author: NEUMANN, Justice.

text:
    2002 ND 72
    Jenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant.
    No. 20010135.
    Supreme Court of North Dakota.
    May 14, 2002.
    Petition for Rehearing filed June 4, 2002.

      Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, ND, for plaintiff and appellee.
    Roland C. Riemers, pro se, Grand Forks, ND, for defendant and appellant.
    Reid Alan Brady, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for amicus curiae State of North Dakota.
   NEUMANN, Justice.

[¶ 1] Roland C. Riemers appealed from a district court judgment dissolving Riem-ers’ marriage to Jenese A. Peters-Riem-ers, awarding custody of the parties’ son, Johnathan, to Jenese with supervised visitation for Roland, awarding child support and spousal support to Jenese, and dividing the marital property. We hold the trial court did not commit reversible error in these proceedings, and we affirm the judgment.

[¶ 2] The following facts, as found by the trial court, are supported by the record. Roland met Jenese, a non-U.S. citizen, in Belize in 1995 while vacationing there. Roland was at that time married to another woman, and he falsely informed Jenese that he was in the process of divorcing his wife. In early 1996, at Roland’s invitation, Jenese left Belize and moved to North Dakota. Roland provided her an apartment in Grand Forks and lived with her there. However, Roland also frequently returned to Beulah where he would reside with his wife and their five children. Roland had other extramarital affairs while residing with Jenese which, when she discovered them, created a constant source of distress and conflict within their relationship.

[¶ 3] Jenese became pregnant by Roland, and on June 24, 1997 their son, Johnathan, was born. Roland divorced his wife in 1998, and on March 6, 1999 Roland and Jenese were married. In April 1999, Roland sponsored Jenese’s application for permanent residency in the United States. After incurring several instances of physical abuse by Roland, Jenese filed a complaint on March 7, 2000 seeking dissolution of the marriage. After a bench trial, the court granted Jenese a decree of divorce from Roland on the grounds of adultery, extreme cruelty, and irreconcilable differences. Upon finding Roland had committed domestic violence, the court awarded physical custody of Johnathan to Jenese and provided Roland “closely supervised” visitation with Johnathan. The court awarded child support to Jenese of $1,150 per month and awarded her spousal support of $500 per month for five years. The court also divided the parties’ marital property and debt.

[¶ 4] Roland, acting pro se, has appealed and has raised numerous issues on appeal.

I. Jury Trial

[¶ 5] Roland requested a jury trial, but was given a bench trial. He asserts his state constitutional right to a jury trial was violated by the court. More specifically, Roland asserts the right to a jury trial in a divorce action existed at the time our state constitution was adopted and that right was preserved by the constitution, which provides that “[t]he right of trial by jury shall be secured to all, and remain inviolate.” N.D. Const, art. I, § 13. This provision of our constitution that right of trial by jury shall remain inviolate neither enlarges nor restricts that right but merely preserves it as it existed at the time of the adoption of our constitution. In re R.Y., 189 N.W.2d 644, 651 (N.D.1971). It preserves the right of trial by jury for all cases in which it could have been demanded as a matter of right at common law. Id.

[¶ 6] In support of his claim for a jury trial Roland cites to 1883 Revised Codes of Dakota Territory, Civil Procedure § 236 which provides:

An issue of law must be tried by the court, unless it be referred as provided in sections 271 and 272. An issue of fact in an action for the recovery of money only, or of specific, real, or personal property, of for a divorce from the marriage contract, must be tried by a jury, unless a jury trial be waived, as provided in section 265, or a reference be ordered, as provided in section 272. Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein; to be tried by a jury, or may refer it, as provided in section 272.

(Emphasis added.) Roland is remiss in not following the subsequent history of this territorial act. On March 12, 1885, the legislative assembly of the Territory of Dakota amended the act by deleting actions “for a divorce from the marriage contract” from those specified actions which must be tried by a jury. By this amendment, divorce actions became triable by the court, and by territorial enactment continued to be tried by the courts when the state constitution was adopted in 1889. See 1887 Compiled Laws Territory of Dakota, Civil Procedure § 5032. Consequently, it is well settled that there is no right to a jury trial in divorce proceedings. Selland v. Selland, 519 N.W.2d 21, 22 (N.D.1994); see also Martian v. Martian, 328 N.W.2d 844, 845-46 (N.D.1983). We conclude, therefore, Roland’s rights were not violated by the trial court’s refusal to grant his request for a jury trial in this case.

II. Visitation Statutes

[¶ 7] Under N.D.C.C. § 14-05-22(3), if the court finds that a parent has perpetrated domestic violence and there exists one instance of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence in a reasonable time proximate to the proceeding, the court shall only allow supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child’s physical or emotional health. Under N.D.C.C. § 14-09-06.2(l)(j), if the court makes a similar finding of domestic violence, a rebuttable presumption is created that the parent who has perpetrated domestic violence may not be awarded custody of the child. The presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. Roland asserts these statutory provisions unconstitutionally shift the burden of proof onto the parent to prove “he deserves his basic constitutional rights” of custody and visitation with his child.

[¶ 8] Roland did not raise this issue before the trial court. It is well settled that an issue not presented to the trial court will not be considered for the first time on appeal. Allied v. Dir. of N.D. Dep’t of Transp., 1999 ND 2, ¶ 6, 589 N.W.2d 201. This constraint applies with particular force to a constitutional issue. Id. We, therefore, conclude Roland has failed to preserve this constitutional argument, and we decline to address it.

III. Location of Trial Proceedings

[¶ 9] Roland asserts he was denied his due process rights, because the lower court tried this case in Cass County rather than in Traill County, where Roland resides. Generally, an action must be tried in the county in which the defendant resides at the time of the commencement of the action. N.D.C.C. § 28-04-05. However, in the absence of a timely objection, the trial court in a civil action may change the place of the trial from the location in which the matter was originally to be heard. N.D.C.C. § 28-04-10. Roland did not object to the trial being held in Cass County until more than several weeks after the trial had finished. We conclude Roland’s objection was not timely and his claim of error is without merit. See Varriano v. Bang, 541 N.W.2d 707, 711 (N.D.1996).

IV. Testimony of Minor and Appointment of Guardian Ad Litem

[¶ 10] Roland asserts the due process rights of his son, Johnathan, were violated because the court did not appoint a guardian ad litem for Jonathan and because the court did not allow Johnathan to testify. At the time of trial, Johnathan was only three years old. Roland’s argument this toddler should have been allowed to testify is without merit. See McDowell v. McDowell, 2001 ND 176, ¶ 20, 635 N.W.2d 139.

[¶ 11] The trial court, in its discretion, may appoint on its own motion a guardian ad litem for a minor child when the court has reason for special concern as to the future welfare of the child. N.D.C.C. § 14-09-06.4; see also Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986). The trial court in this case appointed a guardian ad litem for Johnathan and ordered Roland to pay the retainer. When Roland refused to do so, the court’s appointee refused to accept the appointment, and the court then found Roland in contempt for failing to pay the fee. The case proceeded without a guardian ad litem. The trial court’s decision to proceed without a guardian ad litem will not be overturned unless the court has abused its discretion. Ludwig v. Burchill, 514 N.W.2d 674, 677-78 (N.D.1994). Roland has not provided persuasive argument that the trial court abused its discretion in proceeding without a guardian ad litem.

V. Trial Court Prejudice

[¶ 12] Roland asserts the trial court was biased against him and was incompetent. He claims the trial court demonstrated prejudice against him when he admonished Roland, who was about to put his daughter on the stand to testify about Roland’s reputation, that Roland should “be careful of this one if I were you.” Roland also claims the court showed prejudice in finding that Roland had committed a pattern of physical cruelty, extreme mental cruelty, and adultery toward his wife. Roland also claims the trial court’s bias is demonstrated by the court’s ruling limiting Roland to closely supervised visitation. He also claims the trial court “fired off minor questions and corrections to interrupt and completely frustrate” testimony Roland was trying to obtain from witnesses. Roland also asserts the trial judge demonstrated confusion when he was “not able to remember exhibit numbers, the case number he was trying, and even such basic information as which side had sequestered the witnesses, or that child custody was even in dispute in this case.”

[¶ 13] Although a trial judge should make no remarks which would show bias on his part in favor of any party to a lawsuit, the trial judge is allowed great latitude of discretion in conducting the trial and, except for an obvious abuse of that discretion, his conduct of the trial will not be grounds for reversible error. Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 337 (N.D.1993). It is not a demonstration of bias that the trial court necessarily decides in favor of one party rather than the other, upon exercising its obligation to view the witnesses, weigh their credibility,-and determine the facts. Wolf v. Wolf, 474 N.W.2d 257, 260 (N.D.1991). It is not a 'manifestation of bias or prejudice that a trial judge draws from the evidence findings of fact and conclusions which the complaining party would have evaluated differently. Id. General allegations amounting to nothing more than dissatisfaction with unfavorable trial court rulings are insufficient to demonstrate bias of the trial judge. Evenstad v. Buchholz, 1997 ND 141, ¶ 11, 567 N.W.2d 194. Roland’s complaints about the judge’s actions in this case derive primarily from his dissatisfaction with the findings and rulings of the court. Having reviewed the record, we are unpersuaded that the trial judge acted with bias or prejudice against Roland or that the trial court was confused or incompetent in presiding over this case. We conclude the trial court acted within its discretion in conducting the proceedings. Roland has failed to demonstrate an obvious abuse of discretion by the trial court in conducting the trial. He has not demonstrated either prejudice or incompetence by the court which would serve as grounds for reversible error.

VI. Domestic Violence

[¶ 14] Roland asserts the trial court failed to make specific findings in concluding that Roland had perpetrated domestic violence. We disagree.

[¶ 15] The trial court made the following specific findings regarding Roland committing domestic violence against Je-nese, all of which are supported by the evidence:

10. In the fall of 1996, Jenese became pregnant with the parties’ son. A few months later, in February of 1997, Jenese learned of Roland’s physical relationship with [another woman], A physical argument erupted. During the course of such incident, Roland slapped and punched Jenese. He also kicked her in the stomach. Consequently, Je-nese suffered vaginal bleeding and obtained medical treatment.
15. In October of 1999, Jenese heard Johnathan crying outside. She walked out to discover that Johnathan had fallen down the stairs and had hurt himself. Roland was standing a few yards away from Johnathan, talking on his phone instead of tending to his son. Jenese made an angry comment to Roland about his priorities then went back inside. Roland than came into the kitchen and slapped Jenese in the face.
16. During the marriage. Roland kept pornographic magazines and videos in the marital residence, sometimes in places where Johnathan would encounter them. In January of 2000, Jenese destroyed one of Roland’s pornographic videos. When Roland discovered his destroyed tape, he came up behind Jenese as she was making a bed and kicked her in the back.
17. On March 4, 2000, after a verbal argument, Jenese attempted to leave the marital residence with the parties’ son, Johnathan. Roland refused to allow her to leave with Johnathan, but attempted to force her out of her home alone. He pinned her left arm behind her back as she held Johnathan tight in her other arm. Jenese escaped long enough to call 911, but Roland hung up the phone. He then punched her in the face, knocking her to the ground. He broke a finger in the process. Jenese was later diagnosed with a fractured bone in her face.
18. On March 6, 2000, Jenese obtained a Temporary Protection Order against Roland. On March 7, 2000, Roland was charged with felony assault as a result of striking Jenese. A No Contact Order issued as a condition of Roland’s Pretrial Release. After a fully contested hearing, [a]n Adult Abuse Protection Order issued against Roland on March 14, 2000. At all of his appearances in the Protection Order proceeding, and at all times during this divorce, Roland maintained that his striking Je-nese on March 4, 2000 was in self-defense. Nevertheless, on October 6, 2000, Roland pled guilty to the reduced charge of misdemeanor assault, admitting that a factual basis existed for that plea.

Roland’s argument the court did not make specific findings about Roland’s abuse of Jenese is without merit.

VII. Alleged Domestic Violence By Jenese

[¶ 16] Roland asserts the trial court erred in finding Roland committed domestic violence but Jenese did not. The trial court made the following specific finding:

Roland committed at least one act of domestic violence which resulted in serious bodily injury to Jenese. During their relationship, there was a pattern of Roland inflicting domestic violence upon Jenese. On occasion, Jenese may have struck, hit or scratched Roland. However, her actions were largely in self-defense and were of a far less serious nature and degree than Roland’s domestic violence.

Under N.D.C.C. § 14 — 09—06.2(j) evidence of domestic violence is a specifically enumerated factor for the court to consider in awarding child custody:

j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

Under this statutory provision a single incident of domestic violence which results in serious bodily injury or a pattern of domestic violence creates a presumption that the perpetrator may not be awarded custody. With regard to the domestic violence factor, the trial court made clear and specific findings. The court found Roland had a pattern of inflicting domestic violence upon Jenese and that in at least one instance that violence resulted in serious bodily injury to her. The court found that although Jenese may have at times acted violently toward Roland, her actions were “largely in self-defense.” Acts of domestic violence are mitigated when committed in self-defense. The trial court did not find Jenese’s conduct toward Roland rose to a level of violence triggering the presumption against her receiving child custody. We conclude the trial court’s findings are supported by the evidence and are not clearly erroneous.

VIII. Extreme Cruelty

[¶ 17] Roland asserts the trial court’s finding that Roland inflicted extreme cruelty on Jenese is clearly erroneous. Extreme cruelty is defined under N.D.C.C. § 14-05-05 as “the infliction by one party to the marriage of grievous bodily injury or grievous mental suffering upon the other.” The trial court awarded Je-nese a divorce on the grounds of adultery, extreme cruelty, and irreconcilable differences. Considering the physical violence perpetrated against Jenese by Roland and his illicit extramarital affairs there is substantial evidence to support the trial court’s conclusion that extreme cruelty, consisting of both grievous bodily injury and grievous mental suffering, was inflicted by Roland upon Jenese during their marriage. The trial court’s underlying findings of extramarital conduct and physical abuse are supported by the evidence and are not clearly erroneous.

IX. Premarital Agreement

[¶ 18] Roland and Jenese entered into a premarital contract which the court found was unconscionable and unenforceable. Section 14-03.1-06, N.D.C.C., provides in relevant part:

1. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
a. That party did not execute the agreement voluntarily; or
b. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(2) Did not voluntarily sign a document expressly waiving any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(3) Did not have notice of the property or financial obligations of the other party.
3. An issue of unconscionability of a premarital agreement is for decision by the court as a matter of law.

Section 14-03.1-07, N.D.C.C., provides:

Notwithstanding the other provisions of this chapter, if a court finds that the enforcement of a premarital agreement would be clearly unconscionable, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provisions, or limit the application of an unconscionable provision to avoid an unconscionable result.

[¶ 19] Relevant to this issue, the trial court made the following specific findings of fact:

22. Three days before the parties married, Roland pressed Jenese to execute a premarital agreement. Such agreement purported to allocate the parties’ debts and assets in the event of a divorce. It did not, however, prohibit an award of spousal support.
23. The parties’ premarital agreement is not enforceable pursuant to NDCC, § 14-03.1-06, due to the following factual circumstances:
a. The premarital agreement was sprung on Jenese just three days before the parties’ marriage.
b. Jenese did not have the benefit of independent legal advice prior to signing the agreement.... She was required to read the agreement in the same room, at the same table, where Roland and his attorney sat, causing a coercive environment. Her reading of the agreement was, thus, cursory, and her understanding of its consequences limited.
c. Roland did not provide Jenese a fair and reasonable disclosure of his property and financial obligations. Roland evidences an abject disability to make honest financial disclosures. This fact was particularly evident with respect to the financial disclosures he made to Jenese in the premarital agreement. For example, Roland disclosed a “net worth” of $473,724 in the premarital agreement. However, just a matter of months earlier, on loan applications, he had disclosed a net worth of $1,341,500, $683,683 and $706,178. Roland provided no explanation for these widely varying amounts. In addition, attached to each of Roland’s loan applications is a “Schedule of Real Estate Owned”. These schedules disclose equity values for Roland’s various real estate holdings vastly different than the amounts he disclosed on the premarital agreement.
d. Jenese did not voluntarily waive her right to a fair and reasonable disclosure of Roland’s property or financial obligations.
e. Jenese did not have notice of the true state of Roland’s property or financial obligations.
31. Roland’s representations of his income are neither credible nor reliable. He did not file taxes in 1997, 1998 or 1999, a failure a Court appointed forensic accounting expert deemed a criminal violation. Roland drafted multiple phony returns in 1998, which identified income amounts varying by more than $80,000, some of which identified Jenese as his wife, even though they weren’t married until March of 1999.

(Emphasis in original.) Based upon these findings, the trial court reached the following conclusion:

16. PREMARITAL AGREEMENT UNENFORCEABLE: The parties’ premarital agreement, dated March 3,1999, is unenforceable pursuant to North Dakota Century Code, Sections 14-03.1-06 and 14-03.1-07.

(Emphasis in original.)

[¶ 20] Lack of adequate legal advice for a prospective spouse to obtain independent counsel is a significant factor in weighing the voluntariness of a premarital agreement. Matter of Estate of Lutz, 1997 ND 82, ¶ 34, 563 N.W.2d 90. Even if a premarital agreement has been voluntarily entered, the substantive enforceability of it is a matter of law to be decided by the court. Id. at ¶ 39. Roland’s failure to provide truthful and accurate financial information to Jenese prior to her entering the premarital agreement is sufficient ground to render it unenforceable. Roland’s own testimony highlights his disregard for telling the truth in these proceedings:

Q To your way of thinking, Mr. Riemers, is it a lie to conceal the truth?
A I thought the whole purpose of the legal process is to misdirect truth most of the time, Mr. Gjesdahl.
Q I’m asking you for your take on this. Is it a lie to your way of thinking to conceal the truth?
A No, I think concealing the truth is part of the normal legal process if you’re, you know, in a court case.

We conclude the trial court did not err in refusing to enforce the premarital agreement.

X. Unconstitutional Division of Marital Property

[¶ 21] Roland asserts the trial court erred by not dividing the parties’ property as required by N.D. Const, art. XI, § 23. We quote Roland’s entire argument on this issue:

“[A]s a matter of law, Article 11, Section 23 of the North Dakota [sic] allows women to keep their pre-marital property. As a matter of state law (and probably Federal Constitutional Law as well) in North Dakota, gender terms are interchangeable. N.D.C.C. 1-01-34. Therefore by North Dakota constitution parties keep premarital property.”

N.D. Const, art. XI, § 23, provides:

The real and personal property of any woman in this state, acquired before marriage, and all property to which she may, after marriage become in any manner rightfully entitled, shall be her separate property, and shall not be liable for the debts of her husband.

This provision quite clearly and simply provides that the premarital property of a woman remains her property upon marriage and is not subject to her husband’s separate debts. Prior to statehood and the adoption of our state constitution, the Dakota Territorial Legislature enacted legislation with similar language to the above-quoted constitutional provision, making the separate property of the husband and wife not liable for the debts incurred by the other before marriage. See Civ. C. 1877, § 83; S.L. 1893, ch. 52, § 2; R.C. 1895, § 2770, subss. 1 to 4; R.C. 1899, § 2770, subss. 1 to 4. That legislation is currently codified under N.D.C.C. § 14-07-08.

[¶ 22] In Keig v. Keig, 270 N.W.2d 558, 560 (N.D.1978), this Court concluded the statutory language is not part of our divorce law and does not affect the court’s authority to divide marital property:

Section 14-07-08, NDCC, is not part of our divorce law. This statute was passed in 1877 by the Dakota Territorial Legislature (Dakota Civil Code § 83, 1877) for the purpose of giving married women some control over their separately acquired property. Derived from California Civil Code § 169 (1872), § 14-07-08 gave married women the power to hold property in their own names, a right which previously had existed only for men.
Under § 14-05-24, NDCC, the trial court has jurisdiction to consider both joint and individual property owned by the parties in reaching an equitable division.

This Court’s decision in Keig did not address N.D. Const, art. XI, § 23. However, that constitutional provision contains language and import similar to the statute. We conclude the constitutional provision, like the statute, is not part of our divorce law and has no application to the court’s division of marital assets in dissolving a marriage. We, therefore, further conclude Roland has not provided persuasive argument that his alleged rights under N.D. Const, art. XI, § 23 were violated by the trial court in dividing the parties’ marital property.

XI. Property Distribution— Math Computation

[¶ 23] Roland asserts the trial court erred in using valuations of the parties’ property submitted by Jenese while not using any valuations submitted by Roland. The trial court’s decisions in distributing marital property between spouses are findings of fact reviewed on appeal under the clearly erroneous standard. N.D.R.Civ.P. 52(a). A choice between two permissible views of the evidence is not clearly erroneous when the trial court’s findings are based upon physical or documentary evidence, inferences from other facts, or on credibility determinations. Fox v. Fox, 2001 ND 88, ¶ 14, 626 N.W.2d 660.

[¶ 24] In its initial findings of fact, the trial court summarized the total debt of the parties and understated that debt by $111,888. Consequently, we remanded the case to the trial court under N.D.R.App.P. 35(b) for reconsideration of the property distribution in light of the correct total debt amount. Upon remand the trial court corrected the total debt figure in its findings of fact and explained the error was a clerical error which had no adverse effect on the court’s property distribution:

The North Dakota Supreme Court has remanded this matter to this Court because “the trial court understated the parties!’] debt by $111,888”. This error was clerical, not substantive. In other words, the trial court, after a five day trial, was as aware of the parties’ estate as it could be.
The Court’s ultimate debt and asset allocation was precisely as it intended. This fact is apparent in the specificity with which the Court, in both its original Findings of Fact and Conclusions of Law, identified and allocated specific, enumerated debts. The only place in which the $111,888 error appears is in the totalling of the enumerated debt as set forth in the concise summary.
The Court was well aware of this debt and allocated liability therefore] in the manner it intended. It simply made a clerical omission in failing to modify the debt total stated in the Summary.

[¶ 25] Roland has failed to demonstrate that the trial court’s clerical error in summarizing the total debt resulted in a clearly erroneous distribution of the marital property. The trial court has satisfactorily explained the error was strictly clerical, not substantive, and the trial court corrected the total debt amount in its findings entered after our remand. We conclude, therefore, the understatement of the total debt amount was merely a clerical mistake and does not constitute reversible error.

XII. Spousal Support

[¶ 26] Roland asserts the trial court erred in awarding Jenese spousal support of $500 per month for five years. Spousal support determinations are treated as findings of fact and will not be reversed on appeal unless they are clearly erroneous. Kawtzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561. An award of spousal support must be made in light of the needs of the disadvantaged spouse and of the supporting spouse’s needs and ability to pay. Id. Rehabilitative spousal support is ordered to give a disadvantaged spouse an opportunity to become adequately self-supporting through additional training, education, or experience. Id. However, a spouse’s need for rehabilitation is not limited to the prevention of destitution, and continuance of a standard of living is a valid consideration in a rehabilitative spousal support determination. Id.

[¶ 27] The trial court found that Roland has a gross income of $110,000, and, for child support purposes, a net income of $5,500 per month. The trial court found that Jenese, who is employed as a certified nurse’s aid, earns approximately $7 per hour and can expect to earn a gross income of $14,560 per year with a net income of approximately $1,000 per month. The trial court found that the parties had established a middle class standard of living during their marriage, and that as a result of the marriage dissolution “Roland’s personal standard of living has not diminished in the least.” But the court also found that Jenese’s standard of living “has diminished substantially” and that Jenese “has been substantially disadvantaged by her marriage to and divorce from Roland.” We conclude the trial court’s findings are supported by the evidence and are not clearly erroneous. We further conclude the trial court’s award of spousal support is supported by the evidence and is not clearly erroneous.

XIII. Life Insurance

[¶ 28] Roland asserts the trial court abused its discretion in requiring Roland to maintain a life insurance policy until Johnathan is 18 years old. Under N.D.C.C. § 14-08.1-03, the trial court can “require reasonable security for payments” of child support as ordered by the court. We find no error in the trial court’s requirement Roland maintain life insurance as security for his obligation to pay child support for Johnathan.

XIV. Health Insurance

[¶ 29] Roland asserts the trial court abused its discretion in requiring him to provide health insurance for Johnathan. Section 14-09-08.10, N.D.C.C., requires the trial court to provide in each order entered for the support of a child a provision for health insurance coverage for that child. If the parent having physical custody of the child can obtain health insurance for the child “at no or nominal cost” that parent must be required to do so. Otherwise, the noncustodial parent must be required to provide coverage for the child if it is or becomes available “at reasonable cost.” The court must, nevertheless, enter an appropriate order providing for health insurance coverage for the child even though such coverage is not available to the custodial parent “at no or nominal cost” or to the noncustodial parent “at reasonable cost.”

[¶ 30] There is no evidence in the record to support even an inference that Je-nese has available to her health insurance coverage for Johnathan at “no or nominal cost.” However, there is evidence in the record that Roland had a health insurance policy at a cost of $213 per month. There is no evidence itemizing the amount of that premium which is attributable to insurance for Johnathan. Nevertheless, we conclude the evidence is sufficient for the court to have found that, under the circumstances, health insurance coverage for Johnathan is available at reasonable cost to Roland. We conclude, therefore, the trial court did not err in requiring Roland to provide health insurance coverage for Johnathan.

XV. Conclusion

[¶ 31] Roland has raised additional issues which we find are devoid of merit and do not warrant further discussion. In accordance with this opinion, we affirm, in its entirety, the judgment of the district court.

[¶ 32] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

      . This identical language was also contained in the constitution as originally adopted in 1889, under N.D. Const, art. 1, § 7.

      . This territorial enactment, which was effective at the time the state constitution was adopted, provided:
      An issue of law must be tried by the court or by the judge. An issue of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived as provided in section 5065. Every other issue is triable by the court which, however, may order the whole issue or any specific question of fact involved therein, to be tried by a jury, or may refer it as provided in sections 5071 and 5072.
      Hence, both issues of law and fact in divorce actions, at the time the constitution was adopted, were triable by the court, not by jury.

      . Civ. C. 1877, § 83(4) provided:
      The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage.
      As amended and codified under N.D.C.C. § 14-07-08(4) the provision states:
      The separate and mutual rights and liabilities of a husband and a wife are as follows:

      . The separate property of the husband or wife is not liable for the debts of the other spouse but each is liable for their own debts contracted before or after marriage.


source: Caselaw Access Project

author: KONENKAMP, Justice. GILBERTSON, Chief Justice

license: Public Domain

text:
    2002 SD 47
    STATE of South Dakota, Plaintiff and Appellee, v. Robert Angelo HORSE, Defendant and Appellant.
    No. 21558.
    Supreme Court of South Dakota.
    Argued Nov. 15, 2001.
    Decided April 24, 2002.

      Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Timothy J. Rensch, Rapid City, South Dakota, Attorney for defendant and appel-lee.
   KONENKAMP, Justice.

[¶ 1.] This case presents the question whether law enforcement officers can obtain a juvenile’s waiver of Miranda rights while in custody and proceed with interrogation without notice to the juvenile’s parents or guardian. Here, in an investigation for kidnapping and murder, police interrogated a fifteen-year-old without any effort to notify his parents. South Dakota law mandates that law enforcement officers immediately notify a juvenile’s parents, guardian, or custodian when a child is taken into custody, and we determine that a child’s waiver of Fifth Amendment rights obtained in custody without prior notice to the parents, guardian, or custodian is a significant factor in weighing the admissibility and vol-untariness of the child’s confession. Under the specific circumstances of this case, we reverse and remand.

A.

Background

[¶ 2.] Defendant Robert Angelo Horse was fifteen years old at the time of the incidents recounted here. In May, 1999, defendant left his aunt’s home in Evergreen, South Dakota, on the Pine Ridge Reservation, and traveled to Rapid City, where he took up residence with his half-brother, Jerry Horse, then twenty-seven years old. Defendant apparently hoped to find work, but was unsuccessful. Instead, he began consorting with one Chaske White, age twenty-five, leader of a gang called the “Real Thug Family,” of which Jerry, too, was a member. In this company, defendant began drinking alcohol and smoking marijuana. Eventually, he became a member of the gang by having the letters RTF branded on his chest with a hot knife.

[¶ 3.] In the early evening of June 15, 1999, a small group including Jerry, Chaske White, and Dawn Frazier (White’s girlfriend) picked up defendant at Jerry’s home, drove to Kelton Feichert’s house and drank beer into the night. Then, Jerry, Chaske, Dawn, and defendant drove to DD’s Bar in Rapid City, arriving there about 2:00 a.m. Jerry and Dawn entered the bar, where Jerry met Morning Star Standing Bear (who was an alcoholic and had already been drinking heavily that night), and he invited her to join his group to drive around and drink more beer. Morning Star needed a ride and agreed to go.

[¶ 4.] Meanwhile, in the bar’s parking lot, Chaske met Marty, another acquaintance, and all six drove back to Kelton’s home, Chaske riding with Marty, and the others riding with Dawn. At Kelton’s, Chaske and Marty began fighting. Chaske beat Marty with a fireplace poker; defendant joined in on Chaske’s side, but Jerry, Dawn, and Kelton broke up the fight. Thereafter, Dawn drove Jerry back to his house, with Chaske, defendant, and Morning Star as passengers. Upon reaching his home, Jerry asked defendant to come in with him, but defendant decided to stay with the group and continue drinking for another hour, when he said he would return. As Dawn drove around the city, defendant and Morning Star engaged in apparently consensual foreplay in the back seat. Throughout the drive, Chaske asked defendant repeatedly whether defendant was “down,” meaning, roughly, whether defendant was ready to undertake a planned, concerted action of the gang. Whatever was about to happen was apparently an initiation for defendant.

[¶ 5.] Eventually, Dawn drove the car out into the country. By then, Morning Star had fallen asleep. Dawn stopped the car in a deserted spot, she and Chaske got out, and Chaske ordered defendant to help him pull Morning Star out of the car and then to hit her. By then, all three were in agreement that Morning Star was to be beaten up. Defendant obeyed Chaske’s directive, helped him pull her out of the car, and then knocked her to the ground. Defendant then began kicking her and did not stop until he hurt his foot. Meanwhile, Chaske was bending over her, pummeling her with his fists, and Dawn joined in as well, while Morning Star cried out for mercy. At some point, Chaske picked up Morning Star and threw her onto the car and invited defendant to assault her sexually. Defendant refused. Then, Dawn opened the trunk of the car and removed a scissor jack. Defendant took the jack and threw it at Morning Star; Dawn picked it up and did likewise. Then Chaske took over and began beating Morning Star with the jack. One blow pierced Morning Star’s skull, entering her brain and inflicting a potentially fatal injury. She was also beaten with a lug wrench and tire iron that Dawn removed from the trunk.

[¶ 6.] Not satisfied with this, Chaske took a bottle that Dawn had broken and stabbed Morning Star repeatedly. Then Chaske ordered defendant to cut Morning Star, and defendant stabbed her twice in the buttocks. Finally, Chaske took the broken bottle and slashed Morning Star’s throat, and he and defendant together dragged her body into a nearby ditch. She was still alive at the time, for defendant heard her making gurgling noises and saw her moving her hand. From beginning to end, the assault lasted some twenty minutes. Thereafter, the three cleaned up the crime scene, put the tools back in the trunk, drove back to Chaske’s home, cleaned themselves up, and then stayed at Chaske’s for the next day and a half.

[¶ 7.] As the investigation closed in on the gang members, law enforcement officers asked defendant to come in for questioning. He voluntarily appeared at the Department of Criminal Investigation [DCI] office in Rapid City. Questioning of defendant began at 8:00 p.m. on June 17. The first session lasted more than four hours. Agent Pat West asked defendant’s brother, Jerry, for the telephone number of defendant’s parents. Jerry replied that they resided on the Pine Ridge Indian Reservation and did not have a telephone. Accordingly, Agent West sought and received Jerry’s permission to question defendant. Jerry was still a possible suspect himself at that point. No officer attempted to reach either of defendant’s parents or his aunt, at whose home he had most recently been staying before coming to Rapid City. No effort was made to contact tribal authorities on the reservation for help in contacting defendant’s parents. During the first session, defendant asked to speak to his half-brother Jerry, but an officer responded, “You’re not going to talk to him right now.” The first session ended about 12:30 a.m. on June 18.

[¶8.] The second questioning session began after a half-hour break. At about 1:00 a.m., Agent West and Investigator Bramblee took defendant, handcuffed, to the crime scene in Agent West’s car. During the trip to and from the scene and at the scene itself, the questioning continued. At some point after return to the station at about 3:00 a.m., Agent West placed defendant under arrest and took him to the Juvenile Services Center [JSC]. The third session began on the next day, Saturday, June 19, at 8:30 a.m., at the JSC. Agent West questioned defendant primarily with a view to clearing up discrepancies among the accounts of Chaske, Dawn, and defendant. It is not necessary here to recount the unfolding of defendant’s gradual admissions. After initially denying any involvement in the crime, defendant eventually told investigators of his participation.

[¶ 9.] In the course of the interrogations, officers represented that they could not make any promises, but they also said that they were providing defendant with a “lifeline,” that they would “go to bat for” him, and that it was unlikely that he could pass a lie detector test. Among the statements with which defendant was barraged was the following:

We can’t promise you anything, Bob, but we can promise you, if you’re honest with us, we can do everything we pos-sibl[y] can to help you out. We can’t promise you anything.

It is difficult to see how a juvenile with an IQ of 81 could fully appreciate the emptiness of such remarks.

[¶ 10.] The State charged defendant with Count I, kidnapping under SDCL 22-19-1(2), a class 1 felony; Count IA, aggravated kidnapping under SDCL 22-19-1(2), a class A felony; Count II, first-degree murder under SDCL 22-16-4, a class A felony; and Count IIA, first-degree felony murder under SDCL 22-16-4, a class A felony. At trial, the jury found defendant guilty of Counts IA and IIA. The trial court imposed a sentence of life imprisonment for each conviction.

B.

Custodial Interrogation Without Parental Notice

[¶ 11.] On defendant’s motion to suppress the statements he gave to the officers, the trial court conducted a hearing and later entered its findings of fact and conclusions of law. We quote from pertinent selections of those findings:

Findings of Fact
III. Robert Horse, DOB: 04/18/1984, traveled to the DCI office at the request of law enforcement officers. His adult [half-] brother Jerry Horse, Jr., with whom Robert was living, was also present at the DCI office in Rapid City. Robert’s parents were living in the Pine Ridge area and did not have a telephone. Agent West asked for, and received, permission from Jerry Horse to speak to Robert, in Robert’s presence.
IV. In the first conversation, between approximately 8:00 p.m. on June 17, 1999, and approximately 12:30 a.m. on June 18, 1999, Agent Pat West and Investigator David Bramblee questioned Robert. West advised Robert of his Miranda rights, including the advisement that what Robert said could be used against him in adult court, and twice received an indication from Robert that he understood those rights and wished to waive - them. Although Robert described prior involvement and, in his opinion, mistreatment by, law enforcement, this is the first time Robert had ever been advised of Miranda.
XIII. [Robert] lied to the officers at least twenty-eight (28) times during this conversation [details omitted],
XIV. Neither investigator made any promises to Horse regarding the final outcome of his conversations. In fact, West pointed out that he wasn’t going to tell Robert that everything was “peachy keen.”
XV. When Robert became emotional about the crime, West encouraged Robert to tell the truth, and pointed out that things would be better from that point on. Robert wondered [whether] West really could (make things better), and West committed to working with him “all the way.”
XVI. When Robert wanted [to make a deal], West emphasized that he could make no promises, but that he would “go to bat” for Robert, if necessary.
XVII. The first conversation took place in the polygraph room of the DCI office in Rapid City for privacy purposes only. There was no discussion or pretense to hook up a polygraph while Robert was in the room.
XVIII. The investigators’ second conversation with [Robert] lasted from about 1:00 a.m. to approximately 3:00 a.m. on June 18, 1999. While on the way to the crime scene, Investigator David Bramblee confirmed that Horse recalled the Miranda warning while in the car on the way to the scene, and reminded [Robert] that they still applied. Robert did not verbally answer Bramblee, but nodded his head affirmatively.
XX. ... West pointed out that he didn’t think Robert would pass a polygraph [test], yet Robert indicated he would be willing to take one, to prove that he was telling the truth to the investigators.
XXIV. When Robert questioned the officers about what would happen to him if he was holding back, Bramblee reiterated that they could not make him any promises, but that holding back would not generally be good for Robert.
XXV. In the early morning hours of Friday, June 18, 1999, Agent West arrested Robert Horse for his participation in the murder of Morning Star Standing Bear. West took Horse to JSC in Rapid City.
XXVI. West next contacted [Robert] for the third, and final, conversation with [Robert] at approximately 8:30 a.m. on Saturday, June 19, 1999, at JSC. West reminded [Robert] of the Miranda warnings, including the juvenile admonition, prior to beginning the interview. The purpose of the interview was to clarify what each of the co-defendants, including Robert, had done. West did not have contact with Jerry Horse or Robert’s parents prior to this conversation.
XXXI. [At one point, Agent West left this interview with Robert to contact his supervisor, Agent Overturf.] Upon returning to finish speaking with Robert, Agent West confirmed that Horse had not been contacted by anyone since being incarcerated at JSC.
XXXIII. Agent West concluded the interview with Robert [] at 10:10 a.m. At approximately 10:20 a.m., West was paged by Agent Overturf. West promptly returned the call, and Overturf told West to cease the interview because Horse was now represented by counsel....
XXXIV. At no time during any of West’s contacts with Robert [ ] did Robert invoke his right to remain silent or to speak to an attorney.
XXXV. Dr. Stephen Manlove and his associate, Dewey Ertz, observed Robert Horse’s IQ to be at the overall level of 81, in the low average range. [Robert’s] performance IQ was 84, and his verbal IQ was 80, all within the low-average range....
Conclusions of Law
III. The first interview was noncustodial in nature. Defendant came voluntarily to headquarters via private vehicle, at the request of law enforcement. Defendant was not handcuffed or otherwise restrained. Defendant was properly and completely advised of his Miranda rights, including the fact that any statements could be used against him in adult court.
IV.Agent West spoke with Defendant’s [half-] brother Jerry Horse, who indicated that Defendant’s parents did not have a phone. Jerry Horse, as purported guardian of Defendant Robert Horse, gave his approval for the interview of Defendant. Defendant’s detention was not violative of SDCL 26-7A-15.
V. Although Defendant was in the low average range of intelligence, he understood his rights and knowingly and voluntarily waived his rights under Miranda.
VI. The second interview was noncustodial in nature and occurred in Agent West’s vehicle at the crime scene and during the trip to and from the crime scene. Defendant was reminded of his Miranda rights and nodded his head in understanding. Defendant understood his rights and knowingly and voluntarily waived his Miranda rights.
VII. The third interview occurred at the Juvenile Services Center in Rapid City and was a custodial interrogation. Defendant was again advised of his Miranda rights and knowingly and voluntarily waived his Miranda rights. The third interview was concluded before Agent West learned that Defendant had been assigned counsel.
VIII. All of Defendant’s statements were voluntary beyond a reasonable doubt.
IX. At no time did Defendant invoke his right to remain silent and at no time did he request the assistance of counsel.
X. Defendant’s statements were the result of legitimate police interrogation techniques and were not the result qf coercion, intimidation, or threats of physical harm.
XI. Defendant’s Motion to Suppress Statements is denied.

A ruling on a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488.

[¶ 12.] Children can be “easy victim[s] of the law,” so we take special care to scrutinize the record when juveniles are involved. Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303-04, 92 L.Ed. 224, 228 (1948). Miranda warnings safeguard the privilege against self-incrimination during “incommunicado interrogation of individuals in a police-dominated atmosphere.” Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966). Such an atmosphere creates compelling pressures undermining the will to resist, compelling suspects to speak where they would not otherwise do so voluntarily. Id. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. Miranda must be enforced strictly in those situations where the concerns .that generated the decision are implicated. Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3148-49, 82 L.Ed.2d 317, 333 (1984). These concerns are only heightened when juveniles are interrogated.

The youth of an accused is a significant factor in determining the voluntariness of a confession. A juvenile’s constitutional right against self-incrimination should be afforded additional protection. If counsel is not present when an admission is obtained, a court must take great care to assure that the juvenile’s confession was voluntary “in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair.”

State v. Caffrey, 332 N.W.2d 269, 272 (S.D. 1983) (quoting Application of Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527, 561 (1967)) (internal citations omitted). As an additional safeguard against self-incrimination, we held in State v. Lohnes, “that before a trial court can conclude that a juvenile has made a clear and intelligent waiver of his rights to counsel and against self-incrimination, the State must establish that the juvenile was advised of the possibility that he may be tried as an adult.” 324 N.W.2d 409, 414 (S.D.1982) (overruling on other grounds recognized by State v. Woods, 374 N.W.2d 92, 96 (S.D.1985)). Furthermore, the United States Supreme Court noted in Gallegos v. Colorado, that in juvenile matters courts deal with “a person who is not equal to the police in knowledge and understanding of the consequence of the questions and answers being recorded and who is unable to know how to protect his own interests or how to get the benefits of his constitutional rights.” 370 U.S. 49, 54, 82 S.Ct. 1209, 1212-13, 8 L.Ed.2d 325, 328 (1962). Nonetheless, the Supreme Court has never required as a per se rule the presence of a parent or guardian, and it made clear in Fare v. Michael C., that juvenile waivers of Fifth Amendment rights should be judged by the “totality of the circumstances.” 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212 (1979).

[¶ 13.] A totality-of-circumstances analysis applies in deciding whether a juvenile’s consent to interrogation was freely and voluntarily given. We consider “the juvenile’s age, experience, education, background, intelligence, and capacity to understand the warnings, ... the nature of Fifth Amendment rights, and the consequences of waiving such rights.” Caffrey, 332 N.W.2d at 272. As was the case in Caffrey, the record “does not indicate that the defendant had had extensive contacts with law enforcement officers, probation officers, and the courts that marked the juvenile in Fare v. Michael C.” Id. Again, as in Caffrey, we also consider the juvenile’s level of immaturity and inexperience together with the gravity of misrepresentations used by the interrogating officers. Id. (citing Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959)).

[¶ 14.] Threats that the child can be sent to prison in order to elicit his cooperation certainly are a factor in gauging voluntariness. The interrogating officers admitted they threatened defendant to overcome his free will:

Q.: (Defense counsel) Okay. You threatened Robert Horse with the fact that he was going to go to prison, didn’t you?
A.: (Officer) Yes.
Q.: Okay. And what was the purpose of that threat?
A.: To elicit his cooperation.
Q.: To get him to talk?
A.: Yes.
Q.: And it was to overcome his free will because he’d been silent up to that point about it. Isn’t that true?
A.: Correct.
Q.: And what is the purpose of saying to somebody “You’re going to get charged with accessory to murder” if they don’t talk?
A.: To elicit their cooperation, get them to talk.
Q.: To overcome their free will to remain — to not talk up to that point. Right?
A.: Yes.

[¶ 15.] Furthermore, defendant was given illusory assurances, the officers themselves seeming to assume a parental manner toward this fifteen-year-old.

Officer: You know, it’s just one of those things that I know it’s bad. I know it’s bad. But you’re — but holding out
here, you’re making it worse for yourself. Don’t do that. You’re too God — damned young. I don’t want to see that.
Defendant: I know.
Officer: I’m not bullshitting you here, Bob. You know what I’m saying? I’ve got nephews your age. Do you think I would want them to be in your position? Do you know what I would tell them if they were in your position? I would say, “tell the police everything and get the hell out of it,” you know? Your situation — I don’t want to see you take the blame, and take the hit for something you didn’t do, Bob. You’re 15 years old. I can relate to you. I hang out with my nephews all the time. We hunt and we fish, and we do all kinds of different stuff, you know? and I would not want that on them. You — you need to come forward, Bob. I know things are tough.
Officer: Throw that away.
Officer: I know things are tough. But I want you to move forward and explain to me, you know, what you think. Tell me what you’re thinking about. What [are] your concerns?
Defendant: My dad, man.
Officer: OK. You’re worried about your dad?
Defendant: Yeah.
Officer: What he’s going to think, you mean?
And I understand that. I’ve got a great relationship with my dad, too. And I’m still — I’m 33 years old, and I’m still concerned about what he thinks, you know, because his opinion means a lot to me. But I can guarantee you, Bob, that your dad would rather have somebody come forward and take responsibility and try to make things right.
What’s done is done. But now it’s time to come forward and make things right, Bob.
⅜ ⅜ ⅝ ⅜ ⅜; ⅜
Officer: Let it go, man.
Officer: It’s all right to let it go. It’s not — we can make things better from this point on, you know.
Defendant: Are you sure you could?
Officer: I’m going to be with you all the way. You know, like I told you, this is going to be a rough road, but we can — we can work through it.
Bob, look at me. It’s going to be all right. Hey, let’s talk about it and see what’s going on. OK?
That’s why I’m here. That’s why I’m spending time with you. That’s why Dave is here. We want to know what is going on. We want to know what happened. I know it’s hard. I know it’s really hard, but once you start talking about it and get it off your chest, it’s going to be better. You don’t need to live with this stuff. Bobby, hey, it’s all right.]

[¶ 16.] At one point, the officers even suggested that defendant’s father would want him to confess.

Officer: Hey, look at me. What are you thinking about in there, big guy? What are you thinking about?
Defendant: About my dad.
Officer: I know.
Officer: What about your dad? Tell us about your dad.
Officer: I know you’re concerned about what he thinks about you. Parents are important. You respect your parents; you’re concerned about them.
Officer: What would your dad want you to do? Would not he want you to be a stand-up guy?
Officer: I know my dad taught taking responsibility for what you do, stepping up to the plate.
Officer: If you mistake, you admit it.
Officer: If you make a mistake, step back, brush yourself off, and get back on again.
Defendant: Yeah, man, I’ve got all these dreams, man, going to the Army. Shit, it ain’t going to happen.
Officer: Well, that’s not necessarily true, Bob.
Defendant: It’s true.
Officer: Not necessarily....

We view such tactics differently in the context of an adult interrogation; but for a fifteen-year-old whose parents were not notified of his status, a child who had no opportunity to consult with a parent, guardian, or custodian, this type of interrogation becomes questionable.

[¶ 17.] A crucial statutory safeguard to assure the due process rights of juveniles taken into custody is the requirement that a parent, guardian, or custodian be “immediately” notified. Accordingly, SDCL 26-7A-15 provides in pertinent part:

The officer or party who takes a child into temporary custody ... shall immediately, without unnecessary delay in keeping with the circumstances, inform the child’s parents, guardian or custodian of the temporary custody and of the right to a prompt hearing by the court to determine whether temporary custody should be continued. If the child’s parents, guardian, or custodian cannot be located after reasonable inquiry, the officer or party taking temporary custody of the child shall report that fact and the circumstances to the state’s attorney.

We note that immediate notification is mandatory. The word “shall” in our statutes “manifests a mandatory directive,” conferring no discretion. SDCL 2-14-2.1.

[¶ 18.] Many courts have suppressed juvenile confessions given in custodial interrogations where law enforcement officers violated parental notification statutes. M.M. v. State, 827 P.2d 1117 (Wyo.1992) (noting that law enforcement officials must comply with parental notification statute for juveniles’ statements to be admissible); MAC. v. Harrison County Family Court, 566 So.2d 472, 473 (Miss.1990) (blatant violation of juvenile’s statutory right to have parent present during interrogation required exclusion of any statements made); A Minor Boy v. State, 91 Nev. 456, 537 P.2d 477, 480 (1975) (mandates of notification statute satisfied where “all reasonable efforts” were made by police to contact defendant’s mother and not more than one hour could have elapsed before she contacted and there was “no evidence of any intentional delay in contacting” defendant’s mother); In re Williams, 265 S.C. 295, 217 S.E.2d 719, 721 (S.C.1975) (statements admissible in absence of showing that parents were not notified in accordance with statute); Barrow v. State, 749 A.2d 1230 (Del.Supr.2000) (suppressing statements by juvenile because parental notification statute violated); In re D.B., 303 Ill.App.3d 412, 237 IlLDee. 3, 708 N.E.2d 806, 812 (1999) (purpose of law requiring immediate notification of parents when juvenile taken into custody “is to permit, where possible, a parent to confer with and counsel the juvenile before interrogation and confession”; “statute does not condition the requirement of calling a juvenile’s parent on whether the juvenile wants his parent called”); Palmer v. State, 626 A.2d 1358 (Del.Supr.1993) (reversing seventeen-year-old juvenile’s conviction because police’s failure timely to notify custodian violated mandate of statute and constituted deprivation of defendant’s right to due process and self-incrimination rights); People v. Brown, 182 Ill.App.3d 1046, 131 Ill.Dec. 534, 538 N.E.2d 909, 911 (1989) (flagrant violation of statute requiring officers to make reasonable attempts to notify parents among factors causing court to determine that defendant’s statement was involuntary and therefore should be suppressed); Sublette v. State, 365 So.2d 775, 777 (Fla.Dist.Ct.App.1978) (failure to comply with statute requiring that parents be immediately notified upon arrest of child renders any statements made by juvenile inadmissible); Cf. People v. Gardner, 257 A.D.2d 675, 683 N.Y.S.2d 351 (1999) (admitting child’s confession, since parental notification requirement satisfied).

[¶ 19.] For the notice statute to apply, the juvenile must be in custody. The trial court found that the first two interrogations were noncustodial. The United States Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. In the absence of an actual arrest, custodial interrogation means that something is said or done by the law enforcement authorities, either in their manner, their tone, or their questions, that indicates they would not have allowed the suspect to depart. United States v. Hall, 421 F.2d 540, 545 (2ndCir.l969). Under SDCL 26-7A-15, the question is not whether children might perceive themselves to be in custody, but whether the police have in fact taken them into custody. The record unquestionably shows that defendant was in custody. That he would perceive himself to be deprived of his freedom of action for Miranda purposes is also certain. He was taken handcuffed to and from the crime scene. It was clearly erroneous to have found otherwise. The trial court did find that the third interrogation session, undertaken in the JSC, occurred while defendant was in custody.

[¶ 20.] In none of the three interrogation sessions did the officers comply with either the letter or the spirit of the notification statute. The interrogators learned from Jerry that defendant’s parents lived on the Pine Ridge Indian Reservation and had no telephone. On the one hand, the State makes clear in its brief that it does not consider Jerry to be either a legal guardian or custodian, but, on the other hand, the record makes clear that the interrogators considered Jerry to be a guardian for the purpose of obtaining consent to question defendant. Even if a brother can be considered a guardian of sorts, his consent may be meaningless if he has a conflict of interest with the child or has no real parental relationship with the child. See Matter of Steven William T., 201 W.Va. 654, 499 S.E.2d 876 (1997) (relative who was also suspect had conflict of interest). The record indicates that, although defendant’s most recent residence was Jerry’s home, he spent little time with Jerry and much with Chaske and Dawn. In addition, defendant and Jerry were more than a decade apart in age and had never had a close relationship before defendant came to Rapid City.

[¶ 21.] After obtaining Jerry’s “permission” to question defendant, the interrogators made no attempt to contact defendant’s parents or his aunt. The State maintains, “That was all they were able to do.” However, the Pine Ridge Indian Reservation has a police force that can be contacted by telephone and could have been requested to locate defendant’s parents. No doubt, other means of attempting to contact them were available as well. Indian children taken into police custody are entitled to no less protection under the law simply because their parents, guardians, or custodians reside on reservations. Since defendant at the time of the interrogations was under law enforcement control and presented no danger to himself or others, it was unreasonable under the circumstances for the interrogators to make no attempt to contact his parents. Cf. Steven William T., 499 S.E.2d 876 (delay in contacting parents was for primary purpose of obtaining a confession). Police officers must use their best efforts to locate a parent, guardian, or custodian when a child is taken into custody. Cf. M.A.C., 566 So.2d at 474 (juvenile’s confession suppressed because mother prevented from being present during questioning). Indeed, “[t]he enlargement of discretionary police power in derogation of statutory rights entails the danger of inconsistent law enforcement and the resultant evils of disrespect and distrust of legal institutions.” [Alfred Doe] v. State, 89 Nev. 564, 517 P.2d 183, 184 (1973) (concluding that failure to notify mother or uncle for between 3 and 12 hours was not justified).

[¶ 22.] To come at the question from the other side, we observe that notice to and the presence of parents, guardians, or custodians during interrogation can, in a close case, tip the balance toward finding a juvenile’s statements to be given freely and voluntarily. United States v. Harris, 453 F.2d 1317, 1322 (8th Cir.1972). The absence of a defendant’s parents, guardian, or custodian from the interrogation sessions because of a failure to comply with the notice requirement tends to weigh against voluntariness, i.e., against the possibility that defendant’s statements were in fact “product[s] of the suspect’s own balancing of competing considerations.” State v. Darby, 1996 SD 127, ¶ 31, 556 N.W.2d 311, 320. It is precisely because most children lack the maturity, perspective, and judgment to weigh the sometimes devastating consequences of waiving their constitutional rights that parental or adult guidance is encouraged. Under the totality of the circumstances standard, every court to examine the issue has suppressed the confession of a child whose parent or guardian was deliberately excluded from consulting with the child. See, e.g., State v. Presha, 163 N.J. 304, 748 A.2d 1108, 1119 (2000) (citations omitted) (Stein, J., concurring).

[¶ 23.] Then, too, the time of day and the length of the interrogation are part of the totality of the circumstances. In re D.B., 237 Ill.Dec. 3, 708 N.E.2d at 812. In Haley v. Ohio, the United States Supreme Court wrote:

Mature men possibly might stand the ordeal from midnight to 5 a.m. But we cannot believe that a lad of tender years [age 15] is a match for the police in such a contest.

332 U.S. 596, 599-600, 68 S.Ct. 302, 304, 92 L.Ed. 224, 228 (1948). Defendant was subjected to two sessions of questioning during the night, one from 8:00 p.m. to 12:00 a.m., and another from 1:00 a.m. to 3:00 a.m., and a third session a few hours later.

[¶ 24.] The trial court found that defendant’s statements were the result of legitimate police interrogation techniques. However, the threats, the offer of a “lifeline,” and the impenetrable language regarding what would or would not be promised to defendant, all impugn a finding of voluntariness, particularly with the interrogation taking place in the absence of any notice to defendant’s parents and an opportunity for him to consult with them or his aunt. Furthermore, during the interrogation, when defendant asked to talk to his half-brother, whom the officers had earlier treated as a guardian for consent purposes, the officers refused to allow defendant to confer with him.

[¶ 25.] Under the totality of the circumstances here, including the seriousness of the offense for which defendant was being interrogated; his age of fifteen; his low IQ; his background and educational level; his relatively insignificant previous dealings with the police or the courts; the nature and tone of the questioning used; the length of time and the lateness of the hours of interrogation; and the fact that defendant was held in custody and incommunicado, not able to consult with a parent, guardian, or custodian, or even his brother whom the officers treated as a de facto guardian, we determine that despite his having been given Miranda warnings, his statements were involuntary.

[¶ 26.] In the future, we will continue to examine challenged juvenile interrogations on a case-by-case basis. The totality of circumstances approach “refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive pri- or record who knowingly and intelligently waives his Fifth Amendment rights and voluntarily consents to interrogation.” Fare, 442 U.S. at 725-26, 99 S.Ct. at 2571-72, 61 L.Ed.2d at 213. Thus, while we do not hold that a juvenile has a per se right to consult with a parent, guardian, or custodian before questioning or to have such persons present during questioning, we do hold that notice to a parent, guardian, or custodian and a child’s opportunity to confer with such persons are significant factors in evaluating the voluntariness of a statement or confession under the totality of the circumstances. See People v. Brown, 182 Ill.App.3d 1046, 131 Ill.Dec. 534, 538 N.E.2d 909, 913 (1989). These opportunities were wholly foreclosed by the interrogating officers in this case.

[¶ 27.] Furthermore, we cannot say that noncompliance with the notice requirement was harmless. Failure to comply with the parental notification statute prevents detained children from receiving assistance and advice from those persons they would normally look to for guidance. Notifying these persons must be taken to have a purpose: to bring the child in contact with a mature adult family member or caretaker. Here, the officers not only failed to notify defendant’s parents or his aunt, but also refused defendant’s request even to confer with his adult half-brother. As in all criminal cases, the State bears the burden of proving beyond a reasonable doubt the volun-tariness of a defendant’s statements. State v. Morato, 2000 SD 149, ¶ 12, 619 N.W.2d 655, 659. Under all the circumstances, such proof is lacking here. We conclude, therefore, that the circuit court erred in admitting defendant’s statements at trial.

[¶ 28.] Defendant’s statements were also admitted in his transfer hearing. “[A] transfer hearing is a ‘critically important’ action determining vitally important statutory rights of the juvenile.” In the Interest of A.D.R., 499 N.W.2d 906, 907 (S.D.1998). In the circuit court’s findings of fact and conclusions of law, there is no disclaimer that defendant’s statements played no role in the court’s decision to transfer defendant’s case to adult court. Since we have held those statements to be inadmissible as evidence, we remand for rehearing on the transfer issue, with the proviso that defendant’s statements cannot be considered. See Illinois v. Robinson, 301 Ill.App.3d 634, 235 Ill.Dec. 395, 704 N.E.2d 968, 973-74 (1998).

C.

Conclusion

[¶ 29.] Defendant’s statements used against him in both the transfer hearing and the trial are inadmissible. A hearing on the question whether he should be transferred to adult court must be conducted without use of his illegally obtained admissions. Whether the court decides that defendant should be tried in adult or juvenile court, defendant’s statements to law enforcement cannot be introduced as evidence. In view of our decision on the statements, we need not reach the other questions raised on appeal.

[¶ 30.] Reversed and remanded.

[¶ 31.] SABERS and AMUNDSON, Justices, and GORS, Acting Justice, concur.

[¶ 32.] GILBERTSON, Chief Justice, dissents.

[¶ 33.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

GILBERTSON, Chief Justice

(dissenting).

[¶ 34.] I respectfully dissent. I would hold that, as no more than a factor to be considered in the totality of the circumstances, the lack of notification of parents, guardians or custodians in this case does not tip the balance in favor of suppressing Robert’s statements. Nor would I hold that it creates a bright line rule that law enforcement must overcome to gain admission of a juvenile’s statement, which was otherwise voluntary.

[¶ 35.] At one point, this Court apparently concludes that SDCL 26-7A-15 does not impose a per se rule of inadmissibility in the absence of parental notification. Yet, in later declaring “immediate notification is mandatory,” it also appears to contradict itself and draw a bright line rule from a procedural statute that provides none. Neither the statute, nor our constitutional standard for determining voluntariness, is compatible with such a rule. See Fare, 442 U.S. at 725, 99 S.Ct. at 2572, 61 L.Ed.2d at 212; Gallegos, 370 U.S. at 55, 82 S.Ct. at 1213, 8 L.Ed.2d at 328.

[¶ 36.] The Legislature required that notification of parents, guardians or custodians be made “without unnecessary delay in keeping with the circumstances.” SDCL 26-7A-15 (emphasis added). In doing so, it recognized that there are circumstances that may render it unnecessary or even impossible for a juvenile’s parents, guardians or custodians to be notified before questioning begins. See, e.g., Ther-iault v. State, 66 Wis.2d 33, 223 N.W.2d 850 (1974) (holding failure to notify parents in accordance with statute did not affect voluntariness as juvenile asked police not to contact semi-invalid grandmother because it might adversely affect her health); State v. Paille, 601 So.2d 1321 (Fla.Dist.Ct.App.1992) (holding defendant’s confession was voluntary, notwithstanding age and mother’s absence, because juvenile had requested parent not be notified); Gkrogg v. Com., 6 Va.App. 598, 371 S.E.2d 549 (1988) (holding absence of parent weighed less heavily against voluntariness because mother did not have a telephone, father could not be reached and no adult family member was available). Even if law enforcement had contacted the Pennington County State’s Attorney, who in turn contacted the Pine Ridge police, who in turn searched out the mother’s or aunt’s residence, there is no factual basis to conclude that they could have been found at all, or if so, when.

[¶ 37.] Moreover, we determine a statement’s voluntariness, including that of a juvenile, under a “totality of the circumstances” standard, which is consistent with the literal wording of SDCL 26-7A-15. The statements of a juvenile are not rendered inadmissible because they were given before notification of the parents, guardians or custodians. See Doerr v. State, 383 So.2d 905, 907 (Fla.1980); People v. Zepeda, 47 Ill.2d 23, 265 N.E.2d 647, 649 (1970); Commonwealth v. Wallace, 346 Mass. 9, 190 N.E.2d 224, 229 (1963). While at one point, this Court correctly acknowledges that lack of notice is merely a factor to be considered in the totality of the circumstances, it does not convincingly demonstrate that the absence of Robert’s parents somehow dominates totality analysis in this case.

[¶ 38.] Here, law enforcement got permission to question Robert from Jerry Horse, the half-brother with whom Robert was living. This discussion took place, and permission was obtained, in Robert’s presence. Before the interview, Robert was advised of his Miranda ’ rights, and that what he said could be used against him in adult court. During one interview, Robert was so oriented towards the subject matter that he corrected the officers no less than sixteen times regarding their inaccurate summary of information. A subsequent mental health professional examination of Robert determined him to be within the low average range of intelligence. He received primarily Bs and Cs, with the occasional D, in school. His teachers characterized him as a “quiet” and “nice young man” who “can do better if he tries.” Robert attributed his lower grades (he received all As and Bs before moving to South Dakota) to missing too many school days while spending time with his girlfriend. In addition, the trial court entered the following relevant findings of fact:

[Robert] spoke English, appeared to understand West’s questions, and answered West’s questions in an appropriate fashion. West did not believe there was any ethnic barrier to their communication. [Robert] was cocky, arrogant, stand-offish, and seemingly unconcerned about discussing the murder.

Robert was not deprived of food, drink, or sleep. He gave every indication that he understood and willingly participated in the conversational exchange. Thus, by allowing the lack of notification to outweigh the multitude of other factors favoring vol-untariness, this Court’s decision essentially establishes a bright line rule in which notification of parents, guardians or custodians is determinative in every juvenile case.

[¶ 39.] Furthermore, this Court’s decision presents a practical nightmare for law enforcement. Unfortunately, the grizzly facts of this case are not unique to this State. This case involves a 15-year-old juvenile who has not been cared for by either of his parents in at least three years. In fact, there is evidence in the record that suggests Robert’s mother has had very little role in his life since his birth. Immediately prior to the murder, Robert had been living with his half-brother, who acted as his custodian in reality if not legality, for the past month. Before that, Robert lived with his aunt on the Pine Ridge Indian Reservation, not either of his parents. Robert’s half-brother informed police that Robert’s “parents didn’t have a telephone; that we wouldn’t be able to contact them.” While this fact alone would have made contact difficult, the added jurisdictional problems associated with Indian country, as well as the uncertainty of whether one parent resides in another state, made location and notification of Robert’s parents, guardians or custodians (other than Jerry) nearly impossible.

[¶40.] South Dakota law enforcement has no legal authority in its official capacity to enter Indian country to seek out Robert’s mother or aunt. State v. Lufkins, 381 N.W.2d 263, 266 (S.D.1986). The aunt, and possibly the mother, were residents of the Pine Ridge Indian Reservation and members of the Oglala Sioux Tribe. “It is common ground here that Indian conduct occurring on the trust allotments is beyond the State’s jurisdiction .... ” DeCoteau v. Disk County Court, 420 U.S. 425, 428, 95 S.Ct. 1082, 1085, 43 L.Ed.2d 300, 305 (1975). The jurisdiction of the State law enforcement ends at this state’s borders. Its officers have no more authority to seek out Robert’s mother or aunt on the Pine Ridge Reservation than they do to seek out his father in Sacramento, California.

[¶ 41.] In cases like this one, not only would the police be required to find and notify parents, guardians or custodians, but prior thereto they would also be required to act as fact finding judicial entities to determine who is legally responsible for the child. The alternative would be to risk notifying the wrong individuals and thus render all statements by the juvenile involuntary.

The case at hand did not involve the traditional “Leave It To Beaver” family where mom, dad and the kids all ate supper together under the same roof each evening. In this case, the biological father was not living with his biological son. Importantly, the traditional “Cleaver” family is becoming less and less common in contemporary society.

Meldrwm v. Novotny, 2002 SD 15, ¶66, 640 N.W.2d 460, 473 (Amundson, J., concurring).

[¶ 42.] Robert argues that either parents or guardians (but not custodians) must be successfully notified or no interview with the juvenile is constitutionally acceptable. This Court’s decision today appears to conclude at one point that this bright line “either/or” rule is not correct, but nevertheless unconvincingly attempts to rescue Robert’s legal position by advancing a third option even he did not advance. With no foundation in the record, this Court declares that “the Pine Ridge Indian Reservation has a police force that can be contacted by telephone and could have been requested to locate defendant’s parents.” Even if this new thesis is correct, it does not translate into successful timely notification of either of the child’s parents or his aunt. Speculation that the Pine Ridge police might have been able to locate any of them is nothing more than that just speculation. The only other option raised by this Court (and again never raised by Robert) is that: “[n]o doubt, other means of attempting to contact them were available as well.” These “other means,” however, were never identified by the State, Robert, the trial court, or this Court. The trial court made no findings to factually support the nebulous theories that this Court now advances. Before setting aside this conviction on an evidentiary record such as this, we would be well advised to specify the exact nature of the realistic and reasonable legal options the officers supposedly had, but never exercised, particularly when these unex-ercised options mandate a reversal.

[¶ 43.] SDCL 26-7A-15 is a procedural statute providing only for parental notification that the child is in custody and that a dispositional hearing will be held. Contrary to this Court’s assertion, the statute does not give a child the right to confer with a parent, guardian or custodian before questioning. It does not give a child the right to be accompanied by a parent, guardian or custodian during questioning. It does not require a parent, guardian or custodian to give permission before the child is questioned. Indeed, the statute specifically states that “failure to notify the child’s parents ... is not cause for delay of the hearing.” SDCL 26-7A-5 (emphasis added). Therefore, it is illogical to import legislative intent to delay questioning absent notification. In doing so, this Court imposes a burden of impossible performance, holding that until parents, guardians or custodians are notified, even those that are unavailable, absent, or outside the jurisdiction of the State of South Dakota, almost any questioning of a juvenile would be illegal.

[¶ 44.] The more dysfunctional the family, the more likely that parental, guardian or custodian notification will advance from the difficult to the impossible. Lohnes, 324 N.W.2d at 418. The officers are faced with the difficult task of identifying these parties and then the even more difficult task of effectuating their timely notification. Id. Thus, under this Court’s ruling, the more likely it is that law enforcement will be helpless to solve crimes committed by juvenile members of dysfunctional families. I am not persuaded by this Court’s opinion that such was the intent of the Legislature when it enacted SDCL 26-7A-15.

Society must be protected from violent crime and the agony of its effects. It is of little or no comfort to a victim of violent crime and the victim’s family that the victim’s life was damaged or destroyed by a youth rather than an adult. Protection of society must be sought whether accomplished through rehabilitation or incarceration.

In re Y.C., 1998 SD 76 at ¶ 43, 581 N.W.2d at 490.

[¶ 45.] I would affirm this conviction and accordingly, I respectfully dissent.

      . It is also noteworthy that the officers learned that defendant had an ongoing relationship with his father.

      . See People v. Montanez, 273 Ill.App.3d 844, 210 Ill.Dec. 295, 652 N.E.2d 1271, 1275 (1995) (purpose of "notice” requirement in juvenile statutes requiring law enforcement officer who takes minor into custody to notify parent that minor has been taken into custody is "to allow, where possible," parent to confer and counsel with juvenile before interrogation and confession)(emphasis added).

      . One of the interrogating officers testified that from the very start, defendant was not going to be allowed to leave.
      Q. So is it fair to say that from the second that you started talking to Robert Horse in that interview room, that he was detained and he was not going to be free to walk out of there?
      A. That's correct, yes.
      Q. But he was not under arrest; he was just detained?
      A. That's correct, yes.
      Q. So he was in temporary law enforcement custody.
      A. I guess, yes.

      . No consultation occurred or was permitted between defendant and his brother about the brother’s consent or about defendant's decision to waive his rights and submit to interrogation.
      Q: And now prior to [the first] interview [with defendant], as I understand it, had you spoken to Jerry Horse?
      A: Prior to the interview with Robert? Yes. Q. Yes.
      A. Yes.
      Q. Okay, And had you interviewed him on tape?
      A. Jerry, yes.
      Q. Okay. Now, when you asked for information about the parents and things like that, is that when you were out in the entryway of the DCI office?
      A. I believe so, but I believe he was also asked during Jerry’s interview.
      Q. Okay. Did you interview Jerry, then, before you spoke to him out in the foyer of the DCI office?
      A. Did I—
      Q. Did you interview Jerry in a room, separate and apart and before from when you talked to him about talking to [defendant] out in the foyer of the DCI office?
      A. I don’t believe so.
      Q. Who interviewed Jerry Horse?
      A. Myself and Investigator Bramblee.
      Q. Was that before you interviewed [defendant]?
      A. That’s correct.
      Q. And was that before you spoke with Jerry about whether or not he would consent to [defendant] being interviewed?

        A. I believe — I am not positive, but I think we asked him during the interview; but we did ask him for sure — I know I asked him for sure between his interview and between [defendant’s] interview in the lobby.
      Q. Okay. Now, was it at the interview that was taped or the conversation out in the lobby where you learned that Robert's parents were down in Pine Ridge?
      A. You know, I don't know for sure. I just know it was stated.
      Q. When you spoke with Jerry Horse out in the foyer about speaking with Robert Horse, tell me what you said and tell me what Jerry Horse said, please.
      A. I believe I asked Jerry if it was okay if we talked with Robert about where he was, what’s been going on the last couple of days with him. And what I recall is Jerry specifically stated, "Go ahead. He will talk to you,” or "He will tell you what you want to know,” or something to that effect.

      . The dissent contends that trying to notify a parent or guardian under these circumstances “presents a practical nightmare for law enforcement.” In truth, we will never know what they might have accomplished because the officers here did nothing. They made no effort to contact defendant’s parents or his aunt, either directly or through tribal authorities.
      Q. Were you present when Jerry Horse had given permission for law enforcement to speak to Robert Horse?
      A. No, I was not.
      Q. And did you make any efforts or have any contact with anyone identifying themselves as Robert's parents that night?
      A. No, I did not.
      Q. And did you make any effort to contact anyone else besides Jerry Horse regarding Robert?
      A. No. He (i.e., Jerry) had told us that his parents didn't have a telephone; that we would not be able to contact them.

      . Once the officers obtained consent to interrogate from defendant's brother, the brother’s participation as a "guardian” was terminated:
      Q. Now, at any point, did you notify Jerry Horse that Robert was in temporary custody and he had a right to a prompt hearing by the Court to determine whether temporary custody should be continued?
      A. No.
      Q. Did you, at any point, inform Jerry Horse, that is, the guardian, that he had a right to sit with Robert Horse as he was being questioned?
      A. I don’t believe that I stated that to him, no.
      Q. Okay. In fact, during that first interview, Robert Horse asked to talk to his brother Jerry, whom you viewed as his guardian, didn't he?
      A. Yeah. Partway through, he did, yes, sir.
      Q. And you didn’t let him talk to his guardian when he asked, did you?
      A. I informed him that he could talk with his brother, and we took a break, and then we came back in and the conversation never did come back up.
      Q. Was there ever any point where you told him he could not talk to his brother?
      A. I believe just prior to that, I stated, "No, we’re not going to let you talk to him.” And then I came back in about two minutes later and said, "We'll let you talk to him,” and then it never came back up after that.
      Q. So, I mean, you don't deny the fact that you didn’t let him talk to Jerry when he first asked?
      A. At first, I stated, "No.” Correct.
      Q. Okay. Now, you’re trained, are you not, that before you can speak with a juvenile, you have to get parental consent?
      A. We try to make an effort to do that, yes.
      Q. Okay. Did you ever make any effort to get a hold of Robert’s parents?
      A. No, I did not.
      Q. Have you ever had an occasion to interview a juvenile with a parent present?
      A. Yes, I have.
      Q. Why would you let a parent remain present when you were interviewing a juvenile?
      A. If the parent insisted that they wanted to be present for the interview, otherwise, I was not going to be able to talk to the juvenile or whatever, then we would allow that. Normally, we do not like to have the parents in with the juvenile during the interview.
      Q. But it's your understanding that the parent or the guardian has a right to be present at the time of the interview, if they choose?
      A. Yes. As far as I’m aware of, yes.

      . SDCL 26-7A-15 provides:
      The officer or party who takes a child into temporary custody, with or without a court order, except under a court order issued during a noticed hearing after an action has been commenced, shall immediately, without unnecessary delay in keeping with the circumstances, inform the child’s parents, guardian, or custodian of the temporary custody and of the right to a prompt hearing by the court to determine whether temporary custody should be continued. If the child's parents, guardian, or custodian cannot be located after reasonable inquiry, the officer or party taking temporary custody of the child shall report that fact and the circumstances immediately to the state's attorney. The state's attorney shall notify the child’s parents, guardian, or custodian, without unnecessary delay, of the time, date, and place of the temporary custody hearing. The hearing shall be held within forty-eight hours if it concerns any apparent abused or neglected child or within twenty-four hours if it concerns any apparent delinquent child pursuant to § 26-8C-3 or any apparent child in need of supervision pursuant to § 26-8B-3, excluding Saturdays, Sundays, and court holidays, after taking the child into temporary custody, unless extended by order of the court. Failure to notify the child’s parents, guardian, or custodian of the temporary custody hearing is not cause for delay of the hearing if the child is represented by an attorney at the hearing, (emphasis added).

      . Today, this Court declares that "[a] crucial statutory safeguard to assure the due process rights of juveniles taken into custody is the requirement that the juvenile's parents guardian or custodian be 'immediately notified.' ” Beyond its misinterpretation of the explicit language of SDCL 26-7A-l 5, the only authority cited by the Court for this new due process constitutional mandate is an intermediate court of appeals case from Illinois, People v. Montanez, 273 Ill.App.3d 844, 210 Ill.Dec. 295, 652 N.E.2d 1271, 1272 (1995). Montanez, however, actually supports the thesis of this dissent, as it advances parental notification only “where possible.” Id.

      . The family history relayed by Robert in his psychiatric evaluation by Doctor Stephen Manlove indicated that Robert was raised primarily by his father until the age of twelve, when Robert moved from Sacramento, CA, to Porcupine, SD, and began living with his aunt. But Robert would only "occasionally see his mother on the street and at her workplace,” and there is no indication of whether his father is still in Sacramento or now lives here in South Dakota. Robert has a seventeen-year old sister living with another aunt in Montana and several half siblings, some living on their own and some living with his mother.

      . In State v. Lohnes, 324 N.W.2d 409 (S.D. 1982), a 16-year-old boy was convicted of second degree murder, burglary and grand theft when he shot and killed a motel owner with a high powered rifle at point blank range. When police attempted unsuccessfully to locate his parents, Lohnes’ mother was living "somewhere in Minnesota and his father had been killed in Viet Nam.” Id. at 418. See also In re S.K., 1999 SD 7, 587 N.W.2d 740 (involving 16-year-old convicted of first degree robbery and escape); In re Y.C., 1998 SD 76, 581 N.W.2d 483 (involving 16-year-old who committed first degree robbery of bank with loaded .357 magnum and declared, once released, he would get even with bank teller); State V. Jensen, 1998 SD 52, 579 N.W.2d 613 (involving 14-year-old convicted of first degree murder for executing an unarmed cab driver by shooting him in the head at point blank range); State v. Rios, 499 N.W.2d 906 (S.D.1993) (16-year-old convicted of second degree manslaughter and aggravated assault with a knife).

      . This Court dismisses the permission granted by Jerry Horse concluding that "he has a conflict of interest with the child or has no real parental relationship with the child.” Robert, himself, sees his relationship with his brother Jerry in a vastly different light. In his brief, Robert argues that law enforcement’s refusal to allow him to confer with his brother, rather than being meaningless, is so significant that it rises to a violation of the Fifth Amendment privilege against self-incrimination. Robert cannot have it both ways.

      . Claims of legality for previous forays into Indian country by state law enforcement have not been well received by the courts in this State. See U.S. v. Anderson, 857 F.Supp. 52 (D.S.D.1994) (holding state parole officers lack authority to conduct on-reservation war-rantless search of tribal member’s home); Annis v. Dewey County Bank, 335 F.Supp. 133 (D.S.D.1971) (holding service of process invalid on tribal members in Indian country); State v. Spotted Horse, 462 N.W.2d 463 (S.D.1990) (holding no hot pursuit of Indian into Indian country for crime committed in State jurisdiction); Lufkins, 381 N.W.2d 263 (holding no state authority for law enforcement to serve a subpoena on tribal members in Indian country).
      This Court's declaration that recognition of tribal sovereignty, which has been upheld in an unbroken line of cases dating back to Worcester v. Georgia, somehow denies Native American children equal protection under SDCL 26-7A-15, is without legal support. See 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832). To the contrary, the Supreme Court has specifically recognized that in state-tribal jurisdictional relationships, Native Americans may possess jurisdictional rights to access state courts while the corresponding right of the state to exert its jurisdiction in Indian country is denied. Three Affiliated Tribes v. Wold Eng'g, 476 U.S. 877, 893, 106 S.Ct. 2305, 2314, 90 L.Ed.2d 881, 895 (1986).

      . No claim is advanced that there existed a cross-deputization agreement between the State and this tribe. See generally 25 USC 2804(a).

      . Notwithstanding the conflict of this Court’s interpretation with the literal language of SDCL 26-7A-l 5, one might ask exactly how the appearance of Robert's parents or aunt would have affected the outcome of these interrogations. See Brookins v. State, 704 So.2d 576, 578 (Fla.Dist.Ct.App.1997) (holding 16-year-old murder suspect's statements admissible, despite failure to contact parents, as there was "nothing in the record to suggest that [mother’s] absence affected the voluntariness of the defendant’s statement.”). Robert had been fully Mirandized and advised that any statements he made could be used against him in adult court. See In re Watson, 47 Ohio St.3d 86, 548 N.E.2d 210 (1989) (stating no requirement in Miranda that parents be read child’s constitutional rights along with him to effectuate valid waiver). He repeatedly had to correct the police on their inaccurate summaries of what he had told them. Neither Robert nor this Court advance any convincing claim as to what might have been different had the parents been notified, let alone if they had actually appeared at the interrogation.

      .Although unintentional, this Court inadvertently identifies the result which it mandates in this case when it says, "[t]he record indicates that although defendant’s most recent residence was Jerry's home, he spent little time with Jerry and much with Chaske and Dawn.” As has been previously set forth, Robert’s father, mother and aunt were at unknown locations outside the jurisdiction of the State of South Dakota. The Court declares Jerry to be unacceptable for the purpose of custodian notification in compliance with SDCL 26-7A-l 5 because Robert had spent little time with Jerry. Presumably, this would leave law enforcement with the dubious alternative of notifying Chaske White, Robert’s gang leader and the instigator of Morning Star’s murder.