People Ex Rel. E.M.H. ( 2015 )

#27353-a-DG
2015 S.D. 101
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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The People of the State of South Dakota in the
interest of E.M.H., a minor child.
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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA
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HONORABLE VINCENT A. FOLEY
Judge
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CHERI SCHARFFENBERG of
Waltner, Kolbeck & Scharffenberg, LLP
Tea, South Dakota Attorneys for appellant L.B.
JOSEPH N. THRONSON
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota Attorneys for appellee State of
South Dakota.
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CONSIDERED ON BRIEFS
ON AUGUST 31, 2015
OPINION FILED 12/30/15
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GILBERTSON, Chief Justice
[¶1.] The Department of Social Services (DSS) determined it was in the best
interest of E.M.H. (Child) to be adopted by C.W. and A.W. (Foster Parents), the
family that had temporary custody of Child. Child’s maternal aunt, L.B. (Aunt),
sought review of DSS’s decision, and the circuit court concluded that DSS had not
abused its discretion in consenting to the adoption by Foster Parents. Aunt asserts
that because she is related to Child, she was entitled to placement preference over
Foster Family. We affirm.
Facts and Procedural History
[¶2.] DSS removed Child from the custody of her biological mother two days
after Child’s birth. Child was placed in the temporary custody of Foster Parents,
who had previously adopted Child’s older half-sister (Sister). Child’s maternal
grandmother (Grandmother) contacted DSS and expressed her desire for temporary
custody of Child. DSS advised Grandmother she would need to successfully
complete a home study in order to be considered for placement. 1 Although
Grandmother eventually completed a home study, DSS determined it was in Child’s
best interest to remain in the temporary custody of Foster Parents. Grandmother
later expressed her desire to adopt Child and initiated an adoption home study.
Because of DSS’s concerns over Grandmother’s health, Aunt decided to obtain the
1. Grandmother previously attempted to obtain—and was denied—adoptive
placement of Sister because Grandmother’s husband at the time had a felony
conviction. Grandmother’s husband subsequently died in a car accident.
DSS was unaware of Grandmother’s husband’s passing when Child first
came into DSS’s custody.
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necessary licensing instead. Aunt successfully completed a home study, which was
approved by DSS.
[¶3.] After the parental rights of both biological parents were terminated,
DSS consented to the adoption of Child by Foster Parents instead of Aunt. This
decision was based primarily on a desire to keep Child with Sister and because
Child had bonded with Foster Parents. Aunt requested a hearing to review DSS’s
decision, asserting that as a relative of Child she was entitled to adoption placement
preference over Foster Parents. The circuit court concluded DSS’s decision was not
an abuse of discretion.
[¶4.] Aunt appeals, raising the following issue:
Whether Aunt was statutorily entitled to a preference over
Foster Family in the adoptive placement of Child.
Standard of Review
[¶5.] “Statutory interpretation is a question of law reviewed de novo.”
Wheeler v. Cinna Bakers LLC, 2015 S.D. 25, ¶ 4, 864 N.W.2d 17, 19. A circuit
court’s determination of what constitutes a particular child’s best interest is a
finding of fact, which we review for clear error. See People ex rel. P.K., 2006 S.D. 17,
¶ 17, 711 N.W.2d 248, 254.
Analysis and Decision
[¶6.] In 2005, the South Dakota Legislature enacted legislation “to provide
for a preference for placement of abused and neglected children with relatives and
to provide a hearing for review of adoptive placement decisions.” 2005 S.D. Sess.
Laws ch. 140. This legislation did three things: (1) it amended SDCL 26-7A-19 to
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include a placement preference in favor of a child’s relative or custodian, 2 (2) it
added SDCL 26-7A-19.1, which establishes a placement preference for a child’s
2. SDCL 26-7A-19 states:
If the child is an apparent, alleged, or adjudicated abused or
neglected child, after the temporary custody hearing the court
may:
(1) Order the release of the child from temporary custody,
either with or without restriction or condition or upon
written promise of the child’s parents, guardian, or
custodian regarding the care and protection of the child;
or
(2) Continue the temporary custody of the child under the
terms and conditions for duration and placement that the
court requires, including placement of temporary custody
of the child with the Department of Social Services, in
foster care or shelter. The court and the Department of
Social Services shall give placement preference to a
relative or custodian who is available and who has been
determined by the department to be qualified, provided
that placement with the relative or custodian is in the
best interest of the child. If temporary custody of the
child is continued by the court, the court may provide for
visitation of the child by the child’s parents, guardian,
custodian, or family members in keeping with the best
interests of the child. If the child is in temporary custody
of the Department of Social Services and has not been
adjudicated as an abused or neglected child, the court
shall review the child’s temporary custody placement at
least once every sixty days.
As used in this section, the term, relative, means an adult who
is related to the child by blood, adoption, or marriage, and who
is the child’s grandparent, aunt, uncle, sibling, brother-in-law,
sister-in-law, niece, nephew, great grandparent, great uncle,
great aunt, first cousin, second cousin, stepparent, or
stepsibling.
As used in this section, the term, custodian, means an adult who
is the biological parent, adoptive parent, or guardian of the
child’s sibling or half-sibling.
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relative, 3 and (3) it added SDCL 26-8A-29.1, which grants a child’s relative a right
of limited intervention when DSS selects a nonrelative to adopt the child. 4 Id.
Aunt asserts that the result of this legislation is that while the relatives and
custodians of a child enjoy equal preference in temporary-placement decisions, a
child’s relative must be given sole preference—even over a custodian—in adoptive-
placement decisions. Aunt further asserts that DSS’s “adoption placement decision
was the product of a fatally flawed procedure, and must be made anew.” In
response, DSS concluded that because Foster Parents had previously adopted
3. SDCL 26-7A-19.1 states:
Subsequent to a temporary custody hearing, if a placement is
made of an apparent, alleged, or adjudicated abused or neglected
child, placement preference shall be given to a relative entitled
to placement under § 26-7A-19.
4. SDCL 26-8A-29.1 states:
Except under circumstances where placement was with another
relative of the child, any relative who has been denied adoptive
placement by the Department of Social Services may request a
hearing to determine if the placement was an abuse of
discretion. The request shall be filed with the circuit court
having jurisdiction pursuant to § 26-8A-29 and shall be filed
within thirty days of written notification from the department
by regular mail to the relative’s last known address. The
hearing shall be held within thirty days of the filing of the
request for hearing and may be continued for not more than
thirty days upon good cause shown. The relative shall be
granted limited intervention only for the purpose of the
placement review hearing.
No intervention may be allowed in a proceeding involving an
apparent, alleged, or adjudicated abused or neglected child,
including an adoption or guardianship proceeding for a child
placed in the custody of the Department of Social Services
pursuant to § 26-8A-27, except as provided by this chapter and
under the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963,
inclusive), as amended to January 1, 2005.
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Sister, Foster Parents were also considered relatives of Child under SDCL 26-7A-
19.1. The circuit court held that DSS did not abuse its discretion because
placement with Foster Parents and Sister was in Child’s best interest. However,
the court also upheld DSS’s decision on the basis that Foster Parents qualified as
Child’s relatives under SDCL 26-7A-19.1. Although we agree with Aunt that Foster
Parents are not considered “relatives” under SDCL 26-7A-19.1, we agree with the
circuit court that whether a particular party is entitled to placement preference is a
consideration subordinate to the paramount question of the child’s best interest.
[¶7.] As an initial matter, we agree with Aunt that Foster Parents are not
related to Child within the meaning of SDCL 26-7A-19.1. The terms relative and
custodian are defined in SDCL 26-7A-19. 5 The term relative “means an adult who
is related to the child by blood, adoption, or marriage, and who is the child’s
grandparent, aunt, uncle, sibling, brother-in-law, sister-in-law, niece, nephew, great
grandparent, great uncle, great aunt, first cousin, second cousin, stepparent, or
stepsibling.” SDCL 26-7A-19 (emphasis added). This definition is clearly not
applicable to Foster Parents. Even if we were to conclude—which we do not—that
Foster Parents’ adoption of Sister somehow meant Foster Parents were related to
Child by adoption, Foster Parents’ connection to Child cannot be described by any of
5. We recognize that the definitions of relative and custodian given in SDCL 26-
7A-19 are both preceded by the phrase “as used in this section.” As such, the
word relative is not explicitly defined for SDCL 26-7A-19.1. However, the
Legislature has declared that “[w]henever the meaning of a word or phrase is
defined in any statute such definition is applicable to the same word or
phrase wherever it occurs except where a contrary intention plainly appears.”
SDCL 2-14-4. No such contrary intention is apparent here. Therefore, SDCL
26-7A-19’s definition of relative is applicable to SDCL 26-7A-19.1.
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the relationships enumerated in SDCL 26-7A-19. In contrast, however, the term
custodian “means an adult who is the biological parent, adoptive parent, or
guardian of the child’s sibling or half-sibling.” SDCL 26-7A-19. Therefore, Foster
Parents are properly considered custodians—not relatives—of Child.
[¶8.] Nevertheless, it is clear that SDCL 26-7A-19.1’s placement preference
for relatives is subordinate to the overall best interest of the child. SDCL 26-7A-
19.1 states: “Subsequent to a temporary custody hearing, if a placement is made of
an apparent, alleged, or adjudicated abused or neglected child, placement
preference shall be given to a relative entitled to placement under § 26-7A-19.”
(Emphasis added.) Under SDCL 26-7A-19, “[t]he court and the Department of
Social Services shall give placement preference to a relative or custodian who is
available and who has been determined by the department to be qualified, provided
that placement with the relative or custodian is in the best interest of the child.”
(Emphasis added.) Consequently, because a relative is not entitled to placement
under SDCL 26-7A-19 unless such placement is in the best interest of the child,
that relative is also not entitled to placement preference under SDCL 26-7A-19.1
unless such placement is in the best interest of the child. This conclusion is
supported by a number of other statutes dealing with juvenile proceedings. See,
e.g., SDCL 25-6-2 (“In an adoption proceeding or in any proceeding that challenges
an order of adoption or order terminating parental rights, the court shall give due
consideration to the interests of the parties to the proceedings, but shall give
paramount consideration to the best interests of the child.”); SDCL 26-7A-5
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(“Proceedings under . . . chapters [SDCL 26-7A,] [SDCL] 26-8A, [SDCL] 26-8B, and
[SDCL] 26-8C shall be in the best interests of the child.”).
[¶9.] Aunt argues that “the Department’s view of a particular child’s best
interests does not excuse its utter failure to factor into its decision the legislative
dictate that the preference for relatives be considered as well.” According to Aunt,
“It is left for later proceedings to determine the interplay between the ‘best
interests’ and the placement preference for relatives. This appeal merely contends
that the interplay must take place.” We do not agree. As discussed in the previous
paragraph, SDCL 26-7A-19.1’s placement preference for relatives is conditioned on
such placement being in the best interest of the child. Therefore, in order to claim
that DSS abused its discretion by failing to consider her placement preference, a
relative must first establish that such preference exists—i.e., the relative must
establish that placing the child with the relative is in the child’s best interest. In
essence, the preference serves as a tiebreaker—if placement of the child with the
relative serves the child’s best interest to the same extent as placement with a
nonrelative, DSS must place the child with the relative. However, if placement
with the nonrelative better serves the child’s best interest, then the relative is not
entitled to placement preference.
[¶10.] In light of the foregoing, Aunt’s argument is incomplete. Aunt does not
assert that placing Child with Aunt was in Child’s best interest. Instead, Aunt
argues that “[t]here is not one scintilla of evidence in this record that [Aunt] is
unsuitable, or would provide an unsuitable home for this child.” While we have no
reason to disagree with this statement, the same also seems true of Foster Parents.
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Regardless, the question of whether a candidate is suitable for placement is not
synonymous with the question of whether such placement would be in the child’s
best interest—both are prerequisites for placement preference under SDCL 26-7A-
19 and -19.1. Here, DSS and the circuit court both concluded that Child’s interest
was best served by remaining with Sister and Foster Parents, who have essentially
been the only parents Child has known since birth. “Generally, siblings and half-
siblings ‘should not be separated absent compelling circumstances.’” Simunek v.
Auwerter, 2011 S.D. 56, ¶ 10, 803 N.W.2d 835, 837 (quoting Fuerstenberg v.
Fuerstenberg, 1999 S.D. 35, ¶ 32, 591 N.W.2d 798, 809). 6 Given these significant
factors, we cannot conclude that the circuit court clearly erred in determining that
adoptive placement of Child with Foster Parents was in Child’s best interest.
Because adoptive placement of Child with Aunt was not in Child’s best interest,
Aunt was not entitled to placement preference.
6. “[T]his is not an absolute rule, and ‘maintaining children in the same
household should never override’ what is in the best interests of a child.”
Simunek, 2011 S.D. 56, ¶ 10, 803 N.W.2d at 837 (quoting Fuerstenberg, 1999
S.D. 35, ¶ 32, 591 N.W.2d at 809). “Separating siblings is ‘one of several
factors courts consider in determining the best interests of the children.’” Id.
(quoting Hathaway v. Bergheim, 2002 S.D. 78, ¶ 32, 648 N.W.2d 349, 354
(Gilbertson, C.J., dissenting)). “In the end, our brightest beacon remains the
best interests of the [child].” Wiedenfeld v. Wiedenfeld, 2009 S.D. 90, ¶ 6, 774
N.W.2d 288, 291 (quoting Heinen v. Heinen, 2008 S.D. 63, ¶ 10, 753 N.W.2d
891, 894). Some of our earlier cases applied the no-split-siblings rule with
some rigidity. In the end, best interests is simply that—best interests. Our
more recent cases still acknowledge the rule but in a more aspirational tone.
Like the other factors, separation of siblings is an analytical tool to assist the
circuit court in arriving at the ultimate goal—determining the best interests
of the child.
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Conclusion
[¶11.] “The best interest[] of the child is the guiding force behind our
adoption and dependency and neglect statutes. Although the interests of adoptive
parents should be considered, parental rights are secondary to the interests of the
child.” People ex rel. S.A.H., 537 N.W.2d 1, 6 (S.D. 1995) (citation omitted),
superseded by statute on other grounds, 1997 S.D. Sess. Laws ch. 153, § 1
(superseding S.A.H. “so far as the case gave circuit courts the option to order an
open adoption or post-termination visitation”). We are not convinced that the
Legislature’s 2005 Act was meant to alter this priority, and we will not give broader
effect than intended by the Legislature to an isolated statute in derogation of other
long-established, statutory provisions. Even though Foster Parents are not related
to Child under SDCL 26-7A-19 and -19.1, Aunt has failed to establish that the
circuit court clearly erred in finding that adoptive placement of Child with Foster
Parents better served Child’s interest than adoptive placement with Aunt.
Consequently, Aunt is unable to establish that she was entitled to placement
preference. Therefore, we affirm.
[¶12.] SEVERSON, WILBUR, and KERN, Justices, concur.
[¶13.] ZINTER, Justice, deeming himself disqualified, did not participate.
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