In re People, 28548
| Decision Date | 17 April 2019 |
| Docket Number | 28548 |
| Parties | The PEOPLE of the State of South Dakota IN the INTEREST OF E.T., Child, and Concerning, A.T. and J.H., Respondents, Oglala Sioux Tribe, Intervenor. |
| Court | South Dakota Supreme Court |
CASSIDY M. STALLEY, Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, South Dakota, Attorneys for child E.T. and appellant.
DANA L. HANNA, Rapid City, South Dakota, Attorney for intervenor and appellee.
[¶1.] This is an appeal from a final dispositional order transferring jurisdiction of an abuse and neglect proceeding to tribal court. Counsel for the child maintains the circuit court abused its discretion when it granted the motion to transfer because the court improperly refused expert-witness testimony at the transfer hearing, the proceeding was at an advanced stage, and the court erroneously determined the father’s objection to the transfer was untimely. We reverse and remand for the purpose of conducting an evidentiary hearing.
[¶2.] On September 1, 2016, one day after her birth, law enforcement removed E.T. (Child) from A.T.’s (Mother) care after both Child and Mother tested positive for the presence of methamphetamine in their systems. Having reason to know Child and Mother were affiliated with the Oglala Sioux Tribe (the Tribe), the Department of Social Services (DSS) notified the Tribe of Child’s removal pursuant to the provisions of the Indian Child Welfare Act (ICWA). The Tribe intervened at the initial "48-hour" emergency-custody hearing and received timely notice of all additional filings. In a September 28, 2016 petition, the State alleged that Child was abused or neglected.
[¶3.] DSS initially placed Child into foster care. However, after Mother completed an outpatient-treatment program, DSS placed Child with Mother on an in-home safety plan on January 5, 2017. But the reunification was short-lived. Mother was arrested on January 13, 2017, for missing a urinalysis required in connection with a pending criminal case, and Child was placed back into foster care.
[¶4.] Despite the setback, Mother continued to work with DSS. She obtained part-time employment, completed a parenting class, submitted to twice-weekly urinalysis testing and daily PBTs, and consistently participated in weekly visitation with Child. Mother also earned enough money to pay her child support arrears regarding a different child, allowing her to be freed of her work release requirement and to have her ankle monitor removed.1 Mother was doing so well, in fact, that at an August 9, 2017 review hearing, the circuit court instructed DSS to begin working on another in-home safety plan so Child could be returned to Mother’s care.
[¶5.] Before a plan could be finalized, however, Mother was arrested on August 26, 2017. She was driving while intoxicated, struck another vehicle, and then fled the scene. The circuit court granted Mother bond on these charges, but she was taken into custody again on September 14, 2017, for a 24/7 sobriety program violation. At a review hearing held October 4, 2017, the State and Child’s counsel requested the matter be set for a final dispositional hearing. The State served notice of the final dispositional hearing on the Tribe on October 6, 2017.
[¶6.] At the outset of what was to have been the final dispositional hearing on November 27, 2017, before any argument or evidence was presented, the Tribe orally moved to transfer the abuse and neglect case to tribal court. Child’s counsel resisted the motion, arguing the transfer request came at an advanced stage of the case and was contrary to Child’s best interests.
[¶7.] The circuit court suspended the final dispositional hearing and held a transfer hearing on January 4, 2018. To support the objection to the Tribe’s transfer request, Child’s counsel attempted to present expert medical testimony from Child’s pediatrician, Dr. David Whitney. The Tribe claimed it had insufficient notice of the substance of Dr. Whitney’s expert opinions and requested an offer of proof. Child’s counsel obliged and offered the following:
[¶8.] In response, the Tribe objected to the entirety of Dr. Whitney’s proposed testimony,2 arguing bonding between Child and the foster parents was not an appropriate factor to consider when determining a motion to transfer. The circuit court sustained the Tribe’s objection and excluded Dr. Whitney’s expert opinions. The court noted that bonding "in and of itself" did not constitute good cause to deny transfer, but it also recognized that the best interests of the child is a relevant factor to consider. The court, nevertheless, determined Dr. Whitney’s testimony would be irrelevant, reasoning the testimony could be useful only to establish an accepted and unremarkable general proposition that a delay in seeking transfer can impact a child’s best interests. The circuit court received no other testimony or exhibits. It took the motion to transfer under advisement to determine if good cause existed to deny the motion, given the Child’s argument that the proceeding was at an advanced stage.
[¶9.] After receiving post-hearing briefing from Child’s counsel, the circuit court entered findings of fact and conclusions of law on February 21, 2018. The court ultimately determined the proceeding was not at an advanced stage because no argument or evidence was presented at the final dispositional hearing before the Tribe made its motion to transfer.
[¶10.] On February 22, 2018, one day after the circuit court’s findings and conclusions were entered, but before a final order was entered, J.H. (Father) objected to the transfer through his counsel. The circuit court entered a final order on March 1, 2018, granting the Tribe’s motion to transfer. On March 20, 2018, the court entered an order denying Father’s objection to the transfer because it was not in proper form3 and because it was untimely. Child’s counsel filed an application for special relief, requesting this Court to enter a stay in the matter pending appeal. We granted the application and stayed the circuit court’s transfer order.
[¶11.] Under the ICWA, state courts and tribal courts share concurrent jurisdiction over abuse and neglect cases involving Indian children who are not domiciled on reservations or wards of a tribal court. Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 36, 109 S. Ct. 1597, 1602, 104 L. Ed. 2d 29 (1989) (citing 25 U.S.C. § 1911(b) ). However, this shared jurisdiction is presumptively tribal. Id. As such, state courts must transfer, upon motion, foster-care-placement and termination-of-parental-rights proceedings to tribal court jurisdiction unless 1) either parent objects; 2) the tribal court declines jurisdiction; or 3) good cause to the contrary exists. Id.
[¶12.] If a party objects to the transfer on the grounds that good cause to the contrary exists, all parties must be given the "opportunity to provide the court with views regarding whether good cause to deny transfer exists." 25 C.F.R. § 23.118. The admissibility of evidence regarding good cause is generally governed by the rules of evidence. We note, however, that the rules of evidence may be relaxed when considering the disposition of juvenile matters, which includes the transfer of jurisdiction to a tribal court. See SDCL 26-7A-56. "Questions of the relevance of proffered testimony are committed to the discretion of the trial court and this court will not reverse its ruling absent an abuse of discretion." State v. Olson , 408 N.W.2d 748, 752 (S.D. 1987). "An abuse of discretion ‘is a fundamental error of judgment, a choice outside the range of permissible choices[.]’ " In re A.O. , 2017 S.D. 30, ¶ 8, 896 N.W.2d 652, 654 (quoting MacKaben v. MacKaben , 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622 ).
[¶13.] The statutory provisions of the ICWA do not define "good cause to the contrary." Historically, the Bureau of Indian Affairs (BIA) has issued guidelines for state courts to assist in determining the existence of good cause to deny a motion to transfer. Though they were not binding upon this Court, we have recognized that these guidelines, issued in 1979 and in 2015, were "given important but not controlling significance." In re A.L. , 442 N.W.2d 233, 236 (S.D. 1989) (quoting Batterton v. Francis , 432 U.S. 416, 424–25, 97 S. Ct. 2399, 2405, 53 L. Ed. 2d 448, 456 (1977) ).
[¶14.] In 2016, however, the BIA undertook formal rule-making and promulgated binding regulations which address, among other things, motions to transfer ICWA cases to tribal jurisdiction. See 25 C.F.R. § 23.115, et seq. The BIA subsequently issued its corresponding 2016 guidelines that expressly "replace the 1979 and 2015 versions of the Department’s guidelines." Guidelines for Implementing...
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