on Briefs January 11, 2016
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE ROBERT
D. PASQUALUCCI, Rapid City, South Dakota Attorney for
plaintiff and appellant.
COLBATH, Rapid City, South Dakota Attorney for intervener and
Chief Justice. ZINTER, SEVERSON, and WILBUR, Justices,
concur. KERN, Justice, deeming herself disqualified, did not
GILBERTSON, Chief Justice
[¶1] Antonio (Tony) Aguilar filed for
divorce from Brittany Aguilar and sought custody of their
daughter, M.A. Brittany's sister, Tosha Smith, intervened
and sought custody of M.A. The circuit court concluded that
extraordinary circumstances warranted giving custody of M.A.
to Tosha, and Tony appeals. We affirm.
and Procedural History
[¶2] Tony and Brittany Aguilar were married
on June 4, 2010, in Tucson, Arizona. The couple have one
minor child together, M.A., who was born on April 30, 2011.
[¶3] At the time M.A. was born, neither Tony
nor Brittany was legitimately employed; Tony supported his
family through the sale of illegal drugs. Additionally, both
Tony and Brittany used heroin. Tony--a former member of the
" Vista Bloods" gang--also has an extensive
criminal history including possession, consumption, and
distribution of controlled substances; aggravated assaults;
and violations of probation and parole.
[¶4] On April 14, 2011, at age 19, Tony was
convicted in Arizona for selling or transferring an illegal,
cocaine-based drug. He was sentenced to three years of
intensive probation. However, Tony subsequently violated the
conditions of his probation, and within several months of
M.A.'s birth, he was incarcerated. Tony was eventually
placed on work furlough.
[¶5] In the fall of 2011, while out on work
furlough, Tony stopped at his home to retrieve several
personal items. While there, it appeared to Tony that
Brittany was unhealthy. He observed what he recognized to be
track marks on her arm. Concerned about Brittany's
ability to care for M.A., Tony called Brittany's mother,
Koree Hamilton, who lived in South Dakota. Tony asked Koree
to come to Arizona, bring M.A. to South Dakota, and care for
her. Koree and Tosha, who was also Koree's daughter,
agreed and brought M.A. to Sioux Falls, where Tosha was
living at the time. Although Tony asserts he stayed in
contact with Koree and Tosha, the court found that he did not
maintain regular contact with M.A. or regularly inquire about
her status with Tosha. Tosha has cared for M.A. since that
time, and they now reside in Rapid City, as do many of
M.A.'s maternal relatives.
[¶6] Since entering the criminal justice
system, Tony has taken significant steps toward improving
himself as a person and as a father. While on probation, Tony
took court-ordered parenting classes and obtained his GED. He
attended substance-abuse classes multiple times each week.
Prior to his release in September 2013, Tony became
romantically involved with Chantil Astemborski. Tony and
Chantil are now engaged, and Tony moved into Chantil's
home after his release. Tony has taken additional parenting
classes since his release. According to Tony, he is active in
a church and is no longer a gang member. However, the circuit
court found that Tony is unable to
financially support M.A. on his own, making M.A. dependent on
Tony's relationship with Chantil.
[¶7] In December 2013, Tony and Chantil
travelled to South Dakota with the intention of bringing M.A.
back to Arizona to live with them and Chantil's two
children. Tosha thwarted Tony's attempt by locking
herself and M.A. in a gas station's restroom and
summoning Brittany and law enforcement. Tony subsequently
filed for divorce on February 10, 2014, and sought custody of
M.A. Tosha intervened. The circuit court found that Tosha
sought custody of M.A. only until such time as Tony or
Brittany is able to properly care for M.A. Finding it was in
M.A.'s best interest to remain with Tosha, the court
awarded Tosha custody of M.A.
[¶8] Tony appeals, raising the following
issue: Whether the circuit court erred in awarding Tosha
custody of M.A.
[¶9] Determining whether extraordinary
circumstances exist sufficient to overcome parental rights
regarding the custody of children is a question of law
reviewed de novo. In re Guardianship of S.M.N., 2010
S.D. 31, ¶ 11, 781 N.W.2d 213, 218. " Under the de
novo standard of review, we give no deference to the circuit
court's conclusions of law." Id. ¶ 10,
781 N.W.2d at 218. The court's factual findings will not
be disturbed unless they are clearly erroneous. Id.
¶ 11, 781 N.W.2d at 218. Therefore, we " will
overturn findings of fact on appeal only when a complete
review of the evidence leaves the Court with a definite and
firm conviction that a mistake has been made."
Clough v. Nez, 2008 S.D. 125, ¶ 8, 759 N.W.2d
297, 301 (quoting Miller v. Jacobsen, 2006 S.D. 33,
¶ 19, 714 N.W.2d 69, 76). We " give due regard to
the opportunity of the circuit court to judge the credibility
of witnesses and to weigh their testimony properly."
S.M.N., 2010 S.D. 31, ¶ 11, 781 N.W.2d at 218
(quoting Meldrum v. Novotny, 2002 S.D. 15, ¶
18, 640 N.W.2d 460, 463).