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2011 S.D. 81

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                     ****

                        IN THE MATTER OF M.V.,
                   ALLEGED ABUSED/NEGLECTED CHILD.

                                     ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                     ****

                       HONORABLE GENE PAUL KEAN
                           Retired Circuit Judge

                                     ****

MARTY J. JACKLEY
Attorney General

JEREMY D. LUND
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota                           Attorneys for petitioner and
                                               appellee State of South
                                               Dakota.

MARK KADI of
Minnehaha County Office
 of the Public Advocate
Sioux Falls, South Dakota                      Attorneys for respondent
                                               and appellant Mother Y.Z.

                                     ****

                                               CONSIDERED ON BRIEFS
                                               ON OCTOBER 03, 2011

                                               OPINION FILED 12/07/11
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ZINTER, Justice

[¶1.]        A one-month old child was taken to the hospital in critical condition

after the child’s father called emergency services. The father was caring for the

child while the child’s mother was at work. Doctors determined that the child’s

injuries were consistent with non-accidental trauma, and they reported the case as

potential child abuse. The State took custody of the child and started an abuse and

neglect proceeding. Months later, the child was adjudicated abused or neglected.

Following a period of State supervision, the child was returned to his mother and

the case was dismissed. Mother appeals multiple rulings made during the abuse

and neglect proceeding. We affirm.

                           Facts and Procedural History

[¶2.]        M.V. (Child) was born in August 2008. Other than a bit of jaundice

and an eye infection that cleared up, Child was a healthy baby. Y.Z. (Mother)

stayed home with Child for the first month, but returned to work part-time as a

research physician at Sanford Hospital. At that point, U.V. (Father), who was a

stay-at-home father, became Child’s primary caretaker while Mother worked.

[¶3.]        On October 1, 2008, Father pointed out red marks on Child. He called

them allergies, but Mother told Father the marks were bruises. Father thought he

was possibly holding Child too tight or that the bruises occurred when he was

holding Child while working on his computer.

[¶4.]        The next day, Mother fed Child in the morning, went to work as usual,

and came home for lunch around 11:15 a.m. Around 2 p.m., Mother left Child in

Father’s care and returned to work. At that point Child had suffered no injuries.


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[¶5.]        Later that afternoon, Father called for emergency services, and law

enforcement responded. The officers found Father holding Child, who was gasping

for air. Mother was not present. An officer placed Child on the ground while

continuing to support Child’s head, neck, and back to ensure that Child continued to

breathe. Within a short time, an ambulance arrived. An oxygen mask was placed

on Child’s face. An officer carried Child to the ambulance where Child was placed

on a cot.

[¶6.]        On the way to the hospital, Child was intubated by ambulance

technicians. Child was turned over to medical personnel for treatment at the

hospital. Dr. Robert Cheatham observed bruising in the pattern of a human hand.

Dr. Cheatham also observed subdural and subarachnoid hemorrhages, massive

cerebral edema, and respiratory failure, all of which was noted as being consistent

with Child having been shaken. Dr. Nancy Free observed Child’s injuries and

concluded that Child sustained non-accidental trauma. From observing Child’s

CAT scans and history, Dr. Susan Duffek, a pediatric radiologist, also determined

that Child suffered from non-accidental trauma.

[¶7.]        Later that night, officers were called back to the hospital. The officer

that had earlier accompanied Child to the hospital now observed injuries that she

had not seen before: multiple bruises and a swollen-shut right eye. Dr. Free

reported that the Child’s injuries were consistent with child abuse. Dr. Free opined

that the pattern bruising on Child’s extremities was consistent with a

circumferential squeeze by an adult hand and that the linear bruising on Child’s

shoulder was consistent with Child being pushed or thrown against an object or


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something being pulled against Child’s skin. Dr. Free also noted bruises on Child’s

face. Considering the bruising, subdural bleeding and extensive brain swelling, Dr.

Free diagnosed non-accidental, abusive head trauma. Dr. Free noted that Child

was only one month old and was not capable of moving and bruising himself in the

manner observed. 1

[¶8.]         Child was taken into temporary custody by the State. In October 2008,

the State filed a petition alleging that Child was an abused or neglected child. In

early 2009, Child was placed with Mother for trial reunification. An adjudicatory

hearing was held in April 2009. Mother argued that Child was not abused or

neglected. In the alternative, Mother argued that the court should make separate

findings for Mother and Father, and the findings should indicate that Mother was

not at fault. The circuit court found Child to be abused or neglected under SDCL

26-8A-2 subsection (1) (a child subject to mistreatment or abuse) and subsection (3)

(a child whose environment is injurious to the child’s welfare) but not under

subsection (5) (a child who is without proper care through no fault of the child’s

parent). 2



1.      Dr. Bonnie Bunch testified at the adjudicatory hearing. She agreed with the
        diagnosis that all of Child’s injuries indicated this was non-accidental
        trauma.

2.      SDCL 26-8A-2 provides in relevant part:

              In this chapter and chapter 26-7A, the term, abused or neglected
              child, means a child:
                     (1) Whose parent, guardian, or custodian has abandoned
                     the child or has subjected the child to mistreatment or
                     abuse;
                     ...
                                                              (continued . . .)
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[¶9.]        The court dismissed the abuse and neglect action as to Mother on May

5, 2010, and restored legal custody to Mother subject to a six-month protective

period of supervision. The court did not dismiss the case as to Father because

criminal charges of aggravated assault and abuse or cruelty to a minor were still

pending. On July 30, 2010, Father was acquitted of the criminal charges. A month

later, the State moved to dismiss the abuse and neglect action because the State

had provided all the assistance it could and it had no further reason to stay

involved. The court subsequently dismissed the abuse and neglect action as to

Father.

[¶10.]       Mother raises six issues on appeal. Three of those issues do not merit

discussion. We address the following questions:

             1.     Whether the circuit court erred in declining to make
                    separate findings regarding Mother’s and Father’s
                    culpability.

             2.     Whether the circuit court clearly erred in finding Child
                    abused or neglected.

             3.     Whether the circuit court erred in declining to
                    alternatively find that Child was abused or neglected
                    under SDCL 26-8A-2(5).

                                      Decision

[¶11.]       Mother argues that South Dakota’s Rules of Civil Procedure required

the circuit court to make separate findings of fact regarding Mother’s role in any

________________________
(. . . continued)
                  (3) Whose environment is injurious to the child’s welfare;
                  ...
                  (5) Who is homeless, without proper care, or not domiciled
                  with the child’s parent, guardian, or custodian through no
                  fault of the child’s parent, guardian, or custodian; . . . .

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abuse or neglect of Child. The Rules of Civil Procedure in SDCL chapter 15-6 apply

to adjudicatory hearings except as otherwise provided. SDCL 26-7A-56. Under the

Rules of Civil Procedure, a circuit court is required to make findings on all disputed

issues of material fact. DeHaven v. Hall, 2008 S.D. 57, ¶ 38, 753 N.W.2d 429, 441.

However, a fact is not material unless it affects the outcome of the suit. Fin-Ag, Inc.

v. Pipestone Livestock Auction Mkt., Inc., 2008 S.D. 48, ¶ 21 n.13, 754 N.W.2d 29, 40

n.13. Therefore, there is no obligation to make findings on issues not necessary to a

determination of the action. Davies v. Toms, 75 S.D. 273, 281, 63 N.W.2d 406, 410

(1954).

[¶12.]       In this case, the only issue necessary to determine the action was the

status of the child, i.e., whether Child was abused or neglected under SDCL 26-8A-

2. An “[a]djudication of a child as an abused or neglected child is an adjudication of

the status or condition of the child who is the subject of the proceedings and is not

necessarily an adjudication against or in favor of any particular parent, guardian,

or custodian of the child.” SDCL 26-8A-1. Therefore, specific findings regarding

Mother’s culpability were not necessary to adjudicate Child’s abused or neglected

status.

[¶13.]       Mother, however, argues that she was prejudiced by the court’s failure

to make separate findings. Mother points out that an adjudication of abuse or

neglect constituted grounds for placement of her name on the central registry for

child abuse or neglect. See ARSD 67:14:39:03(2) (providing that a person’s name

shall be placed on the central registry if there “is a court finding of abuse or

neglect”). Mother contends that placement of her name on the registry jeopardizes


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her job as a research physician at Sanford Hospital because placement on the

registry prevents employment in any institution like Sanford that “receive[s]

children for care” or “provides care for mothers and their children.” See SDCL 26-6-

1; SDCL 26-6-14.11.

[¶14.]         As previously noted, however, an abuse and neglect adjudication

involves the status of children, not their mothers or fathers. Furthermore, if

Mother is improperly placed on the child abuse registry, that placement will occur

by act of the Department of Social Services. Therefore, Mother’s remedy is with the

Department rather than the juvenile court that is adjudicating the status of the

child. 3 Because specific findings regarding Mother’s role in the abuse or neglect

were not necessarily required to adjudicate Child’s status, the circuit court did not

err in declining to make separate findings regarding Mother’s relative role in the

abuse or neglect.

[¶15.]         Mother next argues that the circuit court clearly erred in finding that

Child was abused or neglected. Whether a child has been abused or neglected is a

question of fact that is reviewed for clear error. People ex rel. D.A.J., 2008 S.D. 92,

¶ 13, 757 N.W.2d 70, 74. We will not set aside such findings unless “we are left

with a definite and firm conviction that a mistake has been made.” Id. This Court

“give[s] due regard to the [circuit] court’s opportunity to judge the credibility of

witnesses.” Id.


3.       Indeed, Mother’s reply brief reflects that Mother initiated administrative
         proceedings with the Department of Social Services to remove her name from
         the central registry. It further appears that her name was removed and the
         administrative matter was dismissed without prejudice pending the outcome
         of this appeal.

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[¶16.]       Mother contends that Child’s injuries were inflicted by law

enforcement officers, ambulance technicians, or medical personnel treating Child.

The circuit court, however, found that Child was injured prior to the emergency

response and the medical treatment. The evidence supports that finding. Dr.

Duffek testified that Child’s hemorrhaging could not have been caused by a lack of

oxygen due to improper intubation by emergency medical personnel. Moreover,

Mother cites no medical testimony or other evidence even suggesting that the

pattern bruising, bleeding, and swelling of the brain could all be the result of

emergency medical treatment.

[¶17.]       On the contrary, Dr. Cheatham, Dr. Free, Dr. Duffek, and Dr. Bunch

all diagnosed Child’s injuries as being consistent with non-accidental injury. Dr.

Cheatham and Dr. Free testified that the bruising was in the pattern of a human

hand. Dr. Free testified that the linear bruising was consistent with Child being

pushed or thrown against an object or something being pulled against Child’s skin.

All four doctors indicated the swelling and bleeding in Child’s brain was evidence of

non-accidental trauma. Finally, there was evidence that the pattern and amount of

bleeding could only have been caused by some type of violent action, such as violent

shaking or a high-speed motor-vehicle accident. Considering all the evidence, the

circuit court did not clearly err in finding that Child was abused or neglected.

[¶18.]       Mother finally argues that the circuit court erred in failing to

alternatively find that Child was abused or neglected under SDCL 26-8A-2(5). The

circuit court found that Child was abused or neglected under SDCL 26-8A-2(1) and

(3). The court made no finding with respect to SDCL 26-8A-2(5). We have


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previously held that proof of any one of the subsections of the abuse and neglect

statute standing alone is sufficient to sustain adjudication of abuse or neglect. See

In re S.L., 419 N.W.2d 689, 693 (S.D. 1988) (construing the predecessor statute,

SDCL 26-8-6). Because the court found that Child was abused or neglected under

SDCL 26-8A-2(1) (mistreatment or abuse) and SDCL 26-8A-2(3) (injurious

environment), the court was not required to make additional findings under SDCL

26-8A-2(5) (whether Child was without proper care through no fault of the Child’s

parent).

[¶19.]       Affirmed.

[¶20.]       GILBERTSON, Chief Justice, and KONENKAMP and WILBUR,

Justices, concur.

[¶21.]       SEVERSON, Justice deeming himself disqualified, did not participate.




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