PEOPLE EX REL. JSB, JR.

• Decision Date: 05 January 2005
• Docket Number: No. 22907.,22907.
• Parties: The PEOPLE of the State of South Dakota in the Interest of J.S.B., JR., Minor Child and Concerning J.S.B., Sr. and O.L.J., Respondents.
• Court: South Dakota Supreme Court

691 N.W.2d 611

2005 SD 3

The PEOPLE of the State of South Dakota in the Interest of J.S.B., JR., Minor Child and Concerning J.S.B., Sr. and O.L.J., Respondents.

No. 22907.

Supreme Court of South Dakota.

Considered on Briefs on June 1, 2004.

Decided January 5, 2005.

Jennifer Coleman, Dakota Plains Legal Services, Rapid City, South Dakota, Attorney for appellant Father, J.S.B., Sr Lawrence E. Long, Attorney General, Ann Holzhauser, Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for appellee State of South Dakota.

B.J. Jones, Attorney for Oglala Sioux Tribe, Grand Forks, North Dakota, Attorney for Intervenor Oglala Sioux Tribe.

Thomas J. Van Norman, Senior Tribal Attorney, Cheyenne River Sioux Tribe, Eagle Butte, South Dakota, Attorney for Intervenor appellee Cheyenne River Sioux Tribe.

KONENKAMP, Justice.

[¶ 1.] Under the Adoption and Safe Families Act (ASFA), enacted in 1997, "reasonable efforts" to reunify a family are not required before termination of parental rights when a parent has a pattern of abusive or neglectful behavior constituting an aggravated circumstance. On the other hand, the Indian Child Welfare Act (ICWA), enacted in 1978, provides special rules for the needs of Indian children and families. ICWA requires "active efforts" to reunite families before a parent's rights may be terminated. In this abuse and neglect case, the father, a member of a federally recognized Indian tribe, appeals the termination of his parental rights. During the proceedings, the trial court ruled that ASFA "preempts" the requirements of ICWA, such that "active efforts" were not required in the circumstances. We conclude that ASFA does not override the requirements of ICWA. We affirm the termination of parental rights, however, because despite the court's erroneous ruling, the record reflects that the Department of Social Services (DSS) continued to provide "active efforts" to reunify the family, but such efforts were unsuccessful.

Background

[¶ 2.] J.S.B. was born on December 16, 1999. With both his parents being Native American, he is eligible for enrollment in the Oglala Sioux Tribe (OST), or the Cheyenne River Sioux Tribe (CRST). In July 2000, J.S.B.'s mother and father had an altercation. A deputy was dispatched to the home with a protection order that the mother had obtained against the father. The father told the deputy and a social worker that the mother was smoking marijuana daily, including during her pregnancies, and that the mother had marijuana in the home. J.S.B. was taken into custody and placed in foster care with DSS.

[¶ 3.] A subsequent investigation confirmed that the mother had been using both marijuana and alcohol and that the father had left J.S.B. in the mother's care. The investigation also revealed past occurrences of domestic violence and chemical dependency. An adjudicatory hearing was held on August 31, 2000. J.S.B. was found abused and neglected through the acts and omissions of both the mother and the father.

[¶ 4.] J.S.B. remained in foster care until December 4, 2000. On that date, he was returned to the physical custody of his father. DSS provided various services to the father, including anger management classes and parenting lessons. Full legal custody of the child was given to the father in June 2001.

[¶ 5.] In the next year, the father cared for his child, purchased a home, gave the mother visitation rights, and was gainfully employed. He took J.S.B. to sweats and sun dances, ensuring that his child became acquainted with tribal ways and ceremonies. In November 2001, the father was arrested for a domestic assault. The incident appeared to involve alcohol. In April 2002, the father was again arrested, this time for DUI. Finally, in June 2002, DSS took J.S.B. into custody when the father was found highly intoxicated and walking down the street with the child lagging 60 or 70 feet behind him. He was yelling at J.S.B., age two, to keep up with him.¹

[¶ 6.] Following the father's arrest, the records show the following contacts:

• On June 3, 2002, a social worker informed the father of the importance of getting a chemical dependency evaluation and also discussed ASFA with him. The worker encouraged the father to remain in touch with her.

• On June 5, 2002, the father left a phone message for the social worker asking that she contact him. The next day, the worker attempted to contact the father, but was unable to reach him. Instead, the worker left a message with the father's employer asking that he return her call.

• On June 7, 2002, the father's attorney told the worker that the father had received permission for supervised visits with J.S.B. The worker agreed to set up the visits and requested that the father come to her office and work out a schedule.

• On June 21, 2002, the father contacted the worker. He told the worker that he was unhappy with the worker's attempts to find a suitable placement for J.S.B. The worker asked the father why he had not attempted to contact her. He responded by questioning why the worker had not attempted to contact him. The worker stated that she had made several attempts to contact him at his place of employment and a companion's home, but was unsuccessful. He then told the worker that he wanted the case transferred to tribal authorities. The worker responded that the issue was not within her authority to decide.

• On July 15, 2002, the worker stopped by the father's home address. He was not home.

• On July 17, 2002, the worker visited the father's place of employment. However, the worker was informed that the father was no longer an employee. That same day the worker also asked the mother if she was aware of the father's whereabouts.

• On July 18, 2002, a hearing was held. The father did not attend.

• On July 22, 2002, the father's attorney notified the social worker that the father had agreed to complete a chemical dependency evaluation. The worker requested that the father contact her.

[¶ 7.] An abuse and neglect petition was filed in August 2002. The petition alleged that ASFA applied because of a documented history of abuse and neglect associated with chronic alcohol and drug abuse and a prior neglect adjudication of J.S.B. The petition asked that DSS be relieved from providing further "reasonable" or "active" efforts to reunite the father and J.S.B. An advisory hearing was held on August 26, 2002. The father did not attend the hearing. Notice was then served on him by publication, and a second advisory hearing took place on September 16, 2002. Because the father again failed to appear, his default was deemed an admission to the petition. The trial court found that DSS had made "reasonable" and "active" efforts to reunite J.S.B. with the father by providing remedial services and rehabilitative programs. By order entered on September 16, 2002, J.S.B. was found to be abused and neglected by the father. [¶ 8.] In early November 2002, the social worker spoke with the mother who informed her that the father was likely incarcerated. As a result, on November 14, 2002, the worker contacted the jail and learned that the father was indeed an inmate. That same day, the worker contacted the father's attorney who gave her a brief synopsis of the father's situation. The father attempted to contact the social worker on November 21, 2002. On November 22, 2002, the father contacted the worker.

[¶ 9.] In a hearing on December 2, 2002, the trial court ruled that DSS "has made reasonable efforts to reunite the minor child with his parents and will continue to do so[.]" The court also found that DSS "has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family[.]" Lastly, the court concluded that ASFA "applies and [DSS] is under no obligation to provide services to try and reunite the minor child with his parents."

[¶ 10.] Final disposition hearings were held on April 15 and May 12, 2003. During these hearings, witnesses were presented by all parties. On the second day of the hearings, an attorney from the CRST appeared and moved to intervene. The trial court granted the motion. Then the CRST moved to transfer the proceedings to tribal court. The circuit court denied the motion as untimely.² Finally, the tribe's attorney asked whether she would be allowed to cross-examine witnesses. The trial court responded, "Probably not." With that, the attorney said, "There's probably no point in me remaining then," and left. At the conclusion of the hearing, the trial court ruled that ASFA applied to the case and found that DSS made "reasonable" and "active" efforts to reunite the family before the December 2, 2002 ASFA ruling. The court terminated the parental rights of both parents.³

[¶ 11.] In this appeal, the father asserts that the circuit court erred (1) in holding that ASFA overrules the provisions of ICWA; (2) in concluding that DSS had made active efforts; and (3) in finding that the least restrictive alternative available was termination of the father's parental rights. In addition, the intervenors, OST and CRST, join the father on Issue I, and contend, in addition, that the trial court erred when it permitted the CRST to intervene in the proceeding below, but prevented it from participating in the final dispositional hearing.⁴

Analysis and Decision

[¶ 12.] Because statutory interpretation is a legal question, our review is de novo. City of Rapid City v. Pennington County, 2003 SD 106, ¶ 5, 669 N.W.2d 120, 121. Under de novo review, we give no deference to a circuit court's conclusions of law. Bozied v. City of Brookings, 2001 SD 150, ¶ 8, 638 N.W.2d 264, 268. However, when we review findings of fact, we give considerable deference to the trial court. SDCL 15-6-52(a). Only when a finding of fact is clearly erroneous will we conclude that the trial court erred. A finding is clearly erroneous when we are left with a definite and...