[¶ 1.] A petition alleging abuse and neglect of T.A. was filed on October 10, 2001 and T.A. was removed from his home and placed in foster care. After an adjudicatory hearing, T.A. was adjudged abused and neglected. After a dispositional hearing, T.A. was placed in a residential facility where he attended school and received therapy.
[¶ 2.] At the time of the events in question, T.A. was twelve years old. He is a special needs child who has been diagnosed with Tourette's Syndrome and Attention Deficit/Hyperactivity Disorder (ADHD).
[¶ 3.] Several days later, T.A.'s sister saw a large bruise on his thigh and reported it to his biological father, who reported it to the authorities. On October 9, 2001, agents from the Department of Social Services (DSS) and the Sheriff's office went to T.A.'s school to speak with him. The existence of the bruise was confirmed and T.A. was taken to a physician's assistant, Diane Kranz, who found bruises on T.A.'s shins, thigh, posterior, his belt line and his arms. T.A. told Kranz that his stepfather caused some of the bruises and others were caused when he fell running across his yard at night.
[¶ 4.] A petition alleging abuse and neglect was filed on October 10, 2001. The adjudicatory hearing was held on November 14 and 19, 2001 and January 18, 2002. The trial court filed the adjudication order on July 1, 2002. A dispositional hearing was held July 19, 2002 and a dispositional order was entered on August 20, 2002. The Parents appeal raising six issues for review:
We affirm the trial court on all issues.
STANDARD OF REVIEW
[¶ 5.] In reviewing abuse and neglect findings by the trial court, it is our duty to "uphold the trial court's decision unless the findings of fact are `clearly erroneous'." Interest of D.K., 245 N.W.2d 644, 649 (S.D.1976) (citing Matter of D.T., 89 S.D. 590, 237 N.W.2d 166 (S.D.1975); In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970)). Therefore, the trial court's decision will be set aside only if after a review of all the evidence, we are left with a "definite and firm conviction that a mistake has been made." Matter of A.M., 292 N.W.2d 103, 105 (S.D.1980) (citations omitted).
[¶ 7.] Parents contend that the evidence presented at the adjudicatory hearing was insufficient to justify the trial court's finding that T.A. was an abused and neglected child. We review a claim of insufficiency of evidence under the clearly erroneous standard. Matter of J.A.H., 502 N.W.2d 120, 123 (S.D.1993). Essentially, Parents contend that pursuant to SDCL 22-18-5, Stepfather's spanking with a belt constituted reasonable force used by a parent. SDCL 22-18-5 provides in part:
Based on this statute, Parents argue that the spanking administered by Stepfather was reasonable corporal punishment necessitated by a course of bad behavior by T.A. over the three months prior to October 6. Parents further argue that the trial court concluded that the force used by Stepfather was unreasonable based solely on the fact that Stepfather could not recall precisely how many times he hit T.A. with the belt on the evening in question. Parents argue that the trial court held that it is per se unreasonable for parents to spank unless the parents "keepan exact count on the number of spanks." The record does not support these assertions.
[¶ 8.] The proper inquiry under SDCL 22-18-5 is first whether the restraint or correction was "rendered necessary" by T.A.'s action and second whether the force used by Stepfather was "reasonable in manner and moderate in degree." Id. The record supports Parents' assertion that T.A.'s behavior on the day in question was disrespectful and defiant. However, on the day the spanking was administered, Parents failed to intervene in any manner before resorting to spanking. No alternative discipline was attempted prior to the spanking. Furthermore, none of the witnesses in the home during this event testified, as Stepfather did, that T.A. was screaming or crying or otherwise "out of control" prior to the spanking. However, Stepfather contends that screaming and crying were the impetus for the spanking. Because the record does not support Parents' assertion that T.A. was "out of control" or that his behavior necessitated hitting him with a belt, there is no showing of error in the trial court's determination that this punishment was not "rendered necessary" by T.A.'s behavior.
[¶ 9.] There was also no error in the determination that the force used by Stepfather was not "reasonable in manner" or "moderate in degree." This spanking left bruises on T.A. that remained for several days. There were also bruises on the child's arm that Kranz testified were consistent with finger-marks. The bruising on the child was consistent with T.A.'s account of the spanking. Even more significant is the fact that all of the bruising on the child's posterior, belt-line and arm are consistent with Stepfather's account of his own actions during the spanking. Specifically, Stepfather stated that he grabbed T.A.'s arm to take him into the bedroom, that he forced T.A. face-down on the mattress and that he held him there while he spanked him. Stepfather also stated that while spanking T.A., he accidentally hit him too high, resulting in a strike over the belt line and consistent with the bruise discovered by the physician's assistant and DSS. Stepfather claimed that he apologized to T.A. for hitting him too high. Finally, Mother testified that she was aware that Stepfather spanked the child with a belt and that she felt such spanking was permissible, testimony which supports the allegations against Mother that she failed to provide proper parental care by failing to intervene on his behalf.
[¶ 10.] Parents argue that there was insufficient evidence because neither their expert, Dr. Knecht, nor the State's expert, Diane Kranz, could say to a medical degree of certainty what caused the bruises on the child. The record supports the trial court's finding that the majority of bruises were caused by the spanking.
[¶ 11.] Parents' assertion that there was insufficient evidence to support the finding that T.A. was abused and neglected is not supported by the record. The trial court is affirmed as to this issue.
[¶ 13.] At the adjudicatory hearing, the trial court heard cases-in-chief from the State and Parents. After State and Parents rested, the trial court, over Parents' objection, allowed the attorney for the child to present T.A.'s case. Parents and State were permitted to cross-examine the child's witnesses and at the close of child's case-in-chief, the trial court offered Parents the opportunity for rebuttal. Parents contend that allowing the child's attorney to present a case-in-chief at the adjudicatory phase improperly joined the dispositional and adjudicatory phases of the process and therefore violated the requirement that adjudicatory and dispositional phases be bifurcated.
[¶ 14.] SDCL 26-7A-1 defines "adjudicatory hearing" as:
[¶ 15.] "Dispositional hearing" is defined as:
SDCL 26-7A-56 provides in part that the rules of civil procedure and evidence apply to adjudicatory hearings but that "all other hearings shall be conducted under rules prescribed by the court." The rules prescribed by the court in other hearings "may be designed by the court to inform the court fully of the exact status of the child and to ascertain the history, environment and the past and present physical, mental and moral condition of the child and the child's parents ... as may be necessary or appropriate to enable the court to determine suitable disposition of the child[.]" SDCL 26-7A-56.
[¶ 16.] This Court has interpreted these and other statutes pertaining to dispositional and adjudicatory hearings to mean that in most cases, these proceedings should be bifurcated. See e.g. Interest of P.M., 299 N.W.2d 803, 806 (S.D. 1980) (stating, "[i]n most cases, the distinctions between adjudicatory and dispositional hearings are important, and a failure to keep those distinctions in mind can cause the wrong issues to be litigated in the adjudicatory hearing"). Furthermore, the court is required to enter separate findings of fact and conclusions of law for each phase of the process. Matter of J.L.H., 299 N.W.2d 812, 814 (SD 1980). This is because the adjudicatory hearing looks to the past, e.g. whether there has been abuse or neglect, while the dispositional hearing looks to the child's future. In the Matter of S.H., 337 N.W.2d 179, 181 (S.D.1983) (citing Interest of P.M., 299 N.W.2d at 806). The focus of the adjudicatory hearing is to determine whether the allegations in the petition alleging abuse and neglect are supported by clear and convincing evidence. SDCL 26-7A-1(2). The focus of the dispositional hearing is the best interest of the child. Matter of S.H., 337 N.W.2d at 181.
[¶ 17.] In this case, the adjudicatory hearing was held on November 14, 2001, continued to November 19, 2001 and completed on January 18, 2002. The dispositional hearing was held on July 19, 2002. There were two separate hearings for each phase of the process, and the findings of fact and conclusions of law for the adjudicatory hearing were filed prior to the dispositional hearing. However, Parents contend that by allowing child to present a case-in-chief at the adjudicatory hearing after the State and Parents rested, the trial court allowed dispositional evidence at the adjudicatory hearing, thus ignoring the statutory requirement of bifurcation. We disagree. These hearings were properly bifurcated, and the evidence allowed by the trial court during the adjudicatory hearing was permissible.
[¶ 18.] The South Dakota Code is clear that the trial court must appoint an attorney for any child alleged to be abused or neglected. SDCL 26-8A-18. Once appointed, we assume that the attorney will work zealously to protect the interests of the child. Accepting Parents' assertion that the child should have been prevented from presenting evidence at the adjudicatory hearing would mean that the child's interests are not presented to the court unless the child is found abused or neglected and a dispositional hearing is held. We do not agree with this result. The child's interests should be protected throughout the proceedings and the child's attorney is specifically charged with that duty. Furthermore, SDCL 15-14-2 provides, "[i]f several parties, having separate interests, appear by different counsel, the court must determine their relative order in the evidence and argument." As noted above, rules of civil procedure apply to adjudicatory hearings. SDCL 15-14-2 is a discretionary
[¶ 19.] Having held that the child's attorney is entitled to present evidence at the adjudicatory phase, it must be determined what type of evidence may be admitted. SDCL 26-7A-56 mandates that the rules of civil procedure apply to an adjudicatory hearing. SDCL 26-7A-83 expands the scope of permissible evidence at an adjudicatory hearing to include "information relating to the child's mental, physical and social history" and "circumstances then affecting the child." Therefore, information pertaining to the child's life in and out of the home prior to the adjudicatory hearing is permissible. Furthermore, evidence relating to the current status of the child is also permissible as "circumstances then affecting the child."
[¶ 20.] The majority of the testimony provided by the child's witnesses was introduced in response to the Parents' consistent and overriding assertion that T.A. was out of control and that the only way to regain control was to hit him with a belt. That testimony was provided by various adults in child's life who stated that corporal punishment was not necessary to control his behavior. Those testifying included T.A.'s special education teacher, his foster father, his maternal grandparents and his caseworker from DSS. All of these witnesses testified regarding T.A.'s behavioral problems, his behavior both during and before his placement in foster care and his attitude toward his parents. They also testified that they had never needed to resort to physical punishment in order to control T.A.'s behavior.
[¶ 21.] This testimony was all in direct response to Parents' case-in-chief. The record reveals that Parents' primary arguments were that 1) the child's behavior was often uncontrollable; 2) the "only person in earth" who could keep the child's behavior in check was Stepfather and 3) the only way Stepfather could control the child was if he was entitled to spank him with the belt. Parents invited testimony regarding whether the child could be controlled without belt spanking by raising SDCL 22-18-5, the corporal punishment statute, and T.A.'s behavior as justification for the spanking. Parents have failed to show error in the trial court's decision to allow this evidence.
[¶ 23.] After DSS took T.A. into custody, his caseworker took him to be examined by Diane Kranz, a physician's assistant. Kranz viewed the bruising on T.A.'s body, took pictures and discussed the bruises with him. Kranz was the only medical person to view the bruises within days of the spanking. The State called Kranz to testify about the bruising and her opinions regarding the cause of the bruises. Parents objected to her qualification as an expert because she was not a physician and because she performed no tests to determine the cause of the bruising.
[¶ 24.] The trial court retains "broad discretion in ruling on the admissibility of expert opinions.  We will not reverse a court's evidentiary rulings absent a clear abuse of discretion." Garland v. Rossknecht, 2001 SD 42, ¶ 9, 624 N.W.2d 700, 702 (internal and additional citations
[¶ 25.] Parents' first objection to admission of Kranz's testimony was that the State failed to lay a foundation establishing her as an expert. On voir dire, Parents' attorney established that as a physician's assistant, Kranz was required to be supervised by a doctor because the doctor was the medical expert. This voir dire, Parents contend, established that Kranz was not an expert.
[¶ 26.] The opinion of the witness regarding her own expertise is not controlling. The court must determine whether the witness will be considered an expert, and will make that determination independent of what the witness believes about his or her expertise. This witness was the only medically trained person to see the child within days of the spanking. Furthermore, SDCL 19-15-2 provides that a person "qualified as an expert by knowledge, skill, experience, training, or education may testify ... in the form of an opinion or otherwise." In other words, there is no requirement that the person actually be a doctor in order to be qualified to give a medical opinion. The trial court need only determine "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Estate of Dokken, 2000 SD 9, ¶ 40, 604 N.W.2d 487, 498 (citations omitted). These determinations were made by the trial court and there was no showing of abuse of discretion.
[¶ 27.] Parents next contend that under Daubert and Kumho, Kranz's opinions should have been stricken from the record because she performed no tests in arriving at her opinions. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Parents' argument misapprehends the applicability of these cases. This Court has stated that Daubert and its progeny "offer general guides for courts to consider in assessing reliability: testing, peer review, error rate and general acceptance[.] These factors cannot be applied in all settings. In some instances, reliability must focus on `knowledge and experience'." Garland, 2001 SD 42, ¶ 11, 624 N.W.2d at 703 (internal citations omitted). Parents would have this Court create a requirement that the medical profession devise a test to determine how and why a child bruises in order for a medical professional to testify as to whether the child's injuries are consistent with abuse. To our knowledge, there is no such test available and it strains common sense to create such a requirement. Kranz testified that in addition to her licensure as a
[¶ 28.] The trial court was entitled to accept or disregard the opinions of both experts in this case. Parents' expert was a medical doctor rather than a physician's assistant. However, he never examined the child, and testified only as to his opinion based on photographs of the bruises. His own testimony gives sufficient justification for rejection of his opinions. Specifically, he was testifying as to his opinion of how the bruises were caused based on pictures that he repeatedly stated were of poor quality. There is no showing that the trial court abused its discretion on this issue.
[¶ 30.] Parents argue that the trial court abused its discretion in allowing the State to introduce pictures of T.A.'s bruises into evidence. Parents contend that they made several written requests for the pictures but did not get the pictures in time for their expert to view them before he testified. Relying on SDCL 26-7A-60,
[¶ 31.] SDCL 26-7A-73 provides in part that when a party fails to comply with discovery, the court "may order the party to permit the discovery or inspection, grant a continuance or prohibit the party from introducing evidence not disclosed or the court may enter another order that the court considers just under the circumstances." The trial court denied Parents' motion to exclude the pictures. Parents argue this was an abuse of discretion because they were prevented from having their expert view the pictures before he testified. They contend this was prejudicial because the State's expert, who, due to scheduling difficulties, testified after Parents' expert, relied on the pictures for her testimony, and Parents' expert was unable to counter her testimony because he had no opportunity to view the pictures before he testified.
[¶ 32.] The record does not support Parents' assertion that the pictures should have been excluded. First, Parents' attorney viewed the pictures prior to the hearing and the record provides no evidence that the State's Attorney prevented Parents' access to the pictures. Second, although Parents' attorney wrote letters to the State's Attorney regarding the pictures, there was no motion to compel production of the pictures, although a motion to compel is not mandatory. Third, SDCL 26-7A-73 gives the court discretion to determine whether and how to sanction parties for failure to comply with discovery, and refusal to admit the evidence is only one possible option. Parents were offered a continuance, which they declined. Finally, Parents recalled their expert to attempt
[¶ 34.] Parents argue that South Dakota's child abuse statute, SDCL 26-8A-2 is unconstitutionally broad, vague and ambiguous. Parents acknowledge that the predecessor statute to SDCL 26-8A-2 has withstood several attacks on its constitutionality, but argue that this is the first case "with facts and circumstances that do not immediately and automatically lend themselves to a finding of abuse." This Court has consistently upheld the constitutionality of South Dakota's child abuse statute. Parents' assertion that the facts of this case call its constitutionality into clear question for the first time presumes that this Court declared the statute constitutional based only on the specific facts of the previous cases. This is not supported by our precedent. We have held that the predecessor to this statute "convey[ed] sufficiently definite warning as to proscribed conduct when measured by common understanding and practice. Due process requires no more." Matter of D.T., 89 S.D. 590, 596, 237 N.W.2d 166, 169 (1975) (citing U.S. v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877). The fact that Parents' actions in this case are arguably less egregious than those of parents in prior cases does nothing to lessen the viability of our previous holdings concerning constitutionality. A reasonable person would be aware that forcing a child face down on a mattress, grabbing the child's arm tight enough to leave bruises and beating him hard enough with a belt to leave bruises constitutes abuse rather than reasonable corporal punishment.
[¶ 36.] On the day of the adjudicatory hearing, the State amended the abuse and neglect petition. One amendment added the allegation that the child had been subjected to repeated spankings over several months.
[¶ 37.] The State made no motion to amend but rather stated before the court that "I thought it was necessary to amend the petition, and so I amended it, and immediately faxed a copy to [the other attorneys]." Parents objected to the amended petition, but the trial court overruled the objection noting that leave to amend should be freely given when justice requires. See SDCL 15-6-15(a). The trial court then offered Parents a continuance in order to prepare to better meet the amended petition. After discussion with their attorney, Parents declined the offer of a continuance.
[¶ 38.] We have held that a "trial court may permit the amendment of pleadings
[¶ 39.] Affirmed.
[¶ 40.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.