#27864, #27999-r-DG
2017 S.D. 30

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA


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                  The People of the State of South Dakota in the
            interest of A.O., V.O., and C.O., Children, and Concerning
                 V.S.O., Respondent, C.G., Indian Custodian and
                       OGLALA SIOUX TRIBE, Intervener.

                                      ****

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

                       HONORABLE ROBERT MANDEL
                                Judge


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CONOR DUFFY of
Pennington County Public
 Defender’s Office
Rapid City, South Dakota                          Attorneys for appellant Mother
                                                  V.S.O.


JOSEPH N. THRONSON
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota                              Attorneys for appellee State of
                                                  South Dakota.




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                                                  CONSIDERED ON BRIEFS
                                                  ON APRIL 24, 2017
                                                  OPINION FILED 05/24/17
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GILBERTSON, Chief Justice

[¶1.]         Law enforcement removed A.O., V.O., and C.O. (the Children) from the

home of their mother, V.S.O. (Mother), after discovering methamphetamine and

drug paraphernalia in the home. More than one year after the State initiated

abuse-and-neglect proceedings against Mother, who is an enrolled member of the

Oglala Sioux Tribe (the Tribe), the circuit court denied motions to transfer the case

to the jurisdiction of the Tribe. Mother argues that the circuit court erred by

denying the motions without holding an evidentiary hearing. We reverse and

remand.

                            Facts and Procedural History

[¶2.]         On November 23, 2014, Rapid City Police responded to a call reporting

that A.O. had fallen and sustained a neck injury at Mother’s residence. 1 While

checking on the child, who was in Mother’s bedroom, officers noticed drug

paraphernalia, including a pipe. The pipe tested positive for methamphetamine.




1.      Mother was not the legal custodian of the Children at the time. The State of
        Nebraska previously took the Children into custody in January 2012. In May
        2013, the Tribe requested the proceedings be transferred to its jurisdiction,
        and Nebraska obliged. The Tribe subsequently awarded custody to the
        Children’s great-grandmother, C.G. (Great-Grandmother). The Children’s
        father’s parental rights have previously been terminated. At the time of the
        November 23, 2014 call, Great-Grandmother had temporarily returned the
        Children to Mother. Great-Grandmother subsequently informed the South
        Dakota Department of Social Services that she is no longer able to care for
        the Children.


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Mother also provided a urine sample, which tested positive for both

methamphetamine and marijuana. 2

[¶3.]         The same day, the State asked the circuit court to award temporary

custody of the Children to the South Dakota Department of Social Services (the

Department). The court granted the request. The Tribe was given timely notice

and intervened. On December 18, 2014, the State filed a petition alleging the

Children were abused or neglected. The court held an advisory hearing on

December 29, during which it appointed one attorney to represent the interests of

the Children and another to represent their legal guardian, Great-Grandmother. At

an adjudicatory hearing on February 18, 2015, Mother and Great-Grandmother

admitted to portions of the petition.

[¶4.]         The Department evaluated Mother’s ability to care for the children and

worked with her to develop a case plan. As part of the case plan, the Department

required Mother to: (1) maintain stable housing and employment, (2) complete a

chemical-dependency evaluation and follow all resulting recommendations, (3)

complete family therapy, and (4) maintain sobriety and complete regular urinalyses.

After review hearings on April 6, June 1, and July 27, 2015, the Department was

not satisfied with Mother’s progress. At the following review hearing on

September 2, the Department asked the court to set a final dispositional hearing.

Counsel for the Children joined the Department’s request. Counsel for Mother,

Great-Grandmother, and the Tribe asked the court to instead set another review



2.      The State subsequently charged Mother with possession of a controlled
        substance and paraphernalia.

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hearing, arguing that a number of factors contributed to Mother’s delay in meeting

the goals detailed in her case plan. 3 The court agreed to set one more review

hearing.

[¶5.]         The court held the fifth review hearing on November 16. The

Department again asked the court to schedule a final dispositional hearing. The

Department indicated that it intended to seek the termination of Mother’s parental

rights at such hearing. Mother’s counsel objected, asserting that since the last

review hearing, Mother had obtained both employment and an apartment. He also

indicated that Mother had been regularly undergoing urinalyses with court

services. The parties and the circuit court agreed to set an additional review

hearing for December 14. However, the court also scheduled a final dispositional

hearing for January 25, 2016.

[¶6.]         After the November 16, 2015 hearing but before the December 14, 2015

hearing, the Tribe submitted a motion to transfer the proceedings to its jurisdiction.

The circuit court considered the motion at the December 14 review hearing.

Because the case had been open for over a year, counsel for the Department and the

Children objected to the motion as untimely. Counsel for Mother joined the Tribe in

asking the court to set a separate hearing on the issue. The court declined to hold a

separate hearing, and it denied the motions. Following a final dispositional hearing

on January 25 and February 17, 2016, the court terminated Mother’s parental

rights.


3.      For example, Mother was not sentenced in the criminal proceedings until
        July 2015. She also asserted her progress had been slowed by an unspecified,
        work-related injury.

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#27864, #27999

[¶7.]        Mother appeals the termination of her parental rights, raising one

issue: Whether she was entitled to a hearing on the question whether good cause

existed to deny the motions to transfer jurisdiction to the Tribe.

                                  Standard of Review

[¶8.]        “Denial of a motion to transfer jurisdiction under [the Indian Child

Welfare Act] is reviewed under the abuse of discretion standard.” In re D.M.,

2004 S.D. 90, ¶ 5, 685 N.W.2d 768, 770. “An abuse of discretion ‘is a fundamental

error of judgment, a choice outside the range of permissible choices . . . .’”

MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622 (quoting Gartner

v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). The circuit court’s “factual

determinations are subject to a clearly erroneous standard.” Id. (quoting Gartner,

2014 S.D. 74, ¶ 8, 855 N.W.2d at 850). Under this standard, we will not disturb the

court’s factual findings unless after reviewing the record, “we are left with a definite

and firm conviction that [the court made] a mistake[.]” Gartner, 2014 S.D. 74, ¶ 8,

855 N.W.2d at 850 (quoting Estate of Olson, 2008 S.D. 97, ¶ 9, 757 N.W.2d 219,

222).

                                 Analysis and Decision

[¶9.]        There is no dispute that this case is governed by the Indian Child

Welfare Act (ICWA). Under ICWA,

             [i]n any State court proceeding for the foster care placement of,
             or termination of parental rights to, an Indian child not
             domiciled or residing within the reservation of the Indian child’s
             tribe, the court, in the absence of good cause to the contrary,
             shall transfer such proceeding to the jurisdiction of the tribe,
             absent objection by either parent, upon the petition of either
             parent or the Indian custodian or the Indian child’s tribe:


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              Provided, That such transfer shall be subject to declination by
              the tribal court of such tribe.

25 U.S.C. § 1911(b) (2012) (emphasis added). Mother argues the circuit court erred

by denying her and the Tribe’s motions to transfer the proceedings to tribal court

without first holding a hearing to determine whether good cause existed to deny the

motions. According to Mother, the court’s denial of the motions deprived her of

notice of the Department’s objection to the motions as well as an opportunity to be

heard. The State argues that the circuit court “had sufficient evidence from which

it determined that the proceedings were too far along to transfer the case to tribal

court.”

[¶10.]        As the language of 25 U.S.C. § 1911(b) indicates, transfer of a

qualifying proceeding is generally mandatory when requested, subject only to the

objection of the child’s parents, the formal refusal of the tribal court, or a finding of

good cause to deny the transfer. People ex rel. M.C., 504 N.W.2d 598, 601 & n.2

(S.D. 1993). “The burden of establishing good cause to the contrary is on the party

opposing transfer[,]” id. at 601, which in this case was the Department. “[A]

jurisdictional hearing is required before the court can enter an order either granting

or denying a request for the transfer of jurisdiction of Indian children to tribal

custody.” Id. (emphasis added) (quoting In re G.L.O.C., 668 P.2d 235, 237 (Mont.

1983)). While good cause may exist if “[t]he proceeding [is] at an advanced stage

when the petition to transfer [is] received[,]” id. at 600 (quoting In re Dependency &

Neglect of A.L., 442 N.W.2d 233, 236 (S.D. 1989)), the determination “whether a

petition is timely must be made on a case-by-case basis[,]” id. “In deciding if ‘good

cause to the contrary’ exists . . . , the [circuit] court should make specific

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findings . . . .” Id. at 602 (quoting Chester Cty. Dep’t of Soc. Servs. v. Coleman,

372 S.E.2d 912, 915 (S.C. Ct. App. 1988)).

[¶11.]         We agree that the court’s denial of the request to transfer was

improper. It is undisputed that the circuit court refused to hold a separate

evidentiary hearing on the question of good cause. And the court’s commentary on

the issue during the December 14, 2015 review hearing consists only of the

following 4:

               Well, it’s going to be the Court’s finding that the motion to
               transfer is not timely and it’s going to be denied in this case. I
               note this case is—was open last November, 2014. The [T]ribe’s
               apparently been aware of it for more than a year. No efforts
               were made to get it transferred before this time, and I—my real
               concern is, it just is contrary to the interests of the children to
               start over from square one after a year has proceeded in the
               matter, so that motion is going to be denied.

As noted above, in determining whether the motions to transfer were timely, the

court was required to consider all the particular circumstances of this case, not

simply the amount of time that had passed since the proceedings first began. See

id. at 600. Although this case was over one year old, it had not yet reached final

disposition. Without knowing the Tribe’s and Mother’s reasons for waiting to seek

transfer, the circuit court necessarily did not consider all the circumstances of this

case.

[¶12.]         The court’s finding that transferring jurisdiction was not in the best

interest of the Children is susceptible of the same criticism. As above, the absence

of specific factual findings precludes meaningful review. The Tribe intervened and



4.       The court did not issue written findings of fact on the issue of good cause.

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has been involved in this case since nearly its beginning. The Tribe has been

represented at each of Mother’s review hearings. The circuit court did not identify

any reason to conclude that transferring jurisdiction to the Tribe would have

amounted to a “start over from square one[.]” And even if it had, the best interest of

a child cannot be determined by considering solely the length of time spent in foster

care. Like the timeliness issue, the question whether denying the transfer was in

the best interest of the Children is one best answered after affording Mother a full

opportunity to present evidence and argument.

                                     Conclusion

[¶13.]       The circuit court was required to conduct an evidentiary hearing on

the question whether good cause existed to deny Mother’s and the Tribe’s motions to

transfer the proceedings to the Tribe’s jurisdiction. The court was also required to

make specific factual findings on this issue. The court failed to do so. Therefore,

the court abused its discretion in denying the motions.

[¶14.]       We reverse the circuit court’s final dispositional order and remand

with instructions for the court to hold an evidentiary hearing on the question

whether good cause exists to deny the motions to transfer.

[¶15.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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