Interest of A.O., V.O. & C.O.

#27864, #27999-r-DG
2017 S.D. 30IN 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 A.O., V.O., and C.O., Children, and Concerning
V.S.O., Respondent, C.G., Indian Custodian and
OGLALA SIOUX TRIBE, Intervener.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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HONORABLE ROBERT MANDEL
Judge
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CONOR DUFFY of
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for appellant Mother
V.S.O.
JOSEPH N. THRONSON
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota Attorneys for appellee State of
South Dakota.
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CONSIDERED ON BRIEFS
ON APRIL 24, 2017
OPINION FILED 05/24/17
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GILBERTSON, Chief Justice
[¶1.] Law enforcement removed A.O., V.O., and C.O. (the Children) from the
home of their mother, V.S.O. (Mother), after discovering methamphetamine and
drug paraphernalia in the home. More than one year after the State initiated
abuse-and-neglect proceedings against Mother, who is an enrolled member of the
Oglala Sioux Tribe (the Tribe), the circuit court denied motions to transfer the case
to the jurisdiction of the Tribe. Mother argues that the circuit court erred by
denying the motions without holding an evidentiary hearing. We reverse and
remand.
Facts and Procedural History
[¶2.] On November 23, 2014, Rapid City Police responded to a call reporting
that A.O. had fallen and sustained a neck injury at Mother’s residence. 1 While
checking on the child, who was in Mother’s bedroom, officers noticed drug
paraphernalia, including a pipe. The pipe tested positive for methamphetamine.
1. Mother was not the legal custodian of the Children at the time. The State of
Nebraska previously took the Children into custody in January 2012. In May
2013, the Tribe requested the proceedings be transferred to its jurisdiction,
and Nebraska obliged. The Tribe subsequently awarded custody to the
Children’s great-grandmother, C.G. (Great-Grandmother). The Children’s
father’s parental rights have previously been terminated. At the time of the
November 23, 2014 call, Great-Grandmother had temporarily returned the
Children to Mother. Great-Grandmother subsequently informed the South
Dakota Department of Social Services that she is no longer able to care for
the Children.
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Mother also provided a urine sample, which tested positive for both
methamphetamine and marijuana. 2
[¶3.] The same day, the State asked the circuit court to award temporary
custody of the Children to the South Dakota Department of Social Services (the
Department). The court granted the request. The Tribe was given timely notice
and intervened. On December 18, 2014, the State filed a petition alleging the
Children were abused or neglected. The court held an advisory hearing on
December 29, during which it appointed one attorney to represent the interests of
the Children and another to represent their legal guardian, Great-Grandmother. At
an adjudicatory hearing on February 18, 2015, Mother and Great-Grandmother
admitted to portions of the petition.
[¶4.] The Department evaluated Mother’s ability to care for the children and
worked with her to develop a case plan. As part of the case plan, the Department
required Mother to: (1) maintain stable housing and employment, (2) complete a
chemical-dependency evaluation and follow all resulting recommendations, (3)
complete family therapy, and (4) maintain sobriety and complete regular urinalyses.
After review hearings on April 6, June 1, and July 27, 2015, the Department was
not satisfied with Mother’s progress. At the following review hearing on
September 2, the Department asked the court to set a final dispositional hearing.
Counsel for the Children joined the Department’s request. Counsel for Mother,
Great-Grandmother, and the Tribe asked the court to instead set another review
2. The State subsequently charged Mother with possession of a controlled
substance and paraphernalia.
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hearing, arguing that a number of factors contributed to Mother’s delay in meeting
the goals detailed in her case plan. 3 The court agreed to set one more review
hearing.
[¶5.] The court held the fifth review hearing on November 16. The
Department again asked the court to schedule a final dispositional hearing. The
Department indicated that it intended to seek the termination of Mother’s parental
rights at such hearing. Mother’s counsel objected, asserting that since the last
review hearing, Mother had obtained both employment and an apartment. He also
indicated that Mother had been regularly undergoing urinalyses with court
services. The parties and the circuit court agreed to set an additional review
hearing for December 14. However, the court also scheduled a final dispositional
hearing for January 25, 2016.
[¶6.] After the November 16, 2015 hearing but before the December 14, 2015
hearing, the Tribe submitted a motion to transfer the proceedings to its jurisdiction.
The circuit court considered the motion at the December 14 review hearing.
Because the case had been open for over a year, counsel for the Department and the
Children objected to the motion as untimely. Counsel for Mother joined the Tribe in
asking the court to set a separate hearing on the issue. The court declined to hold a
separate hearing, and it denied the motions. Following a final dispositional hearing
on January 25 and February 17, 2016, the court terminated Mother’s parental
rights.
3. For example, Mother was not sentenced in the criminal proceedings until
July 2015. She also asserted her progress had been slowed by an unspecified,
work-related injury.
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[¶7.] Mother appeals the termination of her parental rights, raising one
issue: Whether she was entitled to a hearing on the question whether good cause
existed to deny the motions to transfer jurisdiction to the Tribe.
Standard of Review
[¶8.] “Denial of a motion to transfer jurisdiction under [the Indian Child
Welfare Act] is reviewed under the abuse of discretion standard.” In re D.M.,
2004 S.D. 90, ¶ 5, 685 N.W.2d 768, 770. “An abuse of discretion ‘is a fundamental
error of judgment, a choice outside the range of permissible choices . . . .’”
MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622 (quoting Gartner
v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). The circuit court’s “factual
determinations are subject to a clearly erroneous standard.” Id. (quoting Gartner,
2014 S.D. 74, ¶ 8, 855 N.W.2d at 850). Under this standard, we will not disturb the
court’s factual findings unless after reviewing the record, “we are left with a definite
and firm conviction that [the court made] a mistake[.]” Gartner, 2014 S.D. 74, ¶ 8,
855 N.W.2d at 850 (quoting Estate of Olson, 2008 S.D. 97, ¶ 9, 757 N.W.2d 219,
222).
Analysis and Decision
[¶9.] There is no dispute that this case is governed by the Indian Child
Welfare Act (ICWA). Under ICWA,
[i]n any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child’s
tribe, the court, in the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe,
absent objection by either parent, upon the petition of either
parent or the Indian custodian or the Indian child’s tribe:
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Provided, That such transfer shall be subject to declination by
the tribal court of such tribe.
25 U.S.C. § 1911(b) (2012) (emphasis added). Mother argues the circuit court erred
by denying her and the Tribe’s motions to transfer the proceedings to tribal court
without first holding a hearing to determine whether good cause existed to deny the
motions. According to Mother, the court’s denial of the motions deprived her of
notice of the Department’s objection to the motions as well as an opportunity to be
heard. The State argues that the circuit court “had sufficient evidence from which
it determined that the proceedings were too far along to transfer the case to tribal
court.”
[¶10.] As the language of 25 U.S.C. § 1911(b) indicates, transfer of a
qualifying proceeding is generally mandatory when requested, subject only to the
objection of the child’s parents, the formal refusal of the tribal court, or a finding of
good cause to deny the transfer. People ex rel. M.C., 504 N.W.2d 598, 601 & n.2
(S.D. 1993). “The burden of establishing good cause to the contrary is on the party
opposing transfer[,]” id. at 601, which in this case was the Department. “[A]
jurisdictional hearing is required before the court can enter an order either granting
or denying a request for the transfer of jurisdiction of Indian children to tribal
custody.” Id. (emphasis added) (quoting In re G.L.O.C., 668 P.2d 235, 237 (Mont.
1983)). While good cause may exist if “[t]he proceeding [is] at an advanced stage
when the petition to transfer [is] received[,]” id. at 600 (quoting In re Dependency &
Neglect of A.L., 442 N.W.2d 233, 236 (S.D. 1989)), the determination “whether a
petition is timely must be made on a case-by-case basis[,]” id. “In deciding if ‘good
cause to the contrary’ exists . . . , the [circuit] court should make specific
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findings . . . .” Id. at 602 (quoting Chester Cty. Dep’t of Soc. Servs. v. Coleman,
372 S.E.2d 912, 915 (S.C. Ct. App. 1988)).
[¶11.] We agree that the court’s denial of the request to transfer was
improper. It is undisputed that the circuit court refused to hold a separate
evidentiary hearing on the question of good cause. And the court’s commentary on
the issue during the December 14, 2015 review hearing consists only of the
following 4:
Well, it’s going to be the Court’s finding that the motion to
transfer is not timely and it’s going to be denied in this case. I
note this case is—was open last November, 2014. The [T]ribe’s
apparently been aware of it for more than a year. No efforts
were made to get it transferred before this time, and I—my real
concern is, it just is contrary to the interests of the children to
start over from square one after a year has proceeded in the
matter, so that motion is going to be denied.
As noted above, in determining whether the motions to transfer were timely, the
court was required to consider all the particular circumstances of this case, not
simply the amount of time that had passed since the proceedings first began. See
id. at 600. Although this case was over one year old, it had not yet reached final
disposition. Without knowing the Tribe’s and Mother’s reasons for waiting to seek
transfer, the circuit court necessarily did not consider all the circumstances of this
case.
[¶12.] The court’s finding that transferring jurisdiction was not in the best
interest of the Children is susceptible of the same criticism. As above, the absence
of specific factual findings precludes meaningful review. The Tribe intervened and
4. The court did not issue written findings of fact on the issue of good cause.
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has been involved in this case since nearly its beginning. The Tribe has been
represented at each of Mother’s review hearings. The circuit court did not identify
any reason to conclude that transferring jurisdiction to the Tribe would have
amounted to a “start over from square one[.]” And even if it had, the best interest of
a child cannot be determined by considering solely the length of time spent in foster
care. Like the timeliness issue, the question whether denying the transfer was in
the best interest of the Children is one best answered after affording Mother a full
opportunity to present evidence and argument.
Conclusion
[¶13.] The circuit court was required to conduct an evidentiary hearing on
the question whether good cause existed to deny Mother’s and the Tribe’s motions to
transfer the proceedings to the Tribe’s jurisdiction. The court was also required to
make specific factual findings on this issue. The court failed to do so. Therefore,
the court abused its discretion in denying the motions.
[¶14.] We reverse the circuit court’s final dispositional order and remand
with instructions for the court to hold an evidentiary hearing on the question
whether good cause exists to deny the motions to transfer.
[¶15.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
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