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People ex rel. E.T.

Supreme Court of South Dakota

April 17, 2019

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

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M. BROWN Judge

          CASSIDY M. STALLEY Lynn, Jackson, Shultz & Lebrun, P.C. Rapid City, South Dakota Attorneys for child E.T. and appellant.

          Rapid City, South Dakota Attorney for intervenor and appellee

          SALTER, Justice

         [¶1.] 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.

         Facts and Procedural History

         [¶2.] 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.

         [¶3.] 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.[1] 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.

         [¶5.] 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.

         [¶6.] 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.

         [¶7.] 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 following:

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 ...

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