In re D.F.: the South Dakota Supreme Court misses an opportunity to establish an appropriate due diligence standard when serving notice by publication in parental rights termination proceedings.

Extract

---

In re D.F.: the South Dakota Supreme Court misses an opportunity to establish an appropriate due diligence standard when serving notice by publication in parental rights termination proceedings.

In a 4-1 decision, the South Dakota Supreme Court held in In re D.F. that minimal investigation into the whereabouts of an out-of-state parent was sufficient to satisfy a standard of due diligence and therefore met the constitutional requirements for notice by publication in a parental rights termination proceeding. Such a low threshold for a finding of due diligence does not offer enough protection for absent parents, and moreover, this case sets precedent which allows for parents to be deprived of their fundamental right to their children without due process of law.

I. INTRODUCTION

The United States Supreme Court has consistently recognized the fundamental liberty interest parents have in raising their children. (1) Consequently, certain procedural protections exist under the Fourteenth Amendment when parental rights are subject to termination. (2) The rationale for additional safeguards is based on the premise that "persons faced with forced dissolution of their parental rights have a more critical need for procedural protections...." (3) Exceptions exist in South Dakota, however, that can undermine these procedural protections. (4) When a parent cannot be located, notice may be served by publication pursuant to S.D.C.L. section 26-7A-48. (5) As a result, South Dakota's statutory requirement to meet the threshold for serving notice by publication is lower than the standard required by the United States Supreme Court. (6)

South Dakota law permits service by publication in instances where a party cannot be found. (7) The language of this statute, "on inquiry [one] cannot be found," stands in contrast to the decision recently handed down by the South Dakota Supreme Court. (8) South Dakota case law has required a showing of "due diligence" in the attempt to locate a missing party before the opposition may commence service through publication. (9)

The United States Supreme Court has defined due diligence as a search that is "reasonably calculated, under all the circumstances, to apprise interested parties of the action and afford them the opportunity to be heard." (10) A showing of due diligence is an inherently flexible standard, as subjective determinations must be made by individual judges when deciding if such a threshold has been met. (11)

Because South Dakota does not have a statutorily required showing of due diligence or consistent application of case law, greater risk exists for parents to have their parental rights terminated without ever being apprised of a proceeding against them. (12) This possibility is the result of the State not having to consistently meet a defined threshold for due diligence in attempting to locate the affected person. (13) Adequately defining due diligence is important because it ensures that the State will thoroughly seek out the absent person in a uniform way, thereby reducing the potential risks involved. (14)

In re D. F (15) presented the South Dakota Supreme Court with the opportunity to clarify what constitutes due diligence in a parental rights termination proceeding. (16) The court's ultimate decision did not articulate what constitutes due diligence but simply declared that due diligence existed and rendered notice by publication an acceptable form of service. (17) The court did not specify definitive actions, procedures, or measures to be followed in future cases to meet such an important standard. (18)

By not explicitly defining what qualifies as due diligence or articulating a consistent standard for it, the South Dakota Supreme Court missed an opportunity to advance a more concrete definition of the due diligence requirement. (19) The adoption of a consistent standard would improve the law in South Dakota by establishing a clear threshold for what constitutes due diligence in parental termination proceedings. (20) The recognition of consistent standards to be followed in establishing due diligence would provide greater protection for South Dakota parents' fundamental rights in regard to their children, as required by the United States Supreme Court. (21)

This note will first examine the facts and procedure of In re D.F., (22) discuss the background relating to service by publication, (23) and analyze the unique circumstances surrounding serving notice by publication in parental rights proceedings. (24) It will then examine South Dakota's recognition of the due diligence standard. (25) Additionally, this note will identify and clarify how the standard of due diligence in serving notice by publication can have continued validity in South Dakota. (26) Finally, this note will illustrate how South Dakota would be better served by explicit adoption of a consistent standard for the showing of due diligence before allowing notice by publication in parental rights proceedings. (27) By requiring a showing of due diligence and establishing consistent parameters that ...

See the full content of this document

---