In the Matter of the Guardianship and Conservatorship of I.L.J.E., a Minor Child.
ON AUGUST 28, 2018
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J.
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
ZINTER, Justice 
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.
and Procedural History
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.
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.
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. 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.
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.
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
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.
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.
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[.]"
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. 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
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). 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
Irving appeals and raises three issues, which we restate as
1. Whether the Guardianship Act can be used to transfer
custody from a ...