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The People of the State

June 20, 2012

THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF P.S.E., CHILD, AND CONCERNING M.A.S., RESPONDENT.


APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JEFF W. DAVIS Judge

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

CONSIDERED ON BRIEFS ON MAY 17, 2012

[¶1.] M.A.S. (Father) appeals termination of his parental rights to P.S.E. At the time P.S.E. was removed from Mother's care, Father lived in California and did not know he had a child in South Dakota. The Indian Child Welfare Act (ICWA) applies to these proceedings because P.S.E. is an enrolled member of the Fort Peck Sioux Tribe. Father argues that the Department of Social Services (DSS) did not make active efforts to reunite the Indian family and that any efforts made were successful. Because the evidence presented shows that DSS provided active and reasonable, albeit abbreviated, efforts to place P.S.E. with Father, and those efforts were unsuccessful, the order is affirmed.

FACTS

[¶2.] On June 19, 2009, DSS took P.S.E. (DOB 6/2/2008) into temporary protective custody. Mother had a PBT over .20 and no sober caretakers were available. At some point, Mother told DSS that Father was P.S.E.'s father. Father lived in California, unaware he had a child in South Dakota.

[¶3.] At an adjudicatory hearing, Mother admitted neglecting P.S.E. At a later hearing, Father acknowledged that he had not known of P.S.E. until contacted by DSS and that he was not domiciled with P.S.E. Based on this acknowledgement, the trial court determined that Father had not provided care and support for the child through no fault of Father.

[¶4.] At the time of Father's adjudicatory hearing, DSS's stated goal was to foster a relationship between P.S.E. and Father. The ultimate goal was placement with Father. Toward this end, DSS requested California Department of Social Services (CDSS) complete a homestudy at Father's Tipton, California home.

[¶5.] Before placement of P.S.E. with Father would be authorized, the California homestudy required three things of Father: that he complete alcohol education classes; take an assessment to determine whether he should enroll in anger management classes; and take parenting classes. On June 18, 2010, nine months after receiving the California homestudy, DSS completed an initial case plan with Father. The case plan incorporated the three objectives listed in the California homestudy, modified to require Father to enroll in anger management and parenting classes.

[¶6.] DSS requested a second California homestudy in September 2010, but CDSS refused to conduct the homestudy. Father's children that had been residing with him (California children) had been removed due to allegations of physical abuse at the hands of their mother, with whom Father lived. With these allegations pending, California would not perform a homestudy on Father's home. Therefore, at the time of the dispositional hearing, a California homestudy approving placement with Father had not been completed.

[¶7.] On March 21, 2011, a final dispositional hearing was held regarding Father. (Mother's rights had previously been terminated and she did not appeal termination.) Testimony from the DSS caseworker assigned to the case established that Father had completed alcohol education classes and enrolled in parenting classes. Father testified that he had enrolled in anger management classes shortly before the dispositional hearing.

[¶8.] Father's testimony also revealed that his California children were still in the custody of CDSS. In order to regain custody, CDSS required Father to obtain "outpatient treatment, a batterer's program, anger management program, parenting classes, and AAs." Father indicated this list of requirements may not be exhaustive, and that this process would take time. "They keep on adding as they go. They also told me it's going to be hard for you to work or do anything because I can't live on the income I have." When asked if he was ready for P.S.E. to go to California with him, he testified that he would like to complete the California program first. He did not know how long the California program would take.

[¶9.] The trial court found that DSS had provided active efforts to prevent the breakup of the Indian family and terminated Father's parental rights. Father appeals, challenging the determination that "active efforts" were made and that those efforts were unsuccessful.

[¶10.] Issue # 1: Whether the trial court erred by not entering a finding of fact that the efforts provided by DSS were unsuccessful.

[¶11.] Father first presents a question regarding interpretation of ICWA. 25 U.S.C. § 1912(d) provides: Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed ...


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