| (Cite
as: 371 N.W.2d 366)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota In the Interest
of P.B., a Child,
Concerning
K.B., Mother.
No.
14793.
Considered
on Briefs May 20, 1985.
Decided
July 17, 1985.
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Janice Godtland, Asst. Atty. Gen., Pierre, for appellee State;
Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Jean M. Cline of Finch & Viken, Rapid City, for
appellant Mother.
WOLLMAN, Justice.
This is an appeal from an adjudication of dependency and
neglect and a subsequent decree of disposition that terminated the
parental rights of appellant, K.B., in her child, P.B.
We affirm.
[FN*]
FN*
The putative father of P.B., who was ultimately served with
a copy of the petition seeking an adjudication that P.B.
was a dependent and neglected child, denied paternity of P.B.
The trial court ruled from the bench that
it was terminating the putative father's parental rights in P.B.,
although no findings, conclusions, and order to that effect appear
in the record. In any event, the putative
father is not a party to this appeal.
Inasmuch as P.B. is entitled to be enrolled as a
member of the Oglala Sioux Tribe, the State and the
trial court complied with the provisions of the Indian Child
Welfare Act. 25 U.S.C. 1901, et seq.
The Tribe elected not to participate
in these proceedings.
K.B., born March 16, 1967, first came to the attention
of the Department of Social Services (Department) in 1974.
In 1977 the parental rights of A.B., K.B.'s mother,
were terminated with respect to K.B.
In October 1983, Department learned that K.B. was pregnant.
It thereupon made attempts to place K.B. in a
situation that would cause her to refrain from huffing (sniffing
paint) and drinking. K.B. had been living with
her mother, who apparently provided no control over these activities.
In November 1983, Department placed K.B. in Threshold,
a group home in Sioux Falls that provides services for
adolescent girls.
The purpose of placing K.B. at Threshold was to help
her make preparations for her baby by providing her prenatal
classes, parenting classes, and prenatal medical attention. She
was also provided support and information regarding alternatives to her
pregnancy, which included her option to voluntarily terminate her parental
rights with respect to her child.
P.B. was born on February 22, 1984. K.B.,
whose I.Q. is well below 100 (a social worker testified
that it is closer to 63 than to 100) signed
forms authorizing the placement of P.B. in a foster home.
K.B. ultimately decided to keep the child, however,
whereupon Department placed her and P.B. in a foster home
in Rapid City on March 16, 1984.
A Department social worker established a case service plan for
K.B. Under the
plan, K.B. was encouraged to provide all of P.B.'s parenting
needs under the supervision of the foster parents.
In addition, a parent-aide was assigned to K.B. to help
her with her budget and to encourage her to attend
parenting classes. The social worker also provided K.B.
with the telephone number of the positive parenting group, which
provided the parenting classes, in case K.B. had any questions
and was unable to contact the social worker or the
parent-aide.
The social worker developed a basic child care chart for
K.B., which included bathing, feeding, cleaning, laundry, and medical needs.
K.B. was able to follow through on the
tasks listed on the child care chart only by being
reminded, encouraged, and prodded into doing so by the foster
parent, the *369
parent-aide, and the social worker. At times, K.B.
did not want to go to the parenting classes.
K.B. became frustrated with the structure and expectations placed on
her by the foster family, the social worker, and the
parent-aide. She told the social worker that she
was sick of living in foster care and of having
people tell her what to do. Accordingly, K.B.
decided to move out of the foster home and to
return to her mother's home. Although the social
worker did not agree with K.B.'s decision, there was nothing
she could do about it inasmuch as K.B.'s participation in
the foster care program was voluntary.
On May 28, 1984, the social worker developed a new
case plan for K.B. Under this
plan, a parent-aide would visit the home twice a week,
a public health nurse would visit twice a week, and
the social worker would make scheduled and unscheduled visits during
the week. During a visit on May 31,
the social worker found P.B. asleep, apparently clean and happy.
The social worker received several phone calls concerning P.B.'s residence
on the morning of Monday, June 4, 1984.
In addition, the landlord stopped by and informed the social
worker that the police had been called to the residence
three different times over the weekend to check on disturbances
and on a fight. The police told the
social worker that they had not seen the child during
their calls to the residence.
At 3:00 p.m., June 4, the social worker and a
police officer visited K.B.'s residence. The officer observed
six or seven adults in the living room drinking and
in various states of intoxication. The police officer
testified that he smelled an odor of feces and urine
in the house. When they asked to see
K.B., the officer and the social worker were taken to
a bedroom on the second floor of the residence, where
they found K.B. lying on the bed with P.B. lying
on her chest. K.B. was semi-conscious and had
been vomiting on the floor near the bed.
K.B. was so intoxicated that she was unable to walk
without being assisted. P.B. appeared to be semi-lethargic.
The social worker observed a white substance, which
smelled and felt like paint, on P.B.'s arm.
The social worker testified that she had known of situations
in which a parent
or an adult had placed paint on an area of
the child's body that can reach the child's mouth and
nose, thereby causing the child to become lethargic.
This is done in an effort to quiet the child.
K.B. testified that the white substance was toothpaste
that she had been using to cleanse her (K.B.'s) mouth
of vomit.
The social worker observed K.B. vomit on P.B. and then
turn and vomit on the floor. K.B. told
the social worker that P.B. had been in the home
during the preceding weekend.
The police officer removed K.B. from the home and took
her to the detoxification center.
Although P.B.'s clothing was not clean, it was adequate and
her diapers were not wet or soiled. She
was taken from the home by the social worker and
the police officer and placed in the foster home, where
she was undressed by the foster mother. The
social worker observed a large bruise on P.B.'s buttocks, and
a bruise on her hip. Also, there was
a bruise on P.B.'s head. K.B. had indicated
to the social worker that she had dropped P.B. on
her head on June 2 while walking with her on
the street.
During the first two days after being removed from K.B.'s
home and being placed in the foster home, P.B. appeared
to be very hungry and tired. She slept
continuously except for the time when the social worker took
her to the physician for an examination.
At the conclusion of the adjudicatory hearing, the trial court
ruled from the bench that the state had proved beyond
a reasonable doubt that P.B. was a dependent and neglected
child as defined in SDCL 26-8-6. Formal findings
of fact, conclusions of law, and an adjudicatory order were
entered on September 21, 1984, nunc
pro tunc
August 17, 1984, the date of the adjudicatory hearing.
*370
A dispositional hearing was held on October 5, 1984.
It was established that after K.B. was released from
the detoxification center she was not located by Department until
July 18, 1984, when she was arrested and placed in
detention. The social worker then set up bi-weekly
visits between K.B. and P.B. Between July 18
and the date of the dispositional hearing, K.B. attended only
five of those scheduled visits. The social worker
described K.B.'s attitude during these visits as at first being
extremely excited to see P.B., with appropriate questions regarding P.B.'s
development. K.B. would then become frustrated to the
point of crying herself when P.B. would begin to cry.
The social worker testified that when K.B. came to these
visits shortly after huffing, P.B. would become irritated by the
smell of the chemicals on K.B. The social worker
also testified that K.B. was unable to adequately care for
herself inasmuch as she had not been eating properly.
K.B. had told the social worker that on occasion
she had eaten food that she had found in garbage
receptacles and that she had slept on or under railroad
cars.
K.B. was placed at Northern Hills Youth Services in Spearfish
on August 9, 1984. This is a facility
for teenagers with problems. The teenagers have access
to counseling and become involved in community efforts.
K.B. initially did fairly well in this program, but on
August 19, 1984, she ran away from the facility and
was jailed in Deadwood. On August 20, 1984,
K.B. was placed in foster care. She remained
in the foster home for one day and then left
to return to her mother's home. On September
13, 1984, K.B. called her social worker from the detoxification
center, saying that her mother had put her there because
of her huffing.
K.B. failed to appear for her scheduled visits with her
parent-aide on August 31 and September 7. As
an example of K.B.'s low frustration threshold and her hostility,
the social worker described an incident during which K.B. yelled
and screamed at her over the eighteen dollars that K.B.
had earned while she was at the Northern Hills Facility
and which the social worker was holding for her. During
this confrontation, K.B. told the social worker that she would
terminate her rights to P.B. if the social worker would
give her the money.
The social worker testified that she had become familiar with
the child-rearing practices of American Indians and that she had
had a good deal of experience in the delivery of
child and family services to American Indians. She had also
testified in other cases as an expert in dependency and
neglect proceedings governed by the Indian Child Welfare Act.
It was her opinion that K.B.
lacks the ability to adequately provide for P.B.
She expressed concern that P.B. would be placed in imminent
danger because of K.B.'s inability to provide her a suitable
environment and to provide for her medical, physical, and educational
needs.
The evidence reveals that P.B. has special needs.
She manifests one or two, but not all, of the
traits of a child with fetal alcohol syndrome.
She is also quite jittery and has manifested increased muscle
tone and mild developmental delays. She needs an
extremely stimulating environment to encourage her normal growth and development.
In the opinion of the social worker, there
has been no significant bonding between K.B. and P.B.
K.B. was evaluated by Ms. Yvonne Hagg, a clinical psychologist,
on September 24, 1984. Ms. Hagg has had
a good deal of experience in dependency and neglect cases
involving Indian children and had testified as an expert in
some twenty to thirty such cases prior to the dispositional
hearing in this case. In Ms. Hagg's opinion, K.B. manifests
the symptoms of a severe borderline personality disorder, which Ms.
Hagg testified is characterized by
impulsive
behavior, instability in many areas, including behavior affect and relationships
often in the history of self-destructive acting out, such as
suicide attempts or multilation, or instability in terms of mood
swings, labile affect, inappropriate anger and frequently drug abuse.
Ms. Hagg testified regarding her observation of the abrupt
changes in K.B.'s emotional
state. K.B. had manifested a great *371
deal of ambivalence, which refers to an intense, conflicting emotional
state that exists simultaneously or in rapid succession.
Ms. Hagg testified that K.B.'s severe borderline personality disorder would
almost certainly affect her ability to parent a small child.
K.B. had told her that she uses whatever
chemical she can get her hands on. K.B.
acknowledged that she had huffed paint and gasoline for at
least three years and that she had also used hallucinogens,
PCP, stimulants, and depressants. Ms. Hagg testified that
there is a possibility that K.B. is suffering from an
organic mental disorder as a result of the prolonged ingestion
of chemicals such as paint and gasoline.
Ms. Hagg also testified that K.B. had described at least
five attempts to take her own life, ranging from slashing
her wrists to attempting to hang herself.
It was Ms. Hagg's opinion that there was a high
probability that P.B. would suffer severe physical or emotional harm
if she were to be returned to K.B.'s custody.
She testified that K.B. could not properly care for
a young child, and that even with appropriate intervention there
was no assurance that K.B. would be able to provide
proper care within a period of two years.
Ms. Hagg recommended that K.B. be sent to a treatment
facility such as the South Dakota Human Services Center.
She testified that the prognosis for persons with K.B.'s
personality disorder, as complicated by limited intellectual ability and poly
drug abuse, is very poor.
At the time of the dispositional hearing, K.B. was in
the detoxification center undergoing a program for persons with alcohol
or chemical dependencies.
Although P.B. has raised some six separate legal issues, we
conclude that they can be adequately discussed under two general
headings.
I.
Whether
the Trial Court Erred in Finding that P.B. Was a
Dependent and
Neglected
Child.
Under the Indian
Child Welfare Act, the State must prove dependency and neglect by clear
and convincing evidence. People
in Interest of S.R.,
323 N.W.2d 885 (S.D.1982). The trial court elected in the instant case,
however, to apply a beyond-a-reasonable-doubt standard.
The
trial court found that P.B. lacked proper parental care through the actions
or omissions of K.B. SDCL 26-8-6(2). In attacking this finding as being
clearly erroneous, K.B. argues that it was Department's fault that K.B.
ended up in the situation which resulted in her being found in an intoxicated
condition in her mother's home on June 4, 1984. Indeed, K.B. charges that
"[t]he evidence clearly shows that the department of social services
placed appellant in a situation guaranteed to permit them to walk in and
claim harm to the child." We conclude that this attack on Department's
actions is unwarranted and unjustified. In the light of K.B.'s demonstrated
lack of emotional stability and immaturity, Department attempted to assist
her in learning
parenting skills even before P.B. was born. Thereafter, Department continued
with this program of assistance, only to have K.B. spurn it in favor of
returning to the environment that ultimately necessitated further intervention
by Department.
We hold that the trial court's finding that P.B. was
a dependent and neglected child is more than adequately supported
by the evidence, and is thus not clearly erroneous.
See,
e.g., Matter of S.H.,
337 N.W.2d 179 (S.D.1983); People
in Interest of P.M.,
299 N.W.2d 803 (S.D.1980); People
in Interest of D.K.,
245 N.W.2d 644 (S.D.1976). Given the situation in
which Department found P.B. on June 4, 1984, any other
finding by the trial court would have been unthinkable.
II.
Whether
the Evidence Was Sufficient to Support the Trial Court's Order
Terminating
K.B.'s Parental Rights.
The Indian Child Welfare Act provides in part:
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No termination of parental rights may be ordered in such
proceedings 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.A. §
1912(f).
K.B. contends that the evidence submitted at the dispositional hearing
fails to show beyond a reasonable doubt that K.B.'s continued
custody is likely to result in serious emotional or physical
damage to P.B. We do not agree.
Suffice
it to say that K.B. is simply incapable of providing the type of environment
necessary to meet P.B.'s developmental needs. Granted that it is not within
K.B.'s power to improve her intellectual capacity (who of us by taking
thought can add one cubit to our height?), but her parental rights are
not being terminated because of her less-than-average intelligence. It
is K.B.'s chronic use of alcohol and inhalants, coupled with her severe
borderline personality disorder, that makes the danger of serious emotional
or physical harm to P.B. not only likely but inevitable. A mother cannot
provide an adequately nuturing environment for a young child when the
mother herself is in need of intensive, long-term treatment and therapy.
It is to be hoped that K.B. will profit from such treatment and therapy,
but hope for her improvement is not an adequate substitute for the guarantee
of P.B.'s safety.
K.B. also contends that Department failed to make active efforts to provide
medical services and rehabilitative programs to prevent the break-up of
this family, citing that portion of the Indian Child Welfare Act which
provides:
Any
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that
active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.
25 U.S.C.A. §
1912(d). Again, we do not agree.
True, the State must prove beyond a reasonable doubt that
it has complied with this requirement of the Act.
People
in Interest of S.R., supra.
From what we have outlined above, however, it
is clear that Department has satisfied this burden.
It attempted to educate K.B. in the rudiments of child-caring
techniques even before P.B.'s birth. Department continued these
efforts after P.B.'s birth, only to have K.B. spurn them
by returning to the deleterious environment of her mother's home,
from which Department had tried to insulate her.
After P.B.'s removal from that environment, Department persisted in its
efforts to assist K.B. in developing her maternal skills and
to overcome her alcohol and chemical addictions, to no avail.
K.B. is not responsible for her less than
average intelligence or her psychological impoverishment, but neither is Department
charged with the duty of persisting in efforts that can
only be destined for failure.
Finally, K.B. contends that the trial court erred in finding
that termination of her parental rights was the least restrictive
alternative, again charging Department with failing to provide sufficient assistance
to her in the way of providing housing and parenting
skills.
Parents
have a fundamental liberty interest in the care, custody, and management
of their children. See,
e.g., People in Interest of S.L.H.,
342 N.W.2d 672 (S.D.1983). This fundamental interest is neither absolute
nor unconditional. Id.;
In re N.J.W.,
273 N.W.2d 134 (S.D.1978); In
re K.D.E.,
87 S.D. 501, 210 N.W.2d 907 (1973).
The best interest of the child is the paramount consideration
in determining whether to terminate parental rights. SDCL 26-8-36;
see,
e.g., People in Interest of S.L.H., supra; In re
M.S.M.,
320 N.W.2d 795 (S.D.1982).
*373
In entering a dispositional
order, the trial court must apply the least restrictive alternative. See,
e.g., People in Interest of S.L.H., supra; In re S.H., supra, In re N.J.W.,
supra.
The least restrictive alternative test means just that, for not every
conceivable form of assistance must be attempted and found wanting before
termination of parental rights is justified.
Termination
of parental rights is not conditioned on exhaustion of every
possible form of assistance.... In the event counseling and
therapy fail to improve parenting skills, termination of parental rights
is justified.... Social Services cannot implement its plans and programs
without the client's participation and cooperation.... When all Social
Services attempts and assistance fail for lack of cooperation, no
narrower or less restrictive alternative remains.
Matter
of D.H.,
354 N.W.2d 185, 191 (S.D.1984). See
also In re J.S.N.,
361 N.W.2d 371 (S.D.1985); In
re A.L.P.,
368 N.W.2d 617 (S.D.1985); People
in Interest of C.L.,
356 N.W.2d 476 (S.D.1984).
Also, it must be remembered that the least restrictive alternative is
viewed from the child's perspective. In
re J.S.N., supra; People in Interest of C.L., supra.
As we held in J.S.N.,
supra,
"The best interests of children require that some certitude and
stability enter their lives." 371 N.W.2d at 364.
See
also In Matter of S.S.,
334 N.W.2d 59 (S.D.1983).
When
viewed in the light of the foregoing principles, the evidence presented
to the trial court fully justified its decision to terminate K.B.'s parental
rights. Granted, the conditions that resulted in the adjudication of dependency
and neglect had not existed for a lengthy period, but those conditions
would only have continued or worsened, notwithstanding Department's best
efforts. Accordingly, the trial court did not err in entering the order
terminating K.B.'s parental rights.
The order of adjudication and the dispositional order are affirmed.
All the Justices concur.
WUEST, Circuit Judge, Acting as Supreme Court Justice, participating.
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