| (Cite
as: 422 N.W.2d 597)
Supreme
Court of South Dakota.
In
the Matter of B.J.E., C.J.E., K.J.E., and T.J.E., Alleged Dependent
and
Neglected
Children.
No.
15757.
Considered
on Briefs Feb. 17, 1988.
Decided
April 27, 1988.
*598
Janice Godtland, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen.,
on brief, Pierre, for appellee, State of S.D.
George E. Grassby of Whiting, Hagg & Hagg, Rapid City,
for appellant, D.J.E.
MILLER, Justice.
This is an appeal in which D.J.E. (Mother) appeals the
termination of her parental rights over her four children (B.J.E.,
C.J.E., K.J.E., and T.J.E.). Father's parental rights were
previously terminated. He is not a party to
this appeal. We hold that the trial court
substantially complied with the provisions of the Indian Child Welfare
Act (ICWA), and therefore it had
jurisdiction to act in this case.
Mother has raised six issues on appeal (among them the
adequacy of expert testimony, admissibility of certain exhibits, sufficiency of
the evidence to support the allegations of the petition and
whether termination of parental rights was the least restrictive alternative).
We have thoroughly and carefully considered each issue
and conclude that all but one are totally without merit.
Thus, those issues are affirmed on the basis
of settled law, no abuse of discretion and clearly sufficient
evidence to support the findings.
In the remaining issue, Mother challenges the jurisdiction of the
trial court over the child T.J.E. (who was born subsequent
to the filing of the dependency and neglect petition) claiming
that the mandatory notice requirements of the ICWA were not
met. This presents us with a new, novel,
and serious issue.
FACTS
Mother and the children are Indians and presumably enrolled in
the Rosebud Sioux Tribe (Tribe). The record is
devoid of any evidence that they are enrolled members of
Tribe; however, that issue is not argued or disputed.
At the time of the filing of the dependency and
neglect petition, T.J.E. was not yet born nor was the
Department of Social Services (DSS) aware of her pregnancy.
Therefore, the petition named only the three older children.
It is clear from the record that the appropriate notice
[FN1] required by the ICWA (25 U.S.C.A. §
1912(a)),
[FN2] was given to Tribe. *599
This notice
was dated June 17, 1985. On July 1,
1985, Tribe acknowledged receipt of the notice and also filed
a motion for continuance and a request to produce and
examine. On July 24, a letter was written
to the circuit court judge from a Rosebud Tribal Court
Judge indicating that Tribe declined intervention but reserved the right
to intervene at a later date. The tribe was
also given notice of the temporary custody proceeding.
FN1.
The notice specifically stated in part "... you are herewith
notified that the ultimate action may conclude in foster care
or termination of parental rights involving the above-named child[ren].
Under the Indian Child Welfare Act, you have ten (10)
days from receipt of this notification to request that jurisdiction
of this matter be transferred to your Court, or to
request an extension of time to investigate this matter further....."
FN2.
25 U.S.C.A. §
1912(a) provides:
In
any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement of,
or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child's
tribe, by registered mail with return receipt requested, of the
pending proceedings
and of their right of intervention. If the
identity or location of the parent or Indian custodian and
the tribe cannot be determined, such notice shall be given
to the secretary in like manner, who shall have fifteen
days after receipt to provide the requisite notice to the
parent or Indian custodian and the tribe. No
foster care placement or termination of parental rights proceeding shall
be held until at least ten days after receipt of
notice by the parent or Indian custodian and the tribe
or the Secretary: Provided,
That the parent or Indian custodian or the tribe shall,
upon request, be granted up to twenty additional days to
prepare for such proceeding.
In a report to the circuit court dated January 6,
1986, DSS requested that the unborn child be added to
the petition as DSS felt that the well-being of the
unborn child was jeopardized by Mother's drinking. In
a motion and order for custody during pendency of the
proceedings, dated February 3, 1986, the "Unborn Child" is specifically
referred to.
A notice of the adjudicatory hearing was filed with the
circuit court on May 13, 1986. T.J.E. (who
was born on February 17, 1986) was specifically named as
one of the children in that notice. A
certified mail return receipt, date of delivery 5/13/86, addressed to
Tribe, was filed with the circuit court.
On June 24, 1986, Tribe's Indian Child Welfare Advocate (Advocate)
sent a letter
to the circuit judge stating that their office would work
with Mother until the next circuit court hearing scheduled for
July 24, 1986. Advocate indicated that she planned
to attend that hearing. Advocate also indicated that
if Mother complied with the stipulations of the case plan
that they had set up for her, the tribal court
would then decide whether to transfer the case back to
it.
An amended petition for dependency and neglect was filed on
July 17, 1986, wherein T.J.E. is once again specifically named.
There is no return receipt of notice to
Tribe for this amended petition.
A notice of a final dispositional hearing was filed on
January 26, 1987. T.J.E. is again specifically named.
A notation on the bottom of this notice
indicates that both the Rosebud and Oglala Sioux Tribes were
sent copies of the notice, which is verified by certified
mail return receipts in the record. There is
no date of delivery on the second return receipt.
On February 13, 1987, the Rosebud Sioux Tribal Court sent
a letter to the circuit judge advising that Tribe
respectfully
declines to transfer jurisdiction in regards to the above-named minor
children [J.E. children]. However we would like to recommend
the following to your Court.
1.
That the four guidelines of the Indian Child Welfare Act
be followed in regards to the placement of the children.
2.
That we be sent a pre-adoptive homestudy of the potential
adoptive family for our files.[
[FN3]]
FN3.
At no time has Tribe asserted that the circuit court
in any manner failed to comply with the provisions of
the ICWA.
DECISION
Recently, in Matter
of N.A.H.,
418 N.W.2d 310, 311 (S.D.1988), we reaffirmed that "the provisions
of the ICWA must be complied with in Indian child
custody proceedings." Citing
In re K.A.B.E.,
325 N.W.2d 840 (S.D.1982); People
in Interest of C.R.M.,
307 N.W.2d 131 (S.D.1981). In N.A.H.,
we reversed an order terminating parental rights and remanded the
case for a new hearing as proper notice had not
been given to two Indian tribes. In N.A.H.,
the Oglala Tribe had been sent a notice but such
notice had not informed it of the right to intervene
in the case. The record also did not
indicate that notice had been sent by registered mail with
return receipt requested to the Oglala Tribe concerning the dispositional
hearing. Finally, the Crow Tribe, which was also involved, *600
did not receive any notice of the dispositional hearing.
In N.A.H.,
we also provided that minimally, "notice must conform to the
standards found in 25 U.S.C. §
1912(a). Better practice would be to follow the
Bureau of Indians Affairs guidelines set forth at 44 Fed.Reg.
67588 (1979)." N.A.H.,
supra
at 312, citing
Matter of S.Z.,
325 N.W.2d 53 (S.D.1982) (footnote 1). One of
these guidelines requires the name of the child to be
given to tribe in the notice.
Here, although Tribe was not sent a copy of the
amended petition naming T.J.E., we find no violation of 25
U.S.C. §
1912(a) or the guidelines. It is clear from
the above facts that T.J.E. was named in many documents
filed with the court and sent to Tribe by certified
mail. Thus, Tribe had actual
notice
[FN4] that the ongoing petition involved the newborn, T.J.E. and
there was substantial compliance with the ICWA and the guidelines
so as to give the trial court jurisdiction over T.J.E.
FN4.
Further, Tribe's Advocate worked extensively with Mother after T.J.E.'s birth
and was involved in many of the circuit court proceedings
dealing with the J.E. family.
Affirmed.
All the Justices concur.
422 N.W.2d 597
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