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People ex rel. A.O.

Supreme Court of South Dakota

May 24, 2017

The People of the State of South Dakota in the interest of A.O., V.O., and C.O., Children, and Concerning V.S.O., Respondent, C.G., Indian Custodian and OGLALA SIOUX TRIBE, Intervener.

          CONSIDERED ON BRIEFS ON APRIL 24, 2017

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

          CONOR DUFFY of Pennington County Public Defender's Office Rapid City, South Dakota Attorneys for appellant Mother V.S.O.

          JOSEPH N. THRONSON Special Assistant Attorney General Department of Social Services Pierre, South Dakota Attorneys for appellee State of South Dakota.

          GILBERTSON, Chief Justice.

         [¶1.] Law enforcement removed A.O., V.O., and C.O. (the Children) from the home of their mother, V.S.O. (Mother), after discovering methamphetamine and drug paraphernalia in the home. More than one year after the State initiated abuse-and-neglect proceedings against Mother, who is an enrolled member of the Oglala Sioux Tribe (the Tribe), the circuit court denied motions to transfer the case to the jurisdiction of the Tribe. Mother argues that the circuit court erred by denying the motions without holding an evidentiary hearing. We reverse and remand.

         Facts and Procedural History

         [¶2.] On November 23, 2014, Rapid City Police responded to a call reporting that A.O. had fallen and sustained a neck injury at Mother's residence.[1] While checking on the child, who was in Mother's bedroom, officers noticed drug paraphernalia, including a pipe. The pipe tested positive for methamphetamine. Mother also provided a urine sample, which tested positive for both methamphetamine and marijuana.[2]

         [¶3.] The same day, the State asked the circuit court to award temporary custody of the Children to the South Dakota Department of Social Services (the Department). The court granted the request. The Tribe was given timely notice and intervened. On December 18, 2014, the State filed a petition alleging the Children were abused or neglected. The court held an advisory hearing on December 29, during which it appointed one attorney to represent the interests of the Children and another to represent their legal guardian, Great-Grandmother. At an adjudicatory hearing on February 18, 2015, Mother and Great-Grandmother admitted to portions of the petition.

         [¶4.] The Department evaluated Mother's ability to care for the children and worked with her to develop a case plan. As part of the case plan, the Department required Mother to: (1) maintain stable housing and employment, (2) complete a chemical-dependency evaluation and follow all resulting recommendations, (3) complete family therapy, and (4) maintain sobriety and complete regular urinalyses. After review hearings on April 6, June 1, and July 27, 2015, the Department was not satisfied with Mother's progress. At the following review hearing on September 2, the Department asked the court to set a final dispositional hearing. Counsel for the Children joined the Department's request. Counsel for Mother, Great-Grandmother, and the Tribe asked the court to instead set another review hearing, arguing that a number of factors contributed to Mother's delay in meeting the goals detailed in her case plan.[3] The court agreed to set one more review hearing.

         [¶5.] The court held the fifth review hearing on November 16. The Department again asked the court to schedule a final dispositional hearing. The Department indicated that it intended to seek the termination of Mother's parental rights at such hearing. Mother's counsel objected, asserting that since the last review hearing, Mother had obtained both employment and an apartment. He also indicated that Mother had been regularly undergoing urinalyses with court services. The parties and the circuit court agreed to set an additional review hearing for December 14. However, the court also scheduled a final dispositional hearing for January 25, 2016.

         [¶6.] After the November 16, 2015 hearing but before the December 14, 2015 hearing, the Tribe submitted a motion to transfer the proceedings to its jurisdiction. The circuit court considered the motion at the December 14 review hearing. Because the case had been open for over a year, counsel for the Department and the Children objected to the motion as untimely. Counsel for Mother joined the Tribe in asking the court to set a separate hearing on the issue. The court declined to hold a separate hearing, and it denied the motions. Following a final dispositional hearing on January 25 and February 17, 2016, the court terminated Mother's parental rights.

         [¶7.] Mother appeals the termination of her parental rights, raising one issue: Whether she was entitled to a hearing on the question whether good cause existed to deny the motions to transfer jurisdiction to the Tribe.

         Standard ...


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