People in Interest of A.R.P., 18452

• Decision Date: 27 April 1994
• Docket Number: No. 18452,18452
• Citation: 519 N.W.2d 56
• Parties: The PEOPLE of the State of South Dakota, in the Interest of A.R.P., Alleged Abused or Neglected Child, and Concerning D.R.P. and A.P., Jr. . Considered on Briefs on
• Court: South Dakota Supreme Court

Page 56

519 N.W.2d 56

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

A.R.P., Alleged Abused or Neglected Child, and

Concerning D.R.P. and A.P., Jr.

No. 18452.

Supreme Court of South Dakota.

Considered on Briefs on April 27, 1994.

Decided June 29, 1994.

Jeremiah J. Davis of Dakota Plains Legal Services, Pierre, for appellant Parents, D.R.P. and A.P.

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

WUEST, Justice.

D.R.P. (Mother) and A.P., Jr. (Father) appeal an order terminating their parental rights in A.R.P. We affirm.

FACTS

The record in this case details the history of a family severely affected by mental illness and alcoholism. The briefs offer a combined forty-one pages of facts which we attempt to summarize here from our review of the voluminous record.

Mother was born in 1960 in Eagle Butte, South Dakota, one of twelve children. She is a member of the Cheyenne River Sioux Tribe. She attended school for twelve years and attended some college classes in a nursing program offered by Presentation College on the Cheyenne River Reservation. Mother has a full-scale IQ of 69, placing her at the low end of the borderline range of intellectual abilities, or the high end of the mild mental retardation range of mental abilities. Mother has given birth to six children, five of whom were born during the period 1980 to 1988. These five children had several different fathers; no father was ever named for one of the children.

In February 1989, the Cheyenne River Sioux Tribal Court terminated Mother's parental rights in all five of the children born in the 1980 to 1988 period. At the dispositional hearing in the present matter, the Honorable Judge James Chasing Hawk of the Cheyenne River Sioux Tribal Court testified as to the history leading up to the termination of Mother's parental rights in her first five children, and the circuit court received as an exhibit the documents, including findings of fact and conclusions of law in that termination proceeding. Judge Chasing Hawk's testimony, as well as the written findings of fact, reveal that Mother's diagnosed schizophrenia, paranoid delusions, hallucinations, dangerous behaviors, abuse and wanton neglect of these children led to the termination of parental rights. The children were frequently found in conditions of squalor, including general filth, animal and human feces. On more than one occasion, the children were found unsupervised and locked in their apartment with the door tied shut. They were hungry, malnourished, underweight, filthy and with rotten teeth. The children were told by Mother not to leave the residence because there was a demon outside the door. Mother slept with a butcher knife because she believed that people were out to get her. She told family members that she had to cut the tails off her children because they looked like little devils. Mother refused to consistently take medication to control her mental illness. Mother was involuntarily committed to the South Dakota Human Services Center in Yankton (HSC) on at least three occasions in 1987 and 1988. She was offered a wide variety of social services and case service plans to assist her to acquire parenting skills, find housing, utilize day care, locate a job, obtain personal counseling and take medication. No service plans were ever successfully completed. The tribal court concluded that the evidence showed beyond a reasonable doubt that there were no less restrictive means to care for these children than to terminate Mother's parental rights.

Shortly following the termination of Mother's parental rights by the tribal court, she was voluntarily committed to HSC in February 1989. Approximately one month later, she was released to a transitional living facility in Pierre. A Capitol Area Counseling Service (CACS) worker became her mandatory protective payee and supervised the spending of Mother's SSI money and monitored Mother's medications for schizophrenia. Eventually, Mother moved into a subsidized rent apartment in October 1989. Mother continued working with the CACS, and the record shows that she functioned at a marginal level and was minimally cooperative until she became involved in a relationship with Father sometime in 1990.

Father was born in 1961 in Rosebud, South Dakota, one of five children. He is a member of the Rosebud Sioux Tribe. Father completed twelve years of education and spent some time in the Army. He has a full scale IQ of 80, placing him in the borderline range of intellectual abilities. He has been hospitalized at the HSC at least four times--1981, 1983, 1985 and 1990--and has been admitted to numerous other psychiatric and alcohol treatment programs around the country. Father has a long history of ethanol, alcohol, and other substance abuse. Like Mother, Father has been diagnosed with chronic paranoid schizophrenia. He has a history of auditory and visual hallucinations, and has reported hearing voices telling him to hang himself or to have sex with young females. He has reported a belief that someone is trying to kill him. At the time of his November 1990 hospitalization at HSC, Father reported that he was regularly drinking a twelve pack of beer, plus a pint of whiskey or bottle of wine each day. He has taken his medications inconsistently; and although the substance abuse exacerbates his schizophrenia, he has never remained substance-free for any significant period of time. Father has had numerous jail incarcerations for burglary, public intoxication and domestic violence. His parental rights to a child from a previous relationship were terminated in 1987.

Father moved into Mother's apartment sometime in 1990. The record shows that Mother had Father arrested for assaulting her on at least two occasions. The Department of Social Services (DSS) learned that Mother was pregnant with Father's child in September 1990. Mother was contacted and offered prenatal services, which she refused. Mother was hospitalized four times at St. Mary's Hospital in Pierre during her pregnancy, principally due to her inability or refusal to care for herself and her unborn child during the pregnancy. At the time of her fourth hospitalization at St. Mary's her schizophrenic behaviors had become markedly worse, since she was unable to take her medication during her pregnancy. While on the obstetrics ward, Mother told visitors to watch out for vampires, and to watch out for the nurses because nurses do strange things to babies. Mother was discharged to HSC. Although eight months pregnant at the time of her admission to HSC in February 1991, Mother denied being pregnant. She said that there was poison in her food, and people were trying to brainwash her. In view of her psychotic symptoms and refusal to care for herself, it was decided to medicate Mother in spite of her pregnancy. Mother improved, and when her psychotic symptoms were under control, she was released in March 1991 to the transitional living center in Pierre. Mother gave birth to A.R.P. on April 6, 1991.

In view of Mother's and Father's history, it was the position of DSS that A.R.P. was a child in need of protection. Upon A.R.P.'s release from the hospital, DSS removed him and placed him in foster care. DSS reported the removal and made a request for temporary custody under SDCL 26-8-19.1. The court entered an order ratifying the removal and for temporary custody of A.R.P. The parents were provided with an attorney from Dakota Plains Legal Services (DPLS) in June 1991. Both the Rosebud and Cheyenne River tribes were notified of the action. The Cheyenne River tribe intervened in June 1991, and the Rosebud tribe intervened in January 1992. In July 1991, the Cheyenne River Tribe filed a motion to transfer jurisdiction; thus, the adjudicatory hearing scheduled for August 1, 1991 was continued. The record would indicate that jurisdiction stayed in the state court. In November 1991, the DPLS attorney made a motion for pre-trial conference, and the State also made various motions for production of medical records. Discovery took place for some months, and a two-day adjudicatory hearing was held in April 1992. The court's order adjudicating A.R.P. an abused or neglected child was entered October 16, 1992. In September 1992, Mother and Father informed the court that their DPLS lawyer had resigned, and requested that the court appoint a new attorney for them. The court immediately appointed a new DPLS attorney for them. The date of the dispositional hearing was set for November 30, 1992. In the interim, the new DPLS attorney resigned, having never made an appearance on behalf of Mother and Father. Another DPLS attorney (present counsel) was assigned, and the hearing was reset for February 4-5, 1993. On January 11, 1993, counsel for Mother and Father asked for a continuance. On February 3, 1993, counsel for Mother and Father made a motion to reinstate unsupervised visitation. (The parents had been having unsupervised visits of several hours, but a pattern had developed wherein A.R.P. would return to the foster home with diarrhea, which would clear up until he visited Mother and Father again; then the diarrhea returned. Thus, DSS had implemented a supervised visitation plan.) A hearing was held on February 16, then continued until February 25, 1993. The court ordered that unsupervised visitation be reinstated, with "spot checks" by DSS workers. The dispositional hearing was held on May 25-26, 1993. On the first day of that hearing, counsel for Mother and Father made a motion to dismiss the action based on SDCL 26-8A-26, on the grounds that the statute provides that a child cannot remain in foster care for more than eighteen months without a dispositional decree. The court denied the motion, stating that it would not be "in the best interests of the child to simply forget about the matter." Lengthy testimony ensued from numerous witnesses, all detailing the...