People Ex Rel. A.B.

#27535-rem-LSW

2016 S.D. 44

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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The People of the State of South Dakota
in the Interest of A.B., Child, and
Concerning R.B. and T.B.E., Respondents.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE ROBERT A. MANDEL
Judge

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DANA L. HANNA
Rapid City, South Dakota Attorney for appellant
mother R.B.

MARTY J. JACKLEY
Attorney General

MICHAEL D. SHARP
WADE REIMERS
Special Assistant Attorneys General
Legal Division Department
of Social Services
Pierre, South Dakota Attorneys for appellee State of
South Dakota.

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CONSIDERED ON BRIEFS
ON MARCH 21, 2016

OPINION FILED 05/18/16
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WILBUR, Justice

[¶1.] Mother appeals the termination of her parental rights. She argues

that the circuit court abused its discretion when it qualified the State’s witness as

an expert under the Indian Child Welfare Act (ICWA) in light of the recently-

adopted Bureau of Indian Affairs guidelines interpreting ICWA. She also claims

that the circuit court applied the wrong standard of proof when it terminated her

parental rights, and that the State’s expert failed to specifically opine that

continued custody of the child with Mother would likely cause serious emotional or

physical harm to the child. Lastly, Mother claims that the least restrictive

alternative is to continue Mother’s legal relationship with the child while Father

retains full legal and physical custody. We remand.

Background

[¶2.] In April 2014, Mother contacted the Department of Social Services

(DSS) because she was concerned that an adult male had sexually abused her

daughter. DSS contacted law enforcement. During the investigation, Mother

admitted that she used and sold methamphetamine. She also told law enforcement

and DSS that she had left her daughter, A.B. (seven years old at the time), alone

with the adult male so Mother could sell methamphetamine. Mother admitted that

she routinely took A.B. with her to sell drugs.

[¶3.] Ultimately, law enforcement did not find sufficient evidence to

substantiate the alleged sexual abuse against A.B. But law enforcement took A.B.

into emergency custody and placed her in the custody of DSS because of Mother’s

drug use and distribution. DSS substantiated Mother’s neglect of A.B.

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[¶4.] DSS began working with Mother in June 2014, and later began

working with Father. Mother is an enrolled member of the Northern Arapaho

Tribe. Father is an enrolled member of the Cheyenne River Sioux Tribe. Mother

and Father were never married and did not live together. A.B. had at all times

resided with Mother. Mother and A.B. lived a transient lifestyle due to Mother’s

use and distribution of methamphetamine. Father is employed full time and lives

in Rapid City with his girlfriend and their two children.

[¶5.] In regard to Mother, DSS developed a case plan with a start date of

August 2014. Mother and DSS identified desired outcomes—for Mother to be able

to articulate a plan and execute a plan to protect A.B., for Mother to be able to

demonstrate that her choices and words have a direct effect on A.B.’s safety, and for

Mother to be able to identify dangerous people. DSS informed Mother that she

needed to complete a chemical dependency evaluation and comply with the

treatment recommendations, attend weekly visitation with A.B., provide clean urine

screens for illegal substances, obtain and maintain a safe and stable home, engage

in individual therapy, and be a sober participant in A.B.’s therapy.

[¶6.] Mother completed the required mental health evaluation. She

disagreed with the recommendations and refused to comply. Mother tested positive

for illegal substances each time DSS screened Mother’s urine (May 23, 2014, June

28, 2014, October 10, 2014, October 21, 2014, and November 4, 2014). Mother

underwent a chemical dependency evaluation. She stated that after the evaluation

she began attending outpatient treatment. She claimed she could not complete the

treatment due to her arrest on December 3, 2014, for failing to appear for a 24/7

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Program screening. Mother also claimed that she attempted to participate in a

treatment program at the South Dakota Women’s Prison, but could not because of

her transfer to the Pennington County Jail.

[¶7.] Mother participated in weekly visitations with A.B. while incarcerated.

When not incarcerated, Mother attended some, but not all, scheduled visits. Mother

was incarcerated multiple times during DSS’s involvement. The first incarceration

occurred in July 2014 and lasted 20 days. The second occurred in September 2014

and lasted between two and three weeks. The third occurred in December 2014 and

lasted 180 days. The fourth occurred less than twenty-four hours after Mother’s

release from custody on all matters. Mother was arrested for driving under the

influence, driving with a suspended license, operating a motor vehicle with

substitute license plates, operating a motor vehicle without insurance, and driving

without headlights. Mother remained incarcerated up to and through the time of

the dispositional hearing.

[¶8.] While incarcerated, DSS attempted to arrange treatment options for

Mother. The only option in the Pennington County Jail until Mother’s release date

neared was Alcoholics Anonymous. On April 29, 2015, Mother completed a progress

evaluation with DSS. The report revealed that Mother had not made progress

toward the outcomes identified by DSS to allow Mother to reunite with A.B. DSS

sent Mother educational material related to addiction and parenting. DSS also sent

Mother A.B.’s medical and school records. DSS included postage, pre-paid

envelopes for Mother to write letters to A.B.

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[¶9.] Throughout DSS’s involvement, DSS performed numerous kinship

searches to limit A.B.’s time in foster care. A.B. is an enrolled member of the

Northern Arapaho Tribe. DSS notified the Northern Arapaho Tribe that A.B. was

in DSS custody. DSS spoke with a representative of the Tribe regarding upcoming

court hearings and A.B.’s placement. DSS requested assistance from both the

Northern Arapaho Tribe and the Cheyenne River Sioux Tribe for placement options

for A.B. with Mother’s or Father’s relatives. Mother’s maternal aunt requested that

she be considered as a placement option. DSS approved Aunt for placement. A.B.

remained with Aunt until DSS approved Father for placement.

[¶10.] The circuit court held a final dispositional hearing on June 29, 2015.

At the time of the dispositional hearing, DSS concluded that Father had

demonstrated his ability to safely and sufficiently provide for A.B. and sought an

order giving Father permanent physical and legal custody of A.B. In regard to

Mother, DSS sought to terminate her parental rights. At the time, Mother was still

incarcerated. She did not oppose an order giving Father permanent physical and

legal custody of A.B. However, she contested the termination of her parental rights.

She requested that the court allow her to maintain a legal and personal relationship

with A.B.

[¶11.] At the dispositional hearing, the DSS caseworker, Mary Van Den

Hemel, testified about the efforts DSS provided and about Mother’s actions

throughout DSS’s involvement. Van Den Hemel opined that Mother did not make

progress in overcoming her addictions and that termination of Mother’s parental

rights would be in A.B.’s best interest. According to Van Den Hemel, leaving intact

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Mother’s legal rights to A.B. would leave A.B. vulnerable to being exposed to the use

and sale of methamphetamine if something were to happen to Father.

[¶12.] The State also called Luke Yellow Robe as an ICWA expert. Yellow

Robe is a member of the Rosebud Sioux Tribe. He testified that he is familiar with

the Northern Arapaho Tribe and has been to the Tribe’s reservation—the Wind

River Reservation. According to Yellow Robe, the Northern Arapaho, Northern

Cheyenne, and Lakota Sioux all inhabited the Black Hills and the childrearing

practices of these tribes are similarly based on the concept of the cradleboard.

Yellow Robe explained that these tribes “recognize that the child was sacred. And if

a child is going to be sacred, traditionally speaking, the tribe is going to come

together as a community, as a whole, to be all a part of raising that child so that

child eventually, based on a sense of identity, has a clear and concise, you know,

plan in place to be able to become a productive member of the tribe and a

representative of, you know, their gender to the point of that area of specialty[.]”

[¶13.] Yellow Robe also testified that he is familiar with the Northern

Arapaho Tribe’s childrearing practices. He explained,

We just had a case in Minnehaha County that actually took five
full days, about six hours every day in court, one case. The
father was Northern Arapaho and the mom was Hopi. And
through that particular case, there were a couple of conference
calls that I was part of through the Minnehaha County State’s
Attorney’s Office and the family service specialist talking to the
ICWA representatives of the Northern Arapaho [T]ribe. . . . [I]t
just was an opportunity once again for me to visit with them and
go over some of the child-rearing practices, some of the questions
that I had.

He continued to explain the basis for his knowledge about the Tribe’s childrearing

practices.

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Well, I’ll state this, first. That I was hired on two different
occasions to work with the [T]ribe. Once was - - I was hired by
the Attorney General’s Office out of the State of Wyoming in
Cheyenne to come and be part of a healing ceremony, based on
all the suicide that they were having to deal with, and so I was
one of the consultants that not only presented at the conference,
but, of course, participated in some of the ceremonies over at St.
Stephens, which is the old Catholic Mission there on Wind River
Reservation. Gave me the opportunity to work with spiritual
leaders, to meet tribal representatives, and of course
representatives with a number of child care organizations that
were all there to assist in this ceremony.

Then I went back on some follow-up through the Tribal Law and
Policy Institute, when Diane Payne out of the Anchorage office
called and said, “We want you to come back and spend time and
we’ll do some follow-up and continue to work with some of the
representatives that are still around.” So I have had hands-on
experience working with the people.

Yellow Robe reiterated that he had discussions with spiritual leaders and ICWA

representatives with the Wind River Reservation. Over Mother’s objection, the

circuit court held that Yellow Robe qualified as an ICWA expert in this case. Yellow

Robe opined that termination of Mother’s parental rights is in A.B.’s best interest.

He explained that continued custody with Mother would be “injurious.”

[¶14.] After the hearing, the court issued an oral ruling terminating Mother’s

parental rights. The court remarked that this is “a very close decision of the

[c]ourt.” But, in the court’s view, “it just comes down to the fact that the best

interests of the child do outweigh the issue of accepting [Mother’s request for

continued legal custody] as the least restrictive alternative.” In its written findings

of fact and conclusions of law and order, the court found beyond a reasonable doubt

that DSS made reasonable efforts to return A.B. to Mother’s home. It found beyond

a reasonable doubt that the conditions that led to A.B.’s removal continued to exist

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and that there is little likelihood that the conditions would be remedied in the near

future so A.B. could be reunited with Mother. It held by clear and convincing

evidence that serious emotional or physical damage would likely result if Mother

retained legal care or custody of A.B. It concluded beyond a reasonable doubt that

the least restrictive alternative commensurate with A.B.’s best interest is to

terminate Mother’s parental rights and place A.B. in the full physical and legal

custody of Father.

[¶15.] Mother appeals, and we restate her issues as follows:

1. Whether the circuit court abused its discretion when it
qualified Luke Yellow Robe as an expert under 25 U.S.C.
§ 1912(f).

2. Whether the circuit court erred because it applied the
clear and convincing standard of proof when 25 U.S.C.
§ 1912(f) specifically requires evidence beyond a
reasonable doubt to terminate Mother’s parental rights.

3. Whether the evidence was legally sufficient to support
termination of Mother’s parental rights.

4. Whether termination of Mother’s parental rights was the
least restrictive alternative.

Standard of Review

[¶16.] It is undisputed that ICWA applies to these proceedings. Under 25

U.S.C. § 1912(f), the circuit court cannot terminate Mother’s parental rights “in the

absence of a determination, supported by evidence beyond a reasonable doubt,

including testimony of qualified expert witnesses, that the continued custody of the

child by the parent or Indian custodian is likely to result in serious emotional or

physical damage to the child.” See In re J.I.H., 2009 S.D. 52, ¶ 17, 768 N.W.2d 168,

172. The court must also find—by clear and convincing evidence—that termination

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is the least restrictive alternative commensurate with the best interest of the child.

Id. ¶¶ 21-22. We review a circuit court’s factual findings under the clearly

erroneous standard of review. In re B.S., 1997 S.D. 86, ¶ 13, 566 N.W.2d 446, 449.

“The standard of review for a trial court’s qualification of an expert witness is abuse

of discretion.” In re O.S., 2005 S.D. 86, ¶ 7, 701 N.W.2d 421, 424 (citing In re D.M.,

2003 S.D. 49, ¶ 19, 661 N.W.2d 768, 773).

Analysis

1. Expert’s Qualifications

[¶17.] Mother argues that the circuit court abused its discretion when it

found that the State presented sufficient evidence to support that Yellow Robe is

qualified to give expert testimony in this case. Mother directs this Court to the

recently adopted Bureau of Indian Affair Guidelines for State Courts and Agencies

in Indian Child Custody Proceedings (2015 BIA Guidelines), Federal Register, Vol.

80, No. 37, 10146-10159 (February 2015). Relying on the 2015 BIA Guidelines,

Mother insists that Yellow Robe must have a specialized knowledge of the culture

and custom of A.B.’s tribe—the Northern Arapaho Tribe. She then argues that the

evidence is insufficient to support the circuit court’s finding that Yellow Robe

possessed the requisite specialized knowledge.

[¶18.] The BIA Guidelines, although helpful, “do not have binding legislative

effect and have never been formally adopted by this Court.” In re M.H., 2005 S.D. 4,

¶ 10, 691 N.W.2d 622, 625.* See Merrill v. Altman, 2011 S.D. 94, ¶ 19, 807 N.W.2d

* The 1979 BIA Guidelines identified three possible expert witnesses.
(continued . . .)
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__________________
(. . . continued)
(i) A member of the Indian child’s tribe who is recognized by
the tribal community as knowledgeable in tribal customs
as they pertain to family organization and childrearing
practices.
(ii) A lay expert witness having substantial experience in the
delivery of child and family services to Indians, and
extensive knowledge of prevailing social and cultural
standards and childrearing practices within the Indian
child’s tribe.
(iii) A professional person having substantial education and
experience in the area of his or her specialty.
In re S.D., 402 N.W.2d 346, 349-50 (S.D. 1987) (quoting 44 Fed. Reg. 67584,
67595 (Nov. 26, 1979)). By comparison, the 2015 BIA Guidelines provide:
(a) A qualified expert witness should have specific knowledge of
the Indian tribe’s culture and customs.
(b) Persons with the following characteristics, in descending
order, are presumed to meet the requirements for a qualified
expert witness:
1. A member of the Indian child’s tribe who is recognized by
the tribal community as knowledgeable in tribal customs
as they pertain to family organization and childrearing
practices.
2. A member of another tribe who is recognized to be a
qualified expert witness by the Indian child’s tribe based
on their knowledge of the delivery of child and family
services to Indians and the Indian child’s tribe.
3. A layperson who is recognized by the Indian child’s tribe
as having substantial experience in the delivery of child
and family services to Indians, and knowledge of
prevailing social and cultural standards and childrearing
practices within the Indian child’s tribe.
4. A professional person having substantial education and
experience in the area of his or her specialty who can
demonstrate knowledge of the prevailing social and
cultural standards and childrearing practices within the
Indian child’s tribe.
Kent K. v. Dep’t of Health & Soc. Servs., No. S-15708, 2016 WL 483254
(Alaska Feb. 3, 2016).

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821, 825; In re A.L., 442 N.W.2d 233, 236 (S.D. 1989). And, as Justice Zinter noted

in his concurrence in result in O.S., there is “nothing in the text of ICWA” that

requires that the expert have “specialized knowledge of the child’s tribe.” 2005 S.D.

86, ¶ 24 n.6, 701 N.W.2d at 429 n.6 (Zinter, J., concurring in result).

[¶19.] Nonetheless, “[o]ne of the problems the ICWA sought to correct was

the failure of welfare workers to understand Indian culture and practices

concerning the raising of children.” M.H., 2005 S.D. 4, ¶ 10, 691 N.W.2d at 625

(quoting In re D.S., 577 N.E.2d 572, 576 (Ind. 1991)). Therefore, we require that

experts “possess more than simply substantial education and experience in the area

of their specialty. Rather, they should have expertise in, and substantial knowledge

of, Native American families and their childrearing practices.” Id. (quoting In re

K.H., 981 P.2d 1190, 1193 (Mont. 1999)). This is because the “underlying task of

the expert’s testimony in ICWA cases is to provide the court with an understanding

of the social and cultural aspects of Native American families and the childrearing

practices of the child’s tribe.” O.S., 2005 S.D. 86, ¶ 8, 701 N.W.2d at 425.

[¶20.] Here, Mother does not claim that Yellow Robe lacked a sufficient

understanding of Native American culture. She also does not assert that Yellow

Robe inaccurately described the Northern Arapaho Tribe’s culture and childrearing

practices. Instead, she claims on appeal that the State did not present sufficient

foundational evidence to show that Yellow Robe possessed the requisite specialized

knowledge under the 2015 BIA Guidelines. She argues that “[i]t is of enormous

significance that Mr. Yellow Robe admitted in his testimony that the elders of the

Northern Arapaho Tribe, who are surely the most competent experts on questions of

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tribal traditions and practices, would not recognize him as an expert in the

childrearing practices of the Northern Arapaho. He further admitted that he had

never studied the childrearing practices of the Northern Arapaho in any educational

setting or read any books on that subject.”

[¶21.] From our review of the evidence, the State presented sufficient

foundational evidence of Yellow Robe’s expertise as an ICWA expert under either

the 1979 or 2015 BIA Guidelines. Yellow Robe’s understanding of the Native

American culture and the Northern Arapaho Tribe’s childrearing practices allowed

Yellow Robe “to provide the court with an understanding of the social and cultural

aspects of Native American families and the childrearing practices of the child’s

tribe.” See O.S., 2005 S.D. 86, ¶ 8, 701 N.W.2d at 425. The circuit court did not

abuse its discretion when it found that Yellow Robe had substantial knowledge in

Indian culture and childrearing practices sufficient to testify in this case.

2. Standard of Proof

[¶22.] Mother argues that the circuit court applied the wrong standard of

proof when it terminated her parental rights. The court found “by clear and

convincing evidence that serious emotional and/or physical damage would likely

result were the minor child placed in the legal care or custody of Respondent

mother.” (Emphasis added.) It is undisputed that 25 U.S.C. § 1912(f) requires

evidence beyond a reasonable doubt. According to Mother, the fact the court

identified an incorrect legal standard means the court’s ruling is insufficient as a

matter of law and reversal is necessary.

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[¶23.] The State responds that the circuit court “was undoubtedly aware” of

the standard of proof under 25 U.S.C. § 1912(f). The State also avers that Mother

waived the issue because she did not object to the State’s proposed findings of fact

and conclusions of law or propose her own findings and conclusions. The State

alternatively argues that despite the improper standard identified by the court, the

mistake does not constitute reversible error because a review of the evidence

supports that the requirements of 25 U.S.C. § 1912(f) were met.

[¶24.] From our review of the court’s findings of fact and conclusions of law,

the court’s failure to identify the proper standard of proof is problematic. Indeed,

we review the circuit court’s factual findings for clear error. And, here, Mother does

not identify how the court clearly erred. Moreover, on those facts, the circuit court

concluded that evidence existed beyond a reasonable doubt that the conditions that

led to A.B.’s “removal continue to exist and there is little likelihood that those

conditions will be remedied in the near future so that the child can be reunited with

the Respondent mother.” The court also concluded that evidence existed beyond a

reasonable doubt that “the best interest of the minor child outweighs” termination

of Mother’s parental rights. But the court did not make the requisite inquiry

whether the evidence existed beyond a reasonable doubt that Mother’s continued

custody of A.B. would likely result in serious emotional or physical harm. The court

erred when it terminated Mother’s parental rights without conducting this

necessary examination utilizing the proper standard of proof. We, therefore,

remand for the circuit court to determine—on the existing record—whether

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evidence exists beyond a reasonable doubt that serious emotional and/or physical

damage would likely result were A.B. placed in the legal care or custody of Mother.

3. Legally Sufficient Evidence to Support Termination

[¶25.] Mother contends that Yellow Robe did not offer an expert opinion that

continued custody with Mother would likely result in serious physical or emotional

damage to A.B. He merely said continued custody could be “injurious.” In Mother’s

view, without an expert opinion that serious emotional or physical damage would

result, the evidence is legally insufficient to terminate her parental rights under 25

U.S.C. § 1912(f).

[¶26.] Mother is incorrect. The language of 25 U.S.C. § 1912(f) does not

mandate that an expert specifically state that “continued custody of the child by the

parent or Indian custodian is likely to result in serious emotional or physical

damage to the child.” Rather, 25 U.S.C. § 1912(f) directs that a circuit court may

not order “termination of parental rights” unless the court determines that

“continued custody of the child by the parent or Indian custodian is likely to result

in serious emotional or physical damage to the child.” Id. And the court’s

determination must be “supported by evidence beyond a reasonable doubt, including

testimony of qualified expert witnesses[.]” Id. Thus, the fact Yellow Robe used the

word “injurious” does not mean the evidence is legally insufficient to support

termination. Yellow Robe also opined that Mother’s continued custody of A.B.

would not be in A.B.’s best interest because Mother continues to face addiction

problems and has not addressed those problems. To Yellow Robe, threats to A.B.’s

safety continue to exist. Mother does not dispute that she continues to face

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addiction to methamphetamine and, that because of her addiction, Mother has

subjected A.B. to the world of drug sales. During DSS’s involvement, Mother did

not make progress in overcoming her addiction. She also faced continued

incarcerations, which evince a likelihood that Mother’s continued custody of A.B.

would expose A.B. to serious emotional or physical damage.

4. Least Restrictive Alternative

[¶27.] Mother contends that the least restrictive alternative would be to give

permanent physical custody and a permanent guardianship of A.B. to Father.

Terming the alternative as a “guardianship” is inaccurate. Father is a biological

parent of A.B., not a guardian as contemplated under SDCL Title 25. Nonetheless,

the crux of Mother’s argument is that the circuit court abused its discretion when it

terminated her parental rights. Mother did not seek custody of A.B.—she wanted

her legal rights to be intact so she could continue a legal and personal relationship

with A.B.

[¶28.] “Parental rights may be terminated if it is in the best interests of the

child and is also the least restrictive alternative available.” In re L.S., 2012 S.D. 22,

¶ 12, 812 N.W.2d 505, 508 (quoting In re E.L., 2005 S.D. 124, ¶ 10, 707 N.W.2d 841,

845). Under SDCL 26-8A-27, the court must find, by clear and convincing evidence,

that termination is the least restrictive alternative “commensurate with the best

interests of the child with due regard for the rights of the parents, the public and

the state[.]” “Our standard of review is ‘whether the trial court’s ultimate finding—

that clear and convincing evidence indicated termination was the least restrictive

alternative commensurate with the child’s best interests—was clearly erroneous.’”

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In re L.S., 2006 S.D. 76, ¶ 36, 721 N.W.2d 91, 94 (quoting In re S.A., 2005 S.D. 120,

¶ 21, 708 N.W.2d 673, 680). “We are acutely aware that termination of parental

rights is a drastic, final step that should be exercised with great caution.” In re

B.E., 287 N.W.2d 91, 95 (S.D. 1979). In exercising that caution, a court must view

the best interest of the child from the child’s perspective, not the parent’s

perspective. In re P.S.E., 2012 S.D. 49, ¶ 33, 816 N.W.2d 110, 119.

[¶29.] If the court determines on remand that evidence exists beyond a

reasonable doubt that Mother’s continued custody of A.B. would likely result in

serious emotional or physical damage to A.B., the court’s decision that A.B.’s best

interest justified termination need not be re-decided. Although Mother wants to

retain her parental rights to A.B., only so she may retain a relationship with A.B.,

Mother’s continued legal rights to A.B. leaves A.B. without permanency or stability.

See In re C.L., 397 N.W.2d 81, 85 (S.D. 1986) (“The best interests of the children

require that some certitude and stability enter their lives.”). The well-being and

welfare of A.B. necessitates her protection from being exposed to her Mother’s

chaotic lifestyle in and out of jail and around drug users and distributors. See In re

S.H.E., 2012 S.D. 88, ¶ 33, 824 N.W.2d 420, 429.

[¶30.] Remanded.

[¶31.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur.

[¶32.] SEVERSON, Justice, concurs specially.

[¶33.] KERN, Justice, deeming herself disqualified, did not participate.

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SEVERSON, Justice (concurring specially.)

[¶34.] The circuit court in this case found many of the facts beyond a

reasonable doubt where that was not the correct standard of proof and failed to find

certain facts beyond a reasonable doubt where applying that high standard is

required. This may indicate that confusion exists on the applicable standards of

proof in abuse or neglect proceedings, including those where ICWA applies. I write

specially to clarify the standards of proof by which the court must issue certain

findings.

[¶35.] ICWA does not replace South Dakota statutes and case law addressing

abused or neglected children but adds an additional dimension when child custody

is an issue for an Indian child. Regardless of the applicability of ICWA, a court

must determine whether a child is abused or neglected. The “State must prove by

clear and convincing evidence that a child is dependent and neglected.” In re

J.A.H., 502 N.W.2d 120, 123 (S.D. 1993). See SDCL 26-8A-27.

[¶36.] In certain cases, ICWA applies to the custody decisions that a court is

making. See 25 U.S.C. § Ch. 21. If a court is placing Indian children in foster care,

25 U.S.C. § 1912(e) applies. It provides: “No foster care placement may be ordered

in such proceedings in the absence of a determination, supported by clear and

convincing evidence, including testimony of qualified witnesses, that the continued

custody of the child by the parent or Indian custodian is likely to result in serious

emotional or physical damage to the child.” 25 U.S.C. § 1912(e) (emphasis added).

[¶37.] If a court subsequently terminates parental rights at a final

dispositional hearing, 25 U.S.C. § 1912(f) applies. Subsection (f) does not allow

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termination of parental rights absent “a determination, supported by evidence

beyond a reasonable doubt, including testimony of qualified expert witnesses, that

the continued custody of the child by the parent or Indian custodian is likely to

result in serious emotional or physical damage to the child.”

[¶38.] SDCL 26-8A-21 requires reasonable efforts by DSS “to make it possible

for the child to return to the home of the child’s parents, guardian, or custodian.”

However, if ICWA applies, then DSS must make active efforts. ICWA provides:

Any party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.

25 U.S.C. § 1912(d) (emphasis added). Subsection (d) does not set forth that the

court must be satisfied beyond a reasonable doubt. However, this Court has

determined that the same burden in subsection (f) should apply to a finding of

active efforts to provide remedial and rehabilitative efforts. See In re S.R., 323

N.W.2d 885, 887 (S.D. 1982) (“[W]e assume that the same burden required to prove

serious emotional or physical harm under § 1912(f), beyond a reasonable doubt,

would also be required to prove active efforts by the party seeking termination.”); In

re P.S.E, 2012 S.D. 49, ¶ 22, 816 N.W.2d 110, 117 (“We . . . hold that the ‘active

efforts’ requirement of § 1912(d) imposes a higher standard than the ‘reasonable

efforts’ of SDCL 26-8A-21.”). Therefore, the court must find beyond a reasonable

doubt that active efforts have been made to provide remedial services and

rehabilitative programs designed to prevent the breakup of the Indian family and

that these efforts have proved unsuccessful.

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[¶39.] In all cases, our state law further requires that, prior to termination of

parental rights, the court find termination to be the least restrictive alternative

commensurate with the best interests of the child with due regard for the rights of

the parents. SDCL 26-8A-27 provides:

On completion of a final dispositional hearing regarding a child
adjudicated to be abused or neglected, the court may enter a
final decree of disposition terminating all parental rights of one
or both parents of the child if the court finds, by clear and
convincing evidence, that the least restrictive alternative
available commensurate with the best interests of the child with
due regard for the rights of the parents, the public and the state
so requires.

(Emphasis added.)

[¶40.] Therefore, I concur in the opinion of the Court but write to address the

standards of proof for abuse and neglect proceedings, including those cases where

the Indian Child Welfare Act is applicable.

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