South Dakota Supreme Court Denies Transfer to Tribal Court [ICWA]


The Tribe requested transfer and the child’s attorney objected. The trial court did not allow testimony regarding bonding and attachment from the child’s doctor. The Supreme Court held

With or without the 2016 regulations, though, circuit courts need the benefit of a sufficiently developed record to assist in the good cause determination. See A.O., 2017 S.D. 30, ¶ 13, 896 N.W.2d at 656; In re M.C., 504 N.W.2d 598, 601 (S.D. 1993). In both A.O. and M.C., we held that the circuit court should have conducted an evidentiary hearing before determining the motion to transfer jurisdiction. In the absence of a developed record, we are unable to conduct meaningful appellate review concerning the merits of the parties’ claims.

[¶17.] As it relates to this case, we conclude that the circuit court abused its discretion when it granted the Tribe’s motion to transfer without hearing the testimony of the child’s physician who was present in the courtroom. Relying upon the impromptu offer of proof by Child’s counsel, the court determined that Dr.
Whitney’s testimony was categorically irrelevant. We disagree.

The Court reversed and remanded for an evidentiary hearing.


Arizona Court of Appeals ICWA Notice Case


I always find it useful when parts of the transcript make it into the appellate court decision:

During her direct examination at trial, Mother testified as follows:

Q. You advised me earlier that you are affiliated with the Sioux tribe; is that correct?

A. Yes.

Q. And tell us, if you will, what your affiliation is?

A. My mom is Oglala, enrolled in the Oglala Sioux tribe in South Dakota, and my dad is an enrolled member in Spirit Lake in North Dakota.

Q. Okay. And are you an enrolled member?

A. Not yet, but I can be.

Q. You’re eligible for enrollment?

A. Yes.

Q. Do you know whether your daughter would be eligible [for] enrollment?

A. Yes, she would.

So of course DCS notified both the Oglala Sioux and Spirit Lake, oh wait, what was that?

DCS does not argue that Mother’s testimony was insufficient to provide notice that H.N. might be an Indian child under ICWA. Instead, DCS argues that, “by the time Mother testified about her tribal affiliation, there were no [pending] proceedings for the tribe to intervene in.” That argument, however, ignores the fact that Mother’s testimony occurred before the motion to terminate was granted. Accordingly, DCS’ argument regarding the application of ICWA to “post-termination proceedings” is inapplicable. Cf. Gila River Indian Cmty. v. Dep’t Child Safety, 242 Ariz. 277 (2017) (discussing transfer of matters under ICWA both pre- and posttermination).

¶13 DCS’ argument also does not address case law from other jurisdictions directing that “[n]otice is mandatory, regardless of how late in the proceedings a child’s possible Indian heritage is uncovered” and that the notice requirement in ICWA cannot be waived by a parent. See In re Suzanna L., 127 Cal. Rptr. 2d 860, 866 (App. 2002) (quoting In re Kahlen W., 285 Cal. Rptr. 507, 513 (App. 1991)); accord Gila River Indian Cmty., 242 Ariz. at 292 ¶ 27 (noting “courts have historically been reluctant to imply a waiver of Indian rights under ICWA”).

(emphasis added)

The appellate court remanded the case for proper notice under ICWA.

South Dakota Supreme Court Overturns Denial of Transfer to Tribal Court


We agree that the court’s denial of the request to transfer was improper. It is undisputed that the circuit court refused to hold a separate evidentiary hearing on the question of good cause. And the court’s commentary on the issue during the December 14, 2015 review hearing consists only of the following:

Well, it’s going to be the Court’s finding that the motion to transfer is not timely and it’s going to be denied in this case. I note this case is—was open last November, 2014. The [T]ribe’s apparently been aware of it for more than a year. No efforts were made to get it transferred before this time, and I—my real concern is, it just is contrary to the interests of the children to start over from square one after a year has proceeded in the matter, so that motion is going to be denied.

As noted above, in determining whether the motions to transfer were timely, the court was required to consider all the particular circumstances of this case, not simply the amount of time that had passed since the proceedings first began. See id. at 600. Although this case was over one year old, it had not yet reached final disposition. Without knowing the Tribe’s and Mother’s reasons for waiting to seek transfer, the circuit court necessarily did not consider all the circumstances of this case.

The court’s finding that transferring jurisdiction was not in the best interest of the Children is susceptible of the same criticism. As above, the absence of specific factual findings precludes meaningful review. The Tribe intervened and has been involved in this case since nearly its beginning. The Tribe has been represented at each of Mother’s review hearings. The circuit court did not identify any reason to conclude that transferring jurisdiction to the Tribe would have amounted to a “start over from square one[.]”