N.A.H., Matter of

Decision Date04 September 1987
Docket NumberNo. 15750,15750
PartiesIn the Matter of the Dependency and Neglect of N.A.H. and K.A.H., and Concerning Their Parents M.A.H. and R.W. . Considered on Briefs
CourtSouth Dakota Supreme Court

Mark F. Marshall of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for M.A.H.

Portia K. Brown of Morrill & Brown, Rapid City, for N.A.H. and K.A.H.

Roger A. Tellinghuisen, Atty. Gen., and Janice Godtland, Asst. Atty. Gen., Pierre, for appellee, State of S.D.

PER CURIAM.

M.A.H. (Mother) appeals from a dispositional order which terminated her parental rights and those of R.W. (Father) to their daughters, N.A.H. and K.A.H. Father has not appealed. We reverse.

Mother is an enrolled member of the Oglala Sioux Tribe and Father is apparently affiliated with the Crow Tribe of Montana. N.A.H. and K.A.H. are Indian children entitled to the benefits and protections of the Indian Child Welfare Act. (ICWA) 25 U.S.C. Secs. 1901-1963. On appeal, Mother argues that the state failed to prove its case beyond a reasonable doubt, as required by ICWA. However, we need not address Mother's issue, since the trial court did not have jurisdiction to terminate her parental rights.

The ICWA requires that in any involuntary proceedings in a state court, "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 child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention ..." 25 U.S.C. Sec. 1912(a). We have consistently ruled that the provisions of the ICWA must be complied with in Indian child custody proceedings. Matter of K.A.B.E., 325 N.W.2d 840 (S.D.1982); People in Interest of C.R.M., 307 N.W.2d 131 (S.D.1981).

Here, neither the Oglala Sioux Tribe nor the Crow Tribe received proper notice of the dispositional hearing. Although the notice sent to the Oglala Tribe indicated that Mother's parental rights could be terminated, it did not inform the tribe of its right to intervene in the case. The record is also devoid of any evidence showing that notice to the Oglala Tribe of the dispositional hearing was sent by registered mail with return receipt requested. The Crow Tribe did not receive any notice of the dispositional hearing in this case.

The ICWA is primarily a jurisdictional statute, 1978 U.S.Code Cong. & Admin.News 7530, 7541; J. McCahey, Child Custody & Visitation Law and Practice, Sec. 29.03 (1987); and this court must examine jurisdictional questions whether presented by the parties or...

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27 cases
  • M.C.P., In re, 87-074
    • United States
    • United States State Supreme Court of Vermont
    • December 8, 1989
    ...1609 n. 26. The courts that have considered notice issues have, however, followed the recommended procedures. See, e.g., In re N.A.H., 418 N.W.2d 310, 311 (S.D.1988) (better practice is to follow BIA guidelines); In re Colnar, 52 Wash.App. 37, 39, 757 P.2d 534, 536 (1988) (follows guideline......
  • In re Antoinette S., G030583.
    • United States
    • California Court of Appeals
    • December 31, 2002
    ...(Samuel P.) [same, citing Desiree F. and Jonathan D.]. At least one out-of-state court has taken a similar view. In Matter of N.A.H. (S.D.1988) 418 N.W.2d 310, 311 (N.A.H.), the South Dakota Supreme Court declared inadequate notice the ICWA "divests the trial court of jurisdiction to termin......
  • Adoption of Infant Boy Crews, Matter of, 25169-4-I
    • United States
    • Court of Appeals of Washington
    • January 14, 1991
    ...e.g., Mississippi Band of Choctaw Indians, 109 S.Ct. at 1609 n. 26; In re M.C.P., 571 A.2d 627, 633 (Vt.1989); Matter of N.A.H. and K.A.H., 418 N.W.2d 310, 311 (S.D.1988); In Interest of H.D., 11 Kan.App.2d 531, 729 P.2d 1234, 1236-38 (1986); In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rp......
  • People ex rel. M.V.
    • United States
    • Court of Appeals of Colorado
    • November 15, 2018
    ...notice to the appropriate tribes divested the trial court of jurisdiction to terminate parental rights to Indian children. In re N.A.H. , 418 N.W.2d 310, 311 (S.D. 1988). Similarly, the fifth district of the California Courts of Appeal recognized that state courts have no subject matter jur......
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