People, in Interest of Daj

#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 nine-

year-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 respondents-
appellants 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).
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