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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 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)

II. FACTS AND PROCEDURE

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 v. State, (65) which held that ultimately the "test of the sufficiency of the showing of due diligence is not whether all possible or conceivable means of discovery are used, but rather it must be shown that all reasonable means have been exhausted in an effort to locate interested parties." (66) The South Dakota Supreme Court upheld the circuit court's decision to quash the motion to reopen pursuant to S.D.C.L. section 15-6-60(b). (67) This decision was based on the holding that S.D.C.L. section 26-7A-108 controlled and that Mother's underlying foundation for relief failed under both provisions. (68) The court rationalized its decision by declaring that "peculiar circumstances" were not applicable in justifying the reopening of the case since due diligence was exercised. (69)

Rejecting the majority's opinion that the State's efforts to locate Mother constituted due diligence, the Honorable Richard Sabers dissented, declaring that "before service by publication ... may be ordered the party instituting the litigation must exhaust all reasonable means available in an effort to locate interested parties to the litigation." (70) Justice Sabers further stated that since "the State did not search any old addresses, did not look for any other members of Mother's family, did not look at D.F.'s birth certificate for her old address and did not do an internet search, notice by publication should not have been granted." (71) Justice Sabers also clarified and rejected the majority's opinion that these claimed "after-the-fact suggested alternatives" would not have necessarily led to the location of Mother's whereabouts because such information is not part of "the test for due diligence." (72) Therefore, the fact that any additional search methods may have proven to be unsuccessful is irrelevant since it is outside the test for due diligence and should have been ignored by the majority. (73)

III. BACKGROUND

A. EVOLUTION OF NOTICE BY PUBLICATION

The seminal case on notice by publication is Mullane v. Central Hanover Bank. (74) In Mullane, the United States Supreme Court stated that notice by publication in a trust dispersion action would not be allowed because, under the circumstances, it was not "reasonably calculated to reach those who could easily be informed by other means at hand." (75) Additionally, the Court indicated:
   [P]ublication may theoretically be available for all the world to
   see, but it is too much in our day to suppose that each or any
   individual beneficiary does or could examine all that is published
   to see if something may be tucked away in it that affects his
   property interests. (76)


The Court also stated that it had "before indicated in reference to notice by publication that, 'great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact. (77)

For these reasons, Justice Robert Jackson, writing for the majority, held that statutory notice by newspaper publication that only sets forth the "name and address of the trust company, name and date of establishment of the common trust fund, and a list of all participating estates, trusts or funds" was enough as to the affected parties whose "interests or whereabouts could not with due diligence be ascertained." (78)

The Court in Mullane further stated:
   [I]t would be idle to pretend that publication alone as prescribed
   here, is a reliable means of acquainting interested parties of the
   fact that their rights are before the courts. It is not an accident
   that the greater number of cases reaching this Court on the
   question of adequacy of notice have been concerned with actions
   founded on process constructively served through local newspapers.
   Chance alone brings to the attention of even a local resident an
   advertisement in small type inserted in the back pages of a
   newspaper, and if he makes his home outside the area of the
   newspaper's normal circulation the odds that the information will
   reach him are large indeed. (79)


This decision, in effect, recognized that abuses are more likely to take place when service by publication is employed. (80) Such recognition of the potential problems is essentially an admission of the inferiority and susceptibility to abuse that pervades this form of notice. (81)

Notice by publication is not, however, a per se violation of due process guaranteed by the Fourteenth Amendment. (82) Notice by publication serves as a necessary attempt to notify a party who cannot be located otherwise. (83) Nevertheless, a dichotomous relationship exists between notifying an interested party via publication and protecting an individual's Fourteenth Amendment rights. (84) The opportunity to be heard can be materially affected when notice by publication is used, as it is not as reliable of a method for receiving service. (85)

In Grannis v. Ordean, (86) the United States Supreme Court held that "the right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." (87) If a legitimate attempt is not made to notify the absent party, the right to "appear or default, acquiesce or contest" is stripped from the individual. (88)

B. THE REQUIREMENTS OF THE DUE PROCESS CLAUSE

The Due Process Clause of the Fourteenth Amendment is the underlying foundation that requires a showing of whether due diligence was used to inform an absent party of litigation. (89) This clause provides that no State shall deprive any person of "life, liberty, or property, without due process of law." (90) The inflexible application of due process procedural protections has largely been avoided by the reasoning that due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." (91) Fundamental fairness remains an essential underlying element in any due process procedure. (92) What constitutes "fundamental fairness," however, is not always clear as it has a "meaning ... as opaque as its importance is lofty." (93) Therefore, consistent application of the Due Process Clause is "an uncertain enterprise." (94)

The United States Supreme Court in Mathews v. Eldridge (95) stated that three factors must be considered in any due process analysis. (96) The first is the private interest that will be affected by the official action. (97) After the initial determination of what interest is affected, courts must assess "the risk of an erroneous deprivation" of that interest through the chosen procedures. (98) The final factor to be weighed is the government's interest in the matter, including financial and administrative costs. (99) Thus, an analysis of due process claims requires the identification of an individual's rights that have been deprived and which ought to have been protected. (100) A determination as to the proper deprivation procedures then must be made. (101) In cases pertaining to parental rights, this analysis starts with the Supreme Court's "recognition and protection of a privacy interest in the family, and proceeds by analyzing the procedures that allegedly infringe upon that interest." (102)

The United States Supreme Court has recognized the protected privacy interest that parents have in their children. (103) Parents have a fundamental and basic right to be with their children both through custody and companionship. (104) Such a right to one's child has been deemed one of the "basic civil rights of man," (105) and "far more precious ... than property rights." (106) The procedural protections that follow these essential rights in all termination proceedings must therefore adhere to the Due Process Clause before any final determinations are made because of the heightened interests at stake. (107)

C. BALANCING DUE PROCESS AND NOTICE BY PUBLICATION

Necessary for balancing the inherent tensions that exist between personal service and service by publication is the "elementary and fundamental requirement of due process in any proceeding which is to be accorded finality." (108) Notice by publication, therefore, must practically convey the required information, and it must afford a reasonable time for interested parties to appear before the court. (109)

The attempt to serve notice on an affected party is not, on its own, sufficient to meet the due process requirement. (110) It must be effectuated to actually inform the absentee in form and function. (111) Thus, the validity of any chosen method may be defended on the ground that it is reasonably certain to inform those affected. (112) As stated in Armstrong v. Manzo, (113) a fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." (114) Armstrong is a representation of the great difficulty a party has in trying to overcome an adverse decision that has already been entered against him when the party had no idea of the proceeding in the first place. (115) In this case, the Court further stated that "the burdens thus placed upon petitioner were real, not purely theoretical. For it is plain that where the burden of proof lies may be decisive of the outcome." (116)

In determining whether a search is diligent and actually likely to apprise an absent party, courts have traditionally considered the actual attempts made to locate the missing person or entity. (117) The determination of whether the proper channels were used is based upon whether such channels can be reasonably expected to render the missing identity. (118) "While a reasonable search does not require the use of all possible or conceivable means of discovery, it is an inquiry that a reasonable person would make...." (119) The inquiry must "extend to places where information is likely to be obtained and to persons who, in the ordinary course of events, would be likely to have information of the person or entity sought." (120)

D. DUE PROCESS IN PARENTAL RIGHTS PROCEEDINGS

The opportunity to be heard in parental rights cases has been recognized as a fundamental question of law. (121) The United States Supreme Court has ruled that in such cases, in an attempt to protect the Due Process Clause, courts shall transcend any "statute that might otherwise preclude such a hearing." (122) In Stanley v. Illinois, (123) an individual was determined to be "entitled, as a matter of due process, to a hearing to establish his fitness as a parent." (124) In Stanley, it was determined that the State of Illinois was prohibited, as a result of the application of the Due Process and Equal Protection Clauses, "from taking custody of the children of an unwed father, absent a hearing and a particularized finding" that he was an unfit parent. (125)

In Quilloin v. Walcott, (126) the Court reaffirmed the protection of familial relationships established in Stanley when it explained that:
   [We] have recognized on numerous occasions that the relationship
   between parent and child is constitutionally protected. "It is
   cardinal with us that custody, care and nurture of the child reside
   first in the parents, whose primary function and freedom include
   preparation of obligations the state can neither supply nor
   hinder." And it is not firmly established that "freedom of personal
   choice in matters of ... family life is one of the liberties
   protected by the Due Process Clause of the Fourteenth Amendment."
   (127)


Furthermore, Kickapoo Tribe of Oklahoma v. Rader (128) held that:
   State intervention to terminate the relationship between a parent
   and a child must be accomplished by procedures meeting the
   requisites of the Due Process Clause and that the interest of a
   parent in avoiding the termination of his parental rights is
   important enough to entitle him to the procedural protections
   embodied in the Due Process Clause. (129)


Moreover, the Nebraska Supreme Court has recognized the definition for reasonable diligence in family law cases through both case law and statute by stating:
   A reasonably diligent search for the purpose of justifying service
   by publication does not require the use of all possible or
   conceivable means of discovery, but is such an inquiry as a
   reasonably prudent person would make in view of the circumstances
   and must extend to those places where information is likely to be
   obtained and to those persons who, in the ordinary course f events,
   would be likely to receive news of or from the absent person. (130)


E. SOUTH DAKOTA'S ADOPTION OF DUE DILIGENCE

The South Dakota Supreme Court in Ryken v. State held that ultimately "the test of the sufficiency of the showing of due diligence is not whether all possible or conceivable means of discovery are used, but rather it must be shown that all reasonable means have been exhausted in an effort to locate interested parties." (131) In Ryken, the court concluded that plaintiffs in quiet title actions had not exercised reasonable diligence in attempting to discover interested appellants. (132) Because these appellants were noted on a warranty deed and tax deed, they could not properly be served by publication. (133)

Before service by publication may be ordered, "the party instituting the litigation must exhaust all reasonable means available in an effort to locate interested parties to the litigation." (134) The mechanism employed to navigate the tensions between personal service and service by publication is a showing of due diligence. (135) Such a showing requires the attempt to effectuate personal service before a court will grant an order to serve notice by publication. (136)

Nolan v. Nolan (137) is a factually analogous case to In re D.F. (138) In Nolan, the South Dakota Supreme Court held that in personam jurisdiction over a father in a divorce action never existed, rendering the mother's use of service by publication invalid. (139) Nolan established that "the jurisdiction of the court to enter any judgment must rest on the affidavit in support of service by publication." (140) Also, the affidavit was determined to be "ineffective to secure jurisdiction by publication," and therefore the "power to render judgment against anyone in reliance thereon" was not present. (141)

The affidavit determined to be ineffective in Nolan was found to contain inaccurate information as the mother averred she had "no idea of the location or whereabouts of [father]." (142) However, it was later discovered that the mother had information that could have been used to help locate father during the pendency of the divorce action. (143) The court ultimately decided to reject the notion that due diligence had been exercised because the requirement of an accurate affidavit was not present. (144) As a result of the inaccurate affidavit, due diligence could not have been exercised, and notice by publication could not be upheld as a valid method of service. (145)

The net results of these doctrinally similar precedential cases require adherence to the due diligence standard when attempting to serve notice. (146) The accepted case law calls for administering the attempts to serve notice in ways that are "reasonabl calculated" 147 to apprise the absent party through "all reasonable means" (148) so the party can "choose for himself whether to default." (149)

The Iowa Supreme Court in In re S.P., (150) as cited by the South Dakota Supreme Court, stated that "[a] diligent search is measured not by the quantity of the search but the quality of the search." (151) Expounding upon this notion, the South Dakota Supreme Court further elaborated that "[w]hether a party has exhausted all reasonable means available for locating interested parties must be determined by the circumstance of each particular case." (152) Additionally, it is well-understood that "notice of the hearing and an opportunity to be heard appropriate to the nature of the case is the most rudimentary demand of due process of law in proceedings affecting parental rights to children." (153)

The majority opinion in In re S.P., authored by Justice Louis Lavorato, held that the State's actions did not constitute a reasonably diligent search in determining a father's whereabouts before the trial court approved notice by publication and terminated the father's parental rights. 154 This reasoning was based on the fact that the State's search for the father did not include an effort to determine "where the subject of the search was last known to be" and made "no effort to check whether the subject was still there." 155

The Iowa Supreme Court also established a working definition of when notice by publication can be utilized in parental termination proceedings. 156 Iowa's definition simply adds to the Nebraska definition by providing that "whether all reasonable means have been exhausted has to be determined by the circumstances of each particular case." (157)

As recently as 2005 in In re S.A., (158) the South Dakota Supreme Court has also recognized the heightened liberty interest parents have in their children by declaring:
   The United States Supreme Court has clearly stated that natural
   parents have a fundamental liberty interest in the care, custody,
   and management of their children. As a result, parents are
   guaranteed procedural rights under the Fourteenth Amendment when
   parental rights are subject to termination: If anything, persons
   faced with forced dissolution of their parental rights have a more
   critical need for procedural protections than do those resisting
   state intervention into ongoing family affairs. When the State
   moves to destroy weakened familial bonds, it must provide the
   parents with fundamentally fair procedures. (159)


The court's acknowledgement of the higher interests at stake in parental termination proceedings transcends the traditional deference paid to land and property disputes justifying such heightened procedural protections. (160)

Unlike the cases that originally established notice by publication as an acceptable means of service, which usually involved land or property, the present case is intimately tied to the rights of family. (161) Because this realm of law affects things often considered sacred, like one's right to raise his own child, it is recognized as paramount that fair procedures exist to prevent the deprivation of a parent's rights without due process of law. (162)

An extension of the due diligence issue implicit in this case is S.D.C.L. section 26-7A-108, which forbids modifying or setting aside any order or decree involving the termination of parental rights. 163 The South Dakota Supreme Court, in its opinion, cited some marked differences between the facts of the present case and those which created an exception to S.D.C.L. section 26-7A108, which allow for a reopening if "peculiar circumstances" existed. 164 For peculiar circumstances to exist, however, there must first be a fording that due diligence in the search was lacking; therefore, the court had to decline consideration of the exception because of its finding that the search met the due diligence requirements. (165)

This decision is in contrast to an earlier South Dakota opinion, In re F.J.F and F.M.F., (166) which articulated that the test for reopening dispositions was not whether "peculiar circumstances" existed, but rather whether the original disposition violates a parent's constitutionally protected due process rights by not allowing that party to be heard. (167)

In re F.J.F. involved a request from a father to reopen a disposition to determine paternity and custody of twins after the father learned they may have been his children. (168) The State did not provide the father notice of the termination proceedings that were being brought against the mother and mother's boyfriend, who the State erroneously believed to be the father. (169) Justice Jon Fosheim, writing for the majority in In re F.J.F., held that the father was to have an opportunity to a hearing on his paternity claim despite the fact that he had knowledge of a previous dispositional hearing where mother's parental rights were terminated when he thought he may be the actual father. (170)

While the two issues of due diligence and a prohibition against reopening any prior decision are separate and distinct, they are nevertheless intertwined in such a way that the resolution of one may preclude the resolution of the other. (171) However, since the South Dakota Supreme Court made a determination on the due diligence issue first, effectively making the reopening motion moot, Mother was never afforded an opportunity to present her fitness as a parent in a court of law. (172) A rigid application of case law and state statutes justified such a determination, but such procedures stand in opposition to the United States Supreme Court's declaration that "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." (173) Understandably, procedures for due process can only be dictated by the surrounding circumstances. (174)

F. REQUIRING DUE DILIGENCE TO UPHOLD DUE PROCESS

The crux of the notice by publication issue is the notion that parental rights are so important that those affected by a termination proceeding should be afforded every opportunity to be present, so their voices can be heard and their Fourteenth Amendment rights upheld. (175) The issues are mutually exclusive, and at no point do they invade a judge's sphere of discretion in determining a parent's fitness to have custody or privileges in relation to a child. (176) Having the opportunity to be heard is not related to being a fit parent. (177) Two separate determinations must be made to effectively establish whether the parent's custody rights can be terminated while affording that parent due process of law: first, whether the parent had an opportunity to present him or herself, and second, whether he or she is fit to raise children. (178) Such determinations, however, must be in this specific order as it is impossible to determine the latter issue without first determining the former. (179)

The significance of adhering to the due diligence standard is twofold: Primarily, adherence ensures that the State will thoroughly seek out individuals in question before resorting to notice by publication; (180) secondarily, a due diligence standard sets forth specific requirements and avenues for the State to take when attempting to locate and serve interested parties. (181) By setting forth consistently high standards for service, state representatives will have less personal discretion in determining what measures should be taken to notify the interested parties. (182)

IV. ANALYSIS

The South Dakota Supreme Court's decision in In re D.F. held that due diligence had been exercised prior to the termination of Mother's parental rights using notice by publication, despite evidence to the contrary. (183) In determining whether due diligence had been exercised, it was necessary to apply the accepted standard in South Dakota which requires that "all reasonable means" must be "exhausted" before notice by publication will be permitted. (184) Deciding whether this test was satisfied "must be determined by the circumstances of each particular case." (185) Justice Zinter, writing for the majority, declared that this test was satisfied and added that "hindsight may always be used to fashion other conceivable methods of inquiry[,]" but in the present case the "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." (186)

In re D.F. is an example of making a final determination on the issue of parental fitness without going through the natural progression of analyzing whether due diligence had been exercised. (187) Adherence to the Due Process Clause of the Fourteenth Amendment was absent based on an endgame analysis that made it clear to those involved in the case that Mother would not be found to be a fit parent. (188) This, however, was not the issue. 189 The issue was one's right to be heard in "a meaningful place and in a meaningful manner." (190) Allowing Mother an opportunity to demonstrate her fitness as a parent would have given any judge invaluable insight into Mother's parental fitness, while also upholding her right to be heard as required by the precedent set forth by the United States Supreme Court. (191)

The additional defect in the present case stems from the ultimate determination by the circuit court that due diligence had been exercised and that notice by publication was appropriate and adequate. (192) After such a determination was made, the burden of persuasion for proving due diligence shifted to Mother. (193) Rather than the State having to prove that due diligence had been exercised, Mother had the burden of proving that it had not. (194) Having the burden of persuasion from the onset of the proceedings compounded Mother's legal issues and made her plight even more difficult. (195) This additional burden complicated and undermined Mother's entire contention that due diligence had not been exercised, as she was facing a huge legal task from an inferior legal position. (196)

A. SATISFYING DUE DILIGENCE IN SOUTH DAKOTA

No consistent standard for exercising due diligence in South Dakota currently exists. (197) South Dakota statutory law does not use the same language or require a similar showing that "all reasonable means" have been explored before service by publication will be granted. (198) To the contrary, all that is required is a showing that upon inquiry one could not be found. (199) Therefore, it was not a technical or perceptual failure for the South Dakota Supreme Court to come to the conclusion that upon inquiry, DSS could not locate Mother. (200)

Interestingly, the South Dakota Supreme Court decided to include the language "due diligence" in its opinion to explain DSS's attempts to locate Mother. (201) This is where the majority went astray for two reasons. (202) First, objectively, the actions DSS took were not due or diligent as recognized by the circuit court. (203) Second, the majority opinion did not specify why applying case law rather than state statute was appropriate or advantageous. (204) Without some clarification or further explanation of these issues, the law in South Dakota remains unclear and unsettled. (205)

The rationale ultimately accepted by the majority and cited by the dissent is based on the notion that "before service by publication ... may be ordered the party instituting the litigation must exhaust all reasonable means available in an effort to locate interested parties to the litigation." (206) The entire court agreed on the legal precedent but ultimately came to opposite conclusions. (207) Presumably, the alternative interpretations stem from differing paradigms on the additional procedural protections necessary for parents involved in termination proceedings. (208)

The majority simply applied the lower standard traditionally reserved for cases involving land and property and rejected any precedent allowing for additional protections in familial matters. (209) This is evident in Justice Zinter's footnote which goes so far as to concede that the "affidavit in support of service by publication was lacking in specifics and was inadequate to support the order for service by publication." (210) Such an admission undermines any notion that due diligence in parental rights proceedings will be afforded any higher standard than in traditional cases involving property or land. (211)

The analogous precedent set forth in Nolan, which involved similar facts to In re D.F., is contrary to and inconsistent with the majority's opinion. (212) In Nolan, the court ruled that due diligence could not have taken place in a divorce proceeding because the affidavit required for securing notice by publication was defective. (213) Although different state statutes were applicable because it was a divorce action, the same underlying requirements for serving notice by publication controlled. (214) Here, the mother's possession and non-use of the father's telephone number in attempting to locate him, prior to service by publication, was the fatal defect cited. (215) This non-use of valuable information is similar to In re D.F., where Father at all relevant times had Mother's social security number. (216) The court, however, neither addressed Nolan nor distinguished the two cases. (217)

B. THE MISAPPLICATION OF DUE DILIGENCE IN SOUTH DAKOTA

The accepted standard for exercising due diligence in South Dakota requires the exhaustion of "all reasonable means" available in an effort to locate interested parties before service by publication is to be utilized. (218) In the present case, such a reasonable and necessary standard was not met, as many alternative and reasonable means were not exhausted. (219)

As Justice Sabers stated in his dissent, on a prima facie level, the State failed to exercise due diligence as it "did not search any old addresses, did not look for any other members of Mother's family, did not look at D.F.'s birth certificate for her old address and did not do an internet search." (220) On a foundational level, the State did not exercise due diligence because it failed to include in its search a check with the Department of Motor Vehicles, a scan of the Department of Corrections records, or conduct a search of the local telephone book where the missing parent was last known to reside. (221) In addition, because the State was aware that Mother had lived in "Illinois or Chicago," it could have focused its search in those areas. (222)

Most importantly, finding and using Mother's social security number would have provided an invaluable and comprehensive tool for the State in locating her. (223) As Father was privy to this information, the State's failure to even ask him for it constituted a failure to use due diligence, as these actions can be objectively considered "reasonable means." (224)

The record indicates that the extent of the State's attempt to locate Mother before serving notice by publication included a DSS employee's inquisition of Mother's ex-husband and an inquiry into the state's child support enforcement records. (225) This is problematic because the record shows that Mother was not apprised of any divorce proceedings and had never lived in South Dakota. (226)

The court stated that because the circuit court judge personally questioned Father and Grandmother before ordering service by publication, any shortcomings in DSS's questioning were harmless error. (227) It further instructed that "it is the quality of the search made in a particular context rather than the quantity that governs a duly diligent search." (228) Such a statement, however, does not negate or overrule the fact that accepted South Dakota case law requires the exhaustion of "all reasonable means available in an effort to locate interested parties" before service by publication is to be utilized. (229) That said, it becomes necessary to question whether DSS actually met the substantially lower standard of a "quality" search when the "quantity" was so limited. (230) Justice Sabers's recognition of this issue in his dissent supports the idea that the State had an obligation to do more than it did to locate Mother prior to the issuance of notice by publication. (231)

While such inquires are not explicitly required, their additional quantity and quality would address the "reasonable means" criteria that were missing from the original search. (232) Investigating these additional possibilities for locating Mother would have required a small investment of time but would have increased the likelihood of actually locating Mother. (233) Therefore, they met the "reasonable" test outlined in South Dakota case law. (234)

Justice Sabers was correct to identify that part of the majority's rationale relies on discarding such "after-the-fact suggested alternatives" as harmless error since Mother did not show that these alternatives would have disclosed her location. (235) As Justice Sabers pointed out, however, that is not part of the test for due diligence and should not have been considered. (236)

C. ADVERSARIAL FIGURES' HESITATION TO VOLUNTEER INFORMATION

The second fundamental failure of the DSS's original investigation stems from the questioning of Mother's ex-husband and ex-mother-in-law. The majority cites this inquisition as part of the State's due and diligent search. (237) Common sense should prevail, however, when assessing such an investigation with the advantage of hindsight and court documents that adequately represent how dysfunctional and passionately jaded the parties were toward each other. (238)

Mother and Father's relationship was extremely combustible at the time of their separation. (239) Records revealed that their disdain for each other had not diminished over the years and that Father was not likely to give any information that could benefit his estranged ex-wife. (240) It was not in Father's or Grandmother's best interest to cooperate with DSS or volunteer information likely to lead DSS to Mother's whereabouts. (241)

The reluctance to cooperate is apparent from Father's and Grandmother's testimony in circuit court. (242) When asked, both Father and Grandmother simply stated that they did not know where Mother was or how to contact her. (243) Similarly, the DSS worker assigned to the case testified in circuit court that the extent of his investigation was to ask Father and Grandmother for information about Mother's whereabouts and to check with the state's child support enforcement agency for any leads. (244) As stated, the DSS's search yielded no information of value. (245)

In reality, Father had retained Mother's social security number and used it to open a telephone account shortly before the original termination proceedings. (246) Possession of Mother's social security number indicates the untruthfulness of Father's answers that he had no way to contact Mother, as a social security number is an invaluable asset for locating missing parties. (247) The fact that DSS did not ask for, nor search out, Mother's social security number is not dispositive of the issue, but only another example of the failure to "exhaust all reasonable means." (248) This failure to conduct a basic search using easily obtained and available information is representative of how inadequate the State's investigation was, and how it failed to approach an objectively due and diligent search, in quality or quantity. (249)

D. INCONSISTENT APPLICATION OF THE LAW

It is undisputed that Mother did not have the opportunity to present her fitness as a parent at any hearing and was, therefore, denied the rights afforded to her by the Due Process Clause. (250) The rigid application of S.D.C.L. section 26 7A-108 precluded any hearing from taking place and undermined Mother's due process rights. (251) Such facts are diametrically opposed to the language of In re F.J.F., which requires "transcend[ing] any statute that might otherwise preclude such a hearing." (252)

Inherent in every proceeding involving children and parental rights are bare emotions and heated tempers. Raw human emotions manifest themselves for many people when faced with the possibility of losing their right to raise, visit, or have any meaningful access to their children. (253) Based on this reality, the law has been designed to protect such a sacred relationship by providing certain procedural safeguards to ensure no such termination takes place without ascertaining all of the facts. (254) In the present case, however, the procedure of disallowing the reopening of parental rights cases is the impetus for the perpetuation of the problem. (255) The good intentions of the generally applicable law fail when faced with exceptional and extraordinary circumstances like those present in In re D.F. (256)

S.D.C.L. section 26-7A-108 was designed to end the countless appeals that often result in parental rights termination proceedings. (257) It was not intended to deny a parent his or her Fourteenth Amendment rights. (258) Lost in In re D.F. was the idea that the issues were mutually exclusive and that the court had an obligation to separate form from function and make a decision that would have transcended a statute in an attempt to uphold a parent's Fourteenth Amendment rights. (259)

With such explicit authority on the subject, it is unusual that the South Dakota Supreme Court would reject an opportunity for Mother to have her day in court. (260) If, by no other finding, the court had recognized that the South Dakota statute precluded any reopening of a parental rights proceeding, and had in effect denied Mother her due process rights, the court would not have had any choice but to remand the proceedings to the circuit court for final resolution. (261)

As the case was decided, an example of a legal "catch-22" was presented as Mother was caught between an adverse decision declaring due diligence to have taken lace and a state statute that circumvented her Fourteenth Amendment rights. (262) The fundamental flaw with such a scenario is that after the initial determination that due diligence had been used in attempting to find Mother, and the holding that the default judgment against her terminating her parental rights would stand, she was unable to appeal, as S.D.C.L. section 26-7A-108 controlled. (263)

Such strict adherence to the statutory law and a hesitation to find "peculiar circumstances" compounded the initial mistake by precluding a thorough review of that mistake on appeal. (264) The hesitance to address or find "peculiar circumstances" in this case stemmed from the strict adherence to written law. (265) This hesitation did not stem from a lack of sensational or unusual conditions surrounding the parties to the termination proceeding. (266)

The general sensitivity of parental rights proceedings justifies the opportunity for appeals, but not without boundaries. (267) Any appeals must be within the original intent of S.D.C.L. section 26-7A-108. (268) The South Dakota Supreme Court missed the opportunity to set a higher standard for these proceedings by failing to identify the "catch-22" created by opposing case law and state statutes and failing to recognize that some instances require a more flexible application of statutes that reject common sense and fundamental liberties. (269)

E. ESTABLISHING APPROPRIATE PARENTAL PROTECTIONS IN SOUTH DAKOTA

The South Dakota Supreme Court should establish a standard for due diligence in parental termination proceedings that calls for the utmost protection of parents' fundamental rights to their children. This could be accomplished by following standards that have been adopted by the United States Supreme Court, Nebraska Supreme Court, and Iowa Supreme Court. (270) Interestingly, the cases previously cited from these jurisdictions all involve determinations that due diligence had not been exercised. (271)

The South Dakota Supreme Court could avoid harsh results in future cases that involve the termination of parental rights if an appropriate degree of deference is paid to erring on the side of caution. (272) If Mother had been allowed her day in court, the outcome likely would not have changed, but her fundamental due process rights would have been unquestionably upheld. (273) The sake of judicial efficiency does not warrant even the slightest potential for a withholding of due process rights under the guise of subjective laws, particularly when fundamental parental rights are at stake. (274) The South Dakota Supreme Court's establishment of a paradigm of conservative interpretation of the due diligence standard would obviate the potential of denying parents their due process rights in South Dakota. (275)

V. CONCLUSION

Understanding exactly what South Dakota law requires and applying such requirements evenhandedly would allow courts across the state to identify the inherent balance between the quantity and quality necessary for due diligence to be found. By having a brightline test, or set of necessary requirements for a showing of due diligence, South Dakota would avoid subjective determinations that are entrenched in best intentions as accompanied in most parental rights proceedings. Any way of limiting subjectivity would reduce the number of cases with widely varying outcomes.

Legislative enactment is a potential option for setting a consistent standard for state officials to follow when attempting to serve notice on absent parties. Having a state statute that lays out required measures for DSS to follow in attempting to locate absent parents would greatly reduce the subjectivity that currently exists for these state officials.

The court's deference to the legislature is at its own prerogative. However, voicing a desire for the legislature to take steps to initiate set procedures for state officials to follow is likely required before the legislature would take action. While the legislature may be a capable body for such an enactment, the judiciary has the power, position, and experience to identify the issue for the legislature.

The court should have expressed its desire for a uniform standard of due diligence in South Dakota and described how such a standard could be met.

Regardless of the branch of government that takes the lead on the issue, South Dakota would be better served by having precedent that treats notice by publication in termination proceedings as a last resort, and not as the most convenient option as determined by a state official acting only in the best interests of the child involved. Adopting and promoting a consistent standard of due diligence would accomplish this task by creating a mechanism for the evenhanded application of the law. Therefore, the South Dakota Supreme Court should have used In re D.F. as a platform to adopt a consistently high standard for due diligence before notice by publication is approved. Additionally, the court should have explicitly stated the parameters for a showing that due diligence was exercised, so that the law pertaining to notice by publication in South Dakota is clear and without equivocation.

(1.) See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (holding that a Mississippi statute violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment while specifically recognizing the unique importance of termination proceedings); Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981) (holding that parental termination proceedings involve substantial complexity and require due process analysis); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (recounting that the Court "has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment"); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) (holding the Oregon Compulsory Education Act requiring attendance at public schools as unconstitutional under the Due Process Clause); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing the "right of the individual to contract to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children").

(2.) See Santosky v. Kramer, 455 U.S. 745, 753-54 (1982) (holding that the Constitution requires certain procedural protections to justify termination of parental rights); Lassiter, 452 U.S. at 27; Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (recognizing the Court's continued upholding of a constitutionally protected parent-child relationship).

(3.) Santosky, 455 U.S. at 753.

(4.) See In re D.F., 2007 SD 14, [paragraph] 8, 727 N.W.2d 481, 484 (citing United Nat'l Bank v. Searles, 331 NW.2d 288, 291-92 (S.D. 1983) (recognizing that the use of notice by publication "is not a per se violation of due process under the Fourteenth Amendment")).

(5.) S.D.C.L. [section] 26-7A-48 (2004 & Supp. 2007) states:
   If the petition or an affidavit of the state's attorney discloses
   that any person or party to be served with the summons is out of
   the state, on inquiry cannot be found, is concealed within the
   state, resides out of the state, whose mail at the last known
   address has been returned, whose location is unknown or is affected
   by the designation "All Whom It May Concern," the court shall cause
   the summons, modified to declare the initials of the child in lieu
   of the name of the child, to be published once in a newspaper of
   general circulation published in the county where the action is
   pending or in a newspaper in another county designated by the court
   as most likely to give notice to the party to be served.
   Publication of the summons shall be made not less than five days
   before the date of the hearing on the petition. Notice given by the
   publication is the only required notice to the concerned persons or
   parties to be served who are described in this section. An
   affidavit or certificate of publication made by the concerned
   newspaper and accepted by the court is evidence of service of
   summons by publication.

      If service of the summons by publication is authorized, the party
   making service may at his option, without any order of the court,
   personally serve the summons on any person or party out of the
   state or the party may admit service of the summons, and no
   publication of the summons for that party is necessary.


Id.

(6.) Id. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (holding that "any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"). See also discussion and notes infra Part III.A.

(7.) See S.D.C.L. [section] 26-7A-48.

(8.) See id. Compare In re D.F., 2007 SD 14,727 N.W.2d 481, with Mullane, 339 U.S. 306.

(9.) See Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981) (holding that 'judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given"). The court required "either actual notice, or an honest and reasonable effort to give it." Id.

(10.) Mullane, 339 U.S. at 314 (citing Milliken v. Meyer, 311 U.S. 457 (1940)).

(11.) Compare In re D.F., 2007 SD 14, 727 NW.2d 481 (holding that the search was considered due and 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), with In re D.F., Juv. Case No. 02-21, S.D. Cit. Ct., 1st Cir. (Aug. 13, 2004) [hereinafter Memorandum Decision] (declaring that the State made no particular attempt or investigation into Mother's whereabouts).

(12.) In re D.F., 2007 SD 14, [paragraph] 21, 727 N.W.2d at 487 (Sabers, J., dissenting). See S.D.C.L. [section] 26-7A-48 (2004 & Supp. 2007).

(13.) In re D.F., 2007 SD 14, [paragraph] 21, 727 N.W.2d at 487 (Sabers, J., dissenting).

(14.) See Qualley v. State Fed. Sav. & Loan, 487 N.W.2d 353, 355 (Iowa Ct. App. 1992) (declaring that defendant had not conducted a diligent search after reviewing testimony of the employed procedures).

(15.) 2007 SD 14, 727 N.W.2d 481.

(16.) See id.

(17.) See id. [paragraph] 15.

(18.) Id.

(19.) See infra Part IV.B.

(20.) See infra Part V.

(21.) See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974).

(22.) See infra Part II.

(23.) See infra Part III.

(24.) See infra Part III.D.

(25.) See infra Part IV.A.

(26.) Id.

(27.) See infra Part V.

(28.) Id.

(29.) In re D.F., 2007 SD 14, [paragraph] 2, 727 N.W.2d 481, 482.

(30.) Memorandum Decision, supra note 11, at 2. Legal issues for both parents existed, specifically, arrests for unpaid traffic tickets. Id. These, however, were not the only legal concerns present. Id.

(31.) Id.

(32.) Id.

(33.) Id. (stating Mother's reason for leaving Father and D.F. washer fear of Father and his family).

(34.) In re D.F., 2007 SD 14, [paragraph] 2, 727 N.W.2d at 482.

(35.) Brief for Appellant at 4, In re D.F., 2007 SD 14, 727 N.W.2d 481 (No. 23990) [hereinafter Appellant's Brief].

(36.) Id. But see Brief for Appellee at 10, In re D.F., 2007 SD 14, 727 N.W.2d 481 (No. 23990) [hereinafter Appellee's Brief] (illustrating a direct conflict in Mother's testimony as her father had previously testified that he gave Mother the divorce papers after receiving them at his home in Naperville).

(37.) Appellant's Brief, supra note 35, at 4.

(38.) In re D.F., 2007 SD 14, [paragraph] 3, 727 N.W.2d at 482.

(39.) Appellant's Brief, supra note 35, at 5.

(40.) Memorandum Decision, supra note 11, at 1-2. "The facts supporting the allegations concerning D.F. arose out of the child having received bruises, black eyes, and other mistreatment while in the custody of [Father and Step-mother]." Id. at 1. Also "[a]t the time of the Dispositional Hearing in this matter, in October of 2002, the court found that D.F. had special needs and that his father was not taking appropriate and necessary steps to visit or be interested in and provide for his needs." Id. at 2.

(41.) In re D.F., 2007 SD 14, [paragraph] 5, 727 N.W.2d at 483. See S.D.C.L. [section] 26-8A-2 (2004 & Supp. 2007), which states:

In this chapter and chapter 26-7A, the term, abused or neglected child, means a child:

(1) Whose parent, guardian, or custodian has abandoned the child or has subjected the child to mistreatment or abuse;

(2) Who lacks proper parental care through the actions or omissions of the child's parent, guardian, or custodian;

(3) Whose environment is injurious to the child's welfare;

(4) Whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, supervision, education, medical care, or any other care necessary for the child's health, guidance, or well-being;

(5) Who is homeless, without proper care, or not domiciled with the child's parent, guardian, or custodian through no fault of the child's parent, guardian, or custodian;

(6) Who is threatened with substantial harm;

(7) Who has sustained emotional harm or mental injury as indicated by an injury to the child's intellectual or psychological capacity evidenced by an observable and substantial impairment in the child's ability to function within the child's normal range of performance and behavior, with due regard to the child's culture;

(8) Who is subject to sexual abuse, sexual molestation, or sexual exploitation by the child's parent, guardian, custodian, or any other person responsible for the child's care;

(9) Who was subject to prenatal exposure to abusive use of alcohol or any controlled drug or substance not lawfully prescribed by a practitioner as authorized by chapters 22-42 and 34-2013; or

(10) Whose parent, guardian, or custodian knowingly exposes the child to an environment that is being used for the manufacture, use, or distribution of methamphetamines or any other unlawfully manufactured controlled drug or substance.

Id.

(42.) Appellant's Brief, supra note 35, at 5-6.

(43.) In re D.F., 2007 SD 14, [paragraph] 11, 727 N.W.2d at 485. The Honorable Lee D. Anderson presided over the October 14, 2005, evidentiary hearing. Appellant's Brief, supra note 35, at 6.

(44.) Appellant's Brief, supra note 35, at 5.

(45.) In re D.F., 2007 SD 14, [paragraph] 5, 727 N.W.2d at 483. See generally Joseph R. Carrieri, Termination of Parental Rights and Proceedings, 173 PLI/Grim 9 (1996) (defining termination of parental rights as involving court intervention whereby the court in an appropriate case will sever the bond of parent and child, terminating parental rights, thereby freeing the child for adoption).
   Once the appropriate court order or judgment is entered terminating
   parental rights, a mother and father loses all rights and
   responsibility over their child and that child becomes a stranger
   to the parents. The parents no longer have any say with respect to
   medical or educational considerations, no longer have custody of
   the child and can no longer see or visit with the child.


Id. at 27.

(46.) Appellant's Brief, supra note 35, at 5.

(47.) Id. at 5-6.

(48.) Id. at 6.

(49.) Id.

(50.) Id. But see Appellee's Brief, supra note 36, at 18 (contending that Mother found out Father's parental rights had been terminated by contacting his family members who resided in Watertown, South Dakota). Id. Mother later learned that her parental rights had been terminated after she contacted the Davison County State's Attorney. Id.

(51.) Appellant's Brief, supra note 35, at 6.

(52.) In re D.F., 2007 SD 14, [paragraph] 6, 727 N.W.2d 481, 483.

(53.) S.D.C.L. section 15-6-60(b) (2004 & Supp. 2007) provides in part: "On motion and upon such terms as are just, the court may relieve a party of his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) Any other reason justifying relief from the operation of the judgment." Id.

(54.) Appellant's Brief, supra note 35, at 6.

(55.) Id.

(56.) Id.

(57.) Id. at 7.

(58.) S.D.C.L. [section] 26-7A-108 (2004 & Supp. 2007). The statute provides in relevant part: "The court may modify or set aside any order or decree made by it, except a decree terminating parental rights." Id. See discussion infra Part IV.D. (explaining that state statute controlled the matter and reopening of the proceeding was precluded by S.D.C.L. [section] 26-7A-108).

(59.) Appellant's Brief, supra note 35, at 7.

(60.) Id.

(61.) Id.

(62.) See generally In re D.F., 2007 SD 14, 727 N.W.2d 481.

(63.) Id. [paragraph] [paragraph] 14-15.

(64.) Id. [paragraph] 15.

(65.) 305 N.W.2d393 (S.D. 1981).

(66.) In re D.F., 2007 SD 14, [paragraph] 9, 727 N.W.2d at 484.

(67.) Id. [paragraph] 16. See S.D.C.L. [section] 15-6-60(b) (2004 & Supp. 2007).

(68.) In re D.F., 2007 SD 14, [paragraph] 16, 727 N.W.2d at 487. See S.D.C.L. [section] 26-7A-108 (2004 & Supp. 2007).

(69.) In re D.F., 2007 SD 14, [paragraph] 17, 727 N.W.2d at 487.

(70.) Id. [paragraph] 21 (Sabers, J., dissenting) (citing Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D. 1992)). See Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981).

(71.) In re D.F., 2007 SD 14, [paragraph] 21, 727 N.W.2d at 487 (Sabers, J., dissenting).

(72.) Id. [paragraph] 122. See discussion and notes infra Part III.E.

(73.) In re D.F., 2007 SD 14, [paragraph] 22, 727 N.W.2d at 487.

(74.) See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) (articulating a reasonableness under the circumstances test for determining the adequacy of the method used to apprise a party of service of process).

(75.) Id. (citing Milliken v. Meyer, 311 U.S. 457 (1940)). In Mullane, the Supreme Court was deciding whether notice by publication was an acceptable method of service in a trust dispersion action where the names and addresses of affected parties were reasonably ascertainable. Id. See supra Part II.

(76.) Mullane, 339 U.S. at 320 (citing McDonald v. Mabee, 243 U.S. 90, 91 (1917)).

(77.) Id.

(78.) See id. at 317. See also supra notes 73-74 and accompanying text.

(79.) Mullane, 339 U.S. at 315.

(80.) Id.

(81.) See id.

(82.) In re D.F., 2007 SD 14, [paragraph] 18, 727 N.W.2d 481, 484 (citing United Nat'l Bank v. Searles, 331 N.W.2d 288, 291-92 (S.D. 1983)).

(83.) Mullane, 339 U.S. at 314.

(84.) Id. See Note, Right to Appeal Termination of Parental Rights, 111 HARV. L. REV. 249, 252 (1997).

(85.) Mullane, 339 U.S. at 314.

(86.) 234 U.S. 385, 394 (1914). In Grannis, the Court based its decision in an adverse property claim on the premise that due process of law requires the opportunity to be heard. Id.

(87.) Id.

(88.) Id.

(89.) U.S. CONST. amend. XIV, [section] 1.

(90.) Id.

(91.) See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).

(92.) See Bd. of Regents v. Roth, 408 U.S. 564, 569-72 (1972).

(93.) Lassiter, 452 U.S. at 24.

(94.) Id. at 24-25.

(95.) 424 U.S. 319 (1976) (holding that individuals have a property right in social security benefits and that the termination of those benefits implicates due process analysis).

(96.) See id. at 331.

(97.) See id. at 335.

(98.) Id. See Philip J. Prygoski, When a Hearing Is Not A Hearing: Irrebuttable Presumptions and Termination of Parental Rights Based on Status, 44 U. PITT. L. REV. 879, 920 (1983) (contending that the problem with applying the Mathews test in termination proceedings is recognizing and defining the "unique relationship" that exists between parents and children and "the interrelationship between their respective rights and interests").

(99.) Mathews, 424 U.S. at 335.

(100.) See id. at 333.

(101.) Id.

(102.) Jennifer E. Burns, Should Marriage Matter?: Evaluating the Rights of Legal Absentee Fathers, 68 FORDHAM L. REV. 2299, 2325 (2000) (contending that both public policy and common sense weigh against granting a legal father, who has sacrificed his right to be a parent, continual notice and opportunity to be heard in state matters affecting his child). Compare id. with In re D.F., 2007 SD 14, 727 N.W.2d 481 (involving a mother who was never present for any proceedings prior to termination of her parental rights).

(103.) See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (acknowledging the Court's consistent recognition of a constitutionally protected parent-child relationship); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion) (recognizing the Court's many decisions identifying a freedom of personal choice in matters pertaining to family life as a protected liberty interest by the due process clause); Smith v. Org. of Foster Families, 431 U.S. 816, 845 (1977) (stating that the liberty interest in family privacy has its contours in "intrinsic human rights"); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (stating that the liberty interest in family privacy has its contours in "intrinsic human rights").

(104.) Burns, supra note 102, at 2325. See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (recognizing fundamental interest in marriage, family life, and the upbringing of children); Griswold v. Connecticut, 381 U.S. 479, 491 (1965) (Goldberg, J., concurring) (acknowledging that the Ninth Amendment recognizes the right of privacy in marriage as fundamental, though not specifically mentioned in the Constitution).

(105.) Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that marriage and procreation are fundamental to the very existence and survival of the race and, therefore, are protected by the Due Process Clause); Burns, supra note 102, at 2325.

(106.) May v. Anderson, 345 U.S. 528, 533 (1953).

(107.) See Moore, 431 U.S. at 499; Stanley, 405 U.S. at 651.

(108.) Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citing Milliken v. Meyer, 311 U.S. 457 (1940)).

(109.) Roller v. Holly, 176 U.S. 398, 414 (1900) (holding that notice of five days for a nonresident of a foreclosure suit, where it would require constant traveling for four days to reach the court, is not insufficient to constitute reasonable notice).

(110.) See Mullane, 339 U.S. at 314

(111.) See id.

(112.) Id.

(113.) 380 U.S. 545, 552 (1965).

(114.) Id. The Court held that the constitutional defect resulting from failure of mother and her successor husband to notify divorced father of proceedings to adopt child was not cured by a subsequent hearing for father upon his motion to set aside adoption decree, since father's burden to prove that he had contributed to support of his daughter to the best of his financial ability for two-year period would not have been required of him had he been given timely notice. See id.

(115.) Id. at 551.

(116.) Id. (citing Speiser v. Randall, 357 U.S. 513, 525 (1958)) (internal quotations omitted).

(117.) See, e.g., Mullane, 339 U.S. at 314 (citing Milliken v. Meyer, 311 U.S. 457 (1940)).

(118.) Id. See Jo-Leo W. Carney-Waterton, The Postman Must Always Ring Twice: When Preliminary Attempts at Notice are Unsuccessful, Is the State Obligated to Take Additional Reasonable Steps to Ensure That a Person Receives Adequate Notice?, 34 S.U.L. REV. 65, 82-83 (2007) (discussing the promulgation of Mullane's balancing test, which "is so essentially rudimentary that the Court was able to reduce its syntax and potency to one compelling, but short, statement: 'Against this interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment."').

(119.) See In re D.F., 2007 SD 14, [paragraph] 9, 727 N.W.2d 481, 484 (citing In re S.P., 672 N.W.2d 842, 846 (Iowa 2003)).

(120.) Id.

(121.) See In re F.J.F., 312 NW .2d 718, 720 (S.D. 1981). The court held that the Due Process Clause of the Fourteenth Amendment provided the alleged father of twins a hearing on his paternity claim. Id. Father was entitled to such a hearing even though he had actual knowledge and chose not to attend a prior hearing that resulted in termination of the mother's parental rights. See id.

(122.) See id. The court held that an "additional, fundamental question of law was activated by the facts. It relates to whether [the father] could be denied the opportunity to be heard on his claim of paternity." Id. The court held that the "Due Process Clause of the Fourteenth Amendment to the United States Constitution required the trial court to hear [father's] paternity claim and transcended any statute that might otherwise preclude such a hearing." Id. Father had a right to an opportunity to establish his liberty interest as a parent. Id. The court concluded that this interest is guaranteed by the Fourteenth Amendment and protected by the Due Process Clause. Id.

(123.) 405 U.S. 645, 649 (1972) (involving a state determination on a father's fitness to gain custody of his children after the death of their mother).

(124.) Id.

(125.) Prygoski, supra note 98, at 920 (citing Stanley v. Illinois, 405 U.S. 645 (1972)).

(126.) 434 U.S. 246, 255 (1978).

(127.) Id.

(128.) 822 F.2d 1493 (Okla. Civ. App. 1987).

(129.) Id. at 1497 (internal quotations omitted).

(130.) In re A.W., 401 N.W.2d 477, 479 (Neb. 1987) (holding that service by publication was not warranted because a reasonably diligent search had not been conducted in a proceeding to terminate mother's rights to her son). See NEB. REV. STAT. [section] 25-517.02 (2004), which states:
   Upon motion and showing by affidavit that service cannot be made
   with reasonable diligence by any other method provided by statute,
   the court may permit service to be made (1) by leaving the process
   at the defendant's usual place of residence and mailing a copy by
   first-class mail to the defendant's last-known address, (2) by
   publication, or (3) by any manner reasonably calculated under the
   circumstances to provide the party with actual notice of the
   proceedings and an opportunity to be heard.


Id.

(131.) Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981) (citing Davis v. Kressly, 107 N.W.2d 5 (S.D. 1961)).

(132.) See id.

(133.) Id. Appellants could have reasonably been served personally since their whereabouts were readily ascertainable. Id.

(134.) Nolan v. Nolan, 490 N.W.2d 517,520 (S.D. 1992).

(135.) See Spade v. Branum, 2002 SD 43, [paragraph] 11, 643 N. W.2d 765, 769. This is of great importance as:
   [P]roper service of process is safeguarded by the requirement that,
   in a case where a defendant cannot be found, a court must be
   satisfied, before it exercises its discretion to order service by
   publication, that a plaintiff has used due diligence in the attempt
   to locate and personally serve a defendant[.]


Id. (quoting S.D.C.L. [section] 26-7A-48 (2004 & Supp. 2007)).

(136.) Id.

(137.) 490 N.W.2d 517 (S.D. 1992).

(138.) See id.

(139.) Id. at 521 (determining that the trial court's decision to grant wife leave to serve process in divorce action by publication was void due to her inaccurate statements made about the location of husband).

(140.) Id.

(141.) Id. (citing Preston v. Denkins, 382 P.2d 686 (Ariz. 1963)).

(142.) Id. at 518.

(143.) Id. at 519.

(144.) Id. at 521.

(145.) Id.

(146.) See id.

(147.) Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

(148.) Nolan, 490 N.W.2d at 520.

(149.) Grannis v. Ordean, 234 U.S. 385, 394 (1914).

(150.) 672 N. W.2d 843 (Iowa 2003).

(151.) In re D.F., 2007 SD 14, [paragraph] 8, 727 N.W.2d 481, 484 (citing In re S.P., 672 N.W.2d at 846).

(152.) Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981).

(153.) In re S.P., 672 N.W.2d at 845 (citing Stubbs v. Hammond, 135 N. W.2d 540, 543 (Iowa 1965)).

(154.) See generally id. at 843.

(155.) Id. at 847.

(156.) See id. at 846. See also supra Part III.B.

(157.) See Qualley v. State Fed. Savs. & Loan, 487 N.W.2d 353, 355 (Iowa Ct. App. 1992) (holding in a contract dispute that bank did not make a reasonably diligent effort before notifying absent party through publication). See also In re A.W., 401 N.W.2d 477, 479 (Neb. 1987).

(158.) 2005 SD 120, 708 N.W.2d 673.

(159.) Id. [paragraph] 15 (citing Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981)).

(160.) See Kickapoo Tribe of Okla. v. Rader, 822 F.2d 1493 (Okla. Civ. App. 1987). The court held that the attempts to locate child's biological father, before notice by publication to terminate parental rights could be approved, did not satisfy due process. Id. Affidavit for service by publication, as required under Oklahoma law, stated that State agent was unsuccessful in locating father. Id. Agent testified, however, that his report was based on a statement by child's mother, which indicated that no further attempts would prove fruitful. Id.

(161.) Compare Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950), with In re D.F., 2007 SD 14, 727 N.W.2d 481. See Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington v. Texas, 441 U.S. 418, 425 (1979)). As stated by the Santosky Court, "[w]hen the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it." Id.

(162.) See In re F.J.F., 312 N.W.2d 718, 720 (S.D. 1981) (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

(163.) S.D.C.L. [section] 26-7A-108 (2004 & Supp. 2007).

(164.) In re D.F., 2007 SD 14, [paragraph] 16 n.6, 727 N.W.2d at 487 n.6 (identifying the different language of state statues but declining to interpret them on the basis that Mother's underlying rationale fails under either provision).

(165.) Id.

(166.) 312 N.W.2d 718 (S.D. 1981).

(167.) Id. at 719.

(168.) Id. The unique facts of this case included that the non-identical twins were fathered by different men. Id

(169.) Id.

(170.) See id. at 721.

(171.) In re D.F., 2007 SD 14, [paragraph] 16, 727 N.W.2d 481, 487.

(172.) Id. [paragraph][paragraph] 16-17.

(173.) Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). See Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (examining what protections exist when terminating welfare payments).

(174.) See Cafeteria Workers, 367 U.S. at 894.

(175.) See Quilloin v. Walcott, 434 U.S. 246, 255 (1978). See also Santosky v. Kramer, 455 U.S. 745, 753-54 (1982) (holding that the Constitution requires certain procedural protections to justify termination of parental rights); Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981).

(176.) See Quilloin, 434 U.S. at 255. Compare id. with PAUL D. STEINHAUER, THE LEAST DETRIMENTAL ALTERNATIVE: A SYSTEMATIC GUIDE TO CASE PLANNING AND DECISION MAKING FOR CHILDREN IN CARE 202 (1991) (examining the role of the family court in balancing the interests of children to be with natural parents against the potential of future harm).

(177.) See generally Quilloin, 434 U.S. 246.

(178.) See Stanley v. Illinois, 405 U.S. 645, 652 (1972). See also Burns, supra note 102. Compare id. with In re D.F., 2007 SD 14, 727 N.W.2d 481 (declining to grant Mother an opportunity to present parental fitness evidence).

(179.) See generally Armstrong v. Manzo, 380 U.S. 545, 552 (1965). See also In re D.F., 2007 SD 14, 727 N.W.2d 481.

(180.) See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950).

(181.) See Carney-Waterton, supra note 118, at 92-93 (discussing what the government must do to consistently exercise due diligence when it discovers that notice of a pending action has failed to arrive at its intended destination).

(182.) See Memorandum Decision, supra note 11, at 3. Compare Memorandum Decision, supra note 11, with In re D.F., 2007 SD 14, [paragraph] 11, 727 N.W.2d at 485 (detailing the State's efforts and testimony regarding the reasonable inquiries that were made into Mother's whereabouts).

(183.) See In re D.F., 2007 SD 14, [paragraph] 727 N.W.2d 481.

(184.) Id. [paragraph] 9.

(185.) Id. (citing Ryken v. State, 305 NW.2d 393, 395 (S.D. 1981)).

(186.) In re D.F., 2007 SD 14, [paragraph] 15, 727 N.W.2d at 486.

(187.) See generally In re D.F., 2007 SD 14,727 N.W.2d 481.

(188.) Appellee's Brief, supra note 36, at 14-18. Mother had seven children, all but one of whom resided with other guardians. Id. Mother had not attempted to stay in contact with D.F. throughout the years. Id. She did, however, send Father a Christmas card of a vindictive nature sometime after their separation. Id. Mother had moved at least 14 times after leaving Father. Id.

(189.) See Appellant's Brief, supra note 35. See also Prygoski, supra note 98, at 920 (stating the fundamental liberty interest of biological parents in the care, custody, and management of their child does not disappear simply because they have not been model parents or have lost temporary custody of their child to the State) (citing Samosky v. Kramer, 455 U.S. 745, 753 (1982)).

(190.) Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

(191.) Id.

(192.) See In re D.F., 2007 SD 14, 727 N.W.2d 481.

(193.) See Armstrong, 380 U.S. at 552.

(194.) Id.

(195.) See id.

(196.) See generally Armstrong, 380 U.S. 545.

(197.) Compare In re D.F., 2007 SD 14, [paragraph] 15, 727 N.W.2d at 486 (majority opinion), with id. [paragraph] 21 (Sabers, J., dissenting). See In re E.D.J., 499 N.W.2d 130 (S.D. 1993) (holding notice by publication combined with actual notice to mother was sufficient process); United Nat'l Bank v. Searles, 331 N.W.2d 288, 292 (S.D. 1983); In re F.J.F., 312 N.W.2d 718, 719 (S.D. 1981); Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981).

(198.) See S.D.C.L. [section] 26-7A-48 (2004 & Supp. 2007). Compare In re D.F., 2007 SD 14, [paragraph] 9, 727 N.W.2d at 486 (majority opinion), with id. [paragraph] 21 (Sabers, J., dissenting).

(199.) See S.D.C.L. [section] 26-7A-48.

(200.) In re D.F., 2007 SD 14, 727 N.W.2d 481.

(201.) Id. [paragraph] 15. Using the language "due diligence" was a result of the court's adherence to accepted case law. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950).

(202.) See Appellant's Brief, supra note 35, at 9.

(203.) See Memorandum Decision, supra note 11, at 2 (stating no particular attempt or investigation was undertaken to find Mother). But see In re D.F., Juv. Case No. 02-21, S.D. Cir. Ct., 1st Cir. (July 22, 2004) (declaring that the court was satisfied that Mother's whereabouts could not be found after a diligent search had been made and that notice by publication was appropriate under the circumstances). It is important to stress that the particular facts of this case do not implicate the DSS generally. The DSS serves an important role in promoting healthy families and safe communities in South Dakota. Presumably, DSS was working in D.F.'s best interests, not necessarily Mother's. It is necessary to recognize this fact while dissociating it from the due process issues present.

(204.) See In re D.F., 2007 SD 14, [paragraph][paragraph] 7-15, 727 N.W.2d at 483-86 (citing to both state statute and applicable case law, but never distinguishing state statutes as controlling on the issue of due diligence).

(205.) Id.

(206.) Id. [paragraph] 19. Compare id. with id. [paragraph] 21 (Sabers, J., dissenting).

(207.) Compare id. [paragraph] 9 (majority opinion), with id. [paragraph] 21 (Sabers, J., dissenting).

(208.) Id. [paragraph] 9 (majority opinion).

(209.) See id. [paragraph] 14.

(210.) Id. [paragraph] 13 n.4.

(211.) Id. [paragraph] 13 (rejecting Mother's contentions that the Department of Social Services did not exercise due diligence before resorting to notice by publication in the parental rights termination proceeding). Compare id. with M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (holding that a Mississippi statute violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment while specifically recognizing the unique importance of termination proceedings); Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981) (holding that parental termination proceedings involve substantial complexity and require due process analysis); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (recounting that the Court "has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment"). South Dakota statutes differ greatly in their treatment of parental termination and property proceedings. Compare S.D.C.L. [section] 26-7A-48 (2004 & Supp. 2007) (requiring notice by publication to take place once per week for one week), with S.D.C.L. [section] 21-48-6 (2004 & Supp. 2007) (requiring notice of a foreclosure proceeding to be published at least once per week for four successive weeks).

(212.) See Nolan v. Nolan, 490 N.W.2d 517 (S.D. 1992). See also discussion supra Part III.E.

(213.) Nolan, 490 N.W.2d at 520.

(214.) Id. See S.D.C.L. [section] 15-9-7 (2004 & Supp. 2007), which provides in relevant part that:
   [w]here the person on whom the service of the summons, writ, order,
   or decree is to be made cannot, after due diligence, be found
   within the state and that fact appears by affidavit to the
   satisfaction of the court or a judge thereof, and it in like manner
   appears that a cause of action exists against the defendant in
   respect to whom the service is to be made or that he is a proper
   party to an action relating to real or personal property in this
   state, or to the writ, order, or decree, such court or judge may
   grant an order that the service be made by publication of the
   summons in any of the cases described in [section][section] 15-9-8
   to 15-9-15, inclusive.


Id. Compare id. with S.D.C.L. [section] 26-7A-48 (2004 & Supp. 2007).

(215.) See Nolan, 490 N.W.2d at 521.

(216.) See Appellant's Brief, supra note 35, at 6.

(217.) See In re D.F., 2007 SD 14, 727 N.W.2d 481.

(218.) Nolan, 490 N.W.2d at 520 (holding, in a divorce action that was commenced through service by publication, that the default judgment was void due to a lack of in personam jurisdiction stemming from mother's failure to even attempt to use information she had of father's telephone number or his possible address in Tennessee).

(219.) Compare Appellant's Brief, supra note 35, at 8-9 (citing numerous additional steps the State should have taken that were both reasonable and likely to yield information on Mother's whereabouts), and In re D.F., 2007 SD 14, [paragraph] 121, 727 NW.2d at 487 (Sabers, J., dissenting) (agreeing with Mother's contention that due diligence had not been exercised), with In re D.F., 2007 SD 14, [paragraph] 15, 727 N.W.2d at 486 (majority opinion) (stating that the "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").

(220.) See In re D.F., 2007 SD 14, 121, 727 N.W.2d at 487 (Sabers, J., dissenting).

(221.) See Carrieri, supra note 45, at 345-47. The handbook defined a diligent search for serving notice on absent parents and provides some general guidelines for service by publication:

If the parents cannot be served personally prior to the return date of the citation, the attorney for the agency must cause a diligent search to be made for the parents. Usually the attorney will commission a private investigator to do the diligent search and report the results in an affidavit. When performing a diligent search, the following are some of the efforts which should be made to locate the missing parent or parents:

(1) A visit to the parents' last known address and interviewing neighbors, store owners, janitors and postmen to ascertain whether it is known where the parents have moved and to what address, if known.

(2) Interviewing all known relatives in the area including grandparents, parents, brothers and sisters to ascertain whether the missing parent visits from time to time or whether an address is known.

(3) A scan of welfare records.

(4) A scan of local hospitals.

(5) A scan of mental health hospitals.

(6) A scan of homeless shelters.

(7) A scan of drug rehabilitation centers.

(8) A check of the local telephone book and communication with each person with the same name as the missing parent.

(9) A check with the local post office to determine if letters sent to the last known address have been forwarded.

(10) A check with the Board of Elections.

(11) A check with the Department of Motor Vehicles.

(12) A scan of the Department of Corrections records to determine if the parent has been incarcerated.

If the parents cannot be located, the affidavit of diligent efforts is submitted to the court with a proposed order for service by publication. If the Surrogate is satisfied that diligent efforts were made and the parent or parents cannot be located, the judge will sign the order for service by publication and the citation will be published in an appropriate newspaper.

Id. See also Prygoski, supra note 98, at 884 n.25. Prygoski argues that the need for additional protections in termination proceedings originates from family integrity being one of the most important bases in such determinations:

Part One: General Principles

1.1 Family Autonomy.

Laws structuring a system of coercive intervention on behalf of endangered children should be based on a strong presumption for parental autonomy in child rearing. Coercive state intervention should occur only when a child is suffering specific harms as defined in Standard

2.1. Active state involvement in child care or extensive monitoring of each child's development should be available only on a truly voluntary basis except in situations described by these standards.

Commentary.
   This section specifies the basic value preference underlying the
   proposed standards, that childrearing should be left to the
   discretion of parents unless they fail to protect a child from
   certain harms, specified by statute. This preference is consistent
   not only with our historic policy of giving substantial deference
   to parental decision making with regard to childrearing, but also
   with the great majority of statutory enactments and judicial
   decisions in this country . . . Coercive state intervention should
   be limited for a number of reasons. Our political commitments to
   individual freedom and privacy, diversity of views and lifestyles,
   and free exercise of religious beliefs are all promoted by allowing
   families to raise children in a wide variety of living situations
   and diverse childrearing patterns. Extensive intervention carries a
   substantial risk of intervening to 'save' children of poor parents
   and/or minority cultures. Moreover, a presumption in favor of
   parental autonomy comports with our limited knowledge regarding
   childrearing and ways to effect long-term change in a given child's
   development ... We have no agreed upon values about the 'proper'
   way to raise a child. The best we can do is establish certain basic
   harms from which all children should be protected. In addition,
   there is substantial evidence that, except in cases involving very
   seriously harmed children, we are unable to improve a child's
   situation through coercive intervention ... In fact intervention
   may worsen the child's situation.


Id.

(222.) See In re D.F., 2007 SD 14, [paragraph] 14, 727 N.W.2d at 486.

(223.) See generally Tiffany Joseph, Identification with Social Security Numbers, 2003 UCLA J.L. & TECH. 15 (2003). Joseph noted how readily available personal information is once someone has another's social security number. Id.

(224.) Memorandum Decision, supra note 11, at 3.

(225.) See In re D.F., 2007 SD 14, [paragraph] 11, 727 N.W.2d at 485.

(226.) See Appellant's Brief, supra note 35, at 3.

(227.) See In re D.F., 2007 SD 14, [paragraph] 13 n.4, 727 N.W.2d at 486.

(228.) Id. [paragraph] 14 (citing In re S.P., 672 N.W.2d 842, 846 (Iowa 2003)).

(229.) Id. [paragraph] 9 (citing Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D. 1992)). See Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981).

(230.) Compare Memorandum Decision, supra note 11, at 3, with In re D.F., 2007 SD 14, [paragraph] [paragraph] 13-14, 727 N.W.2d at 486.

(231.) In re D.F., 2007 SD 14, [paragraph] 121, 727 N.W.2d at 487 (Sabers, J., dissenting).

(232.) See id. [paragraph] 9 (majority opinion). Compare id. with Carrieri, supra note 45, at 345-47.

(233.) See Carney-Waterton, supra note 118, at 82-83.

(234.) In re D.F., 2007 SD 14, [paragraph][paragraph] 14-15, 727 N.W.2d at 486 (citing Nolan, 490 N.W.2d at 520). See Ryken, 305 N.W.2d at 395.

(235.) See In re D.F., 2007 SD 14, [paragraph] 22, 727 N.W.2d at 487 (Sabers, J., dissenting).

(236.) Id.

(237.) Id. [paragraph] 13 (majority opinion).

(238.) See generally Memorandum Decision, supra note 11.

(239.) See In re D.F., 2007 SD 14, [paragraph] 2, 727 N.W.2d at 482; Appellee's Brief, supra note 36, at 16.

(240.) See In re D.F., 2007 SD 14, [paragraph] 2, 727 N.W.2d at 482; Appellee's Brief, supra note 36, at 16.

(241.) See Appellee's Brief, supra note 36, at 16-17.

(242.) See In re D.F., 2007 SD 14, [paragraph] 12, 727 N.W.2d at 485-86.

(243.) Id. See ROGER M. BARON, CASES AND MATERIALS ON FAMILY LAW 105 (Univ. of South Dakota Law School Found. ed., State Publishing and Printing Company, Inc., 2005) (1990). Professor Baron makes the point that in divorce actions, it is "hard to believe that the plaintiff does not know of someone somewhere who would know where the defendant is located." Id.

(244.) See In re D.F., 2007 SD l4, [paragraph] [paragraph] 12-13, 727 N.W.2d at 485-86.

(245.) Id. [paragraph] 13.

(246.) See Appellant's Brief, supra note 35, at 6.

(247.) See Joseph, ,supra note 223, at 15.

(248.) See In re D.F., 2007 SD 14, [paragraph] 21, 727 N.W.2d at 487 (Sabers, J., dissenting). See also In re E.D.J., 499 N.W.2d 130 (S.D. 1993);. United Nat'l Bank v. Searles, 331 N.W.2d 288, 292 (S.D. 1983); In re F.J.F., 312 N.W.2d 718, 719 (S.D. 1981); Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981).

(249.) See Appellant's Brief, supra note 35, at 14.

(250.) See id. at 17-18. See also Prygoski, supra note 98, at 920. Prygoski argues that a statute can be attacked as violative of due process through the doctrine of irrebuttable presumptions. Id. at 904-05. This doctrine has been defined by statutory provisions that impose a burden upon a class of individuals without first making individual factual determinations. Id. The United States Supreme Court has held that these statutes create a presumption which "operate to deny a fair opportunity to rebut" and violate the due process clause. Id.

(251.) See In re D.F., 2007 SD 14, [paragraph] 16, 727 N.W.2d at 486-87. See also S.D.C.L. [section] 26-7A-108 (2004 & Supp. 2007).

(252.) In re F.J.F., 312 N.W.2d at 720.

(253.) See Carrieri, supra note 45, at 27.

(254.) See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

(255.) See In re D.F., 2007 SD 14, [paragraph] 16, 727 N.W.2d at 487 (deciding that because due diligence had been established, there was no basis to re-examine whether the issue should have been allowed to be reopened). See also S.D.C.L. [section] 15-26A-3 (2004 & Supp. 2007), which states:

Appeals to the Supreme Court from the circuit court may be taken as provided in this title from:

(1) A judgment;

(2) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;

(3) An order granting a new trial;

(4) Any final order affecting a substantial right, made in special proceedings, or upon a summary application in an action after judgment;

(5) An order which grants, refuses, continues, dissolves, or modifies any of the remedies of arrest and bail, claim and delivery, injunction, attachment, garnishment, receivership, or deposit in court;

(6) Any other intermediate order made before trial, any appeal under this subdivision, however, being not a matter of right but of sound judicial discretion, and to be allowed by the Supreme Court in the manner provided by rules of such court only when the court considers that the ends of justice will be served by determination of the questions involved without awaiting the final determination of the action or proceeding; or

(7) An order entered on a motion pursuant to [section] 15-6-11.

Id.

(256.) See In re D.F., 2007 SD 14,[paragraph] 16, 727 N.W.2d at 487.

(257.) See S.D.C.L. [section] 26-7A-108 (2004 & Supp. 2007).

(258.) See In re D.F., 2007 SD 14, [paragraph] 16, 727 N.W.2d at 486-87 (showing the result of majority's decision to recognize but ultimately pass on determining relationship between particular provisions).

(259.) Id.

(260.) See In re E.D.J., 499 N.W.2d 130 (S.D. 1993); United Nat'l Bank v. Searles, 331 N.W.2d 288, 292 (S.D. 1983); In re F.J.F., 312 N.W.2d 718, 719 (S.D. 1981); Ryken v. State, 305 N.W.2d 393, 395 (S.D. 1981).

(261.) See In re E.D.J., 499 N.W.2d 130; United Nat'l Bank, 331 N.W.2d at 292; In re F.J.F, 312 N.W.2d at 719; Ryken, 305 N.W.2d at 395.

(262.) See In re D.F., 2007 SD 14, [paragraph] 16 nn.5-6, 727 N.W.2d at 486-87 nn.5-6.

(263.) See id. [paragraph] 16.

(264.) Id.

(265.) See Appellant's Brief, supra note 35, at 17-18.

(266.) See id. at 18-19.

(267.) See In re F.J.F., 312 N.W.2d 718, 719 (S.D. 1981) (declaring that certain requirements must be met before allowing an appeal).

(268.) See S.D.C.L. [section] 26-7A-108 (2004 & Supp. 2007).

(269.) See supra notes 4-6 and accompanying text.

(270.) See Appellant's Brief, supra note 35, at 11. See also In re S.P., 672 N.W.2d 843, 845 (Iowa 2003) (citing Stubbs v. Hammond, 135 N.W.2d 540, 543 (Iowa 1965)); In re A.W., 401 N.W.2d 477, 479 (Neb. 1987); Kickapoo Tribe of Okla. v. Rader, 822 F.2d 1493 (Okla. Civ. App. 1987). See also discussion supra Part III.F.

(271.) See In re S.P., 672 N.W.2d at 845; In re A. W, 401 N.W.2d at 479; Kickapoo Tribe of Okla., 822 F.2d 1493.

(272.) See generally In re D.F., 2007 SD 14, 727 N.W.2d 481. See also discussion supra Part IV.

(273.) See discussion and notes supra Part IV.

(274.) See discussion and notes supra Part III.C.

(275.) See infra Part V.

DEREK ANDREW NELSEN, J.D. Candidate, 2009, University of South Dakota School of Law, Vermillion, South Dakota; B.A., 2006, University of Nebraska, Lincoln, Nebraska. The author expresses his genuine appreciation to Professor Roger Baron for his insight and guidance, to Tony Venhuizen and Siri Buller for their editorial direction, and to his parents for the support and opportunities they have provided.
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Author:Nelsen, Derek Andrew
Publication:South Dakota Law Review
Date:Mar 22, 2008
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