APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT JONES COUNTY, SOUTH DAKOTA HONORABLE MARK BARNETT Judge
CONSIDERED ON BRIEFS ON JANUARY 6, 2011
[¶1.] 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
[¶2.] 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.
[¶3.] 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.
[¶4.] 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.
[¶5.] A final dispositional hearing (termination hearing) was held on February 20, 2008. Neither Mother nor Father attended the hearing, and the court noted their absence in rendering its decision to terminate their parental rights. In an oral ruling at the close of the hearing, the court found that although Father had no "active part" in any alleged abuse or neglect, he had essentially abandoned Child. The court observed that "even [Child], his son, who apparently has neither heard nor seen from [Father] in the last couple of years[,] describes his situation as, 'I don't have a dad.'" Neither parent appealed the termination of parental rights.
[¶6.] Following the termination hearing, DSS began searching for a permanent placement for Child that would conform to the placement preferences of ICWA. DSS conducted searches for relatives of Child and for Native American families within South Dakota that might be willing to serve as a permanent placement. DSS also placed Child's name on the AdoptUsKids website as a means to search for licensed families nationwide. DSS sent the Tribe a report summarizing these search efforts.
[¶7.] During a July 16, 2008, review hearing, the Tribe, through ONTRAC*fn1 Director Juanita Scherich, requested additional time to conduct its own search for relatives and tribal members who could serve as adoptive parents for Child. The court expressed some concern that no relatives had yet come forward to care for Child but agreed to allow DSS and the Tribe additional time to look for a suitable placement.
[¶8.] Despite its thorough efforts, DSS was unable to find a relative or Native American family who was willing to adopt Child. It did, however, find a family in Michigan (the "Michigan Couple"), who was approved for adoption by the Michigan Indian Child Welfare Agency. One of the Michigan parents was affiliated with the Ottawa Tribe and was active in Native American culture but was not an enrolled member of the Tribe. Additionally, the Michigan Couple had previously adopted four Native American children. All of the children, like Child, had special needs but were happy and well adjusted in the home. DSS selected the Michigan Couple as a suitable placement for Child.
[¶9.] During an August 11, 2009, review hearing, the Tribe expressed its concern that Father's relatives had not been explored as a possible placement option for Child. DSS acknowledged that, until that point, it had made no effort to explore Father's family because Father's paternity had not been established. The State contended that the circuit court had already made a factual finding that the placement search was compliant with ICWA and argued the Tribe was now too late to contest that finding. The State argued against any further delay in the proceedings when a suitable placement option had already been found in the Michigan Couple. Nevertheless, the court agreed to continue the proceedings until Father's family could be explored as a possible placement option. [¶10.] In conjunction with the search, the Tribe provided DSS with a list of Father's relatives and other Native American families who might be interested in adopting Child. Only one person on the list expressed any interest in adopting Child: Father's live-in girlfriend (Girlfriend). DSS did not explore Girlfriend as a placement option because Father's parental rights had already been terminated, and the court had made a factual finding that Father abandoned Child.
[¶11.] The circuit court held a hearing on March 26, 2010, to determine whether good cause existed to place Child outside the ICWA placement preferences. Child's therapist, Christina Bisek, testified that Child should be placed with a family skilled in dealing with his behavioral disorders, which included Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. Bisek also testified she believed Child would benefit from being the youngest child in the home as it would allow him to receive more attention from the parents. Both of these factors favored placement with the Michigan Couple rather than with Girlfriend.
[¶12.] The State reiterated its concerns about placing Child with a caregiver whose parental rights had been terminated. Michael Putzier, a supervisor for DSS, testified that, in his experience, he could not recall ever placing a child with a parent whose parental rights had been terminated. Based on Ms. Bisek's conclusions and Putzier's ...