People ex rel. J.I.H.

• Decision Date: 01 July 2009
• Docket Number: No. 24996.,24996.
• Citation: 2009 SD 52,768 N.W.2d 168
• Parties: The PEOPLE of the State of South Dakota in the Interest of J.I.H. and J.I.H., Children and Concerning, M.D., Respondent, and J.I.H., Respondent and Appellant, Cheyenne River Sioux Tribe, Intervenor.
• Court: South Dakota Supreme Court

768 N.W.2d 168

2009 SD 52

The PEOPLE of the State of South Dakota in the Interest of J.I.H. and J.I.H., Children and Concerning, M.D., Respondent, and J.I.H., Respondent and Appellant Cheyenne River Sioux Tribe, Intervenor.

No. 24996.

Supreme Court of South Dakota.

Considered on Briefs May 26, 2009.

Decided July 1, 2009.

Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney

General, Pierre, South Dakota, Attorneys for appellee, State.

Jeremiah J. Davis, Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for appellant, Father J.I.H.

SEVERSON, Justice.

[¶ 1.] The trial court terminated Father's parental rights to his two children. He appeals. We reverse in part and affirm in part.

FACTS

[¶ 2.] This appeal concerns the termination of only Father's parental rights. Mother and Father are Cheyenne River Sioux Tribe (CRST) members, and have two children together. The children are eligible for enrollment in the tribe.

[¶ 3.] On September 29, 2007, Son and Daughter, then ages fourteen months and thirty-two months, respectively, were removed from Mother's care after law enforcement officers responded to the home. Mother was intoxicated and the children were filthy. The home was also filthy and drug paraphernalia was present. Mother was arrested on several charges, and the children were placed in protective custody with the Department of Social Services (DSS). Father was incarcerated at the time. He was serving consecutive sentences for simple assault/domestic violence and escape, and was scheduled for release in December 2008. He remained incarcerated throughout the duration of the trial court proceedings.

[¶ 4.] DSS was granted temporary custody of the children on October 1, 2007, and a petition alleging the children were abused and neglected was filed on October 5, 2007.¹ Mother later admitted to the petition, while Father denied it. The children were initially placed in foster care. In mid-October 2007, they were placed with their maternal grandmother (Grandmother), and remained in her care until February 8, 2008, at which time Grandmother requested the children be removed because she was "overwhelmed." Grandmother was a registered nurse who worked nights, and, at the time, had two other grandchildren, as well as her youngest daughter who was pregnant, in her home. Son and Daughter were removed and remained in foster care for the balance of the proceedings.

[¶ 5.] An adjudicatory hearing concerning Father was held on January 16, 2008. Father admitted he was incarcerated at the time the children were taken into protective custody, thereby leaving the children without his care and supervision. The trial court adjudicated the children neglected pursuant to SDCL 26-8A-2 due to the actions and/or omissions of Father.

[¶ 6.] The final dispositional hearing was held on May 6, 2008. Only two witnesses testified: Sarah Trimble, the DSS family services specialist assigned to this family; and Luke Yellow Robe, who testified on behalf of the State as the Indian Child Welfare Act (ICWA) expert.

[¶ 7.] Trimble explained that at the inception of this case, the main safety concern with regard to Father was his inability to care for the children due to his incarceration. Trimble first met with Father in December 2007, but did not begin taking the children to visit Father in jail until February 2008 because until then they were placed with Grandmother. Trimble indicated that at the first visit the children did not know Father, and interaction between the children and Father was "very reserved." Overtime, however, the interaction increased from the children playing by themselves with Father watching to Father actually playing and engaging with the children. Trimble testified that Father's interactions with the children were always appropriate during the visits.

[¶ 8.] Trimble testified that due to Father's incarceration, the services she could offer Father were limited. Moreover, the services that could be provided in the county jail were more limited than the services provided in the state penitentiary. In addition to arranging visitation, Trimble assisted Father with case planning and relative searches to facilitate a family placement. Father did not receive any sort of parenting instruction from DSS until March 17, 2008. Because Father was not going to be released from jail until December 2008 and several issues would need to be dealt with thereafter, Trimble testified it could possibly be an additional year or two before Father could be available to parent the children.

[¶ 9.] Trimble testified that Grandmother had reconsidered and showed interest in being a long-term placement for the children. Grandmother's sister in Washington also expressed interest as a placement option for the children. In addition, Grandmother's home study to be a foster care provider had been approved, and her final requirement to be a licensed foster care provider was completion of Pride classes.

[¶ 10.] Ultimately, Trimble recommended Father's parental rights be terminated, in an effort to provide permanency and stability in the children's lives. She testified that, in her opinion, "adoption with a relative would probably be [the children's] best opportunity to lead a normal, healthy life."

[¶ 11.] Yellow Robe, a member of the Sicagu Lakota Rosebud Sioux Tribe, also testified. He testified as the ICWA expert on behalf of the State. Yellow Robe is a private consultant who previously served for twelve years as the Cultural Relations Director for the Children's Home Society. Prior to that, he served as a law enforcement officer for eleven years. For nine of those years, he was a school liaison officer for a school with a student body composed of more than fifty percent Indians.

[¶ 12.] Yellow Robe testified to his knowledge of the CRST, including an explanation of the similarities and differences between the Rosebud Sioux Tribe and the CRST. He testified that the child-rearing practices between the two tribes were similar in nature. He further explained some of the resources available to parents on the CRST reservation.

[¶ 13.] Yellow Robe explained his familiarity with ICWA and identified its purpose and various requirements. He had previously been qualified to testify as an ICWA expert in 50 to 60 cases. When questioned by Father's counsel to specify the placement hierarchy for Indian children, Yellow Robe indicated that immediate family members were first priority, but admitted that he could not articulate the specific hierarchy set forth in the Act. With regard to counsel's question concerning the State's standard of proof under ICWA, Yellow Robe noted that the State was required to show that all efforts have been exhausted on behalf of the Indian family, but stated he was unable to quote specific language from the Act. Based on this testimony, counsel for Father and counsel for the children objected to Yellow Robe testifying as an ICWA expert. The trial court overruled the objection and allowed him to provide expert testimony.

[¶ 14.] Based on his review of the report to the trial court, the protective capacity assessments, and Trimble's testimony, Yellow Robe testified that the least restrictive alternative available and the children's best interests required termination of Father's parental rights. He initially testified that, in his opinion, DSS employed active efforts to reunite the children with their parents. However, on cross-examination, he admitted that failure to provide Father with visitation and parenting information for five months was not active efforts. Moreover, he stated that "about all [DSS] could do ... was ... abide by what the rules are at the jail. Visitations were provided to the father every week. And that was really about it for ... the father of these children." In response to the question whether it was premature to terminate parental rights, he stated, "Not on mom, but maybe the father." He noted that further efforts could still be made to provide assistance to Father, especially in view of his recent progress.

[¶ 15.] Ruling from the bench, the trial court terminated both parents' rights. Father appeals this decision, as well as the court's decision to qualify Yellow Robe as an ICWA expert.

ANALYSIS & DECISION

[¶ 16.] 1. Whether the trial court erred in finding beyond a reasonable doubt that termination of Father's parental rights was the least restrictive alternative and in the children's best interests.

[¶ 17.] It is undisputed that ICWA applies in this case. The declared policy of ICWA is

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 USCA 1902. In pertinent part, ICWA instructs that "[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination ... that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 USCA 1912(f). This must be proven beyond a reasonable doubt. Id. ICWA additionally requires the State to show it made active efforts to prevent the breakup of the Indian family. In this regard, ICWA provides:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

25 USCA 1912(d). This Court has held that the standard of...