APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. HONORABLE KATHLEEN K. CALDWELL Presiding Judge. APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. HONORABLE KATHLEEN K. CALDWELL Presiding Judge. APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. HONORABLE ROBIN J. HOUWMAN Judge. APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. HONORABLE JEFF W. DAVIS Presiding Judge.
CONSIDERED ON BRIEFS JUNE 10, 2010
[¶1.] Pending before this Court are motions to dismiss in four abuse and neglect appeals. The Indian Child Welfare Act (ICWA) applies to these proceedings.
In each instance, a parent appeals termination of parental rights. Although a Tribe intervened in each case at the circuit court level, none of the appealing parents served a notice of appeal on the intervening Tribe. The State contends that this failure to serve a notice of appeal requires dismissal.
[¶2.] The question we must answer is whether failure to serve an intervening Tribe with a notice of appeal is jurisdictionally fatal. SDCL 15-26A-4 provides:
An appeal, permitted by § 15-26A-3 as of right shall be taken as follows: . . . (3) Service of the notice of appeal and docketing statement. The appellant, or his or her counsel, shall serve the notice of appeal and docketing statement on counsel of record of each party other than appellant, or, if a party is not represented by counsel, on the party at his or her last known address.
[¶3.] Recently, this Court examined the consequence of failing to serve a notice of appeal on a party. In re Reese Trust, 2009 SD 111, 776 NW2d 832. Reese involved a trustee who petitioned the circuit court to assume supervision of a trust and wind up its affairs. Id . at ¶ 3. As part of the petition, the trustee asked the court to distribute the trust assets to the Foundation. Id . The qualified charitable organization's board of directors requested that the assets be distributed to a specific club rather than to the Foundation. Id . A hearing was held on the petition, after which the circuit court ordered that the trust assets be distributed to the Foundation. Id . at ¶ 4. The Board appealed, but failed to serve the Foundation with its notice of appeal. Id . The trustee moved to dismiss the appeal. Id . After reviewing previous decisions on the issue, we held that failure to serve the Foundation with the notice of appeal required dismissal of the appeal. Id. at ¶ 17. [¶4.] In Reese , the Foundation was not an original party to the action and did not participate in the trial. Id . at ¶ 14. But this did not exclude the Foundation from being a "party entitled to service." Id . at ¶¶ 14-16. Here, the respective Tribe's participation in the lower court proceedings was varied and uncertain, other than filing a motion to intervene. Yet even if the intervening Tribe participated no further than to intervene, that is not dispositive. See id. at ¶ 15. We have explicitly overturned those cases holding that a party must participate in the trial to be entitled to service of the notice of appeal. See Morrell Livestock Co. v. Stockman's Comm'n Co., 77 SD 114, 119, 86 NW2d 533, 536 (1957).
[¶5.] In Reese , we examined the substantive law of trusts for assistance in determining the parties entitled to service. The ICWA allows Tribes to intervene in certain child custody proceedings involving Indian children. "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding." 25 USCA § 1911(c).
[¶6.] The cases interpreting the ICWA are silent on this precise issue. Commentators writing on the ICWA, however, appear to suggest that notice of appeal should be served on the Tribe. "Once a tribe intervenes, it becomes a party to the case and is entitled to receive service of all motions and pleadings from that point forward." B.J. Jones, The Indian Child Welfare Act Handbook 55 (Section of Family Law, American Bar Association 1995). No authority was cited for this proposition, nor was it suggested that failure to serve an intervening Tribe with a notice of appeal is a jurisdictional defect. Discussing the notice required to be given the Tribe at the adjudicatory and dispositional phases, a South Dakota commentator stated: "[o]bviously, if a party responds to either notice, notice should be given of all further proceedings to that party." Roger A. Tellinghuisen, The Indian Child Welfare Act of 1978: A Practical Guide with [Limited] Commentary , 34 SD L Rev 660, 673 (1988-89). It is clear that a Tribe is permitted to intervene "at any point in the proceeding." What is unclear is exactly what status is granted to a Tribe by intervening, and more precisely, whether that status requires service of a notice of appeal.*fn1 The answer is not apparent in ICWA jurisprudence.
[¶7.] The South Dakota statute on intervention provides:
Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute of the state confers an unconditional right to intervene; or (2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
SDCL 15-6-24(a). The ICWA grants a child's Tribe the ability to intervene as a matter of right. The State argues that this requires a determination that each Tribe be treated as a real party to the action. In support, the State offers the following language: "By intervening as a matter of right under SDCL 15-6-24(a), Intervenor became a real party to the action. As such it became entitled to all the rights, benefits, and privileges of the originally named parties." Steiner v. County of Marshall, 568 NW2d 627, 635 (SD 1997) (Miller, C.J., concurring) (citation omitted). Steiner involved a dispute over real property. Id . Immediately before the above-quoted language, the concurrence cited the relevant portion of the statute as allowing intervention as a matter of right when "the applicant claims an interest in the property or transaction. . . ." Id . (quoting SDCL 15-6-24(a)(2)). No party suggests that tribal intervention was premised on this portion of the statute. The language offered by the State does not control this issue.
[¶8.] When discussing whether an intervenor is authorized to appeal, commentators look to the interest of the intervenor. "At the heart of almost every intervention case is the nature and extent of the applicant's interest in the proceeding." David L. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators , 81 Harv L Rev 721, 729 (1968). "An appeal will be allowed, however, only if the subsequent orders affect the intervenor and only to the extent of the interest that made it possible for the ...