#25423, #25466, #25503, #25559-dismissed-PER CURIAM

2010 SD 59

                        IN THE SUPREME COURT
                                OF THE
                       STATE OF SOUTH DAKOTA

                                 * * * *

                                 #25423

                   IN THE MATTER OF B.C. AND I.C.,
               ALLEGED ABUSED/NEGLECTED CHILDREN.

                                 * * * *

                  APPEAL FROM THE CIRCUIT COURT
                  OF THE SECOND JUDICIAL CIRCUIT
                 MINNEHAHA COUNTY, SOUTH DAKOTA

                                 * * * *

                 HONORABLE KATHLEEN K. CALDWELL
                          Presiding Judge

                                 * * * *

                                 #25466

                IN THE MATTER OF S.W., N.S., N.H. JR.,
       N.H. AND A.H., ALLEGED ABUSED/NEGLECTED CHILDREN.

                                 * * * *

                  APPEAL FROM THE CIRCUIT COURT
                  OF THE SECOND JUDICIAL CIRCUIT
                 MINNEHAHA COUNTY, SOUTH DAKOTA

                                 * * * *

                 HONORABLE KATHLEEN K. CALDWELL
                          Presiding Judge

                                 * * * *
                                    #25503

                          IN THE MATTER OF D.J.,
         D.R. AND F.R., ALLEGED ABUSED/NEGLECTED CHILDREN.

                                    * * * *

                   APPEAL FROM THE CIRCUIT COURT
                   OF THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    * * * *

                     HONORABLE ROBIN J. HOUWMAN
                                Judge

                                    * * * *

                                    #25559

  THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF
     K.E., CHILD AND CONCERNING C.E. AND A.T., RESPONDENTS.
                ROSEBUD SIOUX TRIBE, INTERVENER

                                    * * * *

                    APPEAL FROM THE CIRCUIT COURT
                   OF THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                    * * * *

                            HONORABLE JEFF W. DAVIS
                                 Presiding Judge

                                    * * * *

NICOLE J. LAUGHLIN
Office of the Minnehaha
  County Public Defender                  Attorneys for appellant mother L.S.
Sioux Falls, South Dakota                 #25423


STACY F. KOOISTRA
Myers & Billion LLP                       Attorneys for appellant mother N.S.
Sioux Falls, South Dakota                 #25466
AMBER EGGERT
Office of the Minnehaha
  County Public Defender              Attorneys for appellant mother L.B.S.
Sioux Falls, South Dakota             #25503


PAUL JOHN BRANKIN
Dakota Plains Legal Services          Attorneys for appellant mother C.E.
Rapid City, South Dakota              #25559


ANN M. HOLZHAUSER
KIRSTEN E. JASPER
JEREMY LUND
Assistant Attorney’s General
Department of Social Services         Attorneys for appellee State of South
Pierre, South Dakota                  Dakota.


CYNTHIA A. HOWARD
Minnehaha County Office
  of the Public Advocate              Attorneys for appellee children.
Sioux Falls, South Dakota             #25466


JANET OLSON
Minnehaha County Office
  of the Public Advocate              Attorneys for appellee children.
Sioux Falls, South Dakota             #25503




                                * * * *


                                      CONSIDERED ON BRIEFS
                                      JUNE 10, 2010

                                      OPINION FILED 07/14/10
#25423, #25466, #25503, #25559

PER CURIAM

[¶1.]        Pending before this Court are motions to dismiss in four abuse and

neglect appeals. The Indian Child Welfare Act (ICWA) applies to these proceedings.

In each instance, a parent appeals termination of parental rights. Although a Tribe

intervened in each case at the circuit court level, none of the appealing parents

served a notice of appeal on the intervening Tribe. The State contends that this

failure to serve a notice of appeal requires dismissal.

                               Analysis and Decision

[¶2.]        The question we must answer is whether failure to serve an

intervening Tribe with a notice of appeal is jurisdictionally fatal. SDCL 15-26A-4

provides:

             An appeal, permitted by § 15-26A-3 as of right shall be taken as
             follows: . . . (3) Service of the notice of appeal and docketing
             statement. The appellant, or his or her counsel, shall serve the
             notice of appeal and docketing statement on counsel of record of
             each party other than appellant, or, if a party is not represented
             by counsel, on the party at his or her last known address.

[¶3.]        Recently, this Court examined the consequence of failing to serve a

notice of appeal on a party. In re Reese Trust, 2009 SD 111, 776 NW2d 832. Reese

involved a trustee who petitioned the circuit court to assume supervision of a trust

and wind up its affairs. Id. at ¶ 3. As part of the petition, the trustee asked the

court to distribute the trust assets to the Foundation. Id. The qualified charitable

organization’s board of directors requested that the assets be distributed to a

specific club rather than to the Foundation. Id. A hearing was held on the petition,

after which the circuit court ordered that the trust assets be distributed to the

Foundation. Id. at ¶ 4. The Board appealed, but failed to serve the Foundation
#25423, #25466, #25503, #25559

with its notice of appeal. Id. The trustee moved to dismiss the appeal. Id. After

reviewing previous decisions on the issue, we held that failure to serve the

Foundation with the notice of appeal required dismissal of the appeal. Id. at ¶ 17.

[¶4.]        In Reese, the Foundation was not an original party to the action and

did not participate in the trial. Id. at ¶ 14. But this did not exclude the Foundation

from being a “party entitled to service.” Id. at ¶¶ 14-16. Here, the respective

Tribe’s participation in the lower court proceedings was varied and uncertain, other

than filing a motion to intervene. Yet even if the intervening Tribe participated no

further than to intervene, that is not dispositive. See id. at ¶ 15. We have explicitly

overturned those cases holding that a party must participate in the trial to be

entitled to service of the notice of appeal. See Morrell Livestock Co. v. Stockman’s

Comm’n Co., 77 SD 114, 119, 86 NW2d 533, 536 (1957).

[¶5.]        In Reese, we examined the substantive law of trusts for assistance in

determining the parties entitled to service. The ICWA allows Tribes to intervene in

certain child custody proceedings involving Indian children. “In any State court

proceeding for the foster care placement of, or termination of parental rights to, an

Indian child, the Indian custodian of the child and the Indian child’s tribe shall

have a right to intervene at any point in the proceeding.” 25 USCA § 1911(c).

[¶6.]        The cases interpreting the ICWA are silent on this precise issue.

Commentators writing on the ICWA, however, appear to suggest that notice of

appeal should be served on the Tribe. “Once a tribe intervenes, it becomes a party

to the case and is entitled to receive service of all motions and pleadings from that

point forward.” B.J. Jones, The Indian Child Welfare Act Handbook 55 (Section of


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#25423, #25466, #25503, #25559

Family Law, American Bar Association 1995). No authority was cited for this

proposition, nor was it suggested that failure to serve an intervening Tribe with a

notice of appeal is a jurisdictional defect. Discussing the notice required to be given

the Tribe at the adjudicatory and dispositional phases, a South Dakota

commentator stated: “[o]bviously, if a party responds to either notice, notice should

be given of all further proceedings to that party.” Roger A. Tellinghuisen, The

Indian Child Welfare Act of 1978: A Practical Guide with [Limited] Commentary,

34 SD L Rev 660, 673 (1988-89). It is clear that a Tribe is permitted to intervene “at

any point in the proceeding.” What is unclear is exactly what status is granted to a

Tribe by intervening, and more precisely, whether that status requires service of a

notice of appeal. 1 The answer is not apparent in ICWA jurisprudence.




1.    This Court has indicated that intervention will not necessarily grant the
      intervenor the status of an original party.
             However, by granting Butler’s motion to intervene, we allowed
             his “voice . . . to be heard” by this Court. Federal Deposit Ins.
             Corp. v. United States, NoCV-96-98-ST, 1997 WL 214954, at *6
             (DOr Jan. 3, 1997) (stating “[i]ntervention allows the third voice
             of the intervenor to be heard by the court and binds the
             intervenor to the judgment”). See also Kirkland v. New York
             State Dep’t of Correctional Services, 711 F2d 1117, 1128 (2dCir
             1983) (stating that intervenor’s interest entitled the intervenor
             to be heard, but was not such a strong interest to require
             consent to the agreement). However, allowing him to intervene
             in the action did not necessarily grant him the right, as he
             claims, to prevent dismissal of the action. An intervenor’s
             presence in the action does not necessarily “clothe it with the
             status of an original party.” Harris v. Amoco Prod. Co., 768 F2d
             669, 675 (5thCir 1985). See also Kirkland, 711 F2d at 1126
             (citation omitted) (stating that, even if an intervenor is granted
             unconditional intervention, the intervenor’s rights are “not
             necessarily equivalent to that of a party”).

                                                            (continued . . .)
                                        -3-
#25423, #25466, #25503, #25559

[¶7.]        The South Dakota statute on intervention provides:

             Upon timely application anyone shall be permitted to intervene
             in an action: (1) When a statute of the state confers an
             unconditional right to intervene; or (2) When the applicant
             claims an interest relating to the property or transaction which
             is the subject of the action and he is so situated that the
             disposition of the action may as a practical matter impair or
             impede his ability to protect that interest, unless the applicant’s
             interest is adequately represented by existing parties.

SDCL 15-6-24(a). The ICWA grants a child’s Tribe the ability to intervene as a

matter of right. The State argues that this requires a determination that each

Tribe be treated as a real party to the action. In support, the State offers the

following language: “By intervening as a matter of right under SDCL 15-6-24(a),

Intervenor became a real party to the action. As such it became entitled to all the

rights, benefits, and privileges of the originally named parties.” Steiner v. County

of Marshall, 568 NW2d 627, 635 (SD 1997) (Miller, C.J., concurring) (citation

omitted). Steiner involved a dispute over real property. Id. Immediately before the

above-quoted language, the concurrence cited the relevant portion of the statute as

allowing intervention as a matter of right when “the applicant claims an interest in

the property or transaction. . . .” Id. (quoting SDCL 15-6-24(a)(2)). No party

suggests that tribal intervention was premised on this portion of the statute. The

language offered by the State does not control this issue.




________________________
(. . . continued)
         Citibank (South Dakota), N.A. v. South Dakota, 1999 SD 124, ¶ 11, 599
         NW2d 402, 405.



                                        -4-
#25423, #25466, #25503, #25559

[¶8.]         When discussing whether an intervenor is authorized to appeal,

commentators look to the interest of the intervenor. “At the heart of almost every

intervention case is the nature and extent of the applicant’s interest in the

proceeding.” David L. Shapiro, Some Thoughts on Intervention Before Courts,

Agencies, and Arbitrators, 81 Harv L Rev 721, 729 (1968). “An appeal will be

allowed, however, only if the subsequent orders affect the intervenor and only to the

extent of the interest that made it possible for the intervention.” Charles Alan

Wright & Arthur R. Miller, Mary May Kane, 7C Federal Practice and Procedure,

Civil 3d § 1923, at 644 (2007).

[¶9.]         Looking to the interest of an intervening Tribe is consistent with our

decision in Reese. There, we relied on previous South Dakota authority examining

the interest of the party not served with the notice of appeal. Reese, 2009 SD 111, ¶

15, 776 NW2d at 836. “We found it significant that the judgment appealed from in

Morrell vested rights in the party not served and held that the party was entitled to

rely upon those rights and that they should not be taken away without notice.” Id.

(citing Morrell, 77 SD at 119, 86 NW2d at 536). In Reese, the party who was not

served with the notice of appeal was awarded the trust assets by the circuit court.

Id. at ¶ 4.

[¶10.]        Our holding in Reese relied upon the vested interest of the unnoticed

party for requiring service of the notice of appeal on that party.

              The final judgment of the circuit court distributing the trust
              assets to the foundation vested rights in that organization that
              cannot be denied without notice, regardless of its failure to
              appear in the action or suit before the circuit court. Having
              failed to timely serve all parties entitled to service of its notice of
              appeal, the [Board’s] appeal must be dismissed.

                                          -5-
#25423, #25466, #25503, #25559


Id. at ¶¶ 16-17. Like the Foundation in Reese, the intervening Tribes have

compelling interests in the outcome of the pending appeals. As recognized by

this Court:

              Congress established ICWA to not only protect the interests of
              Indian children but also to avoid a considerable weakening of
              “the tribe’s ability to assert its interest in its children.”
              Mississippi Band of Choctaw Indians v. Holyfield, 490 US 30,
              52, 109 SCt 1597, 104 LEd2d 29 (1989) (citing In re Adoption of
              Halloway, 732 P2d 962, 969-970 (Utah 1986)) (emphasis added).
              “The ICWA thus, in the words of the House Report
              accompanying it, ‘seeks to protect the rights of the Indian child
              as an Indian and the rights of the Indian community and tribe in
              retaining its children in its society.’” Id. at 37, 109 SCt 1597.
              (emphasis added). This is because:

                    The protection of this tribal interest is at the core of
                    the ICWA, which recognizes that the tribe has an
                    interest in the child which is distinct from but on a
                    parity with the interest of the parents. This
                    relationship between Indian tribes and Indian
                    children domiciled on the reservation finds no
                    parallel in other ethnic cultures found in the
                    United States.

              Id. at 52, 109 SCt 1597 (quoting In re Adoption of Halloway, 732
              P2d at 969-70).

People ex rel. M.H., 2005 SD 4, ¶ 14, 691 NW2d 622, 627.

[¶11.]        The State has the burden of establishing facts to support its motions to

dismiss. See Carlton v. Saville, 55 SD 87, 224 NW2d 957, 959 (1929). Considering

the congressionally-recognized tribal interest in Indian children manifest in the

ICWA, we conclude that the State has met its burden of establishing the Tribes as




                                         -6-
#25423, #25466, #25503, #25559

parties “entitled to service” in accord with Reese. Therefore, we grant the motions

to dismiss. 2

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

MEIERHENRY, and SEVERSON, Justices, participating.




2.       Our decision should not be read to condone the State’s careless practice in
         failing to include the intervening Tribes on the certificates of service of the
         notice of entry of orders.

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