People In Interest of G.H., 15019

• Decision Date: 18 June 1986
• Docket Number: No. 15019,15019
• Citation: 390 N.W.2d 54
• Parties: The PEOPLE of the State of South Dakota in the Interest of G.H., V.H., A.H., and N.H., Children, and Concerning C.M.H., C.H., D.H., a/k/a D.H., and South Dakota Department of Social Services.
• Court: South Dakota Supreme Court

Page 54

390 N.W.2d 54

The PEOPLE of the State of South Dakota in the Interest of

G.H., V.H., A.H., and N.H., Children, and

Concerning C.M.H., C.H., D.H., a/k/a

D.H., and South Dakota

Department of Social

Services.

No. 15019.

Supreme Court of South Dakota.

Argued April 22, 1986.

Decided June 18, 1986.

John T. Hughes of Morman, Smit, Shepard, Hughes & Wolsky, Sturgis, for appellant C.M.H., Mother; and for G.H., V.H., and A.H., Minor Children.

Bruce A. Hubbard of Morrill, Hansen, Hubbard & Brown, Sturgis, for appellee D.H., Father.

William E. Anderson, Belle Fourche, on brief, for appellee N.H., Minor Child.

Janice Godtland, Asst.Atty.Gen., Pierre, for appellee South Dakota Department of Social Services; Mark V. Meierhenry, Atty.Gen., Pierre, on brief.

HENDERSON, Justice.

PROCEDURAL HISTORY/FACTS

C.M.H. (mother), appeals from (1) an Order of Adjudication which adjudged mother's children to be dependent and neglected, (2) an Interim Decree of Disposition which placed temporary custody of one of mother's five children with that child's natural father, and (3) a Decree of Disposition which granted custody of this child to its natural father. Mother's rights were not terminated. We affirm.

Mother and C.W.H. (first husband), were married in Nevada in 1976. Prior to this marriage, however, G.H. was born on November 15, 1976. After this marriage, V.H. was born on December 7, 1977, and A.H. was born on February 24, 1981. In 1982, mother and C.W.H. were divorced in California. Mother was awarded custody of G.H., V.H., and A.H. ¹

Mother and D.H. (who became her second husband), began a relationship prior to mother's divorce and on July 21, 1982, N.H. was born. Thereafter, and in November 1982, mother and D.H. were married.

This second marriage and relationship, however, proved unstable and after its inception and until October 1983, separations were frequent and extended. During this time, mother and her four children, and occasionally D.H., resided in various shelters, motels, apartments, rented houses, and homes of friends, relatives and acquaintances in California, Texas, Utah, and Oregon.

In October 1983, mother and second husband separated permanently. Thereafter, and until April 1984, mother and her children moved frequently without the benefit of apparent prior planning. They lived in battered women's shelters, rental properties, church-affiliated shelter homes, shelters for indigents, and homes of friends, relatives, and acquaintances in some fourteen cities in California, Indiana, Florida, Mississippi, Texas, Colorado, and South Dakota. ² It appears that every time a problem arose, mother and the children would move without any forethought. During this time, the oldest children were enrolled in school intermittently and such enrollment had a short duration.

In 1984, mother and D.H. were divorced in California and both were awarded joint legal custody of N.H., with physical custody being awarded to mother. In April of that same year, mother was arrested in Meade County, South Dakota, for possession of a stolen motor vehicle. The automobile was rented and never returned, but no prosecution ever resulted from this incident. At the time of her arrest, mother was heading to Denver, Colorado.

Following mother's apprehension, the South Dakota Department of Social Services investigated the children's possible dependency and neglect, and a Juvenile Petition alleging the same was filed on April 19, 1984. A Temporary Custody Order was issued that same date placing temporary custody of the children with the Department of Social Services (Department). When the Department attempted to procure the children's custody, mother, who was then residing with an acquaintance in Piedmont, South Dakota, locked herself and her children in a room and threatened to kill herself and her children. The Department, however, eventually procured custody of the children and they were then placed in foster homes.

In early May 1984, mother attempted to remove two of the children from their foster home in Rapid City. During this attempt, mother physically assaulted the custodial foster mother. Thereafter, a Restraining Order was issued restraining mother from any contact with her children.

An adjudicatory hearing was thereafter held, and based on the proceedings therein, the circuit court determined by an Order of Adjudication dated September 13, 1984, that clear and convincing evidence established that they were dependent and neglected in that they lacked proper parental care through the actions or omissions of mother. SDCL 26-8-6(2). An interim dispositional hearing was then held, and by an Interim Decree of Disposition dated October 5, 1984, the children's legal custody was granted to the Department. Temporary physical custody of G.H., V.H., and A.H., however, was placed with mother. However, temporary custody of N.H. was placed with the child's father, D.H., who resided in Modesto, California. This concept of split custody in a sibling group weighs heavily in this appeal.

Various programs were then instituted so as to counsel mother and father and improve their parenting skills. Through these programs and counseling, their parenting skills and awareness were greatly improved and their separate family lives stabilized. In March 1985, mother gave birth to a baby boy who is not involved in these proceedings. The father of this new child appears to be C.W.H., the father of the three oldest children. Thus, at the time of the dispositional hearing, mother had custody and control of four children, G.H., V.H., A.H., and the newborn child.

A dispositional hearing was conducted on May 13-15, 1985, in Sturgis, Meade County, South Dakota. By a Decree of Disposition, the circuit court granted D.H. (father of N.H.), legal and physical custody of N.H.; mother was granted legal and physical custody of G.H., V.H., and A.H. Mother's parental rights were not terminated. In so granting D.H. the custody of N.H., the circuit court noted that siblings should generally be raised together absent compelling reasons to the contrary, but that the general rule should not be detrimentally enforced contrary to the best interests of any individual child. The circuit court also noted that the least restrictive alternatives, in keeping with N.H.'s best interests, were greater in number and scope than the other children's; further, that the potential for fulfillment of N.H.'s temporal, mental, and moral welfare was greater if custody was granted unto the father, rather than residing with his mother and siblings. Thus, the circuit court concluded that N.H.'s best interests, with due regard for mother's and the public's rights and interests, required placement with the father and that such placement was the least restrictive alternative.

From the Order of Adjudication, the Interim Decree of Disposition, and the Decree of Disposition, mother now appeals.

DECISION

I.

THE TRIAL COURT DID NOT CLEARLY ERR IN ADJUDGING THE CHILDREN TO BE DEPENDENT AND NEGLECTED.

In adjudicatory hearings in circuit court, the standard of proof is the clear and convincing evidence standard. SDCL 26-8-22.10; In re D.B., 382 N.W.2d 419, 421 (S.D.1986); In re M.W., 374 N.W.2d 889, 894 (S.D.1985). When we review a dependency and neglect adjudication, we must determine whether the findings of the circuit court are clearly erroneous. SDCL 15-6-52(a); In re H.L., Jr., 386 N.W.2d 495, 499 (S.D.1986); In re A.M.L., 371 N.W.2d 358, 359 (S.D.1985). The question thus presented for our determination is not whether we would have made the same findings as the circuit court, but whether we are left with a definite and firm conviction that a mistake has been made. In re D.M., 367 N.W.2d 769, 772 (S.D.1985). See also, In re M.J.B., 364 N.W.2d 921, 923 (S.D.1985). After reviewing the settled record herein, we are not left with a definite and firm conviction that a mistake has been made.

As the facts recited above establish, from October 1983 until April 1984, mother and her children led a transitory life, residing in shelters and various other accommodations in some seven states touching both coasts. ³ During this time, the children were enrolled in school for only several weeks and mother depended on divers people for food and shelter, whom mother met during her unplanned travels. In divorce custody proceedings, we have recognized that frequent moves and transient life-styles are not in the best interests of children. See Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984); Langerman v. Langerman, 336 N.W.2d 669, 672 (S.D.1983); and Haskell v. Haskell, 324 N.W.2d 423, 424-25 (S.D.1982). Under these circumstances, the children lacked proper parental care through the actions or omissions of mother, SDCL 26-8-6(2), and the circuit court was not clearly erroneous in so concluding.

II.

THE CIRCUIT COURT BALANCED MOTHER'S RIGHT TO RAISE HER CHILDREN WITH THE BEST INTERESTS OF N.H. AND THE PUBLIC.

In the dispositional phase of dependency and neglect proceedings, the circuit court must balance the fundamental right of a parent to raise his or her children with the best interests of the child and the public. In re S.H., 337 N.W.2d 179, 181 (S.D.1983); In re P.M., 299 N.W.2d 803, 807 (S.D.1980). See also, SDCL 26-8-22.11; and In re A.L.P., 368 N.W.2d 617, 621 (S.D.1985). On appeal, mother makes the bald assertion that the circuit court failed to make such a balance.

The findings of fact and conclusions of law entered after the dispositional hearing clearly reflect that the circuit court balanced mother's right to raise N.H. with the best interests of the child and the public. Mother's assertion to the contrary is completely without merit, as reflected by the record herein.

III.

THE CIRCUIT COURT DID NOT ERR IN AWARDING FATHER CUSTODY OF N.H.

After adjudging mother's children to be dependent and neglected, the circuit court held a dispositional hearing as mandated by SDCL 26-8-22.10. Thereafter, the circuit...