| (Cite
as: 381 N.W.2d 283)
Supreme
Court of South Dakota.
In
the Matter of B.R.B., Alleged Dependent Child.
No.
14647.
Considered on Briefs Feb.
6, 1985.
Decided
Feb. 5, 1986.
*284
Patrick M. Schroeder, Minnehaha County Public Defender Sioux Falls, for
appellant, Mother.
Janice Godtland, Asst.
Atty. Gen., Pierre, On brief: Mark V. Meierhenry, Atty. Gen., Pierre,
for appellee, State of South Dakota.
PER CURIAM.
In this dependency and neglect action the mother, R.H. (mother), stipulated
to the dependency and neglect of her child, B.R.B. (child). She appeals
from the dispositional order terminating her parental rights.
The evidence is unclear
about whether the mother and child are members of or are eligible for
membership in the Cheyenne River Sioux Tribe. Nevertheless, the mother
proposed a finding that the child was an Indian child. The trial court,
in writing, refused to enter such a finding, however. The tribe declined
jurisdiction without indicating the eligibility status of either the mother
or child. See
25 U.S.C.A. § 1911(b).
One of the mother's contentions
is that the trial court failed to apply the Indian Child Welfare Act (ICWA).
Specifically, she argues that the trial court's decision to terminate
was not supported "by evidence beyond a reasonable doubt ... that
the continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child."
25 U.S.C.A. § 1912(f). Before a trial court applies this standard
of proof and finds serious damage to the child, some evidence must show
that the child is an Indian and that the ICWA applies. "The ICWA
requires an initial determination by the trial court that the children
are Indian children." In
re K.A.B.E.,
325 N.W.2d 840, 842 (S.D.1982). Absent the initial determination that
the child was Indian, the trial court was not required to apply the ICWA
in entering its order. Cf.
Application of Angus,
60 Or.App. 546, 655 P.2d 208 (1982) (Evidence supported trial court's
application of ICWA in a habeas corpus proceeding by Indian parents to
regain custody of Indian child.); Matter
of Appeal in Maricopa County,
136 Ariz. 528, 667 P.2d *285
228 (Ariz.App.1983) (ICWA was not applicable in adoption proceeding where
no proof in the record showed that child was Indian and the trial court
entered no finding.), citing K.A.B.E.,
supra. Hence,
the trial court correctly applied the clear-and-convincing standard of
proof. See In
re J.W.W.,
334 N.W.2d 513 (S.D.1983); In
re S.H., 323
N.W.2d 851 (S.D.1982).
A summary of the facts
is sufficient to dispose of the mother's combined contentions that the
evidence was not sufficient to support termination of her parental rights
as the least restrictive alternative. She claims that the grandmother's
offer to take custody of B.R.B. and raise him was another alternative,
despite the fact that the grandmother worked full-time. Because the mother
lived with her mother, who was the child's grandmother, placement with
the maternal grandmother was not a solution the court was required to
experiment with. "The least restrictive alternative must be viewed
from the child's point of view." In
re J.S.N.,
371 N.W.2d 361, 365 (S.D.1985); see
also In re P.B.,
371 N.W.2d 366, 367 (S.D.1985). Viewed from the child's perspective, returning
the child to the grandmother was nothing more than returning the child
to the mother--a mother whom the trial court
found had a serious drinking problem for twelve years with cycles of sobriety
and drinking; was emotionally unstable and had attempted suicide three
times; could not care for her children on occasion because of her drinking
problem; had habitually missed AA and counseling sessions under several
case plans proposed by the Department of Social Services; had never had
a stable living arrangement since B.R.B. was born; and who had problems
keeping her older children in school.
The Department's attempts to improve the mother's situation all failed.
See e.g., In
re P.B., supra; In re D.H.,
354 N.W.2d 185 (S.D.1984). These failed attempts to improve the mother's
situation coupled with B.R.B.'s improvement and development while in foster
care made termination of the mother's parental rights the least restrictive
alternative in this case.
The trial court's order
is affirmed.
HERTZ, Circuit Judge,
acting as a Supreme Court Justice, not participating.
381 N.W.2d 283
|