#26448-DG

2012 S.D. 69

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                     * * * *

CHEYENNE RIVER SIOUX TRIBE,                    Petitioner,

v.

THE HONORABLE JEFF W. DAVIS,
PRESIDING JUDGE OF THE SOUTH
DAKOTA SEVENTH JUDICIAL CIRCUIT,               Respondent.

                                     * * * *

                           ORIGINAL PROCEEDING


                                     * * * *



DANA L. HANNA
Rapid City, South Dakota                       Attorney for petitioner.

NATHAN R. OVIATT of
Goodsell Quinn, LLP
Rapid City, South Dakota                       Attorneys for respondent
                                               The Honorable Jeff W. Davis.

GLENN A. BRENNER
Pennington County State’s Attorney

PATRICK GRODE
Pennington County Deputy State’s Attorney
Rapid City, South Dakota                       Attorneys for respondent
                                               State of South Dakota.

                                     * * * *


                                               SUBMITTED ON
                                               AUGUST 31, 2012
                                               OPINION FILED 10/10/12
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GILBERTSON, Chief Justice

[¶1.]          This is an original proceeding for a writ of mandamus or prohibition

commenced by the Cheyenne River Sioux Tribe (Tribe) against the Honorable Jeff

W. Davis, Presiding Judge of the Seventh Judicial Circuit.1 We dismiss the

application for a writ.

                            Facts and Procedural History

[¶2.]          Three unattended Native American children, ages sixteen, twelve, and

three, were taken into custody from their residence by the Rapid City Police

Department in the early morning hours of July 6, 2012. Oldest child was found

intoxicated and suffering from seizures. Oldest child was hospitalized while the two

younger children were placed into foster care.

[¶3.]          On the morning of July 6, a specialist for the South Dakota

Department of Social Services (DSS) notified Tribe as to the custody of the children.

State filed a petition for temporary custody and the forty-eight hour temporary

custody hearing was held before Judge Davis at approximately 1:30 p.m. on July 9,

2012.2



1.       In beginning this action, Tribe failed to comply with SDCL 15-25-2 requiring
         an application to this Court for permission to commence original proceedings
         and for this Court to fix the procedures to be followed therein. In view of the
         importance of the questions presented, however, we waive the application
         requirement in this instance.

2.       SDCL 26-7A-15 requires a temporary custody hearing when a child is taken
         into temporary custody. The hearing must be held within forty-eight hours if
         the child is an apparent abused or neglected child. Id. “At the temporary
         custody hearing the court shall consider the evidence of the need for
         continued temporary custody of the child in keeping with the best interests of
                                                                    (continued . . .)
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[¶4.]        Mother appeared at the temporary custody hearing and requested the

appointment of counsel. Tribe appeared through counsel and was permitted to

intervene pursuant to the Indian Child Welfare Act (ICWA). Based upon State’s

petition, the police report and an ICWA affidavit from a DSS specialist, the court

granted temporary custody of the children to DSS for sixty days. Citing ICWA,

Tribe contested the custody order and sought to address the facts of the case and to

present evidence. The court denied these efforts on the basis that it was a forty-

eight hour hearing and mother did not yet have representation. The court did,

however, indicate a willingness to revisit the situation later that day or when

counsel for mother was available. The court also noted DSS’s authority to return

the children at any time if the situation was remedied or if continued custody was

not warranted. The court also ordered DSS to consider and investigate mother’s

parents as a temporary placement. Tribe moved for a hearing in a week or in the

“reasonably near future” to consider the factual basis for taking the children. The

court denied the motion and the next hearing in the matter was scheduled for

September 4, 2012.

[¶5.]        On August 9, 2012, a month after the temporary custody hearing,

Tribe filed an application for a writ of mandamus or prohibition from this Court to

compel a new temporary custody hearing or to arrest further proceedings in the

case until a new hearing could be held. On August 15, this Court issued an order to

________________________
(. . . continued)
         the child. The temporary custody hearing may be conducted telephonically
         when necessary as determined by the court.” SDCL 26-7A-18. Temporary
         custody must be reviewed every sixty days. SDCL 26-7A-19(2).

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show cause as to why the application should not be dismissed on the grounds that

Tribe had a plain, speedy, and adequate remedy at law in the next hearing

scheduled in the matter for September 4, 2012. Tribe and Judge Davis filed

responses to the order to show cause. State submitted a response joining that of

Judge Davis. Tribe also submitted an application for leave to file a reply to Judge

Davis and a reply which we have considered in our review of this matter.

[¶6.]        Tribe’s response to the order to show cause and the other responses

provided new information not previously conveyed or unclear in the original writ

application. Within a week of the original temporary custody hearing, this case was

reassigned from Judge Davis to Circuit Court Judge Mary P. Thorstenson. A

hearing was held before Judge Thorstenson on July 16, 2012. At that hearing,

Tribe’s counsel advised that physical custody of middle child had been returned to

her father who was her legal guardian. Accordingly, middle child was no longer a

part of the case. Tribe’s counsel also advised that Tribe had filed a motion to

transfer youngest child’s case to Tribal Court and that this was the primary purpose

of the hearing. Mother’s counsel made a motion to also transfer oldest child’s case

to Tribal Court. A discussion ensued as to whether oldest child would object to the

transfer. The court ultimately approved the transfer of youngest child’s case to

Tribal Court, but continued the matter as to oldest child. Tribe’s counsel then

challenged oldest child’s temporary placement and questioned the lack of adherence

to relative placement preferences under ICWA. State pointed out the case was still

in the “emergency custody time frame” and at the “initial phase[].” The case was

then continued until the following week on July 23, 2012.

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[¶7.]         At the July 23 hearing, Judge Thorstenson indicated its purpose was to

consider a continued request to transfer oldest child’s case to Tribal Court. Tribe’s

counsel advised that Tribe would object to the transfer because of the absence of a

plan for oldest child. Oldest child’s counsel indicated oldest child would not object

to a transfer and hoped for a placement with an aunt living on the Reservation.

Tribe’s counsel once again raised the issue of lack of compliance with ICWA

placement preferences. At that point, the court advised that the proceedings were a

continuation of the emergency hearing and that ICWA placement preferences were

not yet applicable. However, the court did instruct DSS to look into the temporary

placement of oldest child with her aunt.3 This was the posture of the proceedings at

the time Tribe filed its writ application.

                                       Analysis

[¶8.]         Tribe continues to request a new temporary custody hearing in this

matter in which the full panoply of ICWA requirements and standards would be

applied. Tribe contends the lack of such a hearing violates its federal and state

rights and that it is irreparably harmed by the lack of any mechanism to contest the

trial courts’ failure to fully follow ICWA at the temporary custody stage.

[¶9.]         A review of pertinent authorities refutes Tribe’s contentions. Courts in

at least five different states have considered and rejected the argument that ICWA

fully applies at the stage of a temporary or emergency custody proceeding. See



3.      An affidavit from a DSS specialist submitted with the State’s response to this
        Court’s order to show cause indicates that oldest child was placed with her
        aunt on August 22, 2012.

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State ex rel. Juvenile Dep’t v. Charles, 688 P.2d 1354, 1358 (Or. Ct. App. 1984)

(holding that emergency removal of a child is initially purely a state law matter not

subject to all ICWA requirements); D.E.D. v. State of Alaska, 704 P.2d 774, 779

(Alaska 1985) (holding certain notice requirements under ICWA inapplicable to

emergency custody proceedings or emergency hearings); Matter of the Welfare of

J.A.S., 488 N.W.2d 332, 335 (Minn. Ct. App. 1992) (holding the testimony of a

qualified Indian expert was not required at the initial detention hearing in the case

since that hearing was an emergency removal); In re S.B. v. Jeannie V., 30 Cal.

Rptr. 3d 726, 734-36 (Cal. Ct. App. 2005) (holding that not all provisions of ICWA

apply to a detention/emergency removal hearing); State ex rel. Children, Youth and

Families Dep’t v. Marlene C., 248 P.3d 863, 872-74 (N.M. 2011) (holding that New

Mexico’s ex parte and custody hearing stages are emergency proceedings to which

the full requirements of ICWA do not apply).

[¶10.]       While the precise reasoning of these courts varies with the facts of

each case and with the individual state’s procedures, each decision ultimately rests

upon § 1922 of ICWA providing in pertinent part:

             Nothing in this subchapter shall be construed to prevent the
             emergency removal of an Indian child who is a resident of or is
             domiciled on a reservation, but temporarily located off the
             reservation, from his parent or Indian custodian or the
             emergency placement of such child in a foster home or
             institution, under applicable State law, in order to prevent
             imminent physical damage or harm to the child.

25 U.S.C. § 1922 (emphasis added). Moreover, notwithstanding the “temporarily

located” language in this provision, four of the above courts have specifically

recognized § 1922’s applicability to all Indian children. See Charles, 688 P.2d at

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1358 n.2; J.A.S., 488 N.W.2d at 335; S.B., 30 Cal. Rptr. 3d at 735-36; Esther V., 248

P.3d at 873. As succinctly reasoned by the California Court of Appeals on this

issue:

             [I]t would make no sense to give a state more power to make an
             emergency placement of an Indian child who lives on a
             reservation than one who lives off the reservation. Thus, as the
             legislative history confirms, Congress intended this section to
             apply to emergency removals and placements of all Indian
             children. (H.R. Rep. No. 95—1386, 2d Sess., p.25 (1978),
             reprinted in 1978 U.S. Code Cong. & Admin. News, pp.7530,
             7548.)

S.B., 30 Cal. Rptr. 3d at 736 (emphasis original).

[¶11.]       Based upon § 1922 and ICWA’s inapplicability to temporary or

emergency custody proceedings under state law, both trial courts here appropriately

rejected Tribe’s invocation of ICWA and requests for a new temporary custody

hearing conducted in full accord with ICWA.

[¶12.]       Tribe also asserts a violation of state law in the temporary custody

hearing based upon an alleged lack of evidence of a need for temporary custody as

required by SDCL 26-7A-18. Tribe ignores, however, that the temporary custody

hearing proceeded on State’s petition for temporary custody and the accompanying

police report and ICWA affidavit from a DSS specialist. The report and affidavit set

forth facts concerning the need for temporary custody. While these documents

might not constitute evidence within the normal bounds of the Rules of Evidence,

those rules are not applicable at a temporary custody hearing. See SDCL 26-7A-34

(stating that the Rules of Civil Procedure apply to adjudicatory hearings, but that

all other juvenile hearings are to be conducted to inform the court of the status of


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the child and to ascertain the child’s history, environment, and condition); SDCL

26-7A-56 (stating that the Rules of Evidence apply to adjudicatory hearings, but

that all other juvenile hearings are to be conducted under rules prescribed by the

court to inform it of the status of the child and to ascertain the child’s history,

environment and condition). Therefore, the police report and affidavit provided

sufficient evidence of a need for temporary custody to permit the trial courts to

proceed here.

                                       Decision

[¶13.]       “To prevail on a writ of mandamus or prohibition, Petitioners must

show ‘a clear legal right to performance of the specific duty sought to be compelled

and the [respondent] must have a definite legal obligation to perform that duty.’” H

& W Contracting, LLC v. City of Watertown, 2001 S.D. 107, ¶ 24, 633 N.W.2d 167,

175 (quoting Willoughby v. Grim, 1998 S.D. 68, ¶ 7, 581 N.W.2d 165, 168). See also

Gray v. Gienapp, 2007 S.D. 12, ¶ 18, 727 N.W.2d 808, 812 (stating that, “[t]his

Court has both constitutional and statutory authority to issue a writ of prohibition

to ‘arrest’ or halt the proceedings of any tribunal or lower court under appropriate

circumstances.”).

[¶14.]       Tribe has not made this showing with regard to the trial courts’ duty to

follow ICWA at a temporary custody hearing. In fact, nowhere in any of its

pleadings has Tribe cited any case controverting the authorities on this point set

forth above. Accordingly, Tribe is not entitled to mandamus or prohibition and its

application for a writ is dismissed.

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

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