| (Cite
as: 454 N.W.2d 317)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota in the Interest
of J.J. and S.J.,
Children
and Concerning V.J., Grandmother.
Nos.
16217, 16669 and 16672.
Argued
Sept. 13, 1989.
Decided
April 4, 1990.
*318
Mark L. Bratt, Asst. Atty. Gen., Pierre, Roger A. Tellinghuisen,
Atty. Gen., on the brief, for appellee, State of S.D.
Kenneth E. Jasper, Rapid City, for children.
Larry D. Plank, Black Hills Legal Services, Rapid City, for
mother.
G. Verne Goodsell, Rapid City, for father.
Frank A. Bettmann of Bettmann & Feehan, Rapid City, for
grandmother.
B.J. Jones, Dakota Plains Legal Services, Fort Yates, N.D., for
Standing Rock Sioux Tribe.
MORGAN, Justice.
This proceeding comes before us as the consolidation of three
separate appeals from the actions of the trial court with
regard to the termination of custodial rights in two minor
Indian children, S.J. and J.J. (children). It being undisputed
that the children are of Indian blood, the provisions of
25 U.S.C. Chap. 21, the Indian Child Welfare Act (Act)
are implicated. *319
Reference to specific sections of the Act will be denominated
thus: §
_____.
Appeal # 16217 arose from the order terminating the custodial
rights of V.J., children's
grandmother (V.J.); appeal # 16669 arose from the
order denying transfer of jurisdiction to the Tribal Court of
the Standing Rock Sioux Tribe (Tribe); and appeal #
16672 arose from the order permitting Tribe to intervene herein.
In addition to the number of issues involved, it is
noteworthy that these children have been in the system for
a period of over five years. S.J., born
March 24, 1982, is now over seven years of age
and J.J., born May 4, 1983, is now over six
years of age. During most of their lifetimes,
the children have resided in Rapid City, South Dakota, and
have never lived on any Indian reservation. They
do not speak Lakota or any Indian language.
While this appeal has been pending, children have resided in
the state of New York with their proposed adoptive parents.
The adoptive father is a full-blooded American Indian
and an enrolled member of the Iroquois Nation.
A brief review of the procedural background of this case
is appropriate. The Department of Social Services (DSS)
commenced the proceedings with a petition for dependency and neglect
in August, 1984. From early in the proceedings,
the trial court was provided with information that these children
were not enrolled in any tribe. D.C., the
children's birth father, is enrolled at the Rosebud Sioux Tribe
(Rosebud). Notice was sent to Rosebud; however,
a letter from that tribe indicated that J.J. was not
eligible for enrollment in the tribe and declined transfer of
jurisdiction. Rosebud further indicated that the
children were eligible for enrollment in the Oglala Sioux Tribe
(Oglala) and suggested it be contacted. Notice was
sent to Oglala who petitioned for transfer of the proceedings,
stating that R.J., the children's birth mother (Mother), was an
enrolled member of that tribe. However, Mother objected
to the transfer
[FN1] and the trial court retained jurisdiction.
FN1.
Pursuant to §
1911(b), "[T]he court, in absence of good cause to the
contrary, shall transfer such proceeding to the jurisdiction of the
tribe, absent
objection by either parent
[.]" (Emphasis added.)
In anticipation of the initial hearing in these proceedings, by
stipulation dated April 22, 1985, the birth parents and V.J.
stipulated that children were dependent and neglected and that legal
custody of the children could be given to DSS.
The stipulation provided further that, subject to completion of
various programs, physical custody of J.J. would be returned to
parents and physical custody of S.J. would be placed with
V.J. The trial court entered an order in
conformity with the stipulation. From the record it
appears that this order governed for about six months, at
which time J.J. was also placed with V.J.
Subsequently both birth parents voluntarily
terminated their parental rights to children, placing sole custody, care
and control in DSS with full adoptive rights: Mother
in proceedings held in March, 1986; father in proceedings
held in March, 1987.
DSS continued the placement of both children with V.J., towards
the goal of her adoption of the children, until January
1, 1987, when S.J. was brutally raped to such an
extent that she required corrective surgery. During DSS'
subsequent investigation of the rape, other facts came to light
[FN2] which indicated that the environment in V.J.'s home rendered
her unsuitable as the adoptive parent of the children and
both children were removed from her physical custody.
FN2.
The facts will be discussed at some length in the
discussion of V.J.'s appeal.
In response, in July, 1987, V.J. petitioned that the dispositional
order giving DSS adoptive authority be set aside upon the
grounds of violation of her due process rights as "custodian"
of the children, when she did not receive notice of
the proceedings terminating father's parental rights in accord with §
1912(a). The trial court, for reasons discussed later,
reopened the proceedings for an additional dispositional hearing which lasted
six days and, thereafter, entered a final dispositional order *320
terminating any custodial rights V.J. may have had and giving
DSS adoptive authority. That order is the basis
for V.J.'s appeal # 16217.
On October 26, 1988, when briefing on V.J.'s appeal was
nearly complete, Tribe, apparently at the instigation of V.J., filed
with this court a motion to intervene and requesting transfer
of the matter to tribal court. This court
remanded the case to the trial court for an evidentiary
hearing on the motion. After the hearing, the trial court
granted Tribe's motion to intervene but denied the motion to
transfer. The denial of transfer is the basis
for Tribe's appeal # 16669 and the grant of intervention
is the basis for the children's notice of review, #
16672. On May 10, 1988, after children had
filed their notice of review, we granted leave to all
parties to file additional briefs on the new issues raised
by Tribe and children.
V.J. raises four issues on appeal, which we will review
in the following order, to-wit:
(1)
The trial court lacked jurisdiction due to the failure to
notify her of the child custody proceedings in conformity with
§
1912(a).
(2)
There is insufficient evidence to support the trial court's findings
as required by §
1912(f).
(3)
DSS failed to provide remedial services and rehabilitative programs to
prevent the disruption of the placement in conformity with §
1912(d).
(4)
The removal of the children was improper under the provisions
of §
1920.
In the first issue, V.J. contends that the trial court lacked jurisdiction
due to DSS' failure to give proper notice, particularly notice to her,
as the "Indian custodian"
[FN3] of the children, of the March, 1987, proceeding, wherein the parental
rights of their father were terminated and DSS was given adoptive authority.
She also makes an assertion that the entire proceedings from the inception
are void because of lack of proper notice to Tribe. That issue is also
raised by Tribe in their appeal # 16669, and we will reserve discussion
of that aspect of her appeal until we reach the discussion of the tribal
appeal.
FN3.
Section 1903(6) defines "Indian Custodian" as "any Indian person who
has legal custody of an Indian child under Tribal law
or custom or under State law or to whom temporary
physical care, custody, and control has been transferred by the
parent of such child[.]"
The notice requirements of the Act, found in §
1912(a) provides in pertinent part:
In
any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement of,
or termination of parental rights to, an Indian child shall
notify the parent or Indian
custodian
and the Indian child's tribe, by registered mail with return
receipt requested, of the pending proceedings and of their right
of intervention. (Emphasis added.)
Factually, it appears that V.J. became a party to the
proceedings as a Respondent, represented by counsel of record, back
in early 1985, when the initial dependency and neglect hearing
was scheduled relating to the children. At that time, a
trial on the issue was waived. The parents,
by their counsel of record at that time, and V.J.,
by her counsel of record,
stipulated that the children were dependent and neglected and that
legal custody of the children could be given to DSS.
The stipulation further provided for evaluation of the
parents and V.J. for chemical dependency and a minimum course
of treatment if the evaluator deemed it appropriate.
The physical custody of S.J. was placed in V.J. and
the physical custody of J.J. was left with Mother.
Subsequently, however, physical custody of J.J. also went to
V.J.. Physical custody of both children was given to
V.J. by DSS, not
by either of children's parents.
On March 24, 1986, a dispositional hearing was heard on
Mother's parental rights and resulted in termination. The
record does not reflect that V.J. was a party to,
or received notice of, that proceeding. But V.J.
made no issue of it, so we consider that to
be waived. The record reflects that proceedings were
had regarding the termination of father's parental rights and resulted
*321
in an order of termination directing that the children be
placed with V.J. for adoption subject to further hearing if
the adoptive placement is unsuccessful. That order was
dated the 14th day of January, 1987, nunc pro tunc
December 24, 1986.
Prior to the actual entry of that order, and while
both children were apparently in V.J.'s care, S.J. was brutally
raped and abused on January 1, 1987. Further
investigation by DSS disclosed that J.J. had likewise suffered physical
and sexual abuse while in V.J.'s care. DSS
removed the children from V.J.'s home and secured a court
order setting aside the January 14, 1987, order and setting
further dispositional proceedings. Such proceedings were held on
March 5, 1987, resulting in another final dispositional order dated
May 7, 1987, nunc pro tunc March 5, 1987, placing
the children with DSS with full adoptive rights.
Because she apparently was not notified of the January, 1987,
and March, 1987, proceedings for termination of father's parental rights,
V.J., in July 1987, petitioned the court to set aside
that portion of the father's termination order that specifically allowed
adoption of the children and requested that she again be
given physical custody of the children and preference in adoption
in conformity with the Act. She has raised
no issue as to the propriety of the termination of
father's parental rights.
The trial court determined that notice of the termination proceedings
should have been given to V.J. for three reasons:
(1) she was a named respondent in the initial proceedings;
(2) she was a member of the children's extended
family; and (3) she was the "Indian custodian" of
the children. Since we agree that she should have received
notice at the dispositional level, because she was a named
respondent in the proceedings at the dependency and neglect
level, we need not discuss the other two reasons, which
we do not necessarily agree with. The trial
court set aside that portion of the termination order that
permitted adoption, but left the custody of the children in
DSS, pending further hearing on V.J.'s custody and adoption rights.
A very extensive hearing was held on V.J.'s petition for
custody and adoptive preference.
[FN4] The trial court's memorandum opinion gave rise to
findings of fact and conclusions of law and a final
order terminating V.J.'s custodial rights and denying her any preference
for adoption. Inasmuch as V.J. was afforded her
hearing, although she did not attain the results that she
sought, we determine that the notice issue, as to V.J.,
is rendered moot.
FN4.
The facts raised in the hearing and the arguments on
the outcome will be discussed in a later issue.
V.J.'s second issue, sufficiency of the evidence to support the
trial court's findings, implicates §
1912(f), which provides:
No
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, 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.
We are also mindful of our scope of review. A trial court's findings of
fact cannot be set aside unless they are clearly erroneous and, after
a review of all the evidence, we are left with a definite and firm conviction
that a mistake has been made. Matter
of Dependency and Neglect of A.L.,
442 N.W.2d 233 (S.D.1989); Matter
of J.L.H.,
316 N.W.2d 650 (S.D.1982); SDCL 15-26A-10. "A trial court's conclusion
of law may be reviewed and set aside only when the trial court has erred
as a matter of law." A.L.,
442 NW2d at 235. Again, it is noteworthy that V.J. has not questioned
the termination of the parental rights of either of the birth parents
of the children. She only contests the trial court's abrogation of her
priority for adoption of the children as an extended family member.
V.J. relies on two provisions of the Act to support
her claim of priority to custody of the children.
They are §
1915(a), which provides, in pertinent part:
*322
In any adoptive placement of an Indian child under State
law, a preference shall be given, in the absence of
good cause to the contrary, to a placement with (1)
a member of the child's extended family; ...
[FN5]
FN5.
We note, however, that the trial court complied with the
Act's third level of priority by placing children with an
Indian family. Section 1915(a) provides: In
any adoptive placement of an Indian child under state law,
a preference shall be given in the absence of good
cause to the contrary, to a placement with
(1)
a member of the child's extended family;
(2)
other members of the Indian child's tribe; or
(3)
other Indian families.
The
trial court determined that DSS' placement with the present Indian
family best meets the individual needs of children after considering
relative placement.
and §
1915(b), which provides, in pertinent part:
In
any foster care or preadoptive placement, a preference shall be
given, in the absence of good cause to the contrary,
to a placement with--
(i)
a member of the Indian child's extended family[.]
"In the absence of good cause to the contrary" is
the dispositive language in this case. This requires
some factual review covering the period that V.J. had the
children in her custody by virtue of placement by DSS
and as directed by the dispositional order of January 14,
1987, nunc pro tunc December 24, 1986. The
children had been placed with V.J., in accordance with the
Act, with the intention that she adopt her grandchildren.
That much to be desired plan was changed when
S.J. was brutally raped in V.J.'s home.
The evidence in the record regarding the rape incident is
very well summed up in the trial court's memorandum decision
[FN6] dated the 14th day of December, 1987, as follows:
FN6.
Incorporated by reference in the findings of fact and conclusions
of law of February 11, 1988, nunc pro tunc December
5, 1987.
On
New Year's Day, 1987, Officer Blenner of the Rapid City
Police Department, was called to the [J] home on an
emergency call placed by [V.J.]. When the officer arrived
at the door, an intoxicated and apparently unconcerned woman, later
identified as [V.J.], nodded toward the back of the house
and said, "The problems back there." The officer
was reluctant to enter the home on such cryptic information,
but nonetheless ventured into the back bedroom. There
she saw a small girl bleeding profusely from the vagina.
In the room were [V.J.'s] son [G.] and
two older females. That morning [V.J.] had thrown
[G.] out of the house for having a woman in
his bedroom. He returned later that afternoon.
When asked at the hospital, four and one-half year
old [S.J.] said in the presence of [V.J.] and Doctor
Burnett, "[G.] did it." Two physicians, a gynecologist
and a pediatrician, examined [S.J.] and concluded to a reasonable
medical certainty that she had been sexually assaulted.
The doctors repaired a two inch gash along the vaginal
opening. Despite these medical
conclusions and despite the fact that [G.] was the only
male in the home at the time the assault occurred,
[V.J.] refuses to even brook the notion that [G.] sexually
assaulted [S.J.]. "[G.] does not lie," says [V.J.], and
that ends the matter for her. To make
matters worse, [grandmother] intimates that if similar events occurred in
the future, she would still have to believe [G.].
In addition to the specifics of the rape incident, the
trial court's memorandum decision makes specific mention of the following
highly relevant facts:
1.
V.J. has a long history of intermittent alcohol abuse.
2.
V.J. repeatedly entrusted the children to persons wholly unfit to
care for them. Both children were sexually abused
while in V.J.'s custody by another uncle B.C. (k/a "Bimbo")
as well as by G.
3.
Both children were being physically abused while in V.J.'s
custody. J.J. has permanent scars from burns on her
buttocks which appear to be inflicted. She also had black
and blue marks on her body, which she said *323
grandmother caused by hitting her with a shoe.
4.
V.J. also permitted their birth mother, R.J., to take the
children in a car when she knew that R.J. was
likely to abuse alcohol.
5.
Both R.J. and G. now live with grandmother.
G. is violent and uncontrollable when intoxicated, as he was
on January 1, 1987. V.J. concedes that
G. dislikes S.J. and J.J. because "they get on his
nerves."
6.
V.J. refuses to believe that she or her son played
any part in the injuries to the children.
V.J. relies on the failure of the State to prosecute
G. for any offense arising out of the New Year's
Day event, but we are not persuaded. The
exercise of prosecutorial discretion by the Pennington County State's Attorney,
for whatever reason he might have had, does not change
the shocking facts of the brutal injuries inflicted on a
four and one-half year old child as determined by the
trial court. The issue is not that G.
raped the child, but the fact that the child was
raped in V.J.'s home, while in V.J.'s custody and while
V.J. was intoxicated.
V.J. also attacks the trial court's decision as not being supported by
evidence beyond a reasonable doubt. Section 1912(f). It is true that the
trial court's dispositional findings of fact and conclusions of law of
February 11, 1988, nunc pro tunc December 5, 1987, states generally that
the State has demonstrated the essentials of its case "by clear and
convincing evidence." The finding, however, goes on to refer to the
memorandum decision, which had already been incorporated by reference.
That memorandum opinion, after citing the appropriate statutory burden
of proof, "beyond a reasonable doubt," detailing the factual
findings as previously mentioned above, states in its decision No. 3:
"The court finds beyond a reasonable doubt that returning the children
to [V.J.'s] custody would result in serious emotional and physical damage."
In light of the factual determinations of the trial court, as we have
previously set them out, we are convinced that the trial court did apply
the proper standard of review beyond a reasonable doubt and the reference
to clear and convincing evidence was an inadvertent scrivener's error.
People in Interest
of S.R., 323
N.W.2d 885, 887 (S.D.1982).
We next examine the record to determine if the State
met the burden of providing qualified expert witnesses.
In this regard, we note that two pediatricians, Doctors Donald
Oliver and Willis Sutliff, who respectively had twelve years' and
fifteen years' experience in the field, testified to the extensive
bruising and scarring on J.J. Doctor Oliver testified that, in
his opinion, the lesions were nonaccidental and were inflicted.
Doctor Sutliff testified that S.J. had told him that
G. had injured her and had previously touched and pinched
her vagina many times.
Dr. Raymond Burnett, a specialist in obstetrics and gynecology, testified
at length to his treatment of S.J., whom he first
encountered in the hospital emergency room on January 1, 1987.
He testified that in his opinion, based on
experience, V.J., who was present, was intoxicated. After
testifying to the history taken and the treatment afforded in
surgery, the doctor testified that in his opinion S.J.'s injury
was caused by trauma directed to the opening of the
vagina, most likely from a penis trying to penetrate the
vagina. He completely
discounted the possibility that it was caused by falling from
an automobile or a bicycle or tricycle as had been
variously suggested to the investigators by V.J.
Tom Collins (Collins), a child protection supervisor in the DSS,
was asked his opinion of the likelihood of serious physical
or emotional damage resulting to the children in the event
of their placement with V.J. Collins had been
a child protection worker for one year and a supervisor
for the three years preceding trial. He approximated
that he had worked with around twelve hundred cases of
child abuse in Indian families. He demonstrated his
familiarity with Indian culture and unique factors in Indian heritage.
He further testified that he had received training
in the Act and had been called upon to testify
as an expert in regard *324
thereto. See
Matter of K.A.B.E.,
325 N.W.2d 840 (S.D.1982) (one social worker had BA in
social work and contact with Indians on a regular basis;
30% of another social worker's time spent with Indian
children at children's resource center); Matter
of Welfare of T.J.J.,
366 N.W.2d 651 (Minn.App.1985) (psychologists were experts who had course
work in Indian culture and one had experience working with
Indian youth). Based upon the foregoing foundation, Collins
testified, without objection:
I
would be in great fear of the children's emotional well
being in addition to their physical well being.
The trauma of coming into a situation where offenders
are present, that being people that have taken indecent liberties
with young children that are in the environment still would
be. I feel that case would exist in
[V.J.'s] home. I feel that [Mother] is still,
if not in the home, in the area.
I am aware that [B.C.] is in the area and
I feel that it would provide significant trauma to the
children. The additional concern I have in this
case is the fact that [Mother] does continue to spend
a great deal of time in [V.J.'s] home and the
confusion that would present of having dealt with the loss
of a natural parent and have that parent pop in
and out of their daily lives. The record
is clear that V.J. has allowed [Mother] to take the
children from her home and that in itself would be
confusing. To vision (sic) the small children living
with a natural mom wondering, am I coming back or
am I going back with natural mom and the confusion
would be quite significant.
Collins further testified regarding his opinion of the care
that V.J. was affording the children while they were with
her, as follows:
The
statements regarding discipline of the children and the conditions testified
to by the doctors that there were burns, other types
of burns on the child, [J.J.'s] buttocks and that had
to take place while the children were in [V.J.'s] care.
The other thing that continues to astound me
about this case is that we have seen evidence that
states that the children were sexually assaulted on at least
three and probably more occasions in 1986, and you listened
to the testimony by the foster mom about the sexual
acting out the children
were doing, it would seem to me that [grandmother] would
have picked up on that sexual acting out and became
as concerned as the foster mother and brought it to
the appropriate people's attention so those issues could have been
resolved. That puts me in a position to
think that [V.J.] was not tuning into the needs of
the children and not aware about the developmental issues that
were present.
Ruth Gibson, foster mother for the children immediately after they
were removed from V.J.'s home, also testified. Her
testimony related to the girls' behavior after their arrival and
after they were in the home long enough to feel
settled. She described the physical conditions as previously
related by the doctors and told of finding head lice
on S.J. She described the games they played:
A
Well, it wasn't normal three or four year olds play
for one thing, and their play when they came to
us was playing that they were going to go to
the liquor store to buy liquor and cigarettes and afterwards
to have a party and later call the cops on
whoever was drunk and that was their play.
Q
Did they play any other types of things they observed
in the home?
A
Yes, they had two imaginary friends and they would lay
down with them and pretend that they were sleeping with
them.
Q
Were they male or female?
A
Male friends.
Mrs. Gibson also testified as to statements made by
the girls regarding frequent sexual contacts by their uncles G.
and B.C. S.J. told her that "Grandma told
her to tell that, that she had fallen out of
a car, but she said I really didn't.
I got hurt by G." We find that
the testimony in the record, summarized above, more than adequately
reflects qualified expert opinions that the continued custody of the
children by V.J. is *325
likely to result in serious emotional or physical damage to
the children.
K.A.B.E., supra; T.J.J., supra.
We are aware of the Act's intent of preserving traditional
Indian culture, values, home life and child rearing. Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, ----, 109 S.Ct. 1597, 1601, 104 L.Ed.2d
29, 38 (1989). These are laudible objectives that should be
carried out. But home life at V.J.'s, consisting
as it did of child molesting, beatings with shoes, sadistic
burnings, and alcohol abuse, is certainly not the traditional Lakota
culture that the Act seeks to preserve. Matter
of S.D.,
402 N.W.2d 346, 351 (S.D.1987) (children should not be abused,
neglected, or forlorned under the guise of cultural identity);
see
also
Pommerscheim, The Reservation as Place: A South Dakota Essay, 34
S.D.L.Rev. 246, 250-51 (1989) for a discussion of traditional Lakota
culture.
V.J.'s third issue, that DSS failed to provide remedial services and rehabilitative
programs to prevent the disruption of the placement, would be farcical,
if the situation were not so serious. The keystone upon which her issue
is premised is found in § 1912(d), which provides:
Any
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.
Based on the arguments in her brief, V.J. apparently complains
that after
the children were removed from her home
as a result of the January 1, 1987, incident, DSS
did not make any further attempt to remedy the situation.
In view of V.J.'s attitude supporting her son,
G., the perpetrator of the offense against S.J., which attitude
the trial court made specific mention of, we are at
a loss as to what programs DSS could have provided
either before or after the rape that would have remedied
the situation. The record is replete with the
attempts of DSS and the court to remedy this family
situation. In fact, that is one of the
principal reasons that this case has dragged in the court
system for such a long period of time.
Attempts were made to help Mother overcome her chemical dependency
and alcoholism. Even after Mother's rights were voluntarily
terminated, V.J. permitted her, drunk or sober, to have access
to the children. Matter
of S.D., supra
(where aid and counsel provided by social services proves unavailing,
termination is justified); In
re P.B.,
371
N.W.2d 366 (S.D.1985) (Act is met if state shows that
active efforts made to provide familial remedial services, and that
they have failed); see
also State ex rel. Juvenile Dep't v. Charles,
70 Or.App. 10, 15, 688 P.2d 1354, 1359 (1984), review
denied
299 Or. 341, 701 P.2d 1052 (1985); T.J.J.,
supra.
We are unaware of any program, nor does
V.J. suggest any, that would remedy Uncle G.'s hostility and
sexual aggression toward the children so as to prevent recurrence
of the prior tragic event.
[FN7] V.J. says that the entire burden is upon
the DSS. In that she is wrong.
Matter
of S.D., supra; In re P.B., supra.
The Act was not designed to protect her
at the expense of the children. We find
that, beyond a reasonable doubt, DSS made the requisite efforts
to prevent the breakup of the family and that those
efforts proved sadly unsuccessful in this case through no fault
of DSS.
FN7.
In fact, several studies suggest that child molesters such as
G. and B.C. are not curable and have a high
recidivism rates. Groth, Longo & McFadin, Undetected Recidivism
Among Rapists and Child Molesters, 28 Crime & Delinquency 450,
457 (1982); Romero and Williams, Recidivism Among Convicted Sex
Offenders: A 10-Year Follow-up Study, 49 Federal Probation 58,
69 (1985); Marshall & Barbaree, An Outpatient Treatment Program
for Child Molesters, 528 Annals of the New York Academy
of Sciences 211 (Prentky & V. Quinsey ed. 1988).
V.J. frames her final issue in the language of §
1920, which provides in pertinent part:
Where
any petitioner in an Indian child custody proceeding before a
State court has improperly removed the child from custody of
the parent or Indian custodian ... the court shall decline
jurisdiction over such petition and shall forthwith *326
return the child to his parent or Indian custodian unless
returning the child to his parent or custodian would subject
the child to a substantial and immediate danger or threat
of such danger.
V.J. asserts, and it
is uncontestable, that on January 1, 1987, she had physical custody of
the children. Her argument on this issue is two-fold. First, it is her
position that when DSS removed the children she was entitled to notice
and hearing under the provisions of SDCL 26-8-19.2. We are not in agreement.
The adjudicatory phase of the proceedings had been accomplished, the children
had been found to be dependent and neglected. V.J.'s custody was through
the DSS. Granted, S.J. was covered by a stipulation; nevertheless, custody
was in DSS with placement with V.J. under conditions. V.J. had actual
notice that the children were being taken into DSS custody. She was present
when it happened. She ultimately had a hearing upon her petition, as we
have discussed in detail in issue two. We consider this aspect of her
argument moot also.
V.J.'s second position is that, since the trial court failed
to enter any findings of fact and conclusions of law
under the provisions of §
1920, the decision must be reversed. To buttress
this position, she argues that any findings or conclusions under
the standard of §
1912(f), "likely to result in serious emotional or physical damage,"
do not equate to the standard of §
1920, "substantial and immediate danger." V.J. cites us
to no case authority for that proposition, nor are we
aware of any. In our view, the findings
of the trial court as to the physical and emotional
injuries sustained by both children demonstrate that a return of
custody to V.J. would subject them to substantial and immediate
danger.
Since we do not view the removal of the children
to have been improper, we determine that the provisions of
§
1920 are not applicable to this proceeding.
We now examine Tribe's issues in appeal # 16669, and
children's notice of review issue in appeal # 16672.
Tribe raises two issues:
Whether
failure to notify the Tribe of the proceedings deprived the
trial court of jurisdiction?
Whether
the trial court erred in denying transfer of the proceedings
to tribal court?
By notice of review, the children raise the concomitant issue:
Whether
the trial court erred in granting intervention.
There are two important facets of this case that must
be kept in mind during this discussion. First,
as we have previously noted, these children were not and
never have been residents on the Standing Rock or any
other Indian reservation or wards of any tribal court.
They have spent the whole of their lives in
Rapid City or its environs and, most recently, with their
proposed adoptive parents in the state of New York.
Thus, the provisions of §
1911(a), granting exclusive jurisdiction to a tribe where children are
residing or domiciled within the reservation, are not applicable.
See
generally Holyfield, supra.
Second, the parental terminations were voluntary under the
provisions of §
1913.
Tribe's argument on the first issue is rather anomalous. First, it is
argued that Tribe was entitled to notice of the proceedings in accord
with § 1912(a). Then, a footnote is appended, which reads:
3.
If this Court concludes that notice was required to
be served upon the Tribe, as the Tribe argues herein,
such a holding would not vitiate the termination of the
parents' rights because such termination was voluntary, pursuant to 25
U.S.C. §
1913. The notice provisions if (sic) 1912(a) did
not therefore apply.
We first review a bit of the background of this
aspect of the proceedings. In August, 1988, after V.J.
was unsuccessful in state court, she contacted Tribe to enroll
her daughter, the children's mother, in Tribe. At
V.J.'s urging, Tribe
became aware of the child custody proceedings in state court.
On October 26, 1988, Tribe moved to intervene and
requested transfer of the child custody proceedings. Mother
did not become an enrolled member of *327
Tribe until December 8, 1988. At the transfer
hearing, Tribe presented evidence of Mother's enrollment and that children
were thus eligible for enrollment with Tribe.
Tribe contends that failure by the trial court to notify
it of these child custody proceedings violates §
1912(a) and deprives this court of jurisdiction. In
re N.A.H.,
418 N.W.2d 310 (S.D.1988). Tribe premises this argument
on its belief that its relationship to its children is
as sacrosanct as that of any blood relative's and is
entitled to protection under the law, and then makes a
broad general argument on notice requirements supported by authorities that
support §
1912(a) cases. DSS responds that §
1912(a) notice is not required in a §
1913(a) proceeding and that the trial court is bound by
the Oglala Tribe's acknowledgment of tribal affiliation of Mother and
eligibility of the children for membership in that tribe.
See
In re Junious M,
144 Cal.App.3d 786, 792, 193 Cal.Rptr. 40, 43 (1983); State
ex rel. Juvenile Department of Lane County v. Tucker,
76 Or.App. 673, 710 P.2d 793 (1975); Guidelines for
State Courts; Indian Child Custody proceedings (Guidelines), 44 Fed.Reg.
67,586 ¶
B.1.(b)(i).
We find both arguments persuasive. As to the requirement for notice, Tribe
has acknowledged that it was not entitled to notice of the parental termination
as a § 1913(a) proceeding. See
Trentadue and DeMontigny, The Indian Child Welfare Act of 1978: A Practitioner's
Perspective, 62 N.D.L.Rev. 486, 513n.159 & 160 (1986) (notice is required
only in involuntary proceedings); Barsh, The Indian Child Welfare Act
of 1978: A Critical Analysis, 31 Hastings L.J. 1287, 1313 (1980). While
Tribe does not specifically so state, the only possible involuntary proceedings
involved herein was the termination of V.J.'s custody. Section 1912(a)
does provide that, in involuntary proceedings, the child's parents or
Indian custodian and the Indian child's tribe shall be notified. The question
then becomes: Was Tribe entitled to notice of that proceeding? We think
not. Tribe cites no authority for its position, and for good reason. Because
V.J. was not an Indian custodian, there was no parental rights to terminate
in an involuntary proceeding. This issue brings up the question of whether
the trial court erred in determining that V.J. stood in the relationship
of Indian custodian. The term "Indian custodian" is defined
in § 1903(6):
'Indian
custodian' means any Indian person who has legal custody of
an Indian child under tribal law or custom or under
State law or to whom temporary physical care, custody, and
control has been transferred by the parent of such child.
As we earlier alluded to in discussing V.J.'s notice
issue, we did not agree with
the trial court's determination that V.J. was entitled to notice
as Indian custodian. We determined there that her
right to notice was founded on the fact that she
was and had been a named party. We
now specifically hold that she does not qualify as Indian
custodian of the children. Case law makes it
clear that absent custody given by parents,
a person does not qualify as a "custodian" under the
Act. State
ex rel. Juvenile Depart. v. England,
292 Or. 545, 640 P.2d 608 (1982) (aunt without legal
custody not entitled to notice under Act); In
re Interest of Bird Head,
213 Neb. 741, 331 N.W.2d 785 (1983) (aunt without legal
custody not an Indian custodian). Clearly, V.J. had
no legal custody under tribal law or custom.
The DSS placement of the children with V.J. did not
transfer legal custody, which DSS retained. Finally, the temporary physical
care, custody and control that she did have rested solely
on the DSS placement, not on parental transfer.
We also agree with DSS' argument that the trial court was bound by the
original determination of the Oglala that they were the children's tribe
and sought intervention. Junious
M, supra; Tucker, supra;
Guidelines, 44 Fed.Reg. 67,586 ¶ B.1.(b)(i). Section 1911(d) mandates
that we accord full faith and credit to the public acts, records, and
judicial proceedings of any Indian tribe applicable to Indian child custody
proceedings to the same extent that such entities give full faith and
credit to the public acts, records, and judicial proceedings of any other
entity. For the trial *328
court to have delved below this determination would have interfered with
the Oglala's prerogative to determine membership. Junious
M, (tribe's
prerogative to determine membership); Tucker,
supra; Guidelines,
44 Fed.Reg. 67,586 ¶ B.1.(b)(i); Cohen, Handbook of Federal Indian
Law 133 (1942); Barsh,
31 Hastings L.J. at 1325. Furthermore, § 1903(5)(b) makes it clear
that only one tribe can be a child's tribe. See
Tellinghuisen, The Indian Child Welfare Act of 1978: A Practical Guide
with [Limited] Commentary, 34 S.D.L.Rev. 660, 673 (1989); Trentadue &
DeMontigny, 62 N.D.L.Rev. at 515. At the time that notice was sent to
the Oglala and they sought transfer, it was known that children's maternal
grandfather was a member of and 9/16 ths blood quantum of the Oglala,
their paternal grandmother was a member of and 4/4 ths blood quantum of
the Oglala. While V.J., the maternal grandmother, was a member of and
4/4 ths blood quantum of the Standing Rock Sioux Tribe and was a party
to the proceedings, she raised no question as to the proper notice then
or after her daughter had blocked transfer. The objection to transfer
did not dispute the Oglala claim of tribal membership. In short, V.J.
did nothing about Tribe's participation until she lost her custody fight
and then sought to bring in Tribe by enrolling her daughter as a member.
Guidelines, 44 Fed.Reg. 67, 584-91 at 590, Commentary to Guideline C.1.
(Nov. 26, 1979), argues against such improper manipulation:
If
a transfer petition must be honored at any point before
judgment, a party
could wait to see how the trial is going in
state court and then obtain another trial if it appears
the other side will win. Delaying a transfer
request could be used as a tactic to wear down
the other side by requiring the case to be tried
twice. The Act was not intended to authorize
such tactics and the 'good cause' provision is ample authority
for the court to prevent them.
See
also
Trentadue & DeMontigny, 62 N.D.L.Rev. at 520. Tribe
disclaims the trial court's presumption that it is engaged in
an effort to assist V.J. in getting her grandchildren returned
to her. Actually, the trial court found that
"V.J. has resorted to the Standing Rock Sioux Tribe to
find a way to get these children; she hopes
the Standing Rock Sioux Tribe will return them to her."
The record clearly supports the finding as to
V.J.'s acts and motives. The trial court did not attribute
any ulterior motives to Tribe's motions for intervention and transfer,
nor, do we. But it is beyond peradventure
that V.J. is using Tribe to seek her own ends,
all to the detriment of the children.
[FN8]
FN8.
The record reflects that as early as January, 1987, V.J.
knew of an Indian tribe's ability to intervene and attempted
to have the Oglala Sioux Tribal Court assist her.
As mentioned earlier, this was properly blocked by the
children's birth mother.
Lastly,
we address Tribe's second issue: Whether the trial court erred in denying
transfer. Section 1911(b) provides in part:
In
any State court proceedings for the foster care placement of,
or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child's
tribe, the court, in
the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe,
absent objection by either parent, upon the petition of either
parent or the Indian custodian or the Indian child's tribe
[.] (Emphasis added.)
Although "good cause to the contrary" is not defined in
the Act, the legislative history states that the term was
designed to provide State courts with flexibility in determining the
disposition of a child custody proceeding involving an Indian child.
S.Rep. No. 597, 95th Cong., 1st Sess. 17
(1977), U.S.Code Cong. & Admin.News 1978, p. 7530.
After an evidentiary hearing on the remand, the trial court
entered detailed findings of fact and conclusions of law which
we summarize as follows: (1) all the evidence necessary
to decide the case could not be adequately presented in
tribal court without undue hardship to the parties or witnesses
involved; (2) the minor children have had little or
no contact with Tribe; (3) *329
the children's "great need for a stable and secure environment
greatly outweighs the
minimal contacts" with Tribe; and (4) to remove these
children from their adoptive home "would cause them terrible physical
and emotional injury, and result in irreparable harm to these
minor children." Therefore, the trial court concluded, good
cause was shown not to transfer these proceedings to tribal
court.
Tribe contends that the trial court erred on all these
grounds. DSS contends that the trial court was
correct on all these grounds, particularly that the court may
consider the "child's best interests" in determining whether good cause
exists to deny transfer. The judgment of the
trial court will be upheld if it is right for
any reason. A.L.,
supra.
In arriving at its decision to deny transfer, the trial
court considered three separate provisions in the guidelines for good
cause to the contrary,
[FN9] to-wit: (i) the advanced stage of the proceedings
when the transfer petition was filed; (iii) forum non
conveniens; and (iv) the children, being over five years
of age, have had little or no contact with the
tribe. We will discuss these in reverse order.
FN9.
Guidelines, 44 Fed.Reg. 67,591 ¶
C.3 provides the following criteria for good cause to the
contrary:
(a)
Good cause not to transfer the proceeding exists if the
Indian child's tribe does not have a tribal court as
defined by the Act to which the case can
be transferred.
(b)
Good cause not to transfer the proceeding may exist if
any of the following circumstances exists:
(i)
The proceeding was at an advanced stage when the petition
to transfer was received and the petitioner did not file
the petition promptly after receiving notice of the hearing.
(ii)
The Indian child is over twelve years of age and
objects to the transfer.
(iii)
The evidence necessary to decide the case could not be
adequately presented in the tribal court without undue hardship to
the parties or the witnesses.
(iv)
The parents of a child over five years of age
are not available and the child has had little or
no contact with the child's tribe or members of the
child's tribe.
Guideline (b)(iv) provides that good cause may exist if "[t]he
parents of a child over five years of age are
not available and the child has had little or no
contact with the child's tribe or members of the child's
tribe." Matter
of N.L.,
754 P.2d 863, 869 (Okla.1988) (child had no contact with
tribe and all witnesses resided outside county of tribal court);
Matter
of Adoption of Baby Boy L,
231 Kan. 199, 643 P.2d 168 (1982) (child in Kansas,
no contact with tribe
in Oklahoma); In
Interest of J.R.H.,
358 N.W.2d 311, 317 (Iowa 1984) (child had no contact
with tribe in South Dakota). The parents, of
course, were not available inasmuch as they had voluntarily terminated
their parental rights. The trial court made further
pertinent findings of fact, summarized as follows: J.J. and
S.J. were ages 6 and 7 respectively; they had
lived all their lives in Rapid City until placed with
the adoptive Indian family in New York; they have
never lived on or visited the Standing Rock Reservation nor
participated in any tribal activities until placed with the adoptive
Indian family; they do not speak Lakota, nor did
V.J.; they will not derive any greater benefit
from enrollment in the Standing Rock Sioux Tribe than enrollment
in any other tribe; and the adoptive Indian family
will introduce the children to the Lakota culture and will
permit the children to keep their Lakota Heritage;
[FN10] they have bonded with their adoptive parents, and their
adoptive parents have bonded with children. The trial
court concluded that the children had had little or no
contact with the Tribe and their great need for a
stable and secure environment greatly outweighs the minimal contacts they
may have had with the Tribe or member of said
tribe. Importantly, the trial court noted that its
jurisdiction was concurrent with the tribal court, that it had
transferred many cases to Tribal court before, that it considered
it a good judicial system, and that the adequacy of
Tribal court or BIA Social Services did not enter into
its decision. Guidelines, 44 Fed.Reg. 67,591 ¶
C.3.
(c) (state court may not base good cause determination on
*330
perceived inadequacy of tribal services and judicial system). Therefore, we
do not find the trial court's finding on this element
of good cause to the contrary to be clearly erroneous.
N.L.,
supra; Baby Boy L, supra; J.R.H., supra.
FN10.
Interestingly enough, V.J. admitted she would be satisfied if children
were exposed to any Indian culture, and not just Standing
Rock Sioux.
Guideline (b)(iii) provides that good cause may exist if "[t]he
evidence necessary to decide the case could not be adequately
presented in the tribal court without undue hardship to the
parties or the witnesses." As the Guideline points
out:
Consideration
of whether or not the case can be properly tried
in tribal court without hardship to the parties or witnesses
was included on the strength of the section-by-section analysis in
the House Report on the Act, which stated with respect
to the §
1911(b), '[t]he subsection is intended to permit a State court
to apply to apply (sic) a modified doctrine of forum
non conveniens,
in appropriate cases, to insure that the rights of the
child as an Indian, the Indian parents or custodian, and
the tribe are fully protected.'
Id.
at 67,591. (Emphasis in original.)
See
Matter of Appeal in Pima County Etc.,
130 Ariz. 202, 635 P.2d 187 cert.
denied
455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982)
(states may apply modified forum non conveniens); Barsh, 31
Hastings L.J. at 1330 states that "[t]he Interior Department apparently
considered transfer to be a privilege rather than a right,
similar to the common law doctrine of forum non conveniens."
Note, Indian Child Welfare: A Jurisdictional Approach,
21 Ariz.L.Rev. 1123, 1143 (1979). Here again, the
trial court made appropriate findings, summarized as follows: all
the witnesses are in Rapid City, except the adoptive parents
who reside in the state of New York; the
Tribal court is quite a long distance from Rapid City;
virtually every witness would be required to leave the
state of South Dakota and go to Fort Yates, North
Dakota, to participate in any further proceedings, including ancillary proceedings;
the trial court concluded that the evidence in this case
could not be adequately presented to the Tribal court without
undue hardship to the parties and the witnesses. N.L.,
supra; Baby Boy L, supra; J.R.H., supra; In
re Robert T,
200 Cal.App.3d 657, 666-7, 246 Cal.Rptr. 168, 174 (1988) (almost
all witnesses in California, sought transfer to New Mexico); Bird
Head, supra.
We do not find this finding clearly erroneous.
Guideline (b)(i) provides that good cause may exist if "[t]he
proceeding was at an advanced stage when the petition to
transfer was received and the petitioner
did not file the petition promptly after receiving notice of
the hearing." In this regard, the trial court
concluded that, because Tribe did file their petition promptly after
receiving notice, good cause to deny transfer does not exist
under this subsection. For all of the reasons
hereafter expressed, we do not agree with the trial court's
conclusion of law in that regard.
While the Act permits intervention at any point in the
proceeding, it does not explicitly authorize transfer requests at any
time. Although the Act does not explicitly require
transfer petitions to be timely, it does authorize the court
to refuse to transfer a case for good cause.
Robert
T, supra
(16-month delay); In
re Wayne R.N.,
107 N.M. 341, 757 P.2d 1333, 1336 (1988) (6-month delay);
Guidelines, 44 Fed.Reg. 67,590 ¶
C.1.
We first examine the decision on the timeliness basis.
As has been earlier pointed out, these children have
been in the system for over five years, the first
proceeding having been commenced in August of 1984.
We assess no blame for this fact. Beyond
a doubt, DSS was attempting to comply with the Act
by placing the children with V.J. as a member of
their extended family after their parents had voluntarily terminated their
parental rights. The failure of that plan cannot
be attributed to DSS. When V.J. lost her
fight to keep the children after the rape incident, she
turned to Tribe for help. She caused her
daughter, the children's mother, to become an enrolled member of
Tribe on December
8, 1988, over four years after the proceedings were started
and over two and one-half years after Mother had voluntarily
terminated her parental rights.
*331
We grant that Tribe cannot be faulted for the untimeliness
of their application for transfer. However, in this
particular set of circumstances, we have to peer beyond the
ethnocentric stance of Tribe and recognize that it is an
unwitting pawn in V.J.'s game. We have to
attribute to Tribe the knowledge of V.J. To
do otherwise would be to do exactly what the guidelines
decry: permit V.J. to come in and manipulate the
system after she has lost her own fight.
Guidelines, 44 Fed.Reg. at 67,590. We further determine
that this manipulation of the system would be detrimental to
the well being of the children. Matter
of M.E.M.,
195 Mont. 329, 635 P.2d 1313, 1317 (1981) (best interest
of child is a factor that may be considered in
good cause determination); N.L.,
supra; Chester Cty Dept. of Social S. v. Coleman,
296 S.C. 355, 372 S.E.2d 912 (1988) (recognizing best interests
of child as proper factor to consider); Robert
T, supra; see also
§
1902 (one of the goals of the Act is "to
protect best interest of Indian Children.")
Furthermore, the guidelines appear to suggest a balancing test when
it is stated:
Permitting
late transfer requests by persons or tribes who were notified
late may cause some disruption. It will also,
however, provide an incentive to the petitioners
to make a diligent effort to give notice promptly in
order to avoid such disruptions.
Id.,
at 67,590. In this instance, it appears to
us that honoring the late request for transfer will wreak
havoc, rather than merely disrupt; all of which far
outweighs any sanction against DSS for not having made a
more diligent effort to give notice, especially in light of
Oglala's claim to be the children's tribe.
As the trial court articulated in its findings of fact:
these children have never had a stable and secure
environment until placed in adoptive placement in New York in
July of 1987; the children have expressed great fear
and concern, both physically and emotionally, at the prospect of
their returning to South Dakota and being taken away from
the home they are in at the present time; when
this possibility is discussed, they become fearful, insecure, and regress;
these children have been in foster homes many times
and in and out of V.J.'s home and their parents'
home many times; the Tribe has located a single-parent
foster home on the Standing Rock Sioux Tribe Reservation in
North Dakota; these children have a desperate need and
an absolute right to stability and security in their lives;
these children have specific problems related to sexual and
physical abuse which have slowly been somewhat resolved with their
present adoptive placement, terminating that progress would be detrimental to
their well being; the time that the children have
been in one place,
which they believe will be their permanent home and the
harm that will come to them if this is changed,
is the court's greatest concern; the harm will be
irreparable. The prediction of resultant serious emotional or
physical damage to the children was testified to by qualified
expert witnesses, as noted in the trial court's findings.
Based on these findings, the trial court concluded that
good cause to the contrary does exist to deny the
transfer. We agree and hold the finding was
not clearly erroneous.
M.E.M., supra; Wayne, R.N., supra;
Guidelines, 44 Fed.Reg. 67,590 ¶
C.1. Commentary.
In regard to the issue of timeliness of the petition
for transfer, we hold that the trial court erred when
it held that subsection (1) is inapplicable because the petition
was timely filed. We affirm the denial of
transfer on all three grounds.
Finally, with respect
to children's issue on intervention, we note that the guidelines suggest
that intervention is far different than transfer. Therein we find the
following:
Late
intervention does not have nearly the disruptive effect on the
proceeding that last minute transfers do. A case
that is almost completed does not need to be retried
when intervention is permitted. The problems resulting from
late intervention are primarily those of the intervenor, who has
lost the opportunity to influence the portion of the proceedings
*332
that was
completed prior to intervention.
Guidelines, 44 Fed.Reg. 67,590, C.1. Commentary.
See
also
Trentatdue & DeMontigny, 62 N.D.L.Rev. at 520. We
therefore determine that the trial court did not err in
granting the application of Tribe to intervene during the appellate
proceedings.
For all the foregoing reasons, we affirm the disposition by
the trial court as to all the appeals.
All the Justices concur.
454 N.W.2d 317
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