| (Cite
as: 474 N.W.2d 96)
Supreme
Court of South Dakota.
In
the Matter of the Dependency and Neglect of N.S., and
Concerning J.S., His
Mother.
No.
17307.
Submitted on the Briefs
April 22, 1991.
Decided
Aug. 14, 1991.
*97
Jane Loveland Doyle, Rapid City, for appellant J.S.
Joan P. Baker, Asst.
Atty. Gen. (Mark W. Barnett, Atty. Gen., on the brief), Pierre, for appellee
State of S.D.
HENDERSON, Justice.
PROCEDURAL HISTORY/ISSUES
J.S. appeals from an order which terminated her parental rights as to
her son, N.S. She raises four issues on appeal:
(1) Was the trial court
clearly erroneous in finding that there was clear and convincing evidence
to support the finding of dependency and neglect?
(2) Did the trial court
err in terminating the parental rights of an Indian child by clear and
convincing evidence?
(3) Were the trial court's
final dispositional findings of fact and conclusions of law clearly erroneous?
(4) Was it error to submit
proposed findings of fact and conclusions of law later than ten days as
pursuant to SDCL 15-6-52?
We reverse on issue 2.
Due to our decision, we decline to address the remaining issues.
FACTS
N.S. was born on May 10, 1988. J.S., a Caucasian, is the mother of N.S.
Prior to the birth of N.S., J.S. experienced psychiatric problems and
was hospitalized on at least two occasions. About nine months after the
birth of N.S., J.S. was again admitted to a psychiatric unit as the result
of a referral from the Addiction Recovery Center. At discharge, J.S. was
diagnosed *98
as having a borderline personality disorder and a problem with alcohol.
The Department of Social
Services first had contact concerning N.S. on June 5, 1989. J.S. told
a counselor that she was concerned that her brother would sexually
abuse her son. Later, J.S. denied these concerns.
On June 21, 1989, J.S.
requested adoption services for N.S. However, the next day J.S. changed
her mind. J.S. believed that her mother (N.S.'s grandmother) wanted permanent
custody of N.S.
On July 6, 1989, J.S.
once again wanted to relinquish N.S. for adoption. J.S. apparently was
having difficulties with her own mother and did not feel that they could
properly care for N.S. On July 10, 1989, J.S. was planning to give full
custody of N.S. to her mother.
On August 22, 1989, J.S.
again wanted to place N.S. for adoption. N.S. was then placed in foster
care and a petition was filed. However, on August 25, 1989, J.S. again
changed her mind and wanted N.S. back. J.S. agreed to work with the Department
of Social Services for the return of N.S. She signed a case service plan
that included (1) parenting classes for eight weeks; (2) counseling; (3)
AA meetings twice a week; (4) obtaining a chemical dependency evaluation;
and (5) visits with N.S. and the social worker.
On August 30, 1989, N.S.
had a supervised visit at the Department with his mother and grandmother.
The caseworker reported her concern regarding the lack of bonding between
N.S. and his mother and that N.S. was extremely out of control.
Between August 23, 1989
and November 7, 1989, N.S. was moved twice to new foster homes due to
his behavior problems. Because of these problems, N.S. was
referred to a psychologist, Lee Pfeifer (Pfeifer). Pfeifer determined
that N.S. was exhibiting mild delays in both cognitive and motor development.
She was concerned about N.S.'s speech and language delays. However, Pfeifer
expressed the most concern regarding N.S.'s abnormal behavior. She believed
that N.S. may have been abused and recommended extreme caution in returning
N.S. to his mother.
On November 9, 1989,
N.S. was returned to J.S. and the petition was dismissed. The court granted
the agency legal custody for 60 days.
On November 28, 1989,
J.S. asked the social worker newly assigned to her case, Sarah Gillem,
if it was still possible to place N.S. for adoption.
On December 16, 1989,
Social Services placed N.S. in his grandmother's custody for a month.
Also, on that day grandmother had J.S. removed from the house. On January
11, 1990, grandmother requested that N.S. be removed from her home. According
to grandmother, she wanted to get a job and therefore, there would be
no one to care for N.S. Meanwhile, J.S. was attempting to participate
in her parenting program. The adjudicatory hearing was to take place on
January 24, 1990. By this date, J.S. had attended six sessions of her
parenting class and had missed three.
At the adjudicatory hearing,
N.S. was found to be dependent and neglected. On June 19, 1990, at the
dispositional hearing, J.S.'s parental rights were terminated.
[FN1]
FN1.
On August 20, 1990, adjudicatory findings were entered as to C.D.S. who
was determined to be the biological father of N.S. N.S. was found to be
dependent and neglected.
DECISION
The trial court
erred by not applying the Indian Child Welfare Act.
Under 25 U.S.C. §
1901 et seq., child custody proceedings involving the termination of parental
rights to an Indian child are subject to specific minimum federal procedures
and standards. Pursuant to these "minimum federal standards":
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 a qualified expert witness, that
the continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional *99
or physical damage to the child.
25 U.S.C. § 1912(f). (emphasis added).
See Matter J.L.H.,
299 N.W.2d 812 (S.D.1980).
Before the trial court
is required to apply the standard for termination of parental rights set
out in the Indian Child Welfare Act, some evidence must demonstrate that
the child is Indian and that the act applies. Matter
of B.R.B.,
381 N.W.2d 283 (S.D.1986). In this case, N.S. is an "Indian child"
within the meaning of the Indian Child Welfare Act. See
25 U.S.C. § 1903(4).
[FN2] Although N.S.' paternity was not established until after termination,
N.S.' Indian status was acknowledged prior to termination and the Cheyenne
River Sioux Tribe was notified of the right to intervene in this action.
[FN3] Further, in the middle of the dispositional hearing, the trial court
put N.S.' father on the petition alleging N.S. to be dependent and neglected.
Thus, the trial court in this action was required to apply the "minimum
federal standards" provided by the act.
FN2.
N.S.' father is a Native American.
FN3.
On December 28, 1989, notice was sent, by the State, to the Cheyenne River
Sioux Tribe of the pending child custody proceedings. The notice stated,
in part: "This notice is given pursuant to 25 U.S.C. 1912. The child(ren)
who are/is the subject of this proceeding are/is named [N.S.] and are/is
members of the Cheyenne River Sioux Tribe."
This
is an admission, by the State, regarding N.S.' membership in the Cheyenne
River Sioux Tribe. One who has taken a position in a judicial proceeding
may not later take a position inconsistent with his earlier position.
Time Out, Inc.
v. Karras,
469 N.W.2d 380 (S.D.1991) (slip op.
# 16991, # 16999); State
v. St. Cloud,
465 N.W.2d 177 (S.D.1991); see
Federal Land Bank v. Johnson,
446 N.W.2d 446 (S.D.1989).
It is clear from the record that the federal standards were not followed
at the dispositional stage of the state proceedings in this case. At the
conclusion of the dispositional hearing, Judge Tice stated, in his bench
ruling:
At
this time the court finds beyond a reasonable doubt that termination of
parental rights is the only reasonable alternative in the interest of
the child.
The pertinent findings and conclusions entered by the trial court state:
That
the State has shown beyond a reasonable doubt that the termination of
the Respondent mother's parental rights over the minor child is the least
restrictive alternative in the best interests of the minor child. (Finding
VII).
By
clear and convincing evidence no lesser restrictive alternative than termination
of parental rights are available to this court to protect the minor children
herein from continued serious emotional and physical harm. (Conclusion
VII).
The final Dispositional
Order states, in pertinent part:
Ordered,
that by clear and convincing evidence it is necessary for the child's
physical and mental well-being that the parental rights of the Respondent
be terminated to the minor child; and it is further Ordered that by clear
and convincing evidence, no lesser restrictive alternative than termination
of parental rights are available to this court to protect the minor child
from continued serious emotional and physical harm.
The application of the
clear and convincing burden of proof to the language "serious emotional
or physical harm to the child" as well as the application of the
beyond a reasonable doubt burden of proof to the language "the only
reasonable alternative in the interests of the child" clearly conflicts
with section 1912(f) of ICWA. This section provides that there will be
no termination unless it is shown by evidence beyond a reasonable doubt
that "the continued custody of the child is likely to result in serious
emotional or physical damage to the child."
Contrary to the requirement
of 25 U.S.C. § 1912(f), the trial court reached its determination
by applying the state law burden of proof
[FN4] (clear and convincing) to *100
the federal language (that the continued custody of the child by the parent
of Indian custodian is likely to result in serious emotional or physical
harm to the child). Conclusion VII. This error is further evidenced by
the trial court's Finding VII which applied the federal law burden (beyond
a reasonable doubt) to the state language (termination
of the Respondent Mother's parental rights over the minor child is the
least restrictive alternative in the best interests of the minor child).
Apparently the trial court was attempting to identify the interrelationship
between our state code and ICWA. The trial court realized that considering
the best interests of the Indian child and applying the minimum Federal
standards of ICWA were concurrent obligations. However, it erred in the
application of this obligation.
[FN5]
FN4.
Under state law, in a termination of parental rights at a dispositional
hearing, the trial court must find by clear and convincing evidence that
termination of parental rights is in the child's best interest and the
state must show that there is no narrower means of providing for the best
interests and welfare of the child. In
Interest of A.D.,
416 N.W.2d 264 (S.D.1987).
FN5.
Here, the trial judge used the "clear and convincing" burden
of proof 4 times in the Findings of Fact and Conclusions of Law and twice,
later, in the formal order; hence, 6 times the burden was "clear
and convincing."
In a termination case,
the trial court must make clear and specific
findings which conform to the statutory requirements. This was not done.
Matter of R.M.M.,
316 N.W.2d 538 (Minn.1982). We therefore reverse the trial court, with
instructions to enter new findings of fact, conclusions of law and a dispositional
order which conform to the federal standards found in 25 U.S.C. §
1901 et seq.
[FN6] The new findings should be based upon the record as it existed at
the conclusion of the dispositional hearing.
FN6.
The appellee argues that ICWA is not applicable to this case, citing various
authorities that stand for the proposition that the purpose of ICWA is
for the maintenance of the Indian family. However, this Court recently
stated that it is incorrect when assessing ICWA's applicability to a particular
case, to focus only
upon the interests of an existing Indian family. Matter
of Adoption of Baade,
462 N.W.2d 485 (S.D.1990). See
Note, The Indian Child Welfare Act of 1978; Does it Apply to the Adoption
of an Illegitimate Indian Child?, 38 Cath.U.L.Rev. 511 (1989) ("in
light of the legislative history of the ICWA, the existing Indian family
theory is thus contrary to the intent of Congress." (Footnotes omitted.)).
As we stated in Baade,
such a practice fails to recognize the legitimate concerns of the tribe
that are protected under the Act.
Reversed and remanded.
WUEST and AMUNDSON, JJ., concur.
MILLER, C.J., concurs
in result without writing.
SABERS, J., concurs specially.
SABERS, Justice (concurring
specially).
However pointless a remand
may appear, the law is clear and the majority has read it correctly.
The Indian Child Welfare
Act (ICWA), 25 U.S.C. §§ 1901-1963 (1988), is a preemptive federal
law which governs all custody proceedings involving Indian children except
those incident to divorce or to criminal acts committed by the child.
25 U.S.C. § 1903(1). The record shows that in this non-divorce, non-criminal
proceeding, the circuit court itself identified N.S. as an "Indian
child" within the meaning of 25 U.S.C. § 1903(4) prior to the
termination of parental rights. See
majority opinion at footnote 3.
Mississippi
Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), authoritatively established
the principle that the provisions of ICWA are to be strictly construed
and applied. Moreover, this court
has acknowledged that pre-Holyfield
state court cases like Claymore
v. Serr, 405
N.W.2d 650 (S.D.1987), and In
re Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982), are now doubtful authority, and that
ICWA has effect even when the Indian child has never been raised in an
Indian home. Matter
of Adoption of Baade,
462 N.W.2d 485, 489 (S.D.1990).
[FN*]
FN*
While a statute should be construed according to its legislative intent
when its terms are ambiguous, there is no need to reach back to what the
legislature intended when a statute is unambiguous on its face. In fact,
when a court ignores the clear provisions of a statute in reliance on
what the court believes the legislature must have meant to say, the court
is improperly engaging in judicial lawmaking.
Baby
Boy L., has
been criticized for just this kind of inappropriate judicial re-writing
of ICWA:
The
[adoptive parents] assert that [ICWA] does not apply where the child had
never been a part of any Indian family relationship. See
... Baby Boy
L..... [However,]
the language of the Act contains
no such exception....
[They] also assert that the Act should only be applied in light of the
problem it was intended to solve--the removal of Indian children from
their families by public and private social welfare agencies....
It is unnecessary to invoke the constructional rules urged by the [adoptive
parents] as the Congressional intent is clear on
the face of the statute.
In
re Custody of S.B.R.,
43 Wash.App. 622, 719 P.2d 154, 156 (1986) (emphasis added). See
also Matter of Adoption of Child of Indian Heritage,
111 N.J. 155, 543 A.2d 925, 932 (1988) ("We disagree with [Baby
Boy L.'s] interpretation
of [ICWA] because it posits as a determinative jurisdictional test the
voluntariness of the conduct of the mother. The
Act itself does not suggest this factor
as a jurisdictional test of the Act's coverage") (emphasis added).
Accord Baade,
462 N.W.2d at 489.
25
U.S.C. § 1903(4) states that an unmarried minor is an "Indian
child" for ICWA purposes if he is "a member of an Indian tribe."
Since N.S. apparently is a member of the Cheyenne River Sioux Tribe, the
provisions of ICWA apply to child custody proceedings involving N.S. There
is simply no statutory requirement for N.S. to have been born into an
Indian home or an Indian community in order to come within the provisions
of ICWA, however much one might believe 25 U.S.C. § 1903(4) should
have been written
that way. No amount of probing into what Congress "intended"
can alter what Congress said,
in plain English, at 25 U.S.C. § 1903(4).
*101
Here, the circuit court found termination of J.S.'s parental rights to
be both in the best interests of N.S. and the least restrictive alternative
by clear and convincing evidence. Under ICWA, that is not enough. The
case must be remanded and J.S.'s parental rights may not be terminated
unless the court also finds that her continued custody of N.S. would "beyond
a reasonable doubt ... likely ... result in serious emotional or physical
damage to the child." 25 U.S.C. § 1912(f); Baade,
462 N.W.2d at 490.
474 N.W.2d 96
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