People ex rel. P.S.E., 26068.
| Decision Date | 03 August 2012 |
| Docket Number | No. 26068.,26068. |
| Citation | 816 N.W.2d 110,2012 S.D. 49 |
| Parties | The PEOPLE of the State of South Dakota in the INTEREST of P.S.E., Child, and Concerning M.A.S., Respondent. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Marty J. Jackley, Attorney General, Ann M. Holzhauser, Special Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for appellee, State of South Dakota.
Dana L. Hanna, Rapid City, South Dakota, Attorney for appellant, Father, M.A.S.
[¶ 1.] M.A.S. (Father) appeals termination of his parental rights to P.S.E. At the time P.S.E. was removed from Mother's care, Father lived in California and did not know he had a child in South Dakota. The Indian Child Welfare Act (ICWA) applies to these proceedings because P.S.E. is an enrolled member of the Fort Peck Sioux Tribe. Father argues that the Department of Social Services (DSS) did not make active efforts to reunite the Indian family and that any efforts made were successful. Because the evidence presented shows that DSS provided active and reasonable, albeit abbreviated, efforts to place P.S.E. with Father, and those efforts were unsuccessful, the order is affirmed.
[¶ 2.] On June 19, 2009, DSS took P.S.E. (DOB 6/2/2008) into temporary protective custody. Mother had a PBT over .20 and no sober caretakers were available. At some point, Mother told DSS that Father was P.S.E.'s father. Father lived in California, unaware he had a child in South Dakota.
[¶ 3.] At an adjudicatory hearing, Mother admitted neglecting P.S.E. At a later hearing, Father acknowledged that he had not known of P.S.E. until contacted by DSS and that he was not domiciled with P.S.E. Based on this acknowledgement, the trial court determined that Father had not provided care and support for the child through no fault of Father.
[¶ 4.] At the time of Father's adjudicatory hearing, DSS's stated goal was to foster a relationship between P.S.E. and Father. The ultimate goal was placement with Father. Toward this end, DSS requested California Department of Social Services (CDSS) complete a homestudy at Father's Tipton, California home.
[¶ 5.] Before placement of P.S.E. with Father would be authorized, the California homestudy required three things of Father: that he complete alcohol education classes; take an assessment to determine whether he should enroll in anger management classes; and take parenting classes. On June 18, 2010, nine months after receiving the California homestudy, DSS completed an initial case plan with Father. The case plan incorporated the three objectives listed in the California homestudy, modified to require Father to enroll in anger management and parenting classes.
[¶ 6.] DSS requested a second California homestudy in September 2010, but CDSS refused to conduct the homestudy. Father's children that had been residing with him (California children) had been removed due to allegations of physical abuse at the hands of their mother, with whom Father lived. With these allegations pending, California would not perform a homestudy on Father's home. Therefore, at the time of the dispositional hearing, a California homestudy approving placement with Father had not been completed.
[¶ 7.] On March 21, 2011, a final dispositional hearing was held regarding Father. (Mother's rights had previously been terminated and she did not appeal termination.) Testimony from the DSS caseworker assigned to the case establishedthat Father had completed alcohol education classes and enrolled in parenting classes. Father testified that he had enrolled in anger management classes shortly before the dispositional hearing.
[¶ 8.] Father's testimony also revealed that his California children were still in the custody of CDSS. In order to regain custody, CDSS required Father to obtain “outpatient treatment, a batterer's program, anger management program, parenting classes, and AAs.” Father indicated this list of requirements may not be exhaustive, and that this process would take time. When asked if he was ready for P.S.E. to go to California with him, he testified that he would like to complete the California program first. He did not know how long the California program would take.
[¶ 9.] The trial court found that DSS had provided active efforts to prevent the breakup of the Indian family and terminated Father's parental rights. Father appeals, challenging the determination that “active efforts” were made and that those efforts were unsuccessful.
[¶ 10.] Issue # 1: Whether the trial court erred by not entering a finding of fact that the efforts provided by DSS were unsuccessful.
[¶ 11.] Father first presents a question regarding interpretation of ICWA. 25 U.S.C. § 1912(d) 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.
Whether this section requires an explicit finding of fact that the efforts provided were unsuccessful is a question of statutory interpretation reviewed de novo. See AFSCME Local 1025 v. Sioux Falls Sch. Dist., 2011 S.D. 76, ¶ 11, 809 N.W.2d 349, 352. Father argues that because the trial court did not enter a specific finding of fact indicating the efforts of DSS had proven unsuccessful, termination was improper. Father provides no authority for the proposition that this statute requires a finding explicitly expressing the court's satisfaction that the efforts to prevent the breakup of the Indian family were unsuccessful. Father focuses on the “shall satisfy the court” language. The statute requires this satisfaction, but an explicit factual finding on the issue is not required.
[¶ 12.] This Court has upheld termination of parental rights to an Indian child in the absence of a finding of fact that the active efforts requirement of § 1912(d) had been met.
Indeed, the trial court did not specifically find that these post December 2 efforts constituted “active efforts.”
....
In conclusion, although the circuit court erroneously ruled that ASFA's aggravated circumstances eliminated the need to provide active efforts to reunite the father with his son after December 2, 2002, the fact is that DSS continued to make those efforts.
People ex rel. J.S.B., Jr., 2005 S.D. 3, ¶¶ 24, 29, 691 N.W.2d 611, 620–21.
[¶ 13.] In addition to the active efforts requirement, the trial court must also be satisfied that the efforts provided to prevent the breakup of the Indian family were unsuccessful. 25 U.S.C. § 1912(d). The trial court's oral pronouncement following the dispositional hearing was incorporatedby reference into the findings of fact and conclusions of law. While not specifically saying that the efforts of DSS to prevent the breakup of the Indian family were unsuccessful, the substance of the findings and conclusions, including those made orally following the hearing, demonstrate the trial court's satisfaction that the efforts were unsuccessful. The lack of the precise language used by the statute does not mandate reversal.
[¶ 14.] Issue # 2: Whether the evidence presented established beyond a reasonable doubt that DSS made active efforts to provide remedial services and rehabilitative programs to Father and that those efforts were unsuccessful.
[¶ 15.] Father next attacks the merits of the findings required by § 1912(d), asserting that the evidence does not establish that DSS provided “active efforts.” Whether active efforts were provided under ICWA is a mixed question of law and fact subject to de novo review. J.S.B., 2005 S.D. 3, ¶ 24, 691 N.W.2d at 620. The facts presented provide a very close question on this issue.
[¶ 16.] As noted above, § 1912(d) requires satisfying the trial court that active efforts were made, and that those efforts were unsuccessful. In abuse and neglect proceedings in which ICWA does not apply, DSS must establish that “reasonable efforts” have been made to return the child to the parent. SDCL 26–8A–21. The trial court found that DSS made reasonable and active efforts to prevent removal of P.S.E. from the home and “since her removal the Department of Social Services has made reasonable efforts to reunite the minor child with the Respondent parents.” Father argues that the active efforts required by ICWA is a heightened standard compared to the reasonable efforts required by state law, but that the record does not support a finding of either reasonable or active efforts. The State takes the position that “active efforts” and “reasonable efforts” are synonymous, and that such efforts were made.
[¶ 17.] This Court has not addressed the relationship between active efforts as required by ICWA and reasonable efforts as required by South Dakota Codified Law. But this Court differentiated the active efforts requirement of ICWA from the reasonable efforts requirement of the Adoption and Safe Families Act (ASFA). “Importantly, the concept of ‘active’ efforts pursuant to ICWA is distinguished from ‘reasonable’ efforts as required by [ASFA].” People ex rel. J.I.H., 2009 S.D. 52, ¶ 20, 768 N.W.2d 168, 173 (citing J.S.B., 2005 S.D. 3, ¶ 17, 691 N.W.2d at 617). This Court's decision in J.I.H. did not hinge on whether or not active efforts were provided, but whether the efforts provided were unsuccessful. Id.
[¶ 18.] Both Father and the State suggest the Court take this opportunity to determine whether a distinction exists between active and reasonable efforts. Father argues that active efforts require more than reasonable efforts, while the State argues the terms are synonymous. Courts considering this...
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