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People ex rel. A.K.A.-C.

Supreme Court of South Dakota

June 21, 2017

The People of the State of South Dakota in the Interest of A.K.A.-C., Minor Child and Concerning B.W. and H.A.-C., Respondents.



          CREIGHTON A. THURMAN Yankton, South Dakota Attorney for appellant Mother B.W.

          ANN M. HOLZHAUSER Special Assistant Attorney General Department of Social Services Pierre, South Dakota Attorneys for appellee State of South Dakota.

          HEATHER LACROIX Yankton, South Dakota Attorney for appellee child.

          SEVERSON, Justice

         [¶1.] B.W., Mother, appeals the circuit court's termination of her parental rights. She alleges that the court improperly considered evidence from her participation in drug court and that termination was not the least restrictive alternative. We affirm.


         [¶2.] This case is the third abuse and neglect (A&N) case since 2012 involving Mother and Child. Child, who was two years old at the time, first came into custody of the Department of Social Services (DSS) in March 2012, after Mother was brought to an emergency room for an overdose and placed on a mental health hold. During the first proceedings, Mother agreed to participate in the 24/7 program and provide samples for urinalysis. At that time, Mother had planned to return to Michigan after custody was returned to her. Custody was eventually returned to Mother, and the court ordered that DSS notify the Michigan Department of Human Services, Child Protection that the two were returning to Michigan.

         [¶3.] Child next came into DSS custody in December 2012. On December 14, 2012, Mother contacted DSS, advising them that she lacked housing and employment. She had been turned away from shelters. DSS discussed foster care for Child, but Mother wanted to contact friends before making a decision. On December 16, 2012, one of Mother's coworkers contacted the police department because Mother had left Child with him. Four days prior, she asked him to watch Child for a few hours but did not return. Mother's coworker reported that he did not know Mother well and he had to purchase clothes and diapers for Child. When Mother still did not return the next day, the coworker contacted DSS and brought Child to the DSS office. A urinalysis from Mother on December 25, 2012, tested positive for methamphetamine and amphetamine. She admitted that she had injected crystal meth.

         [¶4.] Over the course of the second A&N case, Mother repeatedly tested positive for drugs. Throughout 2013, she was terminated from treatment programs at Glory House and the Human Services Center. In January 2013, she was arrested for second-degree burglary; forgery; identity-theft; petty theft; possession of: marijuana, drug paraphernalia, a controlled substance, and a forged instrument; and grand theft. Judge Eng presided over the criminal matter and these A&N proceedings. Mother pleaded guilty to possession of a controlled substance and possession of a forged instrument. In July 2013, she was placed on probation, but she violated its conditions. She tested positive for methamphetamine, amphetamine, and opiates. In October 2013, Mother was placed on intensive probation supervision and her sentence included a condition of successful completion of the drug court program.

         [¶5.] For a time, Mother seemed to be taking advantage of services provided to her. On July 29, 2014, the circuit court returned full legal and physical custody of Child to Mother. The court noted at a dispositional hearing in April 2014, that Mother was receiving the maximum services available and those services were "cocooning" Mother so that Child was cared for and safe. Mother was participating in the Individualized and Mobile Program of Assertive Community Treatment (IMPACT) program, receiving services from Lewis & Clark Behavioral Health, and participating in drug court.

         [¶6.] This latest A&N case began in October 2014, when Mother was taken into custody. Mother failed a urinalysis and then absconded, missing drug court. When she was located, she was under the influence of alcohol and drugs, and law enforcement took her into custody. On November 12, 2014, Mother was terminated from drug court. Because Mother's probation was conditioned on her successful completion of drug court, a violation report was filed with the court and a hearing on the violation was held on November 13, 2014. Mother admitted to violating probation, and her probation was revoked. The circuit court, with Judge Eng presiding over that matter as well, reinstated Mother's two-year sentence to the penitentiary.

         [¶7.] The circuit court held a final dispositional hearing in this A&N case on April 10, 2015, at which time the State sought termination of Mother's parental rights. After the hearing, the circuit court determined "that the least restrictive alternative in keeping with the best interests of [Child] [was] the termination of parental rights." This appeal followed, in which Mother asserts two issues for our review. The first is whether the circuit court relied on evidence relating to drug courts, which she claims was inadmissible evidence under SDCL 16-22-6, to support its decision to terminate mother's parental rights. Mother also asserts that ...

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