Cheyenne River Sioux Tribe v. Davis ( 2012 )

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2012 S.D. 69IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
CHEYENNE RIVER SIOUX TRIBE, Petitioner,
v.
THE HONORABLE JEFF W. DAVIS,
PRESIDING JUDGE OF THE SOUTH
DAKOTA SEVENTH JUDICIAL CIRCUIT, Respondent.
* * * *
ORIGINAL PROCEEDING
* * * *
DANA L. HANNA
Rapid City, South Dakota Attorney for petitioner.
NATHAN R. OVIATT of
Goodsell Quinn, LLP
Rapid City, South Dakota Attorneys for respondent
The Honorable Jeff W. Davis.
GLENN A. BRENNER
Pennington County State’s Attorney
PATRICK GRODE
Pennington County Deputy State’s Attorney
Rapid City, South Dakota Attorneys for respondent
State of South Dakota.
* * * *
SUBMITTED ON
AUGUST 31, 2012
OPINION FILED 10/10/12
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GILBERTSON, Chief Justice
[¶1.] This is an original proceeding for a writ of mandamus or prohibition
commenced by the Cheyenne River Sioux Tribe (Tribe) against the Honorable Jeff
W. Davis, Presiding Judge of the Seventh Judicial Circuit.1 We dismiss the
application for a writ.
Facts and Procedural History
[¶2.] Three unattended Native American children, ages sixteen, twelve, and
three, were taken into custody from their residence by the Rapid City Police
Department in the early morning hours of July 6, 2012. Oldest child was found
intoxicated and suffering from seizures. Oldest child was hospitalized while the two
younger children were placed into foster care.
[¶3.] On the morning of July 6, a specialist for the South Dakota
Department of Social Services (DSS) notified Tribe as to the custody of the children.
State filed a petition for temporary custody and the forty-eight hour temporary
custody hearing was held before Judge Davis at approximately 1:30 p.m. on July 9,
2012.2
1. In beginning this action, Tribe failed to comply with SDCL 15-25-2 requiring
an application to this Court for permission to commence original proceedings
and for this Court to fix the procedures to be followed therein. In view of the
importance of the questions presented, however, we waive the application
requirement in this instance.
2. SDCL 26-7A-15 requires a temporary custody hearing when a child is taken
into temporary custody. The hearing must be held within forty-eight hours if
the child is an apparent abused or neglected child. Id. “At the temporary
custody hearing the court shall consider the evidence of the need for
continued temporary custody of the child in keeping with the best interests of
(continued . . .)
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[¶4.] Mother appeared at the temporary custody hearing and requested the
appointment of counsel. Tribe appeared through counsel and was permitted to
intervene pursuant to the Indian Child Welfare Act (ICWA). Based upon State’s
petition, the police report and an ICWA affidavit from a DSS specialist, the court
granted temporary custody of the children to DSS for sixty days. Citing ICWA,
Tribe contested the custody order and sought to address the facts of the case and to
present evidence. The court denied these efforts on the basis that it was a forty-
eight hour hearing and mother did not yet have representation. The court did,
however, indicate a willingness to revisit the situation later that day or when
counsel for mother was available. The court also noted DSS’s authority to return
the children at any time if the situation was remedied or if continued custody was
not warranted. The court also ordered DSS to consider and investigate mother’s
parents as a temporary placement. Tribe moved for a hearing in a week or in the
“reasonably near future” to consider the factual basis for taking the children. The
court denied the motion and the next hearing in the matter was scheduled for
September 4, 2012.
[¶5.] On August 9, 2012, a month after the temporary custody hearing,
Tribe filed an application for a writ of mandamus or prohibition from this Court to
compel a new temporary custody hearing or to arrest further proceedings in the
case until a new hearing could be held. On August 15, this Court issued an order to
________________________
(. . . continued)
the child. The temporary custody hearing may be conducted telephonically
when necessary as determined by the court.” SDCL 26-7A-18. Temporary
custody must be reviewed every sixty days. SDCL 26-7A-19(2).
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show cause as to why the application should not be dismissed on the grounds that
Tribe had a plain, speedy, and adequate remedy at law in the next hearing
scheduled in the matter for September 4, 2012. Tribe and Judge Davis filed
responses to the order to show cause. State submitted a response joining that of
Judge Davis. Tribe also submitted an application for leave to file a reply to Judge
Davis and a reply which we have considered in our review of this matter.
[¶6.] Tribe’s response to the order to show cause and the other responses
provided new information not previously conveyed or unclear in the original writ
application. Within a week of the original temporary custody hearing, this case was
reassigned from Judge Davis to Circuit Court Judge Mary P. Thorstenson. A
hearing was held before Judge Thorstenson on July 16, 2012. At that hearing,
Tribe’s counsel advised that physical custody of middle child had been returned to
her father who was her legal guardian. Accordingly, middle child was no longer a
part of the case. Tribe’s counsel also advised that Tribe had filed a motion to
transfer youngest child’s case to Tribal Court and that this was the primary purpose
of the hearing. Mother’s counsel made a motion to also transfer oldest child’s case
to Tribal Court. A discussion ensued as to whether oldest child would object to the
transfer. The court ultimately approved the transfer of youngest child’s case to
Tribal Court, but continued the matter as to oldest child. Tribe’s counsel then
challenged oldest child’s temporary placement and questioned the lack of adherence
to relative placement preferences under ICWA. State pointed out the case was still
in the “emergency custody time frame” and at the “initial phase[].” The case was
then continued until the following week on July 23, 2012.
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[¶7.] At the July 23 hearing, Judge Thorstenson indicated its purpose was to
consider a continued request to transfer oldest child’s case to Tribal Court. Tribe’s
counsel advised that Tribe would object to the transfer because of the absence of a
plan for oldest child. Oldest child’s counsel indicated oldest child would not object
to a transfer and hoped for a placement with an aunt living on the Reservation.
Tribe’s counsel once again raised the issue of lack of compliance with ICWA
placement preferences. At that point, the court advised that the proceedings were a
continuation of the emergency hearing and that ICWA placement preferences were
not yet applicable. However, the court did instruct DSS to look into the temporary
placement of oldest child with her aunt.3 This was the posture of the proceedings at
the time Tribe filed its writ application.
Analysis
[¶8.] Tribe continues to request a new temporary custody hearing in this
matter in which the full panoply of ICWA requirements and standards would be
applied. Tribe contends the lack of such a hearing violates its federal and state
rights and that it is irreparably harmed by the lack of any mechanism to contest the
trial courts’ failure to fully follow ICWA at the temporary custody stage.
[¶9.] A review of pertinent authorities refutes Tribe’s contentions. Courts in
at least five different states have considered and rejected the argument that ICWA
fully applies at the stage of a temporary or emergency custody proceeding. See
3. An affidavit from a DSS specialist submitted with the State’s response to this
Court’s order to show cause indicates that oldest child was placed with her
aunt on August 22, 2012.
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State ex rel. Juvenile Dep’t v. Charles, 688 P.2d 1354, 1358 (Or. Ct. App. 1984)
(holding that emergency removal of a child is initially purely a state law matter not
subject to all ICWA requirements); D.E.D. v. State of Alaska, 704 P.2d 774, 779
(Alaska 1985) (holding certain notice requirements under ICWA inapplicable to
emergency custody proceedings or emergency hearings); Matter of the Welfare of
J.A.S., 488 N.W.2d 332, 335 (Minn. Ct. App. 1992) (holding the testimony of a
qualified Indian expert was not required at the initial detention hearing in the case
since that hearing was an emergency removal); In re S.B. v. Jeannie V., 30 Cal.
Rptr. 3d 726, 734-36 (Cal. Ct. App. 2005) (holding that not all provisions of ICWA
apply to a detention/emergency removal hearing); State ex rel. Children, Youth and
Families Dep’t v. Marlene C., 248 P.3d 863, 872-74 (N.M. 2011) (holding that New
Mexico’s ex parte and custody hearing stages are emergency proceedings to which
the full requirements of ICWA do not apply).
[¶10.] While the precise reasoning of these courts varies with the facts of
each case and with the individual state’s procedures, each decision ultimately rests
upon § 1922 of ICWA providing in pertinent part:
Nothing in this subchapter shall be construed to prevent the
emergency removal of an Indian child who is a resident of or is
domiciled on a reservation, but temporarily located off the
reservation, from his parent or Indian custodian or the
emergency placement of such child in a foster home or
institution, under applicable State law, in order to prevent
imminent physical damage or harm to the child.
25 U.S.C. § 1922 (emphasis added). Moreover, notwithstanding the “temporarily
located” language in this provision, four of the above courts have specifically
recognized § 1922’s applicability to all Indian children. See Charles, 688 P.2d at
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1358 n.2; J.A.S., 488 N.W.2d at 335; S.B., 30 Cal. Rptr. 3d at 735-36; Esther V., 248
P.3d at 873. As succinctly reasoned by the California Court of Appeals on this
issue:
[I]t would make no sense to give a state more power to make an
emergency placement of an Indian child who lives on a
reservation than one who lives off the reservation. Thus, as the
legislative history confirms, Congress intended this section to
apply to emergency removals and placements of all Indian
children. (H.R. Rep. No. 95—1386, 2d Sess., p.25 (1978),
reprinted in 1978 U.S. Code Cong. & Admin. News, pp.7530,
7548.)
S.B., 30 Cal. Rptr. 3d at 736 (emphasis original).
[¶11.] Based upon § 1922 and ICWA’s inapplicability to temporary or
emergency custody proceedings under state law, both trial courts here appropriately
rejected Tribe’s invocation of ICWA and requests for a new temporary custody
hearing conducted in full accord with ICWA.
[¶12.] Tribe also asserts a violation of state law in the temporary custody
hearing based upon an alleged lack of evidence of a need for temporary custody as
required by SDCL 26-7A-18. Tribe ignores, however, that the temporary custody
hearing proceeded on State’s petition for temporary custody and the accompanying
police report and ICWA affidavit from a DSS specialist. The report and affidavit set
forth facts concerning the need for temporary custody. While these documents
might not constitute evidence within the normal bounds of the Rules of Evidence,
those rules are not applicable at a temporary custody hearing. See SDCL 26-7A-34
(stating that the Rules of Civil Procedure apply to adjudicatory hearings, but that
all other juvenile hearings are to be conducted to inform the court of the status of
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the child and to ascertain the child’s history, environment, and condition); SDCL
26-7A-56 (stating that the Rules of Evidence apply to adjudicatory hearings, but
that all other juvenile hearings are to be conducted under rules prescribed by the
court to inform it of the status of the child and to ascertain the child’s history,
environment and condition). Therefore, the police report and affidavit provided
sufficient evidence of a need for temporary custody to permit the trial courts to
proceed here.
Decision
[¶13.] “To prevail on a writ of mandamus or prohibition, Petitioners must
show ‘a clear legal right to performance of the specific duty sought to be compelled
and the [respondent] must have a definite legal obligation to perform that duty.’” H
& W Contracting, LLC v. City of Watertown, 2001 S.D. 107, ¶ 24, 633 N.W.2d 167,
175 (quoting Willoughby v. Grim, 1998 S.D. 68, ¶ 7, 581 N.W.2d 165, 168). See also
Gray v. Gienapp, 2007 S.D. 12, ¶ 18, 727 N.W.2d 808, 812 (stating that, “[t]his
Court has both constitutional and statutory authority to issue a writ of prohibition
to ‘arrest’ or halt the proceedings of any tribunal or lower court under appropriate
circumstances.”).
[¶14.] Tribe has not made this showing with regard to the trial courts’ duty to
follow ICWA at a temporary custody hearing. In fact, nowhere in any of its
pleadings has Tribe cited any case controverting the authorities on this point set
forth above. Accordingly, Tribe is not entitled to mandamus or prohibition and its
application for a writ is dismissed.
[¶15.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.
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