T.K., Matter of, 16894
| Decision Date | 17 September 1990 |
| Docket Number | No. 16894,16894 |
| Citation | 462 N.W.2d 893 |
| Parties | In the Matter of T.K., a Child in Need of Supervision. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Ann C. Meyer, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen. (on brief), Pierre, for appellee State.
William A. Moore, Scotland, for appellant child.
This is an appeal from an order declaring T.K. to be a child in need of supervision and placing him under the supervision of a court services officer for a term of six months. We affirm.
On August 8, 1989, Bon Homme County Sheriff Lyle O'Donnell signed a petition requesting that sixteen-year-old T.K. be declared a delinquent child pursuant to SDCL ch. 26-8. The petition was based on incidents occurring at the Bon Homme Hutterite Colony on June 17, 1989. The petition alleged that T.K. had violated SDCL 22-35-6, by entering or refusing to leave property after notice (trespass). 1
On the afternoon of June 17, 1989, Sheriff O'Donnell was called to a disturbance on the private cemetery of the Bon Homme Hutterian Brethren Colony near Tabor, South Dakota. It is apparently the only South Dakota cemetery in the Hutterian System. On his way to the cemetery, Sheriff O'Donnell stopped to pick up Reverend David Waldner, Vice-President of the Colony and its Elder, Ben Stahl.
Upon his arrival, Sheriff O'Donnell observed a group of people within the fence which enclosed the cemetery. He testified that the individuals in this group identified themselves as members of the "Arc of the New Covenant." O'Donnell further testified that the members of the group were digging holes in the cemetery ground and attempting to erect a new and separate fence inside the cemetery. He testified that the members of the Arc of the New Covenant had placed a headstone at a gravesite in the cemetery. O'Donnell also observed some members of the Bon Homme Hutterian Brethren Colony in the cemetery at the same time.
Sheriff O'Donnell observed T.K. in the cemetery at that time. While investigating the disturbance, he instructed each member of the Arc of the New Covenant to write his or her name and address on a piece of paper for identification purposes.
Reverend Waldner testified that the cemetery is private. Further, that he saw T.K. at the cemetery on the day in question, and T.K. was without permission to be there. However, Reverend Waldner testified that any Colony member has power to give permission for one to enter onto the grounds of the private cemetery and that it was possible that someone else gave permission for T.K. (whose mother formerly lived at the Colony) to have been there.
T.K. did not testify at the juvenile hearing. At the conclusion of the proceeding, the trial court found that the State had not established beyond a reasonable doubt that T.K. had committed the offense of trespass. It did, nevertheless, determine that T.K. was a child in need of supervision (ChINS). It ordered, based upon the best interests of the child, that T.K. be placed under the supervision of the court services officer for a period of six months. The court further emphasized that T.K. required supervision to prevent him from becoming embroiled, by his parents, in the serious dispute between the members of the Arc of the New Covenant and members of the Hutterian Brethren. 2 The court also instructed T.K.'s parents to make the child available to the court services officer to prevent his involvement, during his minority, in any ongoing illegal actions or civil disobedience with respect to the Bon Homme Colony.
T.K. has appealed. We affirm.
WHETHER THE TRIAL COURT PROPERLY FOUND T.K. TO BE A CHILD IN
NEED OF SUPERVISION.
SDCL 26-8-7.1 defines child in need of supervision as "... any child who is an habitual truant from school; who has run away from home or is otherwise beyond the control of his parent, guardian, or other custodian; or whose behavior or condition is such as to endanger his own or others' welfare." (Emphasis added.)
In cases involving ChINS, the burden of proof rests upon the State to prove the allegations beyond a reasonable doubt. See SDCL 26-8-22.5. Thus, the State must show beyond a reasonable doubt that the child is a truant, runaway or danger to himself or others.
Although this court has never specifically reviewed a ChINS adjudication, in reviewing a dependency and neglect adjudication, we have held that we consider whether the findings of the trial court are clearly erroneous. See People in Interest of M.W., 374 N.W.2d 889 (S.D.1985). "In determining whether the trial court was clearly erroneous, this court must be left with 'a definite and firm conviction that a mistake has been made' after a review of the evidence." Id. at 894 (citations omitted). It is well established that the purpose of any juvenile disposition is to serve the best interests of the child and the public. People in Interest of C.E.B., 263 N.W.2d 874, 876 (S.D.1978). We will apply the clearly erroneous standard in cases dealing with children in need of supervision.
T.K.'s parents were members of the Arc of the New Covenant. This religious sect was engaged in an ongoing conflict with the Bon Homme Hutterian Brethren Colony in Tabor, South Dakota. Confrontations between the members of these two rival religious factions created a potential for violence which has threatened T.K.'s welfare. As the trial judge noted, it is inappropriate to permit parents to exploit a child by dragging him into a religious dispute involving civil disobedience.
T.K. argues that the statutory definition of a ChINS does not encompass civil disobedience. He reasons that civil disobedience is not behavior which endangers an individual child's welfare. We disagree.
The evidence here supports the trial court's findings of fact and conclusions of law. Sheriff O'Donnell and Reverend Waldner testified that they observed T.K. inside a private cemetery of the Colony. Sheriff O'Donnell testified that T.K. and members of the Arc of the New Covenant were erecting a fence and headstone inside this private cemetery. Reverend Waldner testified that the Colony had previously obtained an injunction to prevent unauthorized visitors on the Colony's property. At a prior hearing, an order was granted prohibiting members of the Arc of the New Covenant from entering the colony's private cemetery without permission. The potential of violence existed. T.K.'s and other persons' welfare was threatened.
The record in this case reflects that the petition alleging T.K. to be a delinquent child was filed August 8, 1989. The order declaring him to be a child in need of supervision was filed on October 17, 1989. The trial court's findings of fact and conclusions of law were also filed October 17, 1989. T.K. filed notice of appeal on November 7, 1989. In March, 1990, the State made a ...
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