#25655-a-PER CURIAM

2011 S.D. 8

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                     * * * *

              THE PEOPLE OF THE STATE OF SOUTH DAKOTA,
                  EX REL. SOUTH DAKOTA DEPARTMENT
                OF SOCIAL SERVICES, IN THE MATTER OF
                    D.W., ABUSED/NEGLECTED CHILD.

                                     * * * *

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                     JONES COUNTY, SOUTH DAKOTA

                                     * * * *

                        HONORABLE MARK BARNETT
                                Judge

                                     * * * *
MARTY J. JACKLEY
Attorney General

ANN M. HOLZHAUSER
Special Assistant Attorney General
Pierre, South Dakota                           Attorneys for appellee
                                               State of South Dakota.

ELIZABETH MARIA LORINA of
Lorina & Cesna, LLP
Rapid City, South Dakota                       Attorneys for appellant
                                               Oglala Sioux Tribe.
EMILY SOVELL
Onida, South Dakota                            Attorney for appellee
                                               Child D.W.


                                     * * * *
                                               CONSIDERED ON BRIEFS
                                               ON JANUARY 6, 2011

                                               OPINION FILED 03/02/11
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PER CURIAM

[¶1.]        The Oglala Sioux Tribe appeals the circuit court’s judgment finding

that good cause existed for placement of D.W. (Child) in an adoptive home outside

the placement preferences of the Indian Child Welfare Act (ICWA).

                       Facts and Procedural Background

[¶2.]        On August 22, 2006, the State filed a petition in Jones County alleging

that Child and his half-brother (Brother), then ages six and four months,

respectively, were abused and neglected. At the time, Child was living with Mother

and T.M., who is Brother’s father. Child and Brother were taken into protective

custody on December 1, 2006. Following a hearing, the Department of Social

Services (DSS) was granted continued temporary custody of the children.

[¶3.]        Child and Brother were initially placed in foster care with Brother’s

paternal grandparents. During the summer of 2007, Child was transported to the

home of his maternal great-aunt for respite care. Child later returned to his

Brother’s paternal grandparents to reside with Brother until a home study could be

completed on Child’s maternal great-aunt.

[¶4.]        In September 2007, the Oglala Sioux Tribe (Tribe) moved to intervene

and to transfer jurisdiction to tribal court. The circuit court granted the motion to

intervene but denied the motion to transfer. Although the motion to intervene was

granted, the Tribe stopped attending the proceedings and played no further role in

the case until July 2008.

[¶5.]        A final dispositional hearing (termination hearing) was held on

February 20, 2008. Neither Mother nor Father attended the hearing, and the court


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noted their absence in rendering its decision to terminate their parental rights. In

an oral ruling at the close of the hearing, the court found that although Father had

no “active part” in any alleged abuse or neglect, he had essentially abandoned

Child. The court observed that “even [Child], his son, who apparently has neither

heard nor seen from [Father] in the last couple of years[,] describes his situation as,

‘I don’t have a dad.’” Neither parent appealed the termination of parental rights.

[¶6.]         Following the termination hearing, DSS began searching for a

permanent placement for Child that would conform to the placement preferences of

ICWA. DSS conducted searches for relatives of Child and for Native American

families within South Dakota that might be willing to serve as a permanent

placement. DSS also placed Child’s name on the AdoptUsKids website as a means

to search for licensed families nationwide. DSS sent the Tribe a report

summarizing these search efforts.

[¶7.]         During a July 16, 2008, review hearing, the Tribe, through ONTRAC 1

Director Juanita Scherich, requested additional time to conduct its own search for

relatives and tribal members who could serve as adoptive parents for Child. The

court expressed some concern that no relatives had yet come forward to care for

Child but agreed to allow DSS and the Tribe additional time to look for a suitable

placement.

[¶8.]         Despite its thorough efforts, DSS was unable to find a relative or

Native American family who was willing to adopt Child. It did, however, find a



1.      Oglala Nation Tispaye Resources Advocacy Center. This office handles ICWA
        matters for the Tribe.

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family in Michigan (the “Michigan Couple”), who was approved for adoption by the

Michigan Indian Child Welfare Agency. One of the Michigan parents was affiliated

with the Ottawa Tribe and was active in Native American culture but was not an

enrolled member of the Tribe. Additionally, the Michigan Couple had previously

adopted four Native American children. All of the children, like Child, had special

needs but were happy and well adjusted in the home. DSS selected the Michigan

Couple as a suitable placement for Child.

[¶9.]        During an August 11, 2009, review hearing, the Tribe expressed its

concern that Father’s relatives had not been explored as a possible placement option

for Child. DSS acknowledged that, until that point, it had made no effort to explore

Father’s family because Father’s paternity had not been established. The State

contended that the circuit court had already made a factual finding that the

placement search was compliant with ICWA and argued the Tribe was now too late

to contest that finding. The State argued against any further delay in the

proceedings when a suitable placement option had already been found in the

Michigan Couple. Nevertheless, the court agreed to continue the proceedings until

Father’s family could be explored as a possible placement option.

[¶10.]       In conjunction with the search, the Tribe provided DSS with a list of

Father’s relatives and other Native American families who might be interested in

adopting Child. Only one person on the list expressed any interest in adopting

Child: Father’s live-in girlfriend (Girlfriend). DSS did not explore Girlfriend as a

placement option because Father’s parental rights had already been terminated,

and the court had made a factual finding that Father abandoned Child.


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[¶11.]       The circuit court held a hearing on March 26, 2010, to determine

whether good cause existed to place Child outside the ICWA placement preferences.

Child’s therapist, Christina Bisek, testified that Child should be placed with a

family skilled in dealing with his behavioral disorders, which included Attention

Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. Bisek also

testified she believed Child would benefit from being the youngest child in the home

as it would allow him to receive more attention from the parents. Both of these

factors favored placement with the Michigan Couple rather than with Girlfriend.

[¶12.]       The State reiterated its concerns about placing Child with a caregiver

whose parental rights had been terminated. Michael Putzier, a supervisor for DSS,

testified that, in his experience, he could not recall ever placing a child with a

parent whose parental rights had been terminated. Based on Ms. Bisek’s

conclusions and Putzier’s concerns about Father, Putzier recommended that Child

be placed with the Michigan Couple.

[¶13.]       Joseph Ashley, a DSS officer specializing in ICWA, also recommended

that the court find good cause to deviate from the ICWA placement preferences.

Ashley noted the lack of any contact or bonding between Father and Child and

indicated that Father’s actions in abandoning Child were very harmful to Child

under the culture and child-rearing practices of the Tribe. He also concluded that

Father’s actions were inconsistent with the Tribe’s concept of “tiospaye,” the

caretaking of children by extended family members within the Lakota kinship

structure. Ashley recommended placement with the Michigan Couple.




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[¶14.]       Juanita Scherich, testifying on behalf of the Tribe, stated that the

Tribe does not believe in the concept of termination of parental rights and has not

allowed for such action in its tribal court since 2005. Scherich stated her belief that

Father and Girlfriend would be an appropriate placement for Child because both

parents were employed, Girlfriend did not drink, and several of Child’s half-siblings

resided with the couple. She indicated she had not heard anything negative about

Father, although she had not conducted a home study on the proposed placement.

[¶15.]       At the conclusion of the hearing, the court found that good cause

existed to deviate from the ICWA placement preferences. The court found that

Child would likely incur substantial emotional injury if he were placed with Father

and that placement with Girlfriend would be equivalent to placement with Father.

Because neither DSS nor the Tribe had suggested another ICWA-preferred

placement option, the court found good cause to place Child outside the ICWA

placement preferences. The Tribe appeals.

                                Standard of Review

[¶16.]       This Court has not previously addressed the appropriate standard of

review for a circuit court’s finding of good cause to deviate from the ICWA

placement preferences. A majority of jurisdictions has adopted an abuse of

discretion standard. See In re Adoption of F.H., 851 P.2d 1361, 1363 (Alaska 1993);

In re Adoption of B.G.J., 133 P.3d 1, 9 (Kan. 2006); In re Custody of S.E.G., 521

N.W.2d 357, 363 (Minn. 1994); In re Adoption of M., 832 P.2d 518, 522 (Wash. Ct.

App. 1992). In B.G.J., the Kansas Supreme Court stated, “We think the use of the

term ‘good cause’ . . . was designed to provide state courts with some flexibility in


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determining the proper placement of Indian children . . . . Because flexibility

implies discretion, we will employ an abuse of discretion standard of review.” 133

P.3d at 6 (quoting In re Adoption of B.G.J., 111 P.3d 651, 656 (Kan. Ct. App. 2005)).

[¶17.]       At least one court has adopted a de novo standard of review for a

finding of good cause to deviate from the ICWA placement preferences. See In re

K.R.C., 238 P.3d 40 (Or. Ct. App. 2010). The court in K.R.C. found it had statutory

authority to exercise de novo review. Id. at 43. See Or. Rev. Stat. § 19.415(3).

South Dakota has no statute bearing any similarity to that referenced by the

Oregon court. We therefore join the majority of jurisdictions in adopting an abuse

of discretion standard of review for a circuit court’s decisions to deviate from the

ICWA placement preferences.

                               Analysis and Decision

Whether the circuit court erred in finding good cause to deviate from the ICWA
adoptive placement preferences.

[¶18.]       The Indian Child Welfare Act, 25 U.S.C. § 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.

ICWA does not define “good cause” nor does it state the burden of proof applicable

to a finding of good cause to deviate from the ICWA placement preferences.

However, the Guidelines for State Courts: Indian Child Custody Proceedings (the

“BIA Guidelines”) suggest that good cause determinations should be based on one or

more of the following considerations:



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                  (1) The request of the biological parents or the child when the
                      child is of sufficient age.
                  (2) The extraordinary physical or emotional needs of the child
                      as established by testimony of a qualified expert witness.
                  (3) The unavailability of suitable families for placement after
                      a diligent search has been completed for families meeting
                      the preference criteria.

44 Fed. Reg. 67584, ¶ F.3 (1979). This list is not considered exhaustive or binding.

In re A.L., 442 N.W.2d 233, 236 (S.D. 1989). This Court has considered factors

outside the BIA Guidelines in determining good cause in other ICWA matters. See

In re T.I., 2005 S.D. 125, ¶ 22, 707 N.W.2d 826, 835 (considering separation of

siblings); In re J.L., 2002 S.D. 144, ¶ 19, 654 N.W.2d 786, 791 (considering the best

interests of the child). Review of this issue requires that this Court first decide the

appropriate burden of proof for a finding of good cause to deviate from the ICWA

placement preferences. This Court must then determine whether the circuit court

abused its discretion in finding that burden was satisfied in this case.

Burden of Proof

[¶19.]         Throughout the proceedings, the circuit court repeatedly expressed its

uncertainty as to the burden of proof required to find good cause to deviate from the

ICWA placement preferences. 2 On appeal, the State argues that because this is a

civil action the burden should be a preponderance of the evidence, although it

concedes that some authority exists to suggest the proper burden is clear and

convincing evidence. The Tribe has not addressed this issue in its brief.



2.       Before announcing its ruling at the conclusion of the Good Cause Hearing,
         the circuit court stated that its findings of fact were made “beyond a
         reasonable doubt,” thereby assuring its findings would withstand any
         standard this Court chooses to apply.

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[¶20.]       ICWA provides burdens of proof for some determinations, but it does

not specify the burden necessary to establish good cause to deviate from its

placement preferences. See 25 U.S.C. § 1915(b). By comparison, for all foster care

placements, ICWA requires a showing of “clear and convincing evidence” that

continued custody by the Indian parent is likely to result in serious emotional or

physical abuse to the child. Id. § 1912(e). A termination of parental rights requires

a similar showing but raises the burden of proof to “beyond a reasonable doubt.” Id.

§ 1912(f).

[¶21.]       This Court has never squarely addressed this issue. We have,

however, addressed the applicable burden of proof for determinations of good cause

to deny transfer of jurisdiction to tribal court under ICWA. T.I., 2005 S.D. 125, ¶

17, 707 N.W.2d at 834. In T.I., we held that to deny transfer to tribal court, good

cause must be proven by clear and convincing evidence. Id. We noted, “In enacting

ICWA, Congress wanted to have Indian tribes determine custody issues involving

Indian children.” Id. We then held, “Considering the firm congressional intent

behind ICWA, the standard most consistent with the Act requires clear and

convincing evidence of good cause . . . .” Id.

[¶22.]       Other courts have applied the clear and convincing evidence standard

to findings of good cause to deviate from the ICWA placement preferences. In re

Custody of S.E.G., 507 N.W.2d 872, 878 (Minn. Ct. App. 1993); In re Adoption of

Baby Girl B, 2003 O.K. Civ. App. 24, ¶ 77, 67 P.3d 359, 373 (Okla. Civ. App. 2003).

In Baby Girl B, the Oklahoma court stated:

             This holding is consistent with the standard of proof applicable
             to subsequent stages where “clear and convincing” or even the

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             “beyond a reasonable doubt” standards apply. In addition, use
             of the “clear and convincing” standard will foster the policy of
             [ICWA] and the preferences stated therein and will assist with
             the effort to avoid inadvertent interjection of cultural bias into
             the proceeding.

Id. ¶ 78, 67 P.3d at 374.

[¶23.]       By contrast, it appears that only one court has applied the

preponderance of the evidence burden of proof to findings of good cause to deviate

from the ICWA placement preferences. In re Adoption of N.P.S., 868 P.2d 934, 936

(Alaska 1994) (citing In re Adoption of F.H., 851 P.2d 1361, 1363 (Alaska 1993)).

Other than referencing a state adoption statute, the Alaska court offered little

analysis for its application of the more relaxed standard. See Alaska Adoption Rule

11.

[¶24.]       The “clear and convincing” standard appears to be the better-reasoned

approach. It is consistent with both the congressional intent in adopting ICWA and

this Court’s precedent. Therefore, we conclude that deviations from the ICWA

placement preferences require a showing of good cause by clear and convincing

evidence.

Circuit Court’s Finding of Good Cause

[¶25.]       The circuit court based its finding of good cause primarily on the third

factor in the BIA Guidelines. The court found that DSS had conducted a diligent

search and no suitable ICWA-preferred placement options had been found.

Specifically, the court noted:

             Since the inception of this case in August of 2006, over three and
             a half years ago, the South Dakota Department of Social
             Services has conducted diligent searches for an adoptive
             placement within the preferences set forth in [ICWA] . . . .

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             [DSS] has made contact with the minor child’s tribe and has
             contacted known members of the child’s extended family, as
             defined by [ICWA], but has been unable to locate a suitable
             placement for the children within the preference guidelines . . . .
             The Court finds that placement of the child within the order of
             preference as set forth in [ICWA] is not available and that good
             cause exists for placement of the child with an individual or
             family outside of said order of preferences . . . .

[¶26.]       The Tribe argues that the court erred in finding DSS had conducted a

diligent search for an ICWA-preferred placement. This finding of fact is reviewed

for clear error. In re E.M., 466 N.W.2d 168, 172 (S.D. 1991). This Court must

determine “not whether it would have made the same findings the [circuit] court

did, but whether the entire evidence leaves a definite and firm conviction that a

mistake has been committed.” Id.

[¶27.]       There is ample evidence in the record to support the circuit court’s

finding that DSS was diligent in its search. In its findings of fact, the court detailed

the many steps taken by DSS in its search for a suitable adoptive placement. These

steps included numerous contacts with the Tribe’s ICWA representatives, Tribal

Social Services, and ONTRAC; investigations into several blood relatives, both

maternal and paternal; and, broad searches through the use of statewide and

nationwide resources.

[¶28.]       The Tribe argues that the DSS search was not diligent because the

Department did not conduct a home study on Girlfriend’s home. However, the

circuit court made a factual determination that a home study was unnecessary.

The court found that “DSS has appropriately not ordered a home study for

[Girlfriend] because she is the live-in girlfriend of Father . . . whose parental rights

were terminated at the disposition phase of the proceedings.” The court also noted

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that “placement with the parent whose parental rights have been terminated is not

in the child’s best interest.” The record contains sufficient evidence to support this

conclusion. The State’s ICWA expert testified that Father’s abandonment would be

harmful to Child and that his actions were inconsistent with the child-rearing

practices of the Tribe. We cannot say that the court committed clear error in

finding Girlfriend was not a suitable placement for Child.

[¶29.]       Aside from Girlfriend, neither DSS nor the Tribe located another

viable placement option within the ICWA preferences. DSS explored placement

options for over three and a half years, during which time Child was without a

permanent home environment. The circuit court was within its discretion to

determine that a diligent search had been performed and that a suitable ICWA-

preferred placement could not be found. See BIA Guidelines, 44 Fed. Reg. 67584, ¶

F.3. The court’s findings of fact support its conclusion that at least one of the

factors indicating good cause to deviate from the ICWA placement preferences

existed in this case. Therefore, the circuit court did not abuse its discretion in

finding by clear and convincing evidence that good cause existed to place Child

outside the ICWA placement preferences.

[¶30.]       Affirmed.

[¶31.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,

MEIERHENRY, and SEVERSON, Justices, participating.




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