The South Dakota Supreme Court in People ex rel. J.I.H. held that the trial court abused its discretion in finding that the state had proved beyond a reasonable doubt that the rights of a Cheyenne River Sioux Tribe parent should be terminated.
An excerpt:
The trial court’s finding that termination of Father’s rights was the least restrictive alternative and in the children’s best interests hinged on Father’s incarceration. We recognize that “when assessing what options are available to prepare the parent for the return of a child, incarceration narrows the available options.” D.G., 2004 SD 54, ¶ 17, 679 NW2d at 502. Nonetheless, “[t]he decision to terminate requires evidence of sufficient magnitude to convince the trial court that the best interests of the children require the breakup of the family unit .” In re S.S., 334 NW2d 59, 61 (SD 1983) (emphasis added). “If, on a review of the record, it appears that the state’s compelling interest in the well-being and welfare of the children can reasonably be [e]nsured by less intrusive means, we must order that those alternatives first be implemented.” S.R., 323 NW2d at 888.
The record indicates that Grandmother was willing to be a long-term placement option for these children. Her home study had been approved, and only one final requirement remained for her to become a registered foster care provider. Grandmother’s sister also showed interest in being a placement option. Neither of these two possibilities was explored. Father was scheduled for release from jail in December 2008, which was seven months away from the date of the dispositional hearing. Due to his limited incarceration period, legal guardianship would have been a less restrictive alternative until Father was able to care for his children.
Notably, the children’s attorney did not advocate for termination of Father’s rights, and it cannot be ignored that the ICWA expert testified that termination of Father’s parental rights, at that time, was premature. We agree. Based on the circumstances of this case, the trial court erred in terminating Father’s parental rights.
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