In re People
| Decision Date | 20 November 2018 |
| Docket Number | 28545 |
| Parties | The PEOPLE of the State of South Dakota IN the INTEREST OF M.D., K.D., R.T.A., M.E.S. and M.C., Minor Children and Concerning T.C., C.D., M.E.S. and S.T.A., Respondents and Rosebud Sioux Tribe and Cheyenne River Sioux Tribe, Intervenors. |
| Court | South Dakota Supreme Court |
MARTY J. JACKLEY, Attorney General, LAURA RINGLING, Special Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for petitioner and appellee State of South Dakota.
RICHARD L. JOHNSON, Sioux Falls, South Dakota, Attorney for respondent and appellant S.T.A.
[¶ 1.] S.T.A. (father) appeals a dispositional order terminating his parental rights over R.T.A. (child), his four-year-old son. We affirm.
[¶ 2.] T.C. (mother) is twenty-five years old and is an enrolled member of the Cheyenne River Sioux Tribe. At the time this matter began in 2016, mother had four children by three different fathers. Mother’s two older children were four-year-old twins. Mother’s third child, the subject of this case, was about two. Her fourth child was around a year old. Mother was unemployed, homeless, and moved around with her family and occasional boyfriends between Huron, Mitchell, and Eagle Butte. Mother and the family lived in government-assisted housing, roomed with friends, and moved in with mother’s mother in Eagle Butte for a time. Eventually, the family stayed with the sister of one of mother’s boyfriends in Sioux Falls.
[¶ 3.] Mother’s fifth child was born on November 11, 2016 in Sioux Falls. Mother’s cord screening was positive for THC, amphetamine, and methamphetamine and the matter was reported to the South Dakota Department of Social Services (DSS). Mother admitted to DSS and law enforcement that she was smoking methamphetamine the day before the child’s birth.
[¶ 4.] Mother’s four older children, including child, were still staying with mother’s boyfriend’s sister. Law enforcement visited the sister’s residence and removed the children from her care. The sister initially refused the officers entry into her home, but ultimately brought the children out to them. The children were poorly dressed and filthy. All five of the children were eventually placed into DSS custody due to mother’s drug use and the lack of appropriate caretakers for them.
[¶ 5.] A petition alleging abuse and neglect of the children was filed on November 23, 2016. Because of the children’s Native American heritage, notice was provided to the Rosebud Sioux Tribe and to the Cheyenne River Sioux Tribe pursuant to the Indian Child Welfare Act (ICWA).1 Both tribes filed motions to intervene that were granted by the trial court. DSS remained in contact with the tribes and provided them with documentation and updates throughout the remainder of the case.
[¶ 6.] After removal of the children, mother began to go through the steps of a case plan requiring chemical dependency evaluations, treatment, urinalyses, and establishment of stable housing. DSS initially had difficulty contacting any of the children’s fathers.
[¶ 7.] DSS made contact with father in December 2016. Father was on probation for simple assault and escape offenses and was working in Pierre. When DSS asked father about visiting child, he told the worker that he would get back to her. When the worker offered to bring child to Pierre to visit, father replied that it was unnecessary because he would be moving to Sioux Falls and could see child then. DSS did not hear from father again for about three months.
[¶ 8.] The children were adjudicated abused and neglected as to both parents in early 2017. Father did not appear for his adjudicatory hearing. In June 2017, DSS learned of father’s incarceration in the Minnehaha County Jail on a probation violation for noncompliance with 24/7 monitoring. DSS routinely met with father while he was incarcerated to update him on child and to inform him of the services available to him in jail. DSS also arranged visitations with child. Father indicated that he was completing chemical dependency treatment at the jail. Meanwhile, mother completed outpatient treatment, relapsed, and failed to begin aftercare as recommended. Mother continued to struggle with methamphetamine and marijuana use throughout the duration of the case and never did establish stable housing.
[¶ 9.] In October 2017, Father received a four-year sentence on his probation violation and was returned to the penitentiary. In addition, federal charges were pending against him for arson and third-degree burglary on the Cheyenne River Sioux Reservation. The dispositional hearing was set for that October but was continued by stipulation of the parties until January 2018. Father’s return to the penitentiary led to missed visitations with child until father completed paperwork necessary to resume visitations shortly before the dispositional hearing.
[¶ 10.] The dispositional hearing took place on January 11 and 12, 2018. Mother appeared for the start of the hearing but left after lunch and did not appear for the remainder of the proceedings. Mother was represented by appointed counsel throughout the hearing. Father appeared personally and by appointed counsel. Appointed counsel also appeared for the children. The Rosebud Sioux Tribe appeared and participated by telephone through its agent. Despite proper notice, the Cheyenne River Sioux Tribe did not participate in the dispositional hearing. The hearing included testimony by a qualified ICWA expert.
[¶ 11.] The trial court rendered an oral decision on January 17, 2018, that was later incorporated by reference in its findings of fact and conclusions of law. The court found that, despite the provision of numerous services to mother and father, mother’s drug use, homelessness, and lack of resources to meet the children’s needs persisted. The court further found that father failed to act as a caregiver to child in any meaningful way. The court went on to conclude that: the parents’ continued custody of the children would likely result in serious emotional or physical damage to them; active efforts were made to prevent the breakup of the family, but were unsuccessful; and termination of all parental rights was the least restrictive alternative in the children’s best interests. The court filed its findings of fact, conclusions of law, and dispositional order terminating all parental rights on January 31.2 Father appeals.
[¶ 12.] Whether the trial court erred in terminating father’s parental rights because DSS failed to make active efforts to prevent the breakup of the Indian family.
[¶ 13.] Termination of parental rights in an ICWA case requires a showing of "active efforts ... to prevent the breakup of the Indian family[.]" People ex rel.J.S.B., Jr ., 2005 S.D. 3, ¶ 15, 691 N.W.2d 611, 617 (quoting 25 U.S.C. § 1912(d) (1978) ). Active efforts must be proven "beyond a reasonable doubt." People ex. rel. S.H.E. , 2012 S.D. 88, ¶ 19, 824 N.W.2d 420, 426 (quoting People ex rel. J.I.H. , 2009 S.D. 52, ¶ 17, 768 N.W.2d 168, 172 ). "[W]hether active efforts were provided ... is a mixed question of law and fact subject to de novo review" by this Court. Id . ¶ 18, 824 N.W.2d at 425 (quoting People ex rel. P.S.E. , 2012 S.D. 49, ¶ 15, 816 N.W.2d 110, 115 ).
[¶ 14.] Father argues that active efforts were not provided because DSS did not make active efforts to place child with his Native American family on the Cheyenne River Reservation. Instead, after removing the children from mother’s care, DSS placed them in non-Native American foster care in the Sioux Falls area where they remained for the duration of the case.3 Father argues that this violated ICWA placement preferences4 set forth as follows:
25 U.S.C. § 1915(b) (2012).5
[¶ 15.] In support of his argument, father relies primarily on In re Welfare of M.S.S ., 465 N.W.2d 412 (Minn. Ct. App. 1991). In that case, the Minnesota Court of Appeals held that active efforts were not proven beyond a reasonable doubt where a father’s proposal to place his child permanently with his Native American brother and sister-in-law was not considered by the trial court before it terminated his parental rights.6 However, the Minnesota court distinguished M.S.S. in In re Welfare of Children of J.B., 698 N.W.2d 160, 170 (Minn. Ct. App. 2005), noting that it reversed and remanded the termination of parental rights in M.S.S. "where the proposed custodians were not identified until after the trial started, but were specific members of the child’s tribe who were licensed foster parents and recommended to be custodians by the child’s tribe. " (Emphasis added). In contrast, the court observed that the proposed custodian in J.B . "was found not credible, other proposed custodians were not identified, and the child’s tribe did not endorse the placement [the] father proposed." Id .7
[¶ 16.] This case is more like J.B. than M.S.S . in terms of credibility issues, failure to identify...
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