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JOHNSON POCHOP LAW O!EFJL'E.

STEPHANIE E. POCHOP

P.O. Box 149


GREGORY, SOUTH DAKOTA )75$:i

AMY R. BARTLING
GEORGE F. JOHNSON

TELEPHONE: (605) 835-8391


TELECOPIER: (605) 835-8742
johnson@gwtc.net

February 14, 2013

RICK JOHNSON
(1942-2004)

Scott Heidepriem
Johnson, Heidepriem & Abdallah
101 South Main Avenue, Suite 100
Sioux Falls, SD 57104

Danielle Simons
Department of Social Services
811 E. 10th Street, Dept. 10
Sioux Falls, SD 57770

William H. Golden
Assistant Attorney General
317 N. Main Avenue
Sioux Falls, SD 57104

Oglala Sioux Tribe


P.O. Box 2080
Pine Ridge, SD 57770

Department of Social Services


3401 1 Qth Avenue SE
Aberdeen, SD 57401

Christopher D. Dohrer
Attorney at Law
202 S. Main Street,# 600
Aberdeen, SD 57401

Standing Rock Sioux Tribe


P.O. Box 526
Fort Yates. MD 58538
Gina Rogers
Attorney at Law
604 S. Lincoln Street,# 2
Aberdeen, SD 57401

Reed Rasmussen
Attorney at Law
P.O. Box 490
Aberdeen, SD 57 402

RE: In The Matter of N.M., K.M, M.M., A.M., and A.M., Minor Children
To Whom It May Concern:
Please find enclosed a Motion for Appointment of Substitute Guardian Ad
Litem Pursuant to the Court's July 25, 2012 Order, Notice of Hearing on Motion
for Appointment of Substitute Guardian Ad Litem and Certificate of Service in the
above referenced matter. This is intended as service by mail.

SEP:afs
Enclosures

STATE OF SOUTH DAKOTA

COUNTY OF BROWN

IN THE MATTER OF N.M., K.M.,


M.M., A.M and A.M.,

IN CIRCUIT COURT
SIXTH JUDICIAL CIRCUIT

GDNNo. 11-038

MOTION FOR APPOINTMENT OF


SUBSTITUTE GUARDIAN AD LITEM
PURSUANT TO THE COURT'S JULY
25, 2012 ORDER

M:in.oir Children.

COMES NOW, Stephanie E. Pochop as attorney for the above-named minor


children, and requests that the Court appoint a substitute independent guardian ad litem to
investigate and pursue legal actions on behalf of the minor children pursuant to the terms of
SDCL 15-6-17(c) pursuant to the

Court's July 25, 2012 Order.

STATEMENT OF THE ISSUE


1.

WHETHER IT IS IN THE BEST INTERESTS OF THE MINOR


ClllLDREN FOR THE COURT TO EXERCISE ITS DISCRETION TO
APPOINT A SUBSTITUTE GUARDIAN AD LITEM TO INVESTIGATE
AND PURSUE THE MINOR CIDLDREN'S POTENTIAL CLAIMS?

Summary of the Argument:


The Court has previously appointed an attorney to act as these minor children's

guardian ad litem. When the initial guardian ad litem withdrew for reasons unrelated to the
children, the Court ruled that a replacement guardian ad litem could be considered in the
future. Because the children's parents and guardians have directly conflicting interests with

the children, an independen,t guardian ad litem is still necessary to make the determination
whether any civil claims should be brought on these minor children's behalves before their
statutes oflimitations run. Mr. Robert Ronayne, of Ronayne & Wein in Aberdeen, South

Dakota, a licensed attorney in good standing with the State Bar of South Dakota, is willing
and able to serve in this capacity. It is respectfully requested that the Court appoint Mr.
Ronayne so that he may investigate and advise the children about their rights and pursue
their claims if he deems it meritorious and in the children's best interests to do so.

PROCEDURAL IDSTORY AND SUMMARY OF MATERIAL FACTS


The present motion is before the Court following multi-faceted proceedings
involving the placement, care and custody of the five minor children named above. These
children were initially in the care and custody of the Department of Social Services ("DSS")
through its Aberdeen office. At different times beginning in 1999 through 2006, the DSS
placed the children :involved :in this case in the home of Richard and Wendy Mette for
respite or foster care purposes. Ultimately, the DSS arranged for the Mettes to adopt the
children. The children's placements and adoptions were all supervised, overseen and
approved the DSS.
Beginning in 2001, the DSS first began receiving reports of abuse and neglect from
the Mette's foster children. In addition to concern:ing allegations of poor supervision and
inappropriate name calling, the reports included detailed allegations of physical abuse that
including spanking and kicking children.

Several children reported that Richard Mette had

been "tickling" them in ways that the children found uncomfortable. They also reported

that they found pornography accessible in the common areas of the home. The Mettes did
not deny that they had pornography in the home.
After this initial investigation, the DSS entered into an agreement with the Mettes
that prohibited them from having physical contact with their foster children, including
.,......,

swatting ... spanking ... kicking, poking or tickling .... " Two children were removed from
the home; five remained in their care, supposedly under DSS supervision.
Despite the DSS' awareness of the inappropriate and abusive behaviors that had
occurred in the Mette home, no substantive measures were taken to protect the children DSS
placed in their home. In 2007, the Mettes were again reported for abuse. This time the
allegation involved a detailed report of sexual abuse in addition to additional claims of
ongoing physical abuse in the Mette home. The allegations included several children being
slapped, grabbed, tickled, and forced to remove their pants during discipline sessions that
involved being spanked with belts and shoes by Richard Mette. Allegations of openly
accessible pornography throughout the Mette home were again reported. The report further
alleged that Wendy Mette had witnessed some of the abusive behavior and had been told
about other abusive events but had done nothing to protect the children_

The DSS investigation that followed this second report of abuse indicated that the
reports of physical abuse were substantiated. It did not substantiate the sexual abuse
allegations. The DSS concluded that Richard Mette was a "foreseeable danger" to children

in his care and that Wendy Mette "is not able to protect her children in an unsafe
environment. It is foreseeable that if Rich does not get help for his anger that he will harm
one or more of the children." At this time, the DSS dictated that Richard Mette was not to
be left alone with the children_ However, the DSS did only a few follow-up visits with the

Mertes and some of the children in the months that followed this concerning report, and then
left the Mettes to do as they would with the children that DSS had placed in their care

In January 2010, the DSS received yet another allegation of physical and sexual
abuse from a child it had placed in the Mette home_ This time, law enforcement executed a

search warrant of the home and the children's reports of pornography in the common areas
of the home were proven true: 67 pornographic magazines and various pornographic videos
1

were found throughout the three floors of the home. The police found "sex dice" in a
basket in the family dining room. While the pornographic magazines were not per se child
pornography, they featured blatantly incestuous themes.2 The search also disclosed some
handwritten notes in which someone in the home had documented a serious struggle with
pornography and lust. Four of the children reported being repeatedly sexually abused by
Richard Mette and two of them also reported that Wendy Mette had been present while they
were abused. The children also reported that Wendy Mette had ignored them or urged them
to either not talk about the abuse or ''just make him happy."
As a result of the 2010 investigation, Richard Mette was charged with 23 counts of
abuse-related felonies that occurred between 2005 and 2010. He ultimately pleaded guilty
to one count of rape of a child younger than 10 years old. Wendy Mette was charged with
11 abuse and neglect related felonies. Citing "concerns about the evidence in the case," and
referencing ''tainted evidence,'' the states attorney dismissed the charges against Wendy
Mette.

At the same time, charges were brought against former state's attorney Brandon

Tailaferro and CASA volunteer Shirley Schwab: the theory behind the charges was that
they had been encouraging the children to lie about Wendy Mette's condonation of her
husband's abuse. On January 10, 2013, the perjury related case against Brandon Tailaferro
and Shirley Schwab was ultimately dismissed for lack of evidence.

Sex dice have sexual favors instead of numbers printed on them.


Two of the pornographic magazines accessible to children in the home were entitled
"Family Heat" and "Family Lust," and advertised cover stories titled "Daddy Loves to Sniff
My Panties!," "Mom Can't Resist Junior's Dick," "Bisexual Incest is Best," and "Daddy's

Darling."
4

While the criminal cases were pending, on April 13, 201 l, the Court appointed
Scott Heidepreim to serve as the minor children's guardian ad litem. Mr. Heidepriem hired
present counsel to investigate and pursue the children's potential claims.

Because the

Tailaferro/Schwab prosecutions could have a direct correlation to the children's claims, Mr.
Heidepriem agreed that it was in the children's best interests to evaluate the merits, risks and
benefits of the children's legal claims against various parties, including Wendy Mette, at the
time those charges were formally resolved. In the meantime, Mr. Heidepreim made a
motion to withdraw at the children's guardian ad litem because of a legal conflict that had
developed after his appointment.

The motion was granted on July 25, 2012, but the Court

ordered that a replacement guardian ad !item could be appointed in the future if needed.

Taking the children's statements to the police and their therapist as true, and
especially considering the Court's summary dismissal of the witness tampering and perjuryrelated charges against Mr. Tailaferro and Ms. Schwab, it appears that there are identifiable
and meritorious legal claims that should be further investigated and pursued against the
South Dakota Department of Social Services, Richard Mette and Wendy Mette. While the
Tailaferro and Schwab cases were being prosecuting, the Mettes divorced. The DSS
returned the minor children to Wendy Mette's custody. They remain in her custody.
According to her counsel, Wendy Mette is not supportive of the children pursing a civil
claim against the Department of Social Services or Richard Mette. She is presumably
equally defensive about the children exploring their legal rights against her.

After his appointment, Mr. Heidepriem hired present counsel to represent the children.
This attorneyI client relationship has never been terminated by any party.
4
The conflict was not in any way related to his actions on behalf of the children.
5
See attached Exhibit A: 7/25/12 Order.

ARGUMENTS AND AUTHORITIES


1. IT IS JN THE BEST INTERESTS OF THE MINOR CIDLDREN FOR
THE COURT TO EXERCISE ITS DISCRETION TO APPOINT A

SUBSTITUTE GUARDIAN AD LITEM TO INVESTIGATE AND


JPURSUE THE MINOR CHILDREN'S POTENTIAL CLABMS.

The appointment of a guardian ad litem is a procedural step for the Court in its
exercise of its discretionary powers: it requires the Court to analyze was is "proper
protection of the minor" in a legal proceeding and then to make necessary arrangements
to that end. 6 SDCL 15-6-l 7(c) provides in relevant part:
The court shall appoint a guardian ad litem for a minor or
incompetent person not otherwise represented in an action or shall
make such other order as it deems proper for the protection of the
minor or incompetent person and may make such appointment
notwithstanding an appearance by a guardian or conservator.

In this case the Court has previously considered the identical issue and determined
that an independent guardian ad litem - an adult unrelated to the children or the potential
defendants-provided the proper degree of protection for these minor children's legal
interests. In granting the initial guardian ad !item's motion to withdraw, the Court
explicitly recognized that the children might continue to require the protection of their
legal right through an independent guardian ad litem.

It is urged here that the children

concerned in this maner continue to require that level and degree of protection.
While the appointment of a parent or close relative is the most common exercise

of the Court's discretion in cases involving minor children's potential civil claims, there
are circumstances when an independent guardian ad litem offers the best protection of
minor children's rights: where the interests of the children's parent or legal guardian do
6

Beermann v. Beerman, 559 N.W.2d 868, 870 (S.D. 1997).


6

~---~-------- --

or may conflict with a child's legal rights, the best way to assure that the child's best
interests are considered is an independent guardian ad litem. The selection of another
qualified attorney assures that an educated, experienced and highly ethical consideration
of the children's legal issues will be made.
For example, in Jn re Guardianship ofPetrik7 the South Dakota Court grappled
with what developed into a contentious personal injury claim between a minor child and
her grandparents. The child had been seriously injured on her grandparent's property by
their allegedly-vicious dog. 8 While the damage claim was being negotiated, the parent's
hired an attorney who had another attorney appointed to act as the child's independent
guardian ad litem; when settlement efforts proved unfruitful, the guardian ad litem then
initiated a lawsuit on the child's behalf against her grandparents. 9 The record reflected
that significant family discord was caused in the course of seeking fair compensation for
the child's injuries. 10 The child's parents sought to remove after the guardian ad litem
instituted a lawsuit on the child's behalf with the parents' approval. 11

For a technical reason related to the parents' failure to preserve the issue for
appeal, the Supreme Court refused to address the parents' motion to remove the guardian
ad litem.

12

Nonetheless, via dicta, the Petrik Court did prospectively approve of the

selection of an independent guardian ad !item where parents' interests conflict with a


minor child's legal rights: "Comts have authorized the appointment of a guardian ad
litem where it is apparent the dispute is 'centered on the desire of the parents [and

Matter of Guardianship ofPetrik, 1996 S.D. 24~ 544 N.W.2d 388.


Matter of Guardianship of Petrik, 544 N.W.2d at 388.
9 Id. at 389.
lo Id.
11 Id
7

12

Id at390.
7

grandparents] rather than the best interests of the child' . . . . 'When there is a potential
conflict between a perceived parental responsibility and an obligation to assist the court
in achieving a just and speedy determination of the action, parents have no right to act as

guardians ad !item. "' 13


This protective alternative exists because the statute provides that "[t]he duty of
the court appointed guardian ad litem is to the court and not to the parents of a minor."

14

This Court has already considered the facts of this case once and determined that the
person best able to serve the Court's interests in protecting these minor children is an
independent guardian ad litem. The factors underlying the Court' s earlier detennination
to appoint an independent attorney to serve as the guardian ad litem are unaltered, if not
fortified, by the facts developed in the related criminal prosecutions.
At a minimum, the children involved in this matter have viable legal claims
against at least three different defendants, including their adoptive parent Wendy Mette.
There is a direct conflict between the children and Wendy Mette because the children
have potential claims against her for her alleged failure to supervise and failure to protect
the children from abuse. She is disqualified as a guardian ad litem because of this
conflict. Indeed, because their claims against her potentially includes her failure to
protect them physically, she is not even an appropriate person to offer an opinion about
who would best protect the children's legal rights as their guardian ad litem. 15

Appointing Mr. Ronayne as their guardian ad litem will discharge the Court's

13

Id. at 391 (quoting Mawhi.nney v. Mawhi.nney, 225 N.W2d 501, 504 (Wis. 1975); M. S.

v. Wermers, 557 F.2d 170, 175 (8th Cir. 1977)) (emphasis supplied).
Guardianship of Petrik, 544 N.W.2d at 391 (citation omitted).

14

15

Mr. Mette's parental rights have been terminated and he is currently incarcerated: he is a

not a viable guardian ad litem and would have no standing to suggest one.
8

duty to act in the position of parens patriae for children

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so the children will have the

fullest and fairest opportunity to redress any wrongs done to them by the DSS, Richard
Mette and/or Wendy Mette.

It is not disputed that Mr. Ronayne is a reputable, qualified

attorney. He has no known legal conflict with either the parties or the witnesses in the
case and is not personally com1ected to the matter in any fashion. His legal training will
permit him to form a an educated and unbiased opinion about the risks, merits and
benefits of each of the children's potential claims. His legal ethics will assure that he
exercises this obligation consistent with the highest standard of care. There is, of course,
no guarantee that the children will have any specific outcome or that they even have
meritorious claims to pursue, but with Mr. Ronayne as their guardian ad litem, the Court
can assure that they will at least have a full opportunity to explore their legal options.
CONCLUSION

The facts of this case developed in the related prosecutions strongly suggest that
these minor children have, at a minimum, been recklessly unprotected by all of the adults
who assumed legal responsibility for their safety and protection. It is not clear whether it
will ultimately serve any of the children's best interests to pursue any legal claims: it is
clear that they deserve an opportunity to have an adult who is committed to make the best
legal choices for them with only their individual interests in mind. In consideration of
all of the arguments and authorities advanced above, it is respectfully urged that the
Court appoint attorney Robert Ronayne to serve as the replacement of the guardian ad
litem for all five of the minor children named above.
Respectfully submitted this

16

/i/fzcta;, of February, 2013.

See Guardianship pfPetrik, 544 N.W.2d at 391 (citation omitted).


9

JOHNSON POCHOP LAW OFFICE

Attorney for Plaintiffs

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on

the!J"~ ofFebruary, 2013, a

1rue and

correct copy of the foregoing Motion to Appoint Substitute Guardian Ad Litem and
Certificate of Service was mailed to:

Scott Heidepriem
Johnson, Heidepriem & Abdallah
101 South Main Avenue, Suite 100

Sioux Falls, SD 57104


William H. Golden
Assistant Attorney General
317 N. Main Avenue
Sioux Falls, SD

57104

Department of Social Services


3401 10th Avenue SE
Aberdeen, SD 57401

Standing Rock Sioux Tribe


P.O. Box 526
Fort Yates. MD

58538

Gina Rogers
Attorney at Law

604 S. Lincoln Street, # 2


Aberdeen, SD 57401
Danielle Simons

Department of Social Services


811 E. 1Qth Street, Dept. 10
Sioux Falls, SD 57103

10

., -

Oglala Sioux Tribe


P.O. Box 2080
Pine Ridge, SD 57770
Christopher D. Dohrer

Attorney at Law
202 S. Main Street, # 600
Aberdeen, SD 57401

Reed Rasmussen

Attorney at Law
P.O. Box490
Aberdeen, SD 57 402

and that said mailing was by first class United States post office mail.

Stephanie E. Pochop

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