People in Interest of J.J., s. 16217

• Court: Supreme Court of South Dakota
• Writing for the Court: MORGAN
• Citation: 454 N.W.2d 317
• Parties: The PEOPLE of the State of South Dakota in the Interest of J.J. and S.J., Children and Concerning V.J., Grandmother.
• Docket Number: Nos. 16217,16669 and 16672,s. 16217
• Decision Date: 04 April 1990

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454 N.W.2d 317 The PEOPLE of the State of South Dakota in the Interest of
J.J. and S.J., Children and Concerning V.J., Grandmother. Nos. 16217, 16669 and 16672. Supreme Court of South Dakota.
Argued Sept. 13, 1989.
Decided April 4, 1990.

Mark L. Bratt, Asst. Atty. Gen., Pierre, Roger A. Tellinghuisen, Atty. Gen., on the brief, for appellee, State of S.D.

Kenneth E. Jasper, Rapid City, for children.

Larry D. Plank, Black Hills Legal Services, Rapid City, for mother.

G. Verne Goodsell, Rapid City, for father.

Frank A. Bettmann of Bettmann & Feehan, Rapid City, for grandmother.

B.J. Jones, Dakota Plains Legal Services, Fort Yates, N.D., for Standing Rock Sioux Tribe.

MORGAN, Justice.

This proceeding comes before us as the consolidation of three separate appeals from the actions of the trial court with regard to the termination of custodial rights in two minor Indian children, S.J. and J.J. (children). It being undisputed that the children are of Indian blood, the provisions of 25 U.S.C. Chap. 21, the Indian Child Welfare Act (Act) are implicated.

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Reference to specific sections of the Act will be denominated thus: § _____.

Appeal # 16217 arose from the order terminating the custodial rights of V.J., children's grandmother (V.J.); appeal # 16669 arose from the order denying transfer of jurisdiction to the Tribal Court of the Standing Rock Sioux Tribe (Tribe); and appeal # 16672 arose from the order permitting Tribe to intervene herein.

In addition to the number of issues involved, it is noteworthy that these children have been in the system for a period of over five years. S.J., born March 24, 1982, is now over seven years of age and J.J., born May 4, 1983, is now over six years of age. During most of their lifetimes, the children have resided in Rapid City, South Dakota, and have never lived on any Indian reservation. They do not speak Lakota or any Indian language. While this appeal has been pending, children have resided in the state of New York with their proposed adoptive parents. The adoptive father is a full-blooded American Indian and an enrolled member of the Iroquois Nation.

A brief review of the procedural background of this case is appropriate. The Department of Social Services (DSS) commenced the proceedings with a petition for dependency and neglect in August, 1984. From early in the proceedings, the trial court was provided with information that these children were not enrolled in any tribe. D.C., the children's birth father, is enrolled at the Rosebud Sioux Tribe (Rosebud). Notice was sent to Rosebud; however, a letter from that tribe indicated that J.J. was not eligible for enrollment in the tribe and declined transfer of jurisdiction. Rosebud further indicated that the children were eligible for enrollment in the Oglala Sioux Tribe (Oglala) and suggested it be contacted. Notice was sent to Oglala who petitioned for transfer of the proceedings, stating that R.J., the children's birth mother (Mother), was an enrolled member of that tribe. However, Mother objected to the transfer ¹ and the trial court retained jurisdiction.

In anticipation of the initial hearing in these proceedings, by stipulation dated April 22, 1985, the birth parents and V.J. stipulated that children were dependent and neglected and that legal custody of the children could be given to DSS. The stipulation provided further that, subject to completion of various programs, physical custody of J.J. would be returned to parents and physical custody of S.J. would be placed with V.J. The trial court entered an order in conformity with the stipulation. From the record it appears that this order governed for about six months, at which time J.J. was also placed with V.J. Subsequently both birth parents voluntarily terminated their parental rights to children, placing sole custody, care and control in DSS with full adoptive rights: Mother in proceedings held in March, 1986; father in proceedings held in March, 1987.

DSS continued the placement of both children with V.J., towards the goal of her adoption of the children, until January 1, 1987, when S.J. was brutally raped to such an extent that she required corrective surgery. During DSS' subsequent investigation of the rape, other facts came to light ² which indicated that the environment in V.J.'s home rendered her unsuitable as the adoptive parent of the children and both children were removed from her physical custody.

In response, in July, 1987, V.J. petitioned that the dispositional order giving DSS adoptive authority be set aside upon the grounds of violation of her due process rights as "custodian" of the children, when she did not receive notice of the proceedings terminating father's parental rights in accord with § 1912(a). The trial court, for reasons discussed later, reopened the proceedings for an additional dispositional hearing which lasted six days and, thereafter, entered a final dispositional order

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terminating any custodial rights V.J. may have had and giving DSS adoptive authority. That order is the basis for V.J.'s appeal # 16217.

On October 26, 1988, when briefing on V.J.'s appeal was nearly complete, Tribe, apparently at the instigation of V.J., filed with this court a motion to intervene and requesting transfer of the matter to tribal court. This court remanded the case to the trial court for an evidentiary hearing on the motion. After the hearing, the trial court granted Tribe's motion to intervene but denied the motion to transfer. The denial of transfer is the basis for Tribe's appeal # 16669 and the grant of intervention is the basis for the children's notice of review, # 16672. On May 10, 1988, after children had filed their notice of review, we granted leave to all parties to file additional briefs on the new issues raised by Tribe and children.

V.J. raises four issues on appeal, which we will review in the following order, to-wit:

(1) The trial court lacked jurisdiction due to the failure to notify her of the child custody proceedings in conformity with § 1912(a).

(2) There is insufficient evidence to support the trial court's findings as required by § 1912(f).

(3) DSS failed to provide remedial services and rehabilitative programs to prevent the disruption of the placement in conformity with § 1912(d).

(4) The removal of the children was improper under the provisions of § 1920.

In the first issue, V.J. contends that the trial court lacked jurisdiction due to DSS' failure to give proper notice, particularly notice to her, as the "Indian custodian" ³ of the children, of the March, 1987, proceeding, wherein the parental rights of their father were terminated and DSS was given adoptive authority. She also makes an assertion that the entire proceedings from the inception are void because of lack of proper notice to Tribe. That issue is also raised by Tribe in their appeal # 16669, and we will reserve discussion of that aspect of her appeal until we reach the discussion of the tribal appeal.

The notice requirements of the Act, found in § 1912(a) provides in pertinent part:

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (Emphasis added.)

Factually, it appears that V.J. became a party to the proceedings as a Respondent, represented by counsel of record, back in early 1985, when the initial dependency and neglect hearing was scheduled relating to the children. At that time, a trial on the issue was waived. The parents, by their counsel of record at that time, and V.J., by her counsel of record, stipulated that the children were dependent and neglected and that legal custody of the children could be given to DSS. The stipulation further provided for evaluation of the parents and V.J. for chemical dependency and a minimum course of treatment if the evaluator deemed it appropriate. The physical custody of S.J. was placed in V.J. and the physical custody of J.J. was left with Mother. Subsequently, however, physical custody of J.J. also went to V.J.. Physical custody of both children was given to V.J. by DSS, not by either of children's parents.

On March 24, 1986, a dispositional hearing was heard on Mother's parental rights and resulted in termination. The record does not reflect that V.J. was a party to, or received notice of, that proceeding. But V.J. made no issue of it, so we consider that to be waived. The record reflects that proceedings were had regarding the termination of father's parental rights and resulted

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in an order of termination directing that the children be placed with V.J. for adoption subject to further hearing if the adoptive placement is unsuccessful. That order was dated the 14th day of January, 1987, nunc pro tunc December 24, 1986.

Prior to the actual entry of that order, and while both children were apparently in V.J.'s care, S.J. was brutally raped and abused on January 1, 1987. Further investigation by DSS disclosed that J.J. had likewise suffered physical and sexual abuse while in V.J.'s care. DSS removed the children from V.J.'s home and secured a court order setting aside the January 14, 1987, order and setting further dispositional proceedings. Such proceedings were held on March 5, 1987, resulting in another final dispositional order dated May 7, 1987, nunc pro tunc March 5, 1987, placing the children with DSS with full adoptive rights. Because she apparently was not notified of the January, 1987, and March, 1987, proceedings for termination of father's parental rights, V.J., in July 1987, petitioned the court to set aside that portion of the father's termination order that specifically allowed adoption...