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MELANIE REGALADO,
Plaintiff and Appellee,
v.
ARDITH JEAN FERGUSON MATHIESON,

Defendant and Appellant.

[2004 SD 87]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Sixth Judicial Circuit
Tripp County, South Dakota

Hon. James W. Anderson, Judge

STANLEY E. WHITING
Winner, South Dakota
Attorney for plaintiff and appellee.


NEIL CARSRUD
Dakota Plains Legal Services
Mission, South Dakota
Attorney for defendant and appellant.
SANDY J. STEFFEN of
Johnson, Eklund, Nicholson, Peterson & Fox
Gregory, South Dakota
Attorneys for appellees Minor Children.

Considered on Briefs on June 1, 2004
Opinion Filed 6/30/2004

#23026
GILBERTSON, Chief Justice

[¶1.] Mother appeals from a trial court’s dismissal of an action initiated by Grandmother pursuant to SDCL 25-5-29 et seq. seeking custody of Mother’s two children, T.H.M and M.M.M. On appeal, Mother argues the trial court abused its discretion when it dismissed the action based on its finding South Dakota was an inconvenient forum. Mother also contends the trial court committed reversible error when it declined to communicate with a California court in which Grandmother had commenced a separate guardianship proceeding. Finally, Mother renews her previous argument that SDCL 25-5-29 et seq. is not the proper statutory scheme under which a non-parent may initiate a custody proceeding based upon allegations of abuse and neglect. For the reasons articulated herein, we affirm the trial court’s order dismissing the action.

FACTS AND PROCEDURE
[¶2.] This appeal marks the third time these parties have been before this Court. In Matter of the Guardianship and Conservatorship for T.H.M. and M.M.M., 2002 SD 13, 640 NW2d 68 (T.H.M. I), we reversed a trial court’s termination of Mother’s custodial rights based upon its determination that the children were abused and neglected. In the opinion, a three-justice majority held that Grandmother could not use the South Dakota Guardianship and Conservatorship Act, set forth in SDCL ch. 29A-5, to gain custody of the children based upon allegations of abuse and neglect. Id. ¶¶9-10. Rather, the majority believed that SDCL ch. 26-7A and 26-8A were the proper statutes under which to adjudicate custody based on allegations of abuse and neglect. Id. ¶10. We remanded the case and directed the trial court to:
[O]rder DSS to intervene in this action pursuant to its statutory duty under SDCL 26-8A-9, pending
an adjudication of the abuse and neglect proceedings.

Id. ¶16.
[¶ 3.] On remand, DSS failed to conduct an abuse and neglect investigation as to T.H.M and M.M.M., and, as a result, the state’s attorney stated that she had no basis for filing an abuse and neglect proceeding.[1] The trial court took the matter under consideration. In the meantime, Grandmother initiated the action underlying the present appeal seeking custody of the children under SDCL 25-5-29 and 25-5-30, statutes enacted after this Court’s decision in T.H.M I, which permit a non-parent to pursue custody under certain circumstances. The trial court then dismissed the original guardianship proceedings and allowed Grandmother to proceed under SDCL 25-5-29 et seq. We summarily affirmed the trial court’s dismissal of the original guardianship proceedings in Matter of the Guardianship and Conservatorship for
T.H.M. and M.M.M., __ NW2d __ (Table) (2004) (T.H.M. II).
[¶ 4.] Although she initiated the second action, Grandmother subsequently moved for a dismissal under SDCL 26-5A-7 on the grounds South Dakota was an inconvenient forum to make a custody determination. After conducting a hearing, the trial court dismissed the action and yielded jurisdiction to California under the Uniform Child Custody Jurisdiction Act (UCCJA), codified by South Dakota at SDCL ch. 26-5A. Mother now appeals raising three issues for our review:
1.
Whether the trial court abused its discretion in dismissing the action based upon its finding South Dakota was an inconvenient forum pursuant to SDCL 26-5A-7.

2.
Whether the trial court committed reversible error when it declined to communicate with the California court.

3.
Whether Grandmother may seek custody of the children under SDCL 25-5-29 based upon allegations of abuse and neglect.



STANDARD OF REVIEW
[¶ 5.] We employ the abuse of discretion standard when reviewing a trial court’s decision to declinejurisdiction as an inconvenient forum under the UCCJA. Ford v. Ford, 2002 SD 147, ¶7, 655 NW2d 85,86; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶16, 591 NW2d 798, 804 (citation omitted). Questions of law, such as statutory construction, are reviewed de novo with no deference afforded the trial court’s decision. T.H.M. I, 2002 SD 13, ¶7, 640 NW2d at 70-71 (citation omitted). Findings of fact, however, will not be overturned unless they are clearly erroneous. City of Deadwood v. Summit, Inc., 2000 SD 29,¶9, 607 NW2d 22, 25. “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’

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