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In re Adoption of A.A.B.

Supreme Court of South Dakota

March 9, 2016

IN THE MATTER OF THE ADOPTION OF A.A.B., minor child. IN THE MATTER OF THE ADOPTION OF B.A.B., minor child

          Argued February 17, 2016

Page 356

          APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE DOUGLAS E. HOFFMAN, Judge.

         KATHRYN L. MORRISON of Bangs, McCullen, Butler, Foye & Simmons, LLP Pierre, South Dakota, Attorneys for appellees Troy & Twila Hansen.

         JOSEPH N. THRONSON Special Assistant Attorney General Department of Social Services Pierre, South Dakota, Attorneys for appellant State of South Dakota.

         SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR and KERN, Justices, concur.

          OPINION

Page 357

          SEVERSON, Justice

          [¶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 intermediate appeal.

         Background

          [¶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.[1] 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 B.A.B.

          [¶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,

Page 358

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.

         Analysis

          [¶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, which provides,

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.[2] We disagree with DSS's position that there is no discernible difference between intervention and a petition for adoption.[3] The ongoing jurisdiction of the court that terminated parental rights is not exclusive. SDCL ...


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