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People ex rel. A.B.

Supreme Court of South Dakota

May 18, 2016

The People of the State of South Dakota in the interest of A.B., child, and concerning R.B. and T.B.E., Respondents

         Considered on Briefs March 21, 2016.

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE ROBERT A. MANDEL, Judge.

         DANA L. HANNA, Rapid City, South Dakota, Attorney for appellant mother R.B.

         MARTY J. JACKLEY, Attorney General, MICHAEL D. SHARP, WADE REIMERS, Special Assistant Attorneys General, Legal Division Department of Social Services, Pierre, South Dakota, Attorneys for appellee State of South Dakota.

         WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, Justice, concur. SEVERSON, Justice, concurs specially. KERN, Justice, deeming herself disqualified, did not participate.

          OPINION

         WILBUR, Justice

          [¶1] Mother appeals the termination of her parental rights. She argues that the circuit court abused its discretion when it qualified the State's witness as an expert under the Indian Child Welfare Act (ICWA) in light of the recently-adopted Bureau of Indian Affairs guidelines interpreting ICWA. She also claims that the circuit court applied the wrong standard of proof when it terminated her parental rights, and that the State's expert failed to specifically opine that continued custody of the child with Mother would likely cause serious emotional or physical harm to the child. Lastly, Mother claims that the least restrictive alternative is to continue Mother's legal relationship with the child while Father retains full legal and physical custody. We remand.

         Background

          [¶2] In April 2014, Mother contacted the Department of Social Services (DSS) because she was concerned that an adult male had sexually abused her daughter. DSS contacted law enforcement. During the investigation, Mother admitted that she used and sold methamphetamine. She also told law enforcement and DSS that she had left her daughter, A.B. (seven years old at the time), alone with the adult male so Mother could sell methamphetamine. Mother admitted that she routinely took A.B. with her to sell drugs.

          [¶3] Ultimately, law enforcement did not find sufficient evidence to substantiate the alleged sexual abuse against A.B. But law enforcement took A.B. into emergency custody and placed her in the custody of DSS because of Mother's drug use and distribution. DSS substantiated Mother's neglect of A.B.

          [¶4] DSS began working with Mother in June 2014, and later began working with Father. Mother is an enrolled member of the Northern Arapaho Tribe. Father is an enrolled member of the Cheyenne River Sioux Tribe. Mother and Father were never married and did not live together. A.B. had at all times resided with Mother. Mother and A.B. lived a transient lifestyle due to Mother's use and distribution of methamphetamine. Father is employed full time and lives in Rapid City with his girlfriend and their two children.

          [¶5] In regard to Mother, DSS developed a case plan with a start date of August 2014. Mother and DSS identified desired outcomes--for Mother to be able to articulate a plan and execute a plan to protect A.B., for Mother to be able to demonstrate that her choices and words have a direct effect on A.B.'s safety, and for Mother to be able to identify dangerous people. DSS informed Mother that she needed to complete a chemical dependency evaluation and comply with the treatment recommendations, attend weekly visitation with A.B., provide clean urine screens for illegal substances, obtain and maintain a safe and stable home, engage in individual therapy, and be a sober participant in A.B.'s therapy.

          [¶6] Mother completed the required mental health evaluation. She disagreed with the recommendations and refused to comply. Mother tested positive for illegal substances each time DSS screened Mother's urine (May 23, 2014, June 28, 2014, October 10, 2014, October 21, 2014, and November 4, 2014). Mother underwent a chemical dependency evaluation. She stated that after the evaluation she began attending outpatient treatment. She claimed she could not complete the treatment due to her arrest on December 3, 2014, for failing to appear for a 24/7 Program screening. Mother also claimed that she attempted to participate in a treatment program at the South Dakota Women's Prison, but could not because of her transfer to the Pennington County Jail.

          [¶7] Mother participated in weekly visitations with A.B. while incarcerated. When not incarcerated, Mother attended some, but not all, scheduled visits. Mother was incarcerated multiple times during DSS's involvement. The first incarceration occurred in July 2014 and lasted 20 days. The second occurred in September 2014 and lasted between two and three weeks. The third occurred in December 2014 and lasted 180 days. The fourth occurred less than twenty-four hours after Mother's release from custody on all matters. Mother was arrested for driving under the influence, driving with a suspended license, operating a motor vehicle with substitute license plates, operating a motor vehicle without insurance, and driving without headlights. Mother remained incarcerated up to and through the time of the dispositional hearing.

          [¶8] While incarcerated, DSS attempted to arrange treatment options for Mother. The only option in the Pennington County Jail until Mother's release date neared was Alcoholics Anonymous. On April 29, 2015, Mother completed a progress evaluation with DSS. The report revealed that Mother had not made progress toward the outcomes identified by DSS to allow Mother to reunite with A.B. DSS sent Mother educational material related to addiction and parenting. DSS also sent Mother A.B.'s medical and school records. DSS included postage, pre-paid envelopes for Mother to write letters to A.B.

          [¶9] Throughout DSS's involvement, DSS performed numerous kinship searches to limit A.B.'s time in foster care. A.B. is an enrolled member of the Northern Arapaho Tribe. DSS notified the Northern Arapaho Tribe that A.B. was in DSS custody. DSS spoke with a representative of the Tribe regarding upcoming court hearings and A.B.'s placement. DSS requested assistance from both the Northern Arapaho Tribe and the Cheyenne River Sioux Tribe for placement options for A.B. with Mother's or Father's relatives. Mother's maternal aunt requested that she be considered as a placement option. DSS approved Aunt for placement. A.B. remained with Aunt until DSS approved Father for placement.

          [¶10] The circuit court held a final dispositional hearing on June 29, 2015. At the time of the dispositional hearing, DSS concluded that Father had demonstrated his ability to safely and sufficiently provide for A.B. and sought an order giving Father permanent physical and legal custody of A.B. In regard to Mother, DSS sought to terminate her parental rights. At the time, Mother was still incarcerated. She did not oppose an order giving Father permanent physical and legal custody of A.B. However, she contested the termination of her parental rights. She requested that the court allow her to maintain a legal and personal relationship with A.B.

          [¶11] At the dispositional hearing, the DSS caseworker, Mary Van Den Hemel, testified about the efforts DSS provided and about Mother's actions throughout DSS's involvement. Van Den Hemel opined that Mother did not make progress in overcoming her addictions and that termination of Mother's parental rights would be in A.B.'s best interest. According to Van Den Hemel, leaving intact Mother's legal rights to A.B. would leave A.B. vulnerable to being exposed to the use and sale of methamphetamine if something were to happen to Father.

          [¶12] The State also called Luke Yellow Robe as an ICWA expert. Yellow Robe is a member of the Rosebud Sioux Tribe. He testified that he is familiar with the Northern Arapaho Tribe and has been to the Tribe's reservation--the Wind River Reservation. According to Yellow Robe, the Northern Arapaho, Northern Cheyenne, and Lakota Sioux all inhabited the Black Hills and the childrearing practices of these tribes are similarly based on the concept of the cradleboard. Yellow Robe explained that these tribes " recognize that the child was sacred. And if a child is going to be sacred, traditionally speaking, the tribe is going to come together as a community, as a whole, to be all a part of raising that child so that child eventually, based on a sense of identity, has a clear and concise, you know, plan in place to be able to become a productive member of the tribe and a representative of, you know, their gender to the point of that area of specialty[.]"

          [¶13] Yellow Robe also testified that he is familiar with the Northern Arapaho Tribe's childrearing practices. He explained,

We just had a case in Minnehaha County that actually took five full days, about six hours every day in court, one case. The father was Northern Arapaho and the mom was Hopi. And through that particular case, there were a couple of conference calls that I was part of through the Minnehaha County State's Attorney's Office and the family service specialist talking to the ICWA representatives of the Northern Arapaho [T]ribe. . . . [I]t just was an opportunity once again for me to visit with them and go over some of the child-rearing practices, some of the questions that I had.

         He continued to explain the basis for his knowledge about the Tribe's childrearing practices.

Well, I'll state this, first. That I was hired on two different occasions to work with the [T]ribe. Once was - - I was hired by the Attorney General's Office out of the State of Wyoming in Cheyenne to come and be part of a healing ceremony, based on all the suicide that they were having to deal with, and so I was one of the consultants that not only presented at the conference, but, of course, participated in some of the ceremonies over at St. Stephens, which is the old Catholic Mission there on Wind River Reservation. Gave me the opportunity to work with spiritual leaders, to meet tribal representatives, and of course representatives with a number of child care organizations that were all there to assist in this ceremony.
Then I went back on some follow-up through the Tribal Law and Policy Institute, when Diane Payne out of the Anchorage office called and said, " We want you to come back and spend time and we'll do some follow-up and continue to work with some of the representatives that are still ...

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