Chester County Dept. of Social Services v. Coleman

• Decision Date: 01 January 1978
• Citation: 372 S.E.2d 912,296 S.C. 355
• Court: South Carolina Court of Appeals
• Parties: CHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner-Respondent, v. Joe L. COLEMAN, Phyllis Coleman, and Dorothy Clark, Indian Child Welfare Coordinator of the Cheyenne River Sioux Juvenile Court, Respondents. In re Billie Jo MORRISON, DOB:

Page 912

372 S.E.2d 912

296 S.C. 355

CHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner-Respondent, v. Joe L. COLEMAN, Phyllis Coleman, and Dorothy Clark, Indian Child Welfare Coordinator of the Cheyenne River Sioux Juvenile Court, Respondents In re Billie Jo MORRISON, DOB: 1-1-78, Tara Morrison, DOB 5-9-79, Jacqueline Coleman, DOB: 10-26-81, Heather Coleman DOB: 1-31-83, all minor children under the age of Eighteen (18) years, of whom Billie Jo Morrison, Tara Morrison Jacqueline Coleman and Heather Coleman, by and through their duly appointed Guardian Ad Litem, Richard M. Steele are Appellants.

No. 1219.

Court of Appeals of South Carolina.

Heard April 13, 1988.

Decided Sept. 26, 1988.

Robert Marshall Jones, Rock Hill, for appellants.

Claude S. Coleman, Chester, for petitioner-respondent.

Tee Ferguson, Spartanburg, Bruce R. Greene and Elizabeth Meyer, Boulder, Colo., and George M. Hearn, Jr., Conway, for respondents.

PER CURIAM:

This appeal arises from a child placement proceeding. It involves the application of the federal Indian Child Welfare Act. ¹

Billie Jo Morrison, Tara Morrison, Jacqueline Coleman, and Heather Coleman are the minor children of Joe and Phyllis Coleman. Phyllis and her daughters are enrolled members of the Cheyenne River Sioux Tribe in South Dakota. Billie Jo and Tara are her daughters by a previous marriage. Jacqueline and Heather are her daughters by Joe Coleman, her present husband. Mr. Coleman is a retired military man. He is a black man, not an Indian.

In November, 1983, the Chester County Department of Social Services commenced an action to remove the children from the Coleman home and transfer their custody to the Department. After a removal hearing, the court found that Billie Jo and Tara had been physically abused, and that Jacqueline and Heather were threatened with substantial harm if allowed to remain in their parents' custody. The court ordered the children to remain in custody of the Department of Social Services. In May, 1984, the Department filed a petition to return the children to their parents. Subsequently, the Department amended that petition to allege the children had been physically and sexually abused by their parents. After a hearing, the court found that the children had been sexually abused and ordered them to be placed with the corresponding Department of Social Services in South Dakota. On an appeal from that order, the Supreme Court remanded the case to the family court to determine the proper placement of the children.

The parties to the placement hearing were the Department; the parents; the children, represented by their guardian ad litem, Cindy Hord; Bob and Stella Redwine, the foster parents of the children; and Dorothy Clark, as the Indian Child Welfare Coordinator of the Cheyenne River Sioux, and also as the representative of the Cheyenne River Sioux Tribe. Clark took the position, on behalf of herself and the tribe, that the children's placement is controlled by the Indian Child Welfare Act, which requires the South Carolina court to transfer the case to the jurisdiction of the Cheyenne River Sioux Juvenile Court, sitting in South Dakota. The family court agreed and ordered custody and jurisdiction to be transferred to the tribal court. The children appeal that ruling. We reverse and remand.

When Congress enacted the Indian Child Welfare Act, it had two main goals: (1) protecting the best interests of Indian children, and (2) promoting the stability and security of Indian tribes and families. To achieve these objectives, the Act sets minimum federal standards for child placement proceedings in order to prevent the unwarranted separation of Indian children from family and tribal heritage. The Act is based on the assumption that protection of the Indian child's relationship to the tribe is in the child's best interest. 25 U.S.C. Section 1902; A.B.M. v. M.H. & A. H., 651 P.2d 1170 (Alaska 1982) cert. denied sub nom. Hunter v. Maxie, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983); In re Adoption of K.L.R.F., 356 Pa.Super. 555, 515 A.2d 33 (1986) appeal dismissed, 516 Pa. 520, 533 A.2d 708 (1987).

Under the Act, if the tribe or either parent of an Indian child petitions for transfer of the proceeding to the tribal court, the state court cannot proceed with the placement of an Indian child living outside a reservation, without first determining whether jurisdiction of the matter should be transferred to the tribe. 25 U.S.C. Section 1911(b). The statute provides:

In any State court proceeding for the foster care placement of ... an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon petition of either parent ... or the Indian child's tribe....

25 U.S.C. Section 1911(b). In other words, transfer to the jurisdiction of the tribe is mandatory in the absence of good cause to the contrary.

The phrase "good cause to the contrary" is not defined in the Act itself. However, the legislative history of the statute states that the use of the term "good cause" was designed to provide ...