In re C.M. , 1988 S.D. LEXIS 8 ( 1988 )

HENDERSON, Justice.

Mother, Father, and children, C.M. and M.N., contend the circuit court erroneously terminated parental rights. We affirm.

From May 1980 to March 1984, the N. family experienced difficulty in maintaining a clean home and children, and properly supervising children. Mother was also an alcoholic. At one time, the children were found alone in a parking lot whereupon the police brought the boys to the Children’s Inn. Earlier, on at least three separate occasions, officers of the Sioux Falls Police Department responded to calls concerning C.M. wandering alone on heavily traveled city streets. A Department of Social Services (DSS) dependency and neglect petition resulted which culminated in (a) removal of C.M. and M.N. from parents’ home and (b) a May 10, 1984 stipulation signed by parents that their children were dependent. C.M. and M.N. were returned to parents in August 1984. In November 1984, DSS closed its case due to parental improvement. In February 1985, a defective furnace brought police and fire officials to the N. home. DSS became involved due to the unsafe nature of the house endangering the well-being of these children. On April 25, July 17, and July 30, 1985, an adjudicatory hearing was held and C.M. and M.N. were adjudged dependent and neglected. A stipulation was thereupon executed, designed to return C.M. and M.N. to parents. However, DSS (before the two-year period noted in the stipulation) petitioned for hearing on final disposition and parental rights were terminated by the circuit court. DSS’ decision was based upon a filthy house, the children being dirty, and Mother being arrested for possession of a controlled substance with subsequent sentence of probation.

Mother, Father, and children appeal.

I.

Mother and Father contend that the trial court erred when it determined that C.M. and M.N. were dependent and neglected. Parents argue that this finding is unsupported by clear and convincing evidence and should be reversed. We disagree.

Clear and convincing evidence supports termination under our holding in In re G.H., 390 N.W.2d 54 (S.D.1986). Findings of Fact were not clearly erroneous under our holding in In re S.M., 384 N.W.2d 670, 673 (S.D.1986).

II.

Mother and Father advocate that clear and convincing evidence does not support termination of parental rights. They contend the circuit court placed undue emphasis on evidence emanating from a past dependency and neglect proceeding and ignored recent improvements made' by both parents. We are unpersuaded by this argument.

Evidence from the prior episode was properly admitted as dependency and neglect resulted therefrom. Under our holding in In re J.L.H., 299 N.W.2d 812, 815 (S.D.1980), this evidence was properly submitted; compare, however, our holding in In re N.J.W., 273 N.W.2d 134, 137-38 (S.D.1978), where this Court applied doctrines of res judicata and collateral estoppel to hold that the circuit court erroneously introduced evidence stemming from a previous dependency and neglect action when such earlier proceeding failed to result in a finding of dependency or neglect. Additionally, as previously expressed, there was a continuing deficient parental conduct and supervision. The circuit court was impressed with a generally unsafe environment and so are we, in that we do not countenance these children being subjected thereto. We hold that the termination was in the children’s best interests and welfare and is not clearly erroneous. In re S.D., 402 N.W.2d 346, 352 (S.D.1987).

III.

Appellants contend that termination of parental rights was improper as less restrictive alternatives exist. Relatedly, parents claim they substantially complied with the August 28, 1985 Stipulation conditions and parental rights were erroneously terminated. Under these facts, we do not agree.

A gamut of professional services were made available to both Mother and Father, aimed at resolving the N. family’s problems. We note these services: Intensive Placement Prevention, Family Support Worker, Respite Care, Alcohol Assessment for Mother at Carroll Institute, Alcohol Treatment at Keystone for Mother, Parenting through Children’s Inn, Early Childhood Screening and Education, Medical Services, Al-Anon for Father, Visiting Nurse’s Association, and Crisis Day Care. The least restrictive alternative, commensurate with the best interests of children, was termination of parental rights. We hold that the finding below is not clearly erroneous. The best interests of the child must prevail. In re D.H., 408 N.W.2d 743, 746-47 (S.D.1987). The services were either unaccepted or unsuccessful. See D.H., at 747. We recognize that there was some improvement, but it was not substantial, manifest, or enough. As recent as July 2, 1985, a psychological evaluation on these children depicted them as victims of “benign neglect” by the parents and experiencing severe problems due to a family environment marred by “an impoverished environment lacking in structure and stimulation essential for normal development.” This evaluation recommended termination of parental rights. We note that marijuana and alcohol were used in the home, yet Father believed that neither he nor his wife had any problems. Father attempts to shroud himself in the protective guise of breadwinner and blame the home life deficiencies on the Mother. This is rationalization to secure his freedom from a basic parental responsibility. We uphold the circuit court in its finding of clear and convincing evidence for termination of Mother’s and Father’s parental rights as being the least restrictive alternative commensurate with the best interests and welfare of C.M. and M.N.

IV.

Lastly, Mother asserts the circuit court erred when it refused to permit visitation pending appeal. We disagree.

First of all, an adoptive home was arranged for C.M. and M.N. These children were placed on foster status to enable them to adjust to a new setting before school started. This visitation, now complained of, was first permitted by the trial court at the dispositional hearing. Supplication was made for a termination of the visitation based upon the best interests of the children which resulted in the trial court’s decision.

Then, an August 15, 1986 hearing was held and Mother claims error, regarding visitation, on the dictates of the trial court’s exercised discretion at this hearing. However, there is no transcript of this latter hearing; as the party claiming error, Mother has the responsibility to insure that a record was made. Therefore, we cannot rule upon the merits of said hearing. See State v. Olson, 408 N.W.2d 748, 752 (S.D.1987); Schurman v. Schurman, 60 S.D. 489, 492, 245 N.W. 39, 40 (1932). Mother was obligated to “order from the reporter a transcript of the proceedings or such parts thereof as [she] deems necessary.” SDCL 15-26A-48. When confronted with incomplete records, our presumption is that the circuit court acted properly. State v. Garton, 390 N.W.2d 61, 63 (S.D.1986); Schurman, 60 S.D. at 492, 245 N.W. at 40.

Affirmed in all respects.

WUEST, C.J., and MORGAN and MILLER, JJ., concur. SABERS, J., dissents.