| (Cite
as: 402 N.W.2d 346)
Supreme
Court of South Dakota.
In
the Matter of S.D., K.C.H., and L.W., Alleged Dependent Children.
Nos.
15422, 15428.
Argued
Jan. 13, 1987.
Decided
March 11, 1987.
*347
John A. Schlimgen of Doyle, Mahoney & Lyons, Sioux Falls,
for appellant Mother.
*348
Steven G. Haugaard of Hunt & Haugaard, Sioux Falls, for
appellant father.
Peter Gregory, Sioux Falls, for appellee Children.
Janice Godtland, Asst. Atty. Gen., Pierre, (Mark V. Meierhenry, Atty.
Gen., Pierre, on the brief), for appellee State.
HENDERSON, Justice.
INDIAN
CHILD WELFARE ACT/TERMINATION OF PARENTAL RIGHTS
Parental rights of F.W. (hereinafter referred to as Mother) and
L.D.W. (hereinafter referred to as Father) were terminated as
to female children S.D., K.C.H., and L.W. Both
K.C.H. and L.W. possess sufficient quantities of American Indian blood
to require application of the Indian Child Welfare Act (ICWA).
S.D. is Caucasian. Parents contend their
rights were improperly terminated. Error by the trial
court was committed, they maintain, when it concluded:
(1)
With reference to K.C.H. and L.W. only, sufficient expert testimony
(as mandated by ICWA) supported termination of parental rights.
(2)
Reasonable and active efforts were made to rehabilitate and prevent
the dissolution of the W. family in accordance with both
state and federal directives.
(3)
Their continued custody of the children was likely to result
in serious emotional or physical damage to said children.
(4)
Termination of parental rights was the least restrictive alternative.
(5)
Their Stipulation of Dependency and Neglect was improperly accepted when
the standard of proof for termination of rights was not
determined at that time. This issue is raised
only by Father.
We affirm on all issues.
FACTS
Mother, a Caucasian, age forty-five, is the natural mother of
three girls, namely: S.D. (born February 25, 1970), K.C.H.
(born October 23, 1979), and L.W. (born July 16, 1981).
Mother is married to Father, age thirty-eight, an
enrolled member of Omaha Tribe, who is the natural father
of only L.W. L.W. was certified as eligible
for enrollment in the Omaha Tribe.
[FN1] K.C.H. is an enrolled member of Rosebud Sioux
Tribe.
[FN2] S.D. has no tribal affiliation, as she is
Caucasian, born of a white mother and father.
Having failed to perfect their appeals, S.D.'s father and K.C.H.'s
father are not parties to this action.
FN1.
The Omaha Tribe sent a Notice of Intent reflecting no
plan to participate in the State Court proceedings.
FN2.
On January 29, 1986, the trial court allowed the Rosebud
Sioux Tribe to intervene "for purposes of placement."
Father has an associate degree and has expressed interest in
becoming a nurse. He operated a foster-type care
program, together with his wife, in 1980 or 1981.
Mother has attended college for business administration. She
has worked as a waitress in addition to her involvement
in the foster program identified above.
The W. family has had contacts with Department of Social
Services (DSS) since at least 1981. Alcohol abuse
was and continued to be the family's main problem.
Mother and Father have exhibited repeated inability to control
their intake of liquor. Both Mother and Father
have a sordid history of alcohol abuse, with attendant arrests,
contemplated suicide, repeated violence in the home, unconsciousness, moves throughout
South Dakota and the nation, brief stays in missions and
halfway houses, temporary periods of residence at detoxification centers, sporadic
attendance at A.A. meetings, disorderly conduct, and various other episodes
created by chemical dependency.
Shortly after the January 29, 1986 Dispositional Hearing, Mother entered
an inpatient *349
alcohol treatment program at River Park in Sioux Falls and
successfully completed a thirty-day program. She appeared at
one of six Dispositional Hearings and did not testify.
Father appeared at three of six Hearings. He
was under the influence of alcohol at one hearing.
To secure his presence at the final hearing (March
26, 1986), Father had to be transported from jail as
he had been arrested for burglary and assault.
Additionally, he had been a client at the Arch Halfway
House--Sioux Falls Detoxification Center on January 4, 25, and 27,
1986.
S.D., the oldest daughter, testified that she did not wish
to return to Mother and Father nor to either one
individually. She stated she was often denied food,
clothing, Christmas presents, medical care, educational opportunities and the normal
care and attention a child needs from parents as a
result of Mother's and Father's almost constant alcohol abuse and
transient lifestyle. S.D. testified that she, more than her parents,
had cared for her two young sisters. S.D.
requested not to be returned to her Mother and Father
as she wished stability in her life and had made
some friends in the Sioux Falls area; she specifically
asked to remain in foster care. S.D. also
added that she felt her half sisters should not be
returned to Mother or Father. This testimony was
highly damaging to Mother's and Father's request to keep the
children.
K.C.H. underwent medical and psychological treatment centering upon self infliction
of sores and lesions on her arms and legs.
Psychological assessment, by Dr. Dickinson, indicated that this behavior
resulted from family instability. A constantly stable environment
was recommended.
The trial court acknowledged that ICWA applied to K.C.H. and
L.W. ICWA recites that termination of parental rights
requires a showing beyond a reasonable doubt that continued custody
of the child by the parent or Indian custodian would
result in serious emotional or physical damage to the child.
The clear and convincing standard was used regarding S.D., a
Caucasian, who is half-sister to K.C.H. and L.W.
Findings of Fact and Conclusions of Law were entered by
the trial court on May 16, 1986. Mother
and Father were found to be unfit parents.
The best interests of parents and children were considered and
termination of all parental rights was the least restrictive alternative
commensurate with children's best interests, per the trial court's holding.
Mother and Father have separately appealed. We have
consolidated these appeals for convenience, clarity, and dual consideration.
Each claimed error, set forth above, is treated seriatim.
DECISION
I.
ICWA provides:
No
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional
or physical damage to the child.
25 U.S.C. §
1912(f) (1982). Appellants contend that expert testimony, of
the caliber mandated by ICWA, was lacking in this case.
Appellants make reference to federal guidelines which identify
three possible types of expert witnesses.
(i)
A member of the Indian child's tribe who is recognized
by the tribal community as knowledgeable in tribal customs as
they pertain to family organization and childrearing practices.
(ii)
A lay expert witness having substantial experience in the delivery
of child and family services to Indians, and extensive knowledge
of prevailing social and cultural standards and childrearing practices within
the Indian child's tribe.
*350
(iii) A professional person having substantial education and experience in
the area of his or her specialty.
44 Fed.Reg. 67,584, at 67,593 (Nov. 26, 1979).
Appellants conclude that their parental rights to K.C.H. and
L.W. were improperly terminated. We do not agree.
Qualification of experts and admission of their testimony are matters
which fall within the trial court's sound discretion. In
re J.L.H.,
316 N.W.2d 650, 651 (S.D.1982); State
v. Iron Shell,
301 N.W.2d 669, 672 (S.D.1981); State
ex rel. Helgerson v. Riiff,
73 S.D. 467, 475, 44 N.W.2d 126,
130 (1950). A trial court's rulings in this area will be disturbed on
appeal only if its discretion was clearly abused. In
re J.L.H.,
316 N.W.2d at 651; Iron
Shell, 301
N.W.2d at 372; Riiff,
73 S.D. at 475, 44 N.W.2d at 130. In this case, a veritable plethora of
witnesses possessing expert credentials testified regarding the situation
of family W. Any number of these witnesses would satisfy both state and
federal regulations regarding expert testimony.
We note that federal guidelines quoted above are only guidelines and do
not have binding legislative effect. 44 Fed.Reg. 67,584 (Nov. 26, 1979).
In this case, expert testimony was elicited from individuals who would
undoubtedly satisfy the recommendation
of that provision.
[FN3] The fact-finder's decision was properly considered and supported
by testimony of experts and we so hold. We refer to In
re K.A.B.E.,
325 N.W.2d 840, 843 (S.D.1982), and a similar attack under the ICWA. Here,
we note that Social Worker Thompson had supervised over 300 Indian family
cases during her ten years of work experience and was involved in a supervisory
capacity in the W. family case for approximately six months. Social Worker
Baldwin's expertise with Indian families was limited to five to ten families
over a four-year period. We refer to (12) of footnote 3 *351
to further buttress the expertise of Indian input and expert opinion concerning
these children.
FN3.
The following persons testified:
(1)
Dr. Gary Dickinson, psychologist--testified regarding K.C.H.'s lesions. He
recommended "a very consistent, stable home environment" and added in
his opinion "self-inflicted lesions and the depression [were] related to
the lack of stability in the home situation."
(2)
Sioux Falls Social Worker Merlyn Baldwin--stated that unstable family environment
would result in emotional or physical damage if S.D., K.C.H.,
and L.W. remained in parental custody.
(3)
Sioux Falls Supervising Social Worker Linda Thompson--testified she was Baldwin's
(supra
) supervisor and noted that DSS rehabilitative resources for W.
family were exhausted. She recommended that the children
be removed for their own well being as no form
of rehabilitation is possible until parental alcoholism is confronted and
corrected.
(4)
Sister Ranek, Ph.D., counselor at Sacred Heart Convent--testified that Father
is an alcoholic whose prognosis is guarded. She
said he needed an initial structured inpatient treatment, followed by
a continuing outpatient program.
(5)
Chuck Currie, counselor at Aberdeen's Northern Alcohol Drug and Referral
Center--testified that Father is evaluated as alcohol dependent.
(6)
Chuck Evans, counselor at Aberdeen's Northeastern Mental Health Center--testified that
Father has severe alcohol dependency problems and Mother
had mild-moderate problems. He also noted that family
problems would escalate until the couple dealt with their alcohol
problems.
(7)
Kris Ziebell, supervisor of Chemical Dependency Unit at Yankton-- testified
as to Father's inclusion at Yankton and notes his problems
with alcohol and his premature exit from the program.
(8)
Police Officers Ensenbach (Yankton) and Wilson (Sioux Falls) testified as
to separate instances involving problems with Father and Mother.
(9)
Randy Frey, administrator of Arch Halfway House, Sioux Falls Detoxification
Center--testified as to Father's voluntary admissions unto said center.
(10)
Barb Peterson, social worker, Aberdeen--testified as to repeated problems Mother
and Father had with alcohol.
(11)
Marilyn Hawkins, director of patient care at River Park in
Sioux Falls--testified as to Mother's voluntary inpatient attendance, and successful
completion of one-month program. Noted Mother's problem was
intertwined with Father's alcohol problem and that Mother was more
apt to continue recovery if she was away from Father.
(12)
Rick Thomas (a half-blooded Indian, born and raised in the
Santee Sioux Tribe of Nebraska), clinical program director at Native
Alcohol Treatment Center in Iowa--testified that repeated parental violence neglect
and alcoholism could have severe negative impact upon their children.
We do not believe the ICWA was intended as a
shield to permit abusive treatment of Indian children by their
parents. Children should not be abused, neglected, or
forlorned under the guise of cultural identity.
II.
Appellants assert that State did not actively attempt to rehabilitate
the W. family prior to termination of parental rights.
See
25 U.S.C. §
1912(d) (1982), requiring active efforts "to provide remedial services and
rehabilitative programs...." This claim is based in large part
on the alleged failure of Sioux Falls Social Worker Baldwin
to take active steps to reconstruct the family situation.
We find this argument to be without merit.
Social Worker Baldwin may have been less adept at coordinating
and making available various resource personnel and facilities than other
social workers, as Appellants claim. But we must
bear in mind that Mother and Father had adopted a
particularly nomadic lifestyle which made contacting them difficult. In a
span of a few years, they lived in Sioux Falls,
Aberdeen, Mitchell, and Yankton, South Dakota; additionally, they lived
in the states of Nebraska, New Mexico, Florida, and Louisiana.
This Court does not decide factual issues de
novo. We take special note of Findings of
Fact XX and XXI, wherein the trial court finds:
Reasonable
efforts were made to prevent or eliminate the need for
removal of the
children and to make it possible for the children to
return home.
Appropriate
services to the family have failed and further services would
be unavailing.
Moreover, we need not decide if this Court would
have entered a mirror image of the trial court's findings.
Rather, we must determine if the "entire evidence
leaves a definite and firm conviction that a mistake has
been committed." In
re T.H.,
396 N.W.2d 145, 148 (S.D.1986) (citing Wiggins
v. Shewmake,
374 N.W.2d 111 (S.D.1985) and In
re D.H.,
354 N.W.2d 185, 188 (S.D.1984)).
A review of the evidence
in this case reveals that Mother, Father, and children had received services
from DSS dating from 1981. Food, shelter, medical treatment, transportation,
clothing, and various counseling services were provided to family members.
We should remain mindful that "[t]ermination of parental rights is
not conditioned on exhaustion of every possible form of assistance,"
In re J.S.N.,
371 N.W.2d 361, 364 (S.D.1985) (citing In
re C.L., 356
N.W.2d 476 (S.D.1984)), and where reasonable efforts "to aid or counsel
parents by the use of social services proves unavailing, termination of
parental rights is justified." In
re J.S.N.,
371 N.W.2d at 364 (quoting In
re S.S., 334
N.W.2d 59, 62 (S.D.1983)). See
In re T.H.,
396 N.W.2d 145. We conclude that State, by exhaustive effort, made every
reasonable effort to keep the W. family together.
III.
Appellants advocate that it was not shown that their further
custody of S.D., K.C.H., and L.W. would result in serious
emotional or physical damage to the children. They
conclude, therefore, that their parental rights were improperly terminated.
We also determine this argument to be unpersuasive.
Once again, Appellants request that we re-find the facts in
this case. "We are not in a fact-finding business
...," Hanson
v. Hanson,
397 N.W.2d 656, 657 (S.D.1986) (Henderson, J., concurring specially), and
a trial court's decision will be overruled only when this
Court is firmly convinced that the trial court's decision is
clearly erroneous. In
re S.M.,
384 N.W.2d 670, 673 (S.D.1986).
In this case, testimony
abounds regarding the violent and intoxicated behavior exhibited by both
Appellants. This family rarely had a room, let alone an apartment, of
their own. Shelters and missions *352
were commonplace abodes. Shortages of food, clothing, medical and parental
supervision were constant companions to these girls.
S.D. testified she did not wish to return to Mother
or Father, wanted a permanent home, and would run away
if returned to Appellants. K.C.H. suffered self-inflicted lesions
and her psychologist testified that he thought a lack of
stability was the cause. Other witnesses testified to
the necessity of removing the girls from Appellants' presence when
Appellants were fighting and intoxicated.
The law should permit children to "grow and
flourish." In
re J.S.N.,
371 N.W.2d at 365. See
In re C.L.,
397 N.W.2d 81, 89 (S.D.1986) (Henderson, J., concurring in result).
Past actions of parents speak louder than do
their promises to improve in the future. In
re J.M.V.D.,
285 N.W.2d 853, 855 (S.D.1979). We are unable
to conclude that a mistake has been made at the
trial court level.
IV.
Appellants assert that termination of parental rights was not the
least restrictive alternative. We disagree.
In these cases, the trial court is required to balance
the fundamental rights of a parent to raise his or
her child with the State's compulsion in protecting that child's
best interests. In
re P.M.,
299 N.W.2d 803, 807 (S.D.1980). But, the best interests of
the child must always prevail. S.M.,
384 N.W.2d at 673-74.
To terminate parental
rights, State must show that no narrower means of providing for the best
interests and welfare of the child exists. S.M.,
384 N.W.2d at 674. This least restrictive alternative determination must,
however, be viewed from the child's point of view. In
re C.L., 356
N.W.2d 476, 478 (S.D.1984).
Parental rights may be terminated if proffered State services are unaccepted
or unsuccessful. See
In re M.S.M.,
320 N.W.2d 795, 799 (S.D.1982).
In this case, both Mother and Father have consistently failed to control
their alcohol problems. The record is replete with instances of alcohol-related
treatment and failure. During the Dispositional Hearing, Mother was receiving
inpatient alcohol treatment. While this is commendable, we hold that it
is too little, too late. Father appeared at one hearing while under the
influence of alcohol. We conclude the trial court's termination of parental
rights was not clearly erroneous and will not be disturbed on appeal.
V.
Appellant Father urges that at the time he signed the
Stipulation of Dependency and Neglect, he was unaware that the
beyond a reasonable doubt burden of proof (via ICWA) must
be satisfied before his parental rights to L.W. was terminated.
He claims prejudice therefrom and identifies the proper
remedy as a reversal and remand. We disagree.
First of all, no authorities were cited in support of
his contention. See
Corbly v. Matheson,
335 N.W.2d 347, 348 (S.D.1983) (quoting State
v. Shull,
331 N.W.2d 284, 285 (S.D.1983)); see
also Graham v. State,
328 N.W.2d 254, 255 n. 2 (S.D.1982). It
therefore could be well argued that Father has waived his
argument.
However,
we shall address it in chief upon the following basis: First, this Court
has expressly identified the evidentiary standard at an adjudicatory stage
in a state proceeding under ICWA as "clear and convincing evidence."
K.A.B.E.,
325 N.W.2d at 843. Second, we further noted in K.A.B.E.
that the evidentiary burden increases to beyond a reasonable doubt when
termination of parental rights is sought. Id.
Third, in a Stipulation, there are no findings of fact, per se, as pertinent
facts have been agreed upon by the parties and, here, both Father and
Mother were represented by counsel prior to and during the signing of
said Stipulations. Lastly, a *353
burden of proof would have no place or posture in a stipulation.
Affirmed in all respects.
WUEST, C.J., MORGAN and SABERS, JJ., concur.
MILLER, J., concurs specially.
MILLER, Justice (concurring specially).
Appellants L.W. and F.W. allege many technical deficiencies or omissions
by the Department of Social Services and the trial court.
Their argument appears scholarly and persuasive until one
notes the remarkable absence of any claim that reversal of
the trial court would be in the best interests of
the children. Have appellants lost sight of the
well-established principle in these cases that the best interests of
the children is paramount? SDCL 26- 8-36;
Matter
of M.C.,
391 N.W.2d 674 (S.D.1986); People
in Interest of P.B.,
371 N.W.2d 366 (S.D.1985); People
in Interest of J.S.N.,
371 N.W.2d 361 (S.D.1985); People
in Interest of C.L.,
356 N.W.2d 476 (S.D.1984); People
in Interest of S.L.H.,
342 N.W.2d 672 (S.D.1983); In
re M.S.M.,
320 N.W.2d 795 (S.D.1982). Neither in their briefs
nor in their oral arguments have appellants claimed that they
are fit parents, that the family is rehabilitative, or that
the best interests of the children mandate their return to
their parents. Rather, they merely attack the alleged
deficiencies in the State's presentation.
Further, the Indian Child Welfare Act issues raised by appellants
have clouded the crucial issue, namely the best interest of
the children. Admittedly, since two of the children
are Indian the ICWA must be considered and applied. However,
we are not dealing with cultural differences--rather, we are dealing
with neglect of children. Here, we have alcoholic,
[FN*] neglectful, abusive parents, whose race is irrelevant.
No one would claim that the lifestyle of appellants was
that of traditional Indians. To the contrary, the
Indian culture is steeped in high family values and love
of children.
FN*
The majority opinion indicates that the mother has "successfully completed"
in-patient alcoholism treatment. Although some improvement has been
shown, I am not persuaded that she can truly be
characterized as a recovered alcoholic. As the saying
goes, "the jury is still out" on that issue.
402 N.W.2d 346
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