Continuances Based on Speculative Compassionate Release and Limits on Appellate Judicial Notice in Termination Proceedings (Interest of A.L. and D.L.)

1. Introduction

In Interest of A.L. and D.L., 2026 S.D. 46, the South Dakota Supreme Court reviewed a narrow procedural challenge to a termination-of-parental-rights judgment. N.W. (Mother) did not contest the merits of the circuit court’s termination decision. Instead, she argued the circuit court abused its discretion by denying continuances sought to await a federal ruling on her pending motion for compassionate release from a lengthy federal sentence.

The case arose after A.L. and D.L. were removed from Father’s home following reports of violence and severe instability. Mother had been incarcerated from the outset of the state proceeding through termination. The key appellate issues were: (1) whether the Supreme Court should take judicial notice of a post-termination federal order granting Mother’s compassionate release, and (2) whether the circuit court abused its discretion in denying continuances premised on the possibility of Mother’s early release.

2. Summary of the Opinion

The Court affirmed. It held that (a) it would not take judicial notice of the federal district court’s post-appeal compassionate release order because doing so would effectively introduce new, disputed, and procedurally mismatched material into an appellate record confined to what was before the circuit court; and (b) the circuit court acted within its discretion in denying continuances where Mother’s release was uncertain and, even if granted, would not equate to immediate parental fitness or timely reunification consistent with the children’s need for stability and permanency.

3. Analysis

3.1. Precedents Cited

  • In re A.S., 2000 S.D. 94, ¶¶ 22, 25, 614 N.W.2d 383, 387 (per curiam)
    Role in this case: The circuit court relied on In re A.S. for the proposition that courts should not “speculate” about an incarcerated parent’s release and must also consider the real-world need for a transition period after release before a child can safely return. The Supreme Court endorsed that approach, treating it as directly applicable to continuances based on uncertain custodial changes.
  • State v. Rederth, 376 N.W.2d 579, 580 (S.D. 1985)
    Role in this case: Cited to reinforce that appeals are decided on the record from the trial court and that the Court “cannot take new evidence on appeal, . . . or take judicial notice of facts subject to reasonable dispute.” This anchored the refusal to use judicial notice as a backdoor method to add post-judgment developments to the appellate record.
  • Strong v. Gant, 2014 S.D. 8, ¶ 23, 843 N.W.2d 357, 363
    Role in this case: Used to reject Mother’s attempt to rely on an appendix as a substitute for a settled record. The case supports a strict appellate-record discipline: parties must ensure the record contains what is necessary for appellate review.
  • Mendenhall v. Swanson, 2017 S.D. 2, ¶ 9, 889 N.W.2d 416, 419
    Role in this case: Provided the Court’s modern definition and limits of judicial notice—particularly the distinction between adjudicative facts and other matters—and emphasized that judicial notice is “merely a substitute for the conventional method of taking evidence,” not a mechanism to reopen or expand the record with subsequent events.
  • In re Est. of Flaws, 2012 S.D. 3, ¶ 22 n.5. 811 N.W.2d 749, 754 n.5
    Role in this case: Recognized that courts can judicially notice other courts’ decisions, even those issued after the decision under review, but only if they have a “direct relation to matters at issue.” The Court concluded the later federal order did not directly relate to evaluating whether the circuit court abused its discretion based on what it knew at the time.
  • People ex rel. L.N., 2022 S.D. 8, ¶¶ 41, 44, 48, 970 N.W.2d 531, 544–46
    Role in this case: Supplied the abuse-of-discretion standard for continuances and, critically, the child-centered principle that delays causing uncertainty can be contrary to best interests. The Court treated permanency and stability as legitimate, weighty reasons to deny continuances in child-protection cases.
  • Jessop v. Combs, 2025 S.D. 71, ¶ 30, 30 N.W.3d 1, 9
    Role in this case: Reinforced deference to trial courts on continuances, reversible only for “the most cogent reasons.” This supported affirmance given the circuit court’s articulated concerns and the speculative nature of Mother’s requested delay.
  • In re Z.Z., 494 N.W.2d 608, 610 (S.D. 1992)
    Role in this case: Reaffirmed a foundational child-welfare maxim: children are entitled to stability now and need not wait for parental rehabilitation that may never occur. This directly undercut Mother’s premise that the case should pause for a hoped-for release and subsequent reunification steps.
  • Anderson v. Streeter, 2026 S.D. 17, ¶ 18, 33 N.W.3d 51, 56
    Role in this case: Identified four traditional continuance considerations (prejudice to the opposing party; motives/dilatory tactics; prejudice to the movant; prior continuances/delays). Mother argued these were not properly applied. The Court acknowledged doctrinal tension in earlier cases about whether the factors are mandatory, but held that—preservation issues aside—the core question remained whether the circuit court’s choice fell within permissible discretion, especially given the primacy of children’s best interests in this context.
  • In re Adoption of C.T.E., 485 N.W.2d 591, 594 (S.D. 1992) and Meadowland Apartments v. Schumacher, 2012 S.D. 30, ¶ 17, 813 N.W.2d 618, 623
    Role in this case: These decisions were contrasted with later cases because they describe the continuance factors in mandatory terms (“must consider”), illustrating why Mother framed the denial as legal error.
  • VOR, Inc. v. Est. of O'Farrell, 2025 S.D. 2, ¶ 36, 17 N.W.3d 252, 261–62
    Role in this case: Provided the more flexible formulation (“should” consider) and the concept that the inquiry is whether the circuit court was “correctly oriented” to appropriate considerations. The Court adopted that pragmatic approach here.
  • In re Dorsey & Whitney Tr. Co., 2001 S.D. 35, ¶ 19, 623 N.W.2d 468, 474 (quoted via Mendenhall)
    Role in this case: Helped define “adjudicative facts” for judicial notice analysis, supporting the conclusion that the federal compassionate release litigation— involving different parties and occurring later—did not fit neatly as an adjudicative fact in this appeal.

3.2. Legal Reasoning

A. Judicial notice cannot be used to retrofit the appellate record with post-judgment developments

The Court grounded its judicial-notice holding in a combined reading of the appellate-record rule (SDCL 15-26A-47) and the evidence rule on judicial notice (SDCL 19-19-201), as explained in State v. Rederth and Mendenhall v. Swanson.

Although In re Est. of Flaws recognizes that a court may take notice of other courts’ decisions, the South Dakota Supreme Court emphasized that such decisions must have a “direct relation” to the issue on appeal. Here, the issue was whether the circuit court abused its discretion at the time it denied continuances. The later federal order did not illuminate whether the circuit court’s earlier choice was unreasonable; it instead risked shifting the appellate inquiry into an impermissible hindsight review.

The Court also identified a practical mismatch: the federal compassionate release proceeding was not litigated by the same parties (the State was not a party to the federal criminal case), and importing federal findings would create confusion about institutional roles—state courts decide parental fitness and children’s best interests in state abuse-and-neglect matters, even if federal courts may consider family circumstances for sentencing-modification purposes.

B. Denial of continuances was a permissible exercise of discretion given uncertainty, time, and the children’s best interests

Under People ex rel. L.N. and Jessop v. Combs, the Court framed the decision as a deferential abuse-of-discretion review. The circuit court had identified concrete reasons to deny delay: the case had been pending about fifteen months; Mother’s projected release date was years away; the third compassionate release motion was uncertain as to timing and outcome; and the children—described as having significant mental-health and behavioral needs—required stability and permanency.

Critically, the Court accepted the circuit court’s rejection of Mother’s implicit syllogism: compassionate release → immediate reunification. Even if Mother were released promptly, the circuit court found the children could not be placed with her immediately because she would need to demonstrate sobriety, obtain and maintain stable housing, provide a safe home, and navigate prolonged federal supervision with attendant risk of reincarceration. This reasoning aligned with In re Z.Z. and People ex rel. L.N.: children need a stable environment now and need not wait while a parent attempts to become ready.

C. The “continuance factors” debate did not alter the outcome

Mother argued the circuit court failed to apply the four-factor framework recited in Anderson v. Streeter. The Court acknowledged that South Dakota cases have used inconsistent language (mandatory vs. advisory) regarding these considerations, citing In re Adoption of C.T.E., Meadowland Apartments v. Schumacher, VOR, Inc. v. Est. of O'Farrell, and Anderson.

Without definitively resolving that doctrinal tension, the Court effectively held that the determinative question remained whether the circuit court chose within the permissible range of options and was “correctly oriented” to relevant considerations—including, in this type of case, the children’s best interests and the harms of continued limbo.

3.3. Impact

  • Limits strategic delay tied to collateral federal proceedings. Parents facing termination will have a harder time obtaining continuances based solely on pending compassionate release or other uncertain collateral relief. The decision authorizes trial courts to deny continuances where timing and outcome are speculative.
  • Reinforces permanency as a central lens for procedural rulings in child-protection cases. By relying on People ex rel. L.N. and In re Z.Z., the Court treats stability and permanency not merely as merits concepts but as drivers of procedural discretion (e.g., whether to delay proceedings).
  • Constrains appellate efforts to use judicial notice as a “record-expander.” The refusal to judicially notice the post-judgment federal order signals that appellate courts will resist attempts to convert judicial notice into a mechanism for incorporating new factual narratives that were not before the circuit court.
  • Clarifies institutional roles. The decision implicitly cautions against importing federal compassionate-release “best interest” or caregiver suitability observations into state termination litigation, where the governing standards and decision-makers differ.

4. Complex Concepts Simplified

Continuance
A postponement of a hearing or trial. In termination proceedings, a continuance is not automatic; it depends on discretion and, importantly, how delay affects the child.
Abuse of discretion
A highly deferential appellate standard. The question is not whether the appellate court would have ruled differently, but whether the trial court’s decision was outside the range of reasonable choices given the evidence and governing considerations.
Judicial notice
A rule allowing courts to accept certain facts without evidence when they are not reasonably disputable (for example, facts generally known or readily verifiable). This case emphasizes judicial notice is not meant to inject new, outcome-shaping post-judgment developments into the appellate record.
Adjudicative facts vs. legislative facts
Adjudicative facts are the “who, what, when, where, and why” of the parties’ dispute. Legislative facts are broader policy or contextual facts. The Court treated the later federal order as ill-suited for judicial notice in this appeal because it did not function as a simple adjudicative fact about the state proceeding.
Compassionate release (18 U.S.C. § 3582(c)(1)(A)(i))
A federal sentencing-modification mechanism permitting early release for “extraordinary and compelling reasons.” The South Dakota Supreme Court held that the mere pendency (or even later granting) of compassionate release does not compel delay of a state termination case or establish immediate parental fitness.
Permanency and stability
In child-welfare cases, courts prioritize timely, stable placements for children. Delays that keep children in uncertainty can conflict with their best interests.

5. Conclusion

Interest of A.L. and D.L. establishes two practical guideposts for South Dakota child-protection litigation and appeals: (1) appellate judicial notice will not be used to import post-judgment collateral rulings—such as a later federal compassionate release order—into an appeal challenging a trial court’s earlier discretionary decision; and (2) trial courts act within their discretion when they deny continuances premised on uncertain release prospects, especially where delay would prolong instability and where release would not equate to immediate reunification consistent with the children’s best interests.