#24823-a-PER CURIAM 

2008 SD 92

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

THE PEOPLE OF THE STATE OF SOUTH DAKOTA 

IN THE INTEREST OF D.A.J., 

ABUSED OR NEGLECTED CHILD, 

AND CONCERNING O.J., RESPONDENT. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FIFTH JUDICIAL CIRCUIT 

BROWN COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE TONY L. PORTRA 

Judge 

* * * * 

RANDALL B. TURNER 

Aberdeen, South Dakota Attorney for appellant father. 

LAWRENCE E. LONG 

Attorney General 

JEREMY D. LUND 

Assistant Attorney General Attorneys for appellee 

Pierre, South Dakota State of South Dakota. 

* * * * 

 CONSIDERED ON BRIEFS 

 SEPTEMBER 18, 2008 

 

 OPINION FILED 10/1/08 
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PER CURIAM 

[¶1.] O.J. (father) appeals the denial of a motion for a continuance of an 

adjudicatory hearing in abuse and neglect proceedings relating to D.A.J., his nineyear-old son (child). Father also appeals child's adjudication as an abused and 

neglected child. We affirm. 

FACTS 

[¶2.] Father and child lived in Aberdeen, South Dakota. The parental rights 

of child's mother had been previously terminated and were not at issue in these 

abuse and neglect proceedings. 

[¶3.] Father was in poor health and had a girlfriend who helped provide care 

for child. On May 13, 2007, father introduced child to child's mother who lived only a 

few blocks away from father's girlfriend. Father instructed child not to visit his 

mother's house without supervision. The next day, child was at the home of father's 

girlfriend playing with neighbors and the girlfriend left to run an errand. When she 

returned, child was not in the home and could not be located. The girlfriend 

suspected child had gone to his mother's house and phoned father, asking him to call 

the mother to see if child was at her house. Instead, father went to the mother's 

residence where he found child. 

[¶4.] Father slapped child, told him to get in his car and drove child to his 

residence. Father had child go into a bedroom and disrobe while father found a stick 

or switch measuring one and one-half to two feet in length. Father then used the 

switch to beat his naked child on his arms, legs, and back. The beating left a number 

of bruises, welts and slash-marks on child's body. At some point during or after the 

beating, child, who was crying and screaming, called father's girlfriend. The 
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girlfriend immediately went to father's house and managed to retrieve child despite 

father's efforts to stop her. The girlfriend then reported the incident to law 

enforcement and child was taken into protective custody. 

[¶5.] A petition alleging abuse and neglect of child was filed on May 16, 2007. 

On January 17, 2008, notice was issued for an adjudicatory hearing to take place on 

February 25. Father moved for a continuance of the adjudicatory hearing, alleging 

that criminal charges relating to the abuse and neglect case had been filed against 

him and that he would be requesting a trial in the criminal case. Father also alleged 

that any testimony he provided in the abuse and neglect case would be used against 

him in the criminal case and claimed this would violate his constitutional right 

against self-incrimination. 

[¶6.] The trial court denied father's motion for a continuance and the 

adjudicatory hearing was held as scheduled on February 25. Father did not testify 

during the hearing. After the hearing, the trial court entered findings of fact, 

conclusions of law, and an order holding that child was abused and neglected. Father 

sought an intermediate appeal from the denial of his motion for a continuance and 

from the adjudicatory order which this Court granted. 

ISSUE ONE 

[¶7.] Whether the trial court abused its discretion in denying Father's 

motion for a continuance. 

[¶8.] "A trial court's decision to grant or deny a continuance is reviewed 

under an abuse of discretion standard. 'An abuse of discretion refers to a discretion 

exercised to an end or purpose not justified by, and clearly against reason and 

evidence.'" State v. Beckley, 2007 SD 122, ¶ 20, 742 NW2d 841, 847 (citations 
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omitted). Father argues the trial court abused its discretion in denying his motion 

for a continuance because it deprived him of the ability to testify at the adjudicatory 

hearing without the risk of incriminating himself before his criminal trial. 

[¶9.] A similar argument was presented to the New York Supreme Court in 

Matter of Germaine B., 447 NYS2d 448 (NyAppDiv 1982). In that case, parents 

sought a continuance of civil child abuse proceedings involving two of their children 

pending the outcome of manslaughter charges filed against them in connection with 

the death of a third child. As in this case, the parents argued that their 

constitutionally protected rights against self-incrimination would be violated if they 

were required to go forward with the child abuse proceeding before the trial in the 

criminal case. The New York court held: 

Abundant appellate authority establishes that no violation 

of constitutional rights occurs when a party is required to 

proceed in a civil proceeding before adjudication of related 

criminal charges. See Baxter v. Palmigiano, 425 US 308, 

96 SCt 1551, 47 LEd2d 810; Diebold v. Civil Serv. Comm'n, 

8thCir., 611 F2d 697; United States v. White, 5thCir., 589 

F2d 1283; Arthurs v. Stern, 560 F2d 477, cert. den., 434 US 

1034, 98 SCt 768, 54 LEd2d 782; cf. Marine Midland Bank 

v. John E. Russo Procedure Co., 50 NY2d 31, 427 NYS2d 

961, 405 NE2d 205. The situation presented is clearly to 

be distinguished from those in which an automatic penalty 

follows the failure of a witness or party to testify in a 

proceeding. Cf. Gardner v. Broderick, 392 US 273, 88 SCt 

1913, 20 LEd2d 1082; Garrity v. New Jersey 385 US 493, 

87 SCt 616, 17 LEd2d 562; Spevack v. Klein, 385 US 511, 

87 SCt 625, 17 LEd2d 574; Lefkowitz v. Cunningham, 431 

US 801, 97 SCt 2132, 53 LEd2d 1. 

The question thus is one addressed to the discretion of the 

Family Court, and we are not persuaded under the 

circumstances presented that the denial of the application 

constituted an abuse of discretion. The Family Court 

clearly had the right to consider the interests of the 
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children in an expeditious determination of the child abuse 

proceedings. 

In finding no abuse of discretion under the circumstances 

presented, we do not intend to minimize the possible 

disadvantage to those in the position of respondentsappellants in being required to proceed first with a child 

abuse proceeding intimately related to a pending criminal 

charge. We also appreciate that a just resolution of the 

Family Court proceeding might be furthered by the 

removal of an impediment to relevant testimony by critical 

witnesses. 

Clearly the preferable resolution of the dilemma presented 

is, when reasonably possible, to try the criminal case so 

promptly that it would avoid any harmful delay in the 

determination of the important matters before the Family 

Court. What is urgently required is the close and active 

cooperation of the judges in charge of the separate 

proceedings, the counsel for the varied parties, and the 

parties themselves. 

Germaine B., 447 NYS2d at 449 – 50. 

[¶10.] Florida has developed a similar body of caselaw on this issue. In C.J. v. 

Department of Children and Families, 756 So2d 1108 (FlaDistCtApp 2000), a father 

claimed the trial court abused its discretion in denying his motion for a continuance 

of termination of parental rights proceedings pending the outcome of his trial for the 

murder of a sibling of the child at issue. The Florida court reasoned as follows: 

In determining whether a continuance should be granted 

under the circumstances presented by this case, the trial 

court must consider two primary concerns. First and 

foremost is the best interest of the child, which ordinarily 

requires a permanent placement at the earliest possible 

time. The second consideration is affording fairness to the 

parents involved. 

In this case, the father is charged with the first degree 

murder of another child. Depending on the complexity of 

the issues and whether the death penalty is involved, this 

type of case can take anywhere from one to three years to 
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be trial ready. Absent exceptional circumstances, it would 

be unreasonable to postpone a determination on the 

termination of parental rights issue for such an excessive 

period of time. Accordingly, we cannot conclude that the 

trial court abused its discretion in denying the requested 

continuance. Although C.J. had a trial date for his murder 

case, trial dates in such cases are often meaningless. 

Counsel made no representation that the case was certain 

to be tried on that day and all indications were to the 

contrary. Moreover, T.I.J. had been taken from her 

parents eight months earlier and was in desperate need of 

permanent placement.1

Id. at 1109 – 10 (citations omitted)(footnote added). See also G.C. v. Department of 

Children and Families, 791 So2d 17, 22 (FlaDistCtApp 2001)(trial court did not deny 

due process or abuse its discretion in refusing to delay child dependency proceedings 

pending outcome of collateral criminal proceedings); A.C. v. Department of Children 

and Families, 798 So2d 32, 35 (FlaDistCtApp 2001)(trial court did not abuse its 

discretion in denying continuance of termination of parental rights trial pending 

outcome of criminal charge of aggravated child abuse). 

[¶11.] A.C. v. Department of Children and Families, 798 So2d at 32, involved 

facts very similar to those in this case. In A.C., the State filed a petition to terminate 

a mother's parental rights after she punished her twelve-year-old daughter by 

holding her hand over a hot stove burner, causing second degree burns. The mother 

 

1. The court also noted in C.J. that: 

We can conceive of situations where a brief delay might be 

perfectly reasonable. For example, where a parent charged 

with a crime advises the trial judge that he or she has filed 

a demand for speedy trial in his or her criminal case and 

would therefore have to be tried on those charges within 

sixty days-a first request for a brief continuance to 

accommodate that schedule might be warranted. 

 C.J., 756 So2d at 1110, n 1. 
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was also charged criminally with aggravated child abuse. On appeal from the 

termination of her parental rights, the mother argued that she should have been 

granted a continuance of the termination proceedings because she would have been 

required to invoke her Fifth Amendment privilege at the hearing and could not 

present a viable defense because of the criminal charge pending against her. Relying 

on the best interests of the child standard applied in C.J., 756 So2d at 1109 – 1110, 

the Florida court found no abuse of discretion in the trial court's denial of a 

continuance and further found the denial was supported by the record. 

[¶12.] Here, by the time of the adjudicatory hearing, abuse and neglect 

proceedings involving child had been pending for almost a year. At the same time, 

there was apparently no date set for the criminal trial because father was not 

scheduled for an arraignment and plea until a month after the adjudicatory hearing.2 

The record gives no indication as to how quickly a criminal trial might have taken 

place thereafter. Clearly the best interests of the child under these circumstances 

required prompt resolution of his status. Thus, the trial court correctly proceeded 

with the adjudicatory hearing at the scheduled time and appropriately denied 

father's request for a continuance and further delay of the matter. Based upon the 

authorities cited above, there was no abuse of discretion by the trial court in its 

decision in this regard. 

 

2. In seeking a continuance of the adjudicatory hearing, father averred that 

previous continuances were granted in both the abuse and neglect case and the 

criminal case because of his "substantial medical issues." However, the record 

provides little additional information on the nature of his health problems and 

how they related to the delay in both cases. 
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ISSUE TWO 

[¶13.] Whether the trial court was clearly erroneous in finding that 

child was abused and neglected.

Whether a child is abused and neglected is a question of 

fact that the State must prove by clear and convincing 

evidence. The trial court's findings of fact are subject to 

the clearly erroneous standard, and will not be set aside 

unless "we are left with a definite and firm conviction that 

a mistake has been made." We will give due regard to the 

trial court's opportunity to judge the credibility of 

witnesses. 

People ex rel. C.F., 2005 SD 126, ¶ 17, 708 NW2d 313, 316 – 17 (citations omitted). 

[¶14.] The trial court entered the following finding that child was abused and 

neglected: 

The court finds by clear and convincing evidence that the 

above-named minor child is an abused and neglected child 

through the actions or inactions of [father] within the 

meaning of SDCL 26-8A-2, based on the following: the 

testimony of the child and other witnesses to [father] 

striking or whipping the child with a stick and causing 

injuries, and pictures of the injuries caused by the strikes. 

[¶15.] Father argues this finding is clearly erroneous because he was deprived 

of the opportunity to testify at the adjudicatory hearing and explain that his 

discipline of child was reasonable in manner and moderate in degree under SDCL 22-

18-5: 

To use or attempt to use or offer to use force upon or 

toward the person of another is not unlawful if committed 

by a parent or the authorized agent of any parent, or by 

any guardian, teacher, or other school official, in the 

exercise of a lawful authority to restrain or correct the 

child, pupil, or ward and if restraint or correction has been 

rendered necessary by the misconduct of the child, pupil, or 

ward, or by the child's refusal to obey the lawful command 

of such parent, or authorized agent, guardian, teacher, or 
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other school official, and the force used is reasonable in 

manner and moderate in degree. 

(Emphasis added). 

[¶16.] The argument as to denial of father's ability to testify at the 

adjudicatory hearing is resolved by the analysis under the first issue. Absent father's 

testimony at the adjudicatory hearing, the only source for his defense under SDCL 

22-18-5 was the closing argument of his counsel who contended that father punished 

child in the manner he felt was reasonable given the situation. 

[¶17.] Despite counsel's argument, the trial court entered no written findings 

of fact as to the reasonableness of father's use of force under SDCL 22-18-5. This is 

clearly preferred when SDCL 22-18-5 is raised as a defense in an abuse and neglect 

proceeding. See e.g. C.F., 2005 SD 126, ¶ 24, 708 NW2d at 318 (for analysis of trial 

court's findings of fact relating to reasonableness of parent's use of force in abuse and 

neglect case premised on excessive discipline of child). However, father filed no 

objections claiming an omission in the trial court's findings nor did he file proposed 

findings of fact and conclusions of law of his own asserting that his use of force on 

child was reasonable in manner and moderate in degree under SDCL 22-18-5. Thus, 

this issue was not preserved for appeal. See Stemper v. Stemper, 415 NW2d 159, 160 

(SD 1987)(claim or theory not mentioned in proposed findings is deemed abandoned). 

[¶18.] Even if the issue of reasonable use of force under SDCL 22-18-5 were 

preserved for appeal, we note that the trial court did address it in its oral findings 
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at the close of the adjudicatory hearing.3 In that regard, the court stated: 

After listening to the evidence presented today as well as 

the arguments of counsel, I find that [child] is an abused or 

neglected child. The testimony, to me, from [child] and the 

supporting witnesses is very convincing that he was 

whipped with a stick or a switch, whatever term you want 

to give to it. It was unreasonable punishment in nature 

and in degree. This wasn't an instance of a child getting a 

swat on the behind with an open hand. This was a 

whipping. And neither [father's] illness nor the fact that 

[his girlfriend] had indicated [child] needed to be punished 

are any excuse for the type of conduct that occurred. 

[¶19.] These findings are supported by the photographic evidence in the 

record. That evidence establishes that the discipline father administered to child 

went far beyond a quick swat on a bare behind. Rather, the photos make clear that 

father repeatedly beat child's back, legs, and arms with a switch until he left 

numerous scars and welts covering child's body. This could not be excused as simple 

restraint or correction of child. Thus, the trial court was neither erroneous nor 

clearly erroneous in finding the punishment unreasonable in manner and degree and 

that child was abused and neglected. 

[¶20.] Affirmed. 

[¶21.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER 

and MEIERHENRY, Justices, participating. 

 

 

3. Oral findings may be referenced to clarify a trial court's written findings if 

there is no discrepancy. See Rel v. Douglas County Civil Service Commission, 

581 P2d 1090, 1092 n 3 (WashCtApp 1978)(trial court's oral statements may be 

used to clarify its written findings); Federal Land Bank of St. Paul v. 

Lillehaugen, 404 NW2d 452, 454 (ND 1987)(trial court's written findings of 

fact prevail when a discrepancy exists between those findings and the court's 

prior memorandum opinion or oral ruling).