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In re Guardianship and Conservatorship of I.L.J.E.

Supreme Court of South Dakota

December 12, 2018

In the Matter of the Guardianship and Conservatorship of I.L.J.E., a Minor Child.

          ARGUED ON AUGUST 28, 2018


          KASEY L. OLIVIER ASHLEY M. MILES HOLTZ of Heidepriem, Purtell, Siegel & Olivier, LLP Attorneys for Appellant, Sioux Falls, South Dakota Irving D. Jumping Eagle.

          TIMOTHY T. HOGAN of Ribstein & Hogan Law Firm Attorneys for Appellees, Brookings, South Dakota Lloyd and Katie Warren.

          ZINTER, Justice [1]

         [¶1.] A child's mother was killed by the child's father while the child was in the custody and care of the mother's brother and sister-in-law. The brother and sister-in-law subsequently petitioned for guardianship of the child. Although the father was then in jail for the homicide, he opposed the petition and requested that his sister, a Native American, be appointed the child's guardian. The child is an enrolled member of an Indian tribe, and the parties agreed that the Indian Child Welfare Act (ICWA) applied. After an evidentiary hearing, the circuit court overruled the father's objection and granted the sister-in-law and brother's petition for guardianship. Father appeals. We affirm.

         Facts and Procedural History

         [¶2.] Alicia and Irving Jumping Eagle were married and had one child together, I.L.J.E. (hereinafter the "child" or I.L.J.E.). Alicia also had another child, C.W., from a prior relationship. On March 31, 2017-when I.L.J.E. was two years old, and C.W. was nine years old-Alicia's sister-in-law, Katie Warren, asked Alicia if C.W. could spend the weekend at Warrens' home. The invitation was extended so C.W. could spend time with his cousins. Alicia accepted the offer and also asked Katie if she would care for I.L.J.E. Katie agreed, and both children spent the weekend at Katie and her husband Lloyd Warren's home.

         [¶3.] On Sunday evening, Warrens could not locate Alicia. On Monday evening, they learned that Alicia had died as a result of a homicide. Irving was the suspected perpetrator and was being held in jail. Warrens continued to provide custodial care for I.L.J.E.; C.W.'s father cared for C.W.

         [¶4.] Three days after learning of Alicia's death, Warrens petitioned for a temporary guardianship of I.L.J.E. under the South Dakota Guardianship Act. They alleged an immediate need because neither parent was able to care for the child and because it would be in the child's best interest. See SDCL 29A-5-210. In an affidavit attached to the petition, Warrens explained that they were the child's maternal aunt and uncle, and no other close relative was available to care for the child.[2] The circuit court granted the temporary petition without notice. Irving was subsequently served with notice of the temporary guardianship, and he did not file an objection.

         [¶5.] In June 2017, Warrens petitioned for a permanent guardianship under the Guardianship Act. They alleged I.L.J.E. could not care "for his health, care, safety, habilitation, or therapeutic needs[.]" See SDCL 29A-5-302. Irving retained counsel, opposed the petition, and moved for an order appointing his sister Dr. Sara Jumping Eagle as I.L.J.E.'s temporary guardian and conservator.

         [¶6.] The circuit court conducted a status hearing in July. Irving remained incarcerated for the homicide and did not attend the hearing, but his lawyer did not object to Irving's absence. During the hearing, the court determined an immediate need continued to exist for the temporary guardianship. Counsel for Irving requested that the court place the child with Dr. Jumping Eagle so she could "facilitate regular communication" between Irving and the child while Irving was incarcerated. The court declined, noting that it did not intend "to play ping pong with the child." Instead, and because "there ha[d] been no allegations" that the current temporary guardianship was "not working," the court continued the temporary guardianship with Warrens for 90 days and scheduled the hearing on the permanent guardianship for October 6.

         [¶7.] Warrens were not aware I.L.J.E. is an enrolled member of the Oglala Sioux Tribe, and the question whether ICWA applied in this guardianship proceeding first arose during the July status hearing. See 25 U.S.C.A. § 1903(1) (defining child custody proceedings for purposes of ICWA). Irving's counsel asserted that ICWA did not apply because this was "not an abuse and neglect case." Nevertheless, after learning of the tribal membership at the hearing, Warrens provided the Tribe with notice of the petition for permanent guardianship and of the October 6 hearing as required by 25 U.S.C.A. § 1912(a). The Tribe subsequently intervened and participated in the remaining proceedings. The Tribe did not, however, object to a guardianship or request to transfer the proceeding to tribal court under ICWA. The Tribe has also not appeared or participated in favor of Irving in this appeal.

         [¶8.] By the time of the October 6 hearing, Irving had pleaded guilty to voluntary manslaughter, and he remained incarcerated pending sentencing. Before the hearing on the permanent guardianship, Irving's lawyer requested Irving be allowed to be physically present in the courtroom. The court denied the request, and Irving participated via interactive video conferencing (ITV). During the hearing, the parties called and cross-examined Katie, Lloyd, Dr. Jumping Eagle, and ICWA expert Luke Yellow Robe concerning care of the child. Neither Dr. Jumping Eagle nor any other member of Irving's extended family petitioned for guardianship. However, Irving entered into evidence a document he had signed on April 20, 2017, in which he purported to "give custody" of I.L.J.E. to Dr. Jumping Eagle.

         [¶9.] At the conclusion of the hearing, the circuit court found that both parents were unavailable to care for the child; Alicia was dead and Irving was unavailable because his criminal act of killing Alicia caused him to be incapable of having custody of I.L.J.E. The court further found Irving's criminal act caused the breakup of the family. The court concluded that Irving's "criminal act in killing the minor child's mother [was] substantial evidence" that he "ha[d] not only abandoned the child, forfeited, or surrendered his parental rights, but he ha[d] also created circumstances that result[ed] in serious detriment to the child[.]"

         [¶10.] The court further concluded that Irving's April 20 document attempting to "give custody" to Dr. Jumping Eagle did not preempt the court's ability to determine a guardianship. Citing SDCL 25-4-45.6, the court observed that Irving's conviction for the homicide of the child's mother would create a rebuttable presumption that awarding custody or visitation to Irving would not be in the child's best interest.[3] The court further observed that Irving did not rebut that presumption. Thus, the court held ineffective Irving's purported attempt to preempt the court's decision on guardianship and control custody of the child through his designation. The court further ruled that even if it considered Irving's designation as a preference under ICWA, the "criminal act of killing the mother lean[ed] heavily against any preference under the federal statute and would circumvent the Congressional declaration of policy" of ICWA. The court noted that "ICWA should not be used as a sword to allow the father, from his prison cell, to direct the placement and care of [I.L.J.E.] in contravention of the intent of the Act itself."

         [¶11.] With respect to Warrens' suitability as guardians, the court found that they had been in a long-term marriage, had a stable home, were involved in their community, and had other children living in their home. The court also found they were financially, emotionally, and morally fit to be guardians; and they would provide the child a stable and loving home. Although Warrens were non-Indians, the court noted that they were part of the child's "extended family" within the meaning of ICWA's required placement preferences because Warrens were his maternal aunt and uncle. See 25 U.S.C.A. § 1915(b).[4] The court also specifically acknowledged that Warrens had not taken "direct action to understand the Lakota culture or heritage," but the court found they desired to raise I.L.J.E. with knowledge of his Lakota heritage. The court further found that Warrens would promote visitation with Irving's native family, including Dr. Jumping Eagle, and that they would work with her to develop the child's "cultural awareness and his heritage with the Lakota Nation." The court granted Warrens' petition for permanent guardianship.

         [¶12.] Irving appeals and raises three issues, which we restate as follows:

1. Whether the Guardianship Act can be used to transfer custody from a ...

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