People ex rel. S.H.E.

Citation2012 S.D. 88,824 N.W.2d 420
Decision Date12 December 2012
Docket NumberNo. 26299.,26299.
PartiesThe PEOPLE of the State of South Dakota IN the INTEREST OF S.H.E., D.H.E., J.W.C., D.W.C., J.R., and M.W.C., Children, and Concerning N.W.C., S.W.C., J.T., and M.H.E., Respondents, Oglala Sioux Tribe, Intervener.
CourtSupreme Court of South Dakota

OPINION TEXT STARTS HERE

Marty J. Jackley, Attorney General, Ann M. Holzhauser, Special Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee, State of South Dakota.

Jean Cline of Feehan & Cline, PC, Rapid City, South Dakota, Attorneys for appellant, Father, S.W.C.

PER CURIAM.

[¶ 1.] A father appeals the termination of his parental rights to his four children. Because the children are enrolled members of the Oglala Sioux Tribe, the Indian Child Welfare Act applies. We affirm.

Background

[¶ 2.] S.W.C. (Father) is the biological father of J.W.C. (Son1), D.W.C. (Son2), J.R. (Son3), and M.W.C. (Daughter1) and the stepfather of S.H.E. (Stepdaughter1) and D.H.E. (Stepdaughter2). N.W.C. (Mother1) is Father's wife and the biological mother of Son3, Daughter1, Stepdaughter1, and Stepdaughter2. 1 J.T. (Mother2), who was never married to Father, is the biological mother of Son1 and Son2. The children resided with Father and Mother1. At the initiation of this proceeding, Stepdaughter1 was 14, Stepdaughter2 was 12, Son1 was 8, Son2 was 7, Son3 was 5, and Daughter1 was 3.

[¶ 3.] On August 7, 2010, law enforcement authorities notified DSS that Stepdaughter2 revealed that Father had raped her.2 The children were placed with a family friend under an Immediate Protective Plan. On August 10, the family friend informed DSS that she was no longer able to care for the children and the children were taken into DSS custody and placed in foster care.3

[¶ 4.] In September 2010, DSS met with Father and Mother1 on three separate occasions to develop a case plan. The parties reviewed safety threats identified by DSS, namely Father's presence in the home and the couple's drug and alcohol abuse. The couple disagreed with the safety threats, denied any wrongdoing, did not complete a urinalysis as instructed by DSS, and admitted they recently smoked marijuana.4 In addition, Mother1 declared that she was unsure if she believed Stepdaughter2's allegations against Father.

[¶ 5.] The Oglala Sioux Tribe intervened on October 4, 2010. On October 7, DSS filed a petition alleging that the children were abused or neglected. Later, DSS amended the petition to include an allegation that Father was incarcerated.5 An adjudicatory hearing was not held until March 21, 2011, at which time Father admitted the children lacked proper parental care because he was incarcerated and the children were adjudicated neglected.

[¶ 6.] In the meantime, Mother1 entered into a case plan with DSS. Under this plan, Mother1 was to abstain from illegal drugs, complete drug and alcohol evaluations, and follow corresponding recommendations. She was also to attend therapy, take medication, and keep the children away from inappropriate or harmful individuals. To help Mother1 reach the objectives of her case plan, DSS offered her food vouchers, gas assistance, bus passes, professional referrals, and transportation to family visits, including visits at the Abbott House in Mitchell where Stepdaughter1 and Stepdaughter2 resided.

[¶ 7.] After entering the case plan with DSS, Mother1 continued to live with Father.6 She resisted completing urinalysis tests and frequently turned down offers for transportation to the tests. Although she saw a therapist twice in October 2010, she did not attend therapy or take medication after those visits, reasoning that therapy and medication were unnecessary as she was attending sweat lodges weekly. Further, Mother1 did not complete a chemical dependency evaluation until approximately ten months after the case was initiated, did not attend treatment, and continued abusing alcohol, marijuana, and other substances. In fact, in October 2010, she was hospitalized for several days due to a drug overdose. Additionally, Mother1 rarely had a job and did not have her own house or car.

[¶ 8.] On the other hand, Mother1 consistently attended family therapy with Stepdaughter1 and Stepdaughter2 and weekly visits with the children. During those visits, she bonded with the children and behaved appropriately. To DSS specialists, it was evident that she loved the children. Mother1 also wrote the children several letters using postage-paid envelopes provided by DSS.

[¶ 9.] Nevertheless, Mother1 was arrested for felony possession of methamphetamine, possession of drug paraphernalia, and ingestion of marijuana on April 20, 2011. She was released on $15,000 bond. Shortly thereafter, she tested positive for marijuana and was arrested for a bond violation. Mother1 pleaded guilty to the charges and was sentenced to four years in prison on September 26, 2011, with no possibility of release until January 2013.7

[¶ 10.] Mother2 also entered into a case plan with DSS. Under this plan, Mother2 was to write letters to Son1 and Son2 and have consistent contact with them so that a healthy relationship could be developed. Mother2 was also required to abstain from drugs or alcohol. Initially, Mother2 made significant progress toward the objectives of her case plan. She consistently wrote to Son1 and Son2 and was interested in completing a home study. However, after the first evaluation, Mother2 was arrested for an alcohol-related incident, did not attend therapy or follow through on two home studies, and failed to keep in regular contact with DSS, as well as, Son1 and Son2.8

[¶ 11.] Father met with DSS in September 2010 to develop a case plan. He was to remain sober; refrain from inappropriate sexual contact; attend counseling, follow corresponding recommendations, and take medication; attend drug and alcohol classes; and complete a parenting packet. However, before Father signed his case plan with DSS in December 2010, two significant events occurred. First, Father was incarcerated due to a parole violation for use and possession of marijuana. Second, Father attempted suicide in the Pennington County jail.

[¶ 12.] While he was incarcerated, Father attended two different therapy classes, took antidepressants daily, and was on a waiting list for drug and alcohol treatment. Father also wrote DSS five letters, requesting pictures and updates of the children and teleconferencing so he could talk to the children. In response, DSS sent Father court reports, three letters, and some pictures. DSS also sent Father a parenting packet and postage-paid envelopes. As a result, Father sent thirty-four letters to the children. Finally, DSS facilitated a visit between Father and the children while Father was in the Pennington County jail, completed two case plan evaluations, and included Father in concurrent planning meetings.

[¶ 13.] However, DSS never contacted Father to determine if he received the parenting packet or assessed his progress with regard to the packet. Although DSS asked if teleconferences could be set up, it failed to follow up on its first inquiry and did not attempt to determine why it never received a response. Further, despite monthly trips to Mitchell, no one from DSS visited Father at the penitentiary in Sioux Falls. The DSS family services specialist admitted, “I didn't. I just didn't go.” Moreover, at the dispositional hearing, the specialist acknowledged that failing to establish teleconferencing and visits with Father was not active efforts. In regard to his efforts, he remarked, “There wasn't much [sic] other things that I could have offered to [Father] because of his incarceration.”

[¶ 14.] A dispositional hearing was held on November 14, 2011. At that time, Fatherand Mother1 were both incarcerated and had made minimal progress toward completion of their case plan. Father would not be released until August 2012 and Mother1 would not be released until January 2013, at the earliest.

[¶ 15.] Stepdaughter1 and Stepdaughter2 were in a residential treatment facility for substance abuse and behavioral issues. Son1, Son2, and Son3 were in foster homes. Although the boys had various emotional and mental issues and expressed anxiety over their future and where they would be located, they were receiving therapy, were healthy, and were doing well in school. Finally, Daughter1, who exhibited extreme behaviors and was diagnosed with attention deficit hyperactivity disorder, was in a therapeutic foster home where she was doing well.

[¶ 16.] At the dispositional hearing, the family services specialist and the ICWA expert testified that termination of parental rights would be the least restrictive alternative commensurate with the best interests of the children. 9 The circuit court agreed, finding that, based on the circumstances, including incarceration and absence of the parents, the State had made “reasonable and active efforts to provide remedial services and rehabilitative programs[,] but that “these efforts [were] unsuccessful and ... the conditions that existed at the time the children were removed still exist.” Further, the court found that “there is little likelihood that the conditions will be remedied” and that serious emotional and/or physical damage would result if the children were returned to their parents.

[¶ 17.] The court terminated parental rights to Son1, Son2, Son3, and Daughter1 with respect to all parents. As to Stepdaughter1 and Stepdaughter2, M.H.E.'s parental rights were terminated, but Mother1's were not, and the two girls were placed in a planned permanent living arrangement. The final order terminating parental rights was filed on January 25, 2012. Father appeals, arguing that DSS did not make active efforts to reunite the Indian family and that termination of his parental rights was not the least restrictive alternative commensurate with the best interests of the children.

Standard of Review

[¶ 18.] In a case...

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