M.B. v. Konenkamp

AMUNDSON, Justice

(concurring in part and dissenting in part).

Konenkamp was dealing with a repeat juvenile offender who resided in a dysfunctional home. The minor had previously expressed concern regarding M.B.’s drinking habits. Konenkamp was making a valiant effort to address the custodial parent’s drinking problem; namely, returning the minor to a sober home. In an attempt to provide such an environment, Konenkamp entered the protection order under the provisions of SDCL 26-7A-107(8). The language of this section provides that such an order may “require” a parent to participate in treatment. The definition of “require” is the imposition of a command upon a person to do something. Webster’s Third New International Dictionary.

In this same source, the definition of “compel” is to “force, require or command the doing of something.” Webster’s Third New International Dictionary. Therefore, it seems fairly obvious that the plain meaning under this statute authorized Konenkamp to require or compel M.B. to cooperate and participate in treatment for alcohol addiction. Appeal of AT & T Info Sys., 405 N.W.2d 24, 27 (S.D.1987). The issue in this case boils down to interpreting what the statute authorizes if the parent refuses to cooperate in the ordered treatment. The only leverage a court would have in such a circumstance is to not return the minor child to the noncooper-ating parent’s home. There is no question that the statute does not provide for any type of involuntary commitment to a program operated by the State in Yankton, South Dakota.

Therefore, I concur with the majority’s holding that a protection order under SDCL 26-7A-107(8) does not authorize involuntary *100incarceration in an inpatient alcohol treatment program. On the other hand, I do not agree that a trial court cannot order alcohol treatment for a parent under the language of this statute.

In my opinion, the case of Wilson v. West, 709 S.W.2d 468 (Ky.Ct.App.1986), cited by the majority, is inapposite to the issues in this case. The West case involved an attempted transfer of payment of restitution from the child to the parent and the present case does not in any way involve a “transfer of liability.”

Although the protection order went a step too far, it was obviously a legitimate attempt to assist the decree of disposition entered and to assist in the rehabilitation of the juvenile. Konenkamp attempted to provide for a stable, caring, sober environment for the juvenile upon his release from the training school and being placed in the aftercare program. This certainly depicts an effort by a judge to look after the best interests of a troubled minor.

I am authorized to state that Chief Justice MILLER joins this concurrence in part and dissent in part.