In Interest of DM

• Decision Date: 28 July 2004
• Docket Number: No. 23060-a-RWS,23060-a-RWS
• Citation: 2004 SD 90,685 NW 2d 768
• Parties: IN THE INTEREST OF D.M., R.M. III, and T.B.C., Minor Children, and concerning R.M., Jr., and S.C.B.C.-M., Respondents and Appellants. IN THE INTEREST OF B.B.C., Minor Child, and concerning L.P.L., Respondent, and S.C.B.C.-M., Respondent and Appellant.
• Court: South Dakota Supreme Court

2004 SD 90

685 NW 2d 768

IN THE INTEREST OF D.M., R.M. III, and T.B.C., Minor Children, and concerning R.M., Jr., and S.C.B.C.-M., Respondents and Appellants.

IN THE INTEREST OF B.B.C., Minor Child, and concerning L.P.L., Respondent, and

S.C.B.C.-M., Respondent and Appellant.

No. 23060-a-RWS

Supreme Court of South Dakota.

Considered on briefs on June 01, 2004

Opinion Filed July 28, 2004

PATRICK M. GINSBACH of Farrell, Farrell and Ginsbach, Hot Springs, South Dakota, Attorneys for appellant, Mother S.C.B.C.-M.

LYNN A. MORAN, Custer, South Dakota, Attorney for appellant, Father R.M., Jr.

LAWRENCE E. LONG, Attorney General, ANN M. HOLZHAUSER, Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for appellee, State.

SABERS, Justice.

[¶ 1.] Parents appeal the trial court's determination that there was good cause to deny the Rosebud Sioux Tribe's (Tribe) motion to transfer termination proceedings under the Indian Child Welfare Act (ICWA). 25 USC § 1912(b). We affirm.

FACTS

[¶ 2.] This case is before the Court for the third time. The first time was in 2003, when Parents appealed an order terminating their parental rights.¹ Mother is an enrolled member of the Rosebud Sioux Tribe and children in this case fall within the provisions of ICWA. In their first appeal, Parents argued in relevant part that the trial court erred in denying the Tribe's motion to transfer jurisdiction. The trial court denied the motion to transfer in the first instance because the Tribe failed to file a motion to transfer until a month after the dispositional proceedings were commenced and over a year after the Tribe's initial motion to intervene. At a hearing shortly after receipt of the Tribe's motion to transfer, the trial court informed the parties that it would consider the motion to transfer at a later hearing and directed the parties to prepare memoranda on the issue. At the subsequent hearing, the trial court held, without taking evidence or hearing arguments, that the proceedings were at an advanced stage when the motion was filed and therefore good cause existed to deny the transfer. After noting that "the parties were presented with an opportunity to argue their positions on this issue to the trial court" and "[t]here [was] nothing in the record to indicate that any further evidentiary hearings were even requested," we affirmed the trial court's determination. D.M.I, 2003 SD 49 at ¶16, 661 NW2d at 773.

[¶ 3.] Parents petitioned for rehearing, arguing that our decision failed to address the issue whether the Tribe was properly notified of the dispositional hearing and whether a hearing should have been held concerning the petition to transfer. Parents further asserted that the Tribe was not permitted an opportunity to present witnesses or introduce evidence on the issue and that only the Tribe would be able to offer any evidence regarding why it delayed in filing its petition to transfer. We granted the petition for rehearing on limited grounds and entered an order remanding the matter to the trial court for the "limited purposes of holding a hearing, and for reconsideration of, the motion to transfer to tribal court, with instructions to effectuate proper notice to the Indian Tribe of the hearing to be scheduled on the motion to transfer." In re DM, 2003 SD 49, 665 NW2d 83, 84 (D.M. II). Our per curiam opinion was issued but it was stayed "until further consideration by this Court pending a final determination by the trial court on remand." Id.

[¶ 4.] The transfer hearing was held on August 28, 2003. The State, the Department of Social Services (DSS), Mother, Tribe, through its counsel, and Father, through his counsel, appeared at the hearing. Parents and the attorney for the children submitted proposed findings of fact and conclusions of law. The court adopted those submitted by the attorney for the children and on October 30, 2003, entered an order denying the Tribe's petition to transfer the proceedings to tribal court. Parents appeal, arguing the trial court erred in finding good cause to deny the petition for transfer.

STANDARD OF REVIEW

[¶ 5.] We review a trial court's findings of fact for clear error. People in interest of K.C., 414 NW2d 616, 619-20 (SD 1987) (citation omitted). Denial of a motion to transfer jurisdiction under 25 USC § 1911(b) is reviewed under the abuse of discretion standard. People in re S.G.V.E., 2001 SD 105, ¶28, 634 NW2d 88, 93.

[¶ 6.] WHETHER THE TRIAL COURT ERRED IN FINDING DELAY AS GOOD CAUSE TO DENY TRIBE'S PETITION FOR TRANSFER PURSUANT TO THE INDIAN CHILD WELFARE ACT.

[¶ 7.] The Tribe was notified that the State was proceeding in an abuse and neglect action against Parents with regard to three of the children in early January 2001. The notice informed the Tribe that it had a right to intervene and request an additional 20 days to prepare, that the Tribe had the right to petition the court for transfer, and the date of the hearing. The Tribe filed a notice of intervention on March 7, 2001. The parties' fourth child came into Mother's custody after the first three children were removed. Upon Mother's refusal to take the child back to his grandfather's home, DSS removed the child. An abuse and neglect petition was filed with regard to the fourth child on July 17, 2001. The Tribe's motion to intervene was filed on August 9, 2001, and was granted on August 10, 2001. The children were adjudicated abused and neglected on October 26, 2001, nunc pro tunc June 22, 2001. DSS began efforts to conduct home studies on family members for potential placement.

[¶ 8.] In November 2001, the State sent a letter to the Tribe that indicated that since Parents were currently cooperating with the reunification plan, it did not intend to seek termination and that a hearing scheduled for late November would be a permanency, rather than a termination hearing.² Testimony elicited from the Tribe's ICWA specialist indicated that she was in regular contact with DSS regarding the children and DSS' efforts at reunification. When reunification efforts proved futile, State pursued termination of parental rights. The ICWA specialist was notified shortly thereafter.

[¶ 9.] A dispositional hearing was set for and held on June 28, 2002 and continued on July 12, July 31 and August 9, 2002. The Tribe filed its motion to transfer on July 29, 2002.

[¶ 10.] In cases implicating ICWA wherein a tribe, a parent or Indian custodian requests transfer of the case to Tribal court, the State court must transfer the case unless a parent objects or there is "good cause to the contrary." 25 USC § 1911(b). The Bureau of Indian Affairs (BIA) Guidelines for ICWA suggest several criteria for determining whether there is good cause to deny transfer. Good cause for denying transfer may occur where:

1. the proceeding is at an advanced stage when the petition to transfer is received and the petition is not promptly filed after receipt of notice;

2. the Indian child is over the age of twelve and objects to the transfer;

3. evidence necessary to decide the case cannot be adequately presented to the tribal court without undue hardship to witnesses and parties;

4. the parents of an Indian child over the age of five are not available and the child has had little or no contact with the child's tribe or members of the child's tribe.

In re J.L., 2002 SD 144, ¶12, 654 NW2d 786, 790 (citing Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg 67.586, ¶C.3(b)). We have noted, "[c]ase law also suggests that `good cause to the contrary' includes the absence of a tribal mechanism for handling child custody matters." Id. The burden of establishing good cause is on the party opposing transfer. Id.

[¶ 11.] Parents argue that the trial court abused its discretion in finding good cause to deny transfer because the Tribe did not receive formal notice of the dispositional hearing.

[¶ 12.] 25 USC § 1912(a) provides in part:

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. [] No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, that the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.

In S.G.V.E., 2001 SD 105 at ¶28, 634 NW2d at 93, we affirmed a trial court's finding of good cause when the Tribe failed to make a timely motion to transfer. In that case, the Tribe was notified by certified mail that an abuse and neglect petition had been filed. The Tribe also received and signed for notices regarding subsequent hearings in the matter. The Tribe did not move to transfer the case until after termination of the mother's parental rights. We held that there was no abuse of discretion in the trial court's determination that there was good cause to deny the transfer because of the advanced stage of the proceedings at the time the Tribe filed its motion. Id. We have cited with approval a case which held that there was no abuse of discretion in denying transfer when the motion was made six months after the Tribe received notice, which was on the first morning of the dispositional hearing. S.V.G.E, 2001 SD 105 at ¶27, 634 NW2d at 93 (citing In re Wayne R.N., 107 NM 342, 757 P2d 1333 (1988)).

[¶ 13.] We have also held that substantial compliance with notice requirements and actual notice to the Tribe of proceedings is sufficient under the statute. In re A.L., 442 NW2d 233, 236 (SD 1989).

[¶ 14.] The Tribe's ICWA...