Matter of the Adoption of A.A.B. & B.A.B.

#27488, #27490-a-GAS
2016 S.D. 22

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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(27488)
IN THE MATTER OF THE ADOPTION
OF A.A.B., minor child.

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(27490)
IN THE MATTER OF THE ADOPTION
OF B.A.B., minor child.

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

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ARGUED FEBRUARY 17, 2016
OPINION FILED 03/09/16
#27488, #27490

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

1. Parental rights were terminated on May 2, 2014.

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DSS. The circuit court disagreed and ruled that SDCL chapter 25-6 allows

Petitioners to adopt children within the custody of DSS, 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
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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 26-

8A-29 explicitly provides for adoption proceedings outside the abuse and neglect

proceedings of SDCL chapter 26-8A. It provides: “The continuing jurisdiction of the

court according to this section does not prevent the acquisition of jurisdiction of the

child by another court for adoption proceedings according to law.” Id. Further,

SDCL 26-6-21 provides:

2. We note that B.A.B. does not reside with Petitioners. Although SDCL 25-6-9
requires a child to live in the adoptive home for at least six months before a
petition to adopt may be granted, SDCL 25-6-10 allows a petition to be “filed
with the circuit court before the six-month period required by § 25-6-9 has
passed.”

3. DSS asserts that our prior case law has “foreclosed any possibility that a
family member could simply file his or her own petition for adoption.” See In
re D.M., 2004 S.D. 34 ¶ 8, 677 N.W.2d 578, 581; In re Adoption of D.M., 2006
S.D. 15, ¶ 9, 710 N.W.2d at 446. These prior cases recognized that there is a
limited right to intervention in abuse and neglect proceedings. In In re
Adoption of D.M., a foster family filed a petition to adopt a child, and the
relatives of the child attempted to intervene in the adoption proceeding. We
held that “[t]he adoption statutes . . . do not specifically give family members
the right to intervene” in an adoption proceeding. 2006 S.D. 15, ¶ 9, 710
N.W.2d at 446. These cases do not control the outcome of this case as each
involved an attempt to intervene in an abuse and neglect or an adoption
proceeding rather than independent petitions for adoption.

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Whenever a child welfare agency [which includes DSS by
definition in SDCL 26-6-1] licensed to place children for
adoption shall have been given the permanent care, custody, and
guardianship of any child and the rights of the parent or parents
of such child shall have been terminated by order of a court of
competent jurisdiction, the child welfare agency may consent to
the adoption of such child pursuant to the statutes regulating
adoption proceedings.

(Emphasis added.) Thus, SDCL chapter 25-6 applies to the adoption of children in

DSS’s custody due to termination of parental rights pursuant to abuse and neglect

proceedings. 4

[¶6.] Next, DSS asserts that other statutes limit Petitioners’ ability to adopt

a child under SDCL 25-6-2. See Huber v. Dep’t of Pub. Safety, 2006 S.D. 96, ¶ 14,

724 N.W.2d 175, 179 (quoting Wildeboer v. S.D. Junior Chamber of Commerce, 1997

4. DSS cites to the decisions of several other jurisdictions to support its
argument that Petitioners have no right to file a petition for adoption. These
cases are inapplicable and distinguishable. The cases cited address state
statutes that are different than South Dakota’s provisions. Unlike South
Dakota, several of those states have statutes containing specific and direct
language requiring the consent of state departments that care for children.
See Idaho Dep’t of Health and Welfare v. Hays, 46 P.3d 529, 532 (Idaho 2002)
(determining that pursuant to Idaho Code Ann. § 16-1504(1)(f) (West 2014),
providing that “[c]onsent to adoption is required from: (f) Any legally
appointed custodian or guardian of the adoptee[,]” the consent of the
Department of Health and Welfare was necessary prior to adoption of a child
for whom it acted as guardian); In re Adoption of S.C.P., 527 A.2d 1052, 1054
(Pa. 1987) (Foster parents have no standing to pursue adoption where the
county children’s bureau refused to consent, a power given to the bureau
under 23 Pa. Stat. and Cons. Stat. Ann. § 2711(a)(5) (West 2004), which
states “consent to an adoption shall be required of the following: (5) [t]he
guardian of the person of an adoptee under the age of 18 years, if any there
be, or of the person or persons having the custody of the adoptee, if any such
person can be found, whenever the adoptee has no parent whose consent is
required.”); In re E.G., 738 N.W.2d 653, 656-57 (Iowa Ct. App. 2007)
(determining that foster parent had a right to intervene in termination
proceedings but making “no determination whether the Department should
consent to an adoption if/or when an adoption petition is filed” because “[n]o
adoption petition has ever been filed”).

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#27488, 27490

S.D. 33, ¶ 24, 561 N.W.2d 666, 670) (“[G]eneral statutes must yield to specific

statutes if they are not consistent.”). According to DSS, DSS must grant its consent

before Petitioners can petition to adopt a child in DSS’s custody. First, DSS directs

us to SDCL 26-4-9.1, which provides: “The Department of Social Services shall

establish a program of adoption services. The secretary of social services may adopt

reasonable and necessary rules for the operation of the program of adoption services

including. . . [a]doptive applications and placements[.]” Pursuant to SDCL 26-4-9.1,

DSS promulgated ARSD 67:14:32:17, which states:

An applicant shall not file a petition to adopt a child placed with
them by the department without prior approval of the
department. When the department has given legal approval to
an applicant to begin legal proceedings for the completion of
adoption, the department shall send legal information about the
child to the applicant’s attorney.

According to DSS, this regulation allows it to withhold its consent. However, “an

administrative regulation cannot adopt requirements that ‘expand upon the statute

that it purports to implement.’” In re Luff Expl., 2015 S.D. 27, ¶ 17, 864 N.W.2d 4,

9 (quoting State Div. of Human Rights, ex rel. Ewing v. Prudential Ins. Co. of Am.,

273 N.W.2d 111, 114 (S.D. 1978)). “[R]ules adopted in contravention of statutes are

invalid.” Id. (quoting Paul Nelson Farm v. S.D. Dep’t of Revenue, 2014 S.D. 31, ¶

24, 847 N.W.2d 550, 558). The rule promulgated by DSS contravenes SDCL 26-4-

9.1. Agreeing with DSS’s contention that it “alone [has] the authority to determine

permanent placement of the children” would divest the circuit court of the

jurisdiction entrusted to it under SDCL 25-6-6. See SDCL 25-6-6 (“The circuit court

is vested with the jurisdiction to hear, try, and determine all matters relative to the

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adoption of children, subject to the right of appeal in the same form and manner as

appeals are taken from the circuit court.”). No statute allows DSS to prevent

adoption filings in the circuit court. Even DSS’s ability to promulgate rules on and

select adoptive placement is subject to judicial oversight if certain conditions under

SDCL 26-8A-29.1 are met. 5

[¶7.] The adoption statutes within SDCL chapter 25-6 also support that

Petitioners can petition to adopt children within the custody of DSS. SDCL 25-6-11

requires a petitioner to notify DSS of a petition to adopt a child in its custody and

requires DSS to make a recommendation to the court as to the desirability of the

adoption. In addition, both SDCL 25-6-11 and 25-6-12 allow for DSS to appear in

adoption proceedings involving children in its custody. SDCL 25-6-11 allows DSS to

“appear in any procedure the same as the party in interest[.]”

[¶8.] We agree with Petitioners and the circuit court that if DSS has the

ability to control who may petition for adoption with the circuit court, SDCL 25-6-11

would be rendered meaningless. SDCL 25-6-11 provides:

Upon the filing of a petition for the adoption of a minor child the
petitioner therein shall notify the Department of Social Services,
by mailing to the department a copy of the petition. The
petitioner also shall notify the department of the date fixed for
hearing the petition, or mail to the department a copy of the
order fixing the date of the hearing. The department shall make
a recommendation as to the desirability of the adoption. The

5. SDCL 26-8A-29.1 provides in part:
Except under circumstances where placement was with another
relative of the child, any relative who has been denied adoptive
placement by the Department of Social Services may request a
hearing to determine if the placement was an abuse of
discretion. The request shall be filed with the circuit court
having jurisdiction pursuant to § 26-8A-29[.]

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department may appear in any procedure the same as the party
in interest, and may request a postponement of hearing on the
petition in the event more time is needed for its investigation.
This section only applies to a child in the custody of the
department.

(Emphasis added.) Providing DSS notice when a petition is filed to adopt a child

within its custody is consistent with the right of any person to adopt any minor

child. See SDCL 25-6-2. If DSS had the ability to prevent the filing of petitions to

adopt, then notice to the Department would be unnecessary. And DSS would not

need to request a postponement on the hearing to complete an investigation because

it would have had the time needed to investigate the case before approving the

petition for filing. Likewise, if DSS approval is a prerequisite to filing a petition

with the circuit court, a recommendation by DSS to the circuit court on the

desirability of the adoption would be a mere formality. Therefore, DSS’s

interpretation of the statutes and its administrative rule would grant it more

authority than the plain language of the statutes.

[¶9.] DSS concedes that “by its plain language, SDCL 25-6-11 would seem to

allow the Petitioners to seek to adopt A.A.B. and B.A.B. without the Department’s

consent[.]” Despite this, DSS argues that such an interpretation “is not supported

by the legislative history of SDCL 25-6-11.” However, “[r]esorting to legislative

history is justified only when legislation is ambiguous, or its literal meaning is

absurd or unreasonable. Absent these circumstances, we must give legislation its

plain meaning.” Jensen v. Turner Cty. Bd. of Adjustment, 2007 S.D. 28, ¶ 5, 730

N.W.2d 411, 413.

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[¶10.] DSS asserts that the ambiguity in SDCL 25-6-11 arises by examining

other statutes relating to the adoption of minor children. According to DSS, SDCL

25-6-12, SDCL 26-8A-29.1, and SDCL 26-4-9.1 require DSS’s approval of adoptions

of children within its custody. We disagree; these statutes are unambiguous and we

will not resort to legislative history to discern their meaning. Nothing within SDCL

26-8A-29.1 6 or SDCL 26-4-9.1 7 suggests that the consent of DSS is necessary for an

adoption of a child within its custody. SDCL 25-6-12 provides:

6. SDCL 26-8A-29.1 provides:
Except under circumstances where placement was with another
relative of the child, any relative who has been denied adoptive
placement by the Department of Social Services may request a
hearing to determine if the placement was an abuse of
discretion. The request shall be filed with the circuit court
having jurisdiction pursuant to § 26-8A-29 and shall be filed
within thirty days of written notification from the department
by regular mail to the relative’s last known address. The
hearing shall be held within thirty days of the filing of the
request for hearing and may be continued for not more than
thirty days upon good cause shown. The relative shall be
granted limited intervention only for the purpose of the
placement review hearing.
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, except as provided by this chapter and
under the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963,
inclusive), as amended to January 1, 2005.

7. SDCL 26-4-9.1 provides:
The Department of Social Services shall establish a program of
adoption services. The secretary of social services may adopt
reasonable and necessary rules for the operation of the program
of adoption services including:
(1) Program administration;
(continued . . .)
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Before the hearing on a petition for adoption, the person adopting
a child, the child adopted, and the other persons whose consent is
necessary, shall execute their consent in writing, and the person
adopting shall execute an agreement to the effect that the child
adopted shall be treated in all respects as his or her own. The
consent forms and the agreement of the person adopting shall be
filed with the court. At the time of the hearing on the petition,
the person adopting a child and the child to be adopted shall
appear in court or by other means as may be allowed by the
court. All persons whose consent is necessary, except the child
and the person adopting the child, unless a different means of
appearance is allowed by the court, may appear by a person
filing with the court a power of attorney, or a guardian may
appear on behalf of the child, or a duly incorporated home or
society for the care of dependent or neglected children may by its
authorized officer or agent, consent to the adoption of a child
surrendered to such home or society by a court of competent
jurisdiction. The Department of Social Services may appear in
court and consent to the adoption of a child surrendered to it by
any court of competent jurisdiction, or, if the department has
custody of a child by written agreement of a parent or parents
with power of attorney to consent to adoption, by the officer of
the department holding such power of attorney.

(Emphasis added.). DSS essentially argues that according to SDCL 25-6-12, it is a

“person whose consent is necessary.” However, those “persons whose consent is

necessary” are explicitly defined within the provisions of the chapter. See SDCL 25-

6-4 (Absent certain circumstances, “[n]o child may be adopted without the consent

of the child’s parents.”); SDCL 25-6-3 (“A married man not lawfully separated from

his wife cannot adopt a child without the consent of his wife, nor can a married
_________________________________________________
(. . . continued)
(2) Adoptive applications and placements;
(3) Investigations and studies;
(4) Qualifications for adoptive families;
(5) Postadoptive services;
(6) Protection of records and confidential information
required by statutory law to be held confidential; and
(7) Establishing reasonable fees consistent with the costs of
such services.

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woman, not thus separated from her husband, without his consent, provided the

husband or wife not consenting is capable of giving such consent.”). DSS is not a

person whose consent is necessary. Instead, the Department is separately

addressed in SDCL 25-6-12, which provides that DSS “may appear and consent to

the adoption[.]”

[¶11.] Contrary to DSS’s assertion, the statute’s language “may appear and

consent” does not require consent from DSS before the court may proceed on an

adoption matter. Instead, it allows DSS to assert its position; it could choose to

consent, or it could oppose the adoption at the petition hearing. See Matter of

Groseth Int’l, 442 N.W.2d 229, 231 (“Ordinarily the word ‘may’ in a statute is given

permissive or discretionary meaning. It is not obligatory or mandatory as is the

word ‘shall.’”). The effect of refusal to consent by DSS is not a bar to all proceedings

under SDCL chapter 25-6, but should be taken into consideration by the circuit

court pursuant to SDCL 25-6-2, which states: “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.” This interpretation harmonizes SDCL 25-6-12 with SDCL 25-6-11, which

requires the Department to make a recommendation as to the desirability of an

adoption pertaining to a child in its custody. See Huber, 2006 S.D. 96, ¶ 14, 724

N.W.2d at 179 (quoting State v. $1,010 in Am. Currency, 2006 S.D. 84, ¶ 8, 722

N.W.2d 92, 94) (“Statutes are to be construed to give effect to each statute so as to

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have them exist in harmony.”). It also ensures that the court receive the benefit of

DSS’s expertise.

[¶12.] Interpreting the statutes as DSS urges would grant DSS greater

protections than those given to biological parents. Under SDCL 25-6-4 parental

consent may be waived by the court under certain circumstances. No similar

provision exists to address waiver of DSS consent, which absence is appropriate

because DSS consent is not a prerequisite to adoption. If DSS controlled who could

petition the court for adoption or its approval was a prerequisite for granting

adoption, there would be little to no oversight of DSS’s decisions. Other

jurisdictions that require a child welfare agency’s approval of an adoption usually

also enable judicial review of an agency’s decision. In those jurisdictions, the court

may review whether the adoption is in the best interests of the child or whether the

agency’s consent is being withheld arbitrarily or unreasonably, as South Dakota

permits with certain adoption placements, SDCL 26-8A-29.1. See 2 C.J.S. Adoption

of Persons § 52 (2015). 8 Our interpretation is consistent with the plain language of

8. 2 C.J.S. Adoption of Persons § 52 explains:
Despite the statutory authorization granted to public agencies,
boards, or officials to give or withhold consent, the courts are
usually vested with discretion to allow an adoption without the
consent of the agency where the court deems that the welfare of
the child will be promoted by the adoption or where the objection
or refusal to consent to adoption by the particular board, agency,
or official is arbitrary or unreasonable. Similarly, the court in
adoption proceedings may have power to dispense with the
consent ordinarily required of a private custodial or placement
agency having control of the child where it deems such action
warranted by the best interests of the child.
(footnotes omitted.)

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the statutes and SDCL chapter 25-6’s main concern: the best interest of the child—

which is to be given “paramount consideration” in adoption proceedings. See SDCL

25-6-2.

Appellate attorney fees

[¶13.] Petitioners have moved this Court for their appellate attorney’s fees.

However, they have not cited authority that allows an award of attorney fees in an

adoption case. Therefore, we deny their request.

Conclusion

[¶14.] Troy and Twila Hansen have standing to initiate adoption proceedings

under SDCL chapter 25-6. DSS lacks statutory authorization to prevent petitions

for adoption of children in DSS’s custody from being filed with the circuit court.

And DSS is not a party whose consent is necessary before a circuit court may order

adoption of a child. Since this is an intermediate appeal challenging standing, we

do not address the merits; whether Petitioners meet the requirements to adopt

A.A.B. and B.A.B. We affirm.

[¶15.] GILBERTSON, Chief Justice, and ZINTER, WILBUR and KERN,

Justices, concur.

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