| (Cite
as: 504 N.W.2d 598)
Supreme
Court of South Dakota.
The
PEOPLE of the State of South Dakota in the Interests
of M.C., Child &
Concerning
R.W.
Nos.
18028, 18061.
Considered
on Briefs April 20, 1993.
Decided
Aug. 11, 1993.
*599
Nora K. Kelley, Rapid City, for appellant, M.C., Child.
Terry L. Pechota of Viken, Viken, Pechota, Leach & Dewell,
Rapid City, for intervenor, Rosebud Sioux Tribe.
SABERS, Justice.
Trial court transferred Indian Child custody proceedings to tribal court.
Indian Child appeals the transfer. We
reverse and remand.
FACTS
M.C., an Indian girl, was born on June 27, 1990.
The State was awarded temporary
custody on July 23, 1991. While in relative
foster care with her aunt, M.C. was severely burned.
Upon her release from the hospital, she was placed
in foster care with a non-relative. Although legal
custody remained with the State, M.C. was later transferred to
relative foster care with her grandmother.
On March 16, 1992, Circuit Judge Jeff Davis held a
review hearing and ordered physical custody transferred to M.C.'s mother,
R.W., with legal custody to automatically revert to her in
60 days unless a review hearing was scheduled before then.
On April 1, 1992, Judge Davis ordered M.C.
removed from her mother's physical custody and transferred to non-relative
foster care. Judge Davis also directed the State
to file an abuse and neglect petition against R.W.
On April 10, 1992, the State filed a petition alleging
that R.W. abused and neglected M.C. and notified the Rosebud
Sioux Tribe (Tribe). An advisory/adjudication hearing was held
on April 20, 1992. When Judge Davis continued
legal and physical custody of M.C. with the State for
placement in non-relative foster care, R.W. filed an affidavit for
change of judge. On April 23, 1992, Circuit
Judge John K. Konenkamp was assigned to the case.
On May 18, 1992, Judge Konenkamp ordered that legal
and physical custody of M.C. remain with the State in
non-relative foster care. An adjudication hearing was scheduled
for July 1 and 2, 1992.
The Tribe's motion to intervene was filed on May 4,
1992, and granted on May 21, 1992. On
June 26, 1992, the Tribe moved to transfer this case
to tribal court.
Late in the day on June 29, 1992, Judge Konenkamp
telephoned the parties and scheduled a hearing on the motion
to transfer for 8:15 the following morning. M.C. and the
State objected to transfer, claiming good cause existed not to
transfer. M.C. asked the court to wait and
make its decision regarding transfer until after the court had
listened to the evidence that M.C. would be presenting the
following day at the adjudication hearing. Without waiting,
the court found that M.C. and the State had not
met their burden and granted the motion to transfer.
The Tribe accepted the transfer on June 30, 1992.
M.C. moved for stay of the trial court's order for
transfer on August 17, 1992. The trial court
denied the stay and M.C. moved for a stay from
this court. M.C. was granted a temporary stay
on August 21, 1992, pending full consideration by this court.
The trial court entered an ex-parte order placing
physical custody of M.C. with R.W. This court
denied M.C.'s motion for *600
stay on August 24, 1992. M.C. appeals the
trial court's order.
DECISION
The issue is whether the trial court erred in transferring
jurisdiction to the tribal court: (1) because the Tribe's
motion to transfer was untimely and (2) without providing M.C.
with sufficient notice and an adequate opportunity to be heard,
including an evidentiary hearing at which testimony could be presented.
ICWA
[Indian Child Welfare Act], codified at 25 U.S.C. §§
1901 et seq. (1978) was passed by Congress because "it
is the policy of this Nation to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from
their families and the placement of such children in foster
or adoptive homes which will reflect the unique values of
Indian culture[.]"
In
re Dependency and Neglect of A.L.,
442 N.W.2d 233, 235 (S.D.1989) (quoting 25 U.S.C. §
1902; Claymore
v. Serr,
405 N.W.2d 650 (S.D.1987)). The two specific purposes
of the act: (1) to protect the best interests
of Indian children, and (2) to promote the stability of
Indian tribes, are based on the assumption that protection of
the Indian child's relationship to the tribe is in the
child's best interests. Id.
(citation omitted).
To fall within the jurisdiction
of ICWA, a child must be an unmarried person under the age of eighteen
who is either a member of an Indian Tribe or eligible for membership in
an Indian Tribe and the biological child of a member of an Indian Tribe.
Id.;
25 U.S.C. § 1903(4). It is undisputed that M.C. is an Indian child
within the jurisdiction of ICWA. Because she is not domiciled or residing
within the reservation of her tribe, the Tribe has concurrent
jurisdiction in these proceedings. See
A.L., 442 N.W.2d
at 235.
M.C. argues that the
trial court's finding that the Tribe's motion to transfer was timely is
clearly erroneous or that the Tribe's motion to transfer was untimely
as a matter of law.
[FN1]
FN1.
The governing standard of review is as follows:
A
trial court's findings of fact cannot be set aside unless
they are clearly erroneous and we are, after a review
of all of the evidence, left with a definite and
firm conviction that a mistake has been made.
A trial court's conclusions of law may be reviewed and
set aside on appeal only when the trial court has
erred as a matter of law. We will
uphold the judgment of the trial court if it is
right for any reason.
A.L.,
442 N.W.2d at 235 (citations omitted).
"Good
cause not to transfer the proceeding may exist if any
of the following circumstances exists:
(i)
The proceeding was at an advanced stage when the petition
to transfer was received and the petitioner did not file
the petition promptly after receiving notice of the hearing."
Id.
at 236 (quoting 44 Fed.Reg. at 67,591). The
regulation "is designed to encourage the prompt exercise of the
right to petition for transfer in
order to avoid unnecessary delays. However, whether a
petition is timely must be made on a case-by-case basis.
Flexibility is required by the trial court in
applying this 'good cause' criteria." Id.
(citation omitted).
It is undisputed that the Tribe received notice of these
proceedings on December 9, 1991. It was not
until April 10, 1992, however, that the State filed a
formal petition alleging M.C. was abused and neglected.
On May 4, 1992, less than one month after receiving
notice of this petition, the Tribe moved to intervene and
on June 26, 1992, the Tribe moved to transfer jurisdiction.
Therefore, M.C. fails to demonstrate that the trial
court's finding was clearly erroneous or that the trial court
erred as a matter of law.
M.C. also claims that the trial court erred in failing
to hold an evidentiary hearing and make findings on whether
there was good cause not to transfer jurisdiction.
Tribe argues M.C. did not object to the findings or
propose her own findings and *601
therefore, she cannot question them for the first time on
appeal.
SDCL 15-6-52(a) provides
in part:
Any
action or decision of the court in making or modifying
findings of fact or conclusions of law shall be deemed
excepted to, but the failure of the court to make
a finding or conclusion on a material issue shall not
be deemed excepted to unless such finding or conclusion has
been proposed to or requested from the court.
SDCL 15-6-52(a) also provides that the prevailing party shall
prepare, serve and submit proposed written findings of fact and
conclusions of law to the court and opposing counsel which
the court shall not sign prior to the expiration of
five days after service of the proposed findings.
The State did not, however, serve M.C. with the findings
of fact and conclusions of law until they were signed
and filed. M.C. was unable to timely object
or propose findings because the State failed to comply with
SDCL 15-6-52(a). Therefore, her failure will not prevent her from
raising these issues on appeal.
25 U.S.C. § 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).
[FN2]
FN2.
Section 1911(b) [of the Indian Child Welfare Act]
... creates concurrent but presumptively tribal jurisdiction in the case
of children not domiciled on the reservation: on petition
of either parent or the tribe, state-court proceedings for foster
care placement or termination of parental rights are to be
transferred to the tribal court, except in cases of "good
cause," objection by either parent, or declination of jurisdiction by
the tribal court.
Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 36, 109 S.Ct. 1597, 1601-02, 104 L.Ed.2d
29, 38-39 (1989).
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).
M.C. was entitled to an evidentiary hearing to establish good cause not
to transfer jurisdiction to the Tribe. "[U]nder the Indian Child
Welfare Act, a jurisdictional hearing is required before the court can
enter an order either granting or denying a request for the transfer of
jurisdiction of Indian children to tribal custody. Such a hearing is required
whenever the Indian children live outside of a reservation." In
re G.L.O.C.,
205 Mont. 352, 668 P.2d 235, 237 (1983). While the trial court did conduct
a hearing on the Tribe's motion to transfer, it was perfunctory, at best.
M.C. *602
was not provided with adequate notice or an opportunity to be heard.
Late in the work day on June 29, 1992, the
trial court scheduled a hearing on the Tribe's motion to
transfer for 8:15 the following morning. At that
hearing, M.C. requested that the court wait to make a
determination regarding transfer until it had listened to the evidence
which would establish "good cause to the contrary" at the
adjudication hearing which was scheduled for the following day.
According to M.C., she was prepared to present testimony
at the adjudication hearing which would address her particular medical
needs as a result of the burns she had sustained
and the Tribe's lack of a sufficient plan to accommodate
these needs. The trial court granted the motion
to transfer without conducting an evidentiary hearing and entered Findings
of Fact and Conclusions of Law which simply state that
"[t]he Motion to Transfer by the Rosebud Sioux Tribe is
in a timely manner," and "the matter is transferred to
the Rosebud Sioux Tribe" because there is "no good cause
to the contrary."
As in Coleman,
the record is void of any indication that the circuit
court considered the various factors which may constitute "good cause"
not to transfer jurisdiction to the Tribe. 372 S.E.2d
at 915. This was error. See
J.J.,
454 N.W.2d at 329-30. (While on appeal to this
court, Tribe filed a motion to intervene and requested transfer
of the matter to tribal court. This court remanded the
case to the trial court for an evidentiary hearing on
the motion. On appeal, this court was able
to determine whether the trial court erred in denying transfer,
in part, because "[a]fter an evidentiary hearing on the remand,
the trial court entered detailed findings of fact and conclusions
of law" which supported its conclusion that "good cause to
the contrary does exist to deny the transfer." Id.
at 328-31.)
We reverse and remand for an evidentiary hearing on the
issue of good cause. "In deciding if 'good
cause to the contrary' exists or not, the [trial] court
should make specific findings on the factors outlined above."
Coleman,
372 S.E.2d
at 915. See
also J.J.,
454 N.W.2d at 328-30.
M.C. argues that her substantive due process rights were denied
when the trial court denied her motion to stay its
transfer order. M.C. claims no mechanism exists to
transfer a case from tribal court to state court.
At the hearing on the request for a stay,
the Tribe, through its counsel, assured the trial court that
if the transfer was reversed, the Tribe would transfer the
case back to state court. In view of
this assurance, we will reach this issue if and when
required.
WUEST and AMUNDSON, JJ., concur.
MILLER, C.J., and HENDERSON, J., dissent.
HENDERSON, Justice (dissenting).
I respectfully dissent. Here, the Honorable John Konenkamp,
Circuit Judge, transferred jurisdiction to the Rosebud Tribal Court.
In my opinion, the decision of the trial court
should be affirmed, not reversed, because the child was not
denied any substantive due process.
Set forth, in toto, in the majority opinion, is the
pertinent statute, 25 U.S.C. §
1911(b). There is no reason to repeat it.
Pertinent facts:
.
May 4, 1992, Rosebud Sioux Tribe motions to intervene.
.
Judge Konenkamp is assigned to the case and an advisory
hearing is scheduled for May 21, 1992.
.
R.W., mother, denies allegations of the formal complaint.
.
On May 21, 1992, the Rosebud Sioux Tribe's motion to
intervene is granted. An adjudicatory hearing is set for July
1, 1992.
.
Pending this hearing, the Rosebud Sioux Tribe motioned, on June
26, 1992, to transfer the case to the Rosebud Sioux
Tribal Court.
.
IMPORTANT PROCEDURAL FACT: A hearing was set for June
30, 1992; thereat, the
State and the child presented various arguments in opposing *603
the motion to transfer.
Rosebud Sioux Tribe presented its plans to Judge
Konenkamp. These plans were deemed acceptable by the
trial court.
.
On June 30, 1992 (after this hearing), these arguments were
denied on the merits; the motion to transfer to
the Rosebud Sioux Tribe was granted on June 30, 1992.
There was no failure to afford due process.
The Circuit Judge entered Findings of Fact and Conclusions of
Law. Under the Hobelsberger
rule, Estate
of Hobelsberger,
85 S.D. 282, 181 N.W.2d 455 (1970), announced many times
in this Court, the Findings of Fact were not clearly
erroneous; nor were the
Conclusions of Law "mistakes of law" under the oft-repeated Permann
rule. Permann
v. Dept. of Labor, Unemp. Ins. D.,
411 N.W.2d 113 (S.D.1987).
Under the controlling federal statute, Judge Konenkamp decided there was
not good cause to deny the transfer. This
was after all, an Indian child, with an Indian mother,
and the transfer was to the Rosebud Sioux Tribe.
We are involved with the Indian Child Welfare Act.
The lower court's ruling seems to be an
outrage to the child's counsel because of a perceived procedural
flaw. I do not view it that way.
Nor do I agree with appellate counsel, per page 14
of appellant's brief that "[Judge Konenkamp] decided the transfer
and stay motions based on what he [Judge Konenkamp] perceived
to be the politically correct decision." Nor do
I agree that "Issues of trust and confidence in the
Intervenor [Rosebud Sioux Tribal Court] are irrelevant on the motion
for stay and only tangentially relevant on the motion for
transfer," as expressed by child's brief. Respect of
Indian courts by State courts and State courts by Indian
courts are an absolute requirement for the understanding and resolution
of legal questions confronting the two races. It
is a legitimate goal. A system of mutual
respect is vital to civil tranquility, stability, and law.
Finally, I call attention to the Bureau of Indian Affairs
guidelines, which were developed from the aforesaid federal act.
These guidelines are interpretive
and nonbinding. See
Matter of A.L.,
442 N.W.2d 233 (S.D.1989). They were intended to
act as "guidelines" for state courts--not absolute laws.
Regarding the verbiage on the federal statute on "good cause
to the contrary," please note that those regulations mention the
presentation of "views." No question about it:
Both
parties in this case had the opportunity to present their
views. At 44 Fed.Reg. 67591 we find these
words:
...
if the court believes or any party asserts that good
cause to the contrary exists, the reasons for such belief
or assertion shall be in writing and made available to
the parties who are petitioning for transfer. The
petitioners shall have the opportunity to provide the court with
their views on whether or not good cause to deny
the transfer exists.
Again, the word "views" is expressed on the same
page thereof as follows:
...
where it is proposed to deny transfer on the grounds
of 'good cause', however, all parties need an opportunity to
present their views to the court.
It is undisputed that child had that opportunity and
did present views and arguments. These were considered
by Judge Konenkamp and rejected. In civil cases,
due process requires an opportunity
for a hearing on the merits granted at a meaningful
time in a meaningful manner. An actual
hearing on the merits is not required by the Constitution.
Boddie
v. Connecticut,
401 U.S. 371, 91
S.Ct. 780, 28 L.Ed.2d 113 (1971); Northwest
S.D. Production Credit v. Dale,
361 N.W.2d 275 (S.D.1985).
I am authorized to state that Chief Justice MILLER joins
this dissent.
504 N.W.2d 598
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