#29586-a-SRJ

2022 S.D. 8

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

THE PEOPLE OF THE STATE OF SOUTH DAKOTA

IN THE INTEREST OF L.N., Minor Child,

and concerning K.N. and M.S.B., Respondents.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

LINCOLN COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE SANDRA HOGLUND HANSON

Judge

* * * *

JASON R. RAVNSBORG

Attorney General

COURT ROPER

Special Assistant Attorney General

Department of Social Services

Pierre, South Dakota Attorneys for petitioner and

appellee, State of South Dakota.

KRISTI JONES of

Dakota Law Firm, Prof. L.L.C.

Sioux Falls, South Dakota Attorneys for respondent 

mother and appellant.

* * * *

CONSIDERED ON BRIEFS

SEPTEMBER 7, 2021

OPINION FILED 02/09/22
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JENSEN, Chief Justice

[¶1.] The Department of Social Services (DSS) filed an abuse and neglect 

petition against Mother and Father involving the minor child, L.N. (DOB: 

07/23/2011). The case proceeded through adjudication and dispositional hearings 

with the court entering a final order terminating Mother and Father’s parental 

rights on December 17, 2020. Mother appeals, arguing the State failed to provide 

active efforts for reunification, that termination of her parental rights was not the 

least restrictive alternative, and that her due process rights were violated when 

termination proceedings occurred while she was mentally incompetent. We affirm.

Facts and Procedural History

[¶2.] L.N. is eligible for enrollment with the Oglala Sioux Tribe (Tribe), 

based upon Father’s enrollment with the Tribe. Accordingly, the Indian Child 

Welfare Act (ICWA) applies. The Tribe was notified of this action in accordance 

with ICWA and neither participated nor intervened in the proceedings.

[¶3.] Prior to the commencement of these proceedings, DSS received three 

abuse and neglect referrals involving Mother. On January 24, 2013, DSS was 

informed that Mother, who was under the influence of methamphetamine and 

alcohol, violently assaulted Father in L.N.’s presence. L.N. was placed in DSS’s 

custody but was returned to Mother’s custody on February 8, 2013. DSS 

substantiated emotional abuse of L.N. by Mother.

[¶4.] DSS received another referral on December 4, 2014, concerning an 

incident when Mother choked her own mother in L.N.’s presence. L.N. was removed 
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from Mother’s care and remained in DSS custody until August 31, 2015, when she 

was returned to Mother’s custody.

[¶5.] DSS received a third referral on November 23, 2016, concerning 

Mother’s alleged physical abuse of L.N. after L.N. arrived at school with a bloody 

nose and black eye. L.N. told police officers and Child Protective Services (CPS) 

that Mother had hit her the night prior. DSS assumed custody of L.N. for 

approximately eighteen months. L.N. returned to Mother’s custody on March 9, 

2018.

[¶6.] In March 2019, L.N. disclosed claims of physical abuse by Mother. 

Law enforcement initially spoke to L.N. at school and later visited Mother’s home. 

Janni Warne, a Family Service Specialist at DSS, joined law enforcement at 

Mother’s home to conduct an Initial Family Assessment (IFA). When L.N. arrived 

home from school, she told Specialist Warne that Mother had physically abused her 

by hitting L.N.’s forehead with a wooden spoon and covering her mouth and nose, 

which restricted her breathing. Mother admitted she put her hand on L.N.’s mouth 

to quiet L.N. but denied restricting L.N.’s airflow. In response to L.N.’s report, 

Mother told L.N. that Mother would be going to jail for thirty-five years. L.N. was 

visibly upset by this comment and stated she loved her mom but was scared and did 

not want to be at home due to Mother’s behavior. Mother originally claimed she did 

not know it was wrong to tell L.N. she was going to jail for thirty-five years, then 

later denied making the statement altogether, and eventually admitted to making 

the statement.
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[¶7.] On the same day as the home visit, Specialist Warne put a Present 

Danger Plan (PDP)1 in place. L.N. was placed with her maternal grandfather and 

step-grandmother. On April 5, 2019, DSS held a rapid response meeting to discuss 

safety concerns regarding the situation. Mother stated she lacked patience with 

L.N. and had explosive behaviors once a month. Mother was unable to recall what 

she said or did during those times but noted she felt agitated, hyper, and panicked.

[¶8.] DSS filed an abuse and neglect petition on April 26, 2019. Lynn 

Plucker, a Family Service Specialist at DSS, was assigned to work with the family. 

A temporary custody hearing was scheduled for April 30, 2019. Mother requested, 

and was granted, a continuance to discuss her options with her attorney. The 

hearing was rescheduled for May 14, 2019. At the hearing, Mother denied the 

petition and requested physical custody of L.N. The circuit court denied Mother’s 

request and placed temporary legal and physical custody of L.N. with DSS. DSS 

placed L.N. with her maternal grandparents.

[¶9.] DSS scheduled weekly visits between Mother and L.N. Mother 

attended visitation consistently throughout the proceedings. Although the visits 

were generally appropriate, staff at the visitation center stayed in the room to 

redirect the conversation when needed. During two of the visitations, Mother 

1. A PDP is an “immediate, short term plan to keep the child(ren) safe when 

they have been identified as being in danger because of the actions of their 

caretaker(s). A PDP is an alternative to placing children in foster care and is 

developed with the input from the child(ren)’s caretakers.” South Dakota 

Department of Social Services, Present Danger Plan Frequently Asked 

Questions for Present Danger Plan Providers, 

https://dss.sd.gov/formsandpubs/docs/ABUSE/DSSCP504_present_danger_pla

n.pdf (last updated December 2018).
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required this assistance. In January 2020, Mother was struggling to maintain her 

composure and verbally aggressive to staff during the visit. Police arrived on site, 

and the visit was prematurely terminated. In response, Mother falsely told L.N. 

that she was being sent to prison. In October 2020, Mother had a panic attack 

during a visitation. L.N. struggled after the visitation as old memories of abuse 

resurfaced. L.N. stated that she did not want to make her mom mad and that she 

feared her mom would harm her again.

[¶10.] In May 2019, Specialist Plucker directed Mother to seek counseling 

and suggested several counselors. Mother refused and indicated she would find her 

own counselor. Mother began counseling with Kristie Hamilton in May 2019. 

Shortly thereafter, Mother contacted DSS and requested funding for counseling. 

DSS contacted Hamilton and was told that Mother needed a higher level of care 

than Hamilton could provide. DSS offered assistance in obtaining a new counselor 

for Mother, but Mother refused assistance and again indicated she would find her 

own counselor. Mother then began counseling with Crystal Kapperman but 

completed only a few sessions with her.2

[¶11.] Specialist Plucker attempted to discuss a case plan with Mother 

throughout June 2019. Mother often spoke in incoherent and conflicting sentences. 

She would say something to Specialist Plucker and when asked to repeat it, Mother 

would deny having made the statement. Mother spoke of dead men breaking into 

her home and claimed that Koreans were attempting to take L.N. Mother admitted 

2. Kapperman left the community counseling clinic after finishing her pregraduate internship. Mother’s files were transferred to Faith Carlson, a 

postgraduate student, who was brought on to support existing patients.
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to using methamphetamine and was often agitated. Despite multiple attempts by 

DSS to review Mother’s case plan with her, Mother often became frustrated and 

would request that DSS leave. Specialist Plucker and Mother never completed a 

full, in-person case plan review. Mother eventually requested the case plan be 

mailed to her, which DSS did.

[¶12.] Specialist Plucker obtained funding for Mother’s counseling and 

scheduled a mental health evaluation with Southeastern Behavioral Health.3 In 

August 2019, Mother began counseling with Faith Carlson. Mother’s sessions were 

sporadic—often whenever Mother showed up. Carlson attempted to make room in 

her schedule for Mother whenever she appeared.

[¶13.] Mother appeared with counsel for an adjudicatory hearing on August 

8, 2019. Mother entered into a written stipulation for adjudication, admitting that 

L.N. was subjected to an environment that was injurious to her welfare. After 

advising Mother of her rights, the nature of the allegations in the petition, and that 

a disposition of termination could be entered, the court accepted Mother’s admission 

and adjudicated L.N. to be abused and neglected.

[¶14.] Mother completed a new mental health evaluation with Southeastern 

Behavioral Health on September 11, 2019. Mother continued to tell Specialist 

Plucker about dead men entering her home and her belief that the government was 

3. Specialist Warne testified that Mother had recently completed a mental 

health evaluation prior to DSS getting involved in the incident leading to this 

proceeding. Specialist Warne reviewed the evaluation and spoke to Mother 

about Mother’s mental health. Because the evaluation was recent, and only 

counseling was recommended, DSS did not take any additional steps at that 

time.
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watching her. Specialist Plucker requested Mother submit to a urinalysis (UA) on 

September 11, 2019. Mother refused and told Specialist Plucker that she may be 

positive for drugs other than marijuana. Two days later, Mother admitted she was 

using methamphetamine and submitted to a UA test, which was positive for 

methamphetamine. In total, Mother was requested to submit to approximately 

thirteen UA tests over the course of this case. Mother refused UA testing six times, 

had four negative tests, and three positive tests.

[¶15.] In October 2019, L.N.’s maternal grandparents, who had physical 

custody of L.N., requested that Specialist Plucker conduct a welfare check on 

Mother. Mother was not suicidal but continued to speak about government 

conspiracies, which often included conspiracies involving DSS. Because Avera 

Behavioral Health determined that Mother was not a danger to herself or others, 

she was not placed on a mental health hold.

[¶16.] In November 2019, a psychological evaluation was scheduled with Dr. 

Langenfeld. Dr. Langenfeld contacted Specialist Plucker to request additional time 

to complete the evaluation due to Mother’s scattered thoughts while testing. Dr. 

Langenfeld ultimately recommended Mother seek chemical dependency treatment 

and psychiatric treatment with long-term counseling, preferably with the same 

counselor. In December 2019, Specialist Plucker enrolled Mother in a chemical 

dependency group at the Carroll Institute. Mother attended the group sporadically. 

Mother failed to complete the program and was eventually discharged for lack of 

attendance and mental instability.
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[¶17.] Throughout January and February 2020, Mother believed she did not 

need any psychiatric appointments and refused to attend; however, Mother 

continued to see Carlson. On February 6, 2020, Mother requested Specialist 

Plucker to attend a counseling session with her. Carlson was not available, and 

Mother saw a different counselor. Mother made statements about wanting to get 

away and not wanting to be around anymore. The counselor believed Mother was 

suicidal and called the police. Mother was taken to Avera Behavioral Health and 

assessed, however, an emergency hold was not initiated, and she instead visited 

with an on-site emergency psychiatrist. The Avera psychiatrist followed-up with 

Mother a few days later, and Mother admitted to ingesting methamphetamine on 

February 6, 2020. Mother also tested positive for methamphetamine on February 

19, 2020.

[¶18.] In March 2020, Specialist Plucker enrolled Mother in a twelve-week 

outpatient drug treatment program at the Carroll Institute. Due to COVID 

precautions, the program was conducted virtually. Mother attended some sessions 

but often claimed her computer or computer camera was broken. Citing lack of 

attendance and mental instability, the Carroll Institute terminated Mother’s 

enrollment in mid-April 2020. DSS requested that a final dispositional hearing be 

scheduled, and the circuit court scheduled the hearing for June 2020. The circuit 

court also ordered Mother to submit to a competency evaluation. The evaluation 

was completed by Dr. Price on May 27, 2020. Dr. Price noted that Mother 

“demonstrates serious and pervasive thought dysfunction. She experiences 

delusions and has strong beliefs that others seek to harm her. She’s very suspicious 
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and distrustful.” Dr. Price deemed Mother incompetent. The circuit court then 

appointed a guardian ad litem for Mother. The court also continued the final 

dispositional hearing for ninety days.

[¶19.] Specialist Plucker, in April 2020, attempted to connect Mother with 

Avera Medical Group University Psychiatry Associates but was not able to schedule 

an appointment without Mother’s permission. Specialist Plucker did, however, 

obtain the necessary paperwork to be completed by Mother for admission. Mother 

and Specialist Plucker filled out the paperwork together at Mother’s home, but a 

form was missing when it was delivered to Avera. Despite attempts by Specialist 

Plucker to have Mother fill out the missing form, the paperwork remained 

incomplete.

[¶20.] Mother’s guardian ad litem and Specialist Plucker collectively began 

working to secure other competency restoration programs for Mother. Mother was 

denied enrollment in various programs at Southeastern Behavioral Health due to 

bed availability or ineligibility. Mother was also denied enrollment at the Human 

Services Center. Mother may have been eligible for enrollment at Southeastern’s 

Summit location but would have been required to switch counselors. Mother’s 

guardian ad litem and Specialist Plucker determined Mother should remain with 

Carlson, rather than switch counselors, due to Mother’s general distrust, 

conspiratorial thinking, and delusions.

[¶21.] In August 2020, Specialist Plucker obtained consent from Mother’s 

guardian ad litem and obtained an appointment for Mother with a psychiatrist at 

Avera. Mother was prescribed Risperdal for schizophrenia, and Specialist Plucker 
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offered Mother transportation to pick up her prescription as well as funding for the 

medication. Mother refused assistance from Specialist Plucker but filled the 

prescription. The court also continued the final dispositional hearing scheduled for 

August 2020 to December 2020.

[¶22.] Between September and October 2020, Mother took Risperdal as 

prescribed. Mother’s delusions drastically decreased, and Carlson noted that “[t]he

mental status exam that was provided before and after the medication was two 

different people in my professional opinion.” By early October, however, Mother 

refused to take Risperdal. Mother’s delusions worsened, and Carlson had Mother 

involuntarily committed, fearing for Mother’s safety. Methamphetamine was 

discovered in Mother’s belongings during her committal, and Mother was arrested. 

Mother subsequently terminated her sessions with Carlson.

[¶23.] On October 6, 2020, the circuit court denied Mother’s request for a 

third continuance of the final dispositional hearing. On November 9, 2020, Mother 

began seeing Dr. Heather Chester-Adam, a psychiatrist at Avera. Mother’s 

attendance was sporadic, and Mother failed to attend appointments leading up to 

the final dispositional hearing. Mother also failed to provide a UA test on October 

15, 2020. Despite Mother’s minimal cooperation, Specialist Plucker attempted to 

enroll Mother in a chemical dependency program.

[¶24.] A final dispositional hearing was held on December 16–17, 2020. 

Specialist Plucker and Specialist Warne testified at the hearing concerning their 

efforts to provide services to Mother. Specialist Plucker testified that she believed 

Mother had not cooperated in addressing her mental health issues because Mother’s 
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“drug use and . . . her lack of follow[-]through with doctor recommendations limited 

her [ability to] follow[-]through with DSS recommendations.” The State offered 

various DSS reports and evaluations, treatment center discharge summaries, CASA 

reports, urinalysis statistics, and a mental health competency evaluation, among 

other documents.

[¶25.] The State called Michelle VanDenHul, L.N.’s counselor, and Luke 

Yellow Robe, an ICWA expert. VanDenHul testified that permanency and security 

are critical for L.N. and that L.N. feels safe with her grandparents. During their 

sessions, L.N. told VanDenHul how Mother emotionally and physically abused her 

and how much it frightened her.

[¶26.] At the hearing, Yellow Robe testified that L.N.’s placement with her 

maternal grandparents is consistent with ICWA placement preferences. Yellow 

Robe stated that in his opinion, DSS made active efforts to reunify the family, and 

that they had offered rehabilitative programs to prevent the breakup of the Indian 

family, but those efforts were unsuccessful. Specifically, he noted that “[w]e’ve seen 

[DSS] provide the active efforts to assist Mom and we’re still – we’re really in all 

reality still where we [were] when the child first came into care.” He stated that he 

believed returning L.N. to Mother would be “injurious, maybe even bo[ ]rder o[n] 

dangerous to return this child who’s in a solid[,] competent placement at the time.” 

During cross-examination, Yellow Robe acknowledged the bond between L.N. and 

Mother. However, Yellow Robe ultimately concluded L.N. should not be returned to 

Mother’s care as it would likely result in serious emotional or physical damage 
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because L.N. experienced trauma in Mother’s care and expressed a fear of returning 

to Mother.

[¶27.] On January 5, 2021, the court entered findings of fact and conclusions 

of law, issued a final dispositional order terminating Mother’s parental rights over 

L.N., and granted DSS full adoptive custody of L.N. The court noted that L.N. had 

been in DSS’s custody since March 2019. The court found beyond a reasonable 

doubt that DSS made active efforts to provide remedial services and rehabilitative 

programs designed to prevent the breakup of the Indian family, and those efforts 

were unsuccessful. The court concluded that termination of Mother’s rights was 

supported by the evidence, including testimony from an ICWA expert, and that 

continued custody would likely result in serious emotional or physical damage to 

L.N.

[¶28.] Mother appeals, raising three issues:

1. Whether the circuit court erred in finding beyond a 

reasonable doubt that DSS provided active efforts to 

reunify the family.

2. Whether the circuit court clearly erred in finding beyond 

a reasonable doubt that termination of parental rights 

was the least restrictive alternative in the best interests 

of the minor child.

3. Whether the circuit court abused its discretion, or violated 

Mother’s due process rights, in denying Mother’s request 

to continue the termination proceedings while Mother was 

mentally incompetent.
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Analysis and Decision

1. Whether DSS provided active efforts.

[¶29.] Mother argues that the circuit court erred in finding that DSS 

provided active efforts to assist in reunification with L.N. Mother claims that she 

consistently visited L.N. and that her severe mental illness was immediately 

apparent, yet DSS merely suggested and monitored her counseling rather than 

actively assisting her with her mental health. In particular, Mother argues that it 

took approximately seventeen months before she was provided psychotropic 

medication and that DSS failed to provide sufficient support for her medication 

management. Mother also argues that “the only service DSS set up pursuant to Dr. 

Price’s recommendation was a chemical dependency evaluation.” Overall, Mother 

claims DSS took a passive role and that the circuit court erred by determining 

DSS’s efforts were reasonable and active although unsuccessful.

[¶30.] ICWA provides that “[a]ny party seeking to effect a foster care 

placement of, or termination of parental rights to, an Indian child under State law 

shall satisfy the court that active efforts have been made to provide remedial 

services and rehabilitative programs designed to prevent the breakup of the Indian 

family and that these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d). DSS 

must prove, beyond a reasonable doubt, that active efforts were made to reunite and 

rehabilitate the Indian family. 25 U.S.C. § 1912(f). Whether DSS provided active 

efforts “is a mixed question of law and fact” that we review de novo. People ex rel.

P.S.E., 2012 S.D. 49, ¶ 15, 816 N.W.2d 110, 115. “[T]he ‘active efforts’ requirement 

of § 1912(d) imposes a higher standard than the ‘reasonable efforts’ of SDCL 26-8A-
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21.” Id. ¶ 22, 816 N.W.2d at 117. “Active efforts means affirmative, active, 

thorough, and timely efforts intended primarily to maintain or reunite an Indian 

child with his or her family.” 25 C.F.R. § 23.2.

[¶31.] Active efforts require DSS to take the parent through the steps of the 

case plan rather than requiring the parent to perform the plan on his or her own. 

People ex rel. S.H.E., 2012 S.D. 88, ¶ 21, 824 N.W.2d 420, 426. However, services 

and aid cannot be forced upon uncooperative, unwilling parents. In re V.D.D., 278 

N.W.2d 194, 197 (S.D. 1979) (noting that a mother’s failure to complete an alcohol 

treatment program justified parental termination). “Where efforts to aid or counsel 

parents by the use of social services proves unavailing, termination of parental 

rights is justified.” In re W.G., 1999 S.D. 85, ¶ 19, 597 N.W.2d 430, 434 (citation 

omitted). “DSS is not required to exhaust every possible form of assistance . . . .” In 

re J.B., 2008 S.D. 80, ¶ 13, 755 N.W.2d 496, 500. Accord People ex rel. of P.B., 371 

N.W.2d 366, 373 (S.D. 1985) (noting in an ICWA case that “not every conceivable 

form of assistance must be attempted and found wanting before termination of 

parental rights is justified”). Even when parents take steps toward reunification, 

termination may be appropriate if the parent is no closer to becoming a suitable 

placement. P.S.E., 2012 S.D. 49, ¶ 28, 816 N.W.2d at 119 (holding that, although 

father completed DUI classes and enrolled in parenting and anger management 

classes, his efforts did not bring him closer to becoming a suitable placement than 

when the case was initiated).

[¶32.] The circuit court found the State’s witnesses to be credible and that the 

State had made active efforts to reunify the Indian family. It noted DSS 
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consistently contacted and aided Mother over twenty months, but that Mother 

failed to cooperate or take any meaningful steps toward reunification. DSS 

provided Mother with referrals, scheduled appointments, provided transportation, 

and funding, yet Mother failed to complete programs and instead continued to use 

methamphetamine. DSS also assisted Mother in obtaining psychotropic 

medication. Mother saw improvement while taking the medication but refused to 

continue taking it within a short time after starting the regimen. Further, Mother 

continued using methamphetamine throughout the proceedings.

[¶33.] The record supports the circuit court’s determination. DSS provided 

many of the active efforts listed in 25 C.F.R. § 23.2, including: conducting an IFA 

and PDP; tribal notification; compliance with ICWA placement preferences; case 

plan reviews; supporting regular visits between Mother and L.N.; referrals to 

counselors; monitoring progress and participation in various services; consideration 

of alternative ways to address Mother’s mental health issues after ineligibility in 

various programs; offering Mother transportation and vouchers; providing L.N. with 

counseling; and consulting an ICWA expert. The court correctly determined that 

DSS made active efforts to obtain services to help Mother address her problems and 

reunify her with the child. Unfortunately, because of Mother’s choices, many of 

these services were refused or ineffective. The circuit court did not err in finding 

that DSS made active efforts to reunify L.N. with Mother.

2. Least restrictive alternative in the best interests of 

the minor child.

[¶34.] Parental rights may be terminated if it is in the “best interests of the 

[child]” and is “the least restrictive alternative available.” People ex rel. P.K., 2006 
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S.D. 17, ¶ 17, 711 N.W.2d 248, 254. Whether these requirements are met is a 

question of fact. Id. (citation omitted). “We review the trial court’s findings of fact 

under the clearly erroneous standard; therefore, they will not be set aside unless ‘we 

are left with a definite and firm conviction that a mistake has been made.’” Id. 

(citation omitted). “The best interests of the child are viewed from the child’s, not 

the parents’, perspective.” In re A.S., 2000 S.D. 94, ¶ 19, 614 N.W.2d 383, 386.

[¶35.] Mother emphasizes the bond she and L.N. share. She points out that 

she consistently visited L.N. and that L.N. was excited for, and affectionate during, 

visits with Mother. Mother also argues that “[e]stablishing a guardianship with 

maternal grandparents would protect [L.N.]’s interest in stability while avoiding 

the drastic step of [terminating] Mother’s parental rights because Mother has a 

reasonable likelihood of regaining competency if treated appropriately.” In 

response, the State argues that the circuit court properly found that termination 

was the least restrictive alternative in the best interests of L.N. and that this 

determination is supported by the record and the credibility assessments of the 

court.4

4. The State additionally relies upon SDCL 26-8A-26.1(8) and (9), arguing that 

the least restrictive alternative does not apply when the circuit court finds a 

specific, good cause basis for termination under this statute. Subsections (8) 

and (9) of SDCL 26-8A-26.1 provide that a “court may find that good cause 

exists for termination of parental rights of a parent who:

 . . .

8) Has exposed the child to or demonstrated an inability to 

protect the child from substantial harm or the risk of substantial 

harm, and the child or another child has been removed from the 

parent’s custody because the removed child was adjudicated 

abused and neglected by a court on at least one previous 

occasion; [or]

 (continued . . .)
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[¶36.] When numerous offered services would not reduce the risk of abuse, 

there may be no less restrictive alternative other than termination. In re S.A., 2005 

S.D. 120, ¶ 27, 708 N.W.2d 673, 683. A mother’s “promises to conform to the 

standard of care for [her] children do not carry as much weight as [her] past actions 

of not properly caring for [her] children.” S.H.E., 2012 S.D. 88, ¶ 32, 824 N.W.2d at 

429 (citation omitted). The circuit court found that “[g]iven Mother’s history and 

condition at the time of the December 2020 hearing, her incompetency may continue 

until L.N. becomes an adult, and the Court is not aware of any reasonably-likely 

projected date upon which Mother is expected to regain competency . . . .” “We will 

________________________ 

(. . . continued)

(9) Has exposed the child to or demonstrated an inability to 

protect the child from substantial harm or the risk of substantial 

harm, the child has been removed from the parent’s custody on 

two separate occasions, and the Department of Social Services 

offered or provided family services on each of the two separate 

occasions the child was removed[.]”

The State cites People ex rel. L.S., 2006 S.D. 76, ¶ 33, 721 N.W.2d 83, 93, 

asserting that DSS is not required to provide reasonable efforts when certain 

aggravating circumstances exist under SDCL 26-8A-21.1 (a statute that 

parallels the circumstances listed under SDCL 26-8A-26.1). The State then 

acknowledges that in ICWA cases, even when aggravating circumstances are 

present, DSS must nevertheless provide active efforts toward reunification. 

See People ex rel. J.S.B., Jr., 2005 S.D. 3, ¶ 17, 691 N.W.2d 611, 617. 

However, the State suggests that unlike the “active efforts” requirement in 

ICWA, the “least restrictive alternative” requirement is based on state law, 

not ICWA; and therefore, such requirement may be dispensed with under the 

circumstances set forth in SDCL 26-8A-26.1. This Court has not previously 

considered whether the specific additional grounds under SDCL 26-8A-26.1 

providing good cause for termination excuses the required showing that 

termination is the least restrictive alternative. This issue was not raised 

below, and we need not decide the question here because we affirm the circuit 

court’s finding that termination was the least restrictive alternative.
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not force the child to wait for [her] parents to acquire parenting skills that may 

never develop.” People ex rel. D.T., 2003 S.D. 88, ¶ 23, 667 N.W.2d 694, 701.

[¶37.] The record shows that Mother was not capable of providing a safe, 

stable home for L.N. She has a long, well-documented history of substance abuse 

and mental health issues. More problematic, Mother continued to use controlled 

substances, failed to complete chemical dependency programs, declined to fully 

engage in mental health programs offered to her, and refused to continue taking 

medication that appeared to be effective for treating her schizophrenia. Mother 

remained an unsuitable placement throughout the proceedings due to worsening 

delusions. Despite DSS’s attempts toward reunification and rehabilitation, the 

court found that Mother was in no better position to parent L.N. than when the 

proceedings began.

[¶38.] The evidence also shows that while L.N. enjoyed visiting her Mother, 

she expressed significant distress at the thought of returning to her Mother’s care. 

This was evident after the October 2020 visit, which was disrupted due to Mother’s 

panic attack. L.N. told her counselor how she worried Mother would harm her 

again and that there were not enough locks at home to keep Mother out.

[¶39.] The record supports the circuit court’s finding that termination of 

Mother’s parental rights was the least restrictive alternative and in L.N.’s best 

interests. Mother has failed to show clear err in the circuit court’s findings.

3. Mother’s incompetency.

[¶40.] Mother claims the circuit court abused its discretion when it denied 

her request for a continuance after she was deemed incompetent. She further 
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claims that her procedural due process rights were violated when the court 

terminated her parental rights while she was incompetent.5 Mother argues the 

continuance would have given her time to establish competency through 

participation in an in-patient or community competency restoration program. She 

contends that the Due Process Clause requires that she be restored to competency 

before proceeding with a termination hearing. The question of whether the circuit 

court violated Mother’s procedural due process rights by terminating her parental 

rights while she was incompetent is one of first impression for this Court.

[¶41.] “A trial court’s decision to grant or deny a continuance is reviewed 

under an abuse of discretion standard.” State v. Beckley, 2007 S.D. 122, ¶ 20, 742 

N.W.2d 841, 847. An abuse occurs when a court fails to justify the discretion 

exercised and such exercise is “clearly against reason and evidence.” Id. (citation 

omitted). “The granting or refusing [of] a continuance rests in the sound discretion 

of the court below, and its ruling will not be reversed, except for the most cogent 

reasons.” Gaines v. White, 47 N.W. 524, 525 (S.D. 1891). “[A]n alleged violation of a 

constitutionally protected right is a question of law . . . reviewed de novo.” State v. 

Carothers, 2005 S.D. 16, ¶ 7, 692 N.W.2d 544, 546 (citation omitted). In this 

instance, the sole error claimed by Mother was that the circuit court violated her 

due process rights by proceeding to termination while she was incompetent. Thus, 

we review whether the court’s refusal to grant a continuance of the final 

5. Mother was determined to be incompetent by Dr. Price on May 27, 2020. It is 

not clear that another competency evaluation was ever done, but there 

appears to be no dispute that Mother was incompetent at the time of the final 

dispositional hearing.
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dispositional hearing violated Mother’s due process rights without any deference to 

the circuit court.

[¶42.] The United States Supreme Court has stated that “state intervention 

to terminate the relationship between [a parent] and [the] child must be 

accomplished by procedures meeting the requisites of the Due Process Clause.” 

Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 

(1982) (quoting Lassiter v. Dep’t of Soc. Servs, 452 U.S. 18, 37, 101 S. Ct. 2153, 2165, 

68 L. Ed. 2d 640 (1981) (Blackmun, J., dissenting)). The “nature of the process due

in parental rights termination proceedings turns on a balancing of the ‘three

distinct factors’ specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,

903, 47 L. Ed. 2d 18 (1976).” Id. at 754, 102 S. Ct. at 1395. Those factors include 

“the private interests affected by the proceeding; the risk of error created by the 

State’s chosen procedure; and the countervailing governmental interest supporting 

use of the challenged procedure.” Id.

[¶43.] In the context of termination proceedings, the Mathews balancing test

“requires that the court consider and balance (1) the parent’s interest and (2) the 

risk of erroneous deprivation against (3) the government’s interest.” Matter of 

M.M.L., Jr., 393 P.3d 1079, 1081 (Nev. 2017) (citing Lassiter, 452 U.S. at 27, 101 S. 

Ct. at 2153). Applying the first factor from Mathews, Mother had a significant and 

well recognized interest in parenting L.N. “[N]atural parents have a fundamental 

liberty interest in the care, custody, and management of their children.” S.A., 2005 

S.D. 120, ¶ 15, 708 N.W.2d at 678 (citing Lassiter, 452 U.S. at 27, 101 S. Ct. at 

2159–60); see also Santosky, 455 U.S. at 753, 102 S. Ct. at 1394–95. “Parents are 
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guaranteed procedural rights under the Fourteenth Amendment when parental 

rights are subject to termination[.]” S.A., 2005 S.D. 120, ¶ 15, 708 N.W.2d at 678. 

For instance, before terminating parental rights in ICWA cases, the State must 

prove “beyond a reasonable doubt, including testimony of qualified expert 

witnesses, that the continued custody of the child by the parent or Indian custodian 

is likely to result in serious emotional or physical damage to the child.” People ex

rel. A.B., 2016 S.D. 44, ¶ 16, 880 N.W.2d 95, 101 (citation omitted). Additionally, 

the State must present clear and convincing evidence that “termination is the least 

restrictive alternative commensurate with the best interest of the child.” Id.

[¶44.] However, a parent’s liberty interest in parenting a child is not without 

limits and may give way to the best interests of the child when abuse and neglect 

has been substantiated. In re Z.Z., 494 N.W.2d 608, 610 (S.D. 1992); People ex rel.

E.D.J., 499 N.W.2d 130, 135 (S.D. 1993) (“The best interests of the child must 

prevail.”) (citation omitted). This Court has long recognized that “[c]hildren are 

entitled to a stable, healthy environment now; they are not required to wait for a 

parent to acquire parenting skills that may never develop.” Z.Z., 494 N.W.2d at 

610.

[¶45.] Notwithstanding these principles, Mother argues that her 

constitutional right to parent L.N. requires in all instances that she be restored to 

competency before the court may proceed with termination. While due process 

requires that a criminal defendant be restored to competency before trial, Mother 

does not cite any authority to support a bright-line rule that due process requires 

competency restoration before a parent’s rights may be terminated in a child 
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dependency proceeding. Rather, we have held that “[p]rocedures determining the 

custody of dependent children are not criminal, are not quasi-criminal, but instead 

constitute a civil action, or a special proceeding of a civil nature.” S.A., 2005 S.D. 

120, ¶ 17, 708 N.W.2d at 679 (citation omitted). In specifically rejecting a claim 

that a parent must be restored to competency before proceeding with termination 

proceedings, one court has stated, “termination cases do not involve the deprivation 

of ‘physical liberty.’” A.M. v. Dep’t of Child. & Fams., 223 So. 3d 312, 315 (Fla. Dist. 

Ct. App. 2017). Thus, termination “proceedings are not entitled to the protections of 

a criminal trial, because the procedures and goals in place in child dependency and 

termination proceedings are different than those for criminal prosecutions.” Id.

[¶46.] Mother failed to obtain competency despite efforts by DSS to assist 

Mother for more than six months after Dr. Price determined she was incompetent. 

During this time, Mother continued to use controlled substances and discontinued 

taking efficacious psychotropic medications. Given these circumstances, there was 

no indication that Mother’s competency would be restored even if the termination 

proceedings were further delayed. Based upon this record, the first Mathews factor 

supports a determination that L.N.’s best interests in having a stable and secure 

home were paramount to Mother’s interests in a further delay in the termination 

proceedings.

[¶47.] The second Mathews factor requires that we consider the risk of error 

created by holding a termination proceeding while Mother was incompetent. 

Mother was represented by counsel throughout the proceedings and the court also 
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appointed a guardian ad litem to represent her after she was deemed incompetent.6 

She had the assistance of counsel and a guardian ad litem acting on her behalf 

throughout the final dispositional hearing. Counsel for Mother effectively crossexamined witnesses called by DSS and also called Mother’s counselor to testify. 

These protections, along with the State’s heightened burden of proving beyond a 

reasonable doubt that continued custody would result in serious emotional or 

physical damage to the child, and that termination was the least restrictive 

alternative by clear and convincing evidence, were adequate to guard against the 

risk of error in the proceedings. See A.M., 223 So. 3d at 316.

[¶48.] The third Mathews factor also favors the State based upon its 

substantial interest in ensuring a result that is consistent with the child’s best 

interest after a child has been determined to have been abused or neglected. The 

State did not resist several continuance requests and there was no indication that 

Mother’s mental health would improve even if the court indefinitely continued the 

final dispositional hearing. Another continuance would have left L.N. in continued 

uncertainty, contrary to her best interests. In the twenty-one months this case was 

pending, Mother continued to use methamphetamine, minimally cooperated with 

6. The appointment of a guardian ad litem is a significant factor to be 

considered in determining the risk of error. See State ex rel. Juv. Dep’t of 

Multnomah Cnty. v. Evjen, 813 P.2d 1092, 1093 (Or. Ct. App. 1991). Further, 

additional safeguards may apply when an Indian child is involved. 25 U.S.C. 

§ 1912. However, both ICWA and chapter 26-7A and 26-8A are silent on 

questions of whether a parent must be competent for termination proceedings 

or whether the court must appoint a guardian ad litem to assist a parent due 

to incompetency. Since the circuit court appointed a guardian ad litem for 

Mother, it is unnecessary to consider whether the absence of a guardian ad 

litem to represent an incompetent parent in termination proceedings 

necessarily gives rise to a due process violation.
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counseling, and declined medication. This Court has continuously emphasized the 

importance of permanency and stability in considering the best interests of the 

child. See D.T., 2003 S.D. 88, ¶ 23, 667 N.W.2d at 701. The continued 

“postponement of termination proceedings, for a fitness hearing or until the 

respondent could be restored to fitness, would further delay a child’s interest in 

finding a permanent home.” In re Charles A., 856 N.E.2d 569, 573 (Ill. App. Ct. 

2006). Such an indefinite postponement would frustrate the State’s “parens patria

interest in preserving and promoting the welfare of the child.” Id.

[¶49.] Our conclusion is consistent with other jurisdictions, which have held 

that a parent’s due process rights are not violated when parental rights are 

terminated while a parent remains incompetent. Applying the Mathews factors, 

several courts have held “that due process does not require a parent to be competent 

at the time of the termination proceeding.” A.M., 223 So. 3d at 317 (citing cases 

from five states that have held parental incompetency at the time of the 

termination proceeding is not a due process violation). In A.M., the mother was 

deemed incompetent in an unrelated criminal proceeding and was then 

involuntarily committed days before the trial in the dependency case. Id. at 314. 

Although the mother requested a continuance, the court denied it and emphasized 

the child’s need for finality and stability. Id. at 317 (noting that there was “no 

assurance that the mother would regain competence”); accord M.M.L., 393 P.3d at 

1082–83 (denying a continuance where the contesting parent was incompetent 

because the child’s interest was of paramount concern); In re R.M.T., 352 S.W.3d 12, 

21 (Tex. App. 2011) (finding the child’s need for permanency could not be 
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accommodated without proceeding while the parent was incompetent); Charles A., 

856 N.E.2d at 573 (“The postponement of termination proceedings, for a fitness 

hearing or until the respondent could be restored to fitness, would further delay a 

child’s interest in finding a permanent home.”); In re N.S.E., 666 S.E.2d 587, 589 

(Ga. Ct. App. 2008); In re W.J.S.M., 231 S.W.3d 278, 283 (Mo. Ct. App. 2007).7

[¶50.] We conclude, in considering the Mathews factors, that Mother has 

failed to establish a due process violation. Our decision aligns with other 

jurisdictions that have found a parent’s due process rights are not violated when 

proceedings occur while a parent is incompetent. Mother has failed to cite any 

decision to support her claim that a due process violation occurred under the 

circumstances that exist in this case. Under the circumstances presented here, the 

circuit court did not violate Mother’s due process rights in denying her request to 

continue the final dispositional hearing.

[¶51.] We affirm.

[¶52.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.

7. But see In re Alexander V., 613 A.2d 780 (Conn. 1992) (concluding the trial 

court violated a parent’s due process rights by not granting a request for a 

competency evaluation); Evjen, 813 P.2d at 1092–95 (finding a due process 

violation where the trial court denied the parent’s request for a guardian ad 

litem and proceeded with a parental right termination hearing in the parent’s 

absence).