| (Cite
as: 325 N.W.2d 53)
Supreme
Court of South Dakota.
In
the Matter of S.Z., Alleged Dependent and Neglected Child.
In
the Matter of C.Z., Alleged Dependent and Neglected Child.
No.
13403.
Submitted on Briefs Oct.
2, 1981.
Decided
Oct. 20, 1982.
*54
Janice Godtland, Asst. Atty. Gen., Pierre, for appellant; Mark V. Meierhenry,
Atty. Gen., Pierre, on brief.
Douglas G. Fosheim of
Benson, Wehde & Severson, Huron, for appellees.
DUNN, Justice (on reassignment).
This is an appeal by
the State from an order determining that the notice given to
the Rosebud Sioux Tribe pursuant to the Indian Child Welfare Act, 25 U.S.C.
§§ 1901-1963 (1978) (the Act) was inadequate, and from an order
that transferred custody of the two minor children to tribal officials.
We reverse and remand.
On May 22, 1979, the
State commenced this dependency and neglect proceeding by filing petitions
alleging that the two minors, S.Z. and C.Z., were dependent and neglected
children. The mother, K.Z., is a member of the Rosebud Sioux Tribe, and
the father, R.Z., is a non-Indian. The children are enrolled members of
the Rosebud Sioux Tribe.
The parents first appeared
before the circuit court on May 25, 1979. At that time, the trial court
advised them of their right to court-appointed counsel. Both parents waived
their right to court-appointed counsel, stipulated that they did not want
the matter transferred to tribal court, and consented to foster care placement.
On June 27, 1979, the
state's attorney sent a letter by certified mail to the tribal chairman
of the Rosebud Sioux Tribe which stated, "Enclosed please find 2
Affidavits regarding the above children. These affidavits are notice to
you under the Indian Child Welfare Act." The enclosed affidavits
named the affiant as a social worker for the Department of Social Services
(Department). The affidavits named the children, the parents, their tribal
affiliation, and their nonreservation residency, and then summarized the
circumstances
that led to the Department's intervention.
The next hearing was
held on July 17, 1979, and both parents again waived their right to counsel.
This hearing was continued *55
to allow the mother to pursue alcoholic rehabilitation. An adjudicatory
hearing was to be held on August 27, 1979, but this was also continued
so that both parents could avail themselves of alcoholic rehabilitation
counseling.
At the next hearing,
on June 3, 1980, the court appointed an attorney to represent the children
and an attorney to represent the parents. An adjudicatory hearing was
held on July 2, 1980. At this time the parents entered into a stipulation
that the children were dependent and neglected. A dispositional hearing
was held September 3, 1980, and parental rights were terminated by decree
dated September 19, 1980.
On January 7, 1981, the
parents petitioned the court to set aside the decree, alleging that the
Act had been violated inasmuch as the notice that had been given to the
Rosebud Sioux Tribe of the pendency of the action in state court did not
comply with the requirements found in 25 U.S.C. § 1912(a). The court
granted this petition, and on January 28, 1981, the tribe gave notice
of intervention and the parents consented to the transfer of jurisdiction
from state court to the tribal court. A final hearing was held and the
court ordered the State to surrender the custody of the children to the
tribe.
Appellants contend the
trial court erred when it found the notice given to the Rosebud
Sioux Tribe on June 27, 1979, regarding the pendency of the action in
state court did not comply with the requirements found in 25 U.S.C. §
1912(a). This section provides:
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. No foster care placement
or termination of parental rights proceeding shall be held until at least
ten days after receipt of notice by the parent or Indian custodian and
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.
Id.
(emphasis in original).
In essence, this statute
requires the tribe be notified by registered mail of the pending proceedings
and of the tribe's right to intervention.
[FN1] We find that this requirement was substantially complied with in
the case at hand.
FN1.
Nearly six months after notice was given in this case the federal government
promulgated its "Guidelines for State Courts; Indian Child Custody
Proceedings" which appeared in the Federal Register, Part III, Department
of Interior, Monday, November 26, 1979. Since these guidelines were not
available to the State in this case, the State cannot now be faulted for
failure to adhere to the suggested procedure. We believe, however, that
adherence to these guidelines in the future will prevent situations like
the one before us from arising again.
We specifically address
the timing and sufficiency of the substance of the notice. While it may
be argued that the June 27, 1979, notice was insufficient in that it came
after the parents' first court appearance on May 25, 1979, we conclude
this delay did not prejudice the tribe. The notice was sent to the tribe
fully one year before the final adjudication took place in this case.
The tribe could have intervened at any point during this time period and
cannot now be allowed to reopen the case simply because it did not avail
itself of the opportunity to intervene.
We also believe the substance
of the notice sent was sufficient to appraise the tribe of its opportunity
to intervene in the case. Although not as artfully drafted as it could
have been, the notice did inform the tribe of the
nature of the pending proceeding and the circuit court in which the action
*56
was pending. While the notice did not explicitly state the tribe had a
right to intervene, we note the general tenor of the documents and the
fact the Act had only been in effect for approximately two weeks when
the petition was filed on May 22, 1979. 25 U.S.C. § 1923. Moreover,
the Act itself in 25 U.S.C. § 1911(c) automatically grants the tribe
the right to intervene at any point in the proceeding. Accordingly, we
conclude the notice substantially complied with statutory requirements
and was sufficient to put the Rosebud Sioux Tribe on notice of the pending
proceeding and its right to intervene.
Gridley v. Engelhart,
322 N.W.2d 3 (S.D.1982).
Appellants also contend
the trial court erred when it transferred jurisdiction from the state
court to the tribal court on January 28, 1981. 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. That section reads:
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: Provided,
That such transfer shall be subject to declination by the tribal court
of such tribe.
Id.
(emphasis in original).
This statute provides
that objection by either parent will keep jurisdiction in the state court.
At the very first hearing on May 25, 1979, both parents stipulated that
they did not want the matter transferred to tribal court. Neither parent
altered their position on this transfer issue, despite the subsequent
appointment of counsel, until well after the termination decree was entered
in this case. We believe the parental veto exercised in this case was
made knowingly and voluntarily and thus we conclude the trial court erred
when it transferred jurisdiction to the tribal court.
[FN2]
FN2.
Moreover, assuming the parents had not waived their rights to transfer,
25 U.S.C. § 1911(b) still gives a trial court the right to refuse
transfer on the basis of a showing of "good cause to the contrary."
See Matter of
Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982).
We reverse and remand this case with the direction that the September
19, 1980, decree terminating parental rights be reinstated.
MORGAN, J., and MILLER,
Circuit Judge, concur.
WOLLMAN and HENDERSON,
JJ., dissent.
MILLER, Circuit Judge,
sitting for FOSHEIM, C. J., disqualified.
WOLLMAN, Justice (dissenting).
I dissent from the majority
opinion because I believe that the notice provision of 25 U.S.C. §
1912 was violated on the basis of both the sufficiency of the substance
of the notice and the timing of the notice.
The majority cites Gridley
v. Engelhart,
supra, and relies on the rule of substantial compliance to find the notice
sufficient under the Indian Child Welfare Act (ICWA). Although a rule
of substantial compliance may suffice to carry out the notice provisions
of statutes governing mundane matters of property law, see, e.g., Gridley,
supra, more is required when the interests at stake are as important as
those protected by the ICWA. Neither the state's attorney's letter nor
the social worker's affidavits so much as mention a right of
intervention. Even if a rule of substantial compliance should apply to
ICWA cases, application of the rule would be strained to uphold the notice
given in this case.
In an apparent attempt
to excuse the type of notice given by the State, the majority *57
notes that the ICWA had been in effect for only two weeks. This fact,
however, augmented, not lessened, the state's attorney's duty to explicitly
inform the tribe of its right of intervention.
The letter and affidavits
did not constitute timely notice. In the policy statement of 25 U.S.C.
§ 1902, Congress supported 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." 25 U.S.C. § 1912 bolsters
this policy by providing that a party seeking foster placement of an Indian
child must notify the child's tribe of its right of intervention, and
by providing that no foster care placement proceeding shall be held until
at least ten days after the tribe receives notice. On May 25, 1979, the
parents appeared before the trial court and consented to the Department
of Social Services' foster care placement. No notice of any kind was sent
to the tribe until June 27, 1979. Notice sent at this time not only violated
a specific provision of 25 U.S.C. § 1912, but was in contravention
of a major policy behind
the ICWA--that the arguments and desires of a tribe be considered by a
state court before the State removes Indian children from the home.
25 U.S.C. § 1914
provides that if in a foster care placement or termination of parental
rights action, any provision of 25 U.S.C. § 1912, the intervention
statute, is violated, the state court can be petitioned to invalidate
its action. As one commentator on the ICWA explains:
The
right to intervene also is virtually meaningless unless notice of the
proceedings is prompt and reliable and unless placements that have been
made without adequate notice can be reversed. The Act expressly provides
for reversal. If denied notice or the opportunity to intervene, the child's
parent or tribe may petition for new proceedings.
R. Bash, The
Indian Child Welfare Act of 1978: A Critical Analysis,
31 Hastings L.J. 1287, 1314 (1980). The notice in this case was neither
prompt nor reliable. The trial court, therefore, was justified in granting
the parents' request for new proceedings.
Contrary to what is implied
in the majority opinion, an objection to transfer of jurisdiction under
an invalidated action does not prevent consent to a transfer of jurisdiction
under new proceedings. After the trial judge set aside the decree of disposition,
the parents sent written consent to transfer of jurisdiction to the tribal
judge, and the tribal court requested transfer of jurisdiction
from the state court. The trial court, therefore, was justified under
25 U.S.C. § 1911 in transferring jurisdiction to the tribal court.
[FN*]
FN*
The majority contends that the trial court had a right to refuse transfer
on the basis of the "good cause to the contrary" provision of
25 U.S.C. § 1911(b). It is the State, however, which has the burden
of showing "good cause to the contrary." See Matter
of M.E.M.,
635 P.2d 1313 (Mont.1981). By not setting forth reasons for "good
cause to the contrary" at the appropriate hearings, the State obviously
did not meet that burden.
This court has consistently
required compliance with the provisions of the ICWA. See People
in Interest of C.R.M.,
307 N.W.2d 131 (S.D.1981);
Matter of J.L.H. and P.L.L.,
299 N.W.2d 812 (S.D.1980); Matter
of Guardianship of D.L.L. and C.L.L.,
291 N.W.2d 278 (S.D.1980). I see no reason why we should stray from that
position in this case.
I would affirm the orders
of the trial court.
HENDERSON, Justice (dissenting).
I join specially in the dissent of Justice Wollman.
Although a parent can
object to and therefore block a transfer of jurisdiction from a state
court to a tribal court, the parent's objection cannot destroy the tribe's
right to intervene under 25 U.S.C.A. § 1912. Once a tribe has intervened,
and conceding hypothetically that a state court unquestionably has jurisdiction,
a tribe would still have the right to actively participate in the proceeding
and to advocate the tribe's position as to the best interests of the Indian
child and the child's placement.
*58
In this case, the Rosebud Indian Tribe was not only not told of its right
to intervention but it was further told in the notice "this matter
will not be transferred to the jurisdiction of the Rosebud Sioux Tribal
Court." The notice to the tribe was for the purpose of closing--not
opening the legal gate for the Indian people.
We must all remember
that, in these ICWA cases, there are the rights of the parents to consider,
the rights of the Indian children to consider, and the rights of the tribe
which, by Congressional edict, is to protect and preserve the Indian culture
and family. If an Indian child is removed from an Indian home without
an opportunity for cultural input by that child's tribe, the entire purpose
of the ICWA has been frustrated.
Matter
of Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982), is a case
in which a parent objected to the transfer of jurisdiction to the Court
of Indian Offenses, and the court held that if the ICWA were applicable,
the trial court was in error in refusing to allow the tribe to intervene.
Thus, this case supports the basic position of the two dissents herein
regarding the Rosebud Tribe's right to intervene.
325 N.W.2d 53
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