| (Cite
as: 510 N.W.2d 119)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota, ex rel. SOUTH
DAKOTA
DEPARTMENT
OF SOCIAL SERVICES, In the Interests of C.H., S.H., S.H.,
C.H.,
M.H.,
S.H. and C.H., Minor Children, and concerning C.O.H. and D.H.,
Sr.
No.
18230.
Considered on Briefs on
Oct. 5, 1993.
Decided
Dec. 22, 1993.
*120
Jerry L. Wattier of Riter, Mayer, Hofer & Riter, Pierre, for appellant
mother, C.O.H.
Mark W. Barnett, Atty.
Gen., Joan P. Baker, Asst. Atty. Gen., Pierre, for appellee State of S.D.
MILLER, Chief Justice.
C.O.H. (Mother) appeals
the decree of disposition terminating parental rights over her six minor
children (S.H., S.H., C.H., M.H., S.H., and C.H.).
[FN1] We remand to the trial court for proceedings as directed herein.
FN1.
Father's parental rights were terminated in the same action; he has not
appealed.
FACTS
On March 4, 1992, the State of South Dakota filed a petition alleging
Mother's eight youngest children were abused and neglected.
[FN2] Starting in 1982, the South Dakota Department of Social Services
(DSS) documented at least twenty-four referrals concerning neglect of
the physical, medical and educational needs of the children.
FN2.
The petition is moot as to C.H., who has attained her majority. A modified
petition was later filed removing the name of six-month-old C.O., who
died of Sudden Infant Death Syndrome five weeks after the original petition
was filed.
An adjudicatory hearing
was held on May 11, 1992, and Mother, who was represented by counsel,
admitted that the children were abused and neglected. The court scheduled
a dispositional hearing for August 10, 1992. After Mother agreed to fully
comply with a DSS family services plan ordered by the court, the children
were left in her custody.
*121
After a brief period of cooperation, Mother failed to complete any of
the goals in the family services plan. The home was not maintained at
a minimum standard of cleanliness. No places were cleared for the children
to sleep. Mother continued to leave the children home alone. She avoided
DSS workers by canceling or failing to show up for scheduled office visits.
[FN3] When DSS workers arranged visits at the home, Mother would not be
there. DSS continued to receive referrals concerning the children.
FN3.
Apparently Mother also avoided her own attorney. She missed all scheduled
appointments and despite numerous letters and telephone calls requesting
she contact the attorney, she never did so.
Mother did not personally appear at the August 10, 1992, hearing. The
court found that she had failed to comply with the DSS family services
agreement, that the children were in imminent danger, and ordered their
removal from the home for their protection. After their removal to foster
homes, weekly visits with the children were scheduled for Mother; she
showed up only twice between August 12 and December 1.
The dispositional hearing
was held on December 1, 1992. Dr. Frank Dame, the children's treating
clinical psychologist, testified concerning the serious emotional damage
the children had suffered, and would continue to suffer, if left in Mother's
custody. Three DSS workers testified as to the conditions they had witnessed
in Mother's home, the efforts of DSS to help remedy the situation, and
Mother's lack of effort to correct problems.
The court terminated
Mother's parental rights to the children. She appeals.
I. CLEAR AND CONVINCING
EVIDENCE SUPPORTS TERMINATION OF MOTHER'S PARENTAL RIGHTS AS THE LEAST
RESTRICTIVE ALTERNATIVE IN THE BEST INTERESTS OF THE CHILDREN.
We apply the clearly erroneous standard of review to a trial court's findings
of fact. In
re E.D.J.,
499 N.W.2d 130, 134 (S.D.1993); In
re A.M., 292
N.W.2d 103, 105 (S.D.1980). The party claiming error bears the burden
of establishing the findings are in error. In
re K.A.B.E.,
325 N.W.2d 840, 844 (S.D.1982); A.M.,
292 N.W.2d at 105. Termination of parental rights must be supported by
clear and convincing evidence that it is the least restrictive alternative
commensurate with the best interests of the child. E.D.J.,
499 N.W.2d at 135; In
re K.C., 414
N.W.2d 616, 620 (S.D.1987). The least restrictive alternative is viewed
from the child's point of view, not the parent's. E.D.J.,
499 N.W.2d at 135; In
re S.W., 398
N.W.2d 136, 139 (S.D.1986).
Mother's neglect of the
children is well documented in the record. The children were routinely
left home alone. The older children were frequently left to baby-sit younger
siblings; for example, it was the responsibility of 11-year-old C.H. to
care for baby C.O. when Mother worked all night. There was testimony the
oldest siblings had physically abused the younger children.
Mother often failed to
prepare meals for the children. Frequently there was inadequate food in
the house. There was testimony that on one occasion the younger children
were afraid to eat the only food in the house, a loaf of bread, for fear
the oldest sibling would punish them.
Mother failed to keep
the home at a minimal standard of cleanliness. Evidence showed a filthy
refrigerator which contained rotted food. The floor was strewn with cigarette
butts, soiled clothing and used diapers. A rodent was seen crawling out
of a pile of dirty clothing. The plumbing was frequently broken
and Mother failed to notify the landlord. The home was periodically unheated
when fuel was depleted.
There was inadequate
attention to the physical and medical needs of the children. Mother failed
to get them immunized. They were repeatedly sent home from school because
of head lice. The younger children came to school in clothing with dried
feces on *122
it. She failed to insure that the child with epilepsy received prescribed
medication. She failed to obtain needed eyeglasses for one child.
The educational needs
of the children were also neglected. Mother often failed to send the children
to school. Evidence was presented that at one time teachers would come
to the home, wake the children, and take them to school. Recommendations
for special education or summer programs were not followed.
Over the years, DSS provided
numerous services to Mother to correct problems in the home, but she repeatedly
neglected to remedy problems. Home-based, one-on-one support services
were provided to her. There were six case service plans between March
31, 1989, and July 5, 1991, none of which were completed. She was offered
help to plan meals, budget money, obtain food stamps, and apply for energy
and housing assistance. Mother would briefly cooperate and then fail to
follow through.
Dr. Frank Dame testified
at the December 1, 1992, dispositional hearing that the
children had been evaluated and were receiving weekly therapy. Dr. Dame's
diagnosis was that all the children had suffered emotional damage due
to their home environment. Although the children's emotional problems
varied in degree, they exhibited personality disorders characterized by
frustration, aggressive behavior, lack of attachment, depression, resentment
at having to assume parental responsibilities, emotional withdrawal, competitiveness
and immaturity.
Dr. Dame evaluated Mother
in 1990.
[FN4] He diagnosed her as a person of average intelligence with a personality
disorder dominated by schizoid tendencies resulting in lack of attachment
and depression. His opinion was that Mother did not think through the
consequences of her actions, was unresponsive to the needs of others,
impulsive and sought instant gratification for herself. He characterized
her style of child rearing as one of detachment, leaving the children
to care for themselves and "whatever happens happens." Dr. Dame
recommended termination of parental rights as the only alternative in
the best interests of the children.
FN4.
Mother failed to keep her court-ordered appointment for a subsequent evaluation
in 1992.
Kimberly Kusler, a Native
American DSS worker, testified concerning the problems
with Mother's neglect and its effect on the children. She chronicled DSS's
repeated and futile efforts to help Mother meet the needs of the children.
Joyce Panzer, a DSS worker,
testified as to Mother's failure to cooperate with case service plans
from 1989 through 1991. Panzer stated Mother's motivation to improve parenting
skills was minimal; it "just didn't appear that she was interested
in doing anything." She testified as to Mother's lack of communication
with and control over the children.
Melita Rank, another
Native American DSS worker, testified regarding Mother's failure to attend
visits with the children after they had been removed from her custody.
She testified as to Mother's unresponsiveness to all the programs and
help offered to her by DSS.
In spite of its determination
that the Indian Child Welfare Act (ICWA) was not applicable to the children,
the trial court's judgment expressly states that it applied the "beyond
a reasonable doubt" standard to its findings of fact. K.A.B.E.,
325 N.W.2d at 843; In
re J.L.H.,
299 N.W.2d 812, 814 (S.D.1980). The facts of this case reveal overwhelming
evidence of inadequate supervision and neglect of the most basic needs
of these children. Mother has absolutely failed to carry her burden of
establishing the findings of fact are clearly erroneous and not supported
by the evidence. There is clear and convincing evidence that termination
of Mother's parental rights is the least restrictive
alternative commensurate with the best interests of these children.
*123
II. THE CIRCUIT COURT ERRED IN ALLOWING TERMINATION OF PARENTAL RIGHTS
TO PROCEED WHERE THE STATE FAILED TO GIVE ADEQUATE NOTICE UNDER 25 U.S.C.S.
§ 1912(a) TO DETERMINE WHETHER THE CHILDREN WERE INDIAN CHILDREN
UNDER 25 U.S.C.S. § 1903(4).
The
provisions of ICWA must be followed in proceedings involving the termination
of parental rights over Indian children. 25 U.S.C.S. §§ 1901
et seq. (Law.Co-op.1983) ICWA requires in part:
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.
[FN5] (Emphasis added.)
FN5.
"Secretary" is the Secretary of the Interior as defined in 25
U.S.C.S. § 1903(11) (Law.Co-op.1983).
25 U.S.C.S. § 1912(a)
(Law.Co-op.1983). This court has determined that failure to comply with
the notice provision deprives a court of jurisdiction to terminate parental
rights to Indian children. K.A.B.E.,
325 N.W.2d at 842; In
re N.A.H.,
418 N.W.2d 310, 311 (S.D.1988). Violation of the notice provisions may
be cause for invalidation of the proceedings. 25 U.S.C.S. § 1914
(Law.Co-op.1983).
The trial court must
initially determine if a child is an Indian child within the meaning of
ICWA. K.A.B.E.,
325 N.W.2d at 842; In
re C.R.M.,
307 N.W.2d 131, 132 (S.D.1981).
"Indian
child" means any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of an Indian
tribe[.]
25 U.S.C.S. § 1903(4) (Law.Co-op.1983). Mother claims she is one-half
Choctaw Indian. She admitted at the dispositional hearing that she is
not an enrolled member of any Indian tribe. However, a parent's current
enrollment is not always dispositive of a child's membership in an Indian
tribe. In re
H.D., 11 Kan.App.2d
531, 729 P.2d 1234, 1238 (1986) (reversing for failure to notify tribe
and Secretary where Mother enrolled in tribe six weeks after termination
of her parental rights); cf.
In re A.L.,
442 N.W.2d 233, 237- 38 (S.D.1989) ((Wuest, C.J., concurring specially)
(expressing that it is unnecessary
to hold this court is bound by a tribal determination that a Caucasian
child is an Indian) (Miller, Sabers, J.J., concurring specially) (stating
that where tribal enrollment was clearly based on mistake or fraud, this
court need not recognize enrollment)).
In this case, the original
petition filed by DSS declares: "It appears the Indian Child Welfare
Act may be applicable for the following reasons: [Mother] is believed to
be one-half Choctaw, a tribe federally recognized in Mississippi. Therefore,
she and/or the children may be eligible for enrollment with that tribe."
DSS personally served Mother with the petition.
[FN6] DSS also mailed the petition to the Mississippi Branch of the Choctaw
Indians by registered mail, return receipt requested. Thus, notice was sufficient
to Mother and the Mississippi Band of Choctaw Indians.
FN6.
Personal service, in lieu of service by registered mail, return
receipt requested, is acceptable under the Guidelines for State Courts,
44 Fed.Reg. 67,588 (1979).
A letter was subsequently
received by DSS from the Mississippi Band of the Choctaw Indians stating
it could find no information concerning Mother or the children in the
enrollment records of the tribe. It suggested contacting the Choctaw Nation
of Oklahoma. Apparently DSS did so, as a subsequent letter from
the Choctaw Nation *124
of Oklahoma states it was "unable to find any evidence of tribal
enrollment" for Mother or children.
[FN7] However, the record shows no proof that DSS served the Oklahoma
tribe by registered, return receipt mail. Thus, notice to the Choctaw
Nation of Oklahoma was insufficient under ICWA.
FN7.
It is our opinion the DSS made a good faith
effort to comply with ICWA considering the minimal amount of
information provided by Mother.
Further, where there
is reason to know an Indian child may be involved and where the identity
of the tribe cannot be determined, notice must be given to the Secretary
of the Interior. 25 U.S.C.S. § 1912(a). There is no evidence in the
record that the required notice was given to the Secretary.
A major purpose of ICWA
is to protect "Indian children who are members of or are eligible
for membership in an Indian tribe[.]" 25 U.S.C.S. § 1901(3).
To this end, the Indian child's tribe has the right to intervene in state
court at any point in the proceedings. 25 U.S.C.S. § 1911(c) (Law.Co-op.1983).
However, a tribe's right to intervene is meaningless without notice of
the proceedings. In
re Junious M.,
144 Cal.App.3d 786, 790, 193 Cal.Rptr. 40, 42 (1983); Russel Barsh, The
Indian Child Welfare Act of 1978: A Critical Analysis,
31 Hastings L.J. 1287, 1313 (1980). We find that error
occurred when no notice was given to the Secretary of the Interior and
when inadequate notice was given to the Choctaw Nation of Oklahoma.
We are not the first court to face the question of how to proceed when
there is uncertainty as to whether ICWA is applicable and there has been
lack of adequate notice to required parties under ICWA. The Supreme Court
of Vermont concluded that a trial court had erred in terminating parental
rights where no notice of the proceeding was given to the Mohawk Indian
Tribe. In re
M.C.P., 153
Vt. 275, 571 A.2d 627 (1989). The Vermont Court remanded for adequate
notice with instructions that if, on remand, it was determined ICWA did
not apply, the original trial court order of termination would stand.
Id.
571 A.2d at 635.
Similarly, a Washington appellate court remanded for determination of a
child's Indian status after it found the state had failed
to give proper notice to the Apache Tribe or the
Bureau of Indian Affairs. In
re Dependency of Colnar,
52 Wash.App. 37, 757 P.2d 534, 536-37 (1988).
When the trial court subsequently determined the child was neither
enrolled nor enrollable in an Indian tribe, the appeals court
affirmed the trial court's termination of parental rights. Id.
757 P.2d at 537.
In a similar case, a California appeals court found the
trial court had erred in failing to inform the Nooksack
Indian Tribe of an action concerning a child alleged to
be Indian. However, the appellate court conditionally affirmed
the trial
court's order terminating parental rights if, on remand, the child
was not determined to be an Indian child as defined
by ICWA. Junious
M.,
193 Cal.Rptr. at 44-47.
We agree with the procedure adopted by the aforementioned courts
when there has been inadequate notice to determine whether ICWA
is applicable. Therefore, we remand to the trial court
with instructions to direct the DSS to notify, by registered,
return receipt mail, both the Choctaw Nation of Oklahoma and
the Secretary of Interior of the termination of parental rights
proceeding concerning these children. The dispositional order of
December 17, 1992, shall remain in effect until the trial
court makes further findings concerning the status of these children.
If the trial court subsequently determines that either
(1) the minor children are members of a tribe, or
(2) the minor children are eligible for membership and Mother
is a member, the judgment of the trial court is
reversed and it shall proceed in accord with *125
all provisions of ICWA. If however, it determines
that (1) the minor children are not members of a
tribe, and (2) the minor children are not eligible for
membership or Mother is not a member, the judgment entered
December 17, 1992, is affirmed.
[FN8]
FN8.
25 U.S.C.S. §
1912(a) (Law.Co-op.1983) provides in part:
No
foster care placement or termination of parental rights proceedings shall
be held until at least ten days after receipt of
notice by the parent or Indian custodian or 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
light of our remand to the trial court to determine
the Indian status of the children, we will not address
Mother's claim that the trial court erred in denying her
motion for a twenty-day continuance of the dispositional hearing as
provided by ICWA. We note that Mother was
personally served notice on August 12, 1992, of the scheduled
November 10, 1992, dispositional hearing. The final hearing
was not held until December 1, 1992.
WUEST, HENDERSON, SABERS and AMUNDSON, JJ., concur.
510 N.W.2d 119
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