In re M.C.

914 N.W.2d 563

In the MATTER OF M.C., Alleged Abused/Neglected Child

28040

28221

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON FEBRUARY 12, 2018

OPINION FILED June 20, 2018

MARTY J. JACKLEY, Attorney General, JOSEPH N. THRONSON, Special Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for petitioner and appellee State of South Dakota.

MARK KADI, Minnehaha County Public Advocate, Sioux Falls, South Dakota, Attorneys for respondent and appellant K.C.

JENSEN, Justice

[¶1.] K.C. (father) appeals a dispositional order in a child abuse and neglect proceeding that awarded M.J. (mother) custody of M.C. (child), currently thirteen years old, with supervised visitation rights for father. We summarily affirm in part, reverse in part, and remand.

Facts and Procedural History

[¶2.] Mother is thirty-six years old. Mother resided in Sioux Falls during most of the proceedings, but she resided on the reservation and temporarily stayed in other locations during the case.¹ At the time of disposition, mother had five children. This case, however, concerns only child, as the other children had different fathers. Father is a forty-seven-year-old resident of Sioux Falls. He is not Native American. The record is not clear on when his relationship with mother began or ended. However, in 2010, father began living with a girlfriend who had her own two children. Father and his girlfriend eventually married.

[¶3.] Child was born in 2004, and his residence shifted back and forth between mother’s and father’s homes. This changed in 2007 when mother’s brother physically abused child and mother and father stopped cooperating on custody matters. Father brought a paternity/custody action against mother and was awarded custody with visitation rights granted to mother. Mother exercised her visitation rights infrequently as time went on. The relationship between father and mother worsened during this time.

[¶4.] In the fall of 2011, mother requested an overnight visit with child because child’s grandmother was coming for a visit. Father allowed the overnight visit and told mother that child had gotten into trouble for an incident at school and that he had "whooped child’s ass" for his misbehavior. Based upon prior incidents, mother suspected child would be bruised and looked child over, finding bruises down his back to his posterior. Although mother feared losing visitation with child, she took him to school the next morning and talked to child’s teacher about the incident at school and child’s bruises. The teacher notified her superiors, and after examining child’s bruises, the school officials reported the matter to law enforcement and the South Dakota Department of Social Services (DSS).

[¶5.] The authorities observed marks on child’s body, including marks across his legs and a bruise on his back. Child told them that father "whooped him" for his misbehavior at school and imposed other discipline including making child hold books out away from his body while keeping his arms straight. Child was crying and upset during the conversation. He worried that if father found out he had talked about the incident he would get "whooped" again.

[¶6.] Child was taken into temporary custody and transported to a local child protection/advocacy center for a forensic interview and medical examination. Child repeated his remarks about being "whooped" by father and further mentioned being hit with a belt and father’s fist. The medical examination revealed injuries to child’s upper thighs, back, and buttocks. One of the bruises appeared to be a "pattern bruise" caused by a belt buckle.

[¶7.] Based upon an investigation, including interviews with father, the State filed an emergency petition on October 20, 2011, alleging abuse and neglect of child. A more detailed petition was filed on November 8. Child remained in DSS custody.

[¶8.] The adjudicatory hearing began on February 15, 2012, and continued on March 13. Following the adjudicatory hearing, the circuit court issued a memorandum decision finding child abused and neglected as to both father and mother. The court stated that there was "no doubt in [its] mind that ... child was physically abused" by father. As for mother, the court determined child was "without proper care ... through no fault of [mother]." See SDCL 26-8A-2(5). The adjudicatory findings of fact and conclusions of law and an adjudicatory order were filed on May 7, 2012.

[¶9.] After adjudication, DSS attempted to work with both parents to reunify child with one of them. However, DSS focused on reunification only with mother because of the physical abuse by father and his lack of cooperation in the case. Periodic review hearings were held, but the final dispositional hearing was delayed for a series of reasons, most of which involved continuing attempts at reunification and maintaining stability for child while in mother’s home.

[¶10.] The dispositional hearing was eventually set for May 2014, but mother became pregnant by her boyfriend, and the hearing was delayed because of the birth of mother’s fifth child. Testimony as to disposition was then taken during a series of days from August 2014 until February 19, 2015.

[¶11.] The evidence at the dispositional hearing showed that child was placed in foster care from October 2011 until a trial reunification was attempted with mother in March 2012. All the children were removed from mother’s home in September 2012 after one of mother’s other children (A.J.) reported that she had been sexually abused by mother’s boyfriend for a lengthy period of time. No other children reported being abused. At least one child reported observing the sexual abuse of A.J. and reported that mother told him not to say anything. After the report of sexual abuse was made, mother admitted that A.J. previously told her of the sexual abuse by mother’s boyfriend, but mother failed to report it because she did not believe A.J. Mother believed that A.J.’s report was motivated by her desire to live with her father. A separate abuse and neglect proceeding involving the other children was filed against mother at this time.²

[¶12.] Child remained in foster care from September 2012 until November 2013. Initially, supervised visits with mother were inconsistent because of transportation, communication, health, and other issues for mother. DSS began unsupervised visits between mother and child in the summer of 2013. However, the unsupervised visits apparently ended after DSS learned that mother allowed boyfriend to stay with her during one or more of these unsupervised visits, contrary to DSS direction. In September 2013, mother left Sioux Falls to live with her father in Martin, South Dakota, in an attempt to reunify with her other children as the abuse and neglect proceedings involving the other children had been transferred to tribal court. Mother missed several scheduled visits with child during this time, which was very upsetting to child. The other children were returned to mother in October 2013 while she was still living on the reservation.

[¶13.] In November 2013, child was reunited with mother on the reservation. Mother stated at this time that she was not planning to return to Sioux Falls. Nevertheless, mother returned to Sioux Falls shortly thereafter with the children. She informed DSS that she could not stay with her father in Martin because her family was drinking heavily around the children. In early December, mother had an altercation with her boyfriend over custody of one of the other children. Because of safety concerns arising from this incident, Mother and DSS began discussing options for her and child. The next day mother asked DSS to take physical custody of child so she could leave for North Dakota. Mother and the other children instead decided to stay temporarily at Children’s Inn in Sioux Falls while child was placed back into foster care. Child was very upset about being placed back into foster care. A few days later, child reunited with mother at Children’s Inn. In March 2014, mother was incarcerated for seven days after she was arrested for shoplifting.³ DSS made arrangements for child to stay at Children’s Inn while mother was incarcerated.

[¶14.] After mother gave birth to her fifth child in May 2014, the baby tested positive for marijuana. Mother also tested positive for marijuana, but subsequent UAs were negative. Shortly thereafter, mother left for Rapid City without informing DSS. She was later found to be with her boyfriend in Rapid City. Mother told DSS that she left child at her father’s home in Martin. DSS was initially unable to confirm this information. DSS was eventually able to confirm the whereabouts of child after mother returned to Martin. Mother and the children continued to travel back and forth to Martin and Rapid City to visit boyfriend over the summer.

[¶15.] In September 2014, child’s school reported a mark on child’s back. Child initially denied that mother hit him but later claimed that she used a cord to hit him on his back. Mother claimed that she had only used her hand to hit child on the back. Although DSS eventually determined the abuse claim to be unsubstantiated, child was placed back in foster care because of the report and because of child’s behavioral issues at home and school. DSS provided additional counseling and also arranged for a parent aide to assist mother in managing child’s behaviors. Child was returned to mother’s care in December of 2014.

[¶16.] The evidence showed that child had significant issues at home and school during the times he was in mother’s physical custody. DSS provided services to mother for more than three and a half years while the abuse and neglect proceedings were pending. These services included financial assistance, transportation, foster care, and other temporary care arrangements when mother was unable to provide care, child and family counseling, and other in-home services. Child was bonded with both father a...