#29446-r-PJD 2021 S.D. 41
IN 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 C.H., Minor Child, and Concerning C.M. and C.H., Respondents.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA
THE HONORABLE JON R. ERICKSON Retired Judge
JASON R. RAVNSBORG Attorney General
COURT ROPER Special Assistant Attorney General Pierre, South Dakota Attorneys for petitioner and appellee, State of South Dakota.
DOUGLAS E. KLUDT of Churchill, Manolis, Freeman, Kludt, & Burns, LLP Huron, South Dakota Attorneys for respondent and appellant, C.M.
CONSIDERED ON BRIEFS MAY 13, 2021 OPINION FILED 07/14/21 #29446
DEVANEY, Justice
[¶1.] C.M. (Mother) appeals the dispositional order terminating her parental
rights to C.H., asserting that the circuit court’s findings and conclusions do not
support termination. Because the evidence does not establish that active efforts
were made to reunify Mother and C.H., we reverse and remand.
Factual and Procedural Background
[¶2.] On July 5, 2018, the South Dakota Department of Social Services
(DSS) began working with Mother and Father to assist them in providing a safe
home for their daughter, C.H., born on September 8, 2017. DSS implemented a
safety plan in August 2018 that would allow C.H. to remain in Mother and Father’s
custody, but on October 2, 2018, DSS took C.H. into protective custody because it
determined that the dangers in the home remained. In particular, DSS had
observed that C.H., a toddler, was left unsupervised or alone for extended periods of
time and that her living conditions were unsafe.
[¶3.] On October 4, 2018, the State filed a petition alleging C.H. to be
abused or neglected and attached an affidavit from DSS in support. The affidavit
identified that Mother was 22 years old and that Father was 28 years old. It
further reported that Mother and Father abuse marijuana and cannot control their
addiction or substance abuse. DSS determined that Mother is an enrolled member
of the Lower Brule Sioux Tribe; Father is eligible for enrollment as a member of the
Crow Creek Sioux Tribe; and C.H. is eligible for enrollment in the Lower Brule
Sioux Tribe. The Indian Child Welfare Act’s (ICWA) definition of an “Indian child”
includes a child who “is eligible for membership in an Indian tribe and is the
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biological child of a member of an Indian tribe[.]” 25 U.S.C. § 1903(4)(b). Thus,
C.H. is an Indian child, and ICWA applies to these proceedings.
[¶4.] According to DSS, a family services specialist made an unannounced
visit to Mother and Father’s home at 9:00 a.m. on October 2, 2018, and found
Mother and Father sleeping while C.H. stood awake in her playpen in a diaper
overfull with urine. Mother told the specialist that she had taken sleeping pills for
her sleeping disorder and the pills caused her to sleep late rather than care for C.H.
The specialist observed hazards located near C.H.’s playpen and within C.H.’s reach
and observed small wrappers and candy on the floor that C.H. could have put in her
mouth. The specialist also reported that she saw an oscillating fan with a missing
cover and prescription medication bottles in locations that C.H. could access.
Finally, the specialist reported that she observed moldy bottles in C.H.’s diaper bag
and living and dead cockroaches on the counters and walls of the kitchen. In DSS’s
view, neither Mother nor Father have the parenting knowledge, skills, or
motivation to care for C.H., and their drug use renders them incapable of attending
to C.H.’s basic needs.
[¶5.] At a hearing on the petition on October 23, 2018, Mother and Father
admitted to the allegations. Thereafter, the State asked the circuit court to adopt a
report submitted by DSS containing information similar to that contained in DSS’s
affidavit submitted in conjunction with the State’s petition. The report also related
that both Mother and Father were currently unemployed and that Mother was
suffering from unmanaged mental health needs. Further, DSS summarized the
services provided to Mother, Father, and C.H. since C.H. was taken into protective
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custody and noted that DSS had placed C.H. in temporary custody with Father’s
sister.
[¶6.] The circuit court adopted the findings in DSS’s report and determined
that the State proved by clear and convincing evidence that C.H. was abused and
neglected by the actions or inactions of Mother and Father and that DSS had made
active efforts to provide remedial services designed to prevent the breakup of the
Indian family. The court further found that the least restrictive alternative in
C.H.’s best interests would be continued legal and physical custody with DSS. For
unknown reasons, the circuit court did not address DSS’s request that it appoint an
attorney to represent C.H.
[¶7.] A review hearing was held on December 18, 2018, and the State
requested that the court maintain legal and physical custody of C.H. with DSS
while the State worked toward reunification. The State also submitted an updated
report to the court from DSS. Because this appeal concerns only Mother’s parental
rights to C.H., what follows focuses primarily on Mother.
[¶8.] In the report, DSS advised that Mother was still unemployed and could
not control her addiction and substance abuse. DSS further reported that although
Mother continued spending time with individuals known to abuse illegal drugs, she
had begun weekly counseling sessions at Community Counseling Services. In
regard to visitation, DSS related that although Mother and Father had been offered
multiple visits with C.H. while she was in kinship care in Redfield, South Dakota,
they only attended two visits. DSS noted that the parents participated in video
chats with C.H. a couple of times, Mother attended an in-person visitation at DSS’s
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office, and both parents exercised a supervised visit with C.H. in their home. At the
conclusion of the report, DSS again requested that the court appoint an attorney to
represent C.H. Once again, the court did not address this request.
[¶9.] After the December 2018 review hearing, the circuit court issued an
order continuing legal and physical custody with DSS, and DSS continued to work
with Mother and Father toward reunification. Between February and December
2019, the circuit court held multiple review hearings, and DSS submitted updated
reports to the court regarding Mother and Father. The record reveals that during
this period, Mother and Father often did not avail themselves of the programs or
services offered by DSS. For example, Mother did not complete parenting classes or
a chemical dependency evaluation. Also, although she began counseling, she
eventually quit and gave no reason for why she stopped. In DSS’s view, Mother and
Father did not know how to parent C.H., and Mother did not understand how her
behaviors put C.H. at risk. However, DSS noted that it was apparent C.H. was very
attached to Mother during visitations.
[¶10.] In April 2019, DSS reported that Mother and Father admitted to using
marijuana in March and that the two continued to reside in the same apartment
with “life threatening living arrangements.” However, in June 2019, DSS reported
that Mother claimed she was over a month sober from marijuana and that she and
Father separated and were no longer living together. In September 2019, DSS
reported that Mother claimed to still be sober from marijuana and still separated
from Father. According to DSS, Mother was living with her boyfriend, and the two
of them were attending parenting classes together.
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[¶11.] At the beginning of the December 2019 review hearing, the State
informed the court that it had intended to seek termination of Mother’s and
Father’s parental rights. However, the State then advised that in light of an email
from counsel for Mother proposing that Mother work with a behavioral
interventionist, the State would agree to set a termination hearing for March 2020.
The State noted that if Mother was successful in that period, the State “wouldn’t
seek” termination. The court agreed to set a hearing for March 2020. It then
addressed Mother, noting that she had “more work . . . to do” and that it was “really
up to [Mother] now.” The court also informed Mother that DSS has offered her “the
services that [it has] available[,]” and now Mother “need[s] to take advantage of”
working with Community Counseling Services.
[¶12.] The circuit court’s order following the review hearing reflects that the
court adopted DSS’s December 3, 2019 report; however, the record does not contain
this report. Also, although the court’s order provides that “reasonable and active
efforts will be made to reunite the family[,]” the court further ordered,
inconsistently, that “no further efforts be made by the Department of Social
Services to reunite [C.H.] with” Mother or Father. 1 The court set a final
dispositional hearing for March 17, 2020.
[¶13.] It is undisputed that DSS made no further efforts to reunify Mother
and C.H. after the December 2019 hearing and that no further judicial proceedings
occurred in the case until September 18, 2020. The March 2020 termination
1. The transcript from the December 2019 hearing does not contain a request from the State for an order directing DSS to cease all efforts toward reunification.
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hearing was moved to July due to the COVID-19 pandemic, and for reasons not
specified in the record, the July hearing was also continued. The court heard
testimony at the dispositional hearing from an ICWA expert, a DSS family services
specialist, Mother, C.H.’s maternal grandmother, and Mother’s counselors.
[¶14.] The ICWA expert, Ray Cournoyer, opined that based on his review of
the information provided to him by the State, including DSS’s reports, it would be
detrimental for C.H. to remain in the custody of her parents. The DSS family
services specialist, Dana Duvall, similarly believed that Mother and Father should
not have custody of C.H. According to Duvall, the conditions that led to C.H.’s
removal from the home continued to exist despite DSS’s reasonable and active
efforts to achieve a permanent plan of reunification. However, Duvall
acknowledged that she had not observed Mother’s home in the past nine months
and had no personal knowledge about Mother’s current living conditions.
[¶15.] Valere Walton, a board certified behavioral analyst with Community
Counseling Services, testified that she began working with Mother in October 2019
on a behavioral intervention plan to address Mother’s issues, such as: completing
tasks necessary for independent living, poor self-care and self-advocacy, and
irregular sleeping patterns. Walton met with Mother four days a week at the same
time each day to ensure Mother was working toward her goals. Walton further
testified that Mother’s mother, J.M., assisted in keeping her accountable. According
to Walton, at first Mother did a poor job in making progress; she had no consistency
or reliability. However, Walton testified that as they continued working together
during the 90 days (December 2019 to March 2020), Mother began to improve and
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complete required tasks. Walton believed that Mother put in a lot of effort during
the 90-day plan and showed marked improvement. She further testified that
Mother “was able to take care of changing a lot of aspects of her life, including
relationships.” Mother had completed parenting classes in March 2020 prior to the
initially set dispositional hearing. Also, by the time of the rescheduled September
2020 dispositional hearing, Mother had completed her drug treatment counseling.
[¶16.] Walton further testified that although the intervention plan ended
after 90 days, she continued working with Mother, as part of “generalization, basic
maintenance,” to make sure Mother “was able to care for herself[, c]are for her
home[, a]nd continue to follow through with the things that she said she would do.”
Walton communicated with Mother multiple times a week and testified that she did
not observe any indication that Mother was using drugs or alcohol. Walton also
observed where Mother currently lived, albeit virtually because of the pandemic.
She testified that Mother lived with her mother, that the home is “picked up[,]”
“organized[,]” “100 percent better than” before, child-proofed, and would be suitable
for a three-year old. Walton had observed Mother’s video interactions with C.H.,
and in her view, C.H. “loves her mom” and there is a bond there. She also testified
that she helped Mother fill out the paperwork for a divorce from Father. Walton
described their marriage as a “very, very poor relationship.”
[¶17.] When asked whether Mother “is capable of taking care of her
daughter[,]” Walton replied, “I would feel way more comfortable with her having her
daughter now. I think she could do it.” The court asked Walton “how much time it
would take before [Mother] is ready to live on her own and take care of [C.H.’s]
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needs[,]” noting that Mother has already had two years. Walton replied that with
continued work, she would give Mother another six months, but that it could take
less time as Mother “is very motivated to get [C.H.] back[.]” When asked whether
Walton had tried to communicate Mother’s progress to DSS, Walton replied that she
had, but that DSS made “no attempt to further contact [Mother.]” According to
Walton, “[t]here was a lot of resistance and a lot of desire to continue to terminate
[Mother’s] parental rights.”
[¶18.] Mother’s mother, J.M., who was 60 years old at the time, testified
about the condition of the apartment she and Mother lived in. She noted that they
have lived together for a year and a half and testified that their home would be
suitable for her, Mother, and C.H. She provided a letter from their landlord
confirming that the apartment did not have bugs. According to J.M., she believes
Mother is able to care for C.H.
[¶19.] Mother acknowledged that she could have worked harder when DSS
was involved. She also recognized that she only recently completed parenting
classes and drug treatment. However, she testified that she learned a lot from the
classes and treatment. She also claimed that she is in a better position because of
her work with Walton than when DSS was working with her. She requested that
she be given one-on-one time with C.H. to prove to DSS that she can appropriately
care for her.
[¶20.] At the conclusion of the hearing, the State requested termination of
the parental rights of both Mother and Father. In regard to Mother, the State
asserted that “[e]nough is enough[,]”noting that Mother has had over two years to
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prove she can parent C.H. and despite that she has not completed what was asked
of her. The State further claimed that even though Mother had made progress in
working with Walton, Mother would still need more time before she could properly
parent C.H. Thus, according to the State, it would be unfair for C.H. to wait any
longer.
[¶21.] In response, counsel for Mother asserted that the evidence “should give
anyone pause to even consider[] terminating this young lady’s rights.” Counsel
conceded that Mother completed some requirements shortly before the termination
hearing; however, counsel referred to the fact that Mother was young and
uneducated. Counsel also claimed that the location of C.H.’s foster home 2 in
another town made visitation difficult given that Mother does not have
transportation. Counsel argued that Mother had taken significant steps to
understand what was necessary to parent C.H. and pointed out that there was
nothing in the record showing that Mother’s current apartment is unsuitable for
C.H. According to counsel, DSS “basically gave up” when it should have gotten
“back in the game here and acknowledged that [Mother] has made some real
progress.” Counsel requested that the court deny termination.
[¶22.] In its oral ruling, the circuit court noted that Mother had made some
improvements. However, the court concluded that Mother did not address her
mental health issues, finances, housing, or employment. The court acknowledged
that Walton believed Mother should be given more time, but in the court’s view,
2. C.H. remained in the kinship placement with her paternal aunt, who had completed the necessary classes to become a licensed foster parent.
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“[t]he truth of the matter is [Mother] has never provided for [C.H.’s] basic needs”
and “has not shown that she can provide for [her] basic needs.” The court therefore
ordered that Mother’s parental rights be terminated.
[¶23.] In its written findings of fact, conclusions of law, and order, the court
determined beyond a reasonable doubt that the State “made reasonable and active
efforts to provide remedial services designed to prevent the breakup of the family
and those rehabilitative programs have been unsuccessful.” The court also found
that Mother “failed to follow the recommendations of [DSS,]” is “unfit,” and has
never provided for C.H.’s basic needs. According to the court, the conditions that
led to C.H.’s removal continue to exist and “[t]here is little likelihood that these
conditions will be remedied to allow [C.H.] to be returned to the custody of
[Mother.]” The court then indicated that it “carefully balanced the rights of the
child, the parents, the State and the public” before determining beyond a reasonable
doubt that termination of Mother’s parental rights was the least restrictive
alternative commensurate with C.H.’s best interests.
[¶24.] Mother appeals, asserting that the circuit court’s findings of fact and
conclusions of law do not support termination of her parental rights.
Analysis and Decision
[¶25.] Mother contends the circuit court clearly erred in finding that the
conditions that led to C.H.’s removal continued to exist at the time of the
dispositional hearing. She further claims the court erred in concluding that
“[a]ppropriate services to the family have failed” and that Mother “failed to follow
the recommendation of the Department of Social Services.” According to Mother,
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although she did not complete the requirements on DSS’s timetable, she
successfully addressed her marijuana issues, has “greatly improved her housing[,]”
has removed herself from the negative influences identified by DSS, and has
received parenting education and behavior modification training. She therefore
asserts the evidence does not support termination and that termination was not the
least restrictive alternative commensurate with C.H.’s best interests.
[¶26.] “[W]e review the circuit court’s findings of fact for clear error.” In re
S.H.E., 2012 S.D. 88, ¶ 18, 824 N.W.2d 420, 425. “The circuit court’s factual
findings are clearly erroneous if ‘we are left with a definite and firm conviction that
a mistake has been made.’” Id. (quoting In re L.S., 2012 S.D. 22, ¶ 12, 812 N.W.2d
505, 508). Under 25 U.S.C. § 1912(d), “[a]ny party seeking . . . termination of
parental rights to[ ] an Indian child under State law shall satisfy the court that
active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.” Proof of active efforts must exist beyond a
reasonable doubt, and whether active efforts have been provided is a mixed
question of law and fact reviewed de novo. S.H.E., 2012 S.D. 88, ¶¶ 18–19, 824
N.W.2d at 425–26.
[¶27.] Although the circuit court found beyond a reasonable doubt that active
efforts were provided to prevent the breakup of the Indian family and that the
efforts were unsuccessful, it is undisputed that DSS ceased providing any efforts
toward reunification after the December 2019 hearing. This means that from
December 2019 to September 2020 no efforts were made by DSS to provide Mother
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remedial services or rehabilitative programs and no efforts were made to reunite
C.H. with Mother. The circuit court’s finding of fact to the contrary—that DSS “has
been providing active efforts to this family since October 2, 2018; including in-home
services to prevent placement, and ongoing services to allow safe return of the child
to no avail”—is not supported by the record. To the extent this finding suggests
that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is
clearly erroneous.
[¶28.] More importantly, however, this Court has held that the active efforts
requirement under ICWA imposes a heightened responsibility on DSS. In re P.S.E.,
2012 S.D. 49, ¶ 22, 816 N.W.2d 110, 117–18. Therefore, DSS cannot simply give a
parent a case plan and wait for the parent to complete the plan. Id. ¶ 19, 816
N.W.2d at 116. As one court explained, “[t]he client should not be required to
develop his or her own resources toward bringing the plan to fruition.” In re D.J.S.,
456 P.3d 820, 838 (Wash. Ct. App. 2020). Rather, active efforts require that DSS
take the parent through the steps of the case plan to prepare the parent for
reunification. See 25 C.F.R. § 23.2 (explaining that “active efforts” “involve[s]
assisting the parent or parents or Indian custodian through the steps of a case plan
and with accessing or developing the resources necessary to satisfy the case plan”).
[¶29.] Here, the record reveals that the circuit court ordered in December
2019 that DSS cease all efforts toward reunification. Thereafter, Mother’s existing
counselor and her lawyer facilitated Mother’s efforts to work with a behavioral
analyst in an effort to develop the skills necessary to parent C.H. DSS did not
direct Mother toward any further services or programs, let alone make active efforts
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to aid her in developing the resources necessary to satisfy the case plan between
December 2019 and the dispositional hearing in September 2020. Additionally,
DSS did not facilitate any visits between Mother and C.H. after December 2019.
[¶30.] The State contends that the circuit court “was justified in relieving
DSS of its efforts burden” in December 2019 because the State had proven that up
to that point active efforts were made as required under ICWA. However, the State
has not identified any authority allowing the circuit court to excuse DSS from
continuing to make active efforts when the State agreed to continue the
dispositional hearing so that Mother could continue working with her counselors to
remedy the problems that led to C.H.’s removal.
[¶31.] In In re J.S.B., Jr., the circuit court had relieved DSS of providing
further remedial services or rehabilitative programs to reunite an Indian child with
his parents in December 2002 despite the fact that the final dispositional hearings
were not held until April 15 and May 12, 2003. 2005 S.D. 3, ¶¶ 9–10, 691 N.W.2d
611, 615. In its final order, the circuit court justified its decision that DSS did not
need to provide active efforts because, in the court’s view, the Adoption and Safe
Families Act (ASFA) applied. Id. ¶ 9. Under ASFA, the State can be relieved “from
making merely perfunctory remedial efforts in cases where a court has found that
the parent has subjected the child to aggravated circumstances of abuse or neglect.”
Id. ¶ 17, 691 N.W.2d at 617.
[¶32.] On appeal, this Court held that the circuit court erred in relying on
ASFA to eliminate the State’s obligation to provide active efforts after December
2002. Id. ¶ 29, 691 N.W.2d at 621. The Court noted that ICWA “seeks to prevent
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capricious severance” of the “familial, tribal, and cultural ties” and established the
minimum standards governing the removal of Indian children from their families
and placement in foster or adoptive homes. Id. ¶¶ 14, 17, 691 N.W.2d at 616–17. In
contrast, “ASFA identifies permanency as a major consideration in promoting the
best interests of children.” Id. ¶ 17, 691 N.W.2d at 617. The Court further
distinguished ICWA and ASFA. It noted that ASFA requires “reasonable efforts” to
be made toward reunification with certain statutory exceptions, while ICWA
requires, without exception, “that state agencies make ‘active’ efforts to provide
services aimed at the prevention of a family breakup.” Id.
[¶33.] Ultimately, the Court did not reverse the final dispositional order in
J.S.B. because the record revealed that DSS continued to provide active efforts
toward reunification despite the circuit court’s December 2002 order. Id. ¶ 29, 691
N.W.2d at 621. Here, in contrast, it is undisputed that DSS made no efforts toward
reunification after December 2019. Therefore, while it does not appear from the
record that the circuit court relied on ASFA in relieving DSS of its obligation to
make active efforts under 25 U.S.C. § 1912(d), the circuit court nevertheless erred
in terminating Mother’s parental rights on the basis that DSS had been making
active efforts since the inception of the case and that such efforts proved
unsuccessful.
[¶34.] Additionally, and as a result of the circuit court’s order directing that
DSS make no further efforts despite the continuation of the dispositional hearing,
neither the State nor DSS had any knowledge about what had transpired with
Mother in the nine months leading up to the hearing. The only evidence in the
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record regarding Mother’s current circumstances and living conditions at the time
of the dispositional hearing came from Mother and her witnesses. Importantly,
much of this evidence was contrary to the factual underpinnings upon which DSS,
and ultimately the circuit court, relied on to support termination. In fact, Duvall
acknowledged that she had not visited Mother’s apartment since January 2020, and
she had not communicated with Walton about the progress Mother had made since
the December 2019 hearing.
[¶35.] This is not the typical case wherein the parent asks “for repeated
chances to forestall termination of parental rights after minimal or no improvement
in parenting” despite DSS’s efforts to rehabilitate and reunite the family. See In re
L.R., 2014 S.D. 95, ¶ 9, 857 N.W.2d 886, 889. Rather, this is a unique case
involving the cessation of active efforts by DSS some nine months prior to the
dispositional hearing despite Mother’s ongoing work with counselors on her own
accord, and a clearly erroneous finding by the circuit court that DSS had been
providing active efforts toward reunification since October 2, 2018. Therefore, the
circuit court erred in terminating Mother’s parental rights in the absence of
contemporaneous evidence to support its decision.
[¶36.] Because this error requires a remand, we take this opportunity to
address additional errors that occurred below to prevent their reoccurrence. First,
the circuit court erred when it failed to appoint an attorney to represent C.H.
Under SDCL 26-8A-18, “the court shall appoint an attorney for any child alleged to
be abused or neglected in any judicial proceeding.” (Emphasis added.) Here,
although DSS requested that an attorney be appointed to represent C.H. in its
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report prior to the adjudicatory hearing and in every report to the court thereafter,
neither the court nor the parties mentioned or addressed this request until the final
dispositional hearing when the court inquired about who was representing C.H.
The State responded that C.H. was less than a year old when the case started, and
an attorney had never been appointed for her. No further discussion was held, and
the court moved forward with the hearing. The statutory provision requiring that
children in abuse and neglect proceedings be appointed counsel is not discretionary
or dependent on the age of the minor children. Therefore, the circuit court is
directed to appoint an attorney to represent C.H. as soon as the case is remitted.
[¶37.] Second, although not raised as an issue on appeal, there are glaring
defects involving ICWA mandates in the underlying proceeding that we cannot
ignore. Under 25 U.S.C. § 1912(f), “[n]o termination of parental rights may be
ordered in such proceeding in the absence of a determination, supported by evidence
beyond a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.” (Emphasis added.)
Our prior decisions have recognized that ICWA does not require that an expert’s
testimony track the statutory language verbatim. See In re A.B., 2016 S.D. 44, ¶ 26,
880 N.W.2d 95, 104. Here, however, the ICWA expert called by the State opined
only that continued custody could be “detrimental” to C.H., and like DSS, he was
not basing his opinion on Mother’s current circumstances. In fact, when questioned
by Mother’s counsel, he admitted that his opinion would be affected if he had known
that Mother had completed drug and alcohol treatment and parenting classes, was
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separated from Father, and was working with counselors to modify her behaviors.
Moreover, although the court’s order contained the exact language from § 1912(f),
the court did not identify any evidence in the record to support its ruling, and the
court’s written findings only stated that “[t]here is evidence showing that potential
harm could result to the child were she to be returned to” Mother. (Emphasis
added.)
[¶38.] Finally, the circuit court’s determination that termination of Mother’s
parental rights was the least restrictive alternative commensurate with C.H.’s best
interests with due regard to the rights of Mother was perfunctory at best. Notably,
in DSS’s September 2019 report to the court, DSS had indicated that C.H.’s
paternal aunt, with whom C.H. had been residing since she was removed from her
parents’ custody, was willing to enter into a guardianship because she wanted to see
C.H. reunified with her parents. In the report DSS submitted to the court for the
dispositional hearing, there was no indication that the paternal aunt was no longer
willing to consider such a guardianship. Yet, the court did not enter any findings
related to whether an alternative besides termination of Mother’s parental rights
existed. 3
[¶39.] “Under SDCL 26-8A-27, the court must find, by clear and convincing
evidence, that termination is the least restrictive alternative ‘commensurate with
the best interests of the child with due regard for the rights of the parents, the
public and the state[.]’” A.B., 2016 S.D. 44, ¶ 28, 880 N.W.2d at 104 (quoting the
3. When the DSS witness was questioned at the dispositional hearing about whether the paternal aunt wanted to adopt C.H., the State objected, arguing this topic was not relevant. The court sustained the objection.
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statutory language). The best interest of the child is viewed from the child’s
perspective, not the parent’s. S.H.E., 2012 S.D. 88, ¶ 29, 824 N.W.2d at 428. In
this vein, we have often observed that “[children] should not be required to wait for
parents to acquire parenting skills that may never develop.” Id. ¶ 33, 824 N.W.2d
at 429 (quoting In re P.K., 2006 S.D. 17, ¶ 24, 711 N.W.2d 248, 256). We have
further noted that “‘guardianships, by their very nature, are temporary’ and, as a
result, ‘subject the children to further years of insecurity and lack of stability[.]’” Id.
(quoting P.K., 2006 S.D. 17, ¶ 26, 711 N.W.2d at 257). However, ICWA also
“acknowledges that Indian children should retain familial, tribal, and cultural ties”
and affords “different protections for parents whose rights are subject to
termination[.]” J.S.B., 2005 S.D. 3, ¶¶ 14, 21, 691 N.W.2d at 616, 619. In the event
the circuit court, on remand, is once again confronted with the question whether
termination of Mother’s parental rights is the least restrictive alternative
commensurate with C.H.’s best interests, the court must apply the correct legal
standards. The circuit court must also support its decision with adequate findings
of fact.
Conclusion
[¶40.] The circuit court’s order terminating Mother’s parental rights to C.H.
is reversed. On remand, the circuit court is directed to appoint an attorney to
represent C.H. and require that the State and DSS follow the dictates of both ICWA
and applicable South Dakota law in reassessing Mother’s and C.H.’s current
circumstances.
[¶41.] Reversed and remanded.
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[¶42.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,
concur.
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