#29111, #29117-a-SRJ 2021 S.D. 42
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
The People of the State of South Dakota In the Interest of C.R.W., Child, and concerning D.S. and J.R.W., Respondents, OGLALA SIOUX TRIBE, Intervenor.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE JEFFREY R. CONNOLLY Judge
DANA L. HANNA Rapid City, South Dakota Attorney for intervenor and appellant, Oglala Sioux Tribe.
ILISJA DUFFY Rapid City, South Dakota Attorney for respondent and appellant, D.S.
COURT W. ROPER Special Assistant Attorney General Pierre, South Dakota Attorneys for petitioner and appellee, State of South Dakota.
GARY D. JENSEN of Beardsley, Jensen & Lee Rapid City, South Dakota Attorneys for appellee, C.R.W., Child.
CONSIDERED ON BRIEFS MARCH 22, 2021 OPINION FILED 07/21/21 #29111, #29117
JENSEN, Chief Justice
[¶1.] D.S. (Mother) and J.R.W. (Father) are the biological parents of C.R.W.,
who was the subject of an abuse and neglect proceeding before the circuit court.
The Oglala Sioux Tribe (the Tribe) intervened in the proceeding pursuant to the
Indian Child Welfare Act (ICWA). The Tribe moved to disqualify C.R.W.’s attorney
alleging the attorney had a conflict of interest with C.R.W. because the attorney
was not advocating for C.R.W.’s expressed wishes. During the termination
proceedings, Mother and Tribe moved to transfer the case to tribal court. The
circuit court denied the motion to disqualify C.R.W.’s attorney and the motions to
transfer jurisdiction. The court entered a final dispositional order terminating the
parental rights of both parents. Mother and the Tribe appeal. We affirm.
Facts and Procedural History
[¶2.] In early 2018, C.R.W. lived with Father and her stepmother
(Stepmother) in Rapid City. She was eleven years of age at the time. Mother had
not been the active caregiver since 2009. On January 11, Father was arrested for
violating a no contact order. Around 3:00 a.m. that same night, C.R.W. called Rapid
City dispatch to report that Stepmother left her home alone with an unknown male
and she felt unsafe. Law enforcement arrived at the house and questioned the man,
who was sleeping. He identified himself as J.J. J.J. told law enforcement that he
was not providing care for C.R.W. and did not know Stepmother left the house
without C.R.W. C.R.W. informed law enforcement that J.J. entered the home
around 2:00 a.m. and Stepmother left around 2:30 a.m. The responding officers
reported that the carpets were covered in garbage, dirty dishes were piled up in the
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sink, food was spilled on the counters and stove, and the kitchen smelled like sour
milk. C.R.W. believed that Stepmother and other unknown associates were
smoking marijuana in the home prior to her leaving.
[¶3.] C.R.W. was removed from the residence and taken to her maternal
grandmother’s (Grandmother) home. Grandmother reported several ongoing
concerns related to C.R.W.’s truancy and living conditions. Grandmother reported
that C.R.W. had head lice for months, yet it went untreated even though she
provided Father with tips on how to treat lice. C.R.W. was placed in the
Department of Social Services’ (DSS) temporary custody because Father was
incarcerated and Mother’s whereabouts were unknown.
[¶4.] A 48-hour hearing was held on January 16, 2018. Mother, Father, and
C.R.W. were each appointed counsel. C.R.W. was eligible for enrollment in the
Oglala Sioux Tribe by virtue of Father’s enrolled status. 1 Thus, C.R.W. is
considered an Indian child under ICWA, pursuant to 25 U.S.C. § 1903(4). The Tribe
intervened in the proceedings. Following a March 2018 hearing, the circuit court
entered a default adjudicatory order, after both parents failed to appear personally,
determining C.R.W. to be abused and neglected. The attorneys for each parent
were present at the hearing.
[¶5.] Over the next several months, C.R.W. remained in foster care and the
circuit court found at periodic review hearings that “returning custody of [C.R.W.] to
the Respondent parents would likely result in serious emotional and/or physical
damage to [C.R.W.].” Father had a history of domestic abuse and refused to
1. Mother is non-Indian.
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cooperate or maintain contact with DSS during the proceedings. Father also
refused efforts by DSS to set up visitation for him with C.R.W. Mother had a
history of instability and substance abuse. She had been in and out of C.R.W.’s life
since birth. DSS’s reports to the circuit court showed that Mother made no
movement toward reunification during this time.
[¶6.] DSS filed a petition to terminate parental rights on October 4, 2018,
and served the same on both parents. A final dispositional hearing was scheduled
for December 3, 2018, but was later cancelled at DSS’s request. A permanency
hearing was held in January 2019. At the hearing, DSS again expressed its
intention to request termination of parental rights and asked the court to set a final
dispositional hearing within 30 days. C.R.W.’s attorney joined in this request
expressing that termination of parental rights was in C.R.W.’s best interest. The
attorneys for both parents objected to setting a final dispositional hearing.
[¶7.] The Tribe also objected to setting a final hearing and requested the
circuit court to direct C.R.W.’s attorney to advise whether C.R.W. agreed with her
attorney’s request to terminate parental rights. C.R.W.’s attorney informed the
court that C.R.W. “would like to go home to her parents” but “she understands her
parents are not in a position right now to provide her with stability.” C.R.W.’s
attorney further informed the court of C.R.W.’s other placement preferences “if she
can’t go home to her parents.” C.R.W.’s attorney relayed her belief that
reunification was not in C.R.W.’s best interest and expressed that the court should
terminate parental rights.
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[¶8.] Based on these statements, the Tribe argued a conflict of interest
existed between C.R.W. and her attorney, and that the attorney should be
disqualified. The Tribe requested that a guardian ad litem (GAL) be appointed for
C.R.W. and that a review hearing be set to address whether C.R.W.’s attorney had a
conflict of interest. The circuit court denied the Tribe’s request to appoint a GAL
but set a review hearing for February 25, 2019, to consider the Tribe’s motion to
disqualify C.R.W.’s attorney.
[¶9.] On February 20, the Tribe filed a written motion to disqualify C.R.W.’s
attorney. The Tribe claimed that C.R.W.’s attorney created a conflict of interest by
recommending termination of parental rights to the court when C.R.W. desired to
be reunited with her parents. The Tribe argued that the conflict of interest
deprived C.R.W. of her due process and statutory right to counsel. The Tribe also
argued that C.R.W.’s attorney had an ethical duty to advocate for C.R.W.’s wishes
pursuant to Rule 1.2 of the South Dakota Rules of Professional Conduct. 2 The Tribe
again requested that a GAL be appointed to represent C.R.W.’s best interests.
[¶10.] C.R.W.’s attorney filed a response arguing that the Tribe did not have
standing to bring a motion to disqualify C.R.W.’s attorney, but even if the Tribe had
standing, the statute authorizing the appointment of counsel for a child in abuse
and neglect proceedings requires “[t]he attorney for the child [to] represent the
2. Rule 1.2 provides in relevant part:
a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.
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child’s best interests . . . .” SDCL 26-8A-18. 3 C.R.W.’s attorney also provided a
memorandum from the State Bar Ethics Committee addressing an attorney’s
professional responsibility in representing children in abuse and neglect
proceedings. The Committee’s memo provided that “SDCL 26-8A-18 requires a
lawyer to disregard client wishes when they conflict with the lawyer’s assessment of
the best interests of the client.”
[¶11.] At the February 25 review hearing, the circuit court ruled that the
Tribe had standing to raise the alleged conflict with C.R.W. and her attorney
because “any party has standing . . . to bring to the court’s attention if they believe
there’s an ethical violation or some reason where a party should be disqualified.”
The court stated possible “friction” existed between the rules of professional conduct
and SDCL 26A-8-18 but did not attempt to resolve any conflict between them.
Instead, the circuit court found that the record failed to show that a conflict existed
between C.R.W. and her attorney requiring disqualification. The court denied the
motion to disqualify, as well as the request to appoint a GAL. However, the court
expressed that it would be open to hearing directly from C.R.W.
[¶12.] On February 26, 2019, DSS noticed a final dispositional hearing for
March 25, 2019, and filed a petition to terminate the parental rights of Father and
Mother. On March 22, 2019, the Tribe renewed its motion to disqualify C.R.W.’s
3. SDCL 26-8A-18 provides in relevant part:
the court shall appoint an attorney for any child alleged to be abused or neglected in any judicial proceeding. . . . The attorney for the child shall represent the child’s best interests and may not be the attorney for any other party involved in the judicial proceedings.
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attorney. The Tribe specifically requested the circuit court to address the
obligations of C.R.W.’s attorney under SDCL 26-8A-18 and the Rules of Professional
Responsibility.
[¶13.] During the termination hearing, C.R.W. appeared and was questioned
by the court and counsel concerning her preferences and express wishes. C.R.W.
relayed that she wanted Mother’s and Father’s parental rights to be terminated so
that she could live in a forever home. C.R.W. also stated that she had initially
wanted to return to her parents but changed her mind over time because of her
parents’ instability and inconsistency in visiting her. C.R.W. expressed that her
first choice would be to live permanently with her brother’s foster family, where she
was staying at the time of the final dispositional hearing, or another home
permanently. Based upon C.R.W.’s testimony, the court found that C.R.W. “wanted
her parents’ rights terminated and that she wanted to be adopted.” The court orally
denied the Tribe’s second motion to disqualify C.R.W.’s attorney.
[¶14.] At the start of the final dispositional hearing on March 25, Mother
orally moved to transfer the case to tribal court. Mother claimed that she had only
recently learned about the possibility of transferring the case to tribal court from
members of Father’s family. Father and the Tribe did not take a position on the
motion because neither attorney knew whether their clients wished to transfer the
case. 4 The Tribe also informed the circuit court that the tribal court had not
conditionally accepted jurisdiction of the case.
4. Father did not personally appear at the hearing.
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[¶15.] DSS objected to Mother’s transfer motion, arguing that good cause
existed to deny transfer because the final dispositional hearing was at an advanced
stage in the proceedings. C.R.W.’s attorney also objected to Mother’s oral motion to
transfer. C.R.W.’s attorney reiterated that C.R.W. specifically expressed her desire
to move forward with the termination hearing so that she could be placed in a
forever home. The court asked the Tribe if it had a position on whether good cause
existed, to which the Tribe replied “[C.R.W.’s] desires and rights on this issue
should be respected[.]”
[¶16.] The circuit court found that good cause existed to deny Mother’s
motion to transfer because the case was in the advanced stages of the proceeding.
The circuit court also considered the fact that C.R.W. opposed transfer. Although
Mother argued that she just recently found out about the ability to transfer the
proceedings, the court found that Mother had been involved in every stage of the
litigation, represented by counsel throughout the proceedings, and advised of her
right to transfer at the 48-hour hearing in January 2018.
[¶17.] The termination hearing was not concluded on March 25 so the parties
returned for a second day. At the start of the continued hearing on March 28, the
Tribe, for the first time, made an oral motion to transfer to tribal court. The Tribe’s
counsel indicated that the tribal court had taken action to assume jurisdiction, but
he did not yet have a copy of the order. Mother also orally renewed her motion to
transfer. In making the transfer motion, the Tribe conceded that the case was in
the advanced stages of the proceeding.
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[¶18.] Following a break during the hearing, the Tribe’s attorney presented a
tribal court order dated March 11 accepting jurisdiction of the case. The circuit
court and the parties, including the Tribe’s attorney, were not previously aware of
the tribal court order. Mother argued that the court should reconsider the denial of
the motion to transfer because she would have made the motion earlier had she
known that the tribal court accepted jurisdiction of the case. The circuit court
determined good cause existed to deny both the Tribe’s motion and Mother’s
renewed motion on the same grounds upon which the court had denied the original
transfer motion.
[¶19.] Following the final dispositional hearing, the court issued a lengthy
memorandum opinion confirming its oral rulings denying the Tribe’s motion to
disqualify C.R.W.’s attorney, as well as the motions to transfer jurisdiction to tribal
court. The court then issued findings of fact and conclusions of law, and an order
terminating Mother’s and Father’s parental rights.
[¶20.] The Tribe raises a single issue on appeal of whether the circuit court
erred when it denied the Tribe’s motion to disqualify C.R.W.’s attorney. Mother
appeals arguing that the circuit court abused its discretion when it denied her
motion to transfer jurisdiction.
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Issues
1. Whether the circuit court erred when it denied the Tribe’s motions to disqualify C.R.W.’s attorney.
a. Standing
[¶21.] DSS initially argues that the Tribe lacked standing to disqualify
C.R.W.’s attorney before the circuit court, or to appeal the issue to this Court. 5 We
disagree. Under ICWA, an Indian tribe has an interest in an Indian child that is
distinct from the parents’ interest. People ex rel. M.H., 2005 S.D. 4, ¶ 14, 691
N.W.2d 622, 627 (quoting Mississippi Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 52, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989)). Additionally, ICWA was
established to help preserve “the tribe’s ability to assert its interest in its children.”
Id. (quoting Holyfield, 490 U.S. at 52) (emphasis omitted). As such, a tribe may
intervene as a party in any abuse and neglect proceeding involving an Indian child.
We conclude that the Tribe’s interest in protecting the welfare of Indian children
and its status as a party under ICWA is sufficient to show injury for the purpose of
standing to raise an alleged conflict between C.R.W. and her attorney. 6 See Cable v.
Union Cnty. Bd. of Cnty. Comm’rs, 2009 S.D. 59, ¶ 22, 769 N.W.2d 817, 826.
[¶22.] Moreover, the circuit court also properly recognized its inherent
authority to ensure that counsel appearing and advocating before the court comply
5. C.R.W. joined DSS’s brief and did not file a separate brief.
6. 25 U.S.C. § 1914 authorizes the Tribe to petition a court to invalidate any action for termination of parental rights upon a showing that such action violated any provision of sections 1911, 1912, or 1913. One such provision, section 1912(b), provides that the court may appoint counsel for the child if the court determines that appointment of counsel is in the child’s best interests.
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with the professional responsibilities of an attorney. Courts have recognized that
judges have an obligation to address ethical issues involving potential conflicts of
interest that may exist between a litigant and her attorney. Ward v. Lange, 1996
S.D. 113, ¶¶ 26-28, 553 N.W.2d 246, 253 (recognizing the circuit court’s obligation to
raise and prevent, even sua sponte, conflicts of interest arising when an attorney
representing a client seeks to testify in the same proceeding). See also, Wheat v.
United States, 486 U.S. 153, 161, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140 (1988)
(stating that courts have an independent duty to inquire into conflict of interests in
a dual criminal case to ensure the defendant has adequate representation).
b. Conflict of Interest
[¶23.] The Tribe argues that a conflict of interest existed between C.R.W. and
her attorney when the attorney argued for what the attorney believed was in
C.R.W.’s best interest rather than advocating for C.R.W.’s expressed wishes. In
particular, the Tribe points to C.R.W.’s attorney joining in DSS’s request to
terminate parental rights, while indicating that C.R.W. still desired to be reunited
with her parents. The Tribe argues that C.R.W.’s attorney violated Rule 1.2 by
failing to comply with the directives of her client in advocating for C.R.W.
[¶24.] We review a circuit court’s ruling on a motion to disqualify an attorney
under an abuse of discretion standard. Harter v. Plains Ins. Co., Inc, 1998 S.D. 59,
¶ 21, 579 N.W.2d 625, 631. In denying the motion to disqualify, the court concluded
that the record did not demonstrate that a conflict of interest existed between
C.R.W. and her attorney. Even if the views of C.R.W. and her attorney differed to
some degree at the time of the January permanency hearing, the court found that
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C.R.W. expressed a desire to terminate parental rights and be adopted at the final
dispositional hearing in March. Further, the court determined that the attorney
appropriately advocated for what she believed was in the best interest of C.R.W. as
required by SDCL 26-8A-18 and that the “Tribe did not present any authority for
the proposition that a Court should disqualify an attorney because another party
believes the attorney is not properly abiding by their client’s decisions.”
[¶25.] The court also concluded that, contrary to the Tribe’s assertions,
C.R.W.’s attorney did not violate Rule 1.2 in her representation of C.R.W. The court
noted that C.R.W.’s attorney had obtained an opinion from the South Dakota State
Bar Ethics Committee that “recently made clear that Counsel has not violated
ethical obligations to her client.” Moreover, the court concluded that “little or
nothing in the record supports the Tribe’s interpretation that [C.R.W.] ever directed
her attorney to argue against termination.” The court’s factual determinations that
a conflict did not exist between C.R.W. and her attorney are supported by the
record.
[¶26.] However, the Tribe argues that the circuit court erred as a matter of
law by interpreting SDCL 26-8A-18 to permit an attorney, appointed to represent
the child in an abuse and neglect proceeding, to argue the attorney’s belief as to the
child’s best interest rather than for the express wishes of the child. The Tribe
argues that SDCL 26-8A-18 requires an attorney to provide client-directed
representation, and the attorney must abide by the child’s direct wishes. The
Tribe’s argument centers around its reading of the word “attorney” and the ethical
obligations upon an attorney in representing the client’s interests under Rule 1.2.
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[¶27.] The Tribe’s arguments present an issue of first impression in South
Dakota– whether an attorney appointed to represent a child in an abuse and
neglect proceeding under SDCL 26-8A-18 provides the child with client-directed
representation or “best interest” representation, wherein the attorney advocates for
the child’s best interest. To answer this question, we turn to the relevant statutes
and rules.
[¶28.] Interpretation of a statute or court rule is reviewed de novo. State v.
Bryant, 2020 S.D. 49, ¶ 20, 948 N.W.2d 333, 338 (citation omitted). “[T]he starting
point when interpreting a statute must always be the language itself.” Id. (quoting
State v. Livingood, 2018 S.D. 83, ¶ 31, 921 N.W.2d 492, 499 (alteration in the
original). “The purpose of statutory interpretation is to discover legislative intent.”
Id. (citation omitted). “[This Court] gives words their plain meaning and effect, and
read statutes as a whole . . . .” Expungement of Oliver, 2012 S.D. 9, ¶ 6, 810 N.W.2d
350, 352 (citation omitted) (second alteration in the original).
[¶29.] South Dakota law requires appointment of counsel for a child in an
abuse and neglect proceeding:
the court shall appoint an attorney for any child alleged to be abused or neglected in any judicial proceeding. The court shall appoint an attorney in the manner the county in which the action is being conducted has chosen to provide indigent counsel under § 23A-40-7. The attorney for the child shall represent the child’s best interests and may not be the attorney for any other party involved in the judicial proceedings. The court may designate other persons, including a guardian ad litem or special advocate, who may or may not be attorneys licensed to practice law, to assist the attorney of the child in the performance of the attorney’s duties. Compensation and expense allowances for the child’s attorney shall be determined and paid according to § 26- 7A-31.
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SDCL 26-8A-18.
[¶30.] The plain language of SDCL 26-8A-18 provides: “The attorney for the
child shall represent the child’s best interests[.]” (emphasis added). This Court has
made clear its rules on statutory construction:
There are two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.
Abata v. Pennington Cnty. Bd. of Comm’rs, 2019 S.D. 39, ¶ 18, 931 N.W.2d 714, 721
(citation omitted) (internal quotations omitted). Thus, an attorney appointed
pursuant to SDCL 26-8A-18 must first and foremost advocate for the child’s best
interests. 7
[¶31.] The Tribe argues that notwithstanding the “best interests” language in
SDCL 26-8A-18, the ethical obligations of an attorney under the Rules of
Professional Conduct require a lawyer to “abide by a client’s decisions concerning
the objectives of representation . . . .” SDCL 16-18 App., Rules of Prof. Conduct,
7. Other states have similar statutes governing representation of children. See WY ST 14-3-211 (“The attorney . . . shall be charged with representation of the child’s best interest.”); See also In re K.H., 2012 M.T. 175, 285 P.3d 474 (holding that a child’s attorney advocates for the child’s best interest). This interpretation also is consistent with articles addressing the topic. See Kasey L. Wassenaar, Defenseless Children: Achieving Competent Representation for Children in Abuse and Neglect Proceedings Through Statutory Reform in South Dakota, 56 S.D. L. Rev. 182, 183 (2011) (“The attorney’s role in a best interests capacity requires the attorney to step outside his or her traditional role and look at the situation from a bigger perspective to determine what is in the best interests of the child.”); See also Noy Davis, Amy Harfeld, Elisa Weichel, A Child’s Right to Counsel (4th Ed.), 2019, at 133, (Children in South Dakota receive “best interest representation”).
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Rule 1.2. See also SDCL 16-18 App., Rules of Prof. Conduct, Rule 1.4. The Tribe
argues that a conflict of interest arises whenever the attorney’s view of a child’s best
interests conflicts with the child’s express wishes.
[¶32.] Ethical considerations can no doubt arise from “best interests”
representation. See Wassenaar, 56 S.D. L. Rev. at 205. However, in addressing
possible conflicts, several states have reconciled an attorney’s separate obligations
to protect a child’s best interest and to advocate for a child’s wishes by requiring the
attorney to present both views to the court. See Clark v. Alexander, 953 P.2d 145,
153 (Wyo. 1998); In re K.H., 2012 M.T. 175, 285 P.3d 474; Interest of J.P.B., 419
N.W.2d 387 (Iowa 1988). These courts recognize the unique role of an attorney
appointed to represent a child and how the relationship differs from the usual
attorney-client relationship.
[T]he very reason for contested custody proceedings is that the children involved are not yet mature enough to be self- determining. It is the best interests of these minor children, not their wishes, which determine the outcome of the case. In other words, their real interests are not inconsistent or mutually exclusive.
J.P.B., 419 N.W.2d at 391.
[¶33.] The Supreme Court of Montana explained its views (albeit in a child
custody dispute) this way:
We recognize that in Montana the attorney for the child is not a guardian ad litem. Nevertheless his role in a custody dispute is to advocate the child’s best interest, not the child’s wishes. This is a difficult role, particularly when the child’s expressed wishes conflict with the attorney’s determination of his best interests. But, given the immaturity of the client and the pressures that often exist in a divorce situation, it is this Court’s opinion that the best interests of the child, the paramount concern in all custody disputes, is best served by modifying that traditional lawyer-client relationship. -14- #29111, #29117
... This Court is aware that determining a child’s best interests is difficult and is concerned about the child’s right to an advocate. We reiterate our position that a child’s wishes deserve serious consideration[.] . . . If the court-appointed attorney concludes that the child’s expressed wishes are not in his best interest the attorney must disclose this to the court. The district court must be clearly informed of the child’s wishes and the basis for the attorney’s determination that it is not in the child’s best interest to live with the preferred parent.
In re Marriage of Rolfe, 216 M.T. 39, 52-53, 699 P.2d 79, 86-87 (internal citations
omitted). The Montana Supreme Court later applied the same analysis to abuse
and neglect proceedings. See In re K.H., 2012 M.T. 175, 285 P.3d 474.
[¶34.] We adopt this approach as it relates to a child’s attorney appointed in
abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney
appointed pursuant to the statute is required to advocate for the child’s best
interest. However, when the attorney’s determination of what constitutes the
child’s best interest conflicts with the child’s expressed wishes, the ethical
obligations of the attorney require consultation with the child to insure that the
child’s objectives are presented to the court, along with the basis for the attorney’s
determination of the child’s best interest. This approach “gives priority to the
paramount goal of discerning the child’s best interest while enabling the lawyer to
advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419
N.W.2d at 392. 8
8. The Tribe contends that this reading of SDCL 26-8A-18 violates the child’s due process rights. The Tribe argues that excusing any duty on the part of an attorney to advocate for a child’s requests and preferences violates the “opportunity to be heard at a meaningful time and in a meaningful manner” under the Due Process Clause. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. (continued . . .) -15- #29111, #29117
[¶35.] The Tribe also argues that when the best interest recommendations of
the child’s attorney conflict with the child’s express wishes, a GAL must be
appointed to represent the child’s best interest so the attorney can advocate as
directed by the child. 9 SDCL 26-8A-20. The Tribe claims that interpreting statutes
to require best interest representation by an attorney creates a redundancy in the
duties of a GAL, resulting in an absurd or unreasonable interpretation of SDCL 26-
8A-18. See Argus Leader Media v. Hogstad, 2017 S.D. 57, ¶ 9, 902 N.W.2d 778, 782.
[¶36.] We have recognized that an ambiguity “may exist where the literal
meaning of a statute leads to an absurd or unreasonable conclusion.” People ex rel.
J.L., 2011 S.D. 36, ¶ 4, 800 N.W.2d 720, 722. However, we can discern no reason to
consider this exceptional canon of construction here. There is nothing absurd or
ambiguous about the Legislature’s requirement that both the attorney and GAL,
appointed for a child in an abuse and neglect proceeding, are obligated to advocate
for the child’s best interest. The GAL serves to assist the attorney in representing
the best interest of the child. See SDCL 26-8A-20. While the duties of the attorney
and the GAL may occasionally overlap, these court-appointed representatives serve
________________________ (. . . continued) Ct. 893, 902, 47 L. Ed. 2d 18 (1976) (citation omitted) (internal quotations omitted). However, this argument is undeveloped beyond the Tribe’s bare assertion and is unsupported by authority. The Tribe’s constitutional claim also fails to account for the fact that our standard requires the child’s attorney to present the child’s wishes to the circuit court.
9. On appeal, the Tribe does not challenge the circuit court’s denial of the Tribe’s request to appoint a GAL for C.R.W. The record shows that the circuit court appointed a CASA special advocate to represent the best interests of the child, in addition to appointing counsel.
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an integral role in providing a voice for the child and advocating for the child’s best
interest.
c. Supremacy Clause
[¶37.] The Tribe also contends that ICWA preempts SDCL 26-8A-18 to the
extent that the statute requires an attorney to advocate for a child’s best interest
rather than a child’s wishes. In part, the Tribe points to the Code of Federal
Regulations, which requires every party to be heard regarding foster care
placement, pre-adoptive placement, adoptive placement, and transfer hearings
regarding the proceeding. See 25 C.F.R. § 23.118(b); See 25 C.F.R. § 23.132(c)(2).
[¶38.] “There is a strong presumption against federal preemption.” In re
Estate of Flaws, 2016 S.D. 61, ¶ 17, 885 N.W.2d 580, 584 (citation omitted).
“Federal preemption ‘occurs when Congress . . . expresses a clear intent to pre-empt
state law, . . . where there is implicit in federal law a barrier to state regulation,
where Congress has legislated comprehensively, . . . or where the state law stands
as an obstacle to the accomplishment and execution of the full objectives of
Congress.’” Id. ¶ 18, 885 N.W.2d at 584 (quoting La. Pub. Serv. Comm’n v. FCC,
476 U.S. 355, 368–69, 106 S. Ct. 1890, 1898, 90 L. Ed. 2d 369 (1986)) (alterations in
original).
[¶39.] “[ICWA] contains nothing at all by way of an express preemption
provision.” In re Brandon M., 54 Cal. App. 4th 1387, 1396, 63 Cal. Rptr. 2d 671
(1997). Further, ICWA does not comprehensively occupy the field of child custody
or adoption of Indian children. “In rare cases, the Court has found that Congress
‘legislated so comprehensively’ in a particular field that it ‘left no room for
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supplementary state legislation[.]’” Kansas v. Garcia, 140 S. Ct. 791, 804, 206 L.
Ed. 2d 146 (2020) (quoting R. J. Reynolds Tobacco Co. v. Durham County, 479 U.S.
130, 140, 107 S. Ct. 499, 93 L. Ed. 2d 449 (1986)). However, “ICWA is totally devoid
of any provisions dealing with, e.g., the bases on which a child may be removed from
a parent’s custody, when and how often hearings must be held to review a child’s
status, who is entitled to what reunification services and for how long, or many,
many other similar issues.” In re Brandon, 54 Cal. App. 4th at 1396. Additionally,
25 U.S.C. § 1902 provides that ICWA was implemented based on a national policy of
promoting “the stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal of Indian children
from their families . . . .” (emphasis added).
[¶40.] The Tribe has failed to show how SDCL 26-8A-18 conflicts with any
provision of ICWA. Under federal law, a court has discretion to appoint an attorney
for an Indian child in an abuse and neglect proceeding. 25 U.S.C. § 1912(b). South
Dakota law requires a circuit court to appoint an attorney for any child alleged to be
abused and neglected. See SDCL 26-8A-18. Thus, South Dakota law grants Indian
children a higher standard of protection than federal law by requiring a child be
appointed counsel in abuse and neglect proceedings, in turn directly promoting
Congress’s purpose and objectives under ICWA. See 25 U.S.C. § 1902.
[¶41.] In the end, we conclude the circuit court did not err in its legal
conclusion that SDCL 26-8A-18 required the child’s attorney to represent the child’s
best interests, nor did the circuit court abuse its discretion in denying the motion to
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2. Whether the circuit court abused its discretion in denying Mother’s motions to transfer jurisdiction.
[¶42.] A circuit court’s “[d]enial of a motion to transfer jurisdiction under
[ICWA] is reviewed under the abuse of discretion standard.” People in interest of
A.O., 2017 S.D. 30, ¶ 8, 896 N.W.2d 652, 654 (citation omitted). “An abuse of
discretion ‘is a fundamental error of judgment, a choice outside the range of
permissible choices . . . .’” Id. (citations omitted) (alteration in original). A circuit
court’s factual findings are reviewed for clear error. Id. (citation omitted). A
finding is clearly erroneous if this Court is “left with the definite and firm
conviction” that a mistake has been made. Id. (citation omitted).
[¶43.] Pursuant to 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.” People in Interest of E.T., 2019
S.D. 23, ¶ 11, 932 N.W.2d 770, 773 (citations omitted). “However, this shared
jurisdiction is presumptively tribal[,]” and “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. (citation omitted). “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.’” Id. ¶ 12, 932 N.W.2d at 773 (quoting 25 C.F.R. §
23.118).
[¶44.] Mother argues that the circuit court erred when it did not conduct a
separate evidentiary hearing on her motion to transfer. She believes this deprived
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her of an adequate opportunity to be heard. Mother relies on People in Interest of
M.C., 504 N.W.2d 598, 601 (S.D. 1993) (holding that a child opposing a motion to
transfer jurisdiction to tribal court was entitled to an evidentiary hearing to
establish good cause to deny the transfer of jurisdiction to the tribe) and People in
Interest of A.O., 2017 S.D. 30, 896 N.W.2d 652 (holding that the circuit court abused
its discretion in determining good cause existed to deny a transfer motion based on
the fact that the case had been pending for more than a year without first holding
an evidentiary hearing). We have also stated that “circuit courts need the benefit of
a sufficiently developed record to assist in the good cause determination.” E.T.,
2019 S.D. 23, ¶ 16, 932 N.W.2d at 774.
[¶45.] The circuit court satisfied these requirements for a hearing on the
question of good cause and made specific findings based upon a well-developed
record. The circuit court considered evidence from the record and C.R.W.’s
statements when making its ruling on the motion to transfer. The circuit court also
afforded all the parties an opportunity to be heard on both motions to transfer
jurisdiction to tribal court. Finally, unlike the cases cited above, no party sought to
present additional evidence or to be heard further on the question of whether good
cause existed to deny transfer. Mother’s claim of procedural error by the circuit
court fails.
[¶46.] Mother next argues that the circuit court erred in determining that
good cause existed to deny the motion to transfer. Good cause to deny a motion to
transfer may exist if the proceeding is at an advanced stage. A.O., 2017 S.D. 30, ¶
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10, 896 N.W.2d at 655. The circuit court must determine on a case-by-case basis
whether the proceeding is at an advanced stage. Id. (citation omitted).
[¶47.] The guidelines to 25 C.F.R. § 23.118 state that “The final rule also
clarifies that ‘advanced stage’ refers to the proceeding, rather than the case as a
whole. Each individual proceeding will culminate in an order, so ‘advanced stage’ is
a measurement of the stage within each proceeding.” This guidance is also
consistent with 25 C.F.R. § 23.115(b) which provides that “[t]he right to request a
transfer is available at any stage in each foster-care or termination-of-parental-
rights proceeding.” Therefore, we must determine whether the circuit court
properly determined that Mother’s motion to transfer was made at an advanced
stage of the termination proceedings.
[¶48.] In its findings on the transfer motion, the circuit court stated:
The termination proceeding was at an advanced stage when the Respondent mother moved to transfer at the start of the termination hearing. The matter had been pending for fifteen months at the time the Respondent mother requested that the case be transferred. The Department had filed the Petition for Termination of Parental Rights almost six months earlier, on October 4, 2018. The Final Dispositional Hearing was canceled shortly thereafter. However, the intent to renew the termination proceedings was identified in Court on January 23, 2019; the Respondent mother was present. The Final Dispositional Hearing was reset for March 25, 2019 and a second notice of intent to terminate was filed on February 27, 2019. The Respondent mother, as well as the Tribe and all parties, received notice of the matter long before it became an advanced proceeding. Between February 27, 2019 and March 25, 2019, the Respondent mother did not file, serve, or give any indication that she intended to seek transfer of the case to the Oglala Sioux Tribe. The Respondent mother had been represented by counsel throughout these proceedings and has attended numerous hearings. The Respondent mother appeared and was represented by counsel at the [48] Hour Hearing on January 16, 2018 and she was advised on her right to transfer at
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that time. The Respondent mother knew of these proceedings since their inception and she knew she had the right to move for transfer at any time. Advanced stage of the termination of parental rights proceedings represents good cause not to transfer the proceeding upon the Respondent mother’s eleventh- hour motion. The second reason for good cause to deny the Respondent mother’s motion to transfer is based on the minor child’s objection to transfer. The minor child was present at the Final Dispositional Hearing on March 25, 2019 and objected to the transfer. In this case, the wishes of the twelve-year-old child are compelling. The objection of the child constitutes good cause to deny transfer.
[¶49.] The court’s findings that the termination proceeding had reached an
advanced stage are supported by the record. Mother failed to give any indication
that she intended to seek transfer of the case until she orally moved to transfer the
case at the start of the termination hearing on March 25. Yet, DSS initially filed a
petition for termination in October, requested a final disposition hearing in
January, and filed a second petition for termination in February. Mother’s claim
that she was unaware she could seek transfer to tribal court until one week before
the final dispositional hearing cannot be countenanced when she was advised of her
right to seek transfer at the 48-hour hearing one year earlier.
[¶50.] Additionally, the circuit court properly considered C.R.W.’s objections
in determining that good cause existed to deny transfer of jurisdiction to tribal
court. Mother argues, however, that the circuit court erroneously relied on the
statement of C.R.W.’s attorney that “[C.R.W.] would like to be placed in a forever
home.” She cites the Bureau of Indian Affairs regulations, which proscribe certain
factors from being considered, including “whether transfer could affect the
placement of the child[.]” 25 C.F.R. § 23.118(c)(3).
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[¶51.] Although C.R.W. expressed a placement preference, the record does
not show that this placement was an option for C.R.W., or that her preferred
placement would be impacted by the motion to transfer jurisdiction to tribal court.
Further, C.R.W.’s desire for a permanent home was made in the context of wanting
a final resolution of the proceedings that had already been pending for more than a
year. Finally, the circuit court stated in its memorandum opinion that it did not
consider whether transfer would impact the placement of C.R.W. in its good cause
determination.
[¶52.] Based on the foregoing, the circuit court did not abuse its discretion
when it denied Mother’s motions to transfer.
[¶53.] We affirm.
[¶54.] SALTER, DEVANEY, and MYREN, Justices, concur.
[¶55.] KERN, Justice, deeming herself disqualified, did not participate.
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