(concurring).
Although I agree with the entirety of the legal points involved, the recitation of certain facts is troubling. Example: “He has not attempted to contact the children since.” Such an issue of fact remains to be decided below. Evens disputes such a factual statement. Further, he claims to have proof of Mother receiving child support payments, the result of deductions from his paycheck while working in Minnesota.
Father advocates Mother forbade him from seeing the children and denied him rights of visitation. Again, the trial court must ferret out the facts. Father, also, maintains he was threatened by Mother resulting from a criminal trial wherein he testified for the State of South Dakota as a confidential informant. General hostility towards him, he urges, restricted a close relationship with the children. This should be explored by the trial court. Apparently, Father’s mother and sister had interaction with the children in question. See, Claymore v. Serr, 405 N.W.2d 650 (S.D.1987). It is to be noted that father never had an opportunity to testify and present evidence contradicting the mother’s assertions on economic support; nor for that matter, to bring out his assertions of threats by Mother and denial of visitation. This Court has held that a temporary, involuntary inability to assume the parental role is not abandonment. Matter of Adoption of Sichmiller, 378 N.W.2d 872, 874 (S.D.1985). SDCL 15-11-6, set forth in footnote 1 of the majority opinion must be read, in harmony, with SDCL 15-11-4 which provides:
When an action or proceeding is called for trial or hearing, or at any time previous thereto, the court or judge may, upon good cause shown, direct the trial or hearing to be postponed to another day of the same or next term, or to such time as shall be just in view of all the circumstances.
Father has not been heard on the merits. Reminds me of:
A STORY
Years ago, when “justice” was not so refined, an old “J.P.” (Justice of the Peace) heard a case in Pumpkin Center. It was a civil case and the combatants were boisterous with more gusto emanating from the throat than legal authorities. Plaintiff finished with a shout: “And, by God, Judge, I've got the facts on my side and I’ve been done in by the defendant.” Overcome with the heat of the moment, the old J.P. bellowed: “The Plaintiff wins.” Defendant, stung by this instant justice, cried out in anguish: “Judge, that ain’t right. You never heard my side of the case.” Struck with a momentary air of fairness, the J.P. expressed: “Well, okay, go ahead then.” Defendant then presented his case. When he finished, the old J.P. exclaimed in astonishment: “Well, I'll be damned! The defendant wins now.”