| (Cite
as: 679 N.W.2d 497, 2004 SD 54)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota, in the Interest
of D.G., Minor Child,
Concerning
L.G. and N.B.F., Respondents.
No.
22887.
Considered
on Briefs April 1, 2004.
Decided
April 21, 2004.
*499
Lawrence E. Long, Attorney General, David W. Siebrasse, Assistant Attorney
General, Pierre, South Dakota, Attorneys for appellee State of South
Dakota.
Kelly Marnette, Aberdeen, South Dakota, Attorney for D.G.
Christy Griffin Serr, Aberdeen, South Dakota, Attorney for appellant R.L.
PER CURIAM.
**1
Father appeals the termination of his parental rights concerning
D.G. We affirm.
FACTS
AND PROCEDURE
**2
When D.G. was ten days old his mother left
him with a relative and went to a bar.
Mother was arrested for assault and D.G. was taken into
protective custody. R.L., D.G.'s natural father, as determined through
subsequent paternity testing, was in the state penitentiary. D.G.
was placed with a foster home that contained two of
his siblings to which mother had previously terminated her parental
rights. Those siblings were adopted through foster placement.
D.G. is a special needs child who suffers from reactive
*500
airway disease, presumptive reflux and recurrent sinusitis, these conditions
culminated in severe asthma.
**3
Father was incarcerated for first-degree burglary after he broke
into a neighbor's apartment and assaulted him. Father has
an extensive criminal record including seventeen prior offenses. Father
indicated to the Department of Social Services (DSS) that he
was not an enrolled member of any tribe but that
he had applied for membership in the Rosebud Sioux Tribe
a number of years earlier but had not heard anything.
This information was shared with mother. Thereafter, mother voluntarily
terminated her parental rights to D.G. She did so with
the hope that D.G. would be adopted by the foster
placement family and remain with his siblings. Father subsequently
learned that his application to the Rosebud Sioux Tribe had
been accepted and he was an enrolled member. Father moved
to transfer the proceedings to tribal court and mother objected.
The trial court determined that because mother had voluntarily terminated
her parental rights she had no standing to challenge the
transfer motion.
**4
Mother then moved for relief from the order terminating
her parental rights under SDCL 15-6-60(b) alleging mistake or misrepresentation
in her prior termination proceeding. The trial court granted
mother's motion and the order terminating her parental rights was
vacated. Mother objected to a transfer to the tribe
and this matter proceeded in circuit court. The trial
court terminated father's parental rights.
ANALYSIS
ISSUE
ONE
**5
Whether
the trial court abused its discretion in vacating mother's voluntary
termination of parental rights.
A.
Procedural Error
**6
Father attempts to appeal from the trial court's decision relieving mother
from the order entered in her voluntary termination proceeding (circuit
court file 01-018). Father appeared at the hearing on that motion but
father did not attempt to appeal from that order. Instead, father attempts
to appeal from the order granting mother rule 60(b) relief in this separate
abuse and neglect proceeding (circuit court file 01-025). Neither the
order, the memorandum opinion, nor the findings of fact and conclusions
of law entered on that motion appear in this file or are a part of the
record made by father. However, they are included in the appendix to the
State's brief. Procedurally, it appears father has failed to perfect his
appeal from that order and present it to this Court for review. At any
rate, we reach the merits of this argument.
B.
Merits of Argument
**7
SDCL 15-6-60(b) permits a court, among other things, to relieve a party
from a final judgment within a reasonable time for any reason justifying
relief. Matter
of J.M.J.,
368 N.W.2d 602, 607 (S.D.1985) (holding denial of a petition to vacate
a termination order was reversible
error). "Rule 60(b) is an extraordinary remedy which should be granted
only where there has been a showing of exceptional circumstances."
Matter of T.M.B.,
416 N.W.2d 260, 263 (S.D.1987). Any decision to grant or deny rule 60(b)
relief "rests with the sound discretion of the trial court and will
not be disturbed on appeal except for abuse." Divich
v. Divich,
2002 SD 24, ¶ 8, 640 N.W.2d 758, 761.
**8
The trial court found that: (1) mother timely
petitioned to vacate the order *501
of termination; (2) mother did not want the tribe
involved in any case regarding her children; (3) mother
would not have terminated her rights if she had known
the tribe would seek jurisdiction over D.G.; (4) mother
was mistaken in her beliefs concerning the involvement of the
tribe; (5) father told mother prior to her voluntary termination,
as well as before the birth of D.G., that he
was not enrolled in any tribe; (6) father sent
a letter to DSS indicating he was not enrolled in
a tribe; and, (7) mother relied upon these statements
from father. Based on these findings of fact, the
trial court determined that mother was entitled to have the
termination order vacated on the grounds of mistake and misrepresentation,
and these facts constituted exceptional circumstances justifying rule 60(b) relief.
**9
Under these circumstances, the trial court's decision was not an abuse
of discretion. Mother had previously objected to transfers of jurisdiction
to tribal court when her other children were involved, she was unaware
of father's tribal enrollment based on his representations, and she testified
she would have objected to the transfer of jurisdiction if she had been
aware that was a possibility.
[FN1]
FN1.
A parent's timely pre-termination objection survives to prohibit transfer of
jurisdiction to the tribe even when a parent's rights are
subsequently terminated. In
re K.D.,
2001 SD 77, ¶
9, 630 N.W.2d 492, 494. Had mother been aware
of father's tribal enrollment she could have simply entered the
objection she was entitled to under ICWA 25 USC §
1911(b) before voluntarily terminating her parental rights.
ISSUE TWO
**10
Whether
the trial court abused its discretion in qualifying an ICWA
expert.
**11
ICWA provides:
No
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses,
[FN2] that the continued custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
FN2.
"The use of the plural form, 'expert witnesses,' in []
ICWA does not mean, however, that the testimony of more
than one qualified expert is required." In
re Mahaney,
146 Wash.2d 878, 51 P.3d 776, 786 (2002)(citing In
re Dependency of Roberts,
46 Wash.App. 748, 732 P.2d 528 (1987); D.A.W.
v. State,
699 P.2d 340, 342 (Alaska 1985)).
25 USC §
1912(f). Father contends that qualified expert testimony, as mandated
by ICWA, was lacking in this case.
**12
Qualification of experts and admission of their testimony are matters
that fall within the trial court's sound discretion. In
re J.L.H.,
316 N.W.2d 650, 651 (S.D.1982). A trial court's rulings in this area will
be disturbed on appeal only if its discretion was clearly abused. Id.
**13
The trial court qualified DSS caseworker Murtaugh as an
ICWA expert. Murtaugh had worked with children and families
for eighteen years, worked with DSS for six years, a
large majority of the families she had worked with were
Native American, she has a Native American family of her
own, was trained in cultural issues and had previously been
qualified as an ICWA expert. Based on these qualifications,
the trial court did not abuse its discretion in determining
the witness was a qualified expert under ICWA.
ISSUE
THREE
**14
Whether
the trial court erred in finding the requirements of *502
ICWA were met before terminating parental rights.
A.
Active Efforts
**15
ICWA requires the State to show that it made efforts to prevent the breakup
of the Indian family. In this regard, ICWA provides:
Any
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under state
law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.
25 USC §
1912(d).
**16
The record demonstrates that DSS engaged in "active efforts"
designed to prevent the breakup of this Indian family.
Father argues that DSS failed to provide active efforts aimed
at rehabilitating the family while he was in custody.
Clearly, father's incarceration was a major limiting factor for DSS
in seeking to return D.G. to his care.
**17
A parent's incarceration does not automatically excuse DSS from exercising
efforts to return the child. Matter
of A.S., 496
N.W.2d 589 (S.D.1993). Yet, it is a matter of fact that a "parent's
incarceration limits DSS in its attempts to rehabilitate the family."
In re A.S.,
2000 SD 94, ¶ 23, 614 N.W.2d 383, 387. This acknowledges the reality
that in determining
a parent's fitness the fact of incarceration cannot be ignored. Likewise,
when assessing what options are available to prepare the parent for the
return of a child, incarceration narrows the available options. Father
was referred to drug and alcohol classes, parenting courses, independent
living and management courses at the penitentiary and received regular
contact from the caseworker. Under these circumstances, which included
father's incarceration, DSS's efforts were active and reasonable. DSS
cannot be faulted for father's criminal choice which limited its ability
to return the child.
B.
Continued Custody Would Likely Result In Serious Emotional Or Physical
Damage
To The Child.
**18
Child custody proceedings involving the termination of parental rights
to an Indian child are subject to specific minimum federal procedures
and standards. ICWA provides:
No
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child.
25 USC §
1912(f). Thus, the burden of proof that must be
shown is "evidence beyond a reasonable doubt." Id.
**19
The trial court found beyond a reasonable doubt that
serious emotional or
physical harm to the child would result from continued custody
with father. The trial court considered father's lengthy criminal record
and his incarceration in the penitentiary. The trial court
also recognized father's severe alcohol problem that contributed to a
number of his criminal activities and found that there is
little likelihood he would be able to maintain sobriety in
order to care for this child upon his release from
the penitentiary. The ICWA expert testified that custody with
father would likely result in serious emotional or physical damage
to the child. Furthermore, D.G. was a special needs
child that needed extra care and monitoring. Based on
this, the trial court determined *503
that father was unfit and the child could not wait
for him to address his parenting issues and alcoholism.
These findings were all made beyond a reasonable doubt and
supported by the record. These findings support the termination
of parental rights to this Indian child under ICWA and
the trial court's determination that the least restrictive alternative commensurate
with the best interests of this child was termination of
father's parental rights.
**20
Affirmed.
**21
GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER, and MEIERHENRY,
Justices, participating.
679 N.W.2d 497, 2004 SD 54
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