People ex rel. A.A.
| Decision Date | 08 December 2021 |
| Docket Number | 29279-a-MES |
| Parties | 2021 S.D. 66 THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF A.A., A.T., AND A.A., MINOR CHILDREN AND CONCERNING V.T. AND O.A., RESPONDENTS AND LOWER BRULE SIOUX TRIBE, INTERVENORS. |
| Court | South Dakota Supreme Court |
CONSIDERED ON BRIEFS FEBRUARY 16, 2021
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA, THE HONORABLE TONY L. PORTRA Judge.
JEREMY LUND of Siegel, Barnett & Schutz, LLP Aberdeen, South Dakota Attorneys for respondent father and appellant, O.A.
JASON R. RAVNSBORG Attorney General.
COURT W. ROPER Department of Social Services Pierre, South Dakota Attorneys for petitioner and appellee.
[¶1.] O.A. (Father) and V.T. (Mother) are the parents of A.A A.T., and A.A. (the Children) who were the subjects of an abuse and neglect proceeding before the circuit court. The case began in March 2018 and ended in February 2020 with the court's final dispositional order terminating the parental rights of both parents. Father appeals; Mother does not. We affirm.
[¶2.] In early 2018, A.A. and A.T. lived with Mother in an apartment in Aberdeen. Father also lived in Aberdeen, but with a male roommate. Father was not an active caregiver for the two children who were, at the time, an eighteen-month-old toddler and a six-month-old infant. Father is originally from South Sudan, and Mother is an enrolled member of the Lower Brule Sioux Tribe (the Tribe).
[¶3.] On March 17, 2018, Mother's neighbor contacted law enforcement after hearing a loud pounding noise and children crying in a nearby apartment. A police report included in the record indicates that officers from the Aberdeen Police Department responded and, after hearing a seemingly inconsolable infant crying inside, determined that Mother's apartment was the likely source of the noise. The officers knocked and announced their presence, but no one answered the door. One of the police officers looked inside an apartment window and saw two small children. The officer also noticed a woman, who appeared to be impaired, holding a rag over her mouth. Her movements, the officer noticed, were slow and sluggish, and she was unable to support the head of the infant lying in her arms.
[¶4.] Officers identified the woman as Mother, but their continued efforts to get her to answer the door were unsuccessful. Deeming the situation an acute risk to the Children's welfare, officers obtained a master key and entered the apartment. There they encountered a toddler and Mother still holding the infant in her lap. Mother was holding a can of hair spray she had been huffing, and officers later discovered 24 empty cans of hair spray. The Children were taken into protective custody by the Department of Social Services (DSS).0f[1]
[¶5.] Mother was arrested and taken to jail. Police officers attempted to contact Father but without success. Mother and Father had been romantically involved intermittently since 2010, and Mother reported that Father did not share childcare responsibilities and was in and out of the Children's lives. She also told DSS that she had not spoken to Father in two weeks. DSS could not locate Father before the 48-hour review hearing, and the circuit court granted DSS emergency temporary custody of the Children. The court determined that the Indian Child Welfare Act (ICWA) applies because the Children are eligible for enrollment in the Tribe and are therefore, considered Indian children. See 25 U.S.C § 1903(4) (). The Tribe received proper notice at the outset of the case and participated to some extent during its pendency.
[¶6.] DSS began an initial family assessment and the process of locating potential kinship placements for the Children. DSS also facilitated weekly visits for Mother with the Children, and after DSS located Father, it facilitated weekly visits for him. DSS provided transportation assistance when needed. On May 1, the circuit court held a hearing, and both Mother and Father appeared personally. At the hearing, Father requested that the court appoint him counsel, and counsel for Mother requested that the court continue the adjudication hearing until Father appeared with counsel. The State requested that the court keep legal and physical custody of the Children with DSS. Mother agreed, and the court ordered DSS's continued legal and physical custody of the Children.
[¶7.] At a review hearing on August 13, 2018, the State relayed that Mother had completed chemical dependency treatment and was in aftercare. It also informed the circuit court that Mother and Father had reconciled and started living together. DSS's report to the court identified that six relatives were being considered for placement of the Children, but none had been approved. The report also noted that DSS finished the initial family assessment on August 7, 2018. DSS reported that Mother and Father's recent visits with the Children supported moving toward a permanent plan of reunification. In its report, DSS recommended that the court return physical custody of the Children to Mother and Father under an in-home safety plan. The court continued legal and physical custody of the Children with DSS, but it allowed DSS to implement a safety plan for the Children to return home.
[¶8.] The Children were placed in their parents' physical custody for a trial reunification in early October 2018, and the youngest child, A.A., was born during the trial reunification. On October 29, the circuit court held an adjudicatory hearing. At the hearing, Mother admitted that the older two children were abused or neglected due to an environment injurious to their welfare. Father did not appear personally at the hearing. However, counsel for Father informed the court that Father would be entering a no-fault admission at a later hearing. During the hearing, DSS informed the court that Mother had been staying sober and was cooperating with DSS. The court continued legal custody of the Children with DSS but placed the Children in the physical custody of Mother and Father.
[¶9.] On November 10, Mother became intoxicated and purportedly kicked Father out of the family's apartment. Father left the Children with their intoxicated Mother and did not contact DSS, but he advised the person acting as the safety-plan provider of Mother's condition.1F[2] This person went to Mother's apartment at approximately 11:00 p.m. and found her too intoxicated to function. He stayed with her and the Children until 2:00 a.m. The next day, the safety-plan provider returned to Mother's apartment and did not find her or the Children there; he then reported the incident to DSS. Father also contacted DSS on November 12 and advised that he did not know the whereabouts of Mother or the Children.
[¶10.] Between November 11 and November 24, law enforcement and DSS were unable to locate Mother or the Children. Father saw Mother at an Aberdeen bar on November 25 and contacted law enforcement. Officers later found Mother at a local Aberdeen residence intoxicated and without the Children. Mother claimed she had not seen the Children in four days and did not know where they were, but she then recalled they were with her brother. Officers located the Children at the home of Mother's brother, and they were placed in DSS's custody. DSS suspended the trial reunification and placed the Children with a foster family in Clark.
[¶11.] At a second adjudicatory hearing in January 2019, Father entered a no-fault admission that the Children were abused or neglected. The circuit court also found that the youngest child was abused or neglected by Mother based on the November 11 incident and the ensuing effort to find Mother and the Children. In a report to court for this hearing, DSS noted that Mother had not been in contact with DSS since November 26, did not attend aftercare since November 6, and did not show up for her updated chemical dependency evaluation on December 10. DSS further reported that while Father "actively participated in his case plan and keeps in regular contact" with DSS, he admitted that he left the Children in Mother's care when she was intoxicated. In the report, DSS explained that Father "has needed assistance from DSS during his supervised visitation and did not appear to be able to care for all three children on his own." The court continued legal and physical custody of the Children with DSS.
[¶12.] After this hearing, Father continued to associate with Mother and their relationship turned violent. In January 2019, Father was arrested for domestic assault when he kicked in a door at Mother's apartment and pulled her hair. In March, a witness reported that Father choked Mother, threw her against the witness's van, and chased after the van when Mother entered the van to escape. In April, Father was arrested on a domestic assault warrant when police officers responded to a verbal argument involving the couple. In August 2019, Father was arrested again, this time for punching Mother in the face after she threw paint at him. In all, Father was convicted, pursuant to his guilty pleas, of three domestic-related assault charges in 2019.
[¶13.] Beyond this, Father showed little interest in replacing Mother as the Children's caretaker. According to DSS from February to April 2019, Father did not stay in contact with DSS and did not participate in the case planning process. Though after April 2019, he resumed contact with DSS, it was sporadic, and he would not return calls regarding visitation...
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