South Dakota is sending us into the weekend with a positive attitude with this decision. In a shocking development [not shocking] it turns out that if an agency “ceased providing any efforts toward reunification after the December 2019 hearing. This means that from December 2019 to September 2020 no efforts were made by DSS to provide Mother remedial services or rehabilitative programs and no efforts were made to reunite C.H. with Mother” then, “[t]he circuit court’s finding of fact to the contrary—that DSS ‘has been providing active efforts to this family since October 2, 2018; including in-home services to prevent placement, and ongoing services to allow safe return of the child to no avail’—is not supported by the record. To the extent this finding suggests that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is clearly erroneous.”
Unusually, I didn’t add any of the italics. That’s all the South Dakota Supreme Court.
Also, anyone else get excited when a Court starts a paragraph like this: “Because this error [termination of parental rights] requires a remand, we take this opportunity to address additional errors that occurred below to prevent their reoccurrence.”? _insert eating popcorn emoji_
So, in addition to not appointing the child an attorney despite state law requiring it, the Court also says “Second, although not raised as an issue on appeal, there are glaring defects involving ICWA mandates in the underlying proceeding that we cannot ignore.” The QEW testimony did not satisfy the evidentiary burden, and the court found that termination was not the least restrictive alternative given the child’s best interests.
Mom did a ton of work on her own in this case despite and in spite of the state’s inaction. The Court’s recognition of this is a welcome change from most child welfare decisions.