents that this is a matter to determine termination of parental rights?

MR. MOEN: Your Honor, I believe that from the very beginning the State has indicated to us that that would be their position. I have no objection proceeding with the understanding that the State is going to recommend to the Court the proper disposition will be termination of parental rights of my client. I believe that our original Summons did indicate that and that's what we're prepared to defend against.

MR. EWINGER: That is also our understanding, Your Honor.

The petition was read and explained to parents by the court. The court advised them it might enter orders concerning the custody, care, and discipline of child, including permanent termination of parental rights. Parents indicated they understood. They acknowledged written notice of the hearing and sufficient time with their counsel to prepare for the hearing. The court explained the proceedings and the burden of proof. At no time during the three-day trial was there any objection to due process; nor was there any motion or request for a continuance. Neither the parents, the state, nor the court treated the February 1984 hearing as an adjudicatory hearing, because child had been adjudicated dependent and neglected without objection from her parents in September of 1983.

Parents now claim they were denied due process. A parental interest is guaranteed by the Fourteenth Amendment and protected by the Due Process Clause. Matter of F.J.F., 312 N.W.2d 718 (S.D.1981). In Matter of N.J.W., 273 N.W.2d 134, 139 (S.D.1978), regarding dependency and neglect...