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Tribe v. Fleming

United States District Court, D. South Dakota, Western Division

December 15, 2016

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, Plaintiffs,
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities, Defendants.



         I. Preliminary Statement

         The defendants continue to disregard this court's March 30, 2015, partial summary judgment order. That order outlined the defendants' violations of the rights of Indian children, parents, custodians and tribes guaranteed by the Due Process Clause of the Fourteenth Amendment and by the Indian Child Welfare Act. Notwithstanding testimony confirming that South Dakota Circuit Court Judges in Meade County, Brown County, Hughes County and Minnehaha County are conducting adversarial hearings in accord with the March 2015 order prior to the extended removal of Indian children from their homes, defendants refuse to reform their violative policies and practices. The court repeatedly invited the defendants to propose a plan for compliance with their constitutional and statutory obligations but the defendants rejected that opportunity.

         This order discusses the need and the authority fr this court to impose remedies to vindicate plaintiffs' rights. Orders for declaratory and injunctive relief are filed simultaneously with this order.

         II. Procedural History

         On March 21, 2013, plaintiffs filed this civil rights action pursuant to 42 U.S.C. § 1983 asserting defendants' policies, practices and procedures relating to the removal of Native American children from their homes during state court 48-hour hearings[1] violate the Indian Child Welfare Act ("ICWA")[2] and the Due Process Clause of the Fourteenth Amendment. (Docket 1). Defendants denied plaintiffs' claims. (Dockets 76, 80 8b 81).

         On July 11, 2014, plaintiffs filed two separate motions for partial summary judgment. (Dockets 108 8b 110). Those motions will be identified as the "Section 1922 Claims" (Docket 110) and the "Due Process Claims" (Docket 108). Following extensive submissions by the parties, on March 30, 2015, the court entered an order granting plaintiffs' motions ("2015 order"). (Docket 150 at p. 44). By the 2015 order, the court reserved ruling on plaintiffs' request for declaratory and injunctive relief. Id On August 17, 2016, a hearing was held to address plaintiffs' prayer for relief ("remedies hearing"). (Docket 277). For the reasons stated below, plaintiffs' request for a declaratory judgment is granted, plaintiffs' request for injunctive relief is granted in part and plaintiffs' request for appointment of a monitor is denied without prejudice as premature.

         Plaintiffs Oglala Sioux Tribe and Rosebud Sioux Tribe are Indian tribes officially recognized by the United States with reservations located within the State of South Dakota. (Docket 150 at p. 11). Both tribes have treaties with the federal government. Id. The court granted parens patriae status to both tribes. (Docket 69 at p. 17).

         Plaintiffs Madonna Pappan and Lisa Young reside in Pennington County, South Dakota, and are members of the Oglala Sioux Tribe and the Standing Rock Sioux Tribe, respectively. (Docket 150 at p. 11). The court certified these individual plaintiffs as class representatives for all similarly situated Indian parents. (Docket 70 at pp. 14-15). The class of plaintiffs includes "all other members of federally recognized Indian tribes who reside in Pennington County, South Dakota, and who, like plaintiffs, are parents or custodians of Indian children." Id. at p. 14.

         Defendant Lynne A. Valenti is the Secretary of the South Dakota Department of Social Services ("DSS").[3] Id. Defendant Lisa Fleming is the person in charge of DSS Child Protection Services ("CPS") for Pennington County, South Dakota.[4] In state court cases involving Ms. Pappan and Ms. Young, CPS employees under their supervision signed ICWA affidavits alleging the children of these Indian parents were at risk of serious injury if the children remained at home. (Docket 217 at p. 6).

         Defendant Mark Vargo is the duly elected States Attorney for Pennington County. (Docket 150 at p. 11). A Deputy States Attorney under States Attorney Vargo's supervision prepares the petitions for temporary custody for all ICWA cases. (Docket 217 at p. 6). Defendant Craig Pfeifle is the presiding judge of the Seventh Judicial Circuit Court of the State of South Dakota and is the chief administrator of the Seventh Judicial Circuit Court.[5]

         Section 1922 of ICWA states:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.

25 U.S.C. § 1922.

         Since January 2010, approximately one hundred 48-hour hearings involving Indian children[6]are held each year in Pennington County. (Docket 150 at p. 12).[7] In March 2015, the court found that despite the clear intent of ICWA, the [Department of the Interior] Guidelines[8] and the S.D. Guidelines, [9] all of which contemplate evidence will be presented on the record in open court, Judge Davis[10] relied on the ICWA affidavit and petition for temporary custody which routinely are disclosed only to him and not to the Indian parents, their attorney or custodians." (Docket 150 at pp. 34-35). These undisclosed documents are not subject to cross-examination or challenge by the presentation of contradictory evidence. Id. at p. 35. The practice of the state court was to "authorize DSS to perform the function of determining if, or when, the imminent risk of physical harm to an Indian child has passed and to restore custody to the child's parents .... This authorization vests full discretion in DSS to make the decision if and when an Indian child may be reunited with the parents." Id. (italics in original; internal citations omitted). The court found this "abdication of judicial authority" violated "the protections guaranteed Indian parents, children and tribes under ICWA." Id.

         In the March 2015 order, the court found the defendants violated plaintiffs' due process rights under the Fourteenth Amendment during the course of 48-hour hearings. (Docket 150 at pp. 36-42). The violations are summarized as follows: (1) failing to appoint counsel in advance of the 48-hour hearing; (2) failing to provide notice of the claims against Indian parents, the issues to be resolved and the state's burden of proof; (3) denial of the right to cross-examine adverse witnesses; (4) denying Indian parents or custodians the right to present evidence in their own defense; and (5) removing Indian children on grounds not based on evidence presented in the hearing. Id.

         III. Defendants' Only Consistent Policy for Handling the ICWA and Due Process Rights of Indian Children, Parents, Custodians and Tribes is Defendants' Violation of Those Rights

         During the August 17, 2016, remedies hearing, the court admitted the transcripts of the deposition of Virgena Wieseler, Director of the Division of Child Protection Services, and Cara Beers, Program Specialist for Training, within the South Dakota Department of Social Services. (Remedies Hearing Exhibits 1 and 2). Ms. Wieseler testified that following the 2015 order and through the date of her July 20, 2016, deposition, CPS made a decision not to apply the § 1922 standard in training CPS staff. (Remedies Hearing Exhibit 1 at pp. 128: 15-133:25). Ms. Beers testified during her July 21, 2016, deposition that DSS had not developed any new training for its staff based on the 2015 order. (Remedies Hearing Exhibit 2 at p. 96: 15-21). During the remedies hearing, counsel argued the DSS defendants were in full compliance with their obligations under South Dakota state law and federal law but offered no supporting evidence.

         States Attorney Vargo and Deputy States Attorney Roxanne Erickson testified during the remedies hearing. Mr. Vargo acknowledged having read plaintiffs' March 21, 2013, complaint sometime after it was served. (Docket 286 at p. 33:22-24). The complaint specifically alleged that at 48-hour hearings:

[Indian parents] were (a) not allowed to see the petition, (b) not allowed to see the affidavit, (c) not allowed to cross-examine the person who submitted the affidavit, (d) not allowed to offer any evidence contesting the allegations, (e) not allowed to offer any evidence as to whether the state had made active efforts to prevent the break-up of the family, and (f) not allowed to offer any evidence regarding whether removal of their children was the least restrictive alternative. The only "evidence" mentioned at the hearing were hearsay statements from the state's attorney.

(Docket 1 ¶ 51).

         Addressing the defendants' motions to dismiss in a January 28, 2014, order ("2014 order"), the court held that "[o]ne of the core purposes of the Due Process Clause is to provide individuals with notice of claims against them. In this case, taking the allegations in the complaint as true, the court finds the risk of erroneous deprivation high when Indian parents are not afforded the opportunity to know what the petition against them alleges . . . . Keeping Indian parents in the dark as to the allegations against them while removing a child from the home for 60 to 90 days certainly raises a due process issue .... The petition and affidavit are provided to the presiding judge and can at very little cost be provided to Indian parents." (Docket 69 at pp. 38-39).

         Mr. Vargo testified that after reviewing the complaint and the 2014 order he felt the need to conduct his own research to resolve the issues raised in plaintiffs' complaint. (Docket 286 at pp. 36: 19-37:4). It was not until May 2014 that he concluded a copy of the petition for temporary custody should be provided to Indian parents at the 48-hour hearing. Id. at p. 36:8-18. It was 14 months after the complaint was filed and 4 months after the 2014 order that Mr. Vargo acknowledged this basic due process principle. Yet even at the remedies hearing Mr. Vargo testified Indian parents have no constitutional right to the petition for temporary custody in advance of a 48-hour hearing so long as they are informed about the content of the petition. Id. at p. 43:24-25.

         Mr. Vargo testified he never specifically examined the 2015 order for the purpose of curing any constitutional deficiencies occurring in 48-hour hearings. Id. at p. 46:4-9. He had no explanation as to why he did not review the order and discuss its content with Deputy States Attorney Roxanne Erickson who handles most 48-hour hearings. Id. at p. 49:5-25. He claims it was not until reading plaintiffs' April 20, 2016, remedies brief that he became aware of potential continuing ICWA violations. Id. at pp. 50:18-51:4.

         During the remedies hearing on August 17, 2016, Mr. Vargo instructed Ms. Erickson to change the petition for temporary custody to include ICWA language, although he was not specific as to what language would be included. Id. at p. 52:23-24. He asserted he gave this directive even though he believed no change in the petition was necessary since the ICWA affidavit prepared by the CPS staff member contains language about ICWA. Id. at p. 55: 18-20. Mr. Vargo insists it would not be an appropriate remedy to require his office to include the § 1922 standard for the removal of Indian children in future petitions fr temporary custody. Id. at p. 56: 6-7 8b 9-21.

         Mr. Vargo testified he initiated a policy that regardless of the outcome of a 48-hour hearing, a second hearing would be held within 15 days. Id. at p. 59: 14-18. He could not recall when this policy was initiated and did not testify that the judges of the Seventh Judicial Circuit were incorporating this second hearing into all ICWA proceedings.

         Mr. Vargo acknowledged Ms. Erickson brought to his attention the fact that South Dakota Circuit Court Judges in Meade County, Brown County, Hughes County and Minnehaha County were conducting adversarial 48-hour hearings. Id. at p. 63: 10-23. Other than this general knowledge, Mr. Vargo made no inquiry of Ms. Erickson or the States Attorneys in those counties to determine the impact adversarial 48-hour hearings had on their courts' dockets. Id. at p. 69: 13-20. Mr. Vargo testified he did not make the inquiry because he felt it would not be helpful since those counties did not have the same number of 48-hour hearings involving Indian families as did Pennington County. Id. at pp. 69:22-70:5.

         Ms. Erickson testified that since 2011 she has been the principal Deputy States Attorney assigned in Pennington County to handle 48-hour hearings. Id. at p. 73:5-7. She testified that since June 2002 she has handled approximately 1, 000 abuse and neglect cases. Id. at p. 72:23-73: 10. She said the Pennington County Circuit Court typically conducts 48-hour hearings every Monday at 1:30 p.m. and every Thursday at 1 p.m. Id. at p. 73: 18-25. She estimated there are about one hundred 48-hour hearings involving Indian children each year and that approximately 50 percent of all 48-hour hearings in the county involve Indian children. Id. at p. 74: 1-13. Ms. Erickson stated that twice a week there could be from one to five 48-hour hearings conducted. Id. at p. 110:6-10. If five hearings are held, they can require a total of one hour of court time. Id.

         Ms. Erickson testified Circuit Judge Robert Gusinsky took over all abuse and neglect proceedings in mid-January 2016. Id. at p. 83:4-9. She indicated he was well aware of this ICWA lawsuit and conducted his own legal research into the issues raised by plaintiffs. Id. at pp. 84: 15-85: 1.

         Ms. Erickson testified that around April 2016 Judge Gusinsky held a meeting with her, Attorney Dana Hanna as counsel for plaintiffs, and Attorney Daniel Leon of the Pennington County Public Defender's Office to discuss 48-hour hearings and ICWA.[11] Judge Gusinsky requested briefing before the meeting on a number of issues, including which standard applied to 48-hour hearings: the South Dakota state standard or the § 1922 standard. Id. at p. 75:8-14. In the States Attorney's submission to Judge Gusinsky, Ms. Erickson argued Cheyenne River Sioux ...

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