| (Cite
as: 634 N.W.2d 88, 2001 SD 105)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota in the Interest
of S.G.V.E. and
A.G.V.E.,
Minor Children, and Concerning G.G.V.E., Respondent.
No.
21839.
Considered
on Briefs July 26, 2001.
Decided
Aug. 15, 2001.
*89
Mark Barnett, Attorney General, Ann M. Holzhauser, Assistant Attorney General,
Pierre, for appellee State of South Dakota.
Nancy Manning, Rapid City, for appellant G.G.V.E., Mother.
John Murphy, Rapid City, SD, Attorney for appellees S.G.V.E. and
A.G.V.E., Children.
PER CURIAM.
**1
Mother, an enrolled member in the Oglala Sioux Tribe,
appeals from the termination order involving her daughters, raising jurisdictional
issues and questions regarding least restrictive alternative and the children's
best interests. The Indian Child Welfare Act (ICWA)
applies to this case. We affirm.
FACTS
AND PROCEDURE
**2
A.G.V.E., the eldest daughter, and S.G.V.E., the youngest daughter,
were born June 30, 1989, and August 22, 1990, respectively,
and are presently ages 12 and 10. They
moved with Mother from the Pine Ridge Indian Reservation to
Rapid City on October 7, 1999. Until then,
they lived on the reservation. On October 18, the Rapid
City police and a Department of Social Services (DSS) worker
responded to a report of domestic violence at Mother's residence.
They found two intoxicated adults (Mother's sister and
her boyfriend) and three children present. It was
learned that three adults and five children lived in the
home, though Mother told her landlord two adults and two
children would be living there. The only furniture
within was a single air mattress. The only
food found was milk, ketchup and two frozen breakfast burritos.
There were no plates,
silverware or cooking utensils. The only other items
found in the home were a sack of empty beer
cans and an empty liquor bottle. The children
had not attended school that day and had head lice.
Mother arrived home at this time, intoxicated, with
the children, and was arrested for non-support. The children were
taken into DSS temporary custody and an abuse and neglect
petition was filed October 22, 1999.
**3
Mother is an alcoholic. In January 1997,
the Oglala Sioux Tribe removed her children from her care
due to problems related to her drinking and the abuse
and neglect of her children. DSS began working
with Mother on the Pine Ridge Indian Reservation at this
time. The tribe returned the children to Mother's
custody sixteen months later, in May 1998, after Mother completed
alcohol treatment. Mother has had periods of sobriety
as well as relapses into alcohol use. Mother
began drinking again shortly after her children were returned to
her.
**4
Mother has also involved herself with men who are
violent and who have physically abused her. She
has been involved with three such men during the children's
lifetimes.
**5
After the abuse and neglect petition was filed October
22, 1999, notice was *90
sent by certified mail to the Oglala Nation Tiospaye Resource
and Advocacy Center (ONTRAC), the Oglala Sioux Tribal Court, the
Aberdeen Area Director of the Bureau of Indian Affairs, and
the Secretary of the Interior. This
mail was received and signed for by individuals within these
agencies on October 27, 1999, October 27, 1999, October 28,
1999 and October 29, 1999, respectively. Notices of
subsequent hearings in this matter were also sent by certified
mail and signed receipts in the record indicate receipt by
these four agencies.
[FN1]
FN1.
The State notified ONTRAC, the Oglala Sioux Tribe's ICWA compliance
office, by certified mail that was signed for as received,
nine different times regarding various proceedings in this action.
Each of the other agencies, except for the Secretary
of the Interior, was also notified nine times.
The Secretary of the Interior received seven notices.
**6
On November 12, 1999, DSS met with Mother and
they signed a Family Service Agreement (FSA) which required that
Mother: 1) visit her children weekly; 2) obtain
a chemical dependency evaluation and follow its recommendations; 3)
complete a parenting course; 4) obtain a domestic violence
evaluation and follow its recommendations; and 5) obtain suitable
housing. An updated FSA, requiring a psychological evaluation
requested by Mother's attorney, was signed January 3, 2000.
**7
Mother was arrested and jailed in Pine Ridge for
an outstanding warrant involving child neglect and open intoxication.
Her advisory hearing, scheduled
for November 9, 1999, was continued due to her incarceration.
At the February 7, 2000 advisory hearing, Mother
appeared with her attorney and admitted the allegations in the
abuse and neglect petition. Mother was court-ordered to
cooperate with DSS and warned by the court that she
had nine months to "straighten her act out" or her
parental rights would be terminated.
**8
DSS attempted to locate family and tribal member placements
for the children. Father was contacted in this
regard.
[FN2] Ultimately, his parental rights were terminated August 9,
2000; this decision was not appealed.
FN2.
Mother informed DSS that she and Father have an older
child, not part of this appeal, who lives with Father
on the reservation.
**9
Mother did not complete the requirements of her FSA.
She lived in motels and did not obtain suitable housing.
DSS was unaware of her whereabouts at various
times during the pendency of these proceedings. She
failed to obtain employment and missed appointments and some visits
with her children. Mother was admonished and warned again
by the trial court at an April 3, 2000 review
hearing. She failed to keep her appointment for
the scheduled psychological evaluation and did not complete this requirement.
Mother obtained a chemical dependency evaluation and was recommended to
complete
an intensive outpatient treatment program, attend two Alcoholics Anonymous (AA)
meetings weekly and seek a sponsor, and follow aftercare recommendations.
Mother did not follow these recommendations. She
admitted drinking in January or February of 2000 and was
dropped from her aftercare program for non-attendance. She
attended AA meetings in June and July 2000 only after
the trial court ordered her to do so.
She completed a domestic violence evaluation after a delay of
several months and rescheduling, but failed to attend the recommended
support group meetings though she was also court-ordered to do
so. At a June 27, 2000 review hearing, when
it became clear that Mother *91
had not made an effort to obtain suitable housing and
showed little motivation toward completing other FSA requirements, the court
again issued stern warnings to Mother to attend to these
tasks.
**10
Mother, according to her attorney and as evidenced by
the record, "passively resisted" all attempts by DSS to
assist her in addressing the problems which caused her to
lose custody of her children. This resulted in
her attorney's request to amend the FSA to require a
psychological evaluation of Mother. As indicated, she failed
to keep her appointment and never obtained this evaluation.
Her missed visits with her children caused them to
write her letters, included in the record, expressing their hurt
and anger and refusing to accept fault for her lack
of responsibility.
**11
In August 2000, Mother moved back to the Pine
Ridge Indian Reservation
and lived with her father. She would later
testify she moved back in an attempt to use ICWA
to keep from having her parental rights terminated. On August
24, Mother told her younger daughter that she met someone
and was getting married. Older daughter expressed concern
to a DSS worker that Mother's new boyfriend would beat
Mother. Despite assuring her children she would not
marry until they were living with her on the reservation,
Mother married her new boyfriend in September of 2000.
Mother admitted this was "quick" and that she often
focuses more on the men in her life and places
her children "last instead of first." The children
do not know Mother's new husband. Efforts by
DSS to get Mother and children admitted into an inpatient
treatment program on the reservation were rejected by Mother in
part because it would require her to be away from
her new husband.
**12
Mother's parental rights were terminated at a final dispositional
hearing October 13, 2000. Her request for a
continuance was denied. Following filing of this order, Mother's attorney
advised the court that Mother's filed objections to the State's
proposed findings of fact and conclusions of law had included
jurisdictional issues. An evidentiary hearing on those issues
was scheduled for December 21, 2000 and the October 13,
2000 order was vacated for the limited purpose of determining
the jurisdiction of the Oglala Sioux Tribe.
**13
The tribe filed a motion to transfer jurisdiction and
dismiss the case on
December 20. It prayed the state court would
give full faith and credit to the tribal court's December
18, 2000 order accepting jurisdiction of the matter.
This motion was filed under the concurrent jurisdiction provision of
§
1911(b) of ICWA but the state court permitted oral amendment
of the motion to be filed under the exclusive jurisdiction
provision of §
1911(a) of ICWA.
**14
At the December 21 evidentiary hearing, the state court
determined the tribe did not have exclusive jurisdiction.
The court further determined that although the tribal court had
concurrent jurisdiction, good cause was shown for denying its motion
to transfer due to the advanced stage of the proceedings
at which the tribe made its request.
**15
On January 16, 2001, the court filed its final
dispositional order and findings of fact and conclusions of law
which denied the tribe's motion to transfer and reinstated the
court's previous order terminating Mother's parental rights. Mother
appeals.
ANALYSIS
AND DECISION
**16
1.
Whether the trial court erred in finding that the
Oglala Sioux *92
Tribe did not have exclusive jurisdiction of this matter.
**17
Section 1911(a) of ICWA provides that the tribe has
exclusive jurisdiction if: 1) the Indian child resides on
the reservation; 2) the Indian child is domiciled on
the reservation; or 3) the Indian child is a
ward of the tribal court. Mother asserts jurisdiction
based on the second and third
provisions of this section.
A.
Domicile
**18
In In re G.R.F.,
1997 SD 112, 569 N.W.2d 29, we held that jurisdiction under ICWA is established
as of the date the action is filed. Id.
at ¶ 19, 569 N.W.2d at 34 (citing Spear
v. McDermott,
121 N.M. 609, 916 P.2d 228, 234 (N.M.Ct.App.1996)); see
also In re Adoption of Halloway,
732 P.2d 962, 966 (Utah 1986) ("The propriety of the trial court's
assumption of jurisdiction turns on [the child's] domicile at the time
these proceedings were initiated."). In the present case, the significant
date is October 22, 1999, the date the abuse and neglect petition was
filed.
[FN3] On this date, Mother and children were living in Rapid City.
FN3.
The result is the same if we determine the effective
date to be October 19, 1999, the date the order
granting temporary custody to DSS was entered.
**19
The United States Supreme Court has held, in a
case applying ICWA, that "domicile is established by physical presence
in a place in connection with a certain state of
mind concerning one's intent to remain there." Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d
29, 46 (1989). "Since most minors are legally incapable
of forming the requisite intent to establish a domicile, their
domicile is determined by that of their parents." Id.,
490 U.S. at 46, 109 S.Ct. at 1607, 104 L.Ed.2d
29.
**20
Physical presence is established in Rapid City. The following
evidence was presented as to Mother's state of mind concerning
her intent to remain in Rapid City with her children:
Mother vacated her residence on the reservation on October
7 and moved to Rapid City, leasing a residence there;
Mother enrolled the children in the Rapid City school
system; Mother transferred her food stamp/TANF case to Rapid
City and informed her caseworker she did not have to
complete community service requirements on the reservation because she had
moved to Rapid City; and in November, Mother moved
her remaining personal belongings to Rapid City. She testified her
intent in moving was to see if the children would
receive a better education in Rapid City. There is no
indication by Mother's actions or statements of an intent that
the move was temporary.
**21
Although Mother cites to the number of years she
lived on the reservation prior to her October 7, 1999
move to Rapid City, the fact remains that she did
move, leaving her reservation residence and giving no indication of
an intent to return.
B.
Wards of the tribal court
**22
Although she testified to the contrary at the December 2000 evidentiary
hearing, Mother claims on appeal that her children remained wards of
the tribal court following that court's return of her children to her
in May 1998. The tribal court's order dated May 7, 1998 was a trial exhibit
and is part of the settled record of this case. In no way does it appear
to be anything other than a final order, returning custody to Mother,
finding her home is no longer contrary to the best interests of the children,
and releasing DSS from service and ordering that the case be closed. There
is no reference *93
to continuing jurisdiction over these children. This order stands in contrast
to the temporary custody order of a tribal court we examined in In
re D.L.L.,
291 N.W.2d 278, 282 (S.D.1980) and held to be a continuing order. Mother's
reliance on that case is misplaced.
**23
As the children were not wards of the tribal
court and were not domiciled on the reservation at the
time these proceedings were initiated, the state trial court did
not err in finding that the tribal court did not
have exclusive jurisdiction.
**24
2.
Whether the trial court abused its discretion in denying
the Oglala Sioux Tribe's motion to transfer jurisdiction to the
tribe.
**25
The trial court found that although there was concurrent jurisdiction
between the state and tribal courts, there was good cause to deny the
tribe's motion to transfer jurisdiction to the tribe because of the advanced
stage of the proceedings at the time the tribe filed its motion. By this
date, December 20, 2000, the case had already been pending for fourteen
months
and Mother's
parental rights had actually been terminated for over two months.
The tribe had had notice of these proceedings since the beginning of this
case, in October 1999. No explanation was offered in its motion to transfer
to explain why it waited until this case had been disposed of by final
order before requesting the transfer.
**26
In In
re A.L.,
442 N.W.2d 233 (S.D.1989), we quoted BIA guidelines on the
issue of what constituted good cause not to transfer, noting
that ICWA does not provide a statutory definition of "good
cause:"
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.
44
FedReg at 67591. The timeliness of a petition
language is 'designed to encourage the prompt exercise of the
right to petition for transfer in order to avoid unnecessary
delays.'
Id.
at 236. "The legislative history of the ICWA states
that the term was designed to provide state courts with
flexibility in determining the disposition of a placement proceeding involving
an Indian child." Id.
at 235 (citing SRep No.597, 95th Cong., 1stSess. 17 (1977)).
**27
In A.L.,
we held that notice by certified mail to the tribe
constituted
substantial compliance with ICWA notice requirements and that the tribe
had actual notice one year before it requested transfer.
[FN4] We held the transfer request in that case
was untimely. In In
re Wayne R.N.,
107 N.M. 341, 757 P.2d 1333 (N.M.Ct.App.1988), cited in A.L.,
a motion for transfer filed six months after notice was
received by the tribe, and on the morning of the
hearing to determine parental rights, was held to be untimely.
"[W]hether a petition is timely must be made on a
case-by-case basis." A.L.,
442 N.W.2d at 236. In neither of these
cases had the action proceeded to the stage in this
case, the entering of a final dispositional order by the
court.
FN4.
Here, too, the notice requirement of ICWA was met by
the tribe's having actual notice through certified mail, though there
is no evidence it received registered notice.
**28
The trial court did not abuse its discretion in
denying, for good cause, to transfer this matter to the
tribal court where the motion to transfer was filed fourteen
months after the tribe received notice and over two months
after a final dispositional order had been entered terminating Mother's
parental rights.
*94
**29
3.
Whether the trial court erred in finding beyond a
reasonable
doubt that serious emotional or physical damage would likely result
if the children were returned to Mother.
**30
During the pendency of these proceedings, the children were placed in
five different foster homes due to their behaviors.
[FN5] The younger child cries easily and has frequent tantrums. She has
a stealing problem and admitted to having two imaginary friends she can
call upon whenever she wants. The older daughter is intolerant of others,
refuses to apologize for anything, and tries to get others in trouble.
One foster parent noted she does not seem to have an emotional connection
with anyone and relationships are only superficial. Both girls have had
hurtful arguments with one another and have disowned each other as sisters,
deciding they do not wish to live together.
FN5.
One of these moves was an administrative decision by DSS
and not due to the girls' behaviors.
**31
Psychological evaluations on both children were completed and they
were found to have serious psychological symptoms and were diagnosed
with major depression. These symptoms and diagnoses were
determined to be consistent with an impoverished early childhood.
The younger daughter, harbors a "very negative, angry attitude
toward the environment" while the older daughter is detached
and represses her emotions. Both conditions were considered
chronic and significantly impacted the girls' psychological functioning.
Testimony was presented that both children would benefit from a
stable environment. As the conditions which led to
their removal continued to exist due to Mother's failure to
complete FSA requirements and put her children's interests ahead of
her own, the trial court did not err in finding
beyond a reasonable doubt that serious emotional or physical damage
would likely result if the children were returned to Mother.
**32
4.
Whether the trial court erred in finding beyond a
reasonable doubt that termination of Mother's parental rights was the
least restrictive alternative and in the children's best interests.
**33
We have always recognized that the needs of the children are paramount
and that their best interests must prevail. In
re A.H., 421
N.W.2d 71 (S.D.1988); In
re R.Z.F.,
284 N.W.2d 879 (S.D.1979). Mother had fourteen months to put her children's
best interests first. She admitted at the final dispositional hearing
that she often put their needs last. She demonstrated this a month before
the court terminated her parental rights by marrying a man her children
did not know after promising them she would wait until they were together
again. She did not tell DSS she was married. She did not comply with the
requirements of her FSA despite the court's repeated warnings, admonitions
and orders to do so. In short, there is no indication that
the situation existing at the time the children were removed from Mother's
custody had been alleviated or that Mother was interested in making the
permanent changes necessary for her children to be returned.
**34
The termination order is affirmed.
**35
MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and
GILBERTSON, Justices, participating.
634 N.W.2d 88, 2001 SD 105
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