In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP FOR T.H.M. and M.M.M., Minor Children, 640 N.W.2d 68

GILBERTSON, Chief Justice. [¶ L] Melanie Regalado (Grandmother) brought Guardianship proceedings to gain custody of T.H.M. and M.M.M., minor children of Ardith Perry (Mother), on grounds of abuse and neglect. The trial court determined the children to be abused and neglected, determined Mother to be unfit, terminated Mother’s custodial rights, and granted custody to Grandmother.

Mother appeals on grounds that the guardianship proceeding was not the proper means in which to transfer the custodial rights of a parent to a non-parent where abuse and neglect was the basis for the transfer and that Mother was denied her constitutional right to procedural due process. We affirm as to the creation of a guardianship, but reverse and remand as to the determination of abuse and neglect and transfer of custody. FACTS AND PROCEDURE [¶ 2.] T.H.M. and M.M.M. are the natural children of Michael M. and Mother. Michael was the eldest son of Grandmother. T.H.M. was born September 16, 1993.

M.M.M. was born May 23,1995. [¶ 3.] Michael and Mother were married in February of 1994 and spent a significant amount of time between the years of 1993 and 1997 living in Grandmother’s home, in both Colorado and California. After Michael committed suicide on December 21, 1997, Mother allowed the children to have extended visits with Grandmother in California. When this action began, the children had been staying with Grandmother for five months, with Mother’s permission. [¶ 4.] Grandmother commenced proceedings pursuant to the South Dakota Guardianship Act, SDCL

chapter 29A-5, on November 29, 1999, alleging it would be in the best interests of the children if she were appointed guardian and conservator for T.H.M. and M.M.M. Mother filed a motion for

summary judgment. Grandmother responded by moving to amend her application to allege the children were abused and neglected and Mother was unfit. Grandmother’s motion was granted. Mother then filed a motion to dismiss on grounds that guardianship proceedings were not the proper means to involuntarily transfer custody from a parent to a non-parent. Mother asserted that the proceedings should be held pursuant to SDCL chapters 26-7A (Juvenile Court) and 26-8A (Protection of Children from Abuse or Neglect). Mother also filed a writ of habe-as corpus, alleging her children were being illegally held from her custody.

The trial court denied Mother’s motion to dismiss, dismissed the writ of habeas corpus, and entered an order for interim custody in favor of Grandmother based upon the best interests of the child standard. [¶ 5.] In response to Mother’s objection to telephonic testimony of the out-of-state witnesses and an ex parte motion filed by the children’s court appointed attorney, the trial court also entered an order authorizing travel expenses so that the attorney could travel to California to take depositions. Mother’s own requests for a court appointed attorney and authorization for travel expenses were denied.

The children’s attorney deposed nine witnesses in California on May 15, 2000. Mother was financially unable to attend or participate in these depositions. Copies of the depositions were provided to Mother on the first day of trial and, over the objections of Mother’s attorney, were admitted into evidence the following day. [¶ 6.] Mother’s attorney also filed a motion to dismiss on grounds that SDCL 29A-5-203, the guardianship provision, unconstitutionally infringed upon Mother’s Fourteenth Amendment due process rights to the “care, custody, and control” of her children.

The trial court, however, refused to rule on the motion. The court concluded, as a matter of law, that Mother was unfit, that compelling reasons existed to separate T.H.M. and M.M.M. from their half-siblings, and that it was in the best interests of the children to transfer custody to Grandmother. Mother appeals, raising the following issues: 1. Whether a guardianship proceeding commenced by a non-parent and based upon allegations of abuse and neglect is a proper proceeding to terminate the custodial rights of a natural parent. 2.

Whether Mother was deprived of her constitutional right to procedural due process when the trial court allowed a non-parent to use the South Dakota Guardianship Act to involuntarily terminate her custodial rights. STANDARD OF REVIEW [¶ 7.] This case involves a matter of statutory

interpretation. It is well settled that “[statutory

interpretation presents a question of law reviewable de novo.” Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480). This Court need only construe a statute if the plain meaning of the statute is ambiguous. Our rules of statutory construction are as follows: The purpose of statutory construction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute.

The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain, and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17) (additional citations omitted).

In a case where two statutes touch upon the same subject matter, there is a presumption that the Legislature intended the two to coexist and that it “did not intend an absurd or unreasonable result.” Id. Therefore, the statute with more specific language “relating to a particular subject will prevail over the general terms of another statute.” Id. ANALYSIS AND DECISION [¶ 8.] 1.

Whether a guardianship proceeding commenced by a non-parent and based upon allegations of abuse and neglect is a proper proceeding to terminate the custodial rights of a natural parent. [¶ 9.] Proceedings instituted under the South Dakota Guardianship Act, set forth in SDCL

chapter 29A-5, are not the proper means of transferring custody from a parent to a non-parent without a prior determination of a parent’s unfitness. See Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953) (holding mother’s disqualification as custodian is prerequisite to award of custody to any other person) overruled on other grounds by Matter of Termination of Parental Rights of P.A.M., 505 N.W.2d 395 (S.D.1993). When allegations of abuse and neglect serve as the basis for such a determination, the action becomes an adjudication of abuse and neglect. SDCL 29A-5-106 provides: Nothing in this

chapter affects the provisions of chapters 26-7A, 26-8A, 26-8B and 26-8C relating to the appointment of guardians and conservators and the administration of guardianships and con-servatorships for children who have been adjudicated to be delinquent, abused, neglected, or in need of supervision .... In the event of any inconsistency or conflict, the provisions of chapters 26-7A, 26-8A, and 26-8C or of Title 27A shall control, and the provisions of this

chapter are in all respects to be supplementary thereto. (emphasis added). Thus, where allegations of abuse and neglect serve as the grounds for the guardianship petition, as was the case here, the statutory provisions specifically relating to abuse and neglect proceedings, as well as the provisions relating to juvenile court, must control. See Martinmaas, 2000 SD 85 at ¶ 49, 612 N.W.2d at 611. [¶ 10.] Adjudication of abuse or neglect is done in juvenile court pursuant to SDCL chapters 26-7A and 26-8A. SDCL 26-7A-2 provides for exclusive jurisdiction of the juvenile court as to dependent or neglected children.

These chapters were enacted for the particular purpose of “establish[ing] an effective state and local system for the protection of children from abuse or neglect.” SDCL 26-8A-1. In so doing, the law requires that these statutes be liberally construed in favor of the child, the parents, and the state. SDCL 26-7A-6. The numerous constitutional safeguards embedded within chapters 26-7A and 26-8A also afford substantial protection.

Similar provisions cannot be found in the more general Guardianship Act. [¶ 11.] The Department of Social Services (DSS) cannot be bypassed when custody is being involuntarily taken from a natural parent in favor of a non-parent. See SDCL 26-8A-27; Matter of Z.Z., 494 N.W.2d 608, 610 (S.D.1992) (holding custody and guardianship of child whose natural parent is adjudicated unfit mandatorily vests with social services). Abuse and neglect allegations trigger the State’s interest, as parens patriae, in protecting the welfare of the child. SDCL 26-8A-1.

See also Matter of N.J.W., N.G.B., and K.F.B., 273 N.W.2d 134, 137 (S.D.1978) (holding State, as parens patriae, takes strong interest in care and treatment of children within its borders). The State is the only party that may seek to involuntarily deprive a parent of custody and place the custody of the child with a non-parent when abuse and neglect is the contested issue. The Legislature has delegated the State’s authority to DSS, an agency uniquely qualified in this area. SDCL 26-8A-8; 9.

The trial court usurped this role when it allowed Grandmother to by-pass mandatory custody proceedings by using the more general guardianship provisions. See People ex rel. H.O., 2001 SD 114, ¶ 9, 633 N.W.2d 603, 605. [¶ 12.] Grandmother asserts that the guardianship procedure was proper because it did not involve the final “termination” of parental rights. She argues, instead, that it was merely a custody proceeding, with modifiable results, and therefore need not comply with chapters 26-7A or 26-8A. Grandmother misses the point.

The revocation of custodial rights is not another party’s self-help proposition, no matter how sincere their intentions. The facts of this case necessitate a particular type of proceeding, an abuse and neglect determination, before a guardian who is vested with custody of the children may be appointed. The trial court used language from the abuse and neglect statutes, essentially adjudicating the children abused and neglected. Yet, two children, who lived in the same conditions, remain with Mother.

This adjudication should be done in juvenile court, pursuant to the abuse and neglect statutes, so that such an oversight may be avoided. One of the remedies under an abuse and neglect determination is the appointment of a guardian pursuant to SDCL 26-8A-22. There is simply no justification for Grandmother’s end-run around the proper statutory procedures. [¶ 13.] 2.

Whether Mother was deprived of her constitutional right to procedural due process when the trial court allowed a non-parent to use the South Dakota Guardianship Act to involuntarily terminate her custodial rights. [¶ 14.] The use of the Guardianship Act in this case to effect a change of custody is not merely a procedural flaw. SDCL chapters 26-7A and 26-8A exist for the protection of the children, the parents and the family unit.

Because these chapters deal with the fundamental right of parents to the care, custody, and control of then-children, they employ multiple constitutional safeguards that are not present in the Guardianship Act. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (holding care, custody and control of children is a fundamental right); Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (holding parents’ custodial rights are a fundamental interest guaranteed due process protection).

These safeguards cannot be brushed aside by those seeking custody, by the attorneys, or by the trial court when the requirements simply become inconvenient or burdensome. [¶ 15.] While the Guardianship Act merely provides for notice and an opportunity to be heard, proceedings under the abuse and neglect statutes are much more rigorous. For example, the protective sections that are at issue in this case include:

(1) SDCL 26-7A-30, providing the parent be advised of her constitutional rights, including the right to a court appointed attorney;

(2) SDCL 26-7A-34, providing for separate adjudicatory and dispositional hearings;

(3) SDCL 26-7A-39, providing for compulsory process for the attendance of witnesses;

(4) SDCL 26-7A-57-81, providing for discovery, especially the requirements for the manner and scope of examination, as well as the right of the parent to be present at the examination;

(5) SDCL 26-7A-82, placing an elevated “clear and convincing” burden of proof upon the party alleging abuse and neglect instead of a preponderance burden in a guardianship proceeding;

(6) SDCL 26-7A-83, providing the party who prepares reports or material to be admitted at trial shall be present at trial as a witness for examination and cross-examination; and

(7) SDCL 26-8A-21, providing reasonable efforts be made to eliminate the need for removal and to return the child after removal. Clearly, by allowing the custody action to proceed under the Guardianship Act, the trial court deprived Mother, and her children, of all of these constitutional safeguards. CONCLUSION [¶ 16.] The record of this case, together with the trial court’s findings of fact, at a minimum raise a serious question as to the treatment of these children by Mother. For the reasons set forth above, we reverse and remand to the trial court with directions to modify and limit its grant of guardianship to that of a guardian ad litem with those powers defined in SDCL 15-6-17(

c) and 34-12C-2. We further direct the trial court to order DSS to intervene in this action pursuant to its statutory duty under SDCL 26-8A-9, pending an adjudication of the abuse and neglect allegations. [¶ 17.] AMUNDSON, Justice, and GORS, Acting Justice, concur. [¶ 18.] SABERS and KONENKAMP, Justices, dissent. . Mother also has two other children: D.M., born February 6, 1997, and W.P., born January 29, 1999. D.M. was born during the marriage of Michael and Mother and was acknowledged by Michael as his child even though Michael was not the natural father. .

Court appointed counsel was not granted to Mother until after this appeal was filed. Mother filed an order to show cause with this Court and because of the important issue presented herein, this Court issued an order of remand requiring the trial court to appoint counsel. . The trial court also made findings of fact that the children were abused and neglected, using language set forth in SDCL 26-8A-2(2), (3) and (4).

These findings of fact are incorporated into the trial court’s order appointing guardian and conservator where the court states: [t]he Court further having considered ... the extent to which the children have been neglected in the home of the natural mother, ... ha[s] found the appointment of Melanie Regalado as Guardian and Conservator of the minor children is necessary because of the natural mother’s unfitness ... and is further necessary to protect the minor children from neglect or abuse, and there are no less restrictive alternatives .... . Grandmother cites Crouse v.

Crouse, 552 N.W.2d 413, 418 (S.D.1996), for support of the proposition that a private party may bring an action in guardianship proceedings to involuntary deprive a parent of custody. Grandmother’s reliance is misplaced. Our decision in that case simply pointed out two means by which a non-parent may gain custody of a child. Id. It did not, however, sanction the involuntary revocation of custody from a natural parent by a third party in guardianship proceedings.

We cited In re Marriage of Miller, 251 Mont. 300, 825 P.2d 189 (1992), which held where a child is not the natural or adopted child of the person seeking custody, the procedure to be used was in the child abuse, neglect and dependency sections. We agree with the Miller decision and further emphasize its holding today. . While legally correct that this is not a termination case, a guardianship in this case would have some factual similarities with a termination of parental rights.

If Grandmother, as guardian, takes the children with her back to California, Mother's destitute economic status would in reality terminate contact with the children, except possibly for any letters or an occasional phone call. .The dissent portrays this case as a choice between placing the children in the stable home of Grandmother or returning them to the deplorable conditions from which Grandmother removed them. Not so. The reality is that DSS or the courts will determine what is in the best interests of all four children and, it is a possibility that, T.H.M. and M.M.M. will remain with Grandmother.

But because of the interests at stake, it is all the more important to follow the proper statutory mandates, thus ensuring the constitutional protection of the children and the parent.