Interest of L.S.

#26132-a-JKK
2012 S.D. 22IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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IN THE MATTER OF L.S.,
ABUSED/NEGLECTED CHILD
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE KATHLEEN K. CALDWELL
Judge
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MARTY J. JACKLEY
Attorney General
BETHANY ERICKSON
Special Assistant Attorney General
Sioux Falls, South Dakota Attorneys for appellee
State of South Dakota.
NICOLE J. LAUGHLIN
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for appellant Mother
C.S.
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CONSIDERED ON BRIEFS
ON FEBRUARY 9, 2012
OPINION FILED 03/21/12
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KONENKAMP, Justice
[¶1.] In this abuse and neglect appeal, the primary question is whether the
Indian Child Welfare Act (ICWA) applies to an Indian child not eligible for tribal
membership.
Background
[¶2.] On March 30, 2010, L.S., age three, went alone to a neighbor’s
apartment because his mother, C.S., was drunk. The neighbor soon called the
police and reported that the mother was acting disorderly. Police officers
responding to the call found C.S. extremely intoxicated with barely intelligible
speech. Her blood alcohol tested at .34. She was arrested on outstanding warrants.
L.S. was removed from her custody.
[¶3.] C.S. began drinking early in life; she was first admitted for inpatient
treatment at age fourteen. Following treatment, she remained sober for nineteen
years. But in 2007 she began drinking again after the deaths of her mother, L.S.’s
father, and a daughter due to Sudden Infant Death Syndrome.
[¶4.] C.S. agreed to work with the Department of Social Services (DSS) in
an effort to regain custody of L.S. She signed a stipulation in June 2010 that L.S.
was an abused or neglected child within the meaning of SDCL 26-8A-2. She also
agreed to a case plan addressing her alcohol and parenting problems. But she
struggled to make her appointments with DSS and visitation sessions with L.S.
When she did attend, she often arrived intoxicated or exhibiting physical signs of
alcohol withdrawal. She resisted initial attempts to treat her alcohol problems,
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including counseling and treatment. She also turned down assistance in obtaining
her GED.
[¶5.] After missing two start dates, C.S. eventually entered inpatient alcohol
treatment in July 2010. She was successfully discharged in August 2010. She
refused to transition into a halfway house, but continued to work on her sobriety
and attended appropriate aftercare groups for four months. She did not take
advantage of any counseling services or parenting programs.
[¶6.] L.S. was returned to C.S. on November 5, 2010, for a trial
reunification. C.S. relapsed, however, after a physical altercation with her adult
son. On November 28, 2010, police officers were dispatched to C.S.’s apartment on
a disorderly person report. Officers found the front door wide open. C.S. and her
live-in boyfriend were passed out in the living room. L.S. was asleep on the couch.
When eventually revived, C.S. had a .25 blood-alcohol level and struggled to
communicate with the officers. C.S. was arrested on an outstanding warrant and
L.S. was taken back into DSS custody.
[¶7.] C.S.’s drinking continued, with frequent missed visits and
appointments. She tested positive for alcohol and marijuana use. She was dropped
from aftercare in April 2011. She missed a scheduled start date for another
inpatient alcohol treatment program. In early June 2011, she lost her job as a
result of her drinking problems.
[¶8.] DSS workers attempted to address other concerns, but C.S. was not
receptive. L.S. had poor nutrition and was obese when he was with her, but his
health improved in foster care. L.S. also had respiratory problems. Although C.S.
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was told it would be best not to smoke around L.S., she continued to smoke in her
apartment and when L.S. was around. DSS was also concerned about C.S.’s two
adult children who either lived or spent significant time at her residence. Both had
chemical dependency issues. C.S.’s adult daughter was arrested after a plastic bag
containing cocaine was found in C.S.’s home. C.S.’s adult son had domestic violence
tendencies and had assaulted C.S. Additionally, C.S.’s live-in boyfriend had
committed domestic violence against both L.S. and C.S. Her boyfriend also abused
alcohol and had kicked C.S. out of the apartment before.
[¶9.] A dispositional hearing scheduled for June 15, 2011 was delayed
because C.S. was in the emergency room for unknown reasons. A DSS worker
discovered later that morning that although C.S. had a high blood alcohol level, she
had been discharged and did not go to detox. At a hearing on June 28, C.S.
requested a delay to recover from the effects of drinking too much. The court
refused but told C.S. she could come and go from the courtroom as necessary. C.S.
left after the first break and did not return.* She had told her case worker that she
was going to go to the emergency room and then to detox. Instead, she went to a
friend’s house. C.S. again failed to begin treatment on July 11, 2011.
[¶10.] When the dispositional hearing was held on July 26, C.S. did not
attend. Again her attorney requested a continuance so that “hopefully [C.S.] can
get to detox[.]” A continuance was denied. Testimony at the hearing established
that L.S. displayed negative behaviors attributable to C.S.’s inconsistent visitation.
L.S.’s behaviors included physical aggressiveness with other children and excessive
* C.S. was represented by counsel at all proceedings.
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anxiety about upcoming visits with C.S. L.S. had been seeing a therapist since
September 2010 and had made considerable progress despite a regression when he
was temporarily returned to C.S.’s home in November 2010. The therapist helped
L.S. address his fears of not being able to wake C.S. up and being alone. They also
worked on L.S.’s reluctance to let others take care of him. Other testimony
established that L.S. improved his communication and physical health while in
foster care. The circuit court terminated C.S.’s parental rights in August 2011.
[¶11.] C.S. is Native American and eligible to be enrolled in the Crow Creek
Sioux Tribe. She indicated that she intended to enroll once she obtained her birth
certificate, but she took no further steps while these proceedings were pending.
Because C.S. was not actually enrolled, an ICWA specialist for the Crow Creek
Sioux Tribe concluded that L.S. was not eligible for enrollment. Since L.S. was not
enrolled or eligible for enrollment, the court found ICWA inapplicable. C.S.
contends on appeal that the court erred in this decision, and erred in terminating
her parental rights as the least restrictive alternative available.
Analysis and Decision
[¶12.] “Parental rights may be terminated if it is in the best interests of the
child and is also the least restrictive alternative available.” In re E.L. & R.L., 2005
S.D. 124, ¶ 10, 707 N.W.2d 841, 845 (citing SDCL 26-8A-26; In re A.S., 2000 S.D. 94,
¶ 19, 614 N.W.2d 383, 386). “The ‘reasonable efforts’ and ‘best interest of the child’
and the ‘least restrictive alternative’ balancing process are essentially issues of
fact.” Id. (quoting In re K.C., 414 N.W.2d 616, 620 (S.D. 1987)). The circuit court’s
findings of fact in a termination of parental rights case are reviewed under the
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clearly erroneous standard. People ex rel. J.I.H., 2009 S.D. 52, ¶ 19, 768 N.W.2d
168, 173 (citation omitted). Those findings “will not be set aside unless ‘we are left
with a definite and firm conviction that a mistake has been made.’” People ex rel.
P.K., 2006 S.D. 17, ¶ 17, 711 N.W.2d 248, 254 (citing In re S.A., 2005 S.D. 120, ¶ 11,
708 N.W.2d 673, 677).
1. ICWA Application to Nontribal Member
[¶13.] C.S. argues that the court erred in concluding that ICWA did not apply
to this proceeding. When C.S. was a child, she was adopted by non-tribal members
in another state. If not for this adoption, C.S. believes she would have been a
member of the Crow Creek Sioux Tribe. And if she were an enrolled member, then
L.S. would be eligible for enrollment within the meaning of ICWA. Based on these
circumstances, C.S. asserts that the spirit of ICWA is not being followed because
L.S. is a child Congress intended to protect in a way she was not.
[¶14.] These contentions have consequence: ICWA requires heightened
standards for termination of parental rights. Yet those standards apply only if the
child is an Indian child, as defined by ICWA in 25 U.S.C. § 1903(4):
“Indian child” means any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.
Thus, the term “Indian child” as defined by the ICWA means “something more
specific than merely having Native American ancestors.” In re Arianna R.G., 657
N.W.2d 363, 368 (Wis. 2003). Although the purpose of ICWA is to “protect the best
interests of Indian children,” its concomitant purpose is to “promote the stability
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and security of Indian tribes and families . . . .” 25 U.S.C. § 1902. As the North
Dakota Supreme Court explained, ICWA is not premised upon racial classifications
— “[t]he different treatment of Indians and non-Indians under ICWA is based on
the political status of the parents and children and the quasi-sovereign nature of
the tribe.” In re A.B., 663 N.W.2d 625, 636 (N.D. 2003); see also Rice v. Cayetano,
528 U.S. 495, 519-20, 120 S. Ct. 1044, 1058, 145 L. Ed. 2d 1007 (2000).
[¶15.] Indeed, at least one court has held that expanding ICWA to include
ethnic Indians ineligible for tribal membership violates the Equal Protection Clause
of the United States Constitution as an improper racial classification. In re A.W.,
741 N.W.2d 793, 812 (Iowa 2007). We need not venture into the constitutionality
question, however, because it is clear that for ICWA to apply, L.S. must be an
Indian child as defined by ICWA. There is no dispute that L.S. is not a member of
an Indian tribe under 25 U.S.C. § 1903(4)(a). Accordingly, in order to be an “Indian
child” under 25 U.S.C. § 1903(4)(b), L.S. must be “eligible for membership in an
Indian tribe and [] the biological child of a member of an Indian tribe.” (Emphasis
added.)
[¶16.] Many tribes require persons to register or enroll to be considered
members of the tribe; other tribes automatically include as members persons
descended from tribal members listed on the tribal rolls as of a certain date. See
United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (the common
evidentiary standard for establishing Indian status is enrollment, “but it is not the
only means nor is it necessarily determinative.”). Therefore, the absence of
enrollment alone may not necessarily be determinative of whether a person is a
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member of a tribe. See In re Jeffrey A., 127 Cal. Rptr. 2d 314, 317 (Cal. Ct. App.
2002); In re Hunter, 888 P.2d 124, 125 (Or. Ct. App. 1995).
[¶17.] In the circumstances here, however, the Crow Creek Sioux Tribe
requires an application for membership. See Constitution and By-Laws of the Crow
Creek Sioux Tribe of Fort Thompson, South Dakota, Art. II, Membership. An
Indian tribe’s determination of its membership and eligibility for membership is
binding and conclusive in an ICWA proceeding. In re Adoption of C.D., 751 N.W.2d
236, 241-42 (N.D. 2008). C.S. has not taken the necessary steps to enroll in the
Crow Creek Sioux Tribe, even though she had sixteen months to do so from the time
L.S. was removed. Therefore, L.S. is not a biological child of a member of an Indian
tribe.
[¶18.] “[I]n determining whether ICWA applies, state courts ‘may not second-
guess the internal decision-making processes of the tribe in regard to its
membership determination.’” Id. at 242 (quoting In re Phillip A.C., 149 P.3d 51, 56
(Nev. 2006)). In July 2011, a representative of the Crow Creek Sioux Tribe
confirmed with DSS that C.S. was not a member and, consequently, L.S. was not
eligible for enrollment. And the Tribe chose not to intervene. In the face of a tribal
decision on eligibility, we have no power to declare L.S. eligible for membership.
Tribal determinations on eligibility are conclusive. Guidelines for State Courts;
Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586, Guideline B.1(b)(i)
(Nov. 26, 1979); see also In re A.L., et al., 442 N.W.2d 233, 235 (S.D. 1989) (although
child was biological child of Caucasian parents, in deference to tribal determination,
ICWA applied).
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[¶19.] As the proponent, C.S. had the burden of proving that ICWA applied.
In re A.S., 2000 S.D. 94, ¶ 13, 614 N.W.2d at 385. She has failed to show that L.S.
is an Indian child within the meaning of ICWA. The circuit court did not err in
finding ICWA inapplicable.
2. Least Restrictive Alternative
[¶20.] C.S. contends that the circuit court erred in finding that termination of
her parental rights was the least restrictive alternative available. She asserts that
L.S. could have been “placed in another planned permanent living arrangement
until C.S. was capable of parenting him again.”
[¶21.] Parental rights may be terminated if it is in the best interests of the
child and is also the least restrictive alternative available. SDCL 26-8A-26. While
termination of parental rights must be exercised cautiously, the “best interests of
the [child] must always prevail.” People ex rel. T.G., 1998 S.D. 54, ¶ 16, 578 N.W.2d
921, 923 (citation omitted). A child’s best interests are viewed from the child’s
perspective. In re A.S., 2000 S.D. 94, ¶ 19, 614 N.W.2d at 386.
[¶22.] C.S. had sixteen months to take advantage of many opportunities to
address her problems. She completed some treatment, but failed overall to improve
to the point where she could care for L.S. C.S. has not provided any reason why
more time would allow her to be successful in treating her alcoholism. Further,
more time in a temporary placement would not be in the best interests of L.S. “A
child should not be required to wait for parents to acquire parenting skills that may
never develop.” Matter of J.Y., 502 N.W.2d 860, 862 (S.D. 1993); see also People ex
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rel. L.S. et al., 2006 S.D. 76, ¶ 39, 721 N.W.2d 83, 94. Testimony established that
L.S. thrived when he was placed in a structured, safe, and healthy environment.
[¶23.] C.S. also argues that the circuit court failed to take into account her
good faith efforts to cooperate with DSS, as required by SDCL 26-8A-21. She
asserts that she did go to treatment and achieved sobriety for a time. She also
points to the areas of parenting where she did not struggle, such as providing a
suitable home.
[¶24.] The circuit court considered all the efforts C.S. made. But these good
faith, temporary efforts cannot negate the fact that despite having sixteen months
to do so, C.S. was unsuccessful in providing a suitable, sober home for L.S. She did
not take advantage of any parenting classes or counseling to address her problems
other than alcoholism. She took no steps to ensure that L.S. would be returning to
a home without domestic violence and substance abuse. C.S.’s apparent inability to
be actively involved in the court proceedings, due to intoxication or its effects, only
reinforces the circuit court’s conclusions. The court considered the entire record of
C.S.’s behavior and efforts, as well as L.S.’s progressive improvement, and found
that it was in his best interest that C.S.’s rights be terminated. The court also
found that this was the least restrictive alternative available. “When it comes to
something as important as the welfare of young children, promises of the parents to
conform to the standard of care for their children which is expected in our society do
not carry as much weight as their past actions of not properly caring for the
children.” People ex rel. L.S., 2006 S.D. 76, ¶ 39, 721 N.W.2d at 94-95 (citations
omitted).
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[¶25.] Affirmed.
[¶26.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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