PEOPLE EX REL. DEPT. OF SOCIAL SERVICES, 23209.
| Decision Date | 22 December 2004 |
| Docket Number | No. 23209.,23209. |
| Citation | 2004 SD 131,691 N.W.2d 586 |
| Court | South Dakota Supreme Court |
| Parties | The PEOPLE of the State of South Dakota, ex rel SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES In the Interests of J.G.R., a Minor Child, and Concerning M.R. and C.R., Respondents. |
Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
Marty J. Jackley and Jason Smiley, Rapid City, South Dakota, Attorneys for appellant C.R.
Donald E. Covey, Winner, South Dakota, Attorney for minor child J.G.R.
[¶ 1.] C.R. (mother) appeals the termination of her parental rights. We affirm.
[¶ 2.] On April 25, 2002, mother took the day off from her employment in Winner, South Dakota. Her daughter, J.G.R., age eight, had been expelled from school. In an apparent effort to leave her with some other caretaker, mother had the child pack a suitcase. They traveled to Hot Springs, South Dakota. At the Fall River Feedlot, mother dropped off the child and drove away. Carrying her suitcase, J.G.R. walked into the office by herself and sat down. After half an hour, an office employee noticed the child sobbing. She had a note her mother had told her to give to "Connie," stating, "Looking for someone who cares." No one named Connie worked there. Mother knew the manager of the feedlot, but she had made no prior arrangements for the child to stay there; no one at the feedlot had prior knowledge that the child was going to be left there; and no one had any idea that they would be expected to care for the child. The child had been to the feedlot once or twice in the past. J.G.R. was taken into protective custody by the sheriff's office. Mother was eventually located six hours later, one hundred fifty miles away, in Belvidere, South Dakota.
[¶ 3.] Mother received a court appointed attorney, Rose Ann Wendell, who appeared at the advisory hearing. Wendell was replaced by private counsel, Stanley Whiting. The adjudicatory hearing was continued as a result. Later, Whiting moved to withdraw based on mother's request. Al Arendt subsequently appeared on behalf of mother at a scheduling hearing. Shortly thereafter, Arendt also moved to withdraw based on a conflict with mother. Arendt was allowed to withdraw but the trial court indicated that the adjudicatory hearing would proceed as scheduled. Mother was not present at the hearing on the motion to withdraw. Mother filed a pro se motion for a continuance to obtain counsel. That motion was denied. The trial court adjudicated J.G.R. an abused or neglected child through the acts and/or omissions of mother.1
[¶ 4.] After additional attorneys appeared for mother, this matter was set for a dispositional hearing. Mother was eventually represented by attorneys Marty Jackley and Jason Smiley at the dispositional hearing. The trial court heard evidence concerning mother's prior decisions to leave J.G.R. with other caretakers for extended periods of time. Mother also failed to timely obtain a psychological evaluation or follow through with the recommendations. Mother was diagnosed with bipolar disorder, general anxiety disorder, and borderline personality traits. Mother took no steps to follow through with any treatment plan for her conditions. Additionally, mother refused to accept three different Department of Social Services (DSS) case service plans. Instead, she proposed her own plan to DSS to return the child or "see you later in federal court." The trial court terminated mother's parental rights.
[¶ 5.] Whether the trial court's decision to proceed with the adjudicatory hearing despite mother's lack of counsel was a violation of her statutory or constitutional rights.
[¶ 6.] Mother appeared at the adjudicatory hearing without counsel. The trial court had previously allowed attorney Arendt to withdraw without appointing substitute counsel. At this adjudicatory hearing, mother persisted in her demands that she did not want to proceed without the benefit of counsel. Although the trial court had initially appointed her counsel, that attorney was replaced by privately retained counsel. However, mother's privately retained attorney was allowed to withdraw before the adjudicatory phase without the requirement of substitute counsel by the trial court. Mother did not obtain counsel before the adjudicatory hearing. As a result, and despite her objections, mother proceeded at the adjudicatory hearing pro se.
[¶ 7.] The following statements were made to the trial court by mother:
[¶ 8.] The trial court proceeded in this matter. Its reasoning was summarized as follows:
I appointed an attorney for you out of Pierre at your request, which I never do down here. So I went above and beyond what I would normally do to give you the representation that you wanted. And then, for some reason, that representation did not work out. I don't know what happened. I think that you then went and hired an attorney, so she was allowed to withdraw as counsel. So, the Court then went over and above what it normally does to get you an attorney to represent you in this case.
Essentially, the trial court determined that its obligation to ensure counsel for the adjudicatory hearing had ended.
[¶ 9.] SDCL 26-7A-31 specifically provides for a court appointed attorney for parents in an abuse and neglect proceeding. In addressing the right to effective assistance of counsel provided by this statute, this Court has adopted criminal procedures as a means to safeguard this right. See Interests of A.D., 2004 SD 39, ¶ 10, 678 N.W.2d 594, 598 (). Therefore, it is instructive to consider how this situation could have been dealt with in a criminal proceeding.
[¶ 10.] On this record, it is clear that mother was having conflicts with the various attorneys employed to represent her. However, in the criminal context such problems, which can lead to delay in a proceeding, can be dealt with through either the trial court's denial of a motion to withdraw by counsel or a denial of a motion to substitute counsel made by the defendant. See State v. Loftus, 1997 SD 94, ¶ 14, 566 N.W.2d 825, 828 (); State v. Irvine, 1996 SD 43, ¶ 12, 547 N.W.2d 177, 181 ().2 The trial court did not use these procedures to deal with mother's revolving door of attorneys.
[¶ 11.] The criminal context also highlights the important consequence of proceeding pro se and what must be done in order to make such a decision.
At a minimum a defendant must be aware of the dangers and disadvantages of self-representation. On appeal, waiver of the right to counsel will not be found knowingly and intelligently made unless the trial court (1) warns the defendant of the dangers of self-representation or, (2) unless the record indicates circumstances from which this court can find the defendant was aware of the danger and made a knowing and intelligent waiver. While in some cases there may be a record showing a defendant is aware of the pitfalls of self-representation, an admonition from the trial court is preferred as it eliminates any doubt.
State v. Bruch, 1997 SD 74, ¶ 15, 565 N.W.2d 789, 792. Additionally, a trial court, even after obtaining a valid waiver of counsel, may appoint counsel to assist as a legal advisor. In the Matter of John R. v. Jennifer A., 218 A.D.2d 694, 630 N.Y.S.2d 379, 381 (1995). However, the record must demonstrate that the party entitled to counsel "voluntarily, knowingly, and intelligently" waived that right. State v. Christian, 1999 SD 4, ¶ 23, 588 N.W.2d 881, 885. Without such a showing a defendant is presumed not to have waived the right to counsel, a right that "is not to be taken lightly." State v. Raymond, 1997 SD 59, ¶ 9, 563 N.W.2d 823, 825. Although mother had a right to proceed pro se, that is not a right she exercised willingly but fought against the entire way.
[¶ 12.] A trial court's consideration of a request for substitute counsel or a motion to withdraw can properly take into account the effect further delay in the proceeding will have upon the child. In re Conley, 216 Mich.App. 41, 549 N.W.2d 353, 356 (1996). In this instance, the trial court should have considered the effects of further delay in this proceeding as well as mother's statutory right to counsel when addressing attorney Arendt's motion to withdraw. By way of comparison, the facts of this case are closely analogous to In re Baby Girl Elliott, 2004 WL 1485858 (OhioApp.2004) (unpublished). In that case, mother's attorney also moved to withdraw because of a conflict with mother. Id. *8. Mother had a pattern of firing her attorneys and was on her third appointed attorney. Id. Moreover, there was a concern that this was a delaying tactic and it was necessary to...
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