IN THE MATTER OF THE ADOPTION OF A.A.B., minor child. IN THE MATTER OF THE ADOPTION OF B.A.B., minor child
February 17, 2016
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE DOUGLAS E.
L. MORRISON of Bangs, McCullen, Butler, Foye & Simmons,
LLP Pierre, South Dakota, Attorneys for appellees Troy &
N. THRONSON Special Assistant Attorney General Department of
Social Services Pierre, South Dakota, Attorneys for appellant
State of South Dakota.
Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR and
KERN, Justices, concur.
[¶1] Troy and Twila Hansen, Petitioners,
filed petitions to adopt two minor children over which the
South Dakota Department of Social Services (referred to
throughout as DSS or Department) has custody. DSS moved to
dismiss the petitions for lack of standing under the adoption
statutes. The circuit court denied DSS's motions to
dismiss the petitions, and we granted DSS's request for
[¶2] DSS received custody of A.A.B., born in
September 2012, and B.A.B., born in October 2013, after a
circuit court terminated parent's parental rights through
abuse and neglect proceedings. Petitioners are foster
parents who have been caring for A.A.B. since January 2013.
Since birth, B.A.B. has been in foster care with another
family, the Homelvigs. DSS initially approached Petitioners
to place B.A.B. in their home. However, Petitioners were
unable to take B.A.B. at that time. In December 2013, just a
few months after DSS placed B.A.B. with the Homelvigs,
Petitioners told DSS that they could care for B.A.B. DSS
determined that it wanted to place both siblings in the same
home, but declined at that time to move B.A.B. Nearly a year
later, in October 2014, DSS informed Petitioners that it
wanted to place A.A.B. in the home of the Homelvigs with
[¶3] In response, Petitioners filed
petitions for adoption of A.A.B. and B.A.B. DSS moved to
dismiss the petitions. It alleged that, without DSS's
consent, Petitioners lacked standing to petition to adopt
children that are in the custody of DSS. The circuit court
disagreed and ruled that SDCL chapter 25-6 allows Petitioners
to adopt children within the custody of DSS,
without approval of DSS. Because the case presented a purely
legal issue, the court did not hear testimony or make factual
determinations. In this intermediate appeal, DSS raises a
matter of first impression: Whether Petitioners may file a
petition to adopt children in the custody of the Department
of Social Services without its consent.
[¶4] " [T]he rights and procedures for
adoption are governed by statute." In re Adoption of
D.M., 2006 S.D. 15, ¶ 10, 710 N.W.2d 441, 446.
Interpretation of those statutes is a question of law
reviewable de novo. Id. ¶ 3, 710 N.W.2d at 443.
Petitioners contend they have standing under SDCL 25-6-2,
Any minor child may be adopted by any adult person. However,
the person adopting the child must be at least ten years
older than the person adopted.
In an adoption proceeding or in any proceeding that
challenges an order of adoption or order terminating parental
rights, the court shall give due consideration to the
interests of the parties to the proceedings, but shall give
paramount consideration to the best interests of the child.
DSS contends that SDCL 25-6-2 is inapplicable to this case
because these children were adjudicated abused and neglected
under SDCL chapter 26-8A and Petitioners are not interested
parties in the abuse and neglect proceedings.
[¶5] SDCL 26-8A-29.1 provides in part that:
" No intervention may be allowed in a
proceeding involving an apparent, alleged, or adjudicated
abused or neglected child, including an adoption or
guardianship proceeding for a child placed in the custody of
the Department of Social Services pursuant to §
26-8A-27[.]" (Emphasis added.) In addition, a court that
has terminated parental rights has continuing jurisdiction of
an abused and neglected child for purposes of reviewing the
status of the child until an adoption is complete.
See SDCL 26-8A-29. However, Petitioners have not
intervened into an abuse and neglect or adoption proceeding
involving these children. They filed independent petitions to
adopt both children under SDCL 25-6-2. We disagree with
DSS's position that there is no discernible difference
between intervention and a petition for
adoption. The ongoing jurisdiction of the court
that terminated parental rights is not exclusive. SDCL