Tuesday, November 15, 2005
The South Dakota Supreme Court held that termination of parental rights actions are in the nature of a custody proceeding governed by the UCCJA. In this case, Mother and Father lived in Colorado. Father had been convicted of sexual assault and was imprisoned and mother was incapable of caring for their two children due to her drug addiction and other issues. Both sets of grandparents were vying for custody of the children. The Colorado court granted custody to the maternal grandparents, who lived in South Dakota. When Father was released from prison, both he and his parents filed an action in the Colorado courts for custody and visitation. Soon thereafter, the maternal grandparents filed an action in South Dakota for adoption and termination of Father's rights.
The maternal grandparents argued that South Dakota had jurisdiction because it was the only state that could grant the adoption (Colorado had no jurisdiction over adoption because the children no longer lived there). However, the South Dakota Supreme Court disagreed, noting that termination of parental rights must occur before an adoption can take place. The court held that, under the UCCJA, Colorado had continuing and exclusive jurisdiction over the case because termination of parental rights is a custody proceeding. Thus, maternal grandparents would be required to file an action for termination in Colorado first, and then, if successful, bring the action for adoption in South Dakota.
In the Matter of Adoption of H.L.C. and B.A.C., 2005 S.D. 110; 2005 S.D. LEXIS 172 (November 2, 2005)
Opinion on the web at http://www.sdjudicial.com/index.asp?category=opinions&nav=53&year=2005&month=11&record=1474 (Last visited November 14, 2005 bgf)