| (Cite
as: 654 N.W.2d 786, 2002 SD 144)
Supreme
Court of South Dakota.
In
Interest of J.L., Minor Child.
No.
22227.
Considered on Briefs Oct.
3, 2002.
Decided
Nov. 26, 2002.
*787
Elizabeth Rosenbaum, Sioux City, Iowa, Attorney for intervenors and appellants
W.S. and S.S.
Linda Kogel, Vermillion,
South Dakota, Attorney for appellee mother.
Phil Peterson, Beresford,
South Dakota, Guardian Ad Litem, Attorney for J.L.
PER CURIAM.
**1
Intervenors W.S. and S.S. (foster parents) appeal a circuit court order
transferring jurisdiction over this child abuse and neglect case to the
Tribal Court of the Standing Rock Sioux Tribe of North and South Dakota.
We affirm.
FACTS
**2
J.L., the child at issue, was born on August 31, 2000. J.L. and his parents
are Native American and J.L. and M.S., mother, are enrolled members of
the Standing Rock Sioux Tribe.
*788
**3
In March 2001, mother was residing in Lantry, South Dakota on the
Cheyenne River Sioux Reservation. On March 12, she contacted Catholic
Family Services asking to place J.L. for adoption. Mother advised that
she could not care for J.L. physically or emotionally and that she wanted
an immediate placement for the child. On March 15, Catholic Family Services
accepted J.L. into foster care and, on March 22, placed him in the physical
custody of W.S. and S.S. of Vermillion as a pre-adoptive placement. W.S.
and S.S. have been married over seven years and are licensed foster parents.
S.S. is a kindergarten teacher and W.S. is a professor in the School of
Education at the University of South Dakota.
**4
On May 5, 2001, mother contacted Catholic Family Services saying that
she wanted her son back.
[FN1] Mother continued to have contact with Catholic Family Services and
arranged to pick J.L. up in Vermillion on Friday, May 25. However, that
same day, the South Dakota Department of Social Services (DSS) received
information concerning mother's care of J.L.'s three-year-old sister.
Allegations were made that mother had placed the child in the physical
custody of an aunt, that she had been abused while in the aunt's care
and that she had suffered a broken nose and two black eyes. It was further
alleged that mother had retrieved the child from the aunt's custody without
obtaining any medical treatment for her.
FN1.
Section 1913(c) of the Indian Child Welfare Act (ICWA) permits a parent
to withdraw consent for adoption of a child at any time prior to entry
of a final decree of adoption. 25 USC § 1913(c).
**5
On receipt of this information, DSS took emergency custody of J.L. Thus,
mother was unable to meet with anyone from DSS or with foster parents
or J.L. during her visit to Vermillion on May 25. A temporary custody
hearing was held on Tuesday, May 29. Mother and H.L, father, participated
by telephone. After the hearing, the circuit court entered an order granting
temporary custody of J.L. to DSS and continuing his physical custody with
foster parents. On May 30, the State filed a petition alleging J.L. to
be an abused and neglected child. The first appearance on the petition
was scheduled for July 27 and the Standing Rock Sioux Tribe was notified
of the hearing.
**6
After the May 29 hearing, DSS arranged for a social worker from Pierre
to meet with mother and father and to conduct a home study. The study
was completed in the middle of June and services were recommended. However,
DSS had difficulty maintaining contact with mother between June 25 and
the end of August. On August 31, mother contacted DSS to advise that she
was going to have the tribe intervene in the matter. Due to mother's sporadic
contact, the first appearance scheduled for July was rescheduled for August
and, again, for November. In the interim, petitions to intervene were
filed by the Standing Rock
Sioux Tribe and by foster parents. The tribe also filed a petition to
transfer jurisdiction over the case from circuit court to the Standing
Rock Sioux Tribal Court pursuant to the ICWA.
**7
The first appearance on the petition was held on November 9, 2001. A DSS
report to the court at that time indicated that mother was living with
her grandfather on the Standing Rock Reservation in Kenel, South Dakota
and that she was on a waiting list for a two bedroom apartment that might
be available by the end of the month. The report also indicated that father
was no longer living with mother. The report recommended that *789
mother complete parenting classes, alcohol and drug evaluations, a mental
health evaluation and that she find appropriate housing. At the close
of the hearing, the circuit court granted the motions to intervene filed
by the tribe and by foster parents. After the hearing, mother had her
first visit with J.L. since May and a DSS worker later described the visit
as "very appropriate."
**8
The hearing on the tribe's petition to transfer jurisdiction was held
on December 7, 2001. On December 13, the circuit court entered a detailed
memorandum decision granting the motion to transfer. The memorandum instructed
that, on receipt of a written confirmation from the tribal court that
it would accept jurisdiction, the case would be transferred to the tribal
court for further proceedings. A confirmation of the tribe's acceptance
of jurisdiction
was filed on December 19 and the circuit court entered its formal order
transferring jurisdiction on December 20. According to foster parents'
brief, it was also on December 19 that J.L. was removed from their home
and placed directly into mother's care. This appeal followed.
ISSUE
**9
Did the circuit
court err in transferring jurisdiction to the tribal court?
**10
Foster parents argue that the circuit court erred in transferring jurisdiction
of this matter to the Standing Rock Sioux Tribal Court. The standards
for consideration of this issue have been outlined as follows:
25
USC § 1911(a) of ICWA sets forth the jurisdictional framework for
child custody proceedings and grants a tribe exclusive jurisdiction if:
1) the child is a ward of the tribal court, regardless of where the child
resides or is domiciled; 2) the child resides within the reservation of
his or her tribe; or 3) the child is domiciled within the reservation.
Where §
1911(a) does not apply, 25 USC § 1911(b) affords states and tribes
concurrent but presumably tribal jurisdiction over child custody proceedings.
In enacting the jurisdictional provisions of ICWA, "Congress intended
that as a general principle, Indian tribes should have authority to determine
custody issues involving Indian children."
In re Adoption
of Halloway,
732 P.2d 962, 968 (Utah
1986).
People in Interest
of G.R.F.,
1997 SD 112, ¶ 14, 569 N.W.2d 29, 32 (emphasis added).
**11
Here, the circuit court determined that 25 USC § 1911(a) does not
apply and resolved the transfer of jurisdiction issue under the requirements
of 25 USC § 1911(b). This determination is not questioned on appeal.
**12
This Court has outlined the following analysis for transfer of jurisdiction
issues under § 1911(b):
25
USC § 1911(b) (1989) provides in part:
In
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 [.] (emphasis added.)
"[T]ransfer
to the jurisdiction of the tribe is mandatory in the absence of good cause
to the contrary." Chester
Cnty. Dept. of Social Servs. v. Coleman,
296 S.C. 355, 372 S.E.2d 912, 914 (Ct.App.1988).
*790
Federal guidelines interpreting the Act define "good cause to the
contrary" as including, but not limited to cases where (1) the proceeding
is at an
advanced stage when the petition to transfer is received and the petition
is not promptly filed after receipt of notice; (2) the Indian child is
over the age of twelve and objects to the transfer; (3) evidence necessary
to decide the case cannot be adequately presented to the tribal court
without undue hardship to witnesses and parties; (4) the parents of an
Indian child over the age of five are not available and the child has
had little or no contact with the child's tribe or members of the child's
tribe.... Case law also suggests that "good cause to the contrary"
includes the absence of a tribal mechanism for handling child custody
matters. The burden of establishing good cause to the contrary is on the
party opposing transfer. The third element of the guidelines has been
applied to deny transfer due to considerations of forum
non conveniens,
such as availability of witnesses and access to proof.
Coleman,
372 S.E.2d at 914-15 (citations omitted). See
also State ex rel. J.J.,
454 N.W.2d 317, 328-331 (S.D.1990).
People in Interests
of M.C., 504
N.W.2d 598, 601 (S.D.1993).
**13
This Court further held in M.C.,
supra, that
a child is entitled to an evidentiary hearing to establish good cause
not to transfer jurisdiction to the tribe. Id.
The Court also held that the record must reflect that the trial court
considered the various factors constituting good cause not to transfer
jurisdiction and that it should make specific findings on all of the factors
outlined above. Id
at 601-602.
**14
Although the circuit court did not enter formal findings and conclusions
on the transfer issue in this case, such a failure is not necessarily
fatal where the record leaves no doubt as to the basis of the court's
decision. See
e.g., State v. Hartley,
326 N.W.2d 226, 228 (S.D.1982)(whether findings and conclusions are formally
entered or orally made on the record, they must be such that there is
no room for speculation and conjecture concerning what the trial court
found or concluded).
[FN2] Here, the circuit court entered an extremely detailed seventeen
page memorandum decision methodically analyzing each of the factors constituting
good cause not to transfer jurisdiction under § 1911(b). There is
no doubt as to the basis of the court's decision.
FN2.
Nevertheless, we reiterate our preference for the entry of formal written
findings of fact and conclusions of law whenever they are required.
**15
With regard to the applicable factors, the circuit court found that the
following favored a transfer of jurisdiction: 1) that although the tribe
did not file a petition promptly after receiving notice of this case,
the proceedings were not at an advanced stage when the petition was filed;
2) J.L. is not over twelve years of age so that guideline has no application;
3) J.L. is
less than five years of age and his mother is available so that guideline
has no application; 4) the Standing Rock Sioux Tribe in North and South
Dakota does have a tribal court that could entertain this action.
**16
The only factor that the circuit court found would support a denial of
a transfer of jurisdiction was the "forum
non conveniens
factor." This requires consideration of whether the evidence necessary
to decide the case can be adequately presented to the tribal court without
*791
undue hardship to witnesses and parties. In that regard, the circuit court
found:
[J.L.]
has never resided on the Standing Rock Reservation. There are no witnesses
whose testimony would be relevant at the adjudicatory stage (other than
Mother) on the Standing Rock Reservation. All of the witnesses to the
abuse & neglect allegations would either be on the Cheyenne River
Reservation or in Vermillion. For the dispositional phase, witnesses as
to mother's current situation and her efforts to establish a home where
[J.L.] would be appropriately cared for would be on the Standing Rock
Reservation. Witnesses as to [J.L.'s] current situation and what is necessary
and appropriate for him would mostly be in Vermillion.
The
Tribal Court in Ft. Yates, North Dakota is a long way[] from Vermillion;
the witnesses who are familiar with [J.L.'s] life during the past six
months would be required to leave South Dakota and go to North Dakota
to participate in
any further proceedings. This evidence could not be adequately presented
to the Tribal Court without undue hardship to the parties and the witnesses.
This guideline is in favor of this Court retaining jurisdiction.
**17
Even this finding, however, is inconclusive. It concedes that witnesses
will either have to travel from Vermillion to the tribal court or from
locations on the Standing Rock and Cheyenne River Reservations to Vermillion
and that one side or the other will be inconvenienced and face hardship
in these proceedings. Thus, contrary to the circuit court's conclusion,
this is, at best, a neutral factor in evaluating the tribe's petition
to transfer jurisdiction. Under the settled law that § 1911(b) affords
the tribes concurrent "but presumably tribal jurisdiction" in
cases of this nature, a neutral factor provides no basis for denial of
a tribe's petition for a transfer of jurisdiction.
**18
Based upon the applicable factors discussed above, the circuit court did
not err in its ultimate determination granting the tribe's petition to
transfer jurisdiction. Foster parents argue that the overall best interests
of the child override the foregoing factors. In that vein, they argue
that the circuit court's finding that it would be in J.L.'s best interests
to remain with them provided adequate good cause to deny the petition
to transfer jurisdiction.
**19
There is authority for foster parents' argument. In
Matter
of Adoption of T.R.M.,
525 N.E.2d 298, 307 (Ind.1988), the Indiana Supreme Court made the following
observations as to the factor of the best interests of the child in a
transfer request:
Section
1902 of the ICWA provides in part "that it is the policy of this
Nation to protect the best interests of Indian children ...." The
Montana Supreme Court, while considering the above-mentioned guidelines
in determining the issue of good cause, has also considered the "best
interests of the child," and has concluded that transfer may be defeated
by a "clear and convincing showing" by the State. In
re M.E.M. (1981),
195 Mont. 329, 336, 635 P.2d 1313, 1317. We agree that the best interests
of the child are a valid consideration in determining the issue of good
cause under § 1911(b).
**20
Here, despite its ultimate holding that jurisdiction over this case should
be transferred to the tribal court, the circuit court did enter the following
findings determining that it would be in J.L.'s best interest to remain
with foster parents:
The
evidence shows that [foster parents] are good people who truly care for
[J.L.] and have done whatever they could to improve his life. They have
provided a good home, good medical care, and the *792
love and affection that [J.L.] needed. [J.L.] has bonded with them and
will suffer psychologically if he is removed. This Court believes that
if [J.L.] was left with them, they would continue to provide this care
and he would have many opportunities
that otherwise will not be available to him. It would be in [J.L.'s] best
interests to remain with [foster parents].
**21
There is no dispute whatsoever over the capability of foster parents and
the good care that they provided J.L. However, that a substitute parent
might provide a child with good care or even better care than its natural
parent is not an appropriate standard for determining the best interests
of a child. As this Court said in Matter
of B.E., 287
N.W.2d 91, 97 (S.D.1979), "State intervention for the best interest
of the child cannot be used merely to insure that the child has a better
home or someone better to care for it."
**22
The circuit court's findings regarding J.L.'s bonding with foster parents
and the potential for psychological damage on his removal from their care
do raise legitimate concerns over his best interests. Unfortunately, these
concerns are present in every abuse and neglect case where a child is
entrusted to foster care as the extended legal process necessary to protect
the rights of all parties unfolds. Moreover, we cannot ignore the reality
at this juncture that J.L. was removed from foster parents' care on entry
of the circuit court's transfer order and has now been back in the care
of his own mother for approximately nine months. Presumably, uprooting
him from her care and transferring him back to foster parents at this
point would also have some psychological effect on the child.
**23
Another important consideration in evaluating the best interests of the
child in this particular case is the point at which we find ourselves
in the abuse and neglect process. Well over a year after DSS's first intervention,
there has yet to be any adjudication of abuse or neglect of J.L.
[FN3] Were we to reverse the circuit court's transfer order, it would
be necessary for that court to reacquire legal and personal jurisdiction
over J.L. and to conduct an adjudicatory hearing. Based upon the record
before us, we question whether an adjudication of abuse and neglect could
be sustained. The DSS worker who testified at the transfer hearing conceded
that the allegations under which DSS originally intervened in this case
were not true, i.e.,
the abuse of J.L.'s older sister by his aunt. Thus, we perceive no grounds
to sustain an adjudication. Even if an adjudication could be sustained,
DSS would be required to make active efforts to work with mother to prevent
the breakup of the family. People
in Interest of B.S.,
1997 SD 86, ¶ 11, 566 N.W.2d 446, 448 (citing People
in Interest of A.R.P.,
519 N.W.2d 56, 60 (S.D.1994)(quoting 25 USC § 1912(d))). Only on
the failure of these efforts could matters proceed to a disposition terminating
mother's parental rights and to a possible permanent placement of the
child with foster parents. Id.
It is not difficult to envision these steps adding further instability
to J.L.'s young life for an even more extended period time. Further instability
and delay are clearly not in J.L.'s best interests. See
Matter of R.P.,
498 N.W.2d
364, 368 (S.D.1993)(best interests of child require that some certitude
and stability enter child's life.)
FN3.
While we recognize mother's partial fault in this delay, it does not change
the status of the case.
**24
For these reasons, we hold that J.L's best interests are better served
by *793
affirming the circuit court's transfer order and by permitting the appropriate
tribal authorities to continue to fulfill their responsibility to act
on J.L.'s behalf and to protect his best interests.
**25
Affirmed.
**26
GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices,
and AMUNDSON, Retired Justice, participating.
**27
MEIERHENRY, Justice, not having been a member of the Court at the time
this was submitted to the Court, did not participate.
654 N.W.2d 786, 2002
SD 144
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