People ex rel. C.R.W.

• Decision Date: 21 July 2021
• Docket Number: #29111, #29117
• Parties: The PEOPLE of the State of South Dakota IN the INTEREST OF C.R.W., Child, and Concerning D.S. and J.R.W., Respondents, Oglala Sioux Tribe, Intervenor.
• Court: South Dakota Supreme Court

962 N.W.2d 730

The PEOPLE of the State of South Dakota IN the INTEREST OF C.R.W., Child, and Concerning D.S. and J.R.W., Respondents, Oglala Sioux Tribe, Intervenor.

#29111, #29117

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS MARCH 22, 2021

OPINION FILED July 21, 2021

DANA L. HANNA, Rapid City, South Dakota, Attorney for intervenor and appellant, Oglala Sioux Tribe.

ILISJA DUFFY, Rapid City, South Dakota, Attorney for respondent and appellant, D.S.

COURT W. ROPER, Special Assistant Attorney General Pierre, South Dakota, Attorneys for petitioner and appellee, State of South Dakota.

GARY D. JENSEN of Beardsley, Jensen & Lee, Rapid City, South Dakota, Attorneys for appellee, C.R.W., Child.

JENSEN, Chief Justice

[¶1.] D.S. (Mother) and J.R.W. (Father) are the biological parents of C.R.W., who was the subject of an abuse and neglect proceeding before the circuit court. The Oglala Sioux Tribe (the Tribe) intervened in the proceeding pursuant to the Indian Child Welfare Act (ICWA). The Tribe moved to disqualify C.R.W.’s attorney alleging the attorney had a conflict of interest with C.R.W. because the attorney was not advocating for C.R.W.’s expressed wishes. During the termination proceedings, Mother and Tribe moved to transfer the case to tribal court. The circuit court denied the motion to disqualify C.R.W.’s attorney and the motions to transfer jurisdiction. The court entered a final dispositional order terminating the parental rights of both parents. Mother and the Tribe appeal. We affirm.

Facts and Procedural History

[¶2.] In early 2018, C.R.W. lived with Father and her stepmother (Stepmother) in Rapid City. She was eleven years of age at the time. Mother had not been the active caregiver since 2009. On January 11, Father was arrested for violating a no contact order. Around 3:00 a.m. that same night, C.R.W. called Rapid City dispatch to report that Stepmother left her home alone with an unknown male and she felt unsafe. Law enforcement arrived at the house and questioned the man, who was sleeping. He identified himself as J.J. J.J. told law enforcement that he was not providing care for C.R.W. and did not know Stepmother left the house without C.R.W. C.R.W. informed law enforcement that J.J. entered the home around 2:00 a.m. and Stepmother left around 2:30 a.m. The responding officers reported that the carpets were covered in garbage, dirty dishes were piled up in the sink, food was spilled on the counters and stove, and the kitchen smelled like sour milk. C.R.W. believed that Stepmother and other unknown associates were smoking marijuana in the home prior to her leaving.

[¶3.] C.R.W. was removed from the residence and taken to her maternal grandmother's (Grandmother) home. Grandmother reported several ongoing concerns related to C.R.W.’s truancy and living conditions. Grandmother reported that C.R.W. had head lice for months, yet it went untreated even though she provided Father with tips on how to treat lice. C.R.W. was placed in the Department of Social Services’ (DSS) temporary custody because Father was incarcerated and Mother's whereabouts were unknown.

[¶4.] A 48-hour hearing was held on January 16, 2018. Mother, Father, and C.R.W. were each appointed counsel. C.R.W. was eligible for enrollment in the Oglala Sioux Tribe by virtue of Father's enrolled status.¹ Thus, C.R.W. is considered an Indian child under ICWA, pursuant to 25 U.S.C. § 1903(4). The Tribe intervened in the proceedings. Following a March 2018 hearing, the circuit court entered a default adjudicatory order, after both parents failed to appear personally, determining C.R.W. to be abused and neglected. The attorneys for each parent were present at the hearing.

[¶5.] Over the next several months, C.R.W. remained in foster care and the circuit court found at periodic review hearings that "returning custody of [C.R.W.] to the Respondent parents would likely result in serious emotional and/or physical damage to [C.R.W.]." Father had a history of domestic abuse and refused to cooperate or maintain contact with DSS during the proceedings. Father also refused efforts by DSS to set up visitation for him with C.R.W. Mother had a history of instability and substance abuse. She had been in and out of C.R.W.’s life since birth. DSS's reports to the circuit court showed that Mother made no movement toward reunification during this time.

[¶6.] DSS filed a petition to terminate parental rights on October 4, 2018, and served the same on both parents. A final dispositional hearing was scheduled for December 3, 2018, but was later cancelled at DSS's request. A permanency hearing was held in January 2019. At the hearing, DSS again expressed its intention to request termination of parental rights and asked the court to set a final dispositional hearing within 30 days. C.R.W.’s attorney joined in this request expressing that termination of parental rights was in C.R.W.’s best interest. The attorneys for both parents objected to setting a final dispositional hearing.

[¶7.] The Tribe also objected to setting a final hearing and requested the circuit court to direct C.R.W.’s attorney to advise whether C.R.W. agreed with her attorney's request to terminate parental rights. C.R.W.’s attorney informed the court that C.R.W. "would like to go home to her parents" but "she understands her parents are not in a position right now to provide her with stability." C.R.W.’s attorney further informed the court of C.R.W.’s other placement preferences "if she can't go home to her parents." C.R.W.’s attorney relayed her belief that reunification was not in C.R.W.’s best interest and expressed that the court should terminate parental rights.

[¶8.] Based on these statements, the Tribe argued a conflict of interest existed between C.R.W. and her attorney, and that the attorney should be disqualified. The Tribe requested that a guardian ad litem (GAL) be appointed for C.R.W. and that a review hearing be set to address whether C.R.W.’s attorney had a conflict of interest. The circuit court denied the Tribe's request to appoint a GAL but set a review hearing for February 25, 2019, to consider the Tribe's motion to disqualify C.R.W.’s attorney.

[¶9.] On February 20, the Tribe filed a written motion to disqualify C.R.W.’s attorney. The Tribe claimed that C.R.W.’s attorney created a conflict of interest by recommending termination of parental rights to the court when C.R.W. desired to be reunited with her parents. The Tribe argued that the conflict of interest deprived C.R.W. of her due process and statutory right to counsel. The Tribe also argued that C.R.W.’s attorney had an ethical duty to advocate for C.R.W.’s wishes pursuant to Rule 1.2 of the South Dakota Rules of Professional Conduct.² The Tribe again requested that a GAL be appointed to represent C.R.W.’s best interests.

[¶10.] C.R.W.’s attorney filed a response arguing that the Tribe did not have standing to bring a motion to disqualify C.R.W.’s attorney, but even if the Tribe had standing, the statute authorizing the appointment of counsel for a child in abuse and neglect proceedings requires "[t]he attorney for the child [to] represent the child's best interests ...." SDCL 26-8A-18.³ C.R.W.’s attorney also provided a memorandum from the State Bar Ethics Committee addressing an attorney's professional responsibility in representing children in abuse and neglect proceedings. The Committee's memo provided that " SDCL 26-8A-18 requires a lawyer to disregard client wishes when they conflict with the lawyer's assessment of the best interests of the client."

[¶11.] At the February 25 review hearing, the circuit court ruled that the Tribe had standing to raise the alleged conflict with C.R.W. and her attorney because "any party has standing ... to bring to the court's attention if they believe there's an ethical violation or some reason where a party should be disqualified." The court stated possible "friction" existed between the rules of professional conduct and SDCL 26A-8-18 but did not attempt to resolve any conflict between them. Instead, the circuit court found that the record failed to show that a conflict existed between C.R.W. and her attorney requiring disqualification. The court denied the motion to disqualify, as well as the request to appoint a GAL. However, the court expressed that it would be open to hearing directly from C.R.W.

[¶12.] On February 26, 2019, DSS noticed a final dispositional hearing for March 25, 2019, and filed a petition to terminate the parental rights of Father and Mother. On March 22, 2019, the Tribe renewed its motion to disqualify C.R.W.’s attorney. The Tribe specifically requested the circuit court to address the obligations of C.R.W.’s attorney under SDCL 26-8A-18 and the Rules of Professional Responsibility.

[¶13.] During the termination hearing, C.R.W. appeared and was questioned by the court and counsel concerning her preferences and express wishes. C.R.W. relayed that she wanted Mother's and Father's parental rights to be terminated so that she could live in a forever home. C.R.W. also stated that she had initially wanted to return to her parents but changed her mind over time because of her parents’ instability and inconsistency in visiting her. C.R.W. expressed that her first choice would be to live permanently with her brother's foster family, where she was staying at the time of the final dispositional hearing, or another home permanently. Based upon C.R.W.’s testimony, the court found that C.R.W. "wanted her parents’ rights terminated and that she wanted to be adopted." The court orally denied the Tribe's second motion to disqualify C.R.W.’s attorney.

[¶14.] At the start of the final dispositional hearing on March 25, Mother orally moved to transfer the case to tribal court. Mother claimed that she had only recently learned about the possibility of transferring the case to tribal court from members of Father's family. Father and the Tribe did not take a position on the motion because neither...