People ex rel. C.H.
| Decision Date | 14 July 2021 |
| Docket Number | #29446 |
| Citation | 962 N.W.2d 632 |
| Parties | The PEOPLE of the State of South Dakota IN the INTEREST OF C.H., Minor Child, and Concerning C.M. and C.H., Respondents. |
| Court | South Dakota Supreme Court |
JASON R. RAVNSBORG, Attorney General, COURT ROPER, Special Assistant Attorney General, Pierre, South Dakota, Attorneys for petitioner and appellee, State of South Dakota.
DOUGLAS E. KLUDT of Churchill, Manolis, Freeman, Kludt, & Burns, LLP, Huron, South Dakota, Attorneys for respondent and appellant, C.M.
[¶1.] C.M. (Mother) appeals the dispositional order terminating her parental rights to C.H., asserting that the circuit court's findings and conclusions do not support termination. Because the evidence does not establish that active efforts were made to reunify Mother and C.H., we reverse and remand.
[¶2.] On July 5, 2018, the South Dakota Department of Social Services (DSS) began working with Mother and Father to assist them in providing a safe home for their daughter, C.H., born on September 8, 2017. DSS implemented a safety plan in August 2018 that would allow C.H. to remain in Mother and Father's custody, but on October 2, 2018, DSS took C.H. into protective custody because it determined that the dangers in the home remained. In particular, DSS had observed that C.H., a toddler, was left unsupervised or alone for extended periods of time and that her living conditions were unsafe.
[¶3.] On October 4, 2018, the State filed a petition alleging C.H. to be abused or neglected and attached an affidavit from DSS in support. The affidavit identified that Mother was 22 years old and that Father was 28 years old. It further reported that Mother and Father abuse marijuana
and cannot control their addiction or substance abuse. DSS determined that Mother is an enrolled member of the Lower Brule Sioux Tribe; Father is eligible for enrollment as a member of the Crow Creek Sioux Tribe; and C.H. is eligible for enrollment in the Lower Brule Sioux Tribe. The Indian Child Welfare Act's (ICWA) definition of an "Indian child" includes a child who "is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]" 25 U.S.C. § 1903(4)(b). Thus, C.H. is an Indian child, and ICWA applies to these proceedings.
[¶4.] According to DSS, a family services specialist made an unannounced visit to Mother and Father's home at 9:00 a.m. on October 2, 2018, and found Mother and Father sleeping while C.H. stood awake in her playpen in a diaper overfull with urine. Mother told the specialist that she had taken sleeping pills for her sleeping disorder and the pills caused her to sleep late rather than care for C.H. The specialist observed hazards located near C.H.’s playpen and within C.H.’s reach and observed small wrappers and candy on the floor that C.H. could have put in her mouth. The specialist also reported that she saw an oscillating fan with a missing cover and prescription medication bottles in locations that C.H. could access. Finally, the specialist reported that she observed moldy bottles in C.H.’s diaper bag and living and dead cockroaches on the counters and walls of the kitchen. In DSS's view, neither Mother nor Father have the parenting knowledge, skills, or motivation to care for C.H., and their drug use renders them incapable of attending to C.H.’s basic needs.
[¶5.] At a hearing on the petition on October 23, 2018, Mother and Father admitted to the allegations. Thereafter, the State asked the circuit court to adopt a report submitted by DSS containing information similar to that contained in DSS's affidavit submitted in conjunction with the State's petition. The report also related that both Mother and Father were currently unemployed and that Mother was suffering from unmanaged mental health needs. Further, DSS summarized the services provided to Mother, Father, and C.H. since C.H. was taken into protective custody and noted that DSS had placed C.H. in temporary custody with Father's sister.
[¶6.] The circuit court adopted the findings in DSS's report and determined that the State proved by clear and convincing evidence that C.H. was abused and neglected by the actions or inactions of Mother and Father and that DSS had made active efforts to provide remedial services designed to prevent the breakup of the Indian family. The court further found that the least restrictive alternative in C.H.’s best interests would be continued legal and physical custody with DSS. For unknown reasons, the circuit court did not address DSS's request that it appoint an attorney to represent C.H.
[¶7.] A review hearing was held on December 18, 2018, and the State requested that the court maintain legal and physical custody of C.H. with DSS while the State worked toward reunification. The State also submitted an updated report to the court from DSS. Because this appeal concerns only Mother's parental rights to C.H., what follows focuses primarily on Mother.
[¶8.] In the report, DSS advised that Mother was still unemployed and could not control her addiction and substance abuse. DSS further reported that although Mother continued spending time with individuals known to abuse illegal drugs, she had begun weekly counseling sessions at Community Counseling Services. In regard to visitation, DSS related that although Mother and Father had been offered multiple visits with C.H. while she was in kinship care in Redfield, South Dakota, they only attended two visits. DSS noted that the parents participated in video chats with C.H. a couple of times, Mother attended an in-person visitation at DSS's office, and both parents exercised a supervised visit with C.H. in their home. At the conclusion of the report, DSS again requested that the court appoint an attorney to represent C.H. Once again, the court did not address this request.
[¶9.] After the December 2018 review hearing, the circuit court issued an order continuing legal and physical custody with DSS, and DSS continued to work with Mother and Father toward reunification. Between February and December 2019, the circuit court held multiple review hearings, and DSS submitted updated reports to the court regarding Mother and Father. The record reveals that during this period, Mother and Father often did not avail themselves of the programs or services offered by DSS. For example, Mother did not complete parenting classes or a chemical dependency evaluation. Also, although she began counseling, she eventually quit and gave no reason for why she stopped. In DSS's view, Mother and Father did not know how to parent C.H., and Mother did not understand how her behaviors put C.H. at risk. However, DSS noted that it was apparent C.H. was very attached to Mother during visitations.
[¶10.] In April 2019, DSS reported that Mother and Father admitted to using marijuana in March and that the two continued to reside in the same apartment with "life threatening living arrangements." However, in June 2019, DSS reported that Mother claimed she was over a month sober from marijuana and that she and Father separated and were no longer living together. In September 2019, DSS reported that Mother claimed to still be sober from marijuana and still separated from Father. According to DSS, Mother was living with her boyfriend, and the two of them were attending parenting classes together.
[¶11.] At the beginning of the December 2019 review hearing, the State informed the court that it had intended to seek termination of Mother's and Father's parental rights. However, the State then advised that in light of an email from counsel for Mother proposing that Mother work with a behavioral interventionist, the State would agree to set a termination hearing for March 2020. The State noted that if Mother was successful in that period, the State "wouldn't seek" termination. The court agreed to set a hearing for March 2020. It then addressed Mother, noting that she had "more work ... to do" and that it was "really up to [Mother] now." The court also informed Mother that DSS has offered her "the services that [it has] available[,]" and now Mother "need[s] to take advantage of" working with Community Counseling Services.
[¶12.] The circuit court's order following the review hearing reflects that the court adopted DSS's December 3, 2019 report; however, the record does not contain this report. Also, although the court's order provides that "reasonable and active efforts will be made to reunite the family[,]" the court further ordered, inconsistently, that "no further efforts be made by the Department of Social Services to reunite [C.H.] with" Mother or Father.1 The court set a final dispositional hearing for March 17, 2020.
[¶13.] It is undisputed that DSS made no further efforts to reunify Mother and C.H. after the December 2019 hearing and that no further judicial proceedings occurred in the case until September 18, 2020. The March 2020 termination hearing was moved to July due to the COVID-19 pandemic, and for reasons not specified in the record, the July hearing was also continued. The court heard testimony at the dispositional hearing from an ICWA expert, a DSS family services specialist, Mother, C.H.’s maternal grandmother, and Mother's counselors.
[¶14.] The ICWA expert, Ray Cournoyer, opined that based on his review of the information provided to him by the State, including DSS's reports, it would be detrimental for C.H. to remain in the custody of her parents. The DSS family services specialist, Dana Duvall, similarly believed that Mother and Father should not have custody of C.H. According to Duvall, the conditions that led to C.H.’s removal from the home continued to exist despite DSS's reasonable and active efforts to achieve a permanent plan of reunification. However, Duvall acknowledged that she had not observed Mother's home in the past nine months and had no personal knowledge about Mother's current living...
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