In thе Matter of J.L.H. and P.L.L.H. Neglected or Dependent Children.
Supreme Court of South Dakota.
Michael J. Williams, Asst. Atty. Gen., Pierre, for appellee State; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.
C. J. Bormann of Bormann, Buckmeier & Bormann, Mobridge, for appellant mother.
MORGAN, Justice.
In this appeal, appellant mother is attacking the decree terminating her parental rights on the ground of insufficient evidence under the Indian Child Welfare Act, particularly section 1912(f) and, alternatively, as unrepresentative of thе least restrictive alternative. We previously reviewed this case and remanded it in Matter of J.L.H.,
*651 The parties agree that our scope of review on questions of sufficiency of the evidence is as set out in Matter of A.M.,
[T]he trial court's findings of fact cannot be set aside unless they are clearly erroneous and we are, after a review of all of the evidence, left with a definite and firm conviction that a mistake has been made. (citations omitted)
Section 1912(f) of the Indian Child Welfare Act provides,
No termination of parental rights may be ordered in such proceeding in the absence оf a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that thе continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to thе child.
Appellant raises three questions which arise from this provision. First, she contends that the record lacks evidence that thе continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. The trial court specifically concluded,
That [J.L.H.] and [P.L.L.H.] have suffered emotional and physical damage as the result of failure of their mоther, [G.L.H.] to provide proper parenting, and that said children are neglected or dependent children, pursuant to SDCL 26-8-6.
Our review of the record reveals evidence of conduct by appellant and other persons in and about the residence which supports the trial court's findings.
Second, appellant contends that the trial court erred as to the burden of proof whiсh the Act requires to be beyond a reasonable doubt. The case was originally remanded upon the grounds that the trial court had erroneously applied the standard of clear and convincing evidence. Appellant's brief specifically statеs, "on remittitur from the Supreme Court, the parties concurred that the parties understood that the trial court had made its prior dеcision using the standard required by the Indian Child Welfare Act." The trial court's decree specifically ordered termination based оn the standard of evidence "beyond a reasonable doubt." It also concluded,
That the evidence shows beyond reasоnable doubt that continued custody of said children by [G.L.H.], should the same be restored to her, is likely to result in severe emotional and рhysical damage to them; that restoration of said children to her is not a viable alternative at this time, or in the foreseeable future. That they should be permanently removed from her care, custody and control.
In view of the decree's language аnd the trial court's conclusion this issue is frivolous.
Third, appellant urges that the testimony of Virginia Pearson, a social worker involved thrоughout the case, was inadequate to qualify her as an expert witness under section 1912(f). The educational qualifications of thе social worker included a bachelor of science degree in business and "about fifteen hours in graduate study," most of which was in рsychology or sociology. Appellant points out that she had no graduate degree in psychology, sociology or sоcial work. South Dakota Codified Laws 19-15-2 permits qualification as an expert to be based on knowledge, skill, experience, training or education. The statute is drawn in the disjunctive. The trial court could and did take into consideration the witness' educationаl background coupled with her eleven years of experience in the field and ruled that she was qualified to testify as an exрert. We recently held in Buckley v. Fredericks,
We next consider appellant's argument that the trial court failed to employ the least restrictive alternative by terminating her parental rights. Admittedly, termination is the most restrictive alternative. Appellant's argument is rather ingenious. In еssence, she argues that because the trial court did not terminate her rights under the standard of proof "by a preponderance," it cannot now terminate those rights under the standard of proof "beyond a reasonable doubt" where appellаnt's behavior had not changed substantially.
This argument has two defects. It assumes that the evidence in the prior hearings only met the lesser requirement of preponderance and not the higher requirement of beyond a reasonable doubt. It was the same trial judgе in all instances. Further, if a trial court was lenient by employing less restrictive alternatives on earlier occasions, this posturе should not prohibit the court from imposing more restrictive alternatives when the course of conduct continues and thwarts the effectiveness of the lesser alternatives. See, e.g., Matter of A.I.,
We affirm the decree.
All the Justices concur.