People Dakota
| Decision Date | 02 March 2011 |
| Docket Number | No. 25655.,25655. |
| Citation | 795 N.W.2d 39,2011 S.D. 8 |
| Parties | The PEOPLE of the State of South Dakota, ex rel. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, In the Matter of D.W., Abused/Neglected Child. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Marty J. Jackley, Attorney General, Ann M. Holzhauser, Special Assistant Attorney General, Attorneys for appellee State of South Dakota.Elizabeth Maria Lorina of Lorina & Cesna, LLP, Rapid City, South Dakota, Attorneys for appellant Oglala Sioux Tribe.Emily Sovell, Onida, South Dakota, Attorney for appellee Child D.W.
[¶ 1.] The Oglala Sioux Tribe appeals the circuit court's judgment finding that good cause existed for placement of D.W. (Child) in an adoptive home outside the placement preferences of the Indian Child Welfare Act (ICWA).
[¶ 2.] On August 22, 2006, the State filed a petition in Jones County alleging that Child and his half-brother (Brother), then ages six and four months, respectively, were abused and neglected. At the time, Child was living with Mother and T.M., who is Brother's father. Child and Brother were taken into protective custody on December 1, 2006. Following a hearing, the Department of Social Services (DSS) was granted continued temporary custody of the children.
[¶ 3.] Child and Brother were initially placed in foster care with Brother's paternal grandparents. During the summer of 2007, Child was transported to the home of his maternal great-aunt for respite care. Child later returned to his Brother's paternal grandparents to reside with Brother until a home study could be completed on Child's maternal great-aunt.
[¶ 4.] In September 2007, the Oglala Sioux Tribe (Tribe) moved to intervene and to transfer jurisdiction to tribal court. The circuit court granted the motion to intervene but denied the motion to transfer. Although the motion to intervene was granted, the Tribe stopped attending the proceedings and played no further role in the case until July 2008.
[¶ 5.] A final dispositional hearing (termination hearing) was held on February 20, 2008. Neither Mother nor Father attended the hearing, and the court noted their absence in rendering its decision to terminate their parental rights. In an oral ruling at the close of the hearing, the court found that although Father had no “active part” in any alleged abuse or neglect, he had essentially abandoned Child. The court observed that “even [Child], his son, who apparently has neither heard nor seen from [Father] in the last couple of years[,] describes his situation as, ‘I don't have a dad.’ ” Neither parent appealed the termination of parental rights.
[¶ 6.] Following the termination hearing, DSS began searching for a permanent placement for Child that would conform to the placement preferences of ICWA. DSS conducted searches for relatives of Child and for Native American families within South Dakota that might be willing to serve as a permanent placement. DSS also placed Child's name on the AdoptUsKids website as a means to search for licensed families nationwide. DSS sent the Tribe a report summarizing these search efforts.
[¶ 7.] During a July 16, 2008, review hearing, the Tribe, through ONTRAC 1 Director Juanita Scherich, requested additional time to conduct its own search for relatives and tribal members who could serve as adoptive parents for Child. The court expressed some concern that no relatives had yet come forward to care for Child but agreed to allow DSS and the Tribe additional time to look for a suitable placement.
[¶ 8.] Despite its thorough efforts, DSS was unable to find a relative or Native American family who was willing to adopt Child. It did, however, find a family in Michigan (the “Michigan Couple”), who was approved for adoption by the Michigan Indian Child Welfare Agency. One of the Michigan parents was affiliated with the Ottawa Tribe and was active in Native American culture but was not an enrolled member of the Tribe. Additionally, the Michigan Couple had previously adopted four Native American children. All of the children, like Child, had special needs but were happy and well adjusted in the home. DSS selected the Michigan Couple as a suitable placement for Child.
[¶ 9.] During an August 11, 2009, review hearing, the Tribe expressed its concern that Father's relatives had not been explored as a possible placement option for Child. DSS acknowledged that, until that point, it had made no effort to explore Father's family because Father's paternity had not been established. The State contended that the circuit court had already made a factual finding that the placement search was compliant with ICWA and argued the Tribe was now too late to contest that finding. The State argued against any further delay in the proceedings when a suitable placement option had already been found in the Michigan Couple. Nevertheless, the court agreed to continue the proceedings until Father's family could be explored as a possible placement option.
[¶ 10.] In conjunction with the search, the Tribe provided DSS with a list of Father's relatives and other Native American families who might be interested in adopting Child. Only one person on the list expressed any interest in adopting Child: Father's live-in girlfriend (Girlfriend). DSS did not explore Girlfriend as a placement option because Father's parental rights had already been terminated, and the court had made a factual finding that Father abandoned Child.
[¶ 11.] The circuit court held a hearing on March 26, 2010, to determine whether good cause existed to place Child outside the ICWA placement preferences. Child's therapist, Christina Bisek, testified that Child should be placed with a family skilled in dealing with his behavioral disorders, which included Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. Bisek also testified she believed Child would benefit from being the youngest child in the home as it would allow him to receive more attention from the parents. Both of these factors favored placement with the Michigan Couple rather than with Girlfriend.
[¶ 12.] The State reiterated its concerns about placing Child with a caregiver whose parental rights had been terminated. Michael Putzier, a supervisor for DSS, testified that, in his experience, he could not recall ever placing a child with a parent whose parental rights had been terminated. Based on Ms. Bisek's conclusions and Putzier's concerns about Father, Putzier recommended that Child be placed with the Michigan Couple.
[¶ 13.] Joseph Ashley, a DSS officer specializing in ICWA, also recommended that the court find good cause to deviate from the ICWA placement preferences. Ashley noted the lack of any contact or bonding between Father and Child and indicated that Father's actions in abandoning Child were very harmful to Child under the culture and child-rearing practices of the Tribe. He also concluded that Father's actions were inconsistent with the Tribe's concept of “tiospaye,” the caretaking of children by extended family members within the Lakota kinship structure. Ashley recommended placement with the Michigan Couple.
[¶ 14.] Juanita Scherich, testifying on behalf of the Tribe, stated that the Tribe does not believe in the concept of termination of parental rights and has not allowed for such action in its tribal court since 2005. Scherich stated her belief that Father and Girlfriend would be an appropriate placement for Child because both parents were employed, Girlfriend did not drink, and several of Child's half-siblings resided with the couple. She indicated she had not heard anything negative about Father, although she had not conducted a home study on the proposed placement.
[¶ 15.] At the conclusion of the hearing, the court found that good cause existed to deviate from the ICWA placement preferences. The court found that Child would likely incur substantial emotional injury if he were placed with Father and that placement with Girlfriend would be equivalent to placement with Father. Because neither DSS nor the Tribe had suggested another ICWA-preferred placement option, the court found good cause to place Child outside the ICWA placement preferences. The Tribe appeals.
[¶ 16.] This Court has not previously addressed the appropriate standard of review for a circuit court's finding of good cause to deviate from the ICWA placement preferences. A majority of jurisdictions has adopted an abuse of discretion standard. See In re Adoption of F.H., 851 P.2d 1361, 1363 (Alaska 1993); In re Adoption of B.G.J., 281 Kan. 552, 133 P.3d 1, 9 (2006); In re Custody of S.E.G., 521 N.W.2d 357, 363 (Minn.1994); In re Adoption of M., 66 Wash.App. 475, 832 P.2d 518, 522 (1992). In B.G.J., the Kansas Supreme Court stated, 133 P.3d at 6 (quoting In re Adoption of B.G.J., 33 Kan.App.2d 894, 111 P.3d 651, 656 (2005)).
[¶ 17.] At least one court has adopted a de novo standard of review for a finding of good cause to deviate from the ICWA placement preferences. See In re K.R.C., 236 Or.App. 535, 238 P.3d 40 (2010). The court in K.R.C. found it had statutory authority to exercise de novo review. Id. at 43. See Or.Rev.Stat. § 19.415(3). South Dakota has no statute bearing any similarity to that referenced by the Oregon court. We therefore join the majority of jurisdictions in adopting an abuse of discretion standard of review for a circuit court's decisions to deviate from the ICWA placement preferences.
Whether the circuit court erred in finding good cause to deviate from the ICWA adoptive placement preferences.
[¶ 18.] The Indian Child Welfare Act, 25 U.S.C. § 1915(a),...
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