Case 5:13-cv-05020-JLV Document 114-3 Filed 07/21/14 Page 1 of 4 PageID #: 2005

TO:

Seventh Circuit Judges

FROM:

Nate Oviatt

DATE:

Apri.l 27, 2012

RE:

Indian Child Welfare Act and Temporary Custody Proceedings

You asked me to provide SOIDC legal analysis on the Tribe's Motion to Invalid Prior
Actions and Foster Care Placement Order and Motion for a New Temporary Custody Hearing.
The legal analysis is as follows:
LEGAL ANALYSIS:

Fitstly. there is no question that both parents and children have fundamental right to
maintain the integrity of the familia) unit

Parents have a liberty interest '1.,n the care, custody, and management of their
children.., Parents and children have a constitutioJl8lly protected liberty interest
in the care and companionship of each other. However, ..the libeny interest in.
famjJjal xeIations is limited by the compelling governmental interest in the
protection of minor children, particularly in circumstances where the protection
is considered necessary as against the parents themselves."
KD. v. County ofCruw Wing, 434 F.3d 1051 . lOSS (8th Cir. 2(06).

The state as parens patriae takes a necessarily strong interest in the care and
treatment of every child within its borders ... The necessity of this right is
readily apparent. [The Comt] caDDot allow the health. safety or life of a young
child to be placed back into an environment conclusively proved . . . to be
wholly unfit and improper.
In re K D. E., 87 S.D. 501,506.210 N.W.2d 907, 910 (1973). Therefore, in child custody

cases. there is an essen1ial balancing between the competing interests of the parents and the
State and the Court must weigh these interests while maintaining a vigilant eye towards the

best interests of the children.

L Tribe's Motiou lIDder ICWA.

In this case, the Tribe has brought its motions pursuant to 2S U.s.C. 1914 ofICWA
and SDCL 26-7A-30. The Tribe's motion based on 1914 will be addressed first.
Any Indian child Who is the subject of any action for fosteI care placement or
termination of parental rights under State law, any parent or Indian custodian
from whose custody such child was removed. and the Indian Child's tribe may
petition .any court of co~t jurisdiction to invalidate such action upon a
showing that such actioliViORted any provision of sections 1911, 1912, and
1913 of this title.

Exhibit 6A
1

Case 5:13-cv-05020-JLV Document 114-3 Filed 07/21/14 Page 2 of 4 PageID #: 2006

25 U.S.CA. 1914. Here, the Tribe has intCIVened in the proceedings and consequently, bas
standing to petition the Coort under 1914. Therefore, the only inquiry under this subchapter
is Whether 1911, 1912, or 1913 were violated by any action of the State.
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a. 25 U.s.C 1911:

The Tribe does not, and caDIlOt, assert that there was violation of 1911. Therefore,
this section ofthe ICWA is not implicated and has no bearing on this case.
b. 25 U.s.C 1912:

The Tribe's Motions primarily focus on purported violations of 1912(c), and is

centered on the alleged lack of notice that it claims it is entitled to under this section. However>
the Tribe fails to recognize the important distinction betw=l a,..child custody proceeding under
1914 md 1911, thereby triggering 1912, and an emer~ cUStOdy Pit17*1lj, w6lchis
covered by 1922 of leWA. As previously
accounts for e compelling
interests of the State in protecting il child from an apparent and immediate danger, and allows
the child protection statutes ofthe state in which the apparent abused and neglected child is
located, to govern the process for emergency removal and nlaq;ment. 25 U.S.C. 1922.
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Nothing in this subchapter shall be constrwd to prevent the emergency removal

of an Indian child who is a resident of or is domicUea OD a reservation, but

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temporarily located off the rescrvatiol1, from his parent or Indian custodian or
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the emergency placement of such child in a foster home or insntuti0!!z. under

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applicable Stale law, In oidei to prevent mmunent phystC8i aamage or harm to If/,
the child. The State authority, official. or agency involved sball insure that the
emergency removal or p~t terminates immediately when such removal or ; .
placement is no longer necessary to prevent ImmlDent p ysical
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Iii. (emphasis added). 1922 permits state courts to apply state

hcarmgs~ ICWA does not require the full gambit of its protections

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tbeproceediDp. Ij~e SB. , 130 Cal. App. 4th 1148 (Cal. App. 2005); In re Esther Y., 248 P.3d ...
863 (NM. 20. 11)~Morcover, all that is required under South Dakota state statute is that, where ~
poSS1'ble, the parents are provided notice of the temporary custody, or 48-hour, bearing. SDCL )J v ~
26-7A-15~ requirement was clearly accomplished in this case, as is ~ced ~ the ~

mother's ~ce at the 48-hour hearing.

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Furthermore, the Tribe makes frequent referen~ to "ex parte documents" in which th~ 'f
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State set forth its basis for its petition to temporarily remove the children and place them in
foster care. Tribe's Motion to Invalidate, " 7. 8. The Tribe argues that procedw-es employed
by the State in filing these "ex parte documents" and not allowing the mother at Uany time prior
to or during the hearing" were done in violation of 1912(c) ofICWA. The Tn'be's argument
on this point is unavailing because 48hour bearings are conducted under state statute whlcll
'was coDlpli!4 With m ihB case, ana lCwA; mclUdiiii its notice requiremenTS, is not ;mlicated
at the 48-hOur heanng. In Fe S.B., 130 Cal. AllP 4tIi 1148 (CaL ~p. 2005); In Fe Esther v.. _
2

Case 5:13-cv-05020-JLV Document 114-3 Filed 07/21/14 Page 3 of 4 PageID #: 2007

U. Tribe's Motion Under Additional SD State Law.

a. SDCL 26-&4-1 B:

The TnOe further argues that its motion should be granted under SDCL 26-7A-30,
because the emergency hearing was conducted in violation of state law. Specifically, the Tribe
assens that court violated SDCL 2&.8A-18. by failing to suspend the emergency custody
hearing in order to appoint counsel, allow the newly ~inted counsel to get caught up to
speed. and then resume the hearing at some later date. The Tribe correctly argues that SDCL
26-SA-18reqWres that "the com sba11 appoint an attorney for any child allegtdto be abused or
neglected in any judicial proceeding. to SDCL 26-8A-18. However, the Tn"be apparently fails
to realize that, at the time of the temporary custody proceeding, the subject child is not an
alleged abused and neglected child; he or she is only an apparent abused and neglected child.
All apparent abused or neglected child taken into temporary custody and not
released to the child's parentS, g1.l3l'dian. or custodian may be placed in the
temporary care of the Department of Social Services, foster care, or a shelter as
designated by the court to be the least restrictive alternative for the child.
SDCL 26-7A-14 (emphasis added). This is an important distinction, and one that the
legislature apparently deemed prudent to make. A5 a functional matter. it would be judicially
impracticable for the Court to require the appointment of counsel before the parties involved
have even been brought before it. Therefore, the Com find that SDCL 26-8A-18 bas not been
violated because the child is not alleged abused and nce1ected until the petition is filed.

b. SDCL 26-7.4-14; 26-7A-19:

The Tn"be also argues that nothing under state law allows the Court to proceed
"infonnally." This is inaccurate. SDCL 26-7A14 provides in pertinent part:
The court may at any time order the release f a child from te
without hold.irig a eanng, elt ,. wil or wll U1 restriction or condition or upon

written promise of the child's parents. guardian, or custodian regarding the care
and protection of an apparent abused or neglected child or regarding custody and
appearance in court of an apparent child in need of supervision or an apparent
delinquent child at a time, date. and place to be determined by the court.
SOCL 26-7A-14 (emphasis added). Moreover, SDCL 26-7A-19(2) allows the Comt to
continue the temporary custody. under the terms and conditions that it requires. Therefore, if
the Court deems continued placement no longer necessary. then the order becomes self
executing and the child is returned to his or her parents. Imponantly, proceeding in this fashion
avoids the additional burden on the parent of having a petition for abuse and neglect filed
against them, and it allows return ofthe child as soon as the dangerous condition is removed.
In any case, however, the Court does indeed have authority to proceed "informally" in abuse
and neglect cases.

I Altbou8h this doe$ not affect the Court's legal inletpleta1ion, the Tnbe 8ppcaB to completely ignore the fatt that
this would prolong the removal process even more, aDd prolong the sepamtion of the children from their parents.

Case 5:13-cv-05020-JLV Document 114-3 Filed 07/21/14 Page 4 of 4 PageID #: 2008

Furtbennore~

a parent's election to proceed informally does not constitute a waiver of

any rights. statutory or constitutional; nor does it transform it from an involuntary proceeding
in to a voluntary proceeding by vUtue ofthe parent's decision. As the Court explained at the
48-hour hearing. the parent, whether Indian Or non-Indian, has the right to demand the State file
a foIIll.8l petition. and the pamlts' full gambit of rights remain intact The Tribe's attorney's
characterization of the Com1' s efforts to determine whether the mother wished to proceed
formally or informally as "coercive" is inappropriate and more importantly, inaccurate.

Additional Points of garifieation.

The Court would also note some additional points ofclarification for the edification of
the parties. First. the Tribe does not have a fundamental right to fairness under leW ~ even
though the parents and children involved do. lewA selVes as a procedural prophylactic which
pennits, or compels, a state court to transfer a child custody proceeding to tribal court so that
the tribe may exercise its inherent sovereignty over its tribal members. The Tribe, at its option,
could invoke that jurisdiction and have the case traDsfcrred into tribal court. However, it has
elected not to do so. Consesuently, state law prevails in the 48-hour hearing, and Indian parents
who appear before i1ie Court are subject to those roles at tIiiS stage.

Additionally, the Tribe has placed great significance on the Eighth Circuit's holding in
Whisman v. Rinehart, 119 F.3d. 1303 (8th Cit. 1997). However, the Tribe's reliance on
Whisman is misplaced. In Whisman, the Court held that a post-deprivation hearing held
seventeen days after the removal of the child was a violation ofthe family's due process rights.
Id at 1311. Whisman is inapposite to this case because the procedure at issue in this case was
the post-deprivation., or 48-hour, bearing. This hearing was held promptly after the rem.01ial of
the children, and done in compliance with stale statute, which was not the case in Whisman.
Accordingly. any effort to construe the Whisman holding as persuasive authority for 48-bour
proceedings is unmerited.

Instead. Whisman's application should be reserved for those C@,SeS in which the post
deprivation hearing is unreasonably delayed beyond what is required by state statute. This is
obviously not the situation at hand in a 48-hour hearing.