People In Interest of G.R.F.

• Decision Date: 24 July 1997
• Docket Number: No. 19894,19894
• Citation: 1997 SD 112,569 N.W.2d 29
• Parties: The PEOPLE of The State of South Dakota, in the Interest of G.R.F., Minor Child, And Concerning L.R. And M.S. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 29

569 N.W.2d 29

1997 SD 112

The PEOPLE of The State of South Dakota, in the Interest of

G.R.F., Minor Child, And Concerning L.R. And M.S.

No. 19894.

Supreme Court of South Dakota.

Considered on Briefs July 24, 1997.

Decided Sept. 3, 1997.

John R. Murphy, Rapid City, for appellant, M.S., Father.

Gustav K. Johnson, Rapid City, for appellee, L.R., Mother.

Mark Barnett, Attorney General, Joan P. Baker, Assistant Attorney General, Pierre, for appellee, State of South Dakota.

PER CURIAM.

ACTION

¶1 Father, M.S., and State appeal from a trial court's order dismissing the abuse and neglect action against Mother, L.R., and transferring jurisdiction to the Oglala Sioux Tribe. We affirm.

FACTS

¶2 Father, a non-Indian, and Mother, an Indian, met in Torrington, Wyoming in March 1994 and became involved in a relationship which Father ended in November 1994. When they separated, Father was aware Mother was pregnant with his child. In March 1996 Father learned Mother had given birth to their daughter, G.R.F.

¶3 In June 1995 Mother moved to Rapid City. Prior to that time Mother and her four children lived in various off-reservation locations in Wyoming, Nebraska, and South Dakota, as well as on the Pine Ridge Indian Reservation from time to time according to public assistance applications filed by Mother. ¹ On August 8, 1995, G.R.F. was born in a Rapid City hospital. Mother listed her home address on the hospital admission papers as Rapid City.

¶4 On November 5, 1995, Mother notified her landlord she intended to move out of the trailer in which she and G.R.F. were living. By November 28, she had changed her mind but landlord advised her the trailer home was already rented to a third party. The following day, Mother executed a document entitled "Custody Agreement" giving temporary custody of G.R.F. to two guardians, one of whom was related to Mother, for a period of three months.

¶5 The next day, November 30, 1995, one of the guardians took G.R.F. to the Department of Social Services (DSS) to obtain Title XIX benefits. At DSS, a case worker observed G.R.F. to be in need of immediate medical attention. The guardian took G.R.F. to a doctor and she was admitted to a Rapid City hospital that same day.

¶6 G.R.F. remained hospitalized until December 4, 1995. During that time, DSS was unsuccessful in locating Mother and, upon the child's release from the hospital, the Pennington County Sheriff's Office took emergency custody of her. The following day, the trial court ordered temporary legal custody with DSS for sixty days. Physical custody was granted to one of the guardians where G.R.F. remained until July 17, 1996 when she was placed in foster care.

¶7 At the end of the sixty days, on February 5, 1996, DSS filed an abuse and neglect petition against Mother. G.R.F. was adjudged to be abused and neglected on February 21, 1996. On March 20, 1996, the Oglala Sioux Tribal Court issued an order accepting jurisdiction under 25 U.S.C. § 1911(b) and awarding temporary custody of G.R.F. to the tribal court pending a hearing on the matter.

¶8 By June 14, 1996, paternity test results revealed M.S. to be the child's father and at a hearing held in the state trial court on August 13, 1996, DSS recommended custody be awarded to Father. At this same hearing, Mother moved to dismiss the action from state court for lack of jurisdiction and transfer jurisdiction to the Oglala Sioux Tribal Court. As Father was unrepresented and State was not prepared to proceed, the matter was delayed for briefing by all parties. A subsequent hearing was held in the state trial court on September 26, 1996 at which time all parties presented argument. Both State and Father objected to dismissal and transfer of the action. Father further objected to Mother's proposed findings of fact and conclusions of law.

¶9 At the September hearing, the trial court orally ordered dismissal of the action and transferred jurisdiction to the tribe. On October 24, 1996, the trial court signed an order reducing its oral order to writing. Mother's proposed findings and conclusions were adopted by the trial court.

¶10 Father and State appeal the trial court's ruling, raising essentially the same two issues:

1. Whether the Oglala Sioux Tribe had exclusive jurisdiction over this matter pursuant to 25 U.S.C. § 1911(a) of the Indian Child Welfare Act?

2. Whether the evidence was sufficient to support the finding that Mother was domiciled on the Pine Ridge Indian Reservation at times relevant to this action?

DISCUSSION

¶11 We review a trial court's grant or denial of a motion to dismiss by determining whether the pleader was entitled to judgment as a matter of law. Stumes v. Bloomberg, 1996 SD 93, p 6, 551 N.W.2d 590, 592; Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D.1993). In this appeal, whether Mother is entitled to judgment as a matter of law turns on determining what point in time jurisdiction attaches under ICWA and where G.R.F. was then domiciled.

¶12 1. Whether the Oglala Sioux Tribe had exclusive jurisdiction over this matter pursuant to 25 USC § 1911(a) of the Indian Child Welfare Act?

¶13 Mother is an enrolled tribal member and Child is eligible for enrollment. The statutory requirements of ICWA control this action. 25 U.S.C. §§ 1901-1963; SDCL 26-7A-2. ICWA recognizes a tribe's significant interest in self-government and in its ability to assert its interest in its children. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52, 109 S.Ct. 1597, 1610, 104 L.Ed.2d 29, 49 (1989); Jones, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123, 1128 (1980).

¶14 25 U.S.C. § 1911(a) of ICWA sets forth the jurisdictional framework for child custody proceedings and grants a tribe exclusive jurisdiction if: 1) the child is a ward of the tribal court, regardless of where the child resides or is domiciled; 2) the child resides within the reservation of his or her tribe; or 3) the child is domiciled within the reservation. ² Where § 1911(a) does not apply, 25 U.S.C. § 1911(b) affords states and tribes concurrent but presumably tribal jurisdiction over child custody proceedings. ³ In enacting the jurisdictional provisions of ICWA, "Congress intended that as a general principle, Indian tribes should have authority to determine custody issues involving Indian children." In re Adoption of Halloway, 732 P.2d 962, 968 (Utah 1986).

¶15 In Holyfield, supra, the Supreme Court held that the removal of children to a hospital outside the reservation for their birth, and subsequent placement for adoption and abandonment of the children in state court did not deprive the tribal court of exclusive jurisdiction where the children's domicile was on the reservation. In that case, the children's parents were residents and domiciliaries of the Choctaw Reservation who extended some effort to assure their twin babies were born off-reservation. The parents' and children's domicile never changed from the reservation despite their temporary absence from it. The Court extensively cited ICWA's purpose in its opinion.

¶16 In the present case, the facts represent that Mother has lived a somewhat transient lifestyle, residing in various locations both off and on the reservation for the past several years. The Holyfield Court, discussing the definition of "domicile," recognized that "one can reside in one place but be domiciled in another" and that "domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." 490 U.S. at 48, 109 S.Ct. at 1608, 104 L.Ed.2d at 46. ⁴ G.R.F. has resided in Rapid City since her August 1996 birth and has never resided within a reservation. However, an illegitimate child's domicile follows her mother's. Id. The trial court found that on December 5, 1995, the date a petition for temporary legal custody was filed with the trial court, and the date the trial court heard the matter and awarded custody to DSS, Mother was domiciled on the reservation and therefore, the tribal court had exclusive jurisdiction over the custody proceedings under 25 U.S.C. § 1911(a).

¶17 State and Father claim the relevant time period for determining jurisdiction is the time the abuse and neglect took place, which in this case, was sometime prior to November 30, 1995, the date of G.R.F.'s hospitalization, when both Mother and G.R.F. were living in Rapid City. They argue that abuse and neglect proceedings are quasi-criminal in nature, therefore the determinant time period is when the conduct that gave rise to the cause of action occurred. This Court has previously held, in an abuse and neglect action, that "[p]rocedures determining the custody of dependent children are not criminal, are not quasi-criminal, but instead constitute a civil action, or a special proceeding of a civil nature." In re C.J.H., 371 N.W.2d 345, 349 (S.D.1985) (internal citations omitted). Moreover, in a prior case determining the proper forum under ICWA, we stated:

The locus of the act of a member is not conclusive. Rather, the test is a broader one, hinging on whether the matter demands exercise of the tribe's responsibility of self-government. There can be no greater threat to essential tribal relations and to the tribal power of self-government than to interfere in questions of custody of tribal members.

In the Matter of Guardianship of D.L.L. and C.L.L., 291 N.W.2d 278, 281 (S.D.1980) (citing Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Littell v. Nakai, 344 F.2d 486 (9thCir.1965)). Cf. Wells v. Wells, 451 N.W.2d 402, 405 (S.D.1990) (recognizing the effect of a change of domicile on the jurisdiction of a domestic relations case involving enrolled tribal members). Adherence to State's and Father's argument would not promote the purpose of ICWA which bases jurisdiction on the child's relationship with the tribe through residency, domicile, or...