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People in Interest of MK
Citations: 466 N.W.2d 177; 1991 S.D. LEXIS 22; 1991 WL 19362Docket: 16943
Court: South Dakota Supreme Court; February 19, 1991; South Dakota; State Supreme Court
J.K., a 21-year-old mother with an I.Q. of 68 and developmental delays, appeals the termination of her parental rights to her child, M.K. The South Dakota Supreme Court affirms the lower court's decision. Following M.K.'s birth on November 19, 1987, the Department of Social Services received a referral regarding J.K.'s ability to parent. A Dependency and Neglect Petition was filed on October 31, 1988, alleging inadequate supervision and an injurious environment for M.K. J.K. struggled with basic childcare, including feeding M.K. the required amount of formula, often resorting to alternative liquids and inappropriate solid foods for his age. Several hearings took place, culminating in the termination of her parental rights after a review hearing in September 1989. J.K. raises three appellate issues: 1) whether the court's findings post-adjudication were erroneous, 2) whether termination was the least restrictive alternative, and 3) whether a mental health examination of M.K. should have been ordered. The court evaluated the evidence from the hearings, which demonstrated J.K.'s inability to adequately care for M.K. and her lack of understanding of proper infant nutrition and care guidelines. Mother struggled to maintain regular health appointments for her child, M.K., resulting in irregular visits to the health service. Between April and June 1988, M.K.'s height-to-weight correlation significantly declined from the seventy-fifth percentile to the twenty-fifth percentile, indicating inadequate weight gain. While his height/weight ratio improved by October 1988, his head growth fell below the fifth percentile, suggesting abnormal brain development. The cause of M.K.'s slow brain growth—whether due to nutritional deficiencies, environmental factors, or heredity—remained undetermined. Developmentally, M.K. was not meeting milestones; he did not respond to people, could not hold his head up, and scored poorly on fine motor skill tests. By eleven months old, he demonstrated adequate gross motor skills but was at the five-month level for fine motor skills and showed limited speech and social interaction. The community health nurse noted a lack of significant interaction between Mother and M.K., with Mother often distracted during visits. A social services aide, assigned to assist when M.K. was around one month old, found it challenging to engage with Mother due to distractions at home. The aide focused on stimulating M.K. and raised concerns about his feeding regimen, as Mother's reported amounts of formula varied greatly, with inconsistent feeding schedules. Despite discussions on the importance of regular feeding, no improvements were observed. In late May 1988, Mother mentioned that M.K. was spitting up formula and had consulted a doctor about switching to cow's milk, but no medical documentation was provided. The aide did not witness any health issues related to M.K.'s formula intake. Overall, Mother’s limited engagement and stimulation of M.K. raised significant concerns regarding his developmental progress and well-being. M.K.'s caregivers provided inadequate stimulation and support, primarily due to Mother's limited engagement and the negative interactions from family members. M.K.'s living conditions were poor, with his bed lacking decorations or toys, and he was often teased by relatives. Lee Griffin, a social worker, was assigned to assist Mother starting in June 1988, providing guidance on parenting and child stimulation. Despite this, the household environment was concerning; television was frequently on, and M.K. was subjected to teasing and inappropriate discipline from Mother's boyfriend, who was eventually instructed to leave the home. In July 1988, M.K. was evaluated at the Midwest Children's Center, revealing a 25% developmental delay. Recommendations included specific toys and developmental activities, but Mother failed to follow through, not purchasing necessary items or gifts for M.K.'s birthday. Financially, Mother received various benefits, yet she struggled to manage her expenses, often running out of money and relying on credit for M.K.'s medical needs. Mother attended a partial care program for life skills training but became irregular in her attendance by November 1988. During her attendance, M.K. was placed in daycare, where caregivers reported he frequently arrived without adequate food. At times, the social worker had to intervene and provide food for M.K. Mother initially relied on her mother as a protective payee for assistance. Mother did not provide a list of her income and expenses when requested by the social worker and declined assistance with budgeting. Concerns arose regarding M.K.'s nutrition, as Mother often lacked adequate food for herself and the child. The social services aide noted that Mother would not feed M.K. without prompting. During a grocery store visit, two boxes of infant cereal purchased by the aide remained unopened five days later; Mother claimed M.K. did not like the cereal, but he ate it when the social worker prepared it. Mother sometimes skipped meals, suggesting she would not feed M.K. if she did not cook for herself. In December 1988, the social worker found M.K. inappropriately dressed for the temperature, and Mother's parenting skills showed no improvement over the year. She failed to take M.K. to the doctor when sick and did not ensure he was fed properly. Mother mentioned her brother's planned visit and potential move to Washington, raising concerns about her ability to care for M.K. Consequently, M.K. was removed from Mother's home on December 8, 1988, and placed in foster care. Mother admitted to neglecting M.K.'s feeding and medication and prioritized spending on items such as cigarettes and cable. Her sister provided support in household tasks due to Mother's lack of cooking skills. During supervised visits in January 1989, Mother was frequently found asleep upon the social worker's arrival and showed inconsistent engagement with M.K., only interacting when prompted. The quality of visits varied based on Mother's mood, and the social worker emphasized the need for active play and interaction, which was not observed without encouragement. In February 1989, the Mother maintained a clean apartment and was prepared for visits with M.K., but by March, she was often lethargic during visits and displayed a lack of engagement with social services. By April, she had lost motivation to comply with recommendations and expressed frustration with the court system. During M.K.'s visits, he was returned with minimal diaper changes, indicating neglect, as Mother lacked diapers for him. Although she occasionally played with M.K., her attention to his needs was inconsistent, and he often showed signs of distress after visits, clinging to his escort and taking a day to calm down upon returning to foster care. In January 1989, Mother did not follow social worker advice regarding food storage after a grocery shopping trip. An evaluation of M.K. in March revealed significant developmental delays; he had fine motor skills of a 12-month-old and gross motor skills of a 13.5-month-old, alongside immature grasp patterns and poor physical coordination. He exhibited symptoms of neurological impairment, including poor muscle tone and balance, and required extensive therapy, including special education and various forms of therapy two to three times weekly. M.K. needed a stable home environment, and his caregiver was expected to actively participate in his therapy and development. In June 1989, M.K. was diagnosed as microcephalic, indicating a smaller head size and potential learning disabilities. It was determined he would require ongoing special training to achieve his diminished developmental potential. M.K.'s EEG results indicated potential future seizure issues. He could only learn through active participation and repetition, necessitating a consistent and involved therapeutic approach from a parent. In December 1988, Lyn Smeenk became Mother's protective payee, overseeing financial management due to Mother's previous inability to manage her finances, exemplified by a $500 telephone bill that took four months to pay off. Despite initial improvements in her budgeting skills, by September 1989, Mother struggled to account for her expenses, with her allowance typically depleting quickly, largely due to her cigarette consumption. In January 1989, Smeenk was also appointed as M.K.'s guardian ad litem, with active involvement in monitoring the mother-child relationship until June 1989. The CASA worker noted that while Mother loved M.K., she often failed to dedicate adequate time and attention to him, exhibiting both moments of appropriate interaction and instances of neglect, such as disregarding safety instructions. Although there were improvements in Mother's parenting skills by June 1989, her engagement remained insufficient, despite her efforts to purchase new toys and care for M.K. when he was unwell. Jim Maas, a psychiatric social worker, provided counseling to Mother, who exhibited confusion regarding her situation and did not connect M.K.'s removal with her parenting style. Observations showed inconsistency in her nurturing behavior and a tendency to neglect basic care tasks, like checking M.K.'s diaper. After coaching, Mother's skills improved, but lapses persisted. The counselor emphasized the importance of vocational training to enhance Mother's social functioning, believing it would ultimately benefit her parenting abilities. Mother expressed reluctance to leave Belle Fourche, South Dakota, to attend a nearby training center. While she performed adequately under supervision, she failed to follow through with instructions when unsupervised. A counselor determined that Mother could not care for her child, M.K., without supervision and recommended adult foster care for both, which was unavailable, and Mother was uninterested in living under supervision. Despite individual counseling, Mother's progress was limited, and she did not accept responsibility for M.K.'s removal, nor did she acknowledge a need for change or vocational training. In September 1989, Mother married shortly after a brief acquaintance, raising concerns about her judgment and impulsivity, attributed to her dependent personality traits. The counselor indicated that M.K. would be at risk if returned to her care, noting her lack of awareness regarding her need for improvement in parenting. Observations during visits showed a disparity in Mother's interactions with M.K. at home compared to a supervised visit, where she appeared disengaged and failed to understand medical advice from a neurologist. Mother’s visits often left M.K. tired and hungry, raising concerns about her ability to care for him adequately. After two years of intervention with no significant improvement, social services recommended terminating Mother's parental rights, emphasizing M.K.'s need for a stable caregiver due to his developmental issues. Reports from the CASA worker and protective payee echoed this recommendation, citing Mother's poor decision-making and inability to manage personal responsibilities. The appeal's standard of review requires that findings of fact not be overturned unless clearly erroneous, with due consideration for the trial court's assessment of witness credibility. The court must also determine if the allegations in the petition about neglect and dependency are supported by clear and convincing evidence. In the Matter of S.S., the court applied the clearly erroneous standard, emphasizing that its role is not to reassess factual findings but to determine if the trial court made a mistake based on the evidence presented. The appellate court found no definitive conviction of error in the trial court's findings, affirming its decision. The mother argued that terminating her parental rights was not the least restrictive means to serve M.K.'s best interests, asserting that she should have received additional counseling through state programs, specifically the Intensive Preventive Placement (IPP) program and Adult Foster Care. However, the IPP was unavailable in her area, and the Adult Foster Care program had not started yet. The court noted that the termination of parental rights does not depend on exhausting all forms of assistance, especially if counseling fails to improve parenting skills. Despite two years of counseling, the mother showed no significant improvement or motivation to change her behavior, which justified the termination of her rights as the least restrictive alternative for M.K.'s welfare. Additionally, the mother claimed the trial court failed to adhere to SDCL 26-8-22.8, which requires examination when a child's mental health is in question. However, she did not raise this issue during the trial, making it unappealable. The court noted that even if the issue were considered, the mother did not demonstrate any prejudice resulting from the trial court's actions. A potential finding of mental retardation in M.K. would not negate the mother's inability to provide proper care, as he required specialized therapy regardless of any mental health diagnosis. Therapy is essential for M.K. to achieve his potential, as his mother cannot meet the needs of a developmentally delayed child. The trial court's failure to adhere to SDCL 26-8-22.8 was deemed non-prejudicial error, leading to the affirmation of the trial court's decision. Justice Henderson dissents, highlighting that evidence at the adjudicatory hearing indicated the child showed signs of mental retardation, defined by SDCL 27B-1-1 as significant subaverage intellectual functioning with adaptive behavior deficits. According to SDCL 26-8-22.8, the circuit judge was required to suspend the hearing upon evidence suggesting the child might be mentally ill or retarded, which did not occur, constituting a critical error as the statute mandates examination by qualified professionals. The absence of a physician's testimony or medical reports at the hearings left the court without necessary expertise to understand the child's developmental issues. Criticism is directed at Ms. Shoemaker for relying on assumptions blaming the mother, while biological factors were not investigated. Testimony from occupational therapist Dorothy Norris indicated that the child's deficits could be neurological, highlighting the need for medical evidence during the adjudicatory process. A later neurological examination confirmed the child was diagnosed as microcephalic, a condition often associated with mental retardation. The dissent argues that had proper procedures been followed, the mother might not have lost custody, and they emphasize the fundamental liberty interest in family life protected by the Fourteenth Amendment. State intervention must comply with due process requirements to terminate parental rights. In *Lassiter v. The Dept. of Social Services*, the invocation of the plain error doctrine is argued due to the significant fundamental liberty interest at stake involving the lifelong separation of a mother from her child. South Dakota law (SDCL 23A-44-15) allows for recognition of plain errors affecting substantial rights, emphasizing the prevention of miscarriages of justice. The case highlights the injustice of potentially losing a child due to both judicial and attorney errors, particularly concerning a mother with an IQ of 68. The majority opinion is criticized for not recognizing the serious implications of the adjudicatory phase, which could have been mitigated by a medical examination revealing hereditary mental retardation in the child. This suggests that the hearing should have been paused to explore alternatives to termination of parental rights. The argument extends to the rights of individuals with low IQs, asserting they should not be deprived of legal rights or procedural safeguards. The text further questions the assumption that removing a child from an imperfect home is inherently beneficial and stresses that love and support are essential for both the mother and child. Additional notes clarify that J.K. was represented by a different attorney on appeal, M.K.'s father did not participate in the proceedings, and there were inaccuracies in some trial court findings, although most were supported by the record.