APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE KATHLEEN K. CALDWELL Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 9, 2012
[¶1.] In this abuse and neglect appeal, the primary question is whether the Indian Child Welfare Act (ICWA) applies to an Indian child not eligible for tribal membership.
[¶2.] On March 30, 2010, L.S., age three, went alone to a neighbor's apartment because his mother, C.S., was drunk. The neighbor soon called the police and reported that the mother was acting disorderly. Police officers responding to the call found C.S. extremely intoxicated with barely intelligible speech. Her blood alcohol tested at .34. She was arrested on outstanding warrants.
L.S. was removed from her custody.
[¶3.] C.S. began drinking early in life; she was first admitted for inpatient treatment at age fourteen. Following treatment, she remained sober for nineteen years. But in 2007 she began drinking again after the deaths of her mother, L.S.'s father, and a daughter due to Sudden Infant Death Syndrome.
[¶4.] C.S. agreed to work with the Department of Social Services (DSS) in an effort to regain custody of L.S. She signed a stipulation in June 2010 that L.S. was an abused or neglected child within the meaning of SDCL 26-8A-2. She also agreed to a case plan addressing her alcohol and parenting problems. But she struggled to make her appointments with DSS and visitation sessions with L.S. When she did attend, she often arrived intoxicated or exhibiting physical signs of alcohol withdrawal. She resisted initial attempts to treat her alcohol problems, including counseling and treatment. She also turned down assistance in obtaining her GED.
[¶5.] After missing two start dates, C.S. eventually entered inpatient alcohol treatment in July 2010. She was successfully discharged in August 2010. She refused to transition into a halfway house, but continued to work on her sobriety and attended appropriate aftercare groups for four months. She did not take advantage of any counseling services or parenting programs.
[¶6.] L.S. was returned to C.S. on November 5, 2010, for a trial reunification. C.S. relapsed, however, after a physical altercation with her adult son. On November 28, 2010, police officers were dispatched to C.S.'s apartment on a disorderly person report. Officers found the front door wide open. C.S. and her live-in boyfriend were passed out in the living room. L.S. was asleep on the couch. When eventually revived, C.S. had a .25 blood-alcohol level and struggled to communicate with the officers. C.S. was arrested on an outstanding warrant and
L.S. was taken back into DSS custody.
[¶7.] C.S.'s drinking continued, with frequent missed visits and appointments. She tested positive for alcohol and marijuana use. She was dropped from aftercare in April 2011. She missed a scheduled start date for another inpatient alcohol treatment program. In early June 2011, she lost her job as a result of her drinking problems.
[¶8.] DSS workers attempted to address other concerns, but C.S. was not receptive. L.S. had poor nutrition and was obese when he was with her, but his health improved in foster care. L.S. also had respiratory problems. Although C.S. was told it would be best not to smoke around L.S., she continued to smoke in her apartment and when L.S. was around. DSS was also concerned about C.S.'s two adult children who either lived or spent significant time at her residence. Both had chemical dependency issues. C.S.'s adult daughter was arrested after a plastic bag containing cocaine was found in C.S.'s home. C.S.'s adult son had domestic violence tendencies and had assaulted C.S. Additionally, C.S.'s live-in boyfriend had committed domestic violence against both L.S. and C.S. Her boyfriend also abused alcohol and had kicked C.S. out of the apartment before.
[¶9.] A dispositional hearing scheduled for June 15, 2011 was delayed because C.S. was in the emergency room for unknown reasons. A DSS worker discovered later that morning that although C.S. had a high blood alcohol level, she had been discharged and did not go to detox. At a hearing on June 28, C.S. requested a delay to recover from the effects of drinking too much. The court refused but told C.S. she could come and go from the courtroom as necessary. C.S. left after the first break and did not return.*fn1 She had told her case worker that she was ...