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.

AuthorNelsen, Derek Andrew

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.


    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 define it, South Dakota would prevent any inpingement of a parent's fundamental right to raise his or her own children while also upholding the procedural protections put in place through sound legal precedent. (28)


    D.F. was born on October 22, 1994. (29) D.F.'s father had left the family home in Illinois due to a strained marriage and unresolved legal issues and had gone to Camden, Arkansas, to stay at his mother's house. (30) Almost one year later on September 17, 1995, Mother took the couple's children, including D.F., to Arkansas to visit Father. (31) Following a physically violent encounter, Mother was taken into custody by the Camden City Police Department and arrested on an Arkansas warrant. (32) After being released from jail, Mother left her children and took a bus back to Naperville, Illinois. (33) Mother left D.F. and his younger sister in the care of Father and Paternal Grandmother. (34) Father obtained a divorce from Mother in Arkansas and had the decree served on Mother in Naperville, Illinois, at her parents' home. (35) Mother claimed to have never received notice of the divorce. (36) The divorce decree awarded Father custody of D.F. and his younger sister. (37)

    In 1999, D.F.'s father moved the family to South Dakota with Paternal Grandmother. (38) Father remarried and had another child while living in Mitchell, South Dakota. (39) In 2002, a petition was brought by the State of South Dakota through the Department of Social Services (DSS) alleging that D.F. was being abused by both his father and stepmother and was not receiving the proper care necessary for the treatment of his health problems. (40) Father was served personally with a petition for the abuse and neglect proceedings. (41) After minimal attempts to locate Mother, DSS served notice on her for the abuse and neglect proceedings by publication in the Mitchell Daily Republic. (42) The testimony at the evidentiary hearing indicated that the extent of the DSS's efforts to locate Mother were only to question Father about Mother's whereabouts and search South Dakota's child support registry. (43) As Mother had neither resided or paid child support in South Dakota nor known of the children's location, those attempts were unsuccessful. (44)

    On November 7, 2002, the circuit court entered a dispositional order terminating the parental rights of Mother and Father. (45) In the same way as the adjudicatory hearing, Father received notice of the proceeding personally and appeared at the hearing. (46) Again, Mother was served notice through publication in the Mitchell Daily Republic and was not present at the hearing. (47)

    Early in 2004, Mother received a collection notice on a telephone bill from South Dakota. (48) Upon investigation, Mother was informed that Father had used her social security number to obtain telephone services in South Dakota. (49) After receiving this information, Mother sought the services of a private investigator to research the whereabouts of D.F. and his sister. (50) The investigator eventually located the children and further discovered that Mother's parental rights had been terminated. (51)

    On May 21, 2004, Mother brought a motion to reopen the termination proceedings (52) in accordance with S.D.C.L. section 15-6-60(b). (53) An evidentiary hearing was held on the motion on July 28, 2004, and following that hearing the circuit court ordered the reopening of the disposition on the abuse and neglect action in order to reconsider new evidence related to the termination of Mother's parental rights. (54) Following the termination hearing, a number of review hearings were held on the matter. (55) On October 14, 2005, a full evidentiary hearing on the disposition of the case was scheduled to occur. (56) Prior to a full evidentiary hearing, however, the State of South Dakota, through the Davison County State's Attorney's Office, made a motion to quash the proceedings (57) in accordance with S.D.C.L. section 26-7A-108. (58) The circuit court decided that oral arguments were to take place on October 14, 2005, that S.D.C.L. section 267A-108 controlled the matter, and that the proceeding should never have been reopened. (59) The circuit court found no peculiar circumstances present that could have justified reopening the disposition of this matter. (60) After this ruling, Mother decided to file a notice of appeal. (61) On appeal, the South Dakota Supreme Court affirmed the ruling of the circuit court on both of the issues presented. (62)

    In upholding the circuit court's decision, the South Dakota Supreme Court found the inquiry into Mother's whereabouts as satisfactorily due and diligent to justify service by publication. (63) Stating that "while hindsight may always be used to fashion other conceivable methods of inquiry, this search was diligent because it was an inquiry that a reasonable person would have made, and it extended to the places where information was likely to be obtained." (64) The majority's opinion, authored by the Honorable Steven Zinter, relied heavily upon the precedent of Ryken...

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