Oglala Sioux Tribe v. Fleming

Decision Date14 September 2018
Docket NumberNo. 17-1135, No. 17-1137, No. 17-1136,17-1135
Citation904 F.3d 603
Parties OGLALA SIOUX TRIBE; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs - Appellees, v. Lisa FLEMING, in her official capacity, Defendant, Mark Vargo, in his official capacity, Defendant - Appellant, Honorable Craig Pfeifle; Lynne A. Valenti, in their official capacities, Defendants. Cherokee Nation of Oklahoma; ICWA Law Center; National Congress of American Indians ; National Indian Child Welfare Association ; Navajo Nation; Amici on Behalf of Appellee(s). Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs - Appellees, v. Lisa Fleming; Mark Vargo, in their official capacities, Defendants, Honorable Craig Pfeifle, in his official capacity, Defendant - Appellant, Lynne A. Valenti, in her official capacity, Defendant. Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs - Appellees, v. Lisa Fleming, in her official capacity, Defendant - Appellant, Mark Vargo ; Honorable Craig Pfeifle, in their official capacities, Defendants, Lynne A. Valenti, in her official capacity, Defendant - Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Counsel who presented argument on behalf of the appellants were Jeffrey G. Hurd, of Rapid City, SD; Rebecca L. Mann, of Rapid City, SD. Robert L. Morris, II, of Belle Fourche, SD. The following attorney(s) appeared on the appellant briefs; Mr. J. Crisman Palmer, of Rapid City, SD; Ms. Rebecca L. Mann, of Rapid City, SD; Robert L. Morris, II, of Belle Fourche, SD; Jeffrey G. Hurd, of Rapid City, SD.

Counsel who presented argument on behalf of the appellee was Stephen L. Pevar, of Hartford, CT. The following attorney(s) appeared on the appellee brief; Dana L. Hanna, of Rapid City, SD., Stephen L. Pevar, of Hartford, CT.

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*

COLLOTON, Circuit Judge.

The Oglala Sioux Tribe, the Rosebud Sioux Tribe, and tribal members Madonna Pappan and Lisa Young brought this action against various South Dakota officials under 42 U.S.C. § 1983. They challenged procedures used in proceedings brought by the State to remove children temporarily from their homes in exigent circumstances. The plaintiffs alleged that the defendants were engaged in ongoing violations of the Due Process Clause of the Fourteenth Amendment and the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. , because their policies and practices deprived Indian parents of a meaningful hearing after their children were taken into temporary state custody.

The district court denied the defendantsmotion to dismiss on jurisdictional grounds, and granted partial summary judgment for the plaintiffs on several of their statutory and constitutional claims. The court then entered a declaratory judgment and a permanent injunction. After declaring certain rights of Indian parents, custodians, children, and Tribes at hearings held within 48 hours of the State assuming temporary custody of a child, the court ordered the Department of Social Services (DSS) and the State’s Attorney to implement certain procedures to protect these rights.

The defendants appeal, and challenge both the district court’s assertion of jurisdiction and its decision to grant declaratory and injunctive relief. We have jurisdiction to review the order granting the permanent injunction under 28 U.S.C. § 1292(a)(1). We also have jurisdiction to consider orders granting declaratory relief and partial summary judgment that are incorporated by, and inextricably bound up with, the injunction. FDIC v. Bell , 106 F.3d 258, 262-63 (8th Cir. 1997) ; Fogie v. THORN Americas, Inc. , 95 F.3d 645, 648-49 (8th Cir. 1996).

We ultimately conclude that the district court should have abstained from exercising jurisdiction under principles of federal-state comity articulated in Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and later cases. We thus vacate the court’s orders granting partial summary judgment and declaratory and injunctive relief, and remand with instructions to dismiss the claims that gave rise to the orders.1

I.

South Dakota law establishes a process for the removal of children from their homes in exigent circumstances. See S.D. Codified Laws § 26-7A-1 et seq . A law enforcement officer may take a child into temporary state custody without a court order if the officer reasonably believes that there is an "imminent danger to the child’s life or safety and there is no time to apply for a court order." Id. § 26-7A-12(4). Alternatively, a court may order that the State take temporary custody of a child upon application by a state’s attorney, DSS social worker, or law enforcement officer. The application must set forth "good cause to believe ... [t]here exists an imminent danger to the child’s life or safety and immediate removal of the child from the child’s parents, guardian, or custodian appears to be necessary for the protection of the child." Id. § 26-7A-13(1)(b).

The State may not hold a child in temporary custody for longer than 48 hours, excluding weekends and court holidays, unless it files a petition for temporary custody. Id. § 26-7A-14. The statute also requires a temporary custody hearing within 48 hours after the child is taken into custody to determine whether temporary custody should be continued. Id. § 26-7A-15. The parties describe this proceeding as the "48-hour hearing." South Dakota circuit courts have original jurisdiction over these proceedings. Id. § 26-7A-2.

Under South Dakota law, at the 48-hour hearing, "the court shall consider the evidence of the need for continued temporary custody of the child in keeping with the best interests of the child." Id. § 26-7A-18. The 48-hour hearings are "conducted under rules prescribed by the court," and neither the rules of civil procedure nor the rules of evidence apply. Id. § 26-7A-56. "The rules may be designed by the court to inform the court fully of the exact status of the child and to ascertain the history, environment, and the past and present physical, mental, and moral condition of the child and the child’s parents, guardian, and custodian." Id.

At the conclusion of a 48-hour hearing, the court may order release of the child to his or her family or continued custody "under the terms and conditions for duration and placement that the court requires." Id. § 26-7A-19. If the court orders a child to remain in state custody after the 48-hour hearing, but has not determined that the child is abused or neglected, then South Dakota requires the court to "review the child’s temporary custody placement at least once every sixty days." Id. § 26-7A-19(2).

The plaintiffs in this case are two Indian Tribes—the Oglala Sioux Tribe and the Rosebud Sioux Tribe—and a class of individual plaintiffs represented by Madonna Pappan and Lisa Young. In their complaint, the plaintiffs alleged that the defendants violated the Due Process Clause of the Fourteenth Amendment and the ICWA by denying Indian parents a meaningful post-deprivation hearing after their children were taken into temporary state custody. The defendant officials are the Secretary of the South Dakota Department of Social Services and the head of Child Protective Services for Pennington County (together, "the DSS Defendants"), the State’s Attorney for Pennington County, and the presiding judge of the Seventh Judicial Circuit Court of the State of South Dakota, all in their official capacities.

The Tribes assert standing under the parens patriae doctrine, alleging that they seek "to vindicate rights afforded to their members." They claim "a close affiliation, indeed kinship, with respect to the rights and interests at stake in this litigation." They further allege that "[t]he future and well-being of the Tribes is inextricably linked to the health, welfare, and family integrity of their members." The Tribes also seek to vindicate their own rights under the ICWA.

The named individual plaintiffs, Pappan and Young, both reside in Pennington County and are members of the Oglala Sioux Tribe and the Standing Rock Sioux Tribe, respectively. They claim that they "are not seeking to interfere with, or overturn decisions in, their own cases but rather are seeking to expose and challenge systemic policies, practices, and customs of the Defendants that violate federal law." Both Pappan and Young have two children who were previously taken into State custody under allegations of abuse or neglect. The children remained in State custody for months before returning home. According to the complaint, both mothers "suffered, and watched their children suffer, extreme emotional and psychological trauma as a result of this forced separation." Pappan and Young brought their claims on behalf of themselves and "all other members of federally recognized Indian tribes who reside in Pennington County, South Dakota and who, like the plaintiffs, are parents or custodians of Indian children." The district court certified a class.

The plaintiffs alleged that it was "[t]he policy, practice, and custom of the Defendants ... to wait at least sixty days (and more often ninety days) before providing parents whose children have been removed from their custody with adequate notice, an opportunity to present evidence on their behalf, an opportunity to contest the allegations, and a written decision based on competent evidence." They asserted that the 48-hour hearings did not provide these protections. So they sought declaratory and...

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