Waiver by Conduct of a Parent’s Statutory and Due-Process Right to Appointed Counsel in South Dakota Termination Proceedings

Precedents Cited

1) Due process framework for counsel in TPR matters

• Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18 (1981): The Court relied on Lassiter for the proposition that there is not a categorical federal constitutional right to counsel in every parental termination proceeding. Lassiter also supplies the analytical approach (via Mathews) for assessing when due process requires counsel.
• Mathews v. Eldridge, 424 U.S. 319 (1976): Cited as the three-factor balancing test Lassiter applies to due-process determinations (private interests, risk of erroneous deprivation and value of safeguards, and governmental interests).
• Santosky v. Kramer, 455 U.S. 745 (1982): Quoted for the core principle that termination of the parent-child relationship must be accomplished through procedures meeting due process requirements.
• People in Int. of L.N., 2022 S.D. 8, 970 N.W.2d 531: Used to show South Dakota’s own application of the Mathews/Eldridge due-process approach in termination proceedings.

2) South Dakota standards of review and statutory interpretation

• Matter of Snaza Fam. Tr., 2018 S.D. 23, 909 N.W.2d 719, and Daily v. City of Sioux Falls, 2011 S.D. 48, 802 N.W.2d 905: Cited for de novo review of due-process claims.
• Argus Leader v. Hagen, 2007 S.D. 96, 739 N.W.2d 475: Cited for de novo review of statutory interpretation.
• Long v. State, 2017 S.D. 78, 904 N.W.2d 358: Invoked for the plain-language approach to clear statutes—used in Father’s argument that SDCL 26-7A-31 required appointment upon request.

3) Withdrawal of counsel and disruption to proceedings

• State v. Abraham-Medved, 2024 S.D. 14, 4 N.W.3d 436, and State v. Iron Necklace, 430 N.W.2d 66 (S.D. 1988): Address standards governing motions to withdraw (good cause; no unreasonable disruption). Although Father tried to frame the issue as an erroneous withdrawal, the Court noted he did not meaningfully contest “good cause” or disruption; his real claim was entitlement to new counsel.

4) Waiver vs. forfeiture doctrine and misconduct-based loss of rights

• United States v. Olano, 507 U.S. 725 (1993), and State v. Bryant, 2020 S.D. 49, 948 N.W.2d 333: Cited to define the conceptual distinction: waiver is intentional relinquishment; forfeiture is loss by failure to timely assert a right.
• United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995): The opinion’s doctrinal centerpiece. Goldberg articulates (a) express waiver, (b) waiver by conduct after warning, and (c) forfeiture for extreme misconduct even absent warning—primarily in the Sixth Amendment context.
• Illinois v. Allen, 397 U.S. 337 (1970): Used (via Goldberg) for the broader principle that a litigant may lose even fundamental rights through disruptive behavior after warning (Allen addressed the right to be present at trial).
• Faretta v. California, 422 U.S. 806 (1975): Mentioned to clarify that Faretta warnings are tied to the Sixth Amendment and are not directly controlling in civil child-welfare proceedings—though the court still emphasized the importance of warning as a fairness safeguard.
• Andrews v. Ridco, Inc., 2015 S.D. 24, 863 N.W.2d 540: Cited as an example that statutory rights in South Dakota can be expressly or impliedly waived by conduct (there, attorney-client privilege).

5) Persuasive authority from other states on counsel waiver/forfeiture in child-welfare cases

• Matter of Dependency of G.C.B., 535 P.3d 451 (Wash. Ct. App. 2023): Cited for the proposition that a parent can lose counsel by voluntary relinquishment, waiver by conduct, or forfeiture.
• People In Int. of B.H., 488 P.3d 1026 (Colo. 2021): Particularly influential: threatening appointed counsel and failing to cooperate with replacement is “clearly inconsistent” with asserting the right to appointed counsel.
• K.R. v. Department of Children & Families, 368 So. 3d 986 (Fla. Dist. Ct. App. 2023), and Jackson v. State, 2 So. 3d 1036 (Fla. Dist. Ct. App. 2009): Cited for affirming forfeiture/waiver where repeated attorney withdrawals were caused by the parent’s abuse and noncooperation, making representation functionally impossible.
• Care & Prot. of Ollie, 236 N.E.3d 1220 (Mass. App. Ct. 2024), Adoption of Raissa, 105 N.E.3d 1218 (Mass. App. Ct. 2018), and Com. v. Means, 907 N.E.2d 646 (Mass. 2009): These cases support a warning-based “waiver by conduct” approach and inform the South Dakota Court’s review posture: de novo review of waiver with deference to trial-level factual findings.

6) Prior South Dakota decision on failure to appoint counsel after withdrawal

• In re People ex rel. South Dakota Department of Social Services, 2004 S.D. 131, 691 N.W.2d 586: Father relied on this decision for the proposition that failing to appoint counsel after allowing withdrawal violates SDCL 26-7A-31. The Supreme Court distinguished the practical consequence question by noting that it did not need to decide prejudice in this case because it found waiver by conduct (and thus no error in refusing to appoint a third attorney).

Legal Reasoning

1) The Court frames the right to counsel in South Dakota TPR litigation

The Court recognized two overlapping sources of protection:

• Due process (Fourteenth Amendment), as informed by Lassiter, Mathews v. Eldridge, and Santosky. Even without a categorical federal right to counsel, procedures must remain fundamentally fair.
• Statutory right under SDCL 26-7A-31, which states the court “shall appoint” an attorney for an indigent parent who requests one in SDCL chapter 26-8A proceedings.

2) The novel question: can these protections be lost through misconduct?

The circuit court treated Father’s conduct as a forfeiture. The Supreme Court reframed the inquiry using waiver/forfeiture concepts drawn from United States v. Goldberg and related cases, then decided the case on waiver by conduct.

3) Why this was “waiver by conduct” rather than an automatic statutory command

Father’s statutory argument was straightforward: because SDCL 26-7A-31 uses mandatory language (“shall appoint”), the court had no choice but to keep appointing replacement counsel upon request. The Supreme Court rejected that rigid reading by holding that the statutory right—like other statutory rights—can be waived by conduct, citing Andrews v. Ridco, Inc. and persuasive child-welfare authority.

4) The warning was pivotal

The Court anchored waiver-by-conduct in two factual findings:

• The circuit court gave an express, clear warning when appointing Substitute Counsel: if Father damaged the relationship, he would have “no option but to represent [himself].”
• After the warning, Father engaged in escalating misconduct toward Substitute Counsel (missed meetings; threatened physical violence; displayed/brandished a knife; approached counsel’s desk during a confrontation), and the court found the behavior severe, disruptive, and dilatory.

On these facts, the Supreme Court concluded Father “waived the due process protections afforded by the right to counsel and his statutory right to counsel under SDCL 26-7A-31.”

5) Standby counsel as a safeguard (but not a constitutional substitute)

While the Court did not hold that standby counsel is required, the circuit court’s appointment of Substitute Counsel as standby counsel functioned as a procedural buffer: Father cross-examined witnesses and gave his own narrative testimony; standby counsel asked follow-up questions and helped preserve appellate issues by filing objections to proposed findings. The Supreme Court’s holding, however, did not turn on standby counsel curing an error; rather, it held there was no error because Father’s conduct constituted waiver.

6) The Court deliberately avoided a broader “forfeiture” holding

The opinion explicitly states that because it found waiver by conduct, it “need not reach” whether Father’s misconduct was so extreme as to justify forfeiture (a more drastic doctrine that can apply regardless of intent or knowledge). This restraint matters: South Dakota now has a clear rule about waiver-by-conduct with warning, but it remains an open question what degree of misconduct (if any) would justify forfeiture absent a warning in a TPR setting.

Impact

1) A new, practical rule for South Dakota child-welfare courts

Interest of P.R.M. establishes that in South Dakota TPR proceedings: an indigent parent’s statutory right to appointed counsel under SDCL 26-7A-31 and the associated due-process protections can be waived by conduct when the parent is clearly warned and then continues serious misconduct that prevents representation.

2) Case management and permanency planning

The decision aligns the right-to-counsel analysis with child-welfare permanency imperatives. The circuit court emphasized that the case had been pending for over a year and the child was entitled under state and federal law to timely permanency. The precedent helps trial courts prevent a parent from indefinitely delaying TPR proceedings by cycling through appointed counsel via intimidation or noncooperation.

3) Litigation incentives and attorney safety

The holding reinforces that threats and violence toward counsel have real procedural consequences. It also implicitly validates attorney withdrawal where safety concerns and threats arise and clarifies that replacement counsel is not an unlimited entitlement when the parent’s own conduct makes representation untenable.

4) Likely future battlegrounds

• What warning is sufficient? The opinion relied on a direct warning. Future cases may test how specific the warning must be and whether it must be repeated.
• Where is the line between difficult and waiver-triggering? Courts will need careful factual records distinguishing zealous disagreement from threats, intimidation, or obstructive patterns.
• Forfeiture remains unresolved. Because the Court did not adopt a forfeiture rule, future cases may present the question whether—and under what circumstances—counsel can be lost absent prior warning.
• Interplay with harmless error. The Court noted but did not decide whether dispositional-phase denial of counsel would be presumptively prejudicial; waiver avoided that inquiry. Another case with erroneous denial (not waived) could force the Court to decide remedy standards.