#23747-rev & rem-SLZ

2006 SD 17

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                 * * * *

THE PEOPLE OF THE
STATE OF SOUTH DAKOTA
IN THE INTEREST OF P.K.,
C.K., & K.K.,                          Appellants and Minor Children,

and concerning

L.K.,                                  Respondent and Appellee.

                                 * * * *

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIFTH JUDICIAL CIRCUIT
                     BROWN COUNTY, SOUTH DAKOTA

                                 * * * *

                       HONORABLE LARRY H. LOVRIEN
                                 Judge

                                 * * * *

KELLY MARNETTE                         Attorney for appellants
Aberdeen, South Dakota                 minor children.

ANN M. HOLZHAUSER
Assistant Attorney General
Department of Social Services          Attorney for appellee
Pierre, South Dakota                   State of South Dakota.

WILLIAM D. GERDES                      Attorney for appellee
Aberdeen, South Dakota                 Father L.K.

                                 * * * *

                                       CONSIDERED ON BRIEFS
                                       ON JANUARY 9, 2006

                                       OPINION FILED 03/01/06
#23747

ZINTER, Justice

[¶1.]         Three children appeal the trial court’s refusal to terminate their

father’s parental rights.1 We reverse and remand.

                           Facts and Procedural History

[¶2.]         On February 16, 1993, L.K. (Father) was convicted of engaging in

sexual intercourse without consent.2 He was sentenced to ten years imprisonment

with five years suspended. After two and one-half years, Father was released on

probation. During the next four years, Father and D.K. (Mother) had three

children, P.K., C.K., and K.K. Following the birth of the children, Father’s

probation was revoked,3 and he was re-incarcerated in the Montana State Prison.

[¶3.]          While Father was incarcerated, Mother and the children moved to

South Dakota. Mother began working with the South Dakota Department of Social

Services (DSS) in August 2001, when the children were four years, two years, and

nine months of age. In January 2002, Mother took the children to DSS asking that

the children be put up for adoption because she did not want them anymore.



1.      Although Father did not request custody of the children at trial, he expressed
        a desire to retain his parental rights. However, on appeal, Father has not
        filed a brief supporting the trial court’s decision. The Department of Social
        Services has joined the children’s brief. Mother voluntarily terminated her
        parental rights and is not involved in this appeal.

2.      On October 25, 1991, Father, who was then eighteen years old, had sexual
        intercourse with two girls, who were eleven and twelve years old.

3.      Testimony at the dispositional hearing held on April 25, 2003, indicated that
        Father’s parole was revoked because he failed to attend group counseling and
        obtain employment. Furthermore, a psycho-sexual evaluation of Father,
        which was introduced into evidence as Exhibit 3, indicated that Father
        violated his parole by dating a woman that had children.

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Mother told DSS that she became so frustrated with the children that she was

afraid she would throw them against the wall and cause physical harm.

Consequently, DSS filed an abuse and neglect petition.

[¶4.]        On May 13, 2002, an adjudicatory hearing was held. Father was still

incarcerated and unable to attend the hearing, but he appeared through his

attorney. Mother and Father admitted the allegations of the petition, and the trial

court adjudicated the children abused and neglected. The trial court also gave legal

and physical custody of the children to DSS. Subsequently, DSS placed physical

custody with the maternal grandparents.

[¶5.]        A review hearing was held on August 15, 2002. At the review hearing,

the trial court continued custody with DSS, and the children’s physical placement

remained with the maternal grandparents. Also, DSS notified Mother that they

were going to request a termination of parental rights.

[¶6.]        A dispositional hearing was scheduled for February 21, 2003. Mother

appeared with her attorney and agreed to a termination of parental rights. Father’s

attorney filed a motion for a continuance based on a lack of correspondence with

Father due to his incarceration. The trial court terminated Mother’s parental rights

and granted Father’s motion for a continuance.

[¶7.]        A final dispositional hearing for Father began on April 25, 2003.

Although Father was still incarcerated, he appeared via video conference. Father

testified that he might be released on parole in June 2003. Father, however,

admitted that he was unable to care for the children because of his incarceration.

He further admitted that, even if released that day, he would be unable to take over


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custody of the children. Father finally admitted that the children were in a “good

environment” with the maternal grandparents. After observing all of the evidence

and testimony, the trial court found that the conditions that led to the removal of

the children still existed. The trial court further found that there was little

likelihood that those conditions would be remedied. However, the trial court

declined to terminate Father’s parental rights, finding that DSS had failed to

provide reasonable efforts to reunite the children with Father. The trial court then

ordered a sixty day continuance to determine if Father would be released from

prison, and if so, whether Father would be able to care for the children. The trial

court did, however, express concern about the children being held “in limbo” if

Father was not released in June. The trial court stated:

             The Court at this time will continue the matter for 60 days to
             get that additional information. If, in fact, the father will be out
             and will be able to be worked with by the department, and the
             conditions which led to the children being removed from the
             home, part of which is the father’s absence, can be remedied, the
             Court would consider that. If he’s not going to be getting out
             and not going to be getting out for at least a year, well, the
             Court’s got to consider whether or not at that point the
             conditions can be remedied so the children can be returned to
             the custody of the parent, and the Court will have to consider
             that in light of the need to have these decisions made in a timely
             way so that the children aren’t held in limbo for an extended
             period of time waiting for some parent to try to get their life back
             together.

(Emphasis added.)

[¶8.]        Pursuant to the court’s decision, on August 15, 2003, DSS and Father

entered into a case plan for potential reunification. Father agreed to contact DSS

once a week. He also agreed to complete parenting classes, anger management

classes, and the paperwork necessary to start working toward his GED, all of which

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were available at the prison. Although Father failed to contact DSS on a weekly

basis and inform it of his progress, the record reflects that Father was attending the

sexual offender program, was on course to complete his anger management classes,

and was considered “treatment compliant” for chemical dependency. Furthermore,

DSS began home studies of the paternal grandparents and a paternal aunt in

Montana.

[¶9.]        A continued dispositional hearing was held on September 15, 2003.

Because Father still had not been released from prison, he again appeared via a

video conference. Despite the trial court’s concern at the April 2003 hearing

regarding the children being left in limbo if Father was not released that summer,

and despite Father’s failure to contact DSS weekly as required in his case plan, the

court once again declined to terminate Father’s parental rights. Instead, the trial

court ordered DSS to complete the home studies that were in progress to determine

if placement with Father’s relatives in Montana would be possible. The trial court

reasoned that this decision would increase DSS’s ability to provide reasonable

efforts to reunite the children with Father and would provide an opportunity to

determine if Father should be reunited with the children. The trial court also

expressed concern that DSS had not provided enough time for Father to work on the

requirements of his case plan.

[¶10.]       Approximately six months later, in April 2004, Father was released

from prison. Thereafter, on May 14, 2004, all parties reached an agreement under

which maternal grandmother would take the children to Montana for a sixty day

summer visitation with Father and the paternal aunt. In return, Father agreed to


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complete a psycho-sexual evaluation, obtain suitable housing, secure employment or

disability benefits, attend anger management classes, sign releases of information,

obtain therapy if needed, find an appropriate therapist and pediatrician for the

children, and assist financially if possible. DSS provided Father with funding for

the anger management classes, the psycho-sexual evaluation, visits at a visitation

center, and motel and gas expenses for the maternal grandmother to take the

children to Montana for the summer visitation.

[¶11.]       Father did not, however, have much success in satisfying the

prerequisites for reunification. Although Father completed the psycho-sexual

evaluation, he never completed the sex offender program. He was also unwilling to

attend further sex offender therapy. Father’s refusals caused his therapist to opine

that he would never recommend full placement of the children with Father.

Furthermore, the state of Montana refused to conduct the home study of Father

because the results of the evaluation did not recommend ever placing the children

with him. The children’s attorney was also concerned about the results of the

psycho-sexual evaluation and presented the results to the trial court.

[¶12.]       Nevertheless, the summer visitation was continued without Father

satisfying the remaining requirements for reunification. Although Father

completed an intake for anger management, he failed to follow through with the

recommendations. Father also had difficulty finding suitable housing. Upon his

release from the penitentiary, he moved in with his parents and then into his

girlfriend’s home. A CASA worker visited that home, and although the worker did

not note any dangers, she concluded that it was too small and did not have enough


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space for the children. Additionally, Father had a difficult time sustaining suitable

employment, and he failed to complete home based services. But most significantly,

Father only visited the children nine times during the sixty days they were in

Montana for the summer visitation. Father attempted to justify this lack of

interest, claiming that the supervisor at the visitation center made him feel like he

abused his children and that he was afraid that being around the supervisor would

cause him to “lose his cool.”

[¶13.]       Although Father did not take full advantage of the summer visitation,

the children did have visitation with the aunt and her family. The home study of

aunt’s family revealed that she and her husband had two children. However, they

lived in a “fifth wheel trailer” in another relative’s yard. Nevertheless, the state of

Montana initially approved aunt for placement with the understanding that final

placement with aunt would occur only if a more appropriate home was not

available. Ultimately, in February 2005, the state of Montana withdrew aunt’s

foster care application because she had not maintained contact with the children,

had not followed through with many of Montana’s requirements, and had not

obtained adequate housing.

[¶14.]       Following a number of further review and dispositional hearings in

South Dakota, a final dispositional hearing was held on February 28, 2005. At this

point, three years and six months had expired since DSS’s first involvement; the

children were now seven, five, and four years of age, and Father had not had any

contact with the children since they returned to South Dakota in September 2004.

Furthermore, Father did not attend the hearing. Instead, his attorney informed the


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court that although Father was not requesting custody, he did not wish to give up

his parental rights. Father requested that the children be placed with the Montana

aunt. The children and DSS, however, requested that the trial court terminate

Father’s parental rights.

[¶15.]         During the dispositional hearing, the trial court acknowledged that

Father was not suitable for the children to live with and that Father should never

have custody of the children. The trial court also found that aunt had inappropriate

housing for placement and had shown no long-term interest in the children.4

Although the record does not reflect that Father proffered any other options, the

trial court again refused to terminate Father’s parental rights. The trial court

reasoned that if Father’s parental rights were terminated there would be no

guarantee that the adoptive family (presumably the maternal grandparents) would

not leave with the children. Therefore, the trial court ordered a “permanent

guardianship” with the maternal grandparents. The trial court reasoned that this

disposition would provide the possibility of further contact with Father and his

Montana family, which the court stated has its “pluses and minuses, but . . . [is not]

all bad.” However, the trial court also acknowledged that the children had been




4.       The trial court stated:

            The father has chosen not to show up and frankly, he’s not a
            suitable person for the children to go live with in any event. The
            [aunt is] left in a position where the fifth-wheel isn’t an
            appropriate place to pack all those kids in . . . .


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with the maternal grandparents “all these years” and that they “ought to be the

ones that [the children] stay with.”5

[¶16.]         The children appeal questioning whether the trial court erred in

refusing to terminate Father’s parental rights so a more permanent placement

could be effectuated.

                                    Standard of Review

[¶17.]         Before termination of parental rights may be ordered, reasonable

efforts to reunite the family are required. SDCL 26-8A-21. Furthermore,

termination must be in the best interests of the children and the least restrictive

alternative available. In re D.M., 2003 SD 49, ¶27, 661 NW2d 768, 775 (citing


5.       The trial court stated:

            It appears to the Court that the department’s choice early on
            was termination of parental rights, even before services were
            offered to the father, and placement with the biological mother’s
            mother. And that has been the underlying premise of just about
            everything else that’s happened, including the fact that the
            Court almost had to use dynamite to get the department to
            provide any services at all to the father and then they drug their
            feet. I mean, the department’s work here has been dismal, and
            their strategy has been to wear down the [aunt] and to wear
            down the father and they have succeeded in doing that. . . .
            However, if the Court terminates the father’s parental rights,
            there’s no guarantee that there wouldn’t be some further double
            cross and those people will be gone and the children off to some
            place else. It’s kind of hard to know who to trust here. If the
            Court grants the mother’s parents some sort of permanent
            placement, some sort of guardianship, that would preclude
            them, at least for now, from adopting the kids, that would not
            exclude the father from their life, which, you know, has its
            pluses and minuses, but would provide contact with the other
            side of the family, which isn’t all bad. . . . [I]t’s not appropriate to
            send the children back to the father’s home. . . . [T]he family
                                                                          (continued . . .)


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SDCL 26-8A-26). These three requirements, “[t]he ‘reasonable efforts’ and ‘best

interest of the child’ and the ‘least restrictive alternative’ balancing process[,] are

essentially issues of fact.” In re E.L. and R.L., 2005 SD 124, ¶10, 707 NW2d 841,

845 (citing In re K.C., 414 NW2d 616, 620 (SD 1987)). “We review the trial court’s

findings of fact under the clearly erroneous standard; therefore, they will not be set

aside unless ‘we are left with a definite and firm conviction that a mistake has been

made.’” In re S.A., 2005 SD 120, ¶11, 708 NW2d 673, 677 (citing People ex rel.

J.S.B., Jr., 2005 SD 3, ¶12, 691 NW2d 611, 615 (citing In re T.H., 396 NW2d 145,

148 (SD 1986))).

                                 Analysis and Decision

 Reasonable Efforts to Reunite and Likelihood That Conditions Would Be Remedied

[¶18.]          In this case, the trial court found that reasonable efforts to rehabilitate

the family were provided, that the conditions that led to the removal of the children

still existed, and that there was little likelihood that those conditions would be

remedied. Specifically, the court found:

          IX.      Reasonable efforts have been made to rehabilitate the family
                   and to reunite the minor children with the Respondent father
                   but such efforts have proved unavailing.
          X.       The conditions which led to the removal of the children still
                   exist, in that the Respondent Father is a convicted sexual
                   offender, who is not following the treatment
                   recommendations of the most recent psycho-sexual
                   evaluation.
          XI.      There is little likelihood that these conditions will be
                   remedied to allow the children to be returned to the custody
                   of the children’s parent.

______________________
(. . . continued)
            that the children have been with for all these years ought to be
            the ones that they stay with, so that will be the Court’s order.

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[¶19.]       The record supports these findings. First, the record reflects that DSS

made reasonable efforts to reunite Father with the children. DSS entered into a

reunification plan with Father that contemplated a number of services that were

needed to obtain necessary parenting skills. Furthermore, DSS paid for Father’s

psycho-sexual evaluation, the costs of the visitation center, motel and gas expenses

for the children’s summer visitation, and it obtained funding for Father’s anger

management classes.

[¶20.]       Nevertheless, the record reflects that the offered services did not

eliminate the conditions that led to removal of the children because Father failed to

follow through with those services. Father refused to follow through with the

recommendations of his anger management evaluation, failed to obtain adequate

housing and employment, and declined to take advantage of the home based

services that were offered. Moreover, Father’s therapist was so concerned about the

psycho-sexual evaluation results that he opined Father should never have custody

of the children. Finally, Father only visited the children nine times during the sixty

days they were in Montana. Thus, the conditions that led to the children’s removal

remained with little likelihood that they would be remedied if the children were

returned.

                            Best Interests of the Children

[¶21.]       Under these circumstances, we are definitely and firmly convinced that

the trial court’s decision not to terminate Father’s parental rights was not in the

best interests of these children. In deciding not to terminate Father’s parental

rights, the trial court reasoned that a permanent guardianship, as opposed to a


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termination, would be in the children’s best interest because it would provide the

children with an opportunity to get to know Father and Father’s Montana family.

However, “[t]he best interests of the children are viewed from the children’s, not the

parents’, perspective.” In re D.M., 2003 SD 49, ¶27, 661 NW2d at 775 (citing In re

E.D.J., 499 NW2d 130, 135 (SD 1993)). Furthermore, “[w]hen it comes to something

as important as the welfare of young children, promises of the parents to conform to

the standard of care for their children which is expected in our society do not carry

as much weight as their past actions of not properly caring for the children.” In re

A.S., 2000 SD 94, ¶21, 614 NW2d 383, 386-87 (citations omitted).

[¶22.]       Here, Father’s history of lack of interest in the long-term care and

custody of the children is well documented in the record. Father had limited contact

with the children throughout their lives; he only visited the children nine times

during their sixty day summer visitation, and he did not have any contact with the

children from the time they left Montana in September 2004 to the final

dispositional hearing in February 2005. Furthermore, at the dispositional hearing,

Father did not even request custody of the children but merely asked that they be

placed with aunt. Finally, Father has declined to file a brief with this Court

opposing the children’s request for the termination of his rights.

[¶23.]       Similarly, aunt, the only paternal family member that expressed any

interest in obtaining custody of the children, displayed an insufficient interest in

getting to know them. While aunt did have visitation with the children during their




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summer visit, the visitation was only held on weekends.6 Aunt also failed to keep

in contact with the children after they returned to South Dakota. It was only after

DSS urged aunt to keep in contact with the children and offered her money to travel

to South Dakota for a visit that she started to have some contact with the children

over the telephone.7 Additionally, aunt and uncle already had two children, and

they all lived in inadequate housing. Consequently, the state of Montana would not

approve them for placement. Therefore, considering that neither Father nor aunt

were interested in or available for the long-term care or custody of the children, it

was not in the children’s best interests to leave open some theoretical possibility

that the children might get to know that family. The trial court acknowledged as

much stating:

               . . . thinking about the best interests of the kids, having the
               father not a suitable person and [aunt’s family] sort of
               eliminated from the running as far as them showing any real
               long-term interest here, [maternal grandparents are] the only
               other suitable relative or plausible relative we have.

                              Least Restrictive Alternative

[¶24.]         Additionally, termination of Father’s parental rights to facilitate a

permanent relationship with the children’s only real family (the maternal



6.       Aunt worked during the evenings, leaving the weekends for visitation.
         However, there were instances where aunt was unable to be present during
         the visitations. On one occasion, uncle had to rush his son to the emergency
         room. Rather than taking the children with them, he left them in the car
         with his eleven year old daughter for over an hour. On another occasion,
         aunt had to return the children to the maternal grandmother because she
         had to work that evening and uncle refused to watch them.

7.       Aunt claims that her work schedule prevented her from traveling to South
         Dakota to visit the children.

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grandparents) was the least restrictive alternative in this case. In examining this

question, we often consider the parents’ efforts and cooperation in utilizing the

services offered to them. See Interest of A.R.P., 519 NW2d 56, 61-62 (SD 1994);

Interest of S.R., 323 NW2d 885, 887-88 (SD 1982). “When all Social Services

attempts and assistance fail for lack of cooperation, no narrower or less restrictive

alternative remains.” Matter of S.W., 398 NW2d 136, 140 (SD 1986) (citation

omitted). In this case, Father showed some interest in cooperating with DSS while

he was incarcerated, but upon his release, Father failed to fulfill DSS’s

requirements for reunification and refused to utilize the services offered to him. As

a result of Father’s unwillingness to cooperate, he was unable to acquire the

requisite parenting skills to care for his children. We have stated that “[a] child

should not be required to wait for parents to acquire parenting skills that may

never develop.” In Interest of A.D., 416 NW2d 264, 268 (SD 1987) (citation omitted).

In light of the efforts made by DSS as well as Father’s refusal to cooperate and his

lack of interest in the long-term care of the children, termination was the least

restrictive alternative.

[¶25.]       Ultimately, termination was required under the trial court’s own

findings. The trial court found that: 1) a permanent placement was necessary, 2)

the children “should never go back to the father,” and 3) the children “should be

permanently placed with a particular relative.” But, by refusing to terminate

Father’s parental rights and opting for a guardianship, the trial court prohibited

the commencement of that permanent adoption proceeding. See In re Adoption of

H.L.C., 2005 SD 110, ¶25 n2, 706 NW2d 90, 94 n2 (stating that “termination of


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parental rights must occur before an adoption can take place”). Although the trial

court relied on SDCL 26-8A-21.2, which contemplates permanent guardianships,

that statute only applies to dispositions when “aggravating circumstances” are

present and reunification efforts will not be undertaken. Thus, the trial court erred

in relying on SDCL 26-8A-21.2 in ordering the guardianship in this case.

[¶26.]       Furthermore, the trial court failed to adequately consider that

guardianships, by their very nature, are temporary. In re T.L.R., 2002 SD 54, ¶18,

645 NW2d 246, 251. Therefore, the trial court’s disposition would merely subject

the children to further years of insecurity and lack of stability at a time when the

trial court was seeking a permanent disposition. Thus, the trial court’s

dispositional order was inconsistent with its own recognition that permanent

placement was necessary, and it was not in the best interests of the children. See

Matter of C.L., 397 NW2d 81, 85 (SD 1986) (stating that “[t]he best interests of the

children require that some certitude and stability enter [these children’s] lives”)

(citation omitted).

[¶27.]       In sum, the reunification efforts provided by DSS failed due to Father’s

lack of cooperation and interest. Furthermore, after years of being in the system,

the trial court recognized that it was in these young children’s best interests to

obtain security and stability with a permanent relative placement. However, it was

not in their best interests for a disposition that was designed to leave open the

possibility of getting to know a “family” that had repeatedly shown little interest in

exercising parental responsibilities over the children. Finally, SDCL 26-8A-21.2

was not an applicable disposition statute. We, therefore, have a firm and definite


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conviction that a mistake was made in refusing to terminate Father’s parental

rights.

[¶28.]      Reversed and remanded for further proceedings.

[¶29.]      GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

MEIERHENRY, Justices, concur.




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