Nygaard v. Taylor

• Decision Date: 11 May 2022
• Docket Number: 3:19-CV-03016-RAL
• Parties: Aarin NYGAARD, 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; The South Dakota Department of Social Services, Todd Waldo, in His Official Capacity as Social Worker; Jenny Farlee, in Her Offical Capacity as Social Worker; Cheyenne River Sioux Tribal Court of Appeals, Franklin Ducheneaux, Acting Chief Justice of Cheyenne River Sioux Tribal Court of Appeals in His Official Capacity, Defendants.
• Court: U.S. District Court — District of South Dakota

602 F.Supp.3d 1172

Aarin NYGAARD, 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; The South Dakota Department of Social Services, Todd Waldo, in His Official Capacity as Social Worker; Jenny Farlee, in Her Offical Capacity as Social Worker; Cheyenne River Sioux Tribal Court of Appeals, Franklin Ducheneaux, Acting Chief Justice of Cheyenne River Sioux Tribal Court of Appeals in His Official Capacity, Defendants.

3:19-CV-03016-RAL

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

Signed May 11, 2022

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, Cheyenne River Sioux Tribal Court of Appeals, Franklin Ducheneaux.

Robert B. Anderson, May, Adam, Gerdes & Thompson LLP, Pierre, SD, for Defendants The South Dakota Department of Social Services, Todd Waldo, Jenny Farlee.

OPINION AND ORDER GRANTING TRIBAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND THE STATE DEFENDANTS’ MOTION TO DISMISS

ROBERTO A. LANGE, CHIEF JUDGE

The central issue in this case is whether the Parental Kidnapping Prevention Act (the PKPA), 28 U.S.C. § 1738A, applies to Indian tribes. There is a split of authority on that question. After reviewing the text of the statute, its purpose, and the authority on point, this Court determines that the PKPA does not apply to Indian tribes. As such, this Court grants Defendants Brenda Claymore, the Cheyenne River Sioux Tribal Court of Appeals, and Franklin Ducheneaux's Motion for Summary Judgment. Doc. 82. Defendants South Dakota Department of Social Services, Jenny Farlee, and Todd Waldo's Motion to Dismiss for Failure to State a Claim, Doc. 90, is granted as well.

I. Facts and Procedural History

The lengthy factual and procedural history of this case is summarized in this Court's Opinion and Order Denying Defendants’ Motion to Dismiss. Doc. 69. This Court borrows a somewhat shortened account of the facts not subject to genuine dispute from that opinion and order and the settled record.¹

Plaintiff Aarin Nygaard is the father of C.S.N., and Plaintiff Terrence Stanley is the father of T.R.S. Tricia Taylor (Tricia)² is the mother of both children and is an enrolled member of the Cheyenne River Sioux Tribe. Custody of C.S.N. and T.R.S. has been the subject of multiple court proceedings in North Dakota state court and Tribal Court, dating back to early 2014.

Nygaard and Tricia were in a relationship, though they were never married and lived together in North Dakota. Doc. 1-1 at 1. From that relationship came a child, C.S.N., who was born in 2013. In March of 2014, Nygaard initiated a custody proceeding in the state district court for Cass County, North Dakota. Doc. 1-1. Among other things, Nygaard requested that the court award him primary residential responsibility of C.S.N. Doc. 1-1. Tricia filed an answer and counterclaim, requesting primary residential responsibility of C.S.N. 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. 1-3.

In early July 2014, Tricia sought a temporary domestic violence restraining order against Nygaard. 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. Nygaard and Tricia agreed to vacate Tricia's petition for a restraining order and replace it with a mutual no-contact order, which the North Dakota state court entered on that same day. Doc. 1-5. Nygaard and Tricia also agreed to equally share decision-making and residential responsibility over C.S.N. while the custody proceedings remained pending. Doc. 1-6. As a part of that agreement, Nygaard and Tricia committed to give one another 24-hour 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. 1-7.

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

Tricia on September 2, 2014,³ 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)⁴ at 2–6; Doc. 1-8. On that same day, the Tribal Court issued a Temporary Protection Order against Nygaard.⁵ Doc. 64-1 at 7–12; Doc. 1-9.

Meanwhile in North Dakota state court, 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. 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. 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. 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 in October of 2014. Doc. 64-3 at 12.

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. 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. 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. 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.

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, and the couple married in 2010 but divorced in 2011. 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. 1-22. At that point, apparently no court order existed concerning custody of T.R.S., though it appears that T.R.S. lived with Tricia and Nygaard in North Dakota until their relationship soured.

Around July 2014, Tricia absconded with T.R.S. (along with C.S.N.), and Stanley was unable to locate them. Doc. 1-23. Stanley then initiated a child custody proceeding in the same North Dakota state court and later applied for and obtained an ex parte order granting him temporary custody of T.R.S. and ordering Tricia to return T.R.S. to Stanley's custody in North Dakota. Doc. 1-23; Doc. 1-24; Doc. 1-25; Doc. 1-26. The North Dakota state court held a hearing on the ex parte order on November 12, 2014. Tricia was served with notice of the hearing but did not appear. Thereafter, the North Dakota state court issued an interim order granting temporary full residential custody of T.R.S. to Stanley and ordering Tricia to immediately return T.R.S. Doc. 1-27.

On November 26, 2014, Tricia was arrested by the Federal Bureau of Investigation (FBI) on the Cheyenne River Sioux Indian Reservation. Doc. 8 at ¶ 45; Doc. 1-67. The FBI agent enlisted the help of a criminal investigator of the Cheyenne River Sioux Tribe Law Enforcement Services, and someone in law enforcement asked the South Dakota Department of Social Services (DSS) to have social workers present at the time of Tricia's arrest for the children's welfare. Doc. 64-2 at 5–12. Tricia was taken into custody on a warrant arising from a Brookings County, South Dakota, misdemeanor bad check case;⁶ she was appointed counsel there, and two weeks later agreed to waive fighting extradition to North Dakota in exchange for dismissal of the Brookings County charges. Doc. 64-2 at 7–8. Tricia then was transported to Cass County, North Dakota, to face state charges of parental kidnapping. Doc. 1-18.

At the time of Tricia's arrest, DSS placed C.S.N. and T.R.S. with Tricia's brother, Ted Taylor, Jr. (Ted). Doc. 8 at ¶ 45. DSS made this placement without contacting either Nygaard or Stanley. Doc. 8 at ¶ 45. Ted on December 1,...