|
(Cite
as: 768 N.W.2d 168) |
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota in the Interest of J.I.H. and J.I.H.,
Children and Concerning, M.D., Respondent,
and
J.I.H.,
Respondent and Appellant,
Cheyenne
River Sioux Tribe, Intervenor.
No.
24996.
Considered
on Briefs May 26, 2009.
Decided
July 1, 2009.
Rehearing
Denied Aug. 20, 2009.
*169
Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney
*170
General, Pierre, South Dakota, Attorneys for appellee, State.
Jeremiah
J. Davis, Pennington County Public Defender's Office, Rapid City, South Dakota,
Attorneys for appellant, Father J.I.H.
SEVERSON,
Justice.
[?
1.] The trial court terminated Father's parental rights to his two children. He
appeals. We reverse in part and affirm in part.
FACTS
[?
2.] This appeal concerns the termination of only Father's parental rights.
Mother and Father are Cheyenne River Sioux Tribe (CRST) members, and have two
children together. The children are eligible for enrollment in the
tribe.
[?
3.] On September 29, 2007, Son and Daughter, then ages fourteen months and
thirty-two months, respectively, were removed from Mother's care after law
enforcement officers responded to the home. Mother was intoxicated and the
children were filthy. The home was also filthy and drug paraphernalia was
present. Mother was arrested on several charges, and the children were placed in
protective custody with the Department of Social Services (DSS). Father was
incarcerated at the time. He was serving consecutive sentences for simple
assault/
[?
4.] DSS was granted temporary custody of the children on October 1, 2007, and a
petition alleging the children were abused and neglected was filed on October 5,
2007.FN1
Mother later admitted to the petition, while Father denied it. The children were
initially placed in foster care. In mid-October 2007, they were placed with
their maternal grandmother (Grandmother), and remained in her care until
February 8, 2008, at which time Grandmother requested the children be removed
because she was ?overwhelmed.? Grandmother was a registered nurse who worked
nights, and, at the time, had two other grandchildren, as well as her youngest
daughter who was pregnant, in her home. Son and Daughter were removed and
remained in foster care for the balance of the proceedings.
FN1.
Notice of the petition as well as additional notices throughout the proceedings
were sent to the CRST. The tribe made an oral motion to intervene on October 30,
2007. However, as of May 6, 2008, the date of the final dispositional hearing,
no motion to transfer the case to tribal court had been filed.
[?
5.] An adjudicatory hearing concerning Father was held on January 16, 2008.
Father admitted he was incarcerated at the time the children were taken into
protective custody, thereby leaving the children without his care and
supervision. The trial court adjudicated the children neglected pursuant to SDCL
26-8A-2 due to the actions and/
[?
6.] The final dispositional hearing was held on May 6, 2008. Only two witnesses
testified: Sarah Trimble, the DSS family services specialist assigned to this
family; and Luke Yellow Robe, who testified on behalf of the State as the Indian
Child Welfare Act (ICWA) expert.
[?
7.] Trimble explained that at the inception of this case, the main safety
concern with regard to Father was his inability to care for the children due to
his incarceration. Trimble first met with Father in December 2007, but did not
begin taking the children to visit Father in jail until February 2008 because
until then they were placed with Grandmother. *171
Trimble indicated that at the first visit the children did not know Father, and
interaction between the children and Father was ?very reserved.? Overtime,
however, the interaction increased from the children playing by themselves with
Father watching to Father actually playing and engaging with the children.
Trimble testified that Father's interactions with the children were always
appropriate during the visits.
[?
8.] Trimble testified that due to Father's incarceration, the services she could
offer Father were limited. Moreover, the services that could be provided in the
county jail were more limited than the services provided in the state
penitentiary. In addition to arranging visitation, Trimble assisted Father with
case planning and relative searches to facilitate a family placement. Father did
not receive any sort of parenting instruction from DSS until March 17, 2008.
Because Father was not going to be released from jail until December 2008 and
several issues would need to be dealt with thereafter, Trimble testified it
could possibly be an additional year or two before Father could be available to
parent the children.
[?
9.] Trimble testified that Grandmother had reconsidered and showed interest in
being a long-term placement for the children. Grandmother's sister in Washington
also expressed interest as a placement option for the children. In addition,
Grandmother's home study to be a foster care provider had been approved, and her
final requirement to be a licensed foster care provider was completion of Pride
classes.
[?
10.] Ultimately, Trimble recommended Father's parental rights be terminated, in
an effort to provide permanency and stability in the children's lives. She
testified that, in her opinion, ?adoption with a relative would probably be [the
children's] best opportunity to lead a normal, healthy life.?
[?
11.] Yellow Robe, a member of the Sicagu Lakota Rosebud Sioux Tribe, also
testified. He testified as the ICWA expert on behalf of the State. Yellow Robe
is a private consultant who previously served for twelve years as the Cultural
Relations Director for the Children's Home Society. Prior to that, he served as
a law enforcement officer for eleven years. For nine of those years, he was a
school liaison officer for a school with a student body composed of more than
fifty percent Indians.
[?
12.] Yellow Robe testified to his knowledge of the CRST, including an
explanation of the similarities and differences between the Rosebud Sioux Tribe
and the CRST. He testified that the child-rearing practices between the two
tribes were similar in nature. He further explained some of the resources
available to parents on the CRST reservation.
[?
13.] Yellow Robe explained his familiarity with ICWA and identified its purpose
and various requirements. He had previously been qualified to testify as an ICWA
expert in 50 to 60 cases. When questioned by Father's counsel to specify the
placement hierarchy for Indian children, Yellow Robe indicated that immediate
family members were first priority, but admitted that he could not articulate
the specific hierarchy set forth in the Act. With regard to counsel's question
concerning the State's standard of proof under ICWA, Yellow Robe noted that the
State was required to show that all efforts have been exhausted on behalf of the
Indian family, but stated he was unable to quote specific language from the Act.
Based on this testimony, counsel for Father and counsel for the children
objected to Yellow Robe testifying as an ICWA expert. The trial court overruled
the objection and allowed him to provide expert testimony.
*172
[? 14.] Based on his review of the report to the trial court, the protective
capacity assessments, and Trimble's testimony, Yellow Robe testified that the
least restrictive alternative available and the children's best interests
required termination of Father's parental rights. He initially testified that,
in his opinion, DSS employed active efforts to reunite the children with their
parents. However, on cross-examination, he admitted that failure to provide
Father with visitation and parenting information for five months was not active
efforts. Moreover, he stated that ?about all [DSS] could do ... was ... abide by
what the rules are at the jail. Visitations were provided to the father every
week. And that was really about it for ... the father of these children.? In
response to the question whether it was premature to terminate parental rights,
he stated, ?Not on mom, but maybe the father.? He noted that further efforts
could still be made to provide assistance to Father, especially in view of his
recent progress.
[?
15.] Ruling from the bench, the trial court terminated both parents' rights.
Father appeals this decision, as well as the court's decision to qualify Yellow
Robe as an ICWA expert.
ANALYSIS
& DECISION
[?
16.] 1.
Whether the trial court erred in finding beyond a reasonable doubt that
termination of Father's parental rights was the least restrictive alternative
and in the children's best interests.
[?
17.] It is undisputed that ICWA applies in this case. The declared policy of
ICWA is
to
protect the best interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of minimum Federal
standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the
unique values of Indian culture, and by providing for assistance to Indian
tribes in the operation of child and family service programs.
25
USCA 1902. In pertinent part, ICWA instructs that ?[n]o termination of parental
rights may be ordered in such proceeding in the absence of a determination ...
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 USCA
1912(f). This must be proven beyond a reasonable doubt. Id.
ICWA additionally requires the State to show it made active efforts to prevent
the breakup of the Indian family. In this regard, ICWA 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.
25
USCA 1912(d). This Court has held that the standard of proving active efforts is
similarly beyond a reasonable doubt. In
re E.M.,
466 N.W.2d 168, 172 (S.D.1991) (citing In
re S.R.,
323 N.W.2d 885, 887 (S.D.1982)).
[?
18.] In terminating Father's rights, the trial court found beyond a reasonable
doubt that DSS ?made reasonable and active efforts to provide remedial services
designed to prevent the break-up of the Indian family and to reunite the
children with the ... parents? and that these efforts failed. The court agreed
that parenting information should have been provided *173
to Father sooner, but found that Father's ?voluntary act of simple assault, and
then of walking away from work release led to the incarceration that renders him
unavailable to provide for the mental, financial, emotional and spiritual
well-being of his children.? Ultimately, it found that ?the least restrictive
alternative available in the minor children's best interest is for the parents'
rights to be terminated[.]?
[1]
[? 19.] On appeal, the trial court's findings are reviewed under a clearly
erroneous standard of review. In
re B.S.,
1997 SD 86, ? 13, 566 N.W.2d 446, 449. ?[T]he question before this [C]ourt is
not whether it would have made the same findings the trial court did, but
whether the entire evidence leaves a definite and firm conviction that a mistake
has been committed.? In
re D.H.,
354 N.W.2d 185, 188 (S.D.1984) (citations omitted).
[?
20.] Father contends the trial court erred in finding that the State met its
burden of proving DSS employed active efforts and that these efforts failed. His
argument is premised on the belief that termination of his rights was premature.
Father's supervised visitation began February 25, 2008. A mere twenty-one days
later on March 17, 2008, the State requested a final dispositional hearing. The
dispositional hearing was held on May 6, 2008. Between February 25 and May 6,
Father had, at most, eleven one-hour visits with his children. Even in this
short period of time, however, Trimble testified that a recognizable bond
developed between Father and the children. The interaction between Father and
the children improved with each visitation, and Father's interactions with the
children were always appropriate. We recognize that Father's incarceration
limited the efforts DSS could employ in attempting to satisfy the required
standard of active efforts to rehabilitate the family. See
In
re D.G.,
2004 SD 54, ? 17, 679 N.W.2d 497, 502. Importantly, the concept of ?active?
efforts pursuant to ICWA is distinguished from ?reasonable? efforts, as required
by the Adoption and Safe Families Act (ASFA). See
In
re J.S.B., Jr.,
2005 SD 3, ? 17, 691 N.W.2d 611, 617.
A
... distinction between [ICWA and ASFA] ... is the requirement in ICWA that
state agencies make ?active? efforts to provide services aimed at the prevention
of a family breakup. ICWA provides no exception to this mandate. On the other
hand, in an attempt to assist states in increasing the speed with which children
might achieve the desired goal of permanency, ASFA recognizes certain
circumstances under which no ?reasonable efforts? may be necessary. ASFA
relieves states from making merely perfunctory remedial efforts in cases where a
court has found that the parent has subjected the child to aggravated
circumstances of abuse or neglect.
Id.
But here we need not determine whether DSS's efforts satisfied the ?active
efforts? requirement because there was no evidence that DSS's efforts were
unsuccessful
or that they failed,
even though they were limited by Father's incarceration.FN2
In fact, the evidence demonstrated *174
that the visitation and parenting information were beneficial to reuniting this
family and fostering healthy relationships.FN3
FN2.
This case is distinguishable from the facts of In
re J.S.B., Jr.,
2005 SD 3, 691 N.W.2d 611, where the evidence demonstrated that DSS's efforts
were, in fact, unsuccessful. In J.S.B.,
Jr.,
the father's whereabouts were initially unknown and therefore DSS remedial
services and rehabilitative programs could not be offered. Id.
? 25. After it was discovered that the father was incarcerated, the DSS
caseworker offered him a Family Service Agreement, which he, at first, refused
to sign because it required him to undergo a chemical dependency evaluation and
follow its recommendation. Id.
? 26. The father denied having a problem with alcohol. Id.
Furthermore, only ten days after being released from jail, the father appeared
at a review hearing on this case and was intoxicated. Id.
? 27. He began an outpatient treatment program the following month, but failed
to complete it. Id.
The record reflected that the father continued to consume alcohol and did so the
Friday before the final dispositional hearing. Id.
Clearly, DSS's efforts proved to be unsuccessful. See
id.
FN3.
Trimble opined that father's parental rights should be terminated in an effort
to provide stability and permanency in the children's lives. ICWA and ASFA have
different priorities. As this Court previously stated:
ICWA
differs from ASFA in its means of promoting Indian children's best interests.
ICWA ensures the best interests of Indian children by maintaining their
familial, tribal, and cultural ties. It seeks to prevent capricious severance of
those ties, whereas ASFA identifies permanency as a major consideration in
promoting the best interests of children.
J.S.B.,
Jr.,
2005 SD 3, ? 17, 691 N.W.2d at 617. Importantly, ASFA does not override, or
otherwise modify ICWA, and, when applicable, ICWA trumps ASFA. Id.
?? 18-23.
[2][3]
[? 21.] Father also maintains that the court's decision to terminate his rights
was clearly erroneous because ?less restrictive alternatives had not been fairly
considered, much less exhausted.? This Court is ?acutely aware that termination
of parental rights is a drastic, final step that should be exercised with great
caution.? In
re B.E.,
287 N.W.2d 91, 95 (S.D.1979). In terminating a parent's rights, the trial court
must find that it is in the children's best interest and that no narrower means
of providing for their best interests and welfare existed. In
re J.Z.,
410 N.W.2d 572, 574 (S.D.1987) (citations omitted).
[4][5]
[? 22.] The trial court's finding that termination of Father's rights was the
least restrictive alternative and in the children's best interests hinged on
Father's incarceration. We recognize that ?when assessing what options are
available to prepare the parent for the return of a child, incarceration narrows
the available options.? D.G.,
2004 SD 54, ? 17, 679 N.W.2d at 502. Nonetheless, ?[t]he decision to terminate
requires evidence of sufficient magnitude to convince the trial court that the
best interests of the children require
the breakup of the family unit.? In
re S.S.,
334 N.W.2d 59, 61 (S.D.1983) (emphasis added). ?If, on a review of the record,
it appears that the state's compelling interest in the well-being and welfare of
the children can reasonably be [e]nsured by less intrusive means, we must order
that those alternatives first be implemented.? S.R.,
323 N.W.2d at 888.
[?
23.] The record indicates that Grandmother was willing to be a long-term
placement option for these children. Her home study had been approved, and only
one final requirement remained for her to become a registered foster care
provider. Grandmother's sister also showed interest in being a placement option.
Neither of these two possibilities was explored. Father was scheduled for
release from jail in December 2008, which was seven months away from the date of
the dispositional hearing. Due to his limited incarceration period, legal
guardianship would have been a less restrictive alternative until Father was
able to care for his children.
[?
24.] Notably, the children's attorney did not advocate for termination of
Father's rights, and it cannot be ignored that the ICWA expert testified that
termination of Father's parental rights, at that time, was premature. We agree.
Based on the circumstances of this case, the trial court *175
erred in terminating Father's parental rights.
[?
25.] 2.
Whether the trial court erred in allowing Luke Yellow Robe to testify as an ICWA
expert.
[6][7][8]
[? 26.] ?[T]he trial court is always vested with the sound discretion to decide
whether a witness meets the foundational requirements for testifying as an
expert.? In
re T.I.,
2005 SD 125, ? 32, 707 N.W.2d 826, 838. See
also D.G.,
2004 SD 54, ? 12, 679 N.W.2d at 501 (citation omitted). ?A trial court's rulings
in this area will be disturbed on appeal only if its discretion was clearly
abused.? Id.
[?
27.] ICWA 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.
25
USCA 1912(f) (emphasis added). ?The underlying task of the expert's testimony in
ICWA cases is to provide the court with an understanding of the social and
cultural aspects of Native American families and the childrearing practices of
the child's tribe.? In
re O.S.,
2005 SD 86, ? 8, 701 N.W.2d 421, 425.
[?
28.] With regard to its decision to qualify Yellow Robe as an ICWA expert, the
trial court found he ?possess[ed] the requisite skills, training and expertise
to qualify as an expert regarding the delivery of child protection services in
this case.? This finding is supported by the record. Father failed to show the
trial court abused its discretion by qualifying Yellow Robe as an expert
witness. The trial court is affirmed on the second issue.
[?
29.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices,
concur.