S.D. Codified Laws § 26-7A-15.1

South Dakota Codified Laws

Title 26. Minors

Chapter 26-7A. Juvenile Court

§ 26-7A-15.1. Proceedings under certain chapters to which the Indian Child Welfare Act applies--Procedures

In any proceeding under chapters 26-7A, 26-8A, or 26-8B, to which the terms of the "Indian Child Welfare Act", 25 U.S.C. § 1901 et seq., as amended to January 1, 2005, apply:

(1) If the state's attorney knows or has reason to know that an Indian child is involved, the state's attorney shall notify the parent or Indian custodian and the Indian child's tribe, if known, of the pending proceedings and of their right of intervention. The notice shall be sent by registered mail with return receipt requested but may be personally served on any person entitled herein to receive notice in lieu of mail service. If the identity or location of the parent or Indian custodian and the Indian child's tribe cannot be determined, the notice shall be given to the United States Secretary of the Interior and to the area director for the Bureau of Indian Affairs in like manner, who have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe;

(2) The state's attorney shall provide such notice prior to any adjudicatory hearing and prior to any final dispositional hearing in which the state seeks termination of parental rights of one or both parents or termination of the rights of the Indian custodian. However, upon intervention, the parent, tribe, or Indian custodian is entitled to notice in the manner authorized by the Rules of Civil Procedure and chapters 26-7A and 26-8A;

(3) The court shall establish in the record that a notice of the proceeding was provided as required in this section. No foster care placement or termination of parental rights proceedings may be held until at least ten days after receipt of the foregoing notice by the parent or Indian custodian and the tribe or the Secretary. The parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for the proceeding;

(4) The notice required in this section shall be written in clear and understandable language and shall include the following:

(a) The name and tribal affiliation, if known, of the Indian child;

(b) A copy of the petition unless the notice is served by publication pursuant to § 26-7A-48;

(c) The name and address of the state's attorney;

(d) A statement listing the rights of the Indian child's parents, Indian custodians, and tribes, under the Indian Child Welfare Act, 25 U.S.C. § 1901, et. seq., as amended to January 1, 2005, including:

(i) The right of a Indian custodian or the Indian child's tribe to intervene in a proceeding for the foster care placement of, or termination of parental rights to, the Indian child;

(ii) The right to file a motion to transfer the proceeding to the tribal court of the Indian child's tribe;

(iii) The right to be granted up to twenty days from the receipt of the notice to prepare for the proceeding; and

(iv) The right to request that the court grant further extensions of time;

(e) If the petition alleges the child to be an abused or neglected child, a statement that the termination of parental or custodial rights is a possible remedy under the proceedings;

(f) A statement that if the Indian child's parents or Indian custodian are unable to afford counsel, counsel may be appointed to represent them;

(g) A statement in the notice to the tribe that the information contained in the notice, petition, pleading, or other documents are confidential; and

(h) The location, mailing address and telephone number of the court.

The original or a copy of each notice sent pursuant to this section shall be filed with the court together with any return receipts or other proof of service;

(5) Each party may examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.

As used in this section, the terms, Indian, Indian child, parent, Indian custodian, tribe, Indian child's tribe, foster care placement, termination of parental rights, and secretary, are defined as in 25 U.S.C. § 1903, as amended to January 1, 2005.

Source: SL 2005, ch 139, § 2.