People Ex Rel. South Dakota Department of Social Services

ZINTER, Justice

(concurring specially).

[¶ 44.] I join the opinion of the Court because this is not just a case about the right to court-appointed counsel, it is a case about the denial of all counsel (appointed and retained) to represent Mother at an adjudicatory hearing.

[¶ 45.] Although one may fairly debate whether Mother made an effective request for court-appointed counsel on or before the December 3 adjudicatory hearing, the record is very clear that Mother did make three requests to retain new counsel. Moreover, all three requests were made shortly after her last retained lawyer withdrew, but two to three weeks before the adjudicatory hearing. Specifically, on November 13, 2002, the day before Mother was served with formal notice of attorney Arendt’s withdrawal, she made a motion for change of venue “so that she [could] obtain legal counsel.” (Emphasis added.) The affidavit supporting that motion explained that Mother had been unable to *597obtain replacement counsel in the rural Winner, South Dakota area because of conflicts of interests. Then, on November 23, 2002, Mother raised the issue again, moving to continue the December 3 adjudicatory hearing so .that she could “retain legal counsel.” (Emphasis added.) Finally, on November 26, 2002, apparently because the preceding motions had not been heard, Mother filed a motion for an immediate hearing. She indicated that she sought an immediate pretrial ruling on these motions because she desired to take an intermediate appeal if her request to retain counsel was denied.

[¶ 46.] Because no pretrial disposition of these motions occurred, when Mother appeared on December 3, she reasserted her objections to proceeding without counsel to represent her.6 Mother also explained her efforts to find replacement counsel.7 The trial court overruled the motions and conducted the adjudicatory hearing without counsel present. Thus, the record reflects that during the approximately one month period between Axendt’s withdrawal and the adjudicatory hearing, Mother made three motions seeking the opportunity to retain counsel for the hearing. In my view, these requests do not support the concurrence in result’s conclusion that Mother’s request for counsel was sufficiently untimely to serve as a valid waiver of her right to all counsel.

(¶ 47.] On the contrary, in a similar criminal case we stated that when a defendant discharges retained counsel and appears at trial requesting a continuance to obtain their own counsel, a waiver may not be necessarily presumed. State v. Bruch, 1997 SD 74, ¶ 20, 565 N.W.2d 789, 793. Instead, the trial court should, at the very least, warn the defendant of the dangers of self-representation. Id. ¶ 15. Additionally, “the trial court has the responsibility of inquiring into the circumstances surrounding potential forfeiture or waiver [of counsel] and ensuring that a defendant’s decision is knowing and intelligent.” Id. ¶ 20 (citations omitted). Thus, we previously held that unless the defendant is .advised of the hazards of self-representation, a trial court may not allow retained counsel to withdraw and fail to grant a request for a continuance, assuming that the defendant has waived his right to counsel and will represent himself pro se. Id. ¶ 17.

[¶ 48.] I also join the Court’s analysis because the trial court expressly recognized that the motion for continuance was properly filed in advance of the hearing under SDCL 15-11-6,8 and that there *598were good reasons for the delays caused by Mother. Although the transcript reflects significant difficulties in dealing with Mother as a pro se litigant, the trial court indicated that the delays were “legitimate” because of a change of counsel and complications associated with Mother’s pregnancy. It is also significant that the trial court expressed concerns about Mother’s competency to proceed as early as the advisory hearing on July 11, 2002.

[¶ 49.] Thus, this is not a case where the trial court entered findings that the objecting party was using dilatory tactics to manipulate the court.9 Although the trial court was properly concerned with prejudice to the child from further delays, the State itself concedes on appeal there was no bad faith on Mother’s part, and that the reasons for the previous continuances “appear to have been bona fide.”

[¶ 50.] Considering these concessions and Mother’s three pretrial requests to retain counsel, I concur.

. Mother’s oral objections and argument apparently included some factual allegations. Consequently, the trial court attempted to administer an oath before it would permit Mother to argue her motions. In response, Mother objected, asking the court "to table” the oath "until I have an opportunity to consult with counsel. I don't know if I should be giving testimony or not.” The trial court declined that request. Mother then relented and she was sworn as a witness to argue her motions.

. Mother indicated that she had contacted two lawyers in Winner and lawyers in the neighboring communities of Murdo, Chamberlain, and Gregory, as well as Sioux Falls and Rapid City.

. SDCL 15-11-6 provides:

All applications for continuance must be made, by motion, not less than ten calendar days prior to the day set for commencement of the trial, unless the cause for continuance shall have arisen or come to the knowledge of the party subsequent to that time, in which case the motion shall be made as soon as practicable. All such motions shall be in writing and accompanied by affidavits in support of the motion, which affidavits shall set forth with particularity the grounds, and cause for such motion as well as the efforts of the party or the party's attorney to avoid such delay. Upon receipt of such a motion, the court shall schedule a hearing, which may be by telephone conference, and shall decide the motion without delay in order to avoid trial *598delay awaiting such decision. The adverse party may be heard by affidavits or by argument presented, filed, and served at the time of the hearing.

. "Of course, this is not to say that every time a defendant requests a new lawyer, he should be indulged. These requests will sometimes, perhaps often, be dilatory tactics. A defendant has no right to manipulate his right to counsel in order to delay or disrupt the trial." Bruch, 1997 SD 74, ¶ 18, 565 N.W.2d at 793 (quoting Berry v. Lockhart, 873 F.2d 1168, 1171 (8thCir.l989)).