Interest of E.T. , 2019 S.D. 23 ( 2019 )

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2019 S.D. 23IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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The People of the State of South Dakota in the
Interest of E.T., Child, and Concerning, A.T. and J.H.,
Respondents, OGLALA SIOUX TRIBE, Intervenor.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE MATTHEW M. BROWN
Judge
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CASSIDY M. STALLEY
Lynn, Jackson, Shultz & Lebrun, P.C.
Rapid City, South Dakota Attorneys for child E.T. and
appellant.
DANA L. HANNA
Rapid City, South Dakota Attorney for intervenor and
appellee.
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CONSIDERED ON BRIEFS
ON JANUARY 7, 2019
OPINION FILED 04/17/19
CORRECTED ON 08/28/19
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SALTER, Justice
[¶1.] This is an appeal from a final dispositional order transferring
jurisdiction of an abuse and neglect proceeding to tribal court. Counsel for the child
maintains the circuit court abused its discretion when it granted the motion to
transfer because the court improperly refused expert-witness testimony at the
transfer hearing, the proceeding was at an advanced stage, and the court
erroneously determined the father’s objection to the transfer was untimely. We
reverse and remand for the purpose of conducting an evidentiary hearing.
Facts and Procedural History
[¶2.] On September 1, 2016, one day after her birth, law enforcement
removed E.T. (Child) from A.T.’s (Mother) care after both Child and Mother tested
positive for the presence of methamphetamine in their systems. Having reason to
know Child and Mother were affiliated with the Oglala Sioux Tribe (the Tribe), the
Department of Social Services (DSS) notified the Tribe of Child’s removal pursuant
to the provisions of the Indian Child Welfare Act (ICWA). The Tribe intervened at
the initial “48-hour” emergency-custody hearing and received timely notice of all
additional filings. In a September 28, 2016 petition, the State alleged that Child
was abused or neglected.
[¶3.] DSS initially placed Child into foster care. However, after Mother
completed an outpatient-treatment program, DSS placed Child with Mother on an
in-home safety plan on January 5, 2017. But the reunification was short-lived.
Mother was arrested on January 13, 2017, for missing a urinalysis required in
connection with a pending criminal case, and Child was placed back into foster care.
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[¶4.] Despite the setback, Mother continued to work with DSS. She
obtained part-time employment, completed a parenting class, submitted to twice-
weekly urinalysis testing and daily PBTs, and consistently participated in weekly
visitation with Child. Mother also earned enough money to pay her child support
arrears regarding a different child, allowing her to be freed of her work release
requirement and to have her ankle monitor removed. 1 Mother was doing so well, in
fact, that at an August 9, 2017 review hearing, the circuit court instructed DSS to
begin working on another in-home safety plan so Child could be returned to
Mother’s care.
[¶5.] Before a plan could be finalized, however, Mother was arrested on
August 26, 2017. She was driving while intoxicated, struck another vehicle, and
then fled the scene. The circuit court granted Mother bond on these charges, but
she was taken into custody again on September 14, 2017, for a 24/7 sobriety
program violation. At a review hearing held October 4, 2017, the State and Child’s
counsel requested the matter be set for a final dispositional hearing. The State
served notice of the final dispositional hearing on the Tribe on October 6, 2017.
[¶6.] At the outset of what was to have been the final dispositional hearing
on November 27, 2017, before any argument or evidence was presented, the Tribe
orally moved to transfer the abuse and neglect case to tribal court. Child’s counsel
1. Though the record from the unrelated child support enforcement action is not
included in the record on appeal, the current record does contain references
to the child support case and certain restrictions placed upon Mother. We
interpret these to be conditions imposed by the court presiding over the
enforcement action to obtain compliance with the child support order.
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resisted the motion, arguing the transfer request came at an advanced stage of the
case and was contrary to Child’s best interests.
[¶7.] The circuit court suspended the final dispositional hearing and held a
transfer hearing on January 4, 2018. To support the objection to the Tribe’s
transfer request, Child’s counsel attempted to present expert medical testimony
from Child’s pediatrician, Dr. David Whitney. The Tribe claimed it had insufficient
notice of the substance of Dr. Whitney’s expert opinions and requested an offer of
proof. Child’s counsel obliged and offered the following:
Dr. Whitney is going to testify about the bond that develops
between an infant and their caregiver and what happens when
that bond is broken to a child physically, mentally, and
emotionally.
And that testimony is going to be used to establish good
cause because at this point in time, the tribe waited until the
day of the final dispositional hearing, which was well [over] a
year after [Child] came into care. . . .
The BIA guidelines specifically also state that the [c]ourt
can consider exceptional circumstances. And this is an
exceptional circumstance because we have a baby that was
placed at birth with the people that have been her primary
caregiver. They are the only family she knows. This is not a
case where we have a four year old that’s taken temporarily
from their parents or grandparents and then is going to be
returned home or we can explain to them what’s happening.
This is an infant who only knows [Foster Parents] and
knows them as Mom and Dad. We can’t explain to [Child]
what’s going to happen to her and she will face long-term and
short-term physical and emotional effects and that’s what Dr.
Whitney is going to testify to.
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[¶8.] In response, the Tribe objected to the entirety of Dr. Whitney’s
proposed testimony, 2 arguing bonding between Child and the foster parents was not
an appropriate factor to consider when determining a motion to transfer. The
circuit court sustained the Tribe’s objection and excluded Dr. Whitney’s expert
opinions. The court noted that bonding “in and of itself” did not constitute good
cause to deny transfer, but it also recognized that the best interests of the child is a
relevant factor to consider. The court, nevertheless, determined Dr. Whitney’s
testimony would be irrelevant, reasoning the testimony could be useful only to
establish an accepted and unremarkable general proposition that a delay in seeking
transfer can impact a child’s best interests. The circuit court received no other
testimony or exhibits. It took the motion to transfer under advisement to determine
if good cause existed to deny the motion, given the Child’s argument that the
proceeding was at an advanced stage.
[¶9.] After receiving post-hearing briefing from Child’s counsel, the circuit
court entered findings of fact and conclusions of law on February 21, 2018. The
court ultimately determined the proceeding was not at an advanced stage because
no argument or evidence was presented at the final dispositional hearing before the
Tribe made its motion to transfer.
[¶10.] On February 22, 2018, one day after the circuit court’s findings and
conclusions were entered, but before a final order was entered, J.H. (Father)
2. Though Dr. Whitney was present at the hearing and had provided
preliminary testimony about his qualifications, he did not provide testimony
for the offer of proof, which was more in the nature of a proffer by Child’s
counsel. The parties have not alleged the form of the offer of proof is
significant in this appeal.
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objected to the transfer through his counsel. The circuit court entered a final order
on March 1, 2018, granting the Tribe’s motion to transfer. On March 20, 2018, the
court entered an order denying Father’s objection to the transfer because it was not
in proper form 3 and because it was untimely. Child’s counsel filed an application
for special relief, requesting this Court to enter a stay in the matter pending appeal.
We granted the application and stayed the circuit court’s transfer order.
Analysis
[¶11.] Under the ICWA, state courts and tribal courts share concurrent
jurisdiction over abuse and neglect cases involving Indian children who are not
domiciled on reservations or wards of a tribal court. Miss. Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 36, 109 S. Ct. 1597, 1602, 104 L. Ed. 2d 29 (1989) (citing
25 U.S.C. § 1911(b)). However, this shared jurisdiction is presumptively tribal. Id.As such, state courts must transfer, upon motion, foster-care-placement and
termination-of-parental-rights proceedings to tribal court jurisdiction unless
1) either parent objects; 2) the tribal court declines jurisdiction; or 3) good cause to
the contrary exists. Id.[¶12.] If a party objects to the transfer on the grounds that good cause to the
contrary exists, all parties must be given the “opportunity to provide the court with
views regarding whether good cause to deny transfer exists.” 25 C.F.R. § 23.118.
The admissibility of evidence regarding good cause is generally governed by the
3. Father, who was living in Arkansas, indicated to his counsel that he objected
to the transfer. Counsel emailed the circuit court and the other parties,
notifying them of Father’s objection and informing them that Father would
state his objection on the record when requested.
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rules of evidence. We note, however, that the rules of evidence may be relaxed
when considering the disposition of juvenile matters, which includes the transfer of
jurisdiction to a tribal court. See SDCL 26-7A-56. “Questions of the relevance of
proffered testimony are committed to the discretion of the trial court and this court
will not reverse its ruling absent an abuse of discretion.” State v. Olson,
408 N.W.2d 748, 752 (S.D. 1987). “An abuse of discretion ‘is a fundamental error of
judgment, a choice outside the range of permissible choices[.]’” In re A.O., 2017 S.D.
30, ¶ 8, 896 N.W.2d 652, 654 (quoting MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9,
871 N.W.2d 617, 622).
[¶13.] The statutory provisions of the ICWA do not define “good cause to the
contrary.” Historically, the Bureau of Indian Affairs (BIA) has issued guidelines for
state courts to assist in determining the existence of good cause to deny a motion to
transfer. Though they were not binding upon this Court, we have recognized that
these guidelines, issued in 1979 and in 2015, were “given important but not
controlling significance.” In re A.L., 442 N.W.2d 233, 236 (S.D. 1989) (quoting
Batterton v. Francis, 432 U.S. 416, 424–25, 97 S. Ct. 2399, 2405, 53 L. Ed. 2d 448,
456 (1977)).
[¶14.] In 2016, however, the BIA undertook formal rule-making and
promulgated binding regulations which address, among other things, motions to
transfer ICWA cases to tribal jurisdiction. See 25 C.F.R. § 23.115, et seq. The BIA
subsequently issued its corresponding 2016 guidelines that expressly “replace the
1979 and 2015 versions of the Department’s guidelines.” Guidelines for
Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96,476 (Dec. 30, 2016).
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[¶15.] Though they do not provide a specific definition of “good cause,” the
2016 regulations and guidelines effect noteworthy changes to the BIA’s previous
regulatory efforts in ICWA transfer determinations. First, the 2016 regulations
have the effect of law and are binding upon state courts. 4 See In re M.H., 2005 S.D.
4, ¶ 10 n. 3, 691 N.W.2d 622, 625 n. 3 (observing BIA guidelines are not binding
because “the BIA did not promulgate their guidelines for state courts in Indian child
custody proceedings as regulations”). Second, rather than listing relevant
considerations for the determination of good cause to deny a motion to transfer, as
the earlier guidelines had, the 2016 regulations proscribe certain enumerated
considerations including, among others, “whether transfer could affect placement of
the child.” See 25 C.F.R. § 23.118 (listing proscribed considerations for
determination of good cause to deny a motion to transfer jurisdiction).
[¶16.] With or without the 2016 regulations, though, circuit courts need the
benefit of a sufficiently developed record to assist in the good cause determination.
See A.O., 2017 S.D. 30, ¶ 13, 896 N.W.2d at 656; In re M.C., 504 N.W.2d 598, 601
(S.D. 1993). In both A.O. and M.C., we held that the circuit court should have
conducted an evidentiary hearing before determining the motion to transfer
jurisdiction. In the absence of a developed record, we are unable to conduct
meaningful appellate review concerning the merits of the parties’ claims.
4. The parties have not challenged the validity of the 2016 BIA regulations.
Cf. Brackeen v. Zinke, 338 F.Supp.3d 514, 542-544 (N.D. Tex. 2018) (declaring
disputed portions of 2016 BIA regulations invalid, reasoning that the BIA
lacks authority under the ICWA to issue regulations binding on the states).
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[¶17.] As it relates to this case, we conclude that the circuit court abused its
discretion when it granted the Tribe’s motion to transfer without hearing the
testimony of the child’s physician who was present in the courtroom. Relying upon
the impromptu offer of proof by Child’s counsel, the court determined that Dr.
Whitney’s testimony was categorically irrelevant. We disagree.
[¶18.] Proffered evidence is relevant under our rules if:
(a) It has any tendency to make a fact more or less probable than it
would be without the evidence; and
(b) The fact is of consequence in determining the action.
SDCL 19-19-401 (Rule 401).
[¶19.] Here, Dr. Whitney was Child’s pediatrician and had been for most of
her young life. His testimony concerning the impact of the transfer upon Child may
well have yielded relevant and admissible evidence. Separate and apart from
placement or bonding concerns, it is possible that at least some of Dr. Whitney’s
opinions could have been relevant to broader best-interests considerations such as
stability, health or the presence of extraordinary circumstances. See In re J.L.,
2002 S.D. 144, ¶¶ 18-19, 23, 654 N.W.2d 786, 791 (providing the best interests of
the child may constitute good cause for denying a motion to transfer).
[¶20.] We understand that the proffer relating to Dr. Whitney’s proposed
testimony by Child’s counsel seemed to implicate opinions involving prohibited
considerations such as bonding and placement. However, we do not think the
proffered testimony should be viewed as exclusively involving prohibited
considerations. Rather, we believe the context of the proffer and the court’s ability
to relax the rules of evidence suggest the need for flexibility in its assessment.
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[¶21.] In this regard, there was apparently no procedural requirement noted
by any party or the court that obligated Child’s counsel to identify Dr. Whitney as
an expert witness and disclose the substance of his opinions prior to the transfer
motion hearing. For this reason, the offer of proof was requested by the Tribe’s
counsel to provide an idea of the proposed testimony before there was even an
objection to the testimony, much less a ruling from the court. This process differs
from the more common offer of proof which is sought by a party adversely impacted
by a court’s evidentiary ruling as a means of carefully establishing a factual record
for appellate review. See State v. Sprik, 520 N.W.2d 595, 600 (S.D. 1994) (failure to
make an offer of proof deprives an appellate court of a record for appellate review).
Under the circumstances here, the court’s view of the offer of proof was too narrow,
particularly given the fact that the proffer also described Dr. Whitney’s anticipated
testimony in broader best-interests terms concerning stability, health and the
harmful effects of delay—e.g., “We can’t explain to [Child] what’s going to happen to
her and she will face long-term and short-term physical and emotional effects and
that’s what Dr. Whitney is going to testify to.”
[¶22.] We, therefore, reverse the circuit court’s order to transfer jurisdiction
to tribal court and remand for further proceedings to determine the Tribe’s motion
for transfer anew. Because the evidentiary issue is dispositive of this intermediate
appeal, it is unnecessary to address the other issues presented by Child.
[¶23.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and
SEVERSON, Retired Justice, concur.
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