In reversal, S.D. justices say judge and DSS failed to evaluate mother’s fitness as a parent

Capitol News Bureau
KELO Court Gavel

PIERRE, S.D. (KELO) — A state judge and the state Department of Social Services failed to consider the parenting improvements that a mother reportedly made while in private counseling before the judge terminated her parental rights and ordered the child remain in a relative’s custody, the South Dakota Supreme Court has ruled.

The five justices publicly released the unanimous opinion Thursday that Justice Patricia DeVaney wrote. They reversed Circuit Judge Jon Erickson, now retired, and directed the case return to Beadle County court for further action.

The daughter, C.H., was born September 8, 2017. Social Services began working with the mother and father on a safety plan for the child July 5, 2018. After an unannounced visit by an agency specialist October 2, 2018, the agency placed the child in protective custody of the father’s sister. Judge Erickson adopted the agency’s findings October 23, 2018.

During a December 18, 2018, review hearing, the agency reported that “that although
Mother continued spending time with individuals known to abuse illegal drugs, she
had begun weekly counseling sessions at Community Counseling Services.”

In June 2019, the agency reported that the mother was reportedly more than one month sober from marijuana and had separated from the father. In September 2019, the agency reported the mother claimed she was still sober, was living with her boyfriend and the two were attending parenting classes together.

The agency in December 2019 told Judge Erickson it sought to terminate the mother’s parental rights but would give her three months to convince officials otherwise. The judge set a March 17, 2020, hearing. That was delayed for various reasons until September 18, 2020.

Meanwhile, Valere Walton, a board-certified behavioral analyst with Community Counseling Services, had begun working with the mother in October 2019.

Wrote Justice DeVaney, “She (Walton) testified that Mother lived with her mother, that the home is ‘picked up[,]’ ‘organized[,]’ ‘100 percent better than’ before, child-proofed, and would be suitable for a three-year old. Walton had observed Mother’s video interactions with C.H., and in her view, C.H. ‘loves her mom’ and there is a bond there. She also testified that she helped Mother fill out the paperwork for a divorce from Father. Walton described their marriage as a ‘very, very poor relationship.'”

DeVaney added, “When asked whether Walton had tried to communicate Mother’s progress to DSS, Walton replied that she had, but that DSS made ‘no attempt to further contact [Mother.]’ According to Walton, ‘[t]here was a lot of resistance and a lot of desire to continue to terminate [Mother’s] parental rights.’”

Judge Erickson acknowledged the mother had made some improvements but still fell short in areas and hadn’t shown she could provide for the child’s basic needs. He ordered parental rights be terminated.

The case fell under the Indian Child Welfare Act. Wrote Justice DeVaney: “Although the circuit court found beyond a reasonable doubt that active efforts were provided to prevent the breakup of the Indian family and that the efforts were unsuccessful, it is undisputed that DSS ceased providing any efforts toward reunification after the December 2019 hearing. This means that from December 2019 to September 2020 no efforts were made by DSS to provide Mother remedial services or rehabilitative programs and no efforts were made to reunite C.H. with Mother.”

The justice said this was not the typical case where a parent asks for repeated chances. “Rather, this is a unique case involving the cessation of active efforts by DSS some nine months prior to the dispositional hearing despite Mother’s ongoing work with counselors on her own accord, and a clearly erroneous finding by the circuit court that DSS had been providing active efforts toward reunification since October 2, 2018. Therefore, the circuit court erred in terminating Mother’s parental rights in the absence of contemporaneous evidence to support its decision.”

The justice also wrote the judge erred in failing to appoint a lawyer to represent the child: “The statutory provision requiring that children in abuse and neglect proceedings be appointed counsel is not discretionary or dependent on the age of the minor children. Therefore, the circuit court is directed to appoint an attorney to represent C.H. as soon as the case is remitted.”

Justice DeVaney also found the judge erred in several other ways. The justice wrote that the government and the agency must be required to “follow the dictates of both ICWA and applicable South Dakota law in reassessing Mother’s and C.H.’s current circumstances.”

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