The People of the State of South Dakota in the Interest of E.T., Child, and Concerning, A.T. and J.H., Respondents, OGLALA SIOUX TRIBE, Intervenor.
CONSIDERED ON BRIEFS ON JANUARY 7, 2019
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M.
CASSIDY M. STALLEY Lynn, Jackson, Shultz & Lebrun, P.C.
Rapid City, South Dakota Attorneys for child E.T. and
City, South Dakota Attorney for intervenor and appellee
This is an intermediate appeal from an order transferring
jurisdiction of an abuse and neglect proceeding to tribal
court. Counsel for the child maintains the circuit court
abused its discretion when it granted the motion to transfer
because the court improperly refused expert-witness testimony
at the transfer hearing, the proceeding was at an advanced
stage, and the court erroneously determined the father's
objection to the transfer was untimely. We reverse and remand
for the purpose of conducting an evidentiary hearing.
and Procedural History
On September 1, 2016, one day after her birth, law
enforcement removed E.T. (Child) from A.T.'s (Mother)
care after both Child and Mother tested positive for the
presence of methamphetamine in their systems. Having reason
to know Child and Mother were affiliated with the Oglala
Sioux Tribe (the Tribe), the Department of Social Services
(DSS) notified the Tribe of Child's removal pursuant to
the provisions of the Indian Child Welfare Act (ICWA). The
Tribe intervened at the initial "48-hour"
emergency-custody hearing and received timely notice of all
additional filings. In a September 28, 2016 petition, the
State alleged that Child was abused or neglected.
DSS initially placed Child into foster care. However, after
Mother completed an outpatient-treatment program, DSS placed
Child with Mother on an in-home safety plan on January 5,
2017. But the reunification was short-lived. Mother was
arrested on January 13, 2017, for missing a urinalysis
required in connection with a pending criminal case, and
Child was placed back into foster care.
[¶4.] Despite the setback, Mother continued to work with
DSS. She obtained part-time employment, completed a parenting
class, submitted to twice-weekly urinalysis testing and daily
PBTs, and consistently participated in weekly visitation with
Child. Mother also earned enough money to pay her child
support arrears regarding a different child, allowing her to
be freed of her work release requirement and to have her
ankle monitor removed. Mother was doing so well, in fact, that at
an August 9, 2017 review hearing, the circuit court
instructed DSS to begin working on another in-home safety
plan so Child could be returned to Mother's care.
Before a plan could be finalized, however, Mother was
arrested on August 26, 2017. She was driving while
intoxicated, struck another vehicle, and then fled the scene.
The circuit court granted Mother bond on these charges, but
she was taken into custody again on September 14, 2017, for a
24/7 sobriety program violation. At a review hearing held
October 4, 2017, the State and Child's counsel requested
the matter be set for a final dispositional hearing. The
State served notice of the final dispositional hearing on the
Tribe on October 6, 2017.
At the outset of what was to have been the final
dispositional hearing on November 27, 2017, before any
argument or evidence was presented, the Tribe orally moved to
transfer the abuse and neglect case to tribal court.
Child's counsel resisted the motion, arguing the transfer
request came at an advanced stage of the case and was
contrary to Child's best interests.
The circuit court suspended the final dispositional hearing
and held a transfer hearing on January 4, 2018. To support
the objection to the Tribe's transfer request,
Child's counsel attempted to present expert medical
testimony from Child's pediatrician, Dr. David Whitney.
The Tribe claimed it had insufficient notice of the substance
of Dr. Whitney's expert opinions and requested an offer
of proof. Child's counsel obliged and offered the
Dr. Whitney is going to testify about the bond that develops
between an infant and their caregiver and what happens when
that bond is broken to a child ...