author: LANSING, Judge.

text:
    In the Matter of the WELFARE OF T.C.J.
    No. A04-202.
    Court of Appeals of Minnesota.
    Dec. 14, 2004.
    Petition for Review Dismissed Jan. 26, 2005.

      Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, MN, for appellant TCJ.
    Mike Hatch, Attorney General, St. Paul, MN and Amy Klobuehar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent State of Minnesota.
    Considered and decided by LANSING, Presiding Judge; TOUSSAINT, Chief Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

LANSING, Judge.

The district court denied certification of TCJ’s assault charges and, following designation as an extended-juvenile-jurisdiction (EJJ) prosecution, a jury found TCJ guilty of third-degree assault and not guilty of first-degree assault. On appeal from the third-degree assault conviction, TCJ challenges the jury composition, evidentiary rulings, jury instructions, sufficiency of the evidence, and that part of his disposition that stays an adult sentence. We affirm the district court’s rulings and instructions that underlie TCJ’s adjudication but, to comport with constitutional requirements, modify the disposition to vacate the stayed adult sentence.

FACTS

TCJ’s assault charges stem from a confrontation between him and a teacher near Park Center High School. TCJ, a seventeen-year-old former student, visited the school with a friend, JH, who was seeking enrollment materials. When TCJ and JH entered the school through a side entrance to the gymnasium, a member of the faculty recognized TCJ and knew that he was not currently a student. The teacher ordered them to leave the school grounds.

The teacher saw TCJ and JH on the school grounds several times that day and each time told them to leave. TCJ and JH failed to comply, and after a final response that the teacher characterized as insubordinate and disrespectful, they suddenly fled through a set of doors, which the teacher stated was off limits to students. The teacher, suspecting wrongdoing, pursued them.

When he caught up with them, they were off school property, and the teacher told them that they must return to the school to deal with the problem “[t]he easy way or the hard way.” He then grabbed JH by the shirt. TCJ testified at trial that the teacher mistook JH for a student at the school and repeatedly referred to JH by the wrong name. JH spun from the teacher’s grip and out of the shirt, then snatched it away from the teacher, who testified that he was struck across the face with the garment and pushed against a nearby car.

The teacher testified that JH began to choke him, and the teacher, who taught self-defense at the high school, countered by grabbing JH’s hands. TCJ testified that the teacher grabbed JH by the throat. According to the teacher, TCJ punched him on the left side of his head, and when he moved to resist, JH began to hit him on the other side of his head. TCJ admitted to hitting the teacher in the face to get him to let go, but he claimed that another student who joined the fray also punched the teacher. The teacher sustained multiple jaw fractures, bruises, and abrasions, and lost several teeth. He testified that, despite his knowledge of self-defense techniques, he did not retaliate. TCJ testified that, despite JH’s being choked, neither he nor JH sustained injuries from the altercation. Several other witnesses corroborated aspects of the testimony of each of the principal participants.

TCJ’s age and the gravity of the first-degree-assault charge resulted in a presumptive certification to the district court. The district court determined that TCJ had presented evidence that overcame the presumption and designated the proceeding an EJJ prosecution. The jury acquitted TCJ of first-degree assault but found him guilty of third-degree assault. TCJ appeals both the conviction and the sentence.

ISSUES

I. Did the district court err in allocating or permitting peremptory challenges in the composition of the jury?

II. Did the district court abuse its discretion and deny TCJ a fair trial by excluding evidence of state policies and school policies and records?

III. Did the jury instructions violate TCJ’s right to due process and a fair trial?

IV. Is the evidence sufficient to support TCJ’s conviction for third-degree assault?

V. Did the district court err by sentencing TCJ to a stayed adult sentence?

ANALYSIS

I

TCJ presents two arguments on the composition of the jury. First, he asserts that the district court abused its discretion by improperly dividing the peremptory challenges to the venire between TCJ and his co-defendant. Second, he asserts that the district court erred in allowing the state to use a peremptory challenge to strike the only African-American member of the venire.

A defendant’s right to peremptory challenges is necessary to ensure the impartiality of the trial process, and denial of that right is reversible error regardless of whether the denial was prejudicial. State v. Reiners, 644 N.W.2d 118, 126 (Minn.App.2002) (citing Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892)), affd. 664 N.W.2d 826 (Minn.2003). We review de novo the district court’s interpretation of the criminal rules of procedure. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

A criminal defendant in Minnesota is entitled to five peremptory challenges when selecting the trial jury for an offense not punishable by life imprisonment. Minn. R.Crim. P. 26.02, subd. 6. But “[i]f there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly, and in that event the states peremptory challenges shall be correspondingly increased.” Id. The district court offered TCJ and his codefendant the choice of three peremptory challenges each or five to be exercised jointly.

TCJ argues that the courts ruling denied him due process and contends that each defendant should have been granted five challenges. TCJ’s position is inconsistent with precedent stating that “peremptory challenges belong to a ‘side,’ not an individual.” State v. Greenleaf, 591 N.W.2d 488, 501 n. 6 (Minn.1999). And the rules of statutory construction require that courts “give a reasonable and sensible construction to criminal statutes.” State v. Murphy, 545 N.W.2d 909, 916 (1996). Under TCJ’s interpretation, a “side” would be entitled to more peremptory challenges in a joint trial than in an individual trial. While the district court may have had discretion to grant the requested challenges, we find no reasonable basis for an interpretation of the rules that required it to do so. Therefore, we reject TCJ’s claim that the court’s failure to grant him five challenges was an abuse of discretion.

TCJ’s argument on the state’s use of its peremptory challenge to strike the only African-American venireperson raises an issue on a Batson ruling, which we review for clear error. State v. McDonough, 631 N.W.2d 373, 385 (Minn.2001) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). Whether racial discrimination in the exercise of a peremptory challenge has been shown is “an essentially factual determination” dependent largely on evaluations of credibility. State v. James, 520 N.W.2d 399, 403 (Minn.1994) (quotation omitted). The district court determines whether a peremptory strike is improper by conducting a three-step process in which: (1) the defendant must make a prima facie case that the prosecution’s challenge was racially motivated; (2) if the prima facie case is made, the prosecution bears the burden of articulating a race-neutral explanation for the strike; and (3) the district court determines whether the defendant has proved purposeful discrimination by the prosecution. Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24.

The district court found that TCJ and his codefendant had presented a prima facie case of racial motivation. After extensively questioning counsel, the district court concluded that several of the reasons proffered by the state — including the claim by the potential juror that he could not be objective toward police testimony and that police “picked on good kids” and “let the bad ones do what they will” — were race neutral, not pretextual. The district court properly analyzed the state’s peremptory challenge using the steps outlined in Bat-son and found no discrimination, and we discern no clear error.

II

TCJ’s evidentiary challenges relate to the district court’s refusal to allow evidence of state and school policies on the use of force by a teacher and a disciplinary report on the student with whom the teacher had allegedly confused JH. Rulings on evidence are committed to the district court’s sound judgment and will not be reversed on appeal absent an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). The appellant has the burden of establishing that the district court abused its discretion and thereby prejudiced the outcome of the case. Id. TCJ contends that the exclusion of this evidence by the district court prevented him from presenting his theory of self-defense because the teacher was acting beyond the scope of his authority and was the first aggressor in the assault. The court, after a comprehensive discussion on the record, determined that the evidence on policy and school records was not relevant.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Minn. R. Evid. 401. TCJ’s attorney argued that the previous disciplinary report was relevant to show “a pertinent trait of character” of the teacher. This trait, according to the attorney’s argument, would trigger a heightened sense of irritation with an individual who was brazenly disobeying him after a previous incident. The court rejected this theory, stating that TCJ had not yet shown “that the [teacher] believed that he was chasing” the previously disciplined student, and the report indicated “no use of force or inappropriate behavior” by the teacher in the previous incident.

Lack of relevance was also the district court’s basis for excluding evidence of state and school policies on the use of force. The court identified the essential issue as the actions occurring at the point of conflict and whether those actions were in self-defense. TCJ’s attorney renewed the attempt to introduce this evidence in response to the state’s attempt to prove that the teacher had acted within his authority. The district court again rejected the evidence, stating that the school policies did not specifically permit or prohibit any of the teacher’s conduct that was in evidence.

School policies may have had some relevance to an assessment of the teacher’s motive in pursuing TCJ and JH and his attempt to bring them back to the school. But the district court extensively considered on the record whether that assessment was of consequence to the charged offenses and concluded that it was not. Evidence that is “marginally relevant or poses an undue risk of ... confusion of the issues” may be excluded in the court’s discretion. State v. Quick, 659 N.W.2d 701, 713 (Minn.2003) (quoting Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986)). The record indicates that the district court properly and thoroughly considered the relevance and utility of the evidence in question, and we find no abuse of discretion.

Ill

District courts are allowed “considerable latitude” in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). Instructions must be reviewed in their entirety to determine whether the district court fairly and adequately explained the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). The focus of the analysis on appeal is whether the refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn.2001). Failure to request specific jury instructions or to object to the instructions ordinarily waives the right to appeal unless the instructions contain plain error affecting substantial rights. State v. Cross, 577 N.W.2d 721, 726 (Minn.1998).

TCJ asserts multiple errors in the district court’s instructions to the jury: that the court’s instruction on aiding and abetting the assault amounted to an amendment of the complaint against which he was unable to defend; that the district court failed to instruct the jury on his theory that the intervening student caused the great or substantial bodily harm of which TCJ was accused; that he was entitled to a specific instruction on defense of another; that he was entitled to an instruction on the lesser included offense of fifth-degree assault; that he was entitled to a jury instruction on the theory that the teacher was acting beyond his authority; and that he was entitled to a “reasonableness” instruction tailored to his age and level of maturity.

We have reviewed these arguments under the applicable standards and can discern no error. The district court diligently managed the solicitation and provision of jury instructions, and the charge as a whole conveyed a clear and correct understanding of the law of the case. See Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986) (specifying that charge taken in its entirety should correctly state the law and not assume existence of facts in controversy). The district court did not abuse its discretion in its instructions to the jury.

IV

In determining whether the evidence is sufficient to support a conviction, we conduct a careful review of the record to ascertain whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow a jury to reach the verdict being appealed. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We must assume that the jury believed the prosecution’s witnesses and rejected contrary evidence, particularly when resolution of the issues depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980).

TCJ asserts that the verdict is not factually supported because the evidence did not show that his blows caused the teacher’s broken jaw and it was instead more likely that the student who intervened caused the injury. He further asserts that the record does not support the conclusion that he acted in concert with the intervening student. Yet TCJ testified that he struck the teacher multiple times, and that he fled together with JH and the intervening student, whom he characterized as a friend. Several witnesses corroborated the state’s account, testifying that two or three assailants attacked the teacher. Furthermore, TCJ testified that the intervening student hit the teacher twice on the left side of the face only, but the teacher suffered fractures on both sides of his jaw. Clearly, the record supports an inference that TCJ’s use of force against the teacher caused substantial bodily harm.

TCJ also argues that his claim that he was protecting his friend is “a complete defense” to the charge. This argument relies largely on his statement that “[t]here is no question from the testimony that [the teacher] was the first aggressor” and that the teacher first assaulted JH. This argument miseharacterizes the record because the testimony of the teacher did not include an admission that he assaulted TCJ. The facts indisputably show that the teacher initiated contact with JH, but a number of witnesses testified that the teacher did not fight back.

Because of the abundance of factual support in the record for the jury’s verdict, we reject TCJ’s claim that the evidence is insufficient as a matter of law to support a verdict of guilty beyond a reasonable doubt.

y

Finally, TCJ challenges the district court’s decision to sentence him under the extended-juvenile-jurisdiction procedure in Minn.Stat. § 260B.130, subd. 4(a) (2002), which requires the imposition of a stayed adult criminal sentence in addition to a juvenile disposition under Minn.Stat. § 260B.198 (2002). TCJ maintains that he should have been sentenced only to a juvenile disposition as provided by section 260B.130, subdivision 4(b). But that provision is limited to “a child prosecuted as an extended jurisdiction juvenile after designation by the prosecutor ” who is convicted of an offense that would not, on its own, have justified an EJJ prosecution. (Emphasis added.) As the state indicated in its brief, TCJ’s assault proceedings were designated as extended jurisdiction juvenile by the juvenile court after the prosecution unsuccessfully sought his certification to district court as an adult under Minn.Stat. § 260B.125 (2002). TCJ argues that the district court’s application of the EJJ statute violated his right to equal protection under the law. While TCJ did not fully articulate this constitutional challenge at trial, we may consider issues not addressed by the district court when the interests of justice so require. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989).

We begin by reviewing the procedural aspects of this case that led to the prosecution of TCJ under the EJJ statute. In its delinquency petition, the state charged TCJ with two counts of assault: third-degree assault in violation of Minn.Stat. § 609.223, subd. 1 (2002), and first-degree assault in violation of Minn.Stat. § 609.221, subd. 1 (2002). Because the first-degree-assault charge satisfied the presumptive-certification requirement of the adult certification statute, Minn.Stat. § 260B.125, subd. 3(2), as “an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes,” the state moved for district court “certification” to try TCJ as an adult. Following an order establishing probable cause for the presumptive offense and subsequent extensive briefing and a hearing, the juvenile court found that TCJ had overcome the presumption of adult certification and granted TCJ’s motion that the proceeding “be designated an extended juvenile jurisdiction case.” See also Minn. R. Juv. Delinq. P. 18.06, subd. 5 (“If the juvenile court does not order certification in a presumptive certification case, the court shall designate the proceeding an extended jurisdiction juvenile prosecution.”); Minn.Stat. § 260B.125, subd. 8 (stating same).

TCJ’s case proceeded under Minn.Stat. § 260B.130, which governs EJJ prosecutions. A decision to prosecute a juvenile in the district court under the laws and procedures controlling adult criminal violations is termed a “certification”; the equivalent process under the EJJ statute is termed “designation.” Minn.Stat. § 260B.130, subd. 1. Although TCJ’s case defaulted to EJJ upon the district court’s designation, the EJJ process can also be instigated by the prosecutor under the same standard as the adult certification process if “the child is alleged to have committed an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison.” Id., subd. 1(2). Unlike the adult certification statute, under which the prosecution proceeds “as if the jurisdiction of the juvenile court had never attached,” Minn.Stat. § 260B.125, subd. 7, the EJJ statute contains a provision to distinguish between those offenses that justify the extended jurisdiction and other offenses with which the defendant may have been charged.

Subdivision 4 of the EJJ statute governs the disposition of offenses. Subpart (a) of the subdivision requires the court to impose a bifurcated sentence following a guilty plea or finding of guilt: first, the child is given a juvenile disposition under Minn.Stat. § 260B.198; and second, the child receives “an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense.” Minn.Stat. § 260B.130, subd. 4(a). But subpart (b) qualifies the second part of the bifurcated process: if the child is convicted as an EJJ of an offense for which the sentencing guidelines and applicable statutes do not presume a commitment to prison, then the court shall order only the juvenile disposition.

The provision is sensible and fair because it recognizes that the absence of guilt for the offense that increased the degree of seriousness in the child’s prosecution should correspondingly permit the punishment for the nontriggering offenses to revert to the juvenile system. That result would apply to all EJJ prosecutions but for the phrase “after designation by the prosecutor in the delinquency petition” in subpart (b). We read this language to require a disparately more severe sentence for every EJJ conviction that results from the juvenile court’s rejection of adult certification. In other words, under a literal reading of the EJJ statute, if TCJ’s trial and conviction had followed a decision by the state to forego the adult-certification process and a successful motion to designate his offense as an EJJ proceeding, he would only be subject to a juvenile disposition for the third-degree assault conviction. But because the state chose a more stringent approach of seeking adult certification — a decision entirely within the state’s discretion and a choice which the court rejected — -the statute mandates a stayed adult sentence for the third-degree assault after the very same trial We find this result inconsistent with the protections afforded TCJ under the United States and Minnesota Constitutions.

The Equal Protection Clause of the Fourteenth Amendment provides, in relevant part, “No [s]tate shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Article I, Section 2, of the Minnesota Constitution provides, “[n]o member of this [s]tate shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” While all similarly situated persons shall be treated alike, “only invidious discrimination is deemed constitutionally offensive.” Scott v. Minneapolis Police Relief Ass’n, 615 N.W.2d 66, 74 (Minn.2000) (quotation omitted).

Minnesota law presumes that all statutes are constitutional and should be declared unconstitutional only if it is established beyond a reasonable doubt that they violate a constitutional provision. Id. at 73. Unless a constitutional challenge to the statute involves a suspect classification or a fundamental right, we review the challenge using a rational-basis standard under both the state and federal constitutions, and the statute will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Id. at 74. TCJ argues summarily that the imposition of a stayed adult sentence has deprived him of his liberty, a fundamental right, but he provides no legal support for this argument. We are not convinced that a fundamental right to liberty is affected when a stayed sentence is imposed concurrently with a juvenile sentence that already requires TCJ’s commitment to a juvenile facility, and we thus examine the statute under the rational-basis standard. Cf. Taylor v. Lieffort, 568 N.W.2d 456, 458 (Minn.App.1997) (stating that alteration of a discretionary release date does not constitute impairment of a protected liberty interest).

We are guided in this equal-protection analysis by the Minnesota Supreme Court’s recent holding that the classification imposed by another subdivision of the EJJ statute could not withstand a rational-basis test. In State v. Garcia, 683 N.W.2d 294 (Minn.2004), the court applied the following test:

(1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.

Id. at 299 (quoting State v. Russell, 477 N.W.2d 886, 888 (Minn.1991)). TCJ argues that separate sentencing of “identically situated juveniles” is a manifestly arbitrary distinction which this court must find unconstitutional.

We agree. We perceive no rational basis linking this classification to the underlying purpose of the statute, which provides the juvenile courts with a means to retain jurisdiction to try juveniles for adult crimes and thus serve public safety. See Minn.Stat. § 260B.130, subd. 2 (requiring a showing of “clear and convincing evidence that designating the proceeding an extended jurisdiction juvenile prosecution serves public safety”). There is no evident connection between: (1) juveniles who were originally subjected to the adult certification process but who are not convicted of the presumptive offense, and (2) a sentencing provision that subjects them to harsher punishment than others not convicted of a presumptive offense simply because the first group arrived in an EJJ court through the adult-certification route. We are convinced that, as written, the statute inevitably overweights the prosecutor’s discretion as an influence on the juvenile’s sentence. This result, while clearly in violation of a juvenile’s right to equal protection under the law, appears to have due process implications as well. If prose-cutorial empowerment was the legislature’s purpose in drafting subdivision 4 of the EJJ statute, it is not a purpose which “the state can legitimately attempt to achieve.” Therefore, we hold that Minn. Stat. § 260B.130, subd. 4(b) is unconstitutional, and we vacate that part of TCJ’s disposition that stays an adult sentence.

DECISION

We affirm the district court’s judgment on the challenges to TCJ’s conviction of third-degree assault. But we hold that the imposition of a stayed adult sentence on a juvenile defendant violates his right to equal protection, and we modify the disposition to vacate the stayed adult sentence.

Affirmed as modified.


source: Caselaw Access Project

author: CRIPPEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. LaRon BROWN, Appellant.
    No. A04-60.
    Court of Appeals of Minnesota.
    Dec. 21, 2004.

      Bradford Colbert, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; SCHUMACHER, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

CRIPPEN, Judge.

Appellant LaRon Brown challenges his conviction of possession of a theft tool, contending that classifying the offense as a felony violates his right to the equal protection of the laws. Appellant also asserts that his conviction is not supported by sufficient evidence and that aggravating factors affecting his sentence were not tried before a jury in accordance with the Sixth Amendment. We affirm the conviction but reverse and remand for resentenc-ing.

FACTS

Appellant was charged with possession of burglary or theft tools, in violation of Minn.Stat. § 609.59 (2002). The state alleged that appellant used a cutting tool to remove a jacket from a department store rack and attempted to take the jacket from the premises. Following a jury verdict that convicted appellant of this charge, the district court determined that appellant was a pattern offender under Minn.Stat. § 609.1095, subd. 4 (2002). As a result, the district court imposed 36 months’ imprisonment, an upward durational departure from the guidelines presumptive sentence and the statutory maximum for the offense.

ISSUES

I. Does an equal protection violation exist under the United States and Minnesota Constitutions where possession of a theft tool is classified as a felony offense but the underlying theft is classified as a gross misdemeanor?

II. Was there sufficient evidence to establish a conviction of possession of a theft tool?

III. Is there a violation of the right to a jury trial under the Sixth Amendment when, in applying the career offender sentencing statute, the fact of a pattern of criminal conduct is not tried to a jury?

ANALYSIS

I.

Appellant challenges the constitutionality of Minn.Stat. § 609.59 (2002), which criminalizes possession of a burglary or theft tool. He asserts that, because this offense is classified as a felony, while the underlying theft is classified as a gross misdemeanor, his conviction violates the equal protection provisions of the United States and Minnesota Constitutions. Appellant’s alleged theft of a coat valued at $399 would constitute a gross misdemean- or under Minn.Stat. § 609.52, subd. 3(4) (2002). Appellant contends that the statutory scheme wrongfully empowered the prosecution to magnify his theft by charging him with the possession of a theft tool.

We must presume on review that statutes are constitutional, and we are to declare a statute unconstitutional only with extreme caution and where absolutely necessary. State v. Tennin, 674 N.W.2d 403, 407 (Minn.2004). If a criminal defendant claims that a statute is unconstitutional, that defendant has the burden to establish unconstitutionality beyond a reasonable doubt. State v. Benniefield, 678 N.W.2d 42, 45 (Minn.2004). The constitutionality of a statute is a legal question, which we review de novo. State v. Henning, 666 N.W.2d 379, 382 (Minn.2003).

Where an equal protection claim challenges a statutory classification, but the classification does not involve a suspect class, such as race or sex, our equal protection analysis is limited to whether the classification has a rational basis. Benniefield, 678 N.W.2d at 46. Here, it is undisputed that no suspect classification is at stake and that rational basis analysis applies. See id. at 46-47 (classification based on location of offense); State v. Gresser, 657 N.W.2d 875, 880-81 (Minn.App.2003) (classification based on type of watercraft).

For equal protection analysis under the United States Constitution, the rational basis standard is met if the classification has a legitimate governmental purpose and will reasonably promote that purpose. Bd. of Trustees v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 964, 148 L.Ed.2d 866 (2001). No particular purpose need be articulated if a reasonable hypothetical purpose may be inferred. Id.

Public safety is a legitimate purpose to be promoted through legislation. See Vacco v. Quill, 521 U.S. 793, 808-09, 117 S.Ct. 2293, 2302, 138 L.Ed.2d 834 (1997) (noting preserving life and protecting vulnerable people are valid public interests); State v. Mitchell, 577 N.W.2d 481, 492 (Minn.1998) (noting public safety is legitimate legislative interest). Because the possession of theft tools poses a risk of ongoing criminal activity, whereas a single theft poses no commensurate risk, it is reasonable in promoting public safety to impose a greater penalty for possession of a theft tool — and no less so when the tool is commonly carried and used lawfully. This classification has a rational basis in accordance with the guarantees of equal protection under the United States Constitution. Cf. State v. Brown, 97 Hawai'i 323, 37 P.3d 572, 583 (App.2001) (reasoning purpose of burglary tool statute is to deter theft by enabling law enforcement to act early); see generally Annotation, Validity, Construction, and Application of Statutes Relating to Burglars’ Tools, 33 A.L.R.3d 798, 812 (1970 & Supp.2004) (discussing cases upholding similar statutes against due process challenges).

We reach a consistent result under the more intensive rational basis analysis required by the Minnesota Constitution, which requires an actual and identifiable connection between the statutory classification and the purpose to be achieved. See State v. Russell, 477 N.W.2d 886, 889 (Minn.1991). We reject the notion that the risk of ongoing criminal activity from the use of theft tools is merely hypothetical or insubstantial. Based on a reasonable determination that a more severe penalty for possession of theft tools will reduce theft by reducing the ongoing occasion to engage in theft for those carrying the tools to accomplish it, this classification also meets the requirements of equal protection under the Minnesota Constitution. See Benniefield, 678 N.W.2d at 47 (upholding classification, based on greater safety risk to children, which increased sentences for drug offenses in school zones); cf. Russell, 477 N.W.2d at 890-91 (striking down disparate sentencing scheme for crack and powder cocaine where no actual difference warranted this distinction).

II.

Appellant next claims there was insufficient evidence to support his conviction for possession of a theft tool. He points to the fact that the state did not recover a tool or introduce one as evidence at trial. On review for sufficiency of the evidence, we are to consider whether the evidence and reasonable inferences from that evidence will support the jury’s determination of guilt. Bernhardt v. State, 684 N.W.2d 465, 476 (Minn.2004). We also must assume that the jury believed the state’s witnesses and disregarded any contrary evidence. State v. Taylor, 650 N.W.2d 190, 206 (Minn.2002). We must affirm if the jury, acting with due regard for the presumption of innocence, could reasonably conclude that the defendant was guilty beyond a reasonable doubt. Bernhardt, 684 N.W.2d at 476-77.

The offense for possession of a theft tool, Minn.Stat. § 609.59, provides that a person who “possesses] any device ... with intent to use ... the same to commit burglary or theft may be sentenced to imprisonment....” The state’s primary witness was a store detective who observed appellant by closed-circuit camera. The detective testified that appellant appeared to use a tool, cutting a cable that secured a jacket to a clothing rack, and attempted to remove the jacket from the premises. The severed cable was recovered, but the tool was not. When we consider this evidence in the light most favorable to the verdict, the jury could reasonably conclude beyond a reasonable doubt that appellant used a tool to execute the theft of the jacket. Therefore, we hold that there is sufficient evidence to support appellant’s conviction.

Relying on videotape footage admitted as evidence at trial, appellant argues that it is “impossible” to determine whether a tool was in fact used. But the jury’s determination was not limited to this footage alone; the jury could also make reasonable inferences based on the severed cable and the store detective’s testimony. See Bernhardt, 684 N.W.2d at 476. We are precluded from deciding such factual inconsistencies on a review for sufficiency of the evidence and will not do so here. See State v. Wilson, 535 N.W.2d 597, 605 (Minn.1995) (noting appellate court will not retry facts).

III.

Appellant last contends that, in accordance with the right to a jury trial under the Sixth Amendment, it was unconstitutional for a judge to decide whether appellant exhibited a pattern of criminal conduct under the career offender sentencing statute, Minn.Stat. § 609.1095, subd. 4 (2002). Because this issue presents a question of constitutional law, we review de novo. Henning, 666 N.W.2d at 382.

In Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the United States Supreme Court concluded that where aggravating, factors are used to justify an upward durational departure from a statutory guideline sentence, the Sixth Amendment mandates that those factors be tried before a jury. Id. at 2535, 2537. In State v. Mitchell, we concluded that Minnesota’s career offender sentencing statute, Minn.Stat. § 609.1095, subd. 4, is within the ambit of Blakely. 687 N.W.2d 393, 400 (Minn.App.2004). Although the existence of prior convictions falls under an exception to the Blakely requirement of jury findings, an upward departure under the statute requires an admission or a jury verdict on the added finding that the convictions formed a pattern of criminal conduct. Id. at 399-400.

Because the district court determined that appellant’s prior convictions formed a pattern of criminal conduct, we reverse appellant’s sentence and remand for further proceedings.

DECISION

Because there is a rational basis to classify possession of a theft tool as a felony and the underlying theft as' a gross misdemeanor, we uphold the constitutionality of the possession offense under the equal protection clauses of the United States and Minnesota Constitutions. Appellant’s conviction is also supported by sufficient evidence. But because appellant’s right to a jury trial precludes the district court’s upward durational departure under the career - offendér sentencing statute, we reverse the sentence and remand for resen-tencing.

Affirmed in part, reversed in part, and remanded.

      . We are also mindful, suggesting further irony in the priority given to the possession charge, that the theft tool employed by appellant evidently was a common pocket device with many lawful uses, having criminal significance only when employed for a criminal act.

        . We reject appellant’s assertion that, on remand for resentencing, the district court is required to impose a guideline sentence. Cf. State v. Conger, 687 N.W.2d 639, 645 (Minn.App.2004) (remanding with direction that any upward departure be supported by factual determination of aggravating factors).


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 212
    Marian SUTHERLAND, Appellant v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES and McKenzie County Social Services Board, Appellees.
    No. 20040165.
    Supreme Court of North Dakota.
    Nov. 19, 2004.
    Andrea H. Smith (argued), Legal Services of North Dakota, Minot, N.D., and James Patrick Fitzsimmons (appeared), Legal Services of North Dakota, New Town, N.D., for appellant.
    Jean R. Mullen (argued), Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Marian Sutherland appealed from a judgment affirming a Department of Human Services’ decision that she was not disabled for purposes of receiving Medicaid benefits. We hold the Department’s disability determination must follow the Social Security Administration’s five-step process for evaluating disability. We reverse and remand for proceedings consistent with this opinion.

I

[¶ 2] In June 2002, after the Social Security Administration determined she did not meet the income and resource test for Supplemental Security Income and she did not have enough work credits to qualify for Social Security Disability Insurance, Sutherland applied to McKenzie County Social Services for Medicaid benefits, asserting she was disabled. An eligibility report prepared by a McKenzie County Social Services’ worker identified Sutherland as a fifty-one-year-old female with degenerative arthritis, which limits her walking and sitting for long periods of time and described Sutherland as “very jaudence [sic] due to gallbladder, ... uses crutch because feet a[re] deformed & swollen. Sat uneasily during interview due to pain.” The eligibility report indicated that Sutherland described her complaints as “constant pain, deformed arthritic feet & back.” According to Sutherland, she suffers from a combination of medical impairments, including “degenerative joint disease (with destruction of metatarsal bones in both feet), severe destruction of knee joints, severe osteoarthritis of the right knee, degenerative disc disease, lumbosacral arthritis, peripheral neuropathy (sensory and motor), bilateral foot deformities, macrocytic anemia, spondyloarthropathy, a positive rheumatoid factor and chronic pain.”

[¶ 3] Because the Social Security Administration was not required to make a disability determination in denying Sutherland’s request for Supplemental Security Income or Social Security Disability Insurance, a State Review Team reviewed her claim to determine if she was disabled for purposes of eligibility for Medicaid benefits. See N.D. Admin. Code § 75-02-02.1-14(1). The State Review Team’s report concluded Sutherland’s medical information did not support her request for disability benefits. Relying on the State Review Team’s report, McKenzie County Social Services concluded Sutherland did not meet “Social Security disability criteria,” and denied her application for Medicaid benefits “based on 42 C.F.R. 435.541 and NDAC 75-02.02.1-14.”

[¶ 4] Sutherland appealed to the Department, and after an administrative hearing, an administrative law judge recommended that Sutherland be found disabled for purposes of eligibility for Medicaid benefits. The administrative law judge said “[t]he medical evidence establishes that Ms. Sutherland suffers from severe impairments, degenerative osteoarthritis and peripheral neuropathy, and chronic pain which ranges from moderate to severe and limits her daily activities of living. Considering the applicable rules and federal regulations, Ms. Sutherland has shown, by a preponderance of the evidence presented at the hearing, that she is disabled for purposes of eligibility to receive Medicaid benefits.”

[¶ 5] The Department rejected the administrative law judge’s recommendation, stating “there is no requirement that the Department follow the procedures that the SSA is bound to follow in making disability determinations under the Medicaid provision at 42 C.F.R. § 435.541.” The Department concluded Sutherland failed to prove she was disabled

such that she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Sutherland failed to prove that she has a severe impairment, which makes her unable to do her previous work, or any other substantial gainful activity which exists in the national economy. To the contrary, the evidence provided to the Department by two specialists who examined Sutherland indicates that she is capable of engaging in light to sedentary work.

The Department affirmed the McKenzie County Social Services’ decision denying Sutherland Medicaid benefits, and the district court affirmed the Department’s decision.

II

[¶ 6] Although a district court’s analysis of an appeal from a decision by an administrative agency is entitled to respect if the court’s reasoning is sound, when an administrative agency’s decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency rather than the district court’s decision and findings. Gross v. North Dakota Dep’t of Human Servs., 2004 ND 24, ¶ 6, 673 N.W.2d 910. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency’s decision if its findings of fact sufficiently address the evidence and are supported by a preponderance of the evidence, its conclusions of law and order are supported by its findings of fact, its decision is supported by its conclusions of law, its decision is in accordance with the law and does not violate the claimant’s constitutional rights, its rules or procedures have not deprived the claimant of a fair hearing, its conclusions of law and order sufficiently explain its rationale for not adopting a contrary recommendation by an administrative law judge, and the provisions of N.D.C.C. ch. 28-32 have been complied with in proceedings before the agency. In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency. Gh~oss, at ¶ 6. Rather, we determine only whether a reasoning mind reasonably could have determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Id. An agency’s decision on a question of law is fully reviewable by this Court. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 4, 574 N.W.2d 859.

Ill

[¶ 7] Sutherland argues the Department must follow the Social Security Administration’s procedures for determining disability. She argues North Dakota law requires the Department to use the Social Security Administration’s definition of “disability,” which she claims can only be realized by following the five-step procedure the Social Security Administration has established to determine if an individual meets the definition of disabled. She argues if her medical records had been evaluated under the appropriate federal regulations, those regulations would have required the Department to find her disabled. The Department concedes it stated it did not have to follow the five-step process for evaluating disability under the Social Security Administration rules, but the Department claims its review nevertheless complied with those requirements and it did collect the type of information and evaluate the information as required under the Social Security Administration rules. The Department argues, because it found Sutherland’s impairments were not severe, it was not required to further evaluate Sutherland’s eligibility for benefits.

[¶ 8] North Dakota participates in, and has designated the Department to implement, the Medicaid program, which is a cooperative federal-state program designed to provide medical care to needy persons. Opp v. Ward County Soc. Servs. Board, 2002 ND 45, ¶ 9, 640 N.W.2d 704. Under N.D.C.C. § 50-24.1-04, the Department has adopted rules for determining Medicaid eligibility. See N.D. Admin. Code ch. 75-02-02.1. Under N.D. Admin. Code § 75-02-02.1-01(9), “ ‘[disabled’ has the same meaning as the term has when used by the social security administration in determining disability for title II [Federal Old Age, Survivors, and Disability Insurance Benefits] or XVI [Supplemental Security Income] of the Act.”

[¶ 9] Both Title II and Title XVI of the Social Security Act define “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.S. § 423(d)(1)(A). See also 42 U.S.C.S. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). The Social Security Act further provides that individuals shall be determined to be under a disability only if their physical or mental impairment or impairments are of such severity that they are not only unable to do their previous work but cannot, considering their age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which they live, or whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. See 42 U.S.C.S. § 423(d)(2)(A); 42 U.S.C.S. § 1382c(a)(3)(B).

[¶ 10] Federal regulations implement a five-step sequential process for evaluating a claim for disability benefits. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In Bowen, at 140-42, 107 S.Ct. 2287, the United States Supreme Court explained the five-step process:

Step one determines whether the claimant is engaged in “substantial gainful activity.” If he is, disability benefits are denied. [20 C.F.R.] §§ 404.1520(b), 416.920(b). If he is not, the decision-maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. That determination is governed by the “severity regulation” at issue in this case. The severity regulation provides:
“If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.” §§ 404.1520(c), 416.920(c).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” §§ 404.1521(b), 416.921(b). Such abilities and aptitudes include “[p]hysieal functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; “Capacities for seeing, hearing, and speaking”; “[understanding, carrying out, and remembering simple instructions”; “[u]se of judgment”; “[Responding appropriately to supervision, co-workers, and usual work situations”; and “[d]ealing with changes in a routine work setting.” Ibid.
If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity. §§ 404.1520(d), 416.920(d); 20 CFR pt. 404, subpt. P, App. 1 (1986). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. §§ 404.1520(e), 416.920(e). If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work. §§ 404.1520(f), 416.920(f).

[¶ 11] Under 42 C.F.R. § 435.541(d)(2), a state Medicaid agency “must make a determination of disability ... [i]n accordance with the requirements for evaluating that evidence under the SSI program specified in 20 CFR 416.901 through 416.998.” The regulations specified in 42 C.F.R. § 435.541(d)(2) include 20 C.F.R. § 416.920, which implements the five-step sequential process for evaluating disability, and our law incorporates the federal definition for disability. N.D. Admin. Code § 75-02-02.1-01(9). The Department has cited no authority to support its claim that it is not required to follow the five-step sequential process for evaluating disability claims. Although we have found no cases addressing whether a state Medicaid agency is required to follow the five-step methodology, other jurisdictions generally follow that five-step process for disability claims before their respective state agencies. See Sapp v. Florida Dep’t. of Children & Families, 801 So.2d 213, 214-15 (Fla.Ct.App.2001); Parker v. Wright, 262 Ill.App.3d 661, 200 Ill.Dec. 37, 635 N.E.2d 138, 141-42 (1994); Felton v. Dep’t of Soc. Servs., 161 Mich.App. 690, 411 N.W.2d 829, 831 (1987); Henderson v. North Carolina Dep’t. of Human Resources, 91 N.C.App. 527, 372 S.E.2d 887, 890-91 (1988); Clauer v. Wisconsin Dep’t. of Health & Soc. Servs., 174 Wis.2d 344, 497 N.W.2d 738, 739 (App.1992). Our law incorporates the federal definition of disability, see N.D. Admin. Code § 75-02-02.1-01(9), and the plain language of 42 C.F.R. § 435.541(d)(2) requires the Department to “make a determination of disability ... [i]n accordance with the requirements for evaluating that evidence under the SSI program specified in 20 CFR 416.901 through 416.998,” which includes the Social Security Administration’s five-step sequential process for evaluating disability claims. We conclude that plain language requires the Department to follow the five-step sequential process for determining disability.

[¶ 12] The Department nevertheless asserts it complied with the five-step process in finding Sutherland’s impairments were not severe. We decline to sustain the Department’s result when the required methodology for evaluating a disability claim was not followed. Moreover, in Bowen, 482 U.S. at 154 n. 12, 107 S.Ct. 2287, the Supreme Court recognized the Secretary of the Social Security Administration had issued a ruling that suggested the severity requirement may involve no more than a minimal effect on a claimant’s physical ability to perform basic work activities. See also Bowen, 482 U.S. at 158-59, 107 S.Ct. 2287 (O’Connor, J., concurring). Other federal courts generally have recognized the severity requirement is a minimal threshold, and an impairment is not severe only if the impairment is so slight and its effect so minimal that it would clearly not be expected to interfere with the claimant’s ability to work, regardless of age, education, or work experience. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.1986). The requirement to follow the five-step process is not merely formalistic. Rather, it affects not only the Department’s evaluation but our ability to review that evaluation on appeal as well.

[¶ 13] We conclude the Department’s disability determination is not in accordance with the law. We reverse the judgment and remand to the Department with instructions that Sutherland’s claim be returned to the State Review Team for consideration under the appropriate procedure for evaluating disability claims consistent with this opinion.

[¶ 14] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 125
    Edward J.S. PICARDI and Sandra J. Picardi, Plaintiffs and Appellees, v. Richard ZIMMIOND and Lori Zimmiond, Defendants and Appellants, and Chris A. Soppe and Cindy Soppe, Defendants.
    Nos. 23147, 23173.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 4, 2004.
    Decided Nov. 23, 2004.

      John K. Nooney of Thomas Nooney Braun, Solay & Bernard, LLP, Rapid City, South Dakota, Attorney for plaintiffs and appellees.
    Robert A. Haivala, Sturgis, South Dakota, Attorneys for defendants and appellants.
   GILBERTSON, Chief Justice.

[¶ 1.] Edward J.S., M.D., and Sandra J. Picardi filed declaratory action to determine the extent of an express perpetual road easement across properties owned by Richard and Lori Zimmiond, and Chris A. and Cindy Soppe in Meade County, South Dakota. The Fourth Circuit Court, Judge Jerome A. Eckrich, III presiding, found the Picardi easement to be a private perpetual road easement of forty-four feet in width, which did not preclude Zimmionds and Soppes from general use of the easement as long as that use did not interfere with the use or enjoyment of the easement by Picardis. Zimmionds appealed the decision as to the width of the easement, and Picardis filed notice of review that the easement was granted for the Picardis’ exclusive use.

Affirmed.

FACTS AND PROCEDURE

[¶ 2.] In July 1998, Dr. Edward Picardi and Sandra Picardi purchased 320 acres of land in Meade County, South Dakota. Because the property was landlocked, access from Picardis’ property to a community road and 132nd Avenue required traversing an unplatted piece of property owned by Thomas D. Hildebrand and Glenda D. Hildebrand. The Picardis and the Hilde-brands reached an agreement for an easement across the Hildebrands’ land, which was executed on December 4,1998.

[¶ 3.] The executed and recorded agreement provided for a perpetual road easement for ingress and egress across the Hildebrands’ property to the Picardis’ property. However, the writing did not explicitly state the physical dimensions or location of the Picardi easement. At the time of negotiations, Picardis made clear their need to maneuver a double-wide modular home along the easement, as well as accommodate construction machinery and semi-trailers when construction on their permanent residence began. The writing described the nature of the use and the scope of the enjoyment of the easement in general terms. Oral agreements between Dr. Picardi and Thomas Hildebrand set the physical dimensions of the easement at forty-four feet in width to accommodate a planned roadway of twenty-eight feet plus an eight foot setoff for drainage and ditches on each side.

[¶ 4.] Sometime during the second half of 1998, the Picardis hired Wayne Sund-strom to build the twenty-eight foot wide road and two eight foot ditches. Picardis planned on moving onto their property before winter 1998, by locating a double-wide modular home on the property and eventually building a permanent structure. Picardis and Sundstrom decided time constraints would not allow both the construction of the twenty-eight foot wide road and the Picardis’ move prior to the onset of winter weather. Therefore, it was agreed that a roadway of sufficient size to accommodate the modular home would be constructed before winter, and in the spring the twenty-eight foot road and eight foot ditches would be constructed as originally planned.

[¶ 5.] Sundstrom completed a sixteen to eighteen foot wide road and buried an “extra-wide” culvert beneath the road to accommodate the spring construction. Sundstrom cut down large pine or spruce trees and other vegetation on both sides of the sixteen to eighteen foot road. Both the extra-wide culvert and the clear cut swath were obvious and visible adjuncts to the new road, and depicted the intended forty-four foot wide easement. Sundstrom died during the winter, and the road surface was never expanded to the twenty-eight feet as originally planned.

[¶ 6.] In December 2000, Hildebrands subdivided their adjacent property and recorded the subdivision plat in the Meade County Register of Deeds office on January 4, 2001. Lots D and E were created at that time. The plat located the Picardi easement over and along Lots D and E but did not describe the width of the easement, nor was it drawn to scale as required by Meade County Ordinance 20. If the plat had been intended to be drawn to scale, the easement as depicted would have indicated a roadway of approximately thirty feet in width.

[¶ 7.] Soppes purchased Lot E from Hildebrands in late July or early August of 2001. Soppes were told by Hildebrand prior to the closing that the Picardi easement was a “private road” for the Picardis and that the Soppes had no right of access over and across the easement as located on Soppes’ Lot E. Soppes did not take issue with the terms or dispute the width of the easement.

[¶ 8.] Prior to closing with Hildebrands on Lot D, Zimmionds were given information as to the width of the Picardi easement. Zimmionds physically inspected the lot several times between May and October 2001 and were told by Hildebrand more than once prior to closing that the easement was forty-four feet in width. Hildebrand showed Zimmionds the plat depicting the Picardi easement. Zim-mionds conceded at the time of their inspections that the physical manifestations of the easement were obvious and appeared wider than the sixteen foot road itself. Mrs. Zimmiond herself testified the swath cut through the trees appeared to be around forty feet in width. The purchase agreement noted the sale was “subject to easements, covenants, and reservations of record.” The title policy identified “an easement in favor of Picardi.”

[¶ 9.] After closing on the sale, Zim-mionds began construction of their home, garage and driveway. The site selected virtually abutted the sixteen foot roadway, and created a bottleneck when cars were parked along the roadway in front of the Zimmiond’s residence garage. At times passage for even one vehicle was impossible due to ears parked at the Zimmiond residence.

[¶ 10.] After communications broke down between the parties and attempts to remedy the situation failed, Picardis filed a petition for declaratory judgment seeking to establish the width and the exclusive use of the easement. After trial, judgment and an order were entered on December 23, 2003. The court order set the location of the Picardi easement and its width at forty-four feet, and ordered that the Sop-pes and Zimmionds as owners of the ser-vient tenements could use the easement. The Soppes and Zimmionds use was limited only to the extent such use was not inconsistent with the express use and purpose of the Picardi easement, and did not impede, hinder, limit, or restrict the use and enjoyment of the Picardi easement by the dominant tenement.

[¶ 11.] Zimmionds appealed and Picar-dis filed notice of review. There are two issues for our review:

1. Whether the trial court erred when it found the Picardi easement was forty-four feet in width.
2. Whether the Picardi easement was granted solely for Picardis’ exclusive use.

STANDARD OF REVIEW

[¶ 12.] The trial court’s findings of fact are reviewed by this Court under the clearly erroneous standard. Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citation omitted). “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425 (quoting Cleveland v. Tinaglia, 1998 SD 91, ¶ 16, 582 N.W.2d 720, 724.)). We review conclusions of law under the de novo standard, giving no deference to the trial court’s decision. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citations omitted).

ANALYSIS AND DECISION

[¶ 13.] 1. Whether the trial court erred when it found the Picardi easement was forty-four feet in width.

[¶ 14.] The parties agree Picardis have an easement over the Soppes and Zim-mionds servient tenements. Soppes do not dispute the width of forty-four feet. Zimmionds contend the trial court erred in setting the width of the Picardi easement at forty-four feet rather than at the sixteen to eighteen feet in width as originally constructed in 1998.

[¶ 15.] Zimmionds argued the original grant did not detail the scope of the easement, other than to label it a “roadway.” Zimmionds advanced the argument that because Picardi constructed the roadway at sixteen to eighteen feet in width, the easement is adequate to serve the purpose for which it was intended and Picardis have acquiesced to the smaller width. Zimmionds further argue that to allow Pi-cardis to expand the width of the roadway and add on the width of two eight foot ditches, an addition of twenty-six to twenty-eight feet in width, is an impermissible enlargement of an easement, as the language of the original grant does not provide for ditches.

[¶ 16.] An easement is a property interest in land owned by or in the possession of another, which entitles the easement owner “to a limited use or enjoyment of the land in which the interest exists.” Knight v. Madison, 2001 SD 120, ¶ 4, 634 N.W.2d 540, 542 (quoting Gilbert v. KTI, Inc., 765 S.W.2d 289, 293 (Mo.App. 1988)). An easement may be created by a written grant, by plat or by a force of law. Kokesh v. Running, 2002 SD 126, ¶ 12, 652 N.W.2d 790, 793 (citing Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542). An easement by grant does not require a definite statement as to width, dimensions, or exact location. Northwest Realty Co. v. Jacobs, 273 N.W.2d 141, 145 (S.D.1978) (citations omitted). The extent of an easement by grant can be ascertained either by the “words clearly expressed, or by just and sound construction” of the easement document. Cleveland, 1998 SD 91, ¶ 18, 582 N.W.2d at 724 (quoting Salmon v. Bradshaw, 84 S.D. 500, 505-06, 173 N.W.2d 281, 284 (1969)). The past failure of the grantee to make use of the full rights of the easement area as contained in the grant will not lessen the extent of the original grant in the future. Salmon, 84 S.D. at 506, 173 N.W.2d at 285 (quoting Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596, 600 (Tex.Civ.App 1959)).

[¶ 17.] There is no dispute that Hildebrand and Dr. Picardi orally agreed to a forty-four foot wide easement, and that the writing memorializing the agreement does not include a reference to the width. However, Zimmionds were put on notice that the width of the easement was greater than the width of the roadway as it appeared at the time Zimmionds were contemplating the purchase of Lot E. Mrs. Zimmiond herself admitted at trial that she observed the swath cut through the vegetation and trees and understood it to be part of the easement, and which she herself admitted was approximately forty feet in width. The record is also clear that Zimmionds understood that a viable roadway easement must be wider than the mere road surface for purposes of construction, support and maintenance of the roadway. Zimmionds were also familiar with the plat of Lot E, which indicated the Picardi easement. While not drawn to scale, the plat indicated a roadway of approximately thirty feet in width.

[¶ 18.] Given the knowledge possessed by Zimmionds, they are bound by the terms of the easement as agreed to by Hildebrands and Picardis. Under the facts of this case, the failure of Picardis to expand the roadway to encompass the full width of the easement prior to the Zim-mionds’ purchase of their property is not relevant to determining the extent of the Picardi easement. The extent of the Pi-cardi easement was set by the agreement between Hildebrands and Picardis at the time the grant was recorded. The trial court did not err when it found the Picardi easement to be forty-four feet in width.

[¶ 19.] 2. Whether the Picardi easement was granted solely for Picar-dis’ exclusive use.

[¶ 20.] Picardis contend the easement was granted solely for their use, to the exclusion of the grantors and their successors and assigns. Picardis base their argument on the language of the grant, which reads in pertinent part:

1. GRANT OF EASEMENT: In consideration of the payment of One Dollar ($1.00) and other good and valuable consideration, and to the mutual benefits occurring to the parties hereto, the adequacy and sufficiencies of which is hereby acknowledged, each party to the other, Hildebrand hereby grant to Picardi a perpetual easement to Picardi Ranch Place, a roadway leading westerly from 132nd Avenue, at and along the community well access, to the east boundary of Section 20, which property is owned by Picardi.
The easement over the portion of Hildebrands’ above-described real property is necessary for use for roadway purposes, and includes the right to use as a means of ingress and egress to and from Picardis’ property. This easement shall run with Hildebrands’ real property, and the title to such property and be binding upon Hildebrands, their heirs and any person who shall after the effective date of this instrument, acquire title to Hildebrands’ property.
This easement shall be used for access to one single family residence located upon the Picardi property. Picardi, their heirs, successors and assigns shall not be allowed to construct any additional residences upon the Picardi property, which depend upon use of this easement for access. This easement shall allow access to the Picardi property only and to no other property.

(emphasis added). Picardis advance a reading of the last sentence of section one which suggests that the easement may only be used to access the Picardi property, and not the servient tenements upon which the easement is located.

[¶21.] “Unless the owner of the servient estate expressly agrees otherwise, the owner reserves the right to use the property in any manner or for any purpose, so long as the owner does not interfere with the use or enjoyment of the easement.” Knight, 2001 SD 120, ¶ 7, 634 N.W.2d at 543 (citations omitted). SDCL 43-4-16 provides that the reservation in any grant is interpreted in favor of the grantor. For this reason, neither the physical size, nor the purpose, nor the use of an easement may be expanded beyond the terms as contained in the original grant. Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542 (citation omitted). Any such attempt by the grantee unduly interferes with the reserved rights of the grant- or. See Id. ¶ 7, 634 N.W.2d at 543.

[¶ 22.] The holder of a private perpetual road easement does not have the right per the easement to exclude all others from access to the roadway. Id. ¶ 8. The fee owner of the road easement has the authority to determine who shall be allowed access to the road, or to grant additional easements over the property, so long as additional users and uses do not interfere with the dominant tenement owner’s rights as contained in the grant. Id.

[¶ 23.] The owner of realty who has granted an easement retains all incidents of ownership not specifically granted away. Id. ¶ 7. In the context of adverse possession, we have stated that one who retains incidents of ownership is not stripped of those incidents by lack of continual use or acts of kindness concerning voluntary allowance of use by third parties. Summit, 2000 SD 29, ¶ 27, 607 N.W.2d at 29-30. “To conclude otherwise would only serve to encourage aggressive, assertive action across boundary lines, and not good neighborliness.” Id. (citing Manz v. Bohara, 367 N.W.2d 743, 748 (N.D.1985)).

[¶ 24.] The writing in this case does not contain explicit language renouncing the grantor’s reserved rights to the easement. It is illogical that a grantor of an easement would grant away all benefits to his or her property including actual access thereto and retain all detriments such as the legal obligation for real estate taxes. For such an unusual situation to arise, the nature of the grant would have to be explicit and not implied. The language identified by Picardis, when read in context, serves as a limitation upon Picar-dis’ use of the easement and not upon the grantor’s reserved rights. Hildebrands are not mentioned in the paragraph containing the language identified by Picardis. The entire paragraph is in reference to what Picardis may or may not do with regard to the easement.

[¶ 25.] SDCL 43-2-1 provides: “[t]he ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.” Ownership of the land in fee simple upon which the easement is located is in Zimmionds and Soppes as the successors in interest to Hildebrands, subject to Picardis rights in the easement. As we noted in Summit:

This doctrine ... is not intended to subvert neighborliness or prudence whereby a neighbor allows another to use part of his land for the neighbor’s (or their mutual) benefit, and this concept grows in importance as we progressively become a more congested society. Therefore, the mere fact that a landowner allows his neighbor to occupy or use part of his land does not automatically fix the boundary between them or give the neighbor a right to use or take the property in perpetuity.

2000 SD 29, ¶ 27, 607 N.W.2d at 30 (quoting Finley v. Yuba County Water District, 99 Cal.App.3d 691, 700, 160 Cal.Rptr. 423, 429 (1979)). The trial court did not err when it held the Picardi easement was not for the exclusive use of Picardis.

Conclusion

[¶ 26.] The Picardi easement is forty-four feet in width according to the terms of the agreement between Picardis and Hildebrands. Zimmionds and Soppes are not precluded from using the easement, as long as their use does not interfere with Picardis’ right to use the entire forty-four feet of the easement as a roadway. The holding of the trial court is affirmed.

[¶ 27.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . The property on which an easement is imposed is the servient tenement, while the property that enjoys the use of an easement is the dominant tenement. SDCL43-13-3.

      . No claims of adverse possession exist in this case.

      . SDCL 43-4-16 provides: "A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.”

      . As an example, recently in Block one of the issues was the right of a landowner to erect a gate in part reason to keep his cattle in. 2004 SD 72, 681 N.W.2d 460. We also noted that "unless granted away by easement, the owner of real estate retains the right to determine the extent of vehicular traffic he or she will allow on his or her property." Id. ¶ 26, 681 N.W.2d at 467. Thus, the owner does not give away the right to require use of the gate during times the cattle are present by not requiring its continual closure by easement holders during times when they are not. Id. ¶ 25. The counter proposition, an all or nothing theory of ownership, is not supported by our law and is not consistent with “good neighborliness" or common sense.


author: ZINTER, Justice.

text:
    2004 SD 126
    In the Interest of L.N., Alleged Abused/Neglected Child and Concerning P.W., Respondent Mother.
    No. 23106.
    Supreme Court of South Dakota.
    Argued on Aug. 24, 2004.
    Decided Nov. 23, 2004.

      Jeff Larson, Minnehaha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for appellant Mother, P.W.
    Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney
    General Pierre, South Dakota, Attorneys for appellee State.
   ZINTER, Justice.

[¶ 1.] L.N. was found to be abused and neglected at an adjudicatory hearing. At a subsequent “no reasonable efforts hearing,” the court found that aggravating circumstances were present and that reasonable efforts to reunify the family were not required under the South Dakota provisions of the Adoption and Safe Families Act (ASFA). Final disposition occurred at a “permanency hearing” in which the trial court concluded that parental rights should be terminated and L.N. should be placed for adoption. Mother appeals claiming that this procedure unconstitutionally deprived her of the right to a “dispositional hearing” and the opportunity to consider less restrictive alternatives that were in the best interests of the child. We disagree and affirm the trial court.

Facts and Procedural History

[¶ 2.] L.N., a minor child with Fetal Alcohol Syndrome, was born on May 15, 2003. On June 11, 2003, he was placed in protective custody because of Mother’s alcohol abuse. That same day, an abuse and neglect petition was filed. Despite L.N.’s placement in protective custody, both parents were observed under the influence of alcohol by the Department of Social Services (DSS) during these proceedings. Furthermore, on June 16, 2003, Mother pleaded guilty to her fourth DUI and was sentenced to two years in the South Dakota Women’s Prison on July 16, 2003.

[¶ 3.] On August 22, 2003, L.N. was adjudicated abused and neglected because of Mother’s chronic alcoholism and the child’s prenatal exposure to alcohol. That adjudication has not been appealed.

[¶ 4.] On August 25, 2003, DSS filed a motion to be relieved of the requirement that it provide reasonable efforts to reunite L.N. with his parents. See SDCL 26-8A-21 (requiring reasonable efforts to return the child to the home) and 26-8A-21.1 (relieving DSS of that requirement when certain aggravating circumstances are found). A “no reasonable efforts hearing” was conducted on that motion on September 9, 2003. Mother called no witnesses and introduced no evidence. The trial court found that aggravating circumstances existed. It concluded that DSS was not required to provide reasonable efforts to reunify Mother and L.N. This bypass decision was authorized by two provisions of ASFA, which are codified in SDCL 26-8A-21.1.

[¶ 5.] The first aggravated circumstance was a finding that Mother’s parental rights had been previously terminated to three other children and Father’s rights had been terminated to one other child (see SDCL 26-8A-21.1(5)). The second aggravating circumstance was that Mother had a documented history of abuse and neglect as a result of chronic alcohol abuse (see SDCL 26-8A~21.1(6)).

[¶ 6.] Mother’s history reflects that she has been addicted to alcohol for twenty years and has been unable to maintain sobriety. DSS’s involvement with Mother’s abuse and neglect because of alcohol started in December, 1993. Mother had been offered services by DSS several times, but failed to cooperate or complete those services. Mother admitted that she had this long-standing problem and that she had been admitted for treatment eight times at prívate and public facilities. Since being released from chemical dependency treatment in this case, Mother had not followed through with any of the aftercare that was necessary to maintain sobriety. The psychologist who evaluated Mother concluded that her alcohol problem was a significant impediment to her ever being an adequate parent.

[¶ 7.] With respect to Father, the trial court found that he would not separate from Mother, and his concern for Mother took priority over the best interests of his children. The trial court specifically found that Father had no interest in acting as L.N.’s primary caretaker and had shown a lack of interest and involvement with L.N.

[¶ 8.] On November 17, 2003, following the court’s bypass decision, a “permanency hearing” was held pursuant to SDCL 26-8A-21.2. At the conclusion of that hearing the trial court entered a conclusion of law, based upon clear and convincing evidence, that the best interests of the child would be served by the termination of parental rights and the placement of the child for adoption. Significant to the issues in this appeal, the trial court specifically concluded that the least restrictive alternative compatible with the “best interests and welfare of [L.N.] ... requirefd] termination of all parental rights.” The court ordered DSS to file a petition for termination of parental rights and place L.N. for adoption.

[¶ 9.] No further “dispositional” hearings were held because the trial court had already disposed of the case by concluding that reunification efforts were not required, that termination of parental rights was the least restrictive alternative that was in the best interests of the child, and that the child should be placed for adoption. Consequently, the trial court’s conclusions of law specifically stated that they were entered “for disposition” of this case. The trial court observed that “it is well within the power of the state legislature to say the well-being of [a child] trumps the mother’s rights to have a [further] disposi-tional hearing[,]” and a further dispositional hearing would be meaningless in this case.

[¶ 10.] At the beginning of both the adjudicatory and the no reasonable efforts hearings, Mother objected to the presence of the foster parents and certain DSS employees. The objections were overruled, and both the foster parents and a DSS supervisor were allowed to remain in the courtroom during the adjudicatory hearing. The foster parents and one employee of DSS were allowed to be present at the no reasonable efforts hearing.

[¶ 11.] Mother appeals, raising the following issues:

1. Whether SDCL 26-8A-21.1 and 21.2 unconstitutionally denied Mother the right to a dispositional hearing and the opportunity to determine whether termination was the least restrictive alternative consistent with the best interests of the child.
2. Whether allowing foster parents and DSS employees to be present during a closed juvenile hearing requires a reversal of the termination of Mother’s parental rights.

Analysis and Decision

OppoHunity to Litigate Whether Termination Was the Least Restrictive Alternative

[¶ 12.] The Adoption and Safe Families Act, 42 USCA § 671 et seq., provides that “the child protection system is not required to expend its limited resources attempting to reunify children with abusive parents if certain [aggravating] circumstances exist.” People ex rel. D.B., 2003 SD 113, ¶ 10, 670 N.W.2d 67, 70 (citation omitted). ASFA’s procedural requirements are codified in SDCL 26-8A-21 (reasonable efforts required), 26-8A-21.1 (exceptions to reasonable efforts), and 26-8A-21.2 (permanency hearing required). In re I.H., 2004 SD 7, ¶ 14, 674 N.W.2d 809, 812. More specifically, SDCL 26-8A-21 requires that DSS make reasonable efforts to reunify a child who has been removed from the home of the child’s parent, guardian, or custodian. Id. (citing Matter of C.W., 1997 SD 57, ¶ 17, 562 N.W.2d 903, 906). However, ASFA provides exceptions to these reasonable efforts requirements where the court determines that a parent has subjected a child to “aggravated circumstances,” which are defined in SDCL 26-8A-21.1. D.B., 2003 SD 113, ¶ 10, 670 N.W.2d at 70.

[¶ 13.] Mother argues that these statutes deny her due process because they deprived her of the opportunity to litigate less restrictive alternatives. This argument is entirely premised on Mother’s contention that the statutes provide courts with no discretion to require reunification and to consider other alternatives when an aggravating circumstance is present, However, we have previously concluded otherwise, stating that “the reasonable efforts bypass provision found in SDCL 26-8A-21.1 provides the trial court with discretion to identify the most egregious cases early in the process and dispense with futile efforts toward reunification.” Id. ¶ 15 (emphasis added). See also New Jersey Div. of Youth and Family Services v. A.R.G., 361 N.J.Super. 46, 77-78, 824 A.2d 213, 234 (N.J.Super.Ct.App.Div.2003) (stating that ASFA gives courts the discretion to identify the most egregious cases at the early stages of child protection proceedings without providing fruitless reunification services) (emphasis added). Thus, we reject Mother’s argument that the bypass procedure deprives a court of discretion to consider less restrictive alternatives consistent with the best interests of the child.

[¶ 14.] In fact, we conclude that a court must necessarily consider whether a less restrictive alternative is appropriate in making the bypass decision. After all, SDCL 26-8A-21.1 does not preclude reunification efforts when aggravating circumstances are present. Rather, the statute simply provides that if aggravating circumstances are present, reunification efforts are not required: “Nothing in § 26-8A-21 requires reunification of a child with a parent who ...” meets one of the exceptions. SDCL 26-8A-21.1 (emphasis added).

[¶ 15.] A consideration of reasonable alternatives is also contemplated because SDCL 26-8A-21.2 only permits a permanent out of home placement “[i]f the court has determined that reasonable efforts ... are not appropriate ... ’’(emphasis added). This language clearly states that even if DSS had identified an aggravating circumstance, the court must still have determined whether reasonable efforts were “appropriate,” and obviously, the appropriateness of reunification requires a consideration of alternatives. Because we construe the statutes to require these considerations in making the bypass and permanency decisions, we reject Mother’s contention that this procedure deprived her of the opportunity to litigate whether other less restrictive alternatives were appropriate in the best interests of the child.

Right to a Separate Dispositional Heañng

[¶ 16.] SDCL 26-8A-21.2 provides that if the court has determined that reasonable efforts to return the child are not appropriate, a permanency hearing shall be held within 30 days. See also, I.H., 2004 SD 7, ¶ 16, 674 N.W.2d at 813. Although there is no dispute that the permanency hearing was held and the court made a dispositional decision to terminate parental rights at that hearing, Mother contends that she was entitled to yet another “dispositional hearing.”

[¶ 17.] Counsel for DSS concedes that the “preferable course” is to have a no reasonable efforts hearing, followed by a permanency hearing under SDCL 26-8A-21.1, followed by a final dispositional hearing. See I.H., 2004 SD 7, ¶ 16, 674 N.W.2d at 813. However, this suggested procedure is not mandatory if the reasonableness of reunification and the appropriateness of alternatives have already been determined adversely to the parents in properly noticed hearings. A further dis-positional hearing in such cases would only delay a permanent placement, a result sought to be eliminated by ASFA.

[¶ 18.] A further dispositional hearing was also not necessary to provide Mother with the opportunity to litigate reasonable alternatives in the best interests of the child because it is the nature of the hearings provided, not the name, that is important. In this case, the opportunity to litigate all dispositional issues was provided at the no reasonable efforts and permanency hearings. They therefore became the dispositional phase of this case.

[¶ 19.] Moreover, Mother cannot claim surprise. She was on notice that the court would determine whether reasonable efforts to reunify were appropriate at the no reasonable efforts hearing. She was also on notice that the court was required to “determine whether and, if applicable, when: the child should be placed for adoption, and [if] the state should file a petition for termination of parental rights ...” at the permanency hearing. See SDCL 26-8A-21.2(1). Thus, Mother was on notice that a termination disposition was a potential outcome of these hearings.

[¶ 20.] Finally, we see nothing in the statutory framework that prohibits the no efforts hearing and the permanency hearing from being considered the disposition. SDCL chs 26-7A and 26-8A contemplate a number of ways in which disposition of an abused and neglected child may occur. They do not, however, provide a right to any particular form of dispositional hearing. Rather, SDCL 26-7A-87 merely provides that, after adjudication, “the court shall proceed with the dispositional phase of the proceedings ...” (emphasis added).

[¶ 21.] During that dispositional phase, trial courts have a number of dispositional options. First, if it is determined that reasonable efforts to return the child are not appropriate, a permanency hearing must be held to determine if a permanent out of home placement should be made. SDCL 26-8A-21.2. If a permanent out of home placement is appropriate, options include permanent placement for adoption or guardianship, permanent placement with a relative, or other planned permanent living arrangement. Id. On the other hand, if a permanent out of home placement is not appropriate, and if termination of parental rights is not warranted, further hearings may be necessary to consider other dispositions such as placement in the temporary custody of the parents, guardian, relative, or other suitable party or agency, including foster care. SDCL 26-8A-22. Additional dispositions include return of custody to the parents with or without supervision, custodial supervision by DSS or a child placement agency, or another planned permanent living arrangement. Id.

[¶ 22.] All of these options are “dispositions.” The no reasonable efforts and permanency hearings merely constitute one combination of authorized disposition. Therefore, if a termination of parental rights and a permanent out of home placement were determined to be appropriate under SDCL 26-8A-21.2, the “disposition” occurred, and a separate dispositional hearing was unnecessary. As the trial court correctly observed, a further disposi-tional hearing was not necessary because a permanent out of home placement had already been made pursuant to SDCL 26-8A-21.2.

[¶ 23.] Mother, however, also points out that all four options under SDCL 26-8A-21.2 involve a permanent out of home placement. Thus, Mother contends there was no real opportunity to present less restrictive alternatives at the permanency hearing.

[¶ 24.] Due process requires a meaningful opportunity to be heard. State v. 1-90 Truck Haven Service, Inc., 2003 SD 51, 15, 662 N.W.2d 288, 292. However, the sufficiency of the “opportunity required is flexible and requires only such procedural protections as the particular situation demands.” Matter of Estate of Washburn, 1998 SD 11, 19, 575 N.W.2d 245, 250 (citations omitted). Here, Mother was afforded due process because, as we previously noted, the court’s permanency decision under SDCL 26-8A-21.2 necessarily required consideration of less restrictive alternatives and the best interests of the child. After all, in the context of child proceedings, “at every stage, from initial appearance to final disposition, [a courts] brightest beacon is the best interests of the child.” Matter of C.V., 1998 SD 47, 11, 579 N.W.2d 17, 21 (citing Matter of R.P., 498 N.W.2d 364, 366 (S.D.1993)).

[¶ 25.]In this case, Mother was present at the no efforts and permanency hearings, and she was legally on notice that the State could seek a termination of parental rights and placement of the child for adoption. Furthermore, reasonable alternatives in the best interests of the child were required to be considered in those proceedings. Therefore, the due process opportunity to be heard on less restrictive alternatives was afforded.

The Presence of Foster Parents and the Department of Social Services In a Closed Juvenile Hearing

[¶ 26.] The controlling statute provides that juvenile hearings are closed unless the court finds compelling reasons to open them. SDCL 26-7A-36. The party wanting the hearing opened has the burden of proving that “compelling reasons” exist to require opening the proceedings. In the Matter of M.C., 527 N.W.2d 290, 292 (S.D.1995); SDCL 26-7A-36. “The purpose behind closed juvenile proceedings is to ‘protectively rehabilitate juveniles’ ..., [and] ‘the maintenance of confidentiality is a necessary corollary of that purpose.’ ” Id. at 293 (citing San Bernardino County Dep’t of Public Social Services v. Superior Court, 232 Cal.App.3d 188, 283 Cal.Rptr. 332, 339 (1991)). The trial court’s decision on this issue is reviewed under the abuse of discretion standard. Id. at 291.

[¶ 27.] Here, the foster parents and certain DSS employees were allowed to be present at the hearings despite Mother’s objection. Mother argues that compelling circumstances are required before any individual other than a party may be present at such a hearing. However, considering the purpose of SDCL 26-7A-36, these hearings are only closed to the general public. The general rule of closure was not intended to require a showing of compelling circumstances before those individuals who possess a legitimate interest in the juvenile may attend the proceeding.

[¶ 28.] We also see no prejudice. As this Court stated in In re A.D., “the question is not ‘Was there error?’ but Was there prejudicial error?’ ” 416 N.W.2d 264, 266 (S.D.1987). Thus, we stated that allowing a non-party to appear through counsel at a dispositional hearing was not prejudicial error. Id.

[¶ 29.] Affirmed.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and WILBUR, Circuit Judge, concur.

[¶ 31.] WILBUR, Circuit Judge, sitting for MEIERHENRY, Justice, disqualified.

      . Father has not appealed.

      . The other terminations occurred in 1998 and 2002. All three prior terminations were caused by Mother's chronic and severe alcoholism. Mother drank during one of her pri- or pregnancies and was intoxicated at the child’s birth. Mother also failed to cooperate with or complete services offered by DSS in the prior terminations. In the 1998 proceedings, the trial court found that there was little likelihood of change. Unfortunately, this finding turned out to be prophetic.

      . SD CL 2 6-8 A-21 provides:
      The Department of Social Services shall make reasonable efforts prior to the removal of an alleged or adjudicated abused or neglected child from the home of the child's parents, guardian, or custodian to prevent or eliminate the need for removal of the child. If the child has been removed from the home and has been placed in temporary custody of the department, the department shall make reasonable efforts to make it possible for the child to return to the home of the child’s parents, guardian, or custodian. If the child is to be or has been removed from the home, the court shall first make a judicial determination that removal of the child from the home is or was necessary because continued presence of the child in the home would be contrary to the welfare of the child and that reasonable efforts by the department to avoid removal of the child from the home have been made. If the child has been removed from the home and has not been returned to the home, the court shall first make a judicial determination that reasonable efforts have been made by the department to return the child to the home and that the child cannot be returned to the home because it would be contrary to the welfare of the child. Reasonable efforts to prevent the necessity for removal of a child from the home of the child's parents, guardian, or custodian and reasonable efforts to return the child to the home mean provision by the department of any assistance or services that:
      (1) Are appropriate for the child's parents, guardian, custodian, or any other caretaker family of the child existing at the time of removal or possible return of the child, including instruction on parenting;
      (2) Are available pursuant to the comprehensive plan of preventive services of the department;
      (3) Could be made available without undue financial burden on the department; or
      (4) Would have a significant likelihood of protecting the child from substantial danger to the child's physical health or from severe emotional damage while enabling the child to remain in the home or to be returned to the home.
      In determining the adequacy of reasonable efforts, the court shall consider the assistance, services, and efforts of the department. The court shall also consider the good faith efforts or the lack of good faith efforts made by the child's parents, guardian, custodian, or other caretaker family to cooperate with the department and to effectively utilize the assistance or services for the benefit and welfare of the child.

      . SDCL 26-8A-21.1 provides:
      Nothing in § 26-8A-21 requires reunification of a child with a parent who:
      (1) Committed a crime defined in § 22-16-4, 22-16-7, 22-16-9, 22-16-15, 22-16-20, 22-22-1, 22-22-19.1, 22-22-22, 26-10-1, or subdivision 22-19-1(5), or committed conduct described by any of those statutes that violated the law or ordinance of another jurisdiction having elements similar to an offense described by any of those statutes;
      (2) Committed a crime defined in § 22-18-1.1 against the child or another child of such parent, or committed conduct described by that section that violated the law or ordinance of another jurisdiction having elements similar to the offense described by that section;
      (3) Has been determined by a court by clear and convincing evidence to have subjected the child or another child to torture, sexual abuse, abandonment for at least six months, chronic physical, mental, or emotional injury, or chronic neglect if the neglect was a serious threat to the safety of the child or another child;
      (4) Is incarcerated and is unavailable to care for the child during a significant period of the child's minority, considering the child's age and the child's need for care by an adult;
      (5) Has had parental rights to another child involuntarily terminated by a prior legal proceeding;
      (6) Has a documented history of abuse and neglect associated with chronic alcohol or drug abuse;
      (7) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent's custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion;
      (8) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, the child has been removed from the parent's custody on two separate occasions, and the Department of Social Services offered or provided family services on each of the two separate occasions the child was removed;
      or
      (9) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or risk of harm resulting from a crime, act, or omission as specified in subdivision (1), (2), or (3) of this section.

      . Because the court maintains the discretion to make the bypass decision, we reject Mother’s argument that DSS possesses the ultimate discretion to require a bypass by merely identifying an aggravating circumstance. Because DSS does not possess that discretion, Mother's constitutional argument under Papa-christou v. City of Jaclcsonville, 405 U.S. 156, 168, 92 S.Ct. 839, 846, 31 L.Ed.2d 110, 119 (1972) is without merit (holding void for vagueness may occur when a statute places almost unfettered discretion in the hands of the police).

      . SDCL 26-8A-21.2 provides:
      If the court has determined that reasonable efforts to return an adjudicated abused or neglected child to the home of the parent, guardian, or custodian are not appropriate, a permanency hearing shall be held within thirty days after the determination. At the permanency hearing, the court shall determine whether and, if applicable, when:
      (1) The child should be placed for adoption, and the state should file a petition for termination of parental rights;
      (2) The child should be referred for legal guardianship;
      (3) The child should be placed permanently with a fit and willing relative;
      or
      (4) A compelling reason is documented with the court that none of the permanent plans listed in this section would be in the best interest of the child, and the child should be placed in another planned permanent living arrangement.

      . Even if this form over substance argument had merit and we were to focus on form, the trial court’s dispositional document was enti-tied "Findings of Fact and Conclusions of Law for Disposition.” (Emphasis added.)

      . SDCL 26-7A-36 provides:
      All hearings in actions under this chapter and chapter 26-8A, 26-8B, or 26-8C are closed unless the court finds compelling reasons to require otherwise. However, all pleadings and hearings shall be open and a matter of public record if a juvenile is summoned into court for an offense which if committed by an adult would constitute a crime of violence as defined in subdivision 22-1-2(9) or a crime involving a drag offense in violation of 22-42-2 or 22-42-3, and at the time of the offense the juvenile was sixteen years of age or older.