In re People

Father is affiliated with the Cheyenne River Sioux Tribe, but is not an enrolled member. One of the other fathers is an enrolled member of the Rosebud Sioux Tribe and his child with mother is eligible for enrollment in that tribe. Another father is an enrolled member of the Standing Rock Sioux Tribe, but his two children with mother do not have a sufficient blood quantum for membership in that tribe. All of the children are eligible for enrollment in the Cheyenne River Sioux Tribe.

Because of uncertainty over the paternity of one of the children, the parental rights of the father of that child were terminated in a later order designating the father as "unknown."

The children were initially separated into groups and placed into different foster homes. Later, they were all placed together in one foster home.

We are aware of the recent decision of the United States District Court for the Northern District of Texas holding parts of ICWA, including its placement preferences, unconstitutional. Brackeen v. Zinke, No. 4:17-cv-oo868-0, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018). However, the decision may be appealed and ICWA has previously been upheld by the United States Supreme Court. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Moreover, we are not bound by the decision of the District Court in Texas and must presume that ICWA is constitutional. U.S. v. v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561 (1963) (noting that Acts of Congress have "strong presumptive validity'); State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905 ("Statutes are presumed to be constitutional[.]").

Father also cites federal guidelines corresponding with section 1915(b) that contain similar language on placement preferences. See Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146-02, F.2, F.3 (Feb. 25, 2015). Federal regulations continue to reflect the same placement preferences. See 25 C.F.R. § 23.131 (2016).

The State's brief asserts that "courts across the country have been . . . skeptical" of M.S.S.'s ruling." However, with the exceptions of In re Welfare of Children of J.B., 698 N.W.2d 160, 169 (Minn. Ct. App. 2005) and David S. v. State, Dep't of Health & Soc. Servs., 270 P.3d 767 (Alaska 2012), discussed infra, the cases the State cites supporting that point appear to focus on the appropriate standard of proof for active efforts. See In re Michael G., 74 Cal. Rptr. 2d 642, 649 (Cal. Ct. App. 1998); State, ex rel. Children, Youth and Family Dep't v. Yodell B., 367 P.3d 881, 884 (N.M. Ct. App. 2015); In re Dependency of A.M., 22 P.3d 828, 832-33 (Wash. Ct. App. 2001); In re Vaughn R., 770 N.W.2d 795, 810 (Wis. Ct. App. 2009). This Court has settled that question by adopting the reasonable doubt standard. S.H.E., 2012 S.D. 88, ¶ 19, 824 N.W.2d at 426. The issue here is whether the State met the appropriate standard of proof, not what the standard should be.

The Minnesota court similarly distinguished M.S.S. in an earlier 2003 unpublished opinion, noting in that case that, "unlike M.S.S. (a) in district court, the tribe argued against mother's proposed placement; (b) the district court actually addressed (and rejected) mother's proposed placement; and (c) the tribe [was] participating in [the] appeal and continu[ing] to oppose mother's proposed placement." In re Welfare of the Child of Wilson, No. C6-02-1940, 2003 WL 21266612, at *2 (Minn. Ct. App. June 3, 2003).

Alaska's agency counterpart to DSS.

25 U.S.C. § 1914 (2012) provides:

Any Indian child who is the subject of any action for foster 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 competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.

The Alaska court also noted a number of additional courts addressing the question that reached the same conclusion. See Doe v. Mann, 285 F. Supp. 2d 1229, 1240 (N.D. Cal. 2003) ("There is no evidence in the text of section 1915, the structure of ICWA or the legislative history that Congress intended to create a cause of action for" violation of placement preferences.); Navajo Nation v. Super. Ct. of the State of Wash. for Yakima Cty., 47 F. Supp. 2d 1233, 1242 (E.D. Wash. 1999) ("Section 1915, while setting out the preferences for placement of Indian children, does not expressly permit a private cause of action" to invalidate termination decisions as section 1914 does for certain other ICWA violations.); In re Appeal in Maricopa Cty. Juvenile Action No. JS-7359, 766 P.2d 105, 108-09 (Ariz. Ct. App. 1988) ("Even if the Indian Child Welfare Act . . . preferred placements were ignored, [it] is immaterial to the question whether termination based on a failure to remedy the condition which made the out-of-home placement necessary is appropriate."); In re Vincent M., No. H034767, 2010 WL 2557188, at *8 (Cal. Ct. App. June 25, 2010) ("[A]ctive efforts and placement [are] two separate, distinguishable issues."); In re A.A., 84 Cal. Rptr. 3d 841, 863 (Cal. Ct. App. 2008) ("[W]e distinguish the issue of placement from that of active efforts." (citing 25 U.S.C. §1914)); In re J.W., 528 N.W.2d 657, 662 (Iowa Ct. App. 1995) (Appellant "provides no authority for her assertion that noncompliance with section 1915 requires reversal of the trial court's termination order. The remedial provisions of section 1914 do not apply to violations of section 1915."); B.R.T. v. Exec. Dir. of Soc. Serv. Bd. N. D., 391 N.W.2d 594, 601 (N.D. 1986) ("[I]nvalidation of a parental rights termination may not be accomplished by showing a violation of the placement preferences in a proceeding brought pursuant to 25 U.S.C. § 1914."); State ex rel. Juvenile Dep't of Multnomah Cty. v. Woodruff, 816 P.2d 623, 625 (Or. Ct. App. 1991) ("Failure to comply with the foster care placement preferences in § 1915(b) is not a basis for invalidating a court order terminating parental rights." (citing 25 U.S.C. § 1914)). But see In re K.B., 93 Cal. Rptr. 3d 751, 765 (Cal Ct. App. 2009) (assuming the applicability of placement preferences to active efforts, but finding "no evidence that there was any suitable member of the children's extended family available for placement or any evidence that any other member of the Choctaw Nation was available to take the children[.]"); In re L.N.W., 457 N.W.2d 17, 20 (Iowa Ct. App. 1990) ("We do not necessarily disagree with the appellant's contention that the party seeking termination must also demonstrate that services were also offered to the extended members of the Native American family . . ., but we need not rule on that question for it is clear to us after reviewing the entire record that services were offered to [the appellant's] family as a whole."); M.S.S., 465 N.W.2d at 419 ("[W]e conclude the trial court erred in not having required the county to extend the focus of its efforts to the extended family and the Indian child's tribe."); but see also Wilson, 2003 WL 21266612, at *2 (distinguishing M.S.S. on the basis that the tribe in Wilson argued against the mother's proposed placement in the trial court, the trial court addressed and rejected the placement, and the tribe participated in the appeal and resisted the placement). The Montana Supreme Court has more recently endorsed David S., noting that "[c]ourts have held that placement is a separate issue from active efforts, and that the two issues must be analyzed separately." In re. K.B., 301 P.3d 836, 843 (Mont. 2013) (quoting Thea G. v. State, 291 P.3d 957, 963 (Alaska 2013)).

Licensed Native American foster parents related to one of the other fathers in the case did volunteer at one point to be a placement option for all the children here. However, between their own children and foster children, the foster parents already had six children in their home, and there had already been some supervisory problems in the home. For these reasons, the trial court rejected the foster parents as an immediate placement option in the months before the dispositional hearing here. A DSS worker testified during the dispositional hearing that the foster parents were no longer interested in being a placement option in this case.