*1
The PEOPLE of the South Da
kota, ex rel SOUTH DAKOTA DE
PARTMENT OF SOCIAL SERVICES J.G.R.,
In the Interests of a Minor
Child, Concerning M.R. C.R., Respondents.
No. 23209.
Supreme Court South Dakota.
Considered on Briefs Oct.
Decided Dec. *2 General, Long, Attorney E.
Lawrence Holzhauser, Attorney Assistant Ann M. General, Pierre, Dakota, Attorneys South Dakota. appellee State of South Smiley, Jackley and Marty J. Jason Dakota, Attorneys for City, Rapid South appellant C.R. Winner, E. Dako- Covey, South
Donald ta, child Attorney for minor J.G.R. KONENKAMP, Justice. (mother) termi- appeals the C.R.
£¶1.] affirm. rights. her We nation of
FACTS mother took April On in Win- day employment off from J.G.R., ner, daughter, Her Dakota. South. from school. expelled age eight, had been apparent effort to leave her with an or neglected abused child through the other, caretaker, some mother had the acts omissions mother.1 and/or pack They child a suitcase. traveled After attorneys additional ap- Hot Springs, South Dakota. At the Fall peared mother, this matter was set for *3 Feedlot, dropped River mother off the a dispositional hearing. Mother was even- away. child Carrying and drove her suit- tually represented by attorneys Marty by J.G.R. walked into the office her- Jackley Smiley and Jason disposi- at the hour, self and sat down. After half an an tional hearing. The trial court heard evi- employee office sobbing. noticed the child concerning dence prior mother’s decisions She had note her mother had told her to to leave J.G.R. with other caretakers for give “Connie,” stating, “Looking for periods extended of time. Mother also someone who cares.” No named one Con- timely failed to obtain a psychological eval- nie worked there. Mother knew the man- uation or follow through with the recom- hqd feedlot, ager of the but she made no diagnosed mendations. Mother was with prior arrangements for stay the child to disorder, bipolar general anxiety disorder, there; no one at the feedlot prior had personality borderline traits. Mother that the knowledge going child was to be took steps no to follow through any there; left any and no one had idea that treatment plan for her conditions. Addi- they expected would be to care for the tionally, mother refused accept three child. The child had been to the feedlot Department different of Social Services past.' once or twice J.G.R. was (DSS) plans. Instead, service case protective custody by taken into the sher- proposed her plan own to DSS to return eventually iffs office. Mother was located you child or “see later in federal later, six hours fifty one hundred miles court.” The trial court terminated moth- away, Belvidere, South Dakota. er’s rights. appoint- 3.] Mother received a court Wendell, ed attorney, Rose Ann ap- who ANALYSIS peared at advisory hearing. Wendell counsel, was replaced by private Stanley ISSUE ONE Whiting. adjudicatory hearing was Whether the trial court’s deci- Later, continued as result. Whiting proceed adjudicatory sion to with the moved to withdraw based on mother’s re- hearing despite mother’s lack of coun- quest. A1 Arendt subsequently appeared statutory awas violation of her sel on behalf of mother at a scheduling hear- rights. constitutional ing. thereafter, Shortly Arendt also moved to withdraw based on a conflict appeared [¶ Mother adjudica- at the with mother. Arendt was tory allowed to with- hearing without counsel. The trial draw but the trial court indicated that the court previously had attorney allowed Ar- adjudicatory hearing proceed would endt to withdraw without appointing sub- scheduled. Mother was not present at the stitute counsel. At adjudicatory hear- hearing on the motion to ing, withdraw. Moth- persisted mother in her demands that er se motion for a continuance filed a she 'did not want' to proceed without the to obtain counsel. That motion was de- benefit of counsel. Although the trial nied. The adjudicated trial court J.G.R. initially appointed had petitioned appeal intermediate was denied this Court on March petition from the order. That appeal no. 22711. normally you does to get what replaced by privately attorney was you in attorney this case. However, pri-
retained counsel.
allowed
vately retained
Essentially,
trial court determined
adjudicatory phase
withdraw before
obligation
its
to ensure counsel for
of substitute
requirement
without
adjudicatory hearing had ended.
court. Mother did
specifically
26-7A-31
[¶ 9.] SDCL
before the
obtain counsel
for a
provides
result, and
her ob-
despite
aAs
neglect proceed
in an
abuse
adjudica-
proceeded at the
jections, mother
addressing
to effective
ing.
tory hearing pro se.
provided by
this stat
assistance
*4
ute,
adopted
this Court has
criminal proce
following
were
statements
7.] The
[¶
safeguard
right.
aas means to
this
dures
to
trial court mother:
made
A.D.,
678
See Interests of
know,
right
but
I don’t—I don’t
without
594,
Korth,
(adopting
N.W.2d
598
not
have
I am
you
noticed
to counsel—
procedures
matter. Its a mo by counsel or denial of withdraw follows: by to substitute counsel made tion Loftus, SD you out of defendant. See State
I
¶ 14,
(affirming
do
566 N.W.2d
request, which I never
your
Pierre at
denial of defense counsel’s
I
and be-
the trial court’s
went above
down here. So
after breakdown
give
withdraw
yond
normally
I would
do
what
by de
relationship caused
you wanted.
client
you
at
then,
reason,
repre-
cooperate
failure to
with
fendant’s
And
for some
¶ 12,
Irvine,
torney);
I don’t
State v.
SD
sentation
not work out.
did
177,181 (affirming trial court’s
you
N.W.2d
I think that
happened.
know what
it would
attorney,
of substitute
when
hired an
so
denial
then went and
So,
litigation
and was defendant
protract
counsel.
to withdraw as
allowed
trial
disruption).2 The
above who caused the
went over and
the Court
then
provides
at-
mercy
"[n]o
16-18-31
attorney’s
counsel. SDCL
A trial
is not at the
court
any
torney
appeared of
ensuring
right
who has
record
when it
mother's
comes
procedures
did not use these
to deal
is not a
willingly
she exercised
but
revolving
fought against
way.
attorneys.
door of
the entire
mother’s
A
trial court’s consider
The criminal
context also
ation of a
for substitute counsel or
highlights
important consequence
a motion to withdraw can properly take
proceeding pro se and what must be done
into
delay
account the effect further
in the
in order to make such a decision.
proceeding will
upon
have
the child. In re
Conley,
216 Mich.App.
At a minimum a defendant must be
(1996).
instance,
In this
the trial court
dangers
disadvantages
aware of the
should have considered
effects of fur
of self-representation.
appeal,
On
waiv-
ther
proceeding
this
as well as
er of the
to counsel will
to counsel when
(cid:127)found knowingly
intelligently
made
addressing attorney Arendt’s motion to
(1)
unless the
warns the de-
By way
withdraw.
comparison,
dangers
fendant of the
of self-represen-
closely
facts of this cáse
analogous
are
or,
tation
unless the record indicates
Elliott,
Baby
re
Girl
to or of a.tribunal when terminat- justified by, clearly purpose or conclude We therefore The bur- against, reason and evidence. princi guided courts should be trial avail- rests on mother to insure her den v. Calhoun aptly stated in J.A.H. ples (Ala. time as a ability hearing at the of the DHR, 1093, 1095 County So.2d can neglect hearing dependency held that: the court Civ.App.2002),wherein par- of the proceed without presence context, a defen- criminal when In the are parent if the interests of the ent appointed that his has established dant accommodated. represen- attorney should be relieved of-interest, E.D.J., of a conflict tation because Interest omitted). (S.D.1993) (internal coun- new the trial court must substitute citations the constitu- Although the basis of Additionally: sel. cases right to counsel criminal
tional deciding grant or not to whether to coun- from the differs continuance, a trial consider: court must termination-of-parental-rights sel (1) resulting from the whether cases, be- parallel of a enough we see will to the prejudicial continuance two in this context rights tween the (2) the eontinu- opposing party; whether that relieves require a by procrasti- anee motion motivated case a termination nation, planning, dilatory bad tactics a substitute appoint moving faith on part bad parent’s protect counsel so counsel; prejudice or his .party already exercised to counsel. moving party by to the caused continuance; grant refusal to court’s adju- allowing The trial court erred *6 (4) and, any have been whether there heáring without en- dicatory to continue delays. prior continuances or as re- the assistance of counsel suring could by 26-7A-31. This quired 591, Thompson, Evens v. 485 N.W.2d denying coun- accomplished by have been (internal (S.D.1992) omitted). citations withdraw, denying a motion motion to sel’s Here, delay would have 16.] further [¶ counsel, new appointing for substitute impact a detrimental on the other created counsel, obtaining or a valid waiver. had this The State parties proceeding. present had traveled three witnesses that ISSUE TWO present miles. was over 200 Father trial Whether the [¶ 14.] in had been proceed. wanted to Child denying its moth- abused discretion custody for more than seven of DSS before motion for a continuance er’s adjudication. This hear- without months adjudicatory hearing. but once before ing had been continued alleges result of finding was no this was the there for a denying her motion court erred dilatory by tactic mother. faith or bad second continuance of the circumstances, generally the these Under obtain counsel. hearing so she could its dis- trial court would have abused has that: recognized This Court denying motion for a contin- cretion How- adjudicatory hearing. or a continuance uance of the granting The refusal of error ever, in trial court’s light is within the sound discretion one, the a continuance court, grant not be issue rulings will under circuit and its provide remedy other of discre- or some curative reversed absent a clear abuse or- mother have been re- counsel to should tion. The term of discretion abuse Proceeding with- by the trial court. to an end dered fers to a discretion exercised by adjudication out a valid waiver mother phase counsel or “is child, justifying brought on behalf of was error continuance or-addi- not to pun- Here, parents.” clearly ish the Id. mother safeguard tional methods neglected by abused or her child abandon- right. ing her some 200 miles from her home at a feedlot. Even with the benefit of THREE ISSUE it is inconceivable that the child would not failing the error in Whether adjudicated have been neglect- abused or by ensure counsel at Hughes ed.3 See v. Family Division of adjudicatory phase requires rever- Services, (Del.2003) 836 A.2d disposition sal of the trial court’s (holding that the appoint- absence of court represented when mother during ed dependency ne- dispositional hearing. counsel at the error). glect proceeding was harmless Furthermore, it important pur- for the An hearing is “a poses analysis of this recognize hearing allega- to determine whether the provided counsel was dispositional for the petition alleging tions of a that a child is matter, hearing and thus mother abused neglected supported by are entirely was not left to her own devices. convincing clear and evidence.” SDCL Arkansas, See Briscoe 323 Ark. 26-7A-H2). D.M., Interest 912 S.W.2d (finding ¶ 6, Moreover, 677 N.W.2d “the harmless error when opportu- counsel had adjudicatory hearing past, looks to the e.g. nity present at the final hearing evi- neglect, whether there has been abuse or dence mother left out when improperly dispositional while the hearing looks to the required proceed se during the child’s future.... The disposi- focus of the phases). initial Although hearing tional is the best interest of the erred not ensuring representation by T.A., child.” Interest counsel at the adjudicatory phase, error was harmless because did not taint disposition matter, of this and remand- *7 occasions, [¶ 19.] On rare this ing for an adjudicatory hearing would ac- applied Court has analysis harmless error complish nothing. phase to affirm the termination of rights despite er ISSUE FOUR C.V., occurring rors below. See Interest of Whether pa- [¶ 21.] termination of ¶47, 11, 22. N.W.2d The rights rental was least restrictive the. question reversing adjudicato is “if for an alternative. ry hearing truly produce any will rational ¶ possibility aof different result.” Id. 9. [¶ Mother 22.] contends that case, due regard With for the facts long of this term foster care would have a been and the overarching inquiry of in what is less-restrictive alternative. argu Similar child, the best of interests rejected we conclude ments have been numerous times the error in was harmless it long this Court because term foster would changed adjudication not have in care in generally is not a child’s best inter S.W., this matter. ests. Matter of C.V., If this case were to be remanded it would be Interest n. limited effecting to the circumstances N.W.2d at 22. filing child at petition. the time of the of the GILBERTSON, Justice Chief 27.] have (S.D.1988). [¶ have Children MEIERHENRY, Justice, concur Matter family environment. a stable result. (S.D.1995). Addi- S.A.H., N.W.2d n alternative tionally, “the least restrictive ZINTER, Justice, concurs n Id of view.” point child’s from the
viewed specially. of a part to be a have a “Children (concur- GILBERTSON, Justice Chief required to wait not be family and should result). ring in skills that parenting acquire that the I concur with the Court testimony at develop,” Id may never court-appointed lack of little, if that mother made trial established adjudicatory hearing under at the counsel her improving parenting any, progress require of this case does the facts parental rights skills. Termination reversal, Moth- for different reasons. but when alternative con- least restrictive un- statutory rights constitutional er’s the child. interests of sidering the best pro- adequately were 26-7A-31 SDCL der appointment court vided to her without FIVE ISSUE at additional I also hold that the would erred the trial Whether deny- its discretion court did not abuse determining efforts reasonable motion for continuance'un- ing Mother’s family made. had been reunite the der Issue exercise rea must 24.] DSS [¶ >theCourt agree I 30.] [¶ their children to to return sonable efforts sufficient for would have been ar 26-8A-21. Mother to with- parents. deny counsel’s draw, a substantial motion for substitute completed deny that she Mother’s gues waiver as by DSS. a valid goals set for her obtain portion Mother’s safeguarding further classes means of parenting complete did trial court that the agree I do not rights. with the of her visits and attend most appoint substitute required of no visita child, for two months except under the facts adjudicatory phase at the However, failed to whatsoever. tion right to counsel as Mother’s of this DSS, informed keep them cooperate with throughout protected adequately had been whereabouts, sign her case service proceedings. and, refused importantly, most plans, psy of her are follow the recommendations of this case The facts *8 no at to the pertains Mother made as it complex evaluation. lengthy chiatric attorneys retained necessary treat door of revolving tempts complete to the abuse for and DSS’s efforts Mother counseling ments 2003, 13, May On neglect proceedings. al were frustrated toward reunification ap- attorney Ann Wendell Rose way by the every step of most the case Mother and pointed, not err trial court did actions. The on adjudicatory hearing for was scheduled reasonable, but unsuc determining that 17, 2002, attorney 23, July By July cessful, were made. efforts appearance Whiting E. entered Stanley Affirmed. [¶ 25.] privately after she of Mother on behalf A of continuance his services. retained granted. On hearing was Justice, SABERS, the concurs. [¶ 26.] 594 16, 2002, requested
September
Whiting
There is no absolute constitu
[¶ 35.]
appointed
tional
to court
counsel in
per
counsel Mother’s
leave to withdraw as
the
potential deprivation
absence of
of
a
request.
physical liberty.
v. Dep’t.
Lassiter
of Soc.
hearing
A
was set for October
County,
Servs.
Durham
North Car
10,
a trial
on the
2002 to schedule
date
olina,
18, 25, 101
2153, 2158,
452 U.S.
S.Ct.
petition
adjudicate
Child as abused and
640,
(citing
68 L.Ed.2d
648
Gideon
neglected.
privately
Mother
retained
335,
792,
Wainwright,
v.
372 U.S.
83 S.Ct.
represented
who
l Arendt
her at
(1963)).
595 (fathers 296,-298(Wyo.1998) P.2d adopted pro This Court has failure to pro in criminal safeguards cedural utilized appropriate ap file the for court assistance of ceedings to ensure effective pointed counsel was deliberate decision to neglect proceedings.5 in abuse and proceed pro despite request by se initial ¶ A.D., 39, 10, Interests 678 See letter, of as several father filed other motions 594, Despite diligence N.W.2d procedur indicated he understood the trial court must use in criminal cases.when jurisdictions requirement). al Other view determining whether a valid waiver of the repeated discharge attorneys, of both made, right to counsel has been a defen retained, 'court-appointed privately and every indulged dant will not be time he a waiver of the to counsel. appointed attorney. new court Olivia, In re Adoption Mass.App.Ct. 53 of ¶ Bruch, 74, 18, 1997 565 State SD 670, 536, (holding 761 N.E.2d 542 789, (quoting Berry 793 v. Lock N.W.2d support reasons advanced father in of (8th Cir.1989)). hart, 1168, 1171 873 F.2d his motion for substitution of appointed permitted A defendant will not be en counsel in for of proceedings termination dilatory tactics as a means of gage parental his rights good did constitute manipulating right to counsel to counsel); appointed cause for removal of (citing disrupt the trial. Id. United County Dept. Keen v. Marion Public White, (8th 1390, 1393 States v. 529 F.2d 452, Welfare, 523 N.E.2d 456 (Ind.Ct.App. Cir.1976)). apply standards should These 1988) (holding statutory no violation of equally parental rights terminations as right to counsel of mother who denied given criminal our prosecutions well as adoption procedural safeguards appointed attorney of criminal a second court after to ensure effective assistance of counsel using court counsel for four adjudicatory proceedings. Inter such See years, being granted numerous continu A.D., 2004 678 N.W.2d ests SD ances, electing private to use and at 598. failing prior to hire counsel to trial then date). jurisdictions go so far as to
Some
deny
statutory, right of
statutory scheme for termi
[¶ 38.] Our
rights
proceedings
termination
parental rights
grounded upon
nation of
indigent parent
when the
has received ade
26-
the best interests of the child. SDCL
quate
timely
right
and
notice of the
7A-5;
E.D.J.,
499
Interest
N.W.2d
counsel, yet
request
fails to
such counsel
(S.D.1993).
repeatedly
have
held
We
B
day
until the
of trial. Interest of
that we will not force the child to wait
(Mo.Ct.
M-P-,
704 S.W.2d
parenting
skills that
acquire
his
interpret
the failure of
App.1986). Others
J.Y.,
may
develop.
never
re
parent
such
A.D.,
(citing
N.W.2d
Interest
statutorily prescribed
prior
via the
method
268).
416 N.W.2d at
Should we now hold
to trial date to be a valid waiver of the
KMM,
that we will
a child to wait for his
right
to counsel.
Interest
force
appoint
par-
vately retained counsel
throughout
Although
may fairly
one
debate
proceedings
seven months of
hearings.
whether Mother
request
made
effective
Additionally,
Mother filed six
se mo
court-appointed
counsel on or before
prior
tions
to her
ap
for court
adjudicatory hearing,
December 3
pointed counsel. Mother’s actions were
very
record is
clear that Mother did make
par
not on
father
J.A.H. such
requests
three
to retain new counsel.
“unduly
that it would be
burdensome and Moreover, all
three
were made
overly
require
technical to
to re
[Mother]
shortly
lawyer
after
last retained
with-
peatedly request
appointment
of coun drew, but two to three weeks before the
J.A.H.,
sel.” See
flects difficulties litigant,
Mother as a se the trial court delays “legitimate”
indicated that the were change compli- of a of counsel and
because pregnan-
cations associated with Mother’s
cy. significant It is also expressed concerns about Mother’s
competency proceed early as the
advisory hearing July 2002. Thus, this is not a case where findings
the trial court entered
objecting party using dilatory tactics manipulate Although the court.9 properly court was concerned with
prejudice delays, to the from child further appeal itself concedes on there faith part,
was no bad on Mother’s previous
that the reasons for the continu- “appear
ances to have been bona fide.” Considering these concessions pretrial requests
and Mother’s three counsel, I
retain concur. Application
In the Matter of the Katheryn BENTON.
No. 23232.
Supreme Court of Dakota. South
Argued Nov.
Decided Jan.
often,
delay awaiting
perhaps
dilatory
such decision. The adverse
be
tactics. A defen
party may
by argu-
be heard
affidavits or
right manipulate
dant has no
his
filed,
presented,
ment
and served at the
disrupt
counsel in order to
the trial."
time of the
Bruch,