People in Interest of KC , 1987 S.D. LEXIS 363 ( 1987 )

WUEST, Chief Justice (on reassignment).

This is an appeal by L.C. (Father) following termination of his parental rights in the minor child, K.C. We affirm.

Father married V.M. (Mother) in July, 1978. The couple divorced in February, 1979. A Montana divorce decree gave Mother custody of their ten-month-old daughter, K.C., and allowed Father reasonable visitation rights. Father made child support payments for two months but thereafter failed to provide further support for K.C. At this point, Father ended essentially all contact with his child.

Following the divorce, Mother moved to Lemmon, South Dakota. The Department of Social Services (Department) began receiving referrals on K.C. in September, 1979. Reports alleged neglect and incidents of physical abuse by Mother. Department initiated parental counseling for Mother.

Mother married A.B., Sr. in December, 1979. Their first child, A.B., Jr., was born in December, 1979. Their second child, A.B., was born in December, 1980. Reports of neglect and physical abuse continued, as well as reports of the open use of illegal drugs in the home. Department removed the three children from the home in August, 1981. The trial court terminated the parental rights of both parents in early 1982. The parents began an appeal in that action.

Over the next several years the children made significant gains in physical and mental development under the care of their foster parents but still suffered various medical and developmental problems. Mother’s potential as a parent also appeared to improve, but she was estranged from her second husband during this period because of his continuing alcohol problem, his physical abuse, his relationship with another woman, and his lack of interest in the children.

Department returned the children to Mother’s care in August, 1984, when the attorneys in the case stipulated the order terminating her parental rights should be vacated. Mother and the children moved in with Mother’s grandparents. In September, 1984, the grandfather allegedly abused K.C. sexually.

Mother moved to a separate residence but permitted two or three other adult individuals to reside there with her. Department investigation indicated illegal drugs were being used in front of the children; the adults were sometimes allowing the children to drink alcohol; and, the children were being physically disciplined by several of the adults. On most occasions, the apartment was filthy. The children often went unsupervised, and seven-year-old K.C. was sometimes left in charge of the younger children. Mother failed to provide consistent meal preparation and a nutritious diet for her children.

In February, 1985, Mother gave birth to H.M. and R.M. The identity of the natural father is unknown.

Mother was sleeping with her boyfriend, J.S., who resided in her home. In April, 1985, K.C. was subjected to sexual abuse by J.S. on at least two occasions. Mother did not report the incidents to authorities, however, until July of 1985.

The trial court held a dependency and neglect hearing in August, 1985. All five children were found dependant and neglected. Father (L.C.) stated he would be willing to take custody of K.C.

The trial court held a disposition hearing as to all the children in March, 1986. Father indicated his desire to have K.C. and testified as to his recent background. The trial court concluded that termination of parental rights for Mother, Father, and A.B., Sr., was the least restrictive alternative in view of the best interests of the children.

Subsequent to the disposition hearing, Father, who did not have counsel at the hearing, requested counsel be appointed for him. His attorney then moved for rehearing because Father did not have counsel at the prior hearings.

Rehearing as to K.C. was held in June, 1986. Father again testified as to his recent history and reasons for wanting custody of K.C. After hearing the evidence the court concluded termination of Father’s parental rights was the least restrictive alternative and in the best interests of K.C.

Evidence brought forward at the June, 1986, hearing indicates Father’s employment in Montana ended shortly before his February, 1979 divorce. He left Montana a few months after the divorce and moved to Hettinger, North Dakota, where he resided with his mother and two adult brothers. Although Hettinger is close to Lemmon, South Dakota, and despite his right of visitation, Father had limited contact with his daughter.

Father moved to St. Anthony, North Dakota with his mother and two brothers in the summer of 1984. As of June, 1986, he was still residing in a trailer home with his mother and two brothers.

Except for several brief periods of part-time work, Father has been mostly unemployed since 1979. His total income in 1985 was somewhere between two and three thousand dollars. Rather than find permanent employment in nearby Bismarck, North Dakota, Father has remained in a small town with limited employment opportunities. Similarly, as of June, 1986, neither of his brothers were employed. The mother’s social security is the only stable source of income the household has been able to rely on.

Father appears to be irresponsible. He is continuously unemployed and seems to only get involved in various odd jobs. In fact, he had made no contact with Job Services for approximately a year. His total earnings in the eighteen months prior to trial was $3,000.00.

The home where the child would live with her Father, grandmother and two uncles is something which has been described from the exterior as a “hillbilly shack” and a “junkyard.” The interior was described as cluttered and musty smelling. The home is not modem, in that the water well had caved in and they were hauling water from Mandan or Bismarck (25 miles away) in gallon jugs. Apparently they were using the outhouse and in colder weather were pouring water into the tank of the stool and periodically flushing it into the sewer system, connected to a septic tank.

At the March hearing, Father testified that a new well was being drilled and the water would be connected within four days. At that same hearing, his mother testified that the well would be connected to the water system in the spring. At the time of the June hearing, the water was still not connected and they were still hauling water from Bismarck or Mandan. Testimony was that they intended to get the well drilled soon.

Admittedly, raising a child in non-modem facilities, with the use of an outhouse and hauled water is not bad per se. However, the testimony of the Father is reflective of his possible lack of candor and certain irresponsibility by not following through with otherwise good intentions.

We do not believe Finding of Fact 14 is clearly erroneous. Admittedly, the Father did suggest to the Mother that she notify authorities of the sexual abuse of the daughter, and some weeks later he asked her if she had done so. However, he never personally made any attempt to take custody, visit or protect his daughter after becoming aware of the alleged sexual molestation. In reality, he did nothing!

During the several occasions in 1981-86, when the children were removed from the home and placed in foster care, the Father never asked for visitation rights of his daughter. In 1981-85 he had no real contact with her. In fact, as of March 27, 1986, he had not seen her for over a year nor had he sent her any gifts or cards. He did not even remember her birth date.

During certain occasions when the child was in foster care, removed from the care of the Mother, he continued his relationship with the Mother. In fact, she stayed with him for approximately one month in the summer of 1985 during which time they had sexual relations. It is abundantly clear that the daughter must be kept away from her Mother and the bad maternal influences. There seems to be a danger that Father would not enforce this proviso.

Father's abstinence from marijuana seems somewhat halfhearted. He testified that he had not used it “for awhile” and was “trying to get away from it.” His main comments seemed to be “Who can afford it?”

Although he claims to be a member of a church, he attends only on religious holidays. This is true even though his mother attends church regularly, and he could easily join her.

The court believed K.C. needed a nurturing and stable home environment. The court was concerned about Father’s occasional liaisons with his former wife since their divorce, and the court felt any reintroduction of Mother’s presence would be harmful to K.C. Given the past sexual abuse of K.C., the court did not believe placement with Father was wise since his brothers resided in the home. The court also noted the bonding between K.C., A.B., Jr., and A.B., which the court felt should be preserved by keeping the children together if at all possible.

The testimony is clear that the existing bonding between K.C. and her brothers is manifestly important. To now separate her from her brothers would do a great disservice to her and possibly do violence to her best interests. The Department of Social Services indicates that they have every intention of keeping the children together, if at all possible. They should be given this opportunity.

The mental health professionals indicated that placement of K.C. should be viewed towards permanency. It was indicated that her previous transit background had been harmful and could be harmful in the future. The Father has lived a very transitory life with frequent changes in homes and employment. In the opinion of the psychologist this type of life would be harmful to K.C. were it to continue in the future.

Based on all the evidence, the trial court decided the least restrictive alternative commensurate with the best interests of K.C. required termination of Father’s parental rights. The court entered this factual conclusion in both its findings of fact and conclusions of law. Father argues the court clearly erred in finding termination was in the child’s best interest and the least restrictive alternative commensurate with the child’s best interests.

In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court held that before the State of New York could declare a child to be “permanently neglected,” thereby authorizing termination of parental rights to the affected child, the state’s allegations supporting parental rights termination must be proved by “clear and convincing evidence.” “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to instruct the fact finder concerning the degree of confidence our society thinks we should have in the correctness of factual conclusions for a particular type of adjudication.” Santosky, 455 U.S. at 755, 102 S.Ct. at 1395 citing Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). A “clear and convincing evidence” standard “adequately conveys to the fact finder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” Santosky, 455 U.S. at 770, 102 S.Ct. at 1403.

The ruling in Santosky increased the state’s burden of proof at an adjudicatory hearing by requiring each allegation in the petition be proven by clear and convincing evidence. People In Interest of S.H., 323 N.W.2d 851 (S.D.1982). If the trial court finds that the allegations of the petition are supported by clear and convincing evidence in cases concerning dependent and neglected children, the court shall sustain the petition. SDCL 26-8-22.10.

In Matter of S.S., 334 N.W.2d 59 (S.D.1983), this court stated whether dependency and neglect exists is question of fact for the trial court. This statement is essentially accurate. The State must prove allegations of fact in its petition by clear and convincing evidence, and the trial court must determine the truth of the evidentiary facts offered by the State. The trial court must also satisfy itself that an ultimate fact which establishes dependency and neglect is similarly supported by clear and convincing evidence. An ultimate fact would be one of the factors listed in SDCL 26-8-6, such as whether, based on all the evidence, the court is able to find the child “lacks proper parental care,¹ or that the child’s “environment is injurious to his welfare.” ²

Whether a child is dependent and neglected is probably more accurately viewed as a mixed law-fact question because when the court finds that an ultimate fact under SDCL 26-8-6 exists and has been proven by clear and convincing evidence, the court may conclude as a matter of law that the affected child is dependent and neglected as defined by SDCL 26-8-6. However, the trial court’s primary analysis in reaching its decision is factual. If application of the rule of law to the facts requires an inquiry that is ‘essentially factual’ — one that is founded ‘on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct, ’ — then the lower court’s determination should be classified as one of fact reviewable under the clearly erroneous standard. Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987).

The trial court’s findings of fact will not be set aside by this court unless they are “clearly erroneous.” SDCL 15-6-52(a). In applying this standard, the question before this court is not whether we would have made the same findings the trial court did; rather, the question is whether, after a review of all the evidence, we are convinced that a mistake has been made. People In Interest of T.H., 396 N.W.2d 145 (S.D.1986); Matter of S.M., 384 N.W.2d 670 (S.D.1986); Wiggins v. Shewmake, 374 N.W.2d 111 (S.D.1985); Matter of D.H., 354 N.W.2d 185 (S.D.1984). We must determine “whether the trial court was clearly erroneous in finding the evidence supporting termination was clear and convincing.” Matter of S.M., supra; Interest of T.H., supra; Matter of S.S., supra.

In this case the issue is whether termination of Father’s parental rights was the least restrictive alternative commensurate with the best interest of the child. The trial court entered its factual conclusion as both a finding of fact and a conclusion of law. As is the case with a finding of dependency and neglect, however, how we characterize this conclusion establishes our standard of review.

The Santosky decision arguably dealt only with the standard of proof in dependency and neglect adjudications. Nevertheless, this court has held the clear and convincing standard must be used at both the adjudicatory and dispositional stage of the proceedings. Matter of D.B., 382 N.W.2d 419 (S.D.1986); People in Interest of L.A., 334 N.W.2d 62 (S.D.1983). We have therefore held “the trial court must find by clear and convincing evidence that termination of parental rights is in the child’s best interests.” Matter of C.L. and R.P., 397 397 N.W.2d 81 (S.D.1986); Interest of T.H., 396 N.W.2d at 148; Matter of S.M., 384 N.W.2d at 674; Matter of D.H., 354 N.W.2d at 188. We have also held that the question whether termination is the least restrictive alternative is examined from the child’s point of view. Matter of C.L., supra; Interest of T.H., supra; Matter of S.M., supra. In short, the trial court must “find” by clear and convincing evidence that termination is the least restrictive alternative commensurate with the best interests of the child.

We have never specifically ruled whether the determination by the trial court is a finding of fact or conclusion of law. However, we have implied that the least restrictive alternative and best interests of the child analysis is essentially an issue of fact for the trial court in that we have applied the clearly erroneous standard of review. People In Interest of D.H., 408 N.W.2d 743 (S.D.1987); Interest of T.H., supra; Matter of L.R., 394 N.W.2d 901 (S.D.1986); People In Interest of G.H., 390 N.W.2d 54 (S.D.1986); Matter of S.M., supra; Matter of D.H., supra.

The trial court must enter its final determination as a conclusion of law since it must decree its final judgment in the case. The nature of the question before the court, however, is “essentially factual.” The trial court makes a subjective determination as to the narrowest means of providing for the needs of the child. This ultimate finding of fact will not be overturned unless clearly erroneous.

The question for this court is whether the trial court’s ultimate finding — that clear and convincing evidence indicated termination was the least restrictive alternative commensurate with the child’s best interests — was clearly erroneous. We do not believe it was.

This is not the usual situation where clear and convincing evidence of dependence and neglect correlates almost exactly with the need for termination as to married parents. In this case only Mother had custody, and not all of the abuse and neglect attributed to her can be held against Father. Nevertheless, based on K.C.’s past abuse, her future needs, the lack of Father’s interest in the child and his demonstrated inability to provide for K.C. in the future, we do not believe the court’s ultimate finding was clearly erroneous.

Affirmed.

MORGAN and MILLER, JJ., concur. HENDERSON and SABERS, JJ., dissent.

1 . SDCL 26-8-6(2)

2 . SDCL 26-8-6(3).