| (Cite
as: 630 N.W.2d 492, 2001 SD 77)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota in the Interest
of K.D., Minor
Child,
And
Concerning Rosebud Sioux Tribe, Intervenor and Appellee.
Nos.
21715, 21726.
Considered on Briefs May
29, 2001.
Decided
June 20, 2001.
*492
Jean M. Cline of Brown, Feehan & Cline, Rapid City, SD, Attorneys
for appellant child.
*493
Wendy T. McGowan, Deputy Pennington County State's Attorney, Rapid City,
SD, Attorney for appellant state.
Terry Pechota of Viken,
Viken, Pechota, Leach & Dewell, Rapid City, SD, Attorneys for appellee
intervenor Rosebud Sioux Tribe.
AMUNDSON, Justice
**1
The State of South Dakota filed a petition to have K.D.'s parents, F.D.
and B.U., parental rights terminated. The Rosebud Sioux Tribe (Tribe)
filed a motion to transfer the proceedings from state court to tribal
court. After K.D.'s parents had their rights terminated, the trial court
granted Tribe's motion. We reverse.
FACTS
**2
On October 9, 1998, the state court granted the State's petition for temporary
custody of K.D. On November 9, 1998, the State filed an abuse and neglect
petition raising specific allegations against the biological parents,
F.D. and B.U.
[FN1] Tribe timely filed a motion to intervene with the court on March
30, 1999. The court granted Tribe's motion to intervene. On June 23, 1999,
Tribe filed its initial motion to transfer jurisdiction and dismiss.
FN1.
F.D., K.D.'s father, is currently incarcerated for convictions of incest
and pedophilia stemming from his treatment of K.D. F.D. is not part of
this appeal.
**3
On July 13, 1999, B.U. filed an objection to transfer pursuant to 25 U.S.C.1911(b)
of the Indian Child Welfare Act (ICWA). On July 14, 1999, the court entered
its order denying Tribe's motion to transfer based on B.U.'s objection.
The court terminated F.D.'s parental rights on August 27, 1999. B.U.'s
parental rights were terminated on June 19, 2000. The court also ordered
K.D. to be temporarily placed under the supervision of the Department
of Social Services, pending final disposition.
**4
Tribe renewed its motion to transfer the proceedings to tribal court on
September 11, 2000. The motion was argued before the court on September
18, 2000. The trial court granted the motion on September 28, 2000. K.D.,
through her guardian ad litem, and the State, appeal, raising the following
issues:
1)
Whether there was a child custody proceeding pending before the trial
court which would give the court jurisdiction to permit Tribe to initiate
a motion to transfer.
2)
Whether the trial court erred in concluding that it could transfer to
tribal court when B.U. objected to the transfer.
STANDARD
OF REVIEW
**5
A trial court's findings of fact cannot be set aside unless they are clearly
erroneous and, after all the evidence, this Court is left with a definite
and firm conviction that a mistake has been made. People
in the Interest of J.J.,
454 N.W.2d 317, 321 (S.D.1990); Matter
of A.L., 442
N.W.2d 233, 234 (S.D.1989). "A trial court's conclusion of law may
be reviewed and set aside only when the trial court erred as a matter
of law." Matter
of A.L. at
235. We also review a trial court's interpretation of statutes without
deference to that court. Satellite
Cable Serv. v. Northern Elec. Coop., Inc.,
1998 SD 67, ¶ 5, 581 N.W.2d 478, 480. Therefore, we review the application
of ICWA to the facts of this case de novo.
ISSUE
Whether
the trial court erred in concluding that it could transfer to tribal court
when B.U. objected to the transfer.
*494
**6
We will address the second issue raised by K.D. first as we find it dispositive.
As stated above, B.U. filed an objection with the trial
court to prevent transfer to the tribal court. The court initially denied
Tribe's motion to transfer because of B.U.'s objection. After B.U.'s parental
rights were terminated, however, Tribe renewed its motion to transfer,
which the court then granted.
**7
The plain language of 25 U.S.C. 1911(b) makes it clear that a parent's
objection to transfer prevents such transfer. According to 25 U.S.C. 1911(b),
"the court ... shall transfer such proceeding to the jurisdiction
of the tribe, absent objection by either parent[.]" The statute contains
no limiting language, nor are there any latter enacted exceptions to a
parent's right to object. The rules of statutory interpretation adopted
by this Court state:
The
purpose of statutory construction is to discover the true intention of
the law which is to be ascertained primarily from the language expressed
in the statute. The intent of a statute is determined from what the legislature
said, rather than what the courts think it should have said, and the court
must confine itself to the language used. Words and phrases in a statute
must be given their plain meaning and effect. When the language in a statute
is clear, certain and unambiguous, there is no reason for construction,
and the Court's only function is to declare the meaning of the statute
as clearly expressed.
Dahn v. Trownsell,
1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (citing Moss
v.
Guttormson,
1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted)). Thus, this
Court is bound by the plain and ordinary meaning of the language employed
in 25 U.S.C.1911(b).
**8
In addition, this Court has also stated that a parent's objection made
pursuant to 25 U.S.C. 1191(b) is absolute. See
Matter of S.Z.,
325 N.W.2d 53 (S.D.1982). InMatter
of S.Z., this
Court stated:
It
is important to note that this is not the case of Indian children who
are domiciled or residing on an Indian Reservation and as a result are
subject to the exclusive jurisdiction of the tribal court. 25 U.S.C. §
1911(a). Rather, the action comes within 25 U.S.C. § 1911(b) which
provides for the jurisdiction of the original proceeding to be in the
state court.... This statute provides that objection by either parent
will keep jurisdiction in the state court.
325 N.W.2d at 56. The Indian Child Welfare Act gives either parent the
absolute right to object to a transfer and keep the case in state court.
The mere fact that the parental rights were subsequently terminated in
no way affects a parent's objection to transfer. See
Matter of S.Z., supra.
**9
It is important to note that B.U.'s objection was not challenged as being
defective or improperly procured. There is no evidence that B.U.'s objection
was not knowingly or involuntary given. Nor is it disputed that B.U. had
changed her mind and withdrew her objection. Therefore, the trial court
erred when it granted Tribe its renewed motion to transfer despite B.U.'s
proper objection pursuant to 25 U.S.C. 1191(b). There is no authority
for the proposition that termination erases from the record a timely objection
by a parent cited to appear in the proceeding.
**10
We reverse and remand for the entry of an order consistent with this decision.
[FN2]
FN2.
The issue before the Court is not the ultimate placement of K.D. Rather,
it is whether a state court can transfer a matter to tribal court after
the termination of the parental rights and despite a parent's objection
to such transfer. Our decision today, however, does not prevent Tribe
from being part of any proceeding in state court. See
25 U.S.C.1911(c). Tribe may advocate its position, and the state court
must follow the strictures of ICWA when determining the final placement
of K.D. See
25 U.S.C.1915. Our decision today merely requires a state circuit court
to follow ICWA and all pertaining sections.
*495
**11
MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices,
concur.
630 N.W.2d 492, 2001
SD 77
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