People In Interest of S.L.H.

• Citation: 342 N.W.2d 672
• Decision Date: 31 January 1984
• Docket Number: No. 14095,14095
• Parties: The PEOPLE of the State of South Dakota, In the Interest of S.L.H., a Minor Child and Concerning F.H.O. and P.H.
• Court: Supreme Court of South Dakota

Page 672

342 N.W.2d 672

The PEOPLE of the State of South Dakota, In the Interest of

S.L.H., a Minor Child and Concerning F.H.O. and P.H.

No. 14095.

Supreme Court of South Dakota.

Argued Sept. 14, 1983.

Decided Dec. 21, 1983.

Rehearing Denied Jan. 31, 1984.

Roberta Jean Earley, Spearfish, for appellant F.H.O.

William E. Anderson, Belle Fourche, for appellee S.L.H.

Thomas E. Brady, Spearfish, for appellee P.H.

Janice Godtland, Asst. Atty. Gen., Pierre, for appellee Dept. of Social Services; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

WOLLMAN, Justice

This is an appeal from an order of adjudication of dependency and neglect and a decree of disposition terminating appellant-mother's parental rights. The circuit court entered the order and decree subsequent to our remanding the case with instructions to conform to the "clear and convincing" evidentiary standard required by Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See In re S.H., 323 N.W.2d 851 (S.D.1982). We affirm in part and reverse and remand in part.

S.L.H. was born September 14, 1976. F.O., his mother, and P.H., his father, were separated prior to S.L.H.'s birth and divorced in 1977. Prior to the commencement of the dependency and neglect action in 1980, P.H. had seen S.L.H. about four times and had never provided financial support for the child.

In February of 1978, Department of Social Services (Department) received information that S.L.H.'s mother had left S.L.H., then seventeen months old, alone in their apartment. The social worker who conducted the investigation found that the mother had made arrangements for a babysitter who had turned out to be unreliable and that S.L.H. was alone and within reach of an oil stove that had an open flame. Department had contact with S.L.H. and his mother later that month when the mother had been evicted from her apartment and was out of money, food stamps, and diapers for S.L.H. S.L.H. was without socks, was dirty, and had impetigo. A doctor later diagnosed S.L.H. as being developmentally delayed and also referred S.L.H. to an ophthalmologist. Department helped the mother find another apartment and the mother agreed to place S.L.H. in foster care. In approximately ten days, S.L.H. was returned to his mother after she had cleaned her apartment and their clothes and had agreed to allow Department to be protective payee for ADC credit.

In March of 1978, Department received an anonymous and unverified report that S.L.H. was left alone. Upon investigating the situation, the social worker found S.L.H.'s mother in the apartment and apparently immobile because of an infected cut on her foot. The social worker also found that the mother was out of food stamps and that the apartment was dirty and disorganized. The mother informed the social worker that she was unable to put up S.L.H.'s crib and that she had been making a bed for him in the bathtub. ¹

The mother had to be hospitalized for her foot infection and again agreed to place S.L.H. in foster care. This foster care placement lasted for six to eight months. For part of this time the mother was also placed in the foster home so as to acquire some advice on parenting. ² Subsequent to her leaving the foster home and prior to S.L.H. being returned to her, the mother had given birth to a child, which she gave up for adoption.

At the time S.L.H. was returned from foster care, the mother had remarried and was living with her husband, an employee at the Homestake Mine, and his two children. The social worker felt that the home situation was improving, and for approximately one year after S.L.H.'s return there were no problems requiring Department intervention beyond occasional home visits by the social worker.

In October of 1979, Department investigated S.L.H.'s home situation after being informed of an accident in which S.L.H.'s eleven-year-old stepsister had shot herself in the chest with a loaded gun that was kept in the parents' bedroom. The parents were not at home and the stepsister was babysitting S.L.H. and his stepbrother at the time of the shooting incident. The gun, which was loaded with buckshot, was kept in a holster about three feet from the floor, and the social worker thought it was conceivable that S.L.H. could have reached the weapon. In December of 1979, the social worker investigated the home after being informed of bruises on S.L.H.'s face. The social worker found that the mother was not home at the time S.L.H. was injured, and that S.L.H. had fallen down the basement stairs while he was being taken care of by the eleven-year-old stepsister. Prior to this fall, the stepfather had installed an additional rail for S.L.H. to use on the stairs and family members had supervised his going down the stairs. The social worker requested that the mother get a gate for the basement doorway, which she did.

In May of 1980, Department took custody of S.L.H. and placed him in a foster home. The primary reason for removing the child from the home was the mother's alleged refusal to allow a computerized axial tomography (CAT) scan examination of S.L.H. ³ Other reasons given for the removal included reports of improper supervision in the home, observations that S.L.H. was dirty and wearing inappropriate clothing, and a psychiatric social worker's report stating the relationship between S.L.H. and his mother was "more competitive than nurturing."

When questioned about the supervision in the home, the social worker who had initiated the dependency and neglect proceedings conceded that S.L.H. had not been left alone but had been left with his stepsister, who in the social worker's opinion was not incapable of babysitting. Although he was unable to cite specific examples, the social worker felt, however, that the stepsister S.L.H.'s mother refused to consent to a CAT scan for S.L.H. when a pediatrician from Rapid City requested that this test be performed. The mother refused because she thought that the test would involve sticking pins and needles in S.L.H.'s head and running electricity through his head and that such a test would not be healthy for the child. The mother informed the social worker that she wanted a second opinion regarding the CAT scan and that she had made an appointment at the Homestake Clinic to obtain the second opinion. S.L.H. was taken from the home prior to the time set for the appointment.

was babysitting S.L.H. too often and for too long. The social worker also conceded that with the exception of his hands and face, S.L.H. was not unclean and that it was possible that S.L.H. had simply gotten dirty from playing. The concern regarding inappropriate clothing stemmed from observations by the social worker and S.L.H.'s teacher that S.L.H.'s clothes were too large. The teacher was also concerned that S.L.H. often did not wear socks and that a pair of cowboy boots which he sometimes wore and was apparently quite fond of were too long. Both the teacher and social worker considered S.L.H. to have been properly fed.

S.L.H. has apparently always had several problems. He suffers from intermittent exotropia, a condition in which one eye deviates outward intermittently. He also has a stiff heel tendon. S.L.H. has consistently been diagnosed as being developmentally delayed. At the age of four his level of intellectual function was tested and found to be within the mild mental retardation range. His special education teacher reported that S.L.H. fell down frequently, had bruises, and had problems in speech and other areas.

Department presented evidence by which it attempted to link S.L.H.'s developmental retardation with his environment. On August 15, 1978, the diagnosis of the Rapid City pediatrician was "developmental retardation, etiology uncertain, but most probably secondary to maternal deprivation." The doctor testified that at that time S.L.H. had been in foster care for three to four months and had made unbelievable progress since being with his new parents. The doctor also testified that he was unaware that the mother had been in the foster home. A psychologist's report stated that "while all of [S.L.H.'s] difficulties cannot be related to environmental causes, it seems to have significantly contributed to his lack of development."

Psychological evaluations of S.L.H.'s mother were also presented in these proceedings. One psychologist described the mother as manifesting symptoms of a severe personality disorder and as exhibiting narcissistic and borderline personality traits. This same psychologist also concluded that the mother exhibits a chronic history of poor adjustment and poor judgment and that her maternal capacity appears extremely limited.

A psychiatric social worker who had examined the mother as early as 1978 and had earlier described the relationship between S.L.H. and his mother as more competitive than nurturing, examined the mother again in 1981 and concluded that her capacity for judgment had improved since 1978 and that she clearly exhibited a capacity for change. When asked for an opinion regarding the mother's maternal capacities, this psychiatric social worker responded, "Subjectively I would not want her raising my children, but most of the people I know I would not want raising my children." Another psychiatric social worker testified that his testing of the mother indicated no serious emotional or psychotic illness.

There was considerable testimony concerning the sexual conduct of S.L.H.'s mother and stepfather. They had participated in "swinging," the exchange of sexual partners, on five or six occasions in 1979 and 1980. This "swinging" did not occur in S.L.H.'s presence.

Subsequent to S.L.H.'s removal from the home, there was an incident in which the stepfather hit S.L.H.'s mother. The social worker filed an affidavit of dependency and The original decree of disposition as well as the one entered after remand terminated the mother's parental rights and granted legal...