Nygaard v. Taylor

• Decision Date: 24 September 2021
• Docket Number: 3:19-CV-03016-RAL
• Citation: 563 F.Supp.3d 992
• Parties: Aarin NYGAARD, and Terrance Stanley, Plaintiffs, v. Tricia TAYLOR, Ted Taylor, Jr., Jessica Ducheneaux, Ed Ducheneaux, Cheyenne River Sioux Tribal Court, Brenda Claymore, in Her Official Capacity as Chief Judge, Cheyenne River Sioux Tribal Court of Appeals; Frank Pommersheim, in His Official Capacity as Chief Justice; the South Dakota Department of Social Services, Todd Waldo, in His Official Capacity as Social Worker; and Jenny Farlee, in Her Offical Capacity as Social Worker, Defendants.
• Court: U.S. District Court — District of South Dakota

563 F.Supp.3d 992

Aarin NYGAARD, and Terrance Stanley, Plaintiffs,

v.Tricia TAYLOR, Ted Taylor, Jr., Jessica Ducheneaux, Ed Ducheneaux, Cheyenne River Sioux Tribal Court, Brenda Claymore, in Her Official Capacity as Chief Judge, Cheyenne River Sioux Tribal Court of Appeals; Frank Pommersheim, in His Official Capacity as Chief Justice; the South Dakota Department of Social Services, Todd Waldo, in His Official Capacity as Social Worker; and Jenny Farlee, in Her Offical Capacity as Social Worker, Defendants.

3:19-CV-03016-RAL

United States District Court, D. South Dakota, Central Division.

Signed September 24, 2021

Martin J. Jackley, Stacy R. Hegge, Gunderson, Palmer, Nelson & Ashmore, LLP, Pierre, SD, Sarah A. Aaberg, Pro Hac Vice, Tracy J. Lyson, Pro Hac Vice, O'Keeffe, O'Brien, Lyson & Foss, Ltd., Fargo, ND, for Plaintiffs.

Steven J. Gunn, Steven J. Gunn, Attorney at Law, St. Louis, MO, for Defendants Cheyenne River Sioux Tribal Court, Brenda Claymore, Frank Pommersheim, Cheyenne River Sioux Tribal Court of Appeals.

OPINION AND ORDER DENYING MOTION TO DISMISS

ROBERTO A. LANGE, CHIEF JUDGE

Aarin Nygaard and Terrance Stanley filed a petition for writ of habeas corpus under 25 U.S.C. § 1303 against numerous defendants including the Cheyenne River Sioux Tribal Court, Chief Judge of the Cheyenne River Sioux Tribal Court Brenda Claymore, the Cheyenne River Sioux Tribal Court of Appeals, and Chief Justice of the Cheyenne River Sioux Tribal Court of Appeals Frank Pommersheim (collectively referred to as the "Tribal Defendants").¹ Doc 8. In the petition, Nygaard and Stanley allege that the Tribal Defendants have violated the Due Process Clause of the United States Constitution and the Indian Civil Rights Act ("ICRA") in exercising jurisdiction in a custody matter involving Nygaard and Stanley's children. Doc. 8. The Tribal Defendants have filed a motion to dismiss the petition along with a memorandum in support thereof. Docs. 42, 43. Nygaard and Stanley have responded in opposition to the motion to dismiss, Doc. 48, and the Tribal Defendants have replied to that opposition, Doc. 54.

This Court held a hearing on the motion to dismiss on August 2, 2021. Doc. 61. Because the motion to dismiss presented a question of tribal exhaustion, this Court discussed with the parties at the hearing the merit of filing for this Court's review the entire Tribal Court record for the relevant cases.² The parties agreed that this Court could take judicial notice of those Tribal Court records and now does so under Federal Rule of Evidence 201. After reading the briefing by both parties, considering oral argument, and reviewing the Tribal Court records, this Court now denies the motion to dismiss for the reasons contained herein.

I. Facts

In ruling on the motion to dismiss, this Court draws the facts primarily from the amended petition, Doc. 8, and the attachments thereto, see Doc. 1, with reference to the Tribal Court records for facts related to issues of tribal court exhaustion. This Court of course is making no findings of fact when ruling on a motion to dismiss.

Nygaard is the father of C.S.N., and Stanley is the father of T.R.S. Doc. 8 at ¶¶ 24, 38. Tricia Taylor (Tricia)³ is the mother of both children and is an enrolled member of the Cheyenne River Sioux Tribe. Doc. 8 at ¶ 14. Custody of C.S.N and T.R.S. has been the subject of multiple court proceedings in both North Dakota courts and Tribal Court, dating back to early 2014.

A. 2014

The legal saga began in North Dakota state court with a custody dispute over C.S.N. Nygaard and Tricia were in a relationship, though they were never married. Doc. 8 at ¶ 24; Doc. 1-1 at 1. From that relationship came a child, C.S.N., who was born in 2013. Doc. 8 at ¶ 24. On March 28, 2014, Nygaard initiated a custody proceeding in the state district court for Cass County, North Dakota. Doc. 8 at ¶ 25; Doc. 1-1. Among other things, Nygaard requested that the court award him primary residential responsibility of C.S.N. Doc. 8 at ¶ 25; Doc. 1-1. Tricia filed an answer and counterclaim, requesting primary residential responsibility of C.S.N. Doc. 8 at ¶ 25; Doc. 1-2. Tricia then filed a motion for temporary relief asking the court to award her primary residential responsibility of C.S.N. while the custody proceeding was pending. Doc. 8 at ¶ 25; Doc. 1-3.

In early July 2014, Tricia petitioned for a temporary domestic violence restraining order against Nygaard.⁴ Doc. 8 at ¶ 26; Doc. 1-4. On July 22, 2014, Nygaard and Tricia took part in a mediation about a temporary custody agreement during the pendency of the case and to address Tricia's petition for a restraining order. Doc. 8 at ¶ 27. Nygaard and Tricia agreed to vacate Tricia's petition for a restraining order and replace it with a mutual no-contact order, and the North Dakota state court then vacated the petition for restraining order and entered the mutual no-contact order on that same day. Doc. 8 at ¶ 27; Doc. 1-5. Nygaard and Tricia also agreed that during the pendency of the custody proceeding, they would equally share decision-making and residential responsibility over C.S.N. Doc. 8 at ¶ 28; Doc. 1-6. As a part of that agreement, Nygaard and Tricia committed to give one another 24 hours advance notice if either party intended to travel out of state with C.S.N. Doc. 1-6 at ¶ 2. On July 25, 2014, the North Dakota state court entered an interim order to that effect. Doc. 8 at ¶ 28; Doc. 1-7.

The agreed-upon arrangement went awry on August 28, 2014. Doc. 8 at ¶ 29. Without giving advance notice to Nygaard or obtaining court approval, Tricia took C.S.N. to the Cheyenne River Indian Reservation in South Dakota. Doc. 8 at ¶ 29. Nygaard and Tricia had arranged to exchange C.S.N. on September 1, 2014, but Tricia failed to do so. Doc. 8 at ¶ 30.

Tricia on. September 2, 2014,⁵ filed a Petition for Domestic Violence Protection Order against Nygaard in Cheyenne River Sioux Tribal Court ("Tribal Court") and included in her petition a request for full custody of C.S.N. Doc. 64-1 (Taylor v. Nygaard, Case No. 14DV059)⁶ at 2–6: Doc. 8 at ¶ 30; Doc. 1-8. On that same day, the Tribal Court issued a Temporary Protection Order against Nygaard, setting a September 16 court hearing on the petition but not addressing custody of C.S.N. Doc. 64-1 at 7–12; Doc. 8 at ¶ 30; Doc. 1-9. On September 16, 2014, the Tribal Court held a hearing to determine whether the Temporary Protection Order should be made permanent. Doc. 1-10. Nygaard appeared with counsel, but Tricia failed to show, so the Tribal Court entered an Order of Dismissal.⁷ Doc. 64-1 at 12; Doc. 8 at ¶ 31; Doc. 1-10.

Meanwhile in North Dakota state court on September 9, 2014, Nygaard filed an application for an ex parte order and a motion asking the court to hold Tricia in contempt for failing to comply with the July 25 interim order. Doc. 8 at ¶ 32; Doc. 1-11; Doc. 1-12. On September 11, 2014, the North Dakota state court held a hearing on the motion; Tricia was not present and likely was unaware of the hearing. Doc. 8 at ¶ 32. The North Dakota state court on September 12, 2014, issued an ex parte order determining that Nygaard and C.S.N.’s home state was North Dakota, ordering Tricia to return C.S.N. to North Dakota and into the custody of Nygaard, and placing immediate temporary care, custody and control with Nygaard until the court ordered otherwise. Doc. 8 at ¶ 33: Doc. 1-13.

On September 24, 2014, Nygaard filed in Tribal Court a Petition to Enforce Foreign Judgment of Custody and Visitation, attaching the North Dakota court's September 12 ex parte order granting Nygaard full temporary custody and ordering Tricia to return C.S.N. Doc. 64-3 at 2–6 (Nygaard v. Taylor, Case No. 14C117); Doc. 8 at ¶ 34; Doc. 1-14. Tricia received service of the petition on or about October 8, 2014. Doc. 64-3 at 12. The Tribal Court set a hearing on the matter for November 5, 2014. Doc. 64-3 at 18; Doc. 1-14 at 12, 18. However, no hearing was held that day.

The North Dakota state court held a hearing on the ex parte order on October 2, 2014. Doc. 1-15. Tricia received notice of the hearing but failed to appear; Nygaard appeared at the hearing with counsel. Doc. 1-15. On October 3, 2014, the North Dakota state court entered an Amended Interim Order, once again determining that Nygaard and C.S.N.’s home state was North Dakota, awarding Nygaard temporary full residential responsibility, and ordering Tricia to return C.S.N. to North Dakota and into the custody of Nygaard. Doc. 8 at ¶ 35; Doc. 1-15. The court also found Tricia in contempt of court. Doc. 1-15. When Tricia still had not returned C.S.N. to North Dakota, the North Dakota court on October 20, 2014, issued a bench warrant for Tricia's arrest. Doc. 8 at ¶ 35; Doc. 1-16. The Cass County Attorney also brought criminal charges against Tricia for parental kidnapping, and a warrant for her arrest on those charges issued. Doc. 1-18; Doc. 1-19. Nygaard filed the Amended Interim Order, the Bench Warrant, and other North Dakota case materials in the Tribal Court case where he was seeking to enforce the North Dakota custody decision. Doc. 64-3 at 21–39. No activity occurred in the Tribal Court case of Nygaard v. Taylor, Case No. 14C117 between October of 2013 and the entry of Tribal Judge Erin Shanley's findings of fact and conclusions of law on April 18, 2018. Doc. 64-3 at 40–52; see Doc. 64-3 generally.

Stanley's efforts to obtain custody of T.R.S., the child that he and Tricia had together, began in North Dakota state court in July of 2014, separately from Nygaard's case, although Stanley and Nygaard later combined their efforts in Tribal Court. T.R.S. was born to Tricia and Stanley in 2007, the couple married in 2010 but divorced in 2011. Doc. 8 at ¶ 38. In 2012, Tricia filed an action in North Dakota state court for Cass County, seeking child support from Stanley, and the court entered a default judgment against Stanley ordering him to pay child support. Doc. 8 at ¶ 38; Doc. 1-22. At that point,...