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People ex rel J.I.H.

July 1, 2009

THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF J.I.H. AND J.I.H., CHILDREN
AND CONCERNING,
M.D., RESPONDENT, AND J.I.H., RESPONDENT AND APPELLANT,
CHEYENNE RIVER SIOUX TRIBE, INTERVENOR.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JANINE M. KERN Judge.

The opinion of the court was delivered by: Severson, Justice.

CONSIDERED ON BRIEFS ON MAY 26, 2009

[¶1.] The trial court terminated Father's parental rights to his two children. He appeals. We reverse in part and affirm in part.

FACTS

[¶2.] This appeal concerns the termination of only Father's parental rights. Mother and Father are Cheyenne River Sioux Tribe (CRST) members, and have two children together. The children are eligible for enrollment in the tribe.

[¶3.] On September 29, 2007, Son and Daughter, then ages fourteen months and thirty-two months, respectively, were removed from Mother's care after law enforcement officers responded to the home. Mother was intoxicated and the children were filthy. The home was also filthy and drug paraphernalia was present. Mother was arrested on several charges, and the children were placed in protective custody with the Department of Social Services (DSS). Father was incarcerated at the time. He was serving consecutive sentences for simple assault/domestic violence and escape, and was scheduled for release in December 2008. He remained incarcerated throughout the duration of the trial court proceedings.

[¶4.] DSS was granted temporary custody of the children on October 1, 2007, and a petition alleging the children were abused and neglected was filed on October 5, 2007.*fn1 Mother later admitted to the petition, while Father denied it.

The children were initially placed in foster care. In mid-October 2007, they were placed with their maternal grandmother (Grandmother), and remained in her care until February 8, 2008, at which time Grandmother requested the children be removed because she was "overwhelmed." Grandmother was a registered nurse who worked nights, and, at the time, had two other grandchildren, as well as her youngest daughter who was pregnant, in her home. Son and Daughter were removed and remained in foster care for the balance of the proceedings.

[¶5.] An adjudicatory hearing concerning Father was held on January 16, 2008. Father admitted he was incarcerated at the time the children were taken into protective custody, thereby leaving the children without his care and supervision. The trial court adjudicated the children neglected pursuant to SDCL 26-8A-2 due to the actions and/or omissions of Father.

[¶6.] The final dispositional hearing was held on May 6, 2008. Only two witnesses testified: Sarah Trimble, the DSS family services specialist assigned to this family; and Luke Yellow Robe, who testified on behalf of the State as the Indian Child Welfare Act (ICWA) expert.

[¶7.] Trimble explained that at the inception of this case, the main safety concern with regard to Father was his inability to care for the children due to his incarceration. Trimble first met with Father in December 2007, but did not begin taking the children to visit Father in jail until February 2008 because until then they were placed with Grandmother. Trimble indicated that at the first visit the children did not know Father, and interaction between the children and Father was "very reserved." Overtime, however, the interaction increased from the children playing by themselves with Father watching to Father actually playing and engaging with the children. Trimble testified that Father's interactions with the children were always appropriate during the visits.

[¶8.] Trimble testified that due to Father's incarceration, the services she could offer Father were limited. Moreover, the services that could be provided in the county jail were more limited than the services provided in the state penitentiary. In addition to arranging visitation, Trimble assisted Father with case planning and relative searches to facilitate a family placement. Father did not receive any sort of parenting instruction from DSS until March 17, 2008. Because Father was not going to be released from jail until December 2008 and several issues would need to be dealt with thereafter, Trimble testified it could possibly be an additional year or two before Father could be available to parent the children.

[¶9.] Trimble testified that Grandmother had reconsidered and showed interest in being a long-term placement for the children. Grandmother's sister in Washington also expressed interest as a placement option for the children. In addition, Grandmother's home study to be a foster care provider had been approved, and her final requirement to be a licensed foster care provider was completion of Pride classes.

[ΒΆ10.] Ultimately, Trimble recommended Father's parental rights be terminated, in an effort to provide permanency and stability in the children's lives. She testified that, in her opinion, "adoption with a relative would probably be [the ...


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