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299 N.W.2d 803
(Cite as: 299 N.W.2d 803)
Supreme Court of South Dakota.
The PEOPLE of the State of South Dakota in the
INTEREST OF P. M., a Child, and Concerning A.
M., Mother, and R. J., Father.
No. 12615.
Argued Sept. 14, 1979.
Decided Dec. 17, 1980.
Action was brought to terminate parental rights.
The Seventh Judicial Circuit Court, Pennington
County, Frank E. Henderson, J., found that consent
to adoption signed by mother was involuntary,
mother was presently fit to have the care, custody,
and control of child and father's parental rights
were terminated, and child appealed. The Supreme
Court, Jones, Circuit Judge, held that: (1) there was
no error in permitting state to dismiss dependency
action in Tripp County and commence new action
in Pennington County; (2) evidence was sufficient
to support trial court's finding that mother's consent
to adoption was obtained under duress and there-
fore involuntary; and (3) child was dependent with-
in meaning of statute defining that term.
Reversed and remanded.
West Headnotes
[1] Appeal and Error 30 994(3)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and
Findings
30XVI(I)1 In General
30k994 Credibility of Witnesses
30k994(3) k. Province of Trial
Court. Most Cited Cases
Appeal and Error 30 1008.1(5)
30 Appeal and Error
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 1
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and
Findings
30XVI(I)3 Findings of Court
30k1008 Conclusiveness in General
30k1008.1 In General
30k1008.1(5) k. Clearly Erro-
neous Findings. Most Cited Cases
In reviewing trial court's decision, Supreme Court
is bound by rule of law that findings of fact shall
not be set aside unless clearly erroneous, and due
regard shall be given to opportunity of trial court to
judge credibility of witnesses. SDCL 15-6-52(a).
[2] Infants 211 252
211 Infants
211VIII Dependent, Neglected, and Delinquent
Children
211VIII(F) Review
211k248 Review
211k252 k. Questions of Law and Fact.
Most Cited Cases
Decision of trial court with respect to termination
of parental rights can be reversed only when Su-
preme Court, after review of all evidence, is left
with definite and firm conviction that mistake has
been committed by trial court.
[3] Infants 211 230.1
211 Infants
211VIII Dependent, Neglected, and Delinquent
Children
211VIII(E) Judgment; Disposition of Child
211k230 Modification, Vacation, or Ex-
tension of Order or Placement
211k230.1 k. In General. Most Cited
Cases
(Formerly 211k230)
No due process hearing is required before state as
legal custodian may move child from one foster
home to another in dependency cases. SDCL
26-7-1.1.

299 N.W.2d 803
(Cite as: 299 N.W.2d 803)
[4] Infants 211 202
211 Infants
211VIII Dependent, Neglected, and Delinquent
Children
211VIII(D) Proceedings
211k202 k. Dismissal. Most Cited Cases
In view of fact that child was moved to foster home
in Pennington County, trial court did not err in per-
mitting state to dismiss dependency action in Tripp
County and commence new action in Pennington
County.
[5] Infants 211 178
211 Infants
211VIII Dependent, Neglected, and Delinquent
Children
211VIII(C) Evidence
211k175 Weight and Sufficiency
211k178 k. Termination of Parental
Rights. Most Cited Cases
In action to terminate mother's parental rights, evid-
ence was sufficient to support trial court's finding
that mentally retarded mother's consent to adoption
was obtained under duress and therefore involun-
tary. SDCL 26-8-54.
[6] Infants 211 154.1
211 Infants
211VIII Dependent, Neglected, and Delinquent
Children
211VIII(B) Subjects and Grounds
211k154 Dependent and Neglected Chil-
dren; Conflict with Parental Rights
211k154.1 k. In General. Most Cited
Cases
(Formerly 211k154)
Where mother, a patient at state hospital, could not
keep child with her at hospital, no other family
members came forward to care for child, state case-
workers properly placed child in foster home and
child had no permanent home and was not domi-
ciled with his mother through no fault of hers, child
was “dependent” within meaning of statute defining
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
that term. SDCL 26-8-6(5).
[7] Infants 211 203
211 Infants
211VIII Dependent, Neglected, and Delinquent
Children
211VIII(D) Proceedings
211k203 k. Hearing in General. Most
Cited Cases
At dispositional hearing in dependency proceeding,
trial court should balance fundamental rights of
mother with best interests of child and public. SD-
CL 26-8-22.11.
*803 William A. Wyman, Rapid City, for appellant
child.
Mary Ellen McEldowney of Black Hills Legal Ser-
vices, Inc., Rapid City, for appellee mother; Dennis
C. Whetzal of Black Hills Legal Services, Inc.,
Rapid City, on brief.
JONES, Circuit Judge.
In February 1978, an amended petition alleging that
P. M., then almost seven years old, was a dependent
and neglected child was filed in Pennington
County. The *804 child's mother, A. M., appeared
with counsel, and at the request of the State, coun-
sel was appointed to represent the child. No appear-
ance was made by the natural father, R. J.
From an order dismissing the petition, the child ap-
pealed. We reverse and remand for a dispositional
hearing.
FACTS
In 1955, when she was ten years of age, the mother
was determined to have an I.Q. of 54, was classi-
fied as mentally retarded, and was placed in the
Redfield State Hospital and School (State Hospital).
In 1969, she was determined to be a fit candidate
for vocational rehabilitation, and was later placed
as an employee at a nursing home in Sturgis. Al-

299 N.W.2d 803
(Cite as: 299 N.W.2d 803)
though her work there was satisfactory, she became
pregnant and was returned to the State Hospital.
Later she was sent to a nursing home in Parkston
because the State Hospital had no facilities for
pregnant patients.
The mother gave birth to P. M., a son, on March 1,
1971, at the Public Health Service Indian Hospital
in Wagner. While at the hospital, she signed a doc-
ument which (1) surrendered custody of the child to
the State, (2) waived all right to his custody and
control and (3) consented to his adoption.
The mother was then returned to the State Hospital.
Custody of the child was taken by state casework-
ers, and he was placed in a foster home in Winner
on March 15, 1971, where he remained for six and
one-half years.
The state child welfare workers had misgivings
about the validity of the consent to adoption signed
by the mother because of her mental capacity, and
apparently decided not to proceed with adoption
proceedings based on this consent to adoption.
On April 26, 1972, a petition was filed in Juvenile
Court in Tripp County, alleging that P. M. was a
dependent child because of A. M.‘s status as a pa-
tient at the State Hospital, and requesting that her
parental rights be terminated and that a guardian be
appointed for P. M. with authorization to consent to
adoption. An attorney was appointed for the mother
in this action, and she was taken to Winner for a
hearing on June 1, 1972. For reasons which do not
appear in the record, this hearing was not held, and
no further proceedings were ever scheduled in this
Tripp County action.
In August 1972, the mother was released from the
State Hospital, and she went to Rapid City, where
she lived with her mother and was rather steadily
employed as a dishwasher in cafes.
From time to time, the mother contacted lawyers
about getting custody of P. M., but no changes oc-
curred in the case until October 16, 1977, when P.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
M. was taken from the Winner foster home and
placed in a transitional foster home in Rapid City
by caseworkers for the South Dakota Department of
Social Services. The reason for the move was to fa-
cilitate visitation between the mother and son, with
the possibility that the mother would get custody of
P. M. The Tripp County action was dismissed on
motion of the State.
At the request of his social worker, P. M. was seen
by a psychiatrist commencing December 1, 1977.
A. M. was also evaluated. The psychiatrist was of
the opinion that A. M. was moderately retarded
with an I.Q. below 65, and that she was unable to
adequately care for P. M.
P. M. was a normal child, but needed some special
care and regular medication. The visits between A.
M. and P. M. were strained at the beginning but im-
proved somewhat as time went on. The adjudicat-
ory hearing was held intermittently between April
6, 1978 and June 29, 1978. By June 29, P. M. had
become more comfortable visiting in A. M.‘s home,
and was on occasion staying for overnight visits.
TRIAL COURT ACTION
At the conclusion of the adjudicatory hearing, the
mother moved for dismissal of the amended peti-
tion under SDCL 15-6-41(b) on the grounds that
her consent to adoption was obtained under duress
and *805 was therefore involuntary, and that, be-
cause she had never had custody of the child, he
could not be adjudicated a dependent and neglected
child.
The trial court found that the consent to adoption
was signed by A. M. under duress and was there-
fore involuntary; that A. M. was presently fit to
have the care, custody and control of P. M.; that the
father had abandoned P. M. and that his rights
should therefore be terminated; and that the
amended petition should be dismissed. Findings of
fact and conclusions of law were entered as re-
quired by SDCL 15-6-41(b).

299 N.W.2d 803
(Cite as: 299 N.W.2d 803)
Both the State and P. M. initially appealed, but the
State thereafter dismissed its appeal. No appeal was
taken from that part of the order terminating the
parental rights of the father.
SCOPE OF REVIEW
[1][2] In reviewing the trial court's decision, we are
bound by the rule of law that findings of fact shall
not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial
court to judge the credibility of the wit-
nesses. SDCL 15-6-52(a). The decision can be re-
versed only when this Court, after a review of all
the evidence, is left with a definite and firm convic-
tion that a mistake has been committed by the trial
court. Matter of J.M.V.D., 285 N.W.2d 853
(S.D.1979); People In Interest of T.C., etc., 278
N.W.2d 452 (S.D.1979); Matter of V.D.D., 278
N.W.2d 194 (S.D.1979).
VENUE
Appellant contends that the Pennington County
court did not have jurisdiction, (1) because the
State should not have removed P. M. from the
Tripp County foster home without a due process
hearing in the pending Tripp County action to de-
termine if the move was in his best interest, and (2)
because the Tripp County action should not have
been dismissed without a due process hearing at
which P. M. was individually represented by coun-
sel.
[3] We find no basis in either our statutes or prior
holdings for the position that a due process hearing
is required before the State as legal custodian may
move a child from one foster home to another in
dependency cases. We hold that a hearing is not re-
quired before moving a child from one foster home
to another.
[4] Venue in dependency cases is governed by the
provisions of SDCL 26-7-1.1. [FN1] In view of the
fact that P. M. was moved to a foster home in Pen-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
nington County, we find no error in permitting the
State to dismiss the Tripp County action and com-
mence a new action in Pennington County.
FN1. SDCL 26-7-1.1 provides in part:
Proceedings in cases brought under the
provisions of chapter 26-8 shall be com-
menced in the county in which the child
resides or is present, or in which an al-
leged violation of law, ordinance, or
court order took place.
CONSENT TO ADOPTION
[5] Appellant contends that the trial court erred in
finding that the consent to adoption signed by A.
M. on March 15, 1971, was obtained under duress
and was therefore involuntary. State officials had
viewed this consent as suspect from the beginning,
and were unwilling to ever proceed in reliance upon
it, primarily because of A. M.‘s mental capacity.
Without detailing the circumstances surrounding
the execution of the consent to adoption, there was
evidence in the record to support the trial court's
finding, and it is not clearly erroneous. SDCL
26-8-54; Matter of J.M.V.D., supra.
ADJUDICATORY ISSUES
Hearings on petitions alleging that a child is a neg-
lected or dependent child as defined by SDCL
26-8-6 are by statute bifurcated. In Re P.L.H., 86
S.D. 564, 199 N.W.2d 587 (1972); People in In-
terest of K.S., 515 P.2d 130 (Colo.App.1973).
The first hearing is an adjudicatory hearing, at
which petitioner has the burden of *806 proving by
a preponderance of the evidence that the child be-
fore the court is a neglected or dependent child as
defined by SDCL 26-8-6.[FN2] If this is not
proven, then the petition is dismissed and the child
and his parents, guardian or other custodian is dis-
charged from any restriction or other previous tem-
porary order. SDCL 26-8-22.9. If the allegations of
the petition are supported by a preponderance of the

299 N.W.2d 803
(Cite as: 299 N.W.2d 803)
evidence, then findings of fact and conclusions of
law supporting an order of adjudication must be
entered and a dispositional hearing held. SDCL
26-8-22.10.
FN2. Procedure in adjudicatory hearings
must be in accordance with the law and
rules of civil procedure, while disposition-
al hearings may be less formal. SDCL
26-8-30. Also, see SDCL 26-8-32.5 for
evidence that may be admitted in adjudic-
atory hearings.
The issue at a dispositional hearing is the question
of the proper disposition best serving the interests
of the child and the public. SDCL 26-8-22.11.
In general, the adjudicatory hearing looks to the
past, while the primary focus of the dispositional
hearing is the future.
There are some cases where the distinction between
the adjudicatory hearing and the dispositional hear-
ing is relatively unimportant, and it is proper in
those cases for the parties, with the consent of the
court, to stipulate to combine the two hearings. In
re K.D.E., 87 S.D. 501, 210 N.W.2d 907 (1973).
The most common illustration of this would be
cases of alleged aggravated child abuse, where the
same evidence would be admissible in both hear-
ings.
In most cases, the distinctions between adjudicatory
and dispositional hearings are important, and a fail-
ure to keep those distinctions in mind can cause the
wrong issues to be litigated in the adjudicatory
hearing. This case is such an example. No criticism
is intended of either the trial court or counsel, be-
cause the unusual fact situation led naturally to the
problem. The amended petition alleged, among oth-
er things, that “A. M. was and presently is unable to
attend to the needs of P. M.” As a result, the
primary issue tried at the adjudicatory hearing was
whether or not A. M. was a fit person to have cus-
tody of P. M., rather than the proper issue of wheth-
er P. M. was a neglected or dependent child under
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
SDCL 26-8-6.
NEGLECTED OR DEPENDENT CHILD [FN3]
FN3. In general usage, the words
“neglected” and “dependent” have differ-
ent meanings, and are separately defined in
some state statutes. However, our South
Dakota statute, SDCL 26-8-6, treats them
as synonymous, and this seemed to create
some confusion in the trial proceedings.
SDCL 26-8-6 provides in part: [FN4]
FN4. Taken from the law of Colorado,
Colo.Rev.Stat. s 19-1-103(20). Similar lan-
guage is used in the Ohio law defining
“neglected child,” Ohio Rev.Code Ann. s
2151.03, and in defining “dependent
child,” Ohio Rev.Code Ann. s 2151.04.
In this chapter unless the context otherwise plainly
requires “neglected or dependent child” means a
child:
(1) Whose parent, guardian, or custodian has aban-
doned him or has subjected him to mistreatment or
abuse;
(2) Who lacks proper parental care through the ac-
tions or omissions of the parent, guardian, or cus-
todian;
(3) Whose environment is injurious to his welfare;
(4) Whose parent, guardian, or custodian fails or re-
fuses to provide proper or necessary subsistence,
education, medical care or any other care necessary
for his health, guidance, or well-being; or
(5) Who is homeless, without proper care, or not
domiciled with his parent, guardian, or custodian
through no fault of his parent, guardian or custodi-
an.
[6] The evidence in this case establishes that A. M.,
 Page 6
299 N.W.2d 803
(Cite as: 299 N.W.2d 803)

as a patient at the State Hospital could not keep the People in Interest of P. M.
child with her at the hospital. No other family 299 N.W.2d 803
members came forward to care for the child. The
State caseworkers properly placed the child in a END OF DOCUMENT
foster home. Thereafter, the child had no permanent
home and was not domiciled *807 with his mother
through no fault of hers. This condition continued
to the time of the adjudicatory hearing. We hold
that these facts caused P. M. to be a dependent
child within the meaning of SDCL 26-8-6(5). The
trial court erred in granting the motion to dismiss
the petition.

REMAND

Our ruling requires that this case be remanded to

the trial court for a dispositional hearing, pursuant
to SDCL 26-8-22.10 and 26-8-22.11.

[7] At the dispositional hearing, the trial court

should balance the fundamental rights of the mother
with the best interests of the child and the public.
Matter of B.E., 287 N.W.2d 91 (S.D.1979); Matter
of J.M.A, 286 N.W.2d 324 (S.D.1979); Matter of
N.J.W., 273 N.W.2d 134 (S.D.1978).

We express no opinion whatever as to the disposi-

tion that should ultimately be made in this case. In
making its decision, the trial court should consider
all the evidence presented at the dispositional hear-
ing, as well as the evidence on dispositional issues
which was presented at the adjudicatory hearing.
This would include evidence of the care given P.
M. by A. M. for the period that she has been caring
for him since the amended petition was dismissed
by the trial court. In Matter of T.M.T., 273 N.W.2d
199 (S.D.1979).

The order of the trial court dismissing the amended

petition is reversed, and the matter is remanded to
the trial court for a dispositional hearing.

All the Justices concur.

JONES, Circuit Judge, sitting for HENDERSON,
J., disqualified.
S.D., 1980.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.