#27514-a-GAS
2017 S.D. 38


                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA


                                     ****

                  The People of the State of South Dakota in the
                     Interest of A.K.A.-C., Minor Child and
                   Concerning B.W. and H.A.-C., Respondents.

                                      ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    YANKTON COUNTY, SOUTH DAKOTA
                                     ****

                         HONORABLE GLEN W. ENG
                                Judge


                                     ****

CREIGHTON A. THURMAN
Yankton, South Dakota                             Attorney for appellant Mother
                                                  B.W.


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

HEATHER LACROIX
Yankton, South Dakota                             Attorney for appellee child.




                                     ****
                                                  CONSIDERED ON BRIEFS
                                                  ON APRIL 24, 2017
                                                  OPINION FILED 06/21/17
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SEVERSON, Justice

[¶1.]        B.W., Mother, appeals the circuit court’s termination of her parental

rights. She alleges that the court improperly considered evidence from her

participation in drug court and that termination was not the least restrictive

alternative. We affirm.

                                    Background

[¶2.]        This case is the third abuse and neglect (A&N) case since 2012

involving Mother and Child. Child, who was two years old at the time, first came

into custody of the Department of Social Services (DSS) in March 2012, after

Mother was brought to an emergency room for an overdose and placed on a mental

health hold. During the first proceedings, Mother agreed to participate in the 24/7

program and provide samples for urinalysis. At that time, Mother had planned to

return to Michigan after custody was returned to her. Custody was eventually

returned to Mother, and the court ordered that DSS notify the Michigan

Department of Human Services, Child Protection that the two were returning to

Michigan.

[¶3.]        Child next came into DSS custody in December 2012. On December

14, 2012, Mother contacted DSS, advising them that she lacked housing and

employment. She had been turned away from shelters. DSS discussed foster care

for Child, but Mother wanted to contact friends before making a decision. On

December 16, 2012, one of Mother’s coworkers contacted the police department

because Mother had left Child with him. Four days prior, she asked him to watch

Child for a few hours but did not return. Mother’s coworker reported that he did


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not know Mother well and he had to purchase clothes and diapers for Child. When

Mother still did not return the next day, the coworker contacted DSS and brought

Child to the DSS office. A urinalysis from Mother on December 25, 2012, tested

positive for methamphetamine and amphetamine. She admitted that she had

injected crystal meth.

[¶4.]        Over the course of the second A&N case, Mother repeatedly tested

positive for drugs. Throughout 2013, she was terminated from treatment programs

at Glory House and the Human Services Center. In January 2013, she was arrested

for second-degree burglary; forgery; identity-theft; petty theft; possession of:

marijuana, drug paraphernalia, a controlled substance, and a forged instrument;

and grand theft. Judge Eng presided over the criminal matter and these A&N

proceedings. Mother pleaded guilty to possession of a controlled substance and

possession of a forged instrument. In July 2013, she was placed on probation, but

she violated its conditions. She tested positive for methamphetamine,

amphetamine, and opiates. In October 2013, Mother was placed on intensive

probation supervision and her sentence included a condition of successful

completion of the drug court program.

[¶5.]        For a time, Mother seemed to be taking advantage of services provided

to her. On July 29, 2014, the circuit court returned full legal and physical custody

of Child to Mother. The court noted at a dispositional hearing in April 2014, that

Mother was receiving the maximum services available and those services were

“cocooning” Mother so that Child was cared for and safe. Mother was participating

in the Individualized and Mobile Program of Assertive Community Treatment


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(IMPACT) program, receiving services from Lewis & Clark Behavioral Health, and

participating in drug court.

[¶6.]        This latest A&N case began in October 2014, when Mother was taken

into custody. Mother failed a urinalysis and then absconded, missing drug court.

When she was located, she was under the influence of alcohol and drugs, and law

enforcement took her into custody. On November 12, 2014, Mother was terminated

from drug court. Because Mother’s probation was conditioned on her successful

completion of drug court, a violation report was filed with the court and a hearing

on the violation was held on November 13, 2014. Mother admitted to violating

probation, and her probation was revoked. The circuit court, with Judge Eng

presiding over that matter as well, reinstated Mother’s two-year sentence to the

penitentiary.

[¶7.]        The circuit court held a final dispositional hearing in this A&N case on

April 10, 2015, at which time the State sought termination of Mother’s parental

rights. After the hearing, the circuit court determined “that the least restrictive

alternative in keeping with the best interests of [Child] [was] the termination of

parental rights.” This appeal followed, in which Mother asserts two issues for our

review. The first is whether the circuit court relied on evidence relating to drug

courts, which she claims was inadmissible evidence under SDCL 16-22-6, to support

its decision to terminate mother’s parental rights. Mother also asserts that there




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was insufficient evidence to support its decision because the court relied on

inadmissible evidence to support its decision to terminate her parental rights. 1

                                       Analysis

[¶8.]         1.     Whether the court erroneously interpreted SDCL 16-22-6 and
                     allowed improper evidence to be admitted.

[¶9.]         The circuit court took judicial notice of the first two A&N cases

discussed above. It also took judicial notice of Mother’s 2013 criminal file. Mother

alleges that those files contain evidence in violation of SDCL 16-22-6 and that the

court erroneously interpreted that statute. 2 SDCL 16-22-6 provides:

              Nothing contained in this section may be construed to permit a
              judge to impose, modify, or reduce a sentence below the
              minimum sentence required by law. No statement made by a
              drug court participant in connection with the court’s program or
              directives, nor any report made by the staff of the court or
              program connected to the court, regarding a participant’s use of
              controlled substances is admissible as evidence against the
              participant in any legal proceeding or prosecution. However, if
              the participant violates the conditions or is terminated from
              drug court, the reasons for the violation or termination may be
              considered in sanctioning, sentencing, or otherwise disposing of
              the participant’s case.

The statute does not operate to bar a dispositional court from considering the

programs or services that drug court offered to Mother.




1.      In its responding brief, the State argues that the limitation of evidence in
        legal proceedings in SDCL 16-22-6 does not apply to A&N proceedings and
        particularly not to dispositional hearings. The State did not raise this issue
        on a notice of review, and Mother does not address the question in her briefs.
        Because we decide this appeal based on the particular evidence in this case,
        we do not address the applicability of SDCL 16-22-6 to this question.

2.      Statutory interpretation is a question of law reviewed de novo. See People ex
        rel. J.S.B., Jr., 2005 S.D. 3, ¶ 12, 691 N.W.2d 611, 615.

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[¶10.]       Mother contends that the second A&N case (File No. 12-192) is “replete

with testimony in violation of SDCL 16-22-6.” But she identifies just one witness

whose testimony she raises as improper. On January 28, 2014, a member of the

drug court team, Lisa Ryken, testified at an adjudicatory hearing on File No. 12-192

that Mother “blew a .02 and law enforcement did a curfew check and then she was

released the next morning and there was no - - - no sanctions made because after

investigating and finding out what had gone on, it was deemed that it was not a

drinking incident.” Ryken clarified that Mother told Ryken that the .02 was from

soaking Mother’s dentures in an alcohol based solution.

[¶11.]       Regardless of whether Ryken’s testimony was improper at the time it

was received in the prior proceeding, Mother has not demonstrated error or

prejudice in this case. Despite Mother’s allegation that the court, in this case,

“rel[ied] upon evidence obtained in violation of SDCL 16-22-6[,]” Mother has failed

to identify a single finding of fact or conclusion of law that indicates that the circuit

court based its decision on improper evidence. Because Mother does not identify

what drug court evidence the circuit court erroneously admitted or what the court

erroneously relied upon in making its decision, and because Mother has failed to

identify a finding of fact or conclusion of law that indicates that the circuit court

based its decision to terminate in this case on improperly admitted evidence under

SDCL 16-22-6, we cannot say that the circuit court erred when it took judicial notice

of the two previous A&N files and Mother’s 2013 criminal file.

[¶12.]       By the time of this A&N proceeding, the circuit court had changed its

interpretation of SDCL 16-22-6 from its interpretations in prior A&N proceedings


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including Mother and Child. The court explained at the final dispositional hearing

on April 10, 2015:

             The court is of the opinion that if a Drug court representative is
             called, the State is limited as to addressing whether the person
             was in the program and, if so, what the end result was. The
             court is limiting, to a certain extent, what can and cannot be
             addressed.
             If, however, there is evidence by the respondent that would
             address the participation, the court believes that that opens up
             the case and allows the State to then bring in more information,
             because the court believes that in doing so, the respondent has
             opened the door for additional information.

At the conclusion of the hearing, the court also stated that it made “note that the

court does not delve into, specifically, all of the records of the drug court. The court

feels duty bound pursuant to the statute, 16-22-6, to not delve into and second-

guess the drug court.” The court’s later interpretation may have erroneously

broadened what the statute prohibits because it does not appear that the court

believed that the services provided to Mother by drug court could be addressed

unless Mother introduced it. 3 SDCL 16-22-6 makes statements “regarding a

participant’s use of controlled substances” “made by the drug court participant in

connection with the court’s program” and “any report made by the staff of the court

or program connected to the court regarding the participant’s use of controlled

substances” inadmissible “as evidence against the [drug court] participant in any

legal proceeding or prosecution.” It does not prohibit consideration of the services



3.    At the April 2015 dispositional hearing, the State did ask Mother about the
      positive drug tests that she had towards the end of her participation in the
      drug court program. However, the court determined that the defense had
      opened the door to that line of questioning. Mother has not appealed that
      evidentiary ruling.

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that a participant received in connection with the program. Furthermore, as

addressed below, Mother has not demonstrated that the court’s interpretation of the

statute resulted in the court relying on improper evidence.

[¶13.]       2.    Whether termination was the least restrictive alternative
                   commensurate with the best interests of Child.

[¶14.]       Under Mother’s second issue, she asserts that the court “relied heavily”

upon the drug court evidence and that without it there was insufficient evidence to

support the court’s determination. But she does not identify what drug court

evidence was erroneously admitted that the court relied upon in making its

decision. And the findings of fact and conclusions of law do not indicate that the

court relied on any statement Mother made in connection with the drug court

program or directives regarding her use of controlled substances or that it relied on

a report made by the staff of the drug court or program regarding Mother’s use of

controlled substances. The court did find that Mother had been terminated from

the drug court program and that she had been “provided as much assistance from

drug court, IMPACT and other service providers as was available and she was

unable to refrain from inappropriate use of controlled substances.” However, the

court’s consideration of the fact that Mother was in the drug court program and

received services through the drug court is not improper under SDCL 16-22-6. See

supra ¶ 9.

[¶15.]       The circuit court judge in this matter was involved in the two prior

A&N cases and a criminal case involving Mother; in all of those cases, she abused

controlled substances. Many of those actions occurred before she was admitted to

drug court, including the criminal conviction, which ultimately led to her two-year

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penitentiary sentence. The record contains various reports to the court from DSS

and from the court appointed special advocate. At the dispositional hearing, a DSS

employee testified about her involvement in the case, and individuals who knew

Mother through Narcotics Anonymous and Alcoholics Anonymous testified about

concerning behavior they witnessed from Mother. It is clear that the court had

relevant, admissible evidence before it regarding Mother’s use of controlled

substances.

[¶16.]         Mother also asserts that there was no testimony as to what reasonable

efforts had been made or what options for reunification were available in this case.

Mother’s two-year incarceration limited DSS in its attempts to rehabilitate this

family. See Interest of S.H.E., 2012 S.D. 88, ¶ 22, 824 N.W.2d 420, 426 (“State

concede[d] that DSS’s efforts were limited, but contend[ed] it ‘[could]not be faulted

for [Parent’s] criminal choice which limited its ability to return the children’” and

this Court agreed). DSS did provide for visitation, and the court made a specific

finding on the services that were provided to Mother. 4 It found that reasonable

efforts had been made to rehabilitate the family, and we cannot say that the court

clearly erred in its finding.

[¶17.]         Lastly, Mother asserts that the court failed to take Mother’s efforts

and utilization of services into consideration, but she fails to identify which services

the court failed to take into consideration. In light of her repeated drug use, drug


4.       The court found that the following services were provided to Mother: Initial
         Family Assessment, foster care services, visitation, transportation, Protective
         Capacity Assessment, Child Case Plan Assessment, medical services, relative
         searches, contact with drug court members, contact with Prison case
         manager, and contact with Mexican Consulate (Father is residing in Mexico).

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court failure, and ultimate incarceration for a drug offense, we cannot say that the

court clearly erred in determining that Mother “has been an addict and has been

and will continue to be addicted to controlled substances” and that she “can only

remain sober in an institution such as the South Dakota State Women’s Prison.”

Nor can we say that the court erred in determining that termination of parental

rights was the least restrictive alternative. The court found that Child had been out

of Mother’s care for the past three years due to Mother’s chemical dependency. By

the time that Mother would serve her penitentiary sentence, Child would have been

in foster care for five years. Mother was offered substantial services and multiple

chances to become an adequate parent. This Court has repeatedly explained that it

will not force a child to wait for “parents to acquire parenting skills that may never

develop.” People ex rel. D.T., 2003 S.D. 88, ¶ 23, 667 N.W.2d 694, 701. We affirm.

[¶18.]       GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and

WILBUR, Retired Justice, concur.




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