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In Matter of D.W.

Case No. 25655 (SD S.Ct, Mar. 2, 2011)

The Oglala Sioux Tribe appeals the circuit court’s judgment finding that good cause existed for placement of D.W. (Child) in an adoptive home outside the placement preferences of the Indian Child Welfare Act (ICWA).

Facts and Procedural Background

On August 22, 2006, the State filed a petition in Jones County alleging that Child and his half-brother (Brother), then ages six and four months, respectively, were abused and neglected. At the time, Child was living with Mother and T.M., who is Brother’s father. Child and Brother were taken into protective custody on December 1, 2006. Following a hearing, the Department of Social Services (DSS) was granted continued temporary custody of the children.

Child and Brother were initially placed in foster care with Brother’s paternal grandparents. During the summer of 2007, Child was transported to the home of his maternal great-aunt for respite care. Child later returned to his Brother’s paternal grandparents to reside with Brother until a home study could be completed on Child’s maternal great-aunt.

In September 2007, the Oglala Sioux Tribe (Tribe) moved to intervene and to transfer jurisdiction to tribal court. The circuit court granted the motion to intervene but denied the motion to transfer. Although the motion to intervene was granted, the Tribe stopped attending the proceedings and played no further role in the case until July 2008.
 

 

Judge(s): Per Curiam
Jurisdiction: South Dakota Supreme Court
Supreme Court Judge(s)
David Gilbertson
John Konenkamp
Judith Meierhenry
Glen Severson
Steven Zinter

 
Trial Court Judge(s)
Mark Barnett

 
Appellant Lawyer(s) Appellant Law Firm(s)
Elizabeth Lorina Lorina & Cesna, LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Emily Sovell
Ann Holzhauser Office of the South Dakota Attorney General
Marty Jackley Office of the South Dakota Attorney General

 

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Click the maroon box above for a formatted PDF of the decision.
finding of good cause to deviate from the icwa placement preferences. see in re south dakota has no statute bearing any similarity to that referenced by the physical abuse to the child. id. 1912(e). a termination of parental rights requires family outside of said order of preferences . . . . to contest that finding. the state argued against any further delay in the [18.] the indian child welfare act, 25 u.s.c. 1915(a), provides: did, but whether the entire evidence leaves a definite and firm conviction that a [19.] throughout the proceedings, the circuit court repeatedly expressed its approach. it is consistent with both the congressional intent in adopting icwa and placement for the children within the preference guidelines . . . . enrolled member of the tribe. additionally, the michigan couple had previously that the court find good cause to deviate from the icwa placement preferences. family in michigan (the "michigan couple"), who was approved for adoption by the child. the court observed that "even [child], his son, who apparently has neither * * * * in the child's best interest." the record contains sufficient evidence to support this michigan couple. nevertheless, the court agreed to continue the proceedings until 2011 s.d. 8 relatives and tribal members who could serve as adoptive parents for child. the however, addressed the applicable burden of proof for determinations of good cause child would likely incur substantial emotional injury if he were placed with father jones county, south dakota parent whose parental rights had been terminated. based on ms. bisek's [1.] the oglala sioux tribe appeals the circuit court's judgment finding the proceeding. placement option because father's parental rights had already been terminated, [23.] by contrast, it appears that only one court has applied the #25655 emily sovell #25655 placement preferences. a majority of jurisdictions has adopted an abuse of placement preferences. the tribe appeals. as established by testimony of a qualified expert witness. in re a.l., 442 n.w.2d 233, 236 (s.d. 1989). this court has considered factors analysis for its application of the more relaxed standard. see alaska adoption rule "beyond a reasonable doubt" standards apply. in addition, use k.r.c., 238 p.3d 40 (or. ct. app. 2010). the court in k.r.c. found it had statutory the many steps taken by dss in its search for a suitable adoptive placement. these #25655 viable placement option within the icwa preferences. dss explored placement because neither dss nor the tribe had suggested another icwa-preferred reasonable doubt," thereby assuring its findings would withstand any indicated that father's actions in abandoning child were very harmful to child #25655 maternal and paternal; and, broad searches through the use of statewide and indian children." id. we then held, "considering the firm congressional intent adoptive placement preferences. in baby girl b, the oklahoma court stated: (3) the unavailability of suitable families for placement after (1) the request of the biological parents or the child when the home of his maternal great-aunt for respite care. child later returned to his placement. the effort to avoid inadvertent interjection of cultural bias into meierhenry, and severson, justices, participating. child is of sufficient age. implies discretion, we will employ an abuse of discretion standard of review." 133 [11.] the circuit court held a hearing on march 26, 2010, to determine -8- behind icwa, the standard most consistent with the act requires clear and of the "clear and convincing" standard will foster the policy of proceedings when a suitable placement option had already been found in the child: father's live-in girlfriend (girlfriend). dss did not explore girlfriend as a not specify the burden necessary to establish good cause to deviate from its to search for licensed families nationwide. dss sent the tribe a report preponderance of the evidence burden of proof to findings of good cause to deviate [16.] this court has not previously addressed the appropriate standard of marty j. jackley [4.] in september 2007, the oglala sioux tribe (tribe) moved to intervene services has conducted diligent searches for an adoptive and that placement with girlfriend would be equivalent to placement with father. -6- review for a circuit court's finding of good cause to deviate from the icwa mistake has been committed." id. of social services, in the matter of determining the proper placement of indian children . . . . because flexibility opinion filed 03/02/11 court expressed some concern that no relatives had yet come forward to care for d.w., abused/neglected child. [icwa] and the preferences stated therein and will assist with -4- siblings); in re j.l., 2002 s.d. 144, 19, 654 n.w.2d 786, 791 (considering the best in re adoption of b.g.j., 133 p.3d 1, 9 (kan. 2006); in re custody of s.e.g., 521 [girlfriend] because she is the live-in girlfriend of father . . . whose parental rights custody on december 1, 2006. following a hearing, the department of social * * * * since the inception of this case in august of 2006, over three and existed in this case. therefore, the circuit court did not abuse its discretion in the preference criteria. custody of s.e.g., 507 n.w.2d 872, 878 (minn. ct. app. 1993); in re adoption of the people of the state of south dakota, icwa does not define "good cause" nor does it state the burden of proof applicable conclusions and putzier's concerns about father, putzier recommended that child [dss] has made contact with the minor child's tribe and has in re t.i., 2005 s.d. 125, 22, 707 n.w.2d 826, 835 (considering separation of native american family who was willing to adopt child. it did, however, find a -9- determine that a diligent search had been performed and that a suitable icwa- existed to deviate from the icwa placement preferences. the court found that under the culture and child-rearing practices of the tribe. he also concluded that adopted four native american children. all of the children, like child, had special interests of the child). review of this issue requires that this court first decide the father's family because father's paternity had not been established. the state p.3d at 6 (quoting in re adoption of b.g.j., 111 p.3d 651, 656 (kan. ct. app. 2005)). more of the following considerations: testified that, in his experience, he could not recall ever placing a child with a icwa. dss conducted searches for relatives of child and for native american intervene but denied the motion to transfer. although the motion to intervene was and t.m., who is brother's father. child and brother were taken into protective attorney general (2) the extraordinary physical or emotional needs of the child whether the circuit court erred in finding good cause to deviate from the icwa specifically, the court noted: couple as a suitable placement for child. pierre, south dakota attorneys for appellee and the court had made a factual finding that father abandoned child. father's family could be explored as a possible placement option. michigan indian child welfare agency. one of the michigan parents was affiliated extended family; (2) other members of the indian child's tribe; or that "placement with the parent whose parental rights have been terminated is not heard nor seen from [father] in the last couple of years[,] describes his situation as, id. 78, 67 p.3d at 374. [20.] icwa provides burdens of proof for some determinations, but it does finding girlfriend was not a suitable placement for child. elizabeth maria lorina of child's therapist, christina bisek, testified that child should be placed with a oglala sioux tribe. special assistant attorney general family skilled in dealing with his behavioral disorders, which included attention nationwide resources. contended that the circuit court had already made a factual finding that the caretaking of children by extended family members within the lakota kinship -11- the circuit court stated that its findings of fact were made "beyond a defined by [icwa], but has been unable to locate a suitable diligent search for an icwa-preferred placement. this finding of fact is reviewed placement search was compliant with icwa and argued the tribe was now too late for clear error. in re e.m., 466 n.w.2d 168, 172 (s.d. 1991). this court must (3) other indian families. and to transfer jurisdiction to tribal court. the circuit court granted the motion to #25655 appeal from the circuit court of as it would allow him to receive more attention from the parents. both of these noted their absence in rendering its decision to terminate their parental rights. in #25655 standard of review factor in the bia guidelines. the court found that dss had conducted a diligent for child. dss acknowledged that, until that point, it had made no effort to explore child d.w. child but agreed to allow dss and the tribe additional time to look for a suitable structure. ashley recommended placement with the michigan couple. civil action the burden should be a preponderance of the evidence, although it whose parental rights had been terminated. michael putzier, a supervisor for dss, in any adoptive placement of an indian child under state law, a preference as set forth in [icwa] is not available and that good outside the icwa placement preferences. in the supreme court contrary, to a placement with (1) a member of the child's no "active part" in any alleged abuse or neglect, he had essentially abandoned honorable mark barnett placement preferences. this court must then determine whether the circuit court outside the bia guidelines in determining good cause in other icwa matters. see february 20, 2008. neither mother nor father attended the hearing, and the court state of south dakota. [26.] the tribe argues that the court erred in finding dss had conducted a n.w.2d 357, 363 (minn. 1994); in re adoption of m., 832 p.2d 518, 522 (wash. ct. [22.] other courts have applied the clear and convincing evidence standard other than referencing a state adoption statute, the alaska court offered little icwa, congress wanted to have indian tribes determine custody issues involving with the ottawa tribe and was active in native american culture but was not an placement within the preferences set forth in [icwa] . . . . continued custody by the indian parent is likely to result in serious emotional or lorina & cesna, llp placements, icwa requires a showing of "clear and convincing evidence" that "bia guidelines") suggest that good cause determinations should be based on one or 44 fed. reg. 67584, f.3 (1979). this list is not considered exhaustive or binding. the placement preferences of the indian child welfare act (icwa). [31.] gilbertson, chief justice, and konenkamp, zinter, [14.] juanita scherich, testifying on behalf of the tribe, stated that the 17, 707 n.w.2d at 834. in t.i., we held that to deny transfer to tribal court, good department did not conduct a home study on girlfriend's home. however, the a diligent search has been completed for families meeting uncertainty as to the burden of proof required to find good cause to deviate from the father and girlfriend would be an appropriate placement for child because both a half years ago, the south dakota department of social to findings of good cause to deviate from the icwa placement preferences. in re 11. icwa placement preferences. ex rel. south dakota department 1. oglala nation tispaye resources advocacy center. this office handles icwa allowed for such action in its tribal court since 2005. scherich stated her belief that -5- conclusion. the state's icwa expert testified that father's abandonment would be [8.] despite its thorough efforts, dss was unable to find a relative or preferred placement could not be found. see bia guidelines, 44 fed. reg. 67584, resided with the couple. she indicated she had not heard anything negative about [3.] child and brother were initially placed in foster care with brother's -1- discretion standard. see in re adoption of f.h., 851 p.2d 1361, 1363 (alaska 1993); permanent placement for child that would conform to the placement preferences of director juanita scherich, requested additional time to conduct its own search for finding that dss was diligent in its search. in its findings of fact, the court detailed `i don't have a dad.'" neither parent appealed the termination of parental rights. preference shall be given, in the absence of good cause to the from the icwa placement preferences. in re adoption of n.p.s., 868 p.2d 934, 936 rapid city, south dakota attorneys for appellant finding by clear and convincing evidence that good cause existed to place child needs but were happy and well adjusted in the home. dss selected the michigan options for over three and a half years, during which time child was without a an oral ruling at the close of the hearing, the court found that although father had 1912(f). burden of proof the sixth judicial circuit [21.] this court has never squarely addressed this issue. we have, onida, south dakota attorney for appellee father's relatives and other native american families who might be interested in evidence. a similar showing but raises the burden of proof to "beyond a reasonable doubt." id. baby girl b, 2003 o.k. civ. app. 24, 77, 67 p.3d 359, 373 (okla. civ. app. 2003). contacted known members of the child's extended family, as [12.] the state reiterated its concerns about placing child with a caregiver [6.] following the termination hearing, dss began searching for a #25655 circuit court's finding of good cause #25655 circuit court made a factual determination that a home study was unnecessary. standard this court chooses to apply. abused its discretion in finding that burden was satisfied in this case. to a finding of good cause to deviate from the icwa placement preferences. parents were employed, girlfriend did not drink, and several of child's half-siblings of the testified she believed child would benefit from being the youngest child in the home #25655-a-per curiam [27.] there is ample evidence in the record to support the circuit court's harmful to child and that his actions were inconsistent with the child-rearing authority to exercise de novo review. id. at 43. see or. rev. stat. 19.415(3). cause must be proven by clear and convincing evidence. id. we noted, "in enacting paternal grandparents. during the summer of 2007, child was transported to the search and no suitable icwa-preferred placement options had been found. respectively, were abused and neglected. at the time, child was living with mother [5.] a final dispositional hearing (termination hearing) was held on appropriate burden of proof for a finding of good cause to deviate from the icwa tribe does not believe in the concept of termination of parental rights and has not [13.] joseph ashley, a dss officer specializing in icwa, also recommended convincing evidence of good cause . . . ." id. summarizing these search efforts. placement preferences require a showing of good cause by clear and convincing term `good cause' . . . was designed to provide state courts with some flexibility in [28.] the tribe argues that the dss search was not diligent because the * * * * [9.] during an august 11, 2009, review hearing, the tribe expressed its on january 6, 2011 state of south dakota granted, the tribe stopped attending the proceedings and played no further role in -10- the court finds that placement of the child within the order of were terminated at the disposition phase of the proceedings." the court also noted to deny transfer of jurisdiction to tribal court under icwa. t.i., 2005 s.d. 125, [25.] the circuit court based its finding of good cause primarily on the third determine "not whether it would have made the same findings the [circuit] court 2. before announcing its ruling at the conclusion of the good cause hearing, per curiam [7.] during a july 16, 2008, review hearing, the tribe, through ontrac1 -2- facts and procedural background [15.] at the conclusion of the hearing, the court found that good cause convincing evidence. the tribe has not addressed this issue in its brief. this court's precedent. therefore, we conclude that deviations from the icwa adopting child. only one person on the list expressed any interest in adopting social services, and ontrac; investigations into several blood relatives, both however, the guidelines for state courts: indian child custody proceedings (the families within south dakota that might be willing to serve as a permanent to subsequent stages where "clear and convincing" or even the permanent home environment. the circuit court was within its discretion to this holding is consistent with the standard of proof applicable -3- deficit hyperactivity disorder and oppositional defiant disorder. bisek also [17.] at least one court has adopted a de novo standard of review for a placement. dss also placed child's name on the adoptuskids website as a means concedes that some authority exists to suggest the proper burden is clear and * * * * the court found that "dss has appropriately not ordered a home study for #25655 #25655 (alaska 1994) (citing in re adoption of f.h., 851 p.2d 1361, 1363 (alaska 1993)). whether good cause existed to place child outside the icwa placement preferences. services (dss) was granted continued temporary custody of the children. [29.] aside from girlfriend, neither dss nor the tribe located another ann m. holzhauser [2.] on august 22, 2006, the state filed a petition in jones county alleging concern that father's relatives had not been explored as a possible placement option oregon court. we therefore join the majority of jurisdictions in adopting an abuse steps included numerous contacts with the tribe's icwa representatives, tribal placement preferences. see 25 u.s.c. 1915(b). by comparison, for all foster care father's actions were inconsistent with the tribe's concept of "tiospaye," the the case until july 2008. that child and his half-brother (brother), then ages six and four months, ashley noted the lack of any contact or bonding between father and child and practices of the tribe. we cannot say that the court committed clear error in that good cause existed for placement of d.w. (child) in an adoptive home outside f.3. the court's findings of fact support its conclusion that at least one of the factors indicating good cause to deviate from the icwa placement preferences factors favored placement with the michigan couple rather than with girlfriend. analysis and decision [24.] the "clear and convincing" standard appears to be the better-reasoned #25655 judge icwa placement preferences.2 on appeal, the state argues that because this is a of discretion standard of review for a circuit court's decisions to deviate from the considered on briefs cause exists for placement of the child with an individual or placement option, the court found good cause to place child outside the icwa matters for the tribe. father, although she had not conducted a home study on the proposed placement. [30.] affirmed. completed on child's maternal great-aunt. [10.] in conjunction with the search, the tribe provided dss with a list of * * * * be placed with the michigan couple. app. 1992). in b.g.j., the kansas supreme court stated, "we think the use of the brother's paternal grandparents to reside with brother until a home study could be -7-


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