The
SD Supreme Court handed down one decision this morning, holding inter alia:
- May one parent seek termination of the rights
of the other parent, absent a companion adoption proceeding?
INTEREST
OF I.A.D., L.J.D., and C.M.D., 2023 S.D. 36: Mother sought termination of
father’s parental rights pursuant to SDCL 25-5A, but did so unilaterally and
not in the context of a companion adoption proceeding. Mother asserted that Father’s consent is
subject to waiver pursuant to SDCL 25-6-4.
(which is lodged in the “Adoption” sub-chapter). The trial court denied relief, holding that
the rights of the father could not be terminated in the absence of an adoption
proceeding. The trial court also held
(alternatively) that Mother had not satisfied the requirements of SDCL 25-5A by
failing to establish waiver of consent and failing to show that termination to
be in the best interests of the child.
This result is affirmed by the SD Supreme Court, with an opinion
authored by Justice DeVaney. Affirmance
based upon the alternative basis of the trial court is supported by all five
justices. But, there is a concurring
opinion filed by Justice Salter and supported by Justice Myren.
The
critical issue which divides the Justices is set forth as follows:
[¶16.] This Court has not yet
been asked to interpret whether the 1995 amendment to SDCL 25-5A-18 indicates
legislative intent to allow a parent to request the involuntary termination of
the parental rights of another parent without a corresponding adoption.
The
three-justice majority of the Court answers this question as follows:
[¶25.] Based on our review of
SDCL chapter 25-5A, we conclude that the termination of a parent’s parental
rights on a petition filed by the other parent under SDCL chapter 25-5A is
authorized when there is consent by the respondent parent, with or without a
corresponding adoption, or when the consent of a parent is deemed waived
pursuant to SDCL 25-6-4 to facilitate an adoption. This, of course, assumes
that in both instances, all the other provisions of chapter 25-5A are met.
The
view of the two concurring justices is as follows:
[¶34.] Fundamentally, Mother
does not have a statutory right of action to seek the termination of Father’s
parental rights without a corresponding effort to transfer those rights to
another person or an agency who would, in turn, receive them, as explained
above.
Finally,
it should be noted that the last sentence of ¶1 of the Court’s opinion (“… we
affirm the circuit court’s determination that SDCL chapter 25-5A cannot be used
to involuntarily terminate a parent’s rights without a corresponding adoption.”) appears to be inconsistent with actual
holding of the three-justice majority as set forth in ¶25, as quoted above.
This
decision may be accessed at
