(dissenting).
[¶ 21.] This is a case where, had it not been for a loving grandmother, two children might not have survived; certainly, they would not be in the safe and healthy place they are today. These children endured almost unimaginable misery. Addiction, disease, suicide, filth, and abuse— that was their portion. In desperation, the grandmother several times sought help for them from the South Dakota Department of Social Services. In the end, the Department declined to proceed. Then the grandmother sought guardianship. The matter went to trial. Finding the mother unfit and the children abused and neglected, the circuit court awarded the grandmother custody under the South Dakota Guardianship and Conservatorship Act. Through their attorney, both children now urge us to allow them to remain in their grandmother’s guardianship and custody. It is not difficult to understand why. What is difficult to understand is this Court’s order nullifying the guardianship.
[¶ 22.] In this appeal, the mother argues that her case should have been handled in juvenile court through the dependency process, by the very officials who earlier declined involvement and with whom she refused to cooperate. The majority of this Court agrees. It quashes the custodial guardianship and orders that the Department of Social Services take over the case. It remains to be seen how the Department will proceed now, when it decided not to proceed before. This is not to fault the Department. Perhaps it never became aware of all the particulars we now have. But the fact remains that, were it not for the grandmother, these children would be without hope.
[¶ 23.] To reach its decision, the majority curtails the provisions of our guardianship laws, departs from our longstanding precedent, and joins a tiny minority of jurisdictions that hold that child custody cannot be decided in guardianship proceedings. Nearly all courts, from New York to California and most in between, hold that guardianships can be used to obtain custody. Why should South Dakota not be among these jurisdictions, especially when our Legislature intended it so?
A.
Lives of Misery
[¶ 24.] The trial court’s findings of fact in this case remain wholly undisputed. Although the majority hardly alludes to them, these facts have a decided beai'ing on how we should view this case. This is a story of a state agency declining to proceed and a courageous family member stepping up for the sake of the family’s children. The parents met while both were attending the Job Corps in Nemo, South Dakota. They eventually had three children together, two of whom are involved here, one born on September 16, 1993, and the other, on May 23, 1995. These parents lived addicted, degraded *75lives, lives their children were condemned to share.
[¶ 25.] Brief excerpts from the trial court’s extensive findings suffice to describe just how squalid these children’s surroundings were. Both parents were to blame. There were frequent all-night drinking binges and extended absences from the children. At times, twelve to fifteen people lived in their small quarters, with no functional plumbing. On one occasion, the grandmother observed one of the children left only in dirty diapers and lying on a bare cement floor, amid rat feces and trash piled high all about. There was no food available but a baby bottle containing soda pop.
[IT 26.] The children sometimes got by on scraps picked up from the floor. They had no oral or bodily hygiene. They had no childhood immunizations. They suffered from scabies, malnutrition, and rotting teeth. One child’s teeth were so severely decayed, and her gums so filled with sores, that only extensive oral surgery would help her. When the Department of Social Services offered the mother parenting classes, vaccinations for the children, and transportation for dental care, she refused. She claimed this was harassment. With the mother’s lack of cooperation, and her refusal to allow social workers inside her apartment, the Department declined further action. Even so, the facts are uncontradicted that the children were psychologically maladapted, seriously undernourished, and evinced unmistakable signs that they had been sexually molested. All this was later confirmed by experts who examined them.
[¶ 27.] The father committed suicide on December 21, 1997. After this, though hard to imagine, the children’s situation became worse. The mother and her boyfriend used cruel pranks, stories of imaginary monsters, to torment the children. The boyfriend hung little nooses for the children to see, a heartless reminder of their father’s death. Their filthy apartment was infested with fleas, rodents, and cockroaches. The grandmother, who had given intermittent extended care for the children over the years, came to South Dakota from her home in California. She had a mission. Indeed, she was the children’s last hope. She and the children pleaded with the mother to let them go back to California and live there. Mercifully, the mother acceded in allowing these two children to go with the grandmother in July 1999.7
[¶ 28.] In California, they received needed dental care, immunizations, psychological counseling, and surgery to repair one child’s heart defect. The mother had known of the heart problem but ignored it. Then the grandmother sought guardianship. Even when this matter was about to go to court, the mother did not cooperate in having a home study done. Nonetheless, she admitted that after the father died, she failed to provide for the children and was unfit.
B.
Guardianship and Custody
[¶ 29.] Our guardianship laws were rewritten in 1993, creating the new South Dakota Guardianship and Conservatorship Act. This Act did not purport to change our earlier precedents on nonparental custody placements. On the contrary, the parental preference statute previously in *76our guardianship laws was repealed. See SDCL 30-27-23 (repealed 1993). This does not mean that there is no presumptive preference for fit parents. The natural parent-child relationship is a constitutionally protected fundamental right. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). However, as we have said in several cases, when the parents are shown to be unfit or there are extraordinary circumstances reflecting on parental fitness and serious detriment to the child, custody may be transferred to a nonparent, apart from dependency proceedings.
[¶ 30.] SDCL 29A-5-203 provides:
[A] petition for the appointment of a guardian, a conservator, or both, may be filed by ... an interested relative, by the individual or facility that is responsible for or has assumed responsibility for the minor’s care or custody, by the individual or anyone the minor has nominated as guardian or conservator, or by any other interested person, including the department of human services or the department of social services.
Obviously, the grandmother is an “interested relative” who “has assumed responsibility for the [children’s] care or custody,” and thus she is qualified to petition for conservatorship and guardianship.
[¶ 31.] Nothing has changed our position articulated in Langerman v. Langerman:
Before a parent’s right to custody over his or her own children will be disturbed in favor of a nonparent a clear showing against the parent of “gross misconduct or unfitness, or other extraordinary circumstance affecting the welfare of the child” is required, and an award cannot be made to [nonparents] simply because they may be better custodians.
336 N.W.2d 669, 670 (S.D.1983). See Cooper v. Merkel, 470 N.W.2d 253, 255 (S.D.1991). As we said in Crouse v. Crouse, 552 N.W.2d 413, 418 (S.D.1996), two statutory avenues are available for nonparents to obtain custody in South Dakota, one through the abuse and neglect laws, SDCL ch. 26-8A, and the other through the Guardianship and Conservatorship Act, SDCL ch. 29A-5. The grandmother availed herself of that Act, and we should uphold her right to do so. Here, the circuit court found the mother unfit, opening the door for an interested relative to take custody. In Langerman, this Court upheld a grant of custody to the grandparents after a finding that the father was unfit because of his alcohol abuse and his unstable living arrangements. None of these cases have ever been overruled.
[¶ 32.] Surely, the majority misconstrues SDCL 29A-5-106 in holding that it requires this matter to be decided in juvenile court. All that statute provides is that with respect “to the appointment of guardians and conservators and the administration of guardianships and conservatorships for children who have been adjudicated ... abused, neglected,” the abuse and neglect statutes shall control if there is any inconsistency. (Emphasis added.) The children here were not adjudicated abused and neglected under the abuse and neglect statutes. In fact, just the opposite, the State never brought a case for abuse and neglect. Our guardianship laws specifically permit courts to consider the “extent to which it is necessary to protect the minor from neglect, exploitation, or abuse.... ” SDCL 29A-5-208. Will all guardianship cases where there is evidence of neglect or abuse now be diverted to the Department of Social Services?
[¶ 33.] It would be a different matter if the State had initiated its own petition under the abuse and neglect statutes. Then, obviously, that proceeding would take priority. On point is Guardianship *77of Z.Z., 494 N.W.2d 608, 610 (S.D.1992), a ease the majority relies on to support its position. There, the child had already been adjudicated abused and neglected in juvenile court when the grandparents sought to bypass the juvenile court by bringing a guardianship action for custody. See also People ex rel. H.O., 2001 SD 114, 683 N.W.2d 603 (ongoing abuse and neglect action cannot be circumvented). That is not what happened in this case. Here, in a guardianship proceeding, not an abuse and neglect proceeding, the circuit court found that the mother was unfit and that the children suffered abuse and neglect. No reference in the court’s decision was even made to the abuse and neglect statutes.
[¶ 34.] Most states allow for the award of custody to a nonparent in guardianship proceedings. Legislatures in these states, like our own Legislature, recognize that it would place an overwhelming burden on social service agencies to take responsibility for all nonparental custody placements. When family members and others come to court seeking guardianship with allegations of parental unfitness, permanent or temporary, courts are empowered to remove custody from the unfit parent for such time as is necessary to provide for the child’s needs. Unlike abuse and neglect proceedings in juvenile court, where terminations of parental rights often result, a guardianship can end any time the court is satisfied that the circumstances giving rise to the guardianship no longer exist. SDCL 29A-5-506. Hence, the panoply of rights attendant on dependency proceedings is not required.
[¶ 35.] In the interest of space, only a sampling of cases will be cited to demonstrate that the majority of courts allow this type of proceeding, upon a showing of parental unfitness. See, e.g., In re Guardianship of D.A. McW., 460 So.2d 368 (Fla. 1984); In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994); In re Guardianship of M.R.S., 960 P.2d 357 (Okl.1998); Fuss v. Niceforo, 244 A.D.2d 858, 665 N.Y.S.2d 781 (N.Y.A.D.1997); Matter of Guardianship of R.B., 619 N.E.2d 952 (Ind.Ct.App.1993); In re Guardianship of Jenna G., 63 Cal.App.4th 387, 74 Cal.Rptr.2d 47 (1998); In re Guardianship of Yushiko, 50 Mass.App.Ct. 157, 735 N.E.2d 1260 (2000).
[¶ 36.] South Dakota’s Guardianship and Conservatorship Act enables a court to consider “the suitability of the proposed guardian or conservator, the minor’s current or proposed living arrangements ... the availability of less restrictive alternatives, the extent to which it is necessary to protect the minor from neglect, exploitation, or abuse, and if applicable, the minor’s need for habilitation or therapeutic treatment.” SDCL 29A-5-208 (emphasis added). Guardians appointed for minors under this act “shall be responsible for making decisions regarding the minor’s support, care, health, education, and, if not inconsistent with an order of commitment or custody, to take custody of the minor and to determine the minor’s residence.” SDCL 29A-5-401. In deciding guardianship issues, a court must consider “the wishes of the minor if the minor is of sufficient age to form an intelligent preference.” SDCL 29A-5-202.
C.
Mother’s Constitutional Rights
[¶ 37.] Contrary to the majority’s conclusion, the mother suffered no deprivation of her due process rights. The circuit court wisely applied the higher constitutional burden, clear and convincing evidence, in concluding that the mother is presently unfit and that the children are in need of a guardian. As one California appellate court recognized in comparing *78guardianship actions with dependency proceedings:
In several other respects the creation of a guardianship under California law offers fewer protections for parental interests than dependency proceedings or proceedings to terminate parental rights. In contrast to dependency and termination proceedings, the laws governing guardianship petitions make no provision for appointing counsel for a parent. (See Prob.Code, § 1470; compare Welf. & Inst.Code, § 317; Fam. Code, § 7862.) Moreover, dependency and termination proceedings are almost invariably instituted by officers of the state, who may be expected to have made some neutral assessment prior to initiating litigation. A guardianship petition, in contrast, may be filed by any “relative or other person” claiming to act “on behalf of the minor.” (Prob. Code, § 1510, subd.(a).) No representative of the state, or other arguably neutral party, participates in the decision to institute proceedings. Nor is there any mandatory equivalent of the numerous investigations and reviews undertaken by child welfare authorities in dependency cases. (Footnotes omitted.)8
Guardianship of Stephen G., 40 Cal.App.4th 1418, 1429-30, 47 Cal.Rptr.2d 409, 417 (1995). Despite the “fewer protections” available to a parent in guardianship proceedings, California courts uphold guardianships to nonparents. See, e.g. Guardianship of Diana B., 30 Cal.App.4th 1766, 36 Cal.Rptr.2d 447 (1994).
[¶ 38.] Lastly, the mother complains that some of the evidence was offered by deposition, in violation of her constitutional rights. Incorrect! This is a civil action. Depositions are routinely used in civil triais. The mother and her attorney refused to cooperate in making any accommodation for telephonic depositions, so the mother could participate in them. She gambled that these depositions would later be disallowed on constitutional grounds. Because she had no basis for failing to cooperate, she cannot now complain that the depositions were improperly admitted at trial.
D.
Conclusion
[¶ 39.] Guardianship is a longstanding and widely used method of shifting custody of children, especially within families. Into this relatively uncomplicated process, the Court today injects the ponderous apparatus of dependency law, with its “reasonable efforts,” foster care placements, and broad array of constitutional mandates. To do so, the Court ignores our precedents, misconstrues our statutes, and sides against the overwhelming trend in this country to the contrary. Were it not for the terrible suffering these children have already endured, perhaps this ruling would be less difficult to accept. But this decision is wrong. Our State should not join the minority. Our Legislature did not intend this. These children do not deserve this. I dissent.
. The mother has four children. The oldest and the youngest still live with her. The youngest child has a different father than the children involved in this guardianship. I certainly agree with the majority that these two remaining children should be referred to the South Dakota Department of Social Services.
. Note the similarity of language between South Dakota’s and California’s guardianship statutes.