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People ex rel. E.M.H.

Supreme Court of South Dakota

December 30, 2015

The People of the State of South Dakota in the interest of E.M.H., a minor child

Considered on Briefs August 31, 2015.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA. HONORABLE VINCENT A. FOLEY, Judge.

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.

GILBERTSON, Chief Justice. SEVERSON, WILBUR, and KERN, Justices, concur. ZINTER, Justice, deeming himself disqualified, did not participate.

OPINION

Page 486

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 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 ...

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