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People ex rel. M.S.

Supreme Court of South Dakota

April 2, 2014




MARTY J. JACKLEY, Attorney General, ANN HOLZHAUSER, Special Assistant Attorney General Pierre, South Dakota Attorneys for petitioner and appellee State of South Dakota.

JULIE HOFER, Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota, Attorneys for respondent and appellant Father M.S., #26799 & #26801.

MARGARET V. GILLESPIE Gubbrud, Haugland & Gillespie, Prof. L.L.C. Alcester, South Dakota, Attorneys for respondent and appellant Mother N.S., #26798 & #26800.



[¶1.] N.S. (Mother), age twenty-seven, and M.S. (Father), age twenty-six, appeal the circuit court's termination of their parental rights to their biological children - M.S. (daughter), age two, and K.S. (son), age one (collectively, "children").


[¶2.] Mother has four children.[1] Each has seen interventions by the Department of Social Services (DSS). DSS's investigation of Mother began in March 2010, when she was pregnant with her older daughter. DSS received a referral from the Carroll Institute that Mother was using marijuana while pregnant. Her urinalysis (UA) results had shown off-the-charts readings for THC (over 2000 nanograms) and a blood alcohol content of .184. Concerned for the wellbeing of her unborn older daughter, DSS placed Mother on involuntary commitment (IVC) hold. At a home visit on April 12, 2010, a DSS specialist observed that Mother's older son had substantial bruising along his jaw bone and scratches under his chin. Mother asserted that the maternal grandmother was the source of these bruises. DSS took her older son and Mother to Sanford Hospital. Although the source of the bruises was never determined, DSS substantiated Mother's neglect of her older son based on her admission that she did not seek medical care for his bruises for over eight hours. Her older son was placed in Child Protection and an abuse and neglect petition was filed on April 23, 2010. In accord with the IVC, the court ordered Mother, who was eight-months pregnant, be admitted into New Start Treatment Center on May 4, 2010. But Mother absconded from New Start within hours of arriving by cutting out the screen on her window and jumping out. Her whereabouts were unknown thereafter. She later reported giving birth to her older daughter on May 28, 2010, in the Detroit, Michigan area. The petition was eventually dismissed when Judge Kathleen Caldwell ordered the older son to be placed in his father's custody in Detroit on June 17, 2010.

[¶3.] DSS began receiving reports again on November 4 and December 9, 2010, of Mother neglecting older daughter's "severe diaper rash" and Mother being given a fat lip by Father while she was four-months pregnant with her daughter. Mother denied both reports. Soon after, DSS prepared an initial family assessment on Mother and Father. Around this time, Mother and Father were convicted of false impersonation. They received suspended sentences and were placed on probation. In early 2011, DSS received reports from the Children's Inn that Mother was using alcohol, marijuana, and ecstasy while pregnant and failed to obtain prenatal care. DSS again obtained an IVC against Mother in February 2011, but she absconded to Kansas. On March 30, 2011, Mother was located in Kansas with Father. She refused to participate in treatment and was extradited to South Dakota for violating the terms of her probation. When her daughter was born on May 13, 2011, both Mother and Father were in jail. The daughter tested positive for 65 nanograms of THC at birth. A month later, DSS met with Mother, who informed DSS that she was facing burglary charges. She also told DSS that paternal grandmother obtained custody of her older daughter and took her to live with Mother's niece in Atlanta, Georgia. DSS offered in-home services to Mother, but she refused.

[¶4.] On August 3, 2011, Father was sentenced for second-degree burglary and received five years in the penitentiary, which was suspended, with two years of probation. Mother was sentenced for grand theft by receiving stolen property and attempted second-degree burglary on October 5, 2011. She received eight years in custody on the grand theft charge and a consecutive five-year sentence on the burglary, both suspended, with two years of probation. On October 19, 2011, Sioux Falls police searched Mother and Father's apartment with a warrant to search for a stolen laptop. Many stolen items were found in the apartment. Mother's daughter was placed with DSS, Mother's probation was revoked, and Mother was again placed in IVC because her UA came back positive for THC while she was pregnant with her son. The petition for temporary custody order for her daughter was filed October 20, 2011, and was granted. An abuse and neglect petition was filed on November 7, 2011. The petition listed multiple protection orders and prior criminal charges for both parents.

[¶5.] Mother and Father received appointed counsel on December 5, 2011. DSS met with Father and Mother about their plans for the children after the children return to their custody. DSS also provided both parents with visits with their children. On January 5, 2012, both parents stipulated that the daughter was abused or neglected. The court entered its order of adjudication on January 19, 2012, requiring Mother and Father to complete parenting classes, maintain housing and employment, avoid further criminal activity, attend all visitations, and cooperate with DSS.

[¶6.] Father was sentenced for petty theft by receiving stolen property on March 9, 2012, and received an additional 132 days in jail. A week later, Father and Mother signed case plans that incorporated the court's directives in its order of adjudication. Mother gave birth to her son on April 2, 2012. The day after, the court granted DSS legal custody of the son and placed him in the same foster home as the daughter. On May 7, 2012, Mother and Father had an advisory hearing on their son's case. An amended abuse and neglect petition with regard to the son was filed on May 24, 2012. Mother and Father stipulated to the son's abuse and neglect on June 28, 2012. At a dispositional hearing for the daughter on July 11, 2012, the court granted the State's request to consolidate the son's and daughter's cases.

[ΒΆ7.] Father was released on probation on July 9, 2012. A month after leaving jail, Father became difficult to contact. Two months after leaving jail, Father had lost his job and remained unable to find stable housing. He also had not started parenting classes and was starting to miss visits regularly. One of Father's UAs was positive for alcohol and he refused to take others. In the meantime, Mother was sentenced on September 5, 2012, to ten years in the penitentiary, with five years suspended, for each of two counts of grand theft, to ...

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