People in Interest of E.D.J., s. 17825

Citation499 N.W.2d 130
Decision Date14 April 1993
Docket NumberNos. 17825,17864,s. 17825
PartiesThe PEOPLE of the State of South Dakota In the Interests of E.D.J., Minor Child, and concerning C.M. and H.M., Jr., Parents.
CourtSupreme Court of South Dakota

Robert C. Riter, Jr. of Riter, Mayer, Hofer & Riter Pierre, for appellant C.M., Mother.

Jamie L. Post, Pierre, for appellant E.D.J., Minor Child.

Mark W. Barnett, Atty. Gen., Joan P. Baker, Asst. Atty. Gen., Pierre, for appellee State of South Dakota.

MILLER, Chief Justice.

Mother and Child appeal the circuit court's order terminating Mother's parental rights. We affirm.

FACTS

E.D.J. (Child) was born April 10, 1979. His mother and biological father never married. Prior to September, 1988, Child lived in Wyoming where he acquired a stepfather. On September 4, 1988, Child, Mother and stepfather came to Pierre, South Dakota. The household also included his older brother, H.M., Jr. (Brother), a twenty-six-year-old aunt (M.), her husband (D.) and their six-year-old son, (R.). 1 In October, D. committed suicide. Child observed D. hanging by the neck in the family home.

A few weeks after this incident, Child's fourth-grade classmates were told to draw pictures of what they wanted to be when they grew up. Child, age nine, drew a picture of a person hanging by the neck from a building. Across the top of the picture he wrote "I am going to kill myself. This is me dead."

Child's school counselor interviewed him, filed a referral with the South Dakota Department of Social Services (DSS), and reported what had occurred to the Pierre Police Department. Child was interviewed by an officer who removed him from the home with Mother's approval. Mother knew Child had threatened suicide in the past and felt he might commit suicide if left unattended. Child was placed with Child Protection Services.

A November 4 hearing placed Child into foster care. Frank Dame, Phd., a clinical psychologist, evaluated Child and on November 18, Child was placed at McKennan Hospital's Psychiatric Acute Care Unit in Sioux Falls, South Dakota, where he underwent evaluation and treatment. Mother and employees of DSS signed the first of several "Case Service Plans" a few days before the February 28, 1989, adjudicatory hearing. Child was found to be neglected or dependent. 2

The court ordered DSS to maintain custody of Child while efforts were made to reunite Mother and Child. Child was transferred to Crossroads, which is a facility operated by Children's Home Society in Sioux Falls. That spring, Mother moved to Salem, South Dakota, which is approximately thirty-five miles from Sioux Falls. By October, the counselors at Crossroads felt Child needed a structured home environment. He was placed in a therapeutic foster home associated with Crossroads in Viborg, South Dakota. This placement appears to have been without the particular knowledge of Mother due to the fact that DSS was unable to find her. 3

Mother abducted Child on October 30, 1989. He was located in Texas five weeks later. 4 Mother disappeared August 7 1990, and was not heard from for fourteen months. 5 Eight months after her disappearance, DSS filed a second amended petition requesting termination of parental rights. A hearing was set for May 13, 1991. Mother could not be located and, after service by publication, an adjudicatory hearing was finally set for October 23. 6

Nine days before this hearing, Mother contacted her attorney who advised her of the upcoming adjudicatory hearing. Mother absented herself from the adjudicatory hearing though her interests were represented by her attorney. The court entered its adjudicatory findings of fact and conclusions of law finding State had proved by clear and convincing evidence that Child was abused and neglected. His custody was ordered to continue in DSS and a dispositional hearing was set for January 2, 1992, at which Mother did appear. At the conclusion of this hearing the court terminated Mother's parental rights from the bench. 7 This termination was subsequently embodied in a final order which was filed along with the trial court's dispositional findings of fact and conclusions of law. Mother and Child filed separate appeals which we have consolidated.

ISSUE I

WHETHER THE TRIAL COURT ERRED WHEN IT DID NOT DISMISS THIS

ACTION.

Mother, who was not served with actual notice and did not attend the 1991 adjudicatory hearing, asserts the trial court erred when it denied her motion to dismiss for improper service. In support of her assertion, she refers this court to Tulsa Professional Collection Serv. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). 8 There the Supreme Court held if the identity of a probate creditor is known, publication alone does not satisfy due process which requires "notice by mail or other means as certain to ensure actual notice." Id., 485 U.S. at 491, 108 S.Ct. at 1348, 99 L.Ed.2d at 579 (citation omitted). It appears that identification of a party, not their location, was at issue there. Further, that case was remanded to determine "whether 'reasonably diligent efforts' would have identified [the probate creditor.]" Id. (citation omitted). The record before this court supports the trial court's description of State's efforts to locate Child's parents as due and diligent, even "extraordinary."

Service by publication is permitted upon a party who is out of state and who "on inquiry cannot be found[.]" SDCL 26-7A-48; In re J.W.W., 334 N.W.2d 513, 516 (S.D.1983). 9 Mother disappeared August 7, 1990. Eight months later, DSS filed a second amended petition requesting termination of parental rights. No one had heard from Mother since August and she could not be located, so State moved to make service by publication in newspapers in the last known locations of Child's parents. Though Mother's attorney did not know where Mother was, he resisted State's motion and State's motion was denied. State was ordered to continue its attempts to make personal service. On August 15, State renewed its motion which was granted at a September 4 hearing. Even so, the court stated it wanted to wait "at least a couple weeks for the word to get out if it is going to get out" before scheduling a hearing date.

After fourteen months of silence, and barely a week before the hearing, Mother contacted her attorney who advised her of the October 23 adjudicatory hearing which could lead to termination of her parental rights. She did not tell her attorney where she was or how she could be located. A party will not be heard to complain that service was defective where the inability to achieve personal service was due to the complaining party's decision to make it impossible to be served personally. See In re B.A.R., 344 N.W.2d 90, 92 (S.D.1984) ("If the mother was at all injured by the lack of notice, it was her own doing." Id.). We need not decide whether Tulsa Professional Collection Serv. is applicable to the instant facts as its holding was complied with: Mother had actual notice. Further, her attorney represented her interests. The court did not err when it denied Mother's motion to dismiss.

ISSUE II

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

MOTHER'S MOTIONS FOR CONTINUANCE.

Mother alleges the trial court erred in denying her several motions for continuance of the 1991 adjudicatory hearing. "[T]he granting or refusal of a continuance is within the sound discretion of the circuit court, and its rulings will not be reversed absent a clear abuse of discretion." In re D.H., 408 N.W.2d 743, 746 (S.D.1987); In re C.J.H., 371 N.W.2d 345, 349 (S.D.1985). "The term 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984). The burden rests on Mother to insure her availability at the time of the hearing, C.J.H., 371 N.W.2d at 349, as a dependency and neglect hearing can proceed without the presence of the parent if the interests of the parent are accommodated. Id.; B.A.R., 344 N.W.2d at 92.

The original hearing date, May 13, 1991, had been rescheduled several times before it finally began on October 23. Mother gave her attorney various excuses why she could not attend. She did not know when she would be able to return. She told her attorney only that it would be at some indefinite point in the future, at least six weeks away. Nevertheless, at Mother's request, her attorney filed a motion, prior to the hearing, for a continuance which was denied as being in Child's best interests. Mother's attorney repeated this motion at the hearing and it was again denied. The hearing could not be concluded on October 23. It was continued to, and concluded on, November 12. Still Mother was absent. We have previously stated that a mother's

departure from the jurisdiction and her failure to maintain contact with relatives, attorney, or the court justified the court in not continuing the matter until the mother should return to South Dakota at some unforeseeable future date.

B.A.R., 344 N.W.2d at 92. See also C.J.H., 371 N.W.2d at 349.

Mother's interests were represented by her attorney. The adjudicatory hearing had already been delayed numerous times. Child had been in the custody of DSS for almost three years at this time. The trial court did not abuse its discretion when it found it was in Child's best interest to deny Mother's motions for continuance.

ISSUE III

WHETHER THE TRIAL COURT WAS CLEARLY ERRONEOUS WHEN IT FOUND

CHILD WAS A DEPENDENT OR NEGLECTED CHILD.

Mother asserts the trial court's determination that Child is dependent or neglected is based upon factual findings which are clearly erroneous. State must show by clear and convincing proof that Child is dependent or neglected. In re S.L., 419 N.W.2d 689, 692 (S.D.1988); Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982). "This court does not decide factual issues...

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