962 N.W.2d 632
S.D.2021Background
- C.H., born Sept. 2017, was removed from Mother (C.M.) and Father’s care on Oct. 2, 2018 after DSS found unsafe home conditions, parental drug use, and unsupervised toddler care; parents admitted the petition on Oct. 23, 2018. ICWA applied because C.H. is eligible for tribal enrollment.
- DSS provided services and a case plan early in the case but, per the record, ceased all reunification efforts after a December 2019 hearing; no visits or DSS-facilitated services occurred from Dec. 2019 to the dispositional hearing in Sept. 2020.
- Mother began intensive work with a behavioral analyst in Oct. 2019, completed parenting classes and drug treatment by mid‑2020, and produced testimony and witnesses about improved housing, sobriety, and bonding with C.H.
- At the Sept. 2020 dispositional hearing the circuit court terminated Mother’s parental rights, finding (among other things) that DSS had made active efforts under ICWA and that reunification services had failed.
- The Supreme Court reversed and remanded: it held the record did not support the circuit court’s finding that active efforts continued (ICWA §1912(d)), faulted the lack of contemporaneous DSS investigation into Mother’s post‑Dec. 2019 progress, ordered appointment of counsel for C.H., and flagged deficiencies in the ICWA §1912(f) expert testimony and the court’s least‑restrictive‑alternative analysis.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (State/DSS) | Held |
|---|---|---|---|
| Whether the State/DSS made the active efforts required by ICWA §1912(d) | DSS ceased efforts after Dec. 2019, so active efforts were not provided through the dispositional hearing | Active efforts had been made prior to Dec. 2019 and court was justified in relieving DSS thereafter | Reversed — ICWA requires ongoing "active efforts;" DSS made no efforts from Dec. 2019–Sept. 2020, so the record does not show active efforts beyond a reasonable doubt |
| Whether conditions that led to removal continued to exist supporting termination | Mother had remedied key problems (sobriety, housing, parenting skills) and showed progress since DSS stopped active efforts | Mother had a multi‑year history of neglect, failed to timely complete DSS recommendations, and posed continued risk | Reversed — the court’s findings on continued conditions lacked contemporaneous evidence because DSS had not investigated Mother’s post‑Dec. 2019 status |
| Whether an attorney for the child was required and appointed | An attorney should have been appointed (DSS repeatedly requested appointment) | State noted no attorney had been appointed earlier due to the child’s age | Reversed/remand — court erred by not appointing counsel for C.H.; appointment required under SDCL 26‑8A‑18 |
| Whether ICWA §1912(f) expert testimony and least‑restrictive‑alternative findings were adequate | The expert’s opinion did not account for Mother’s subsequent improvements; court failed to identify record evidence of likely serious harm or consider alternatives (e.g., guardianship) | The expert testified the custody would be detrimental; court used statutory language in its order | Reversed — expert testimony and findings were insufficient and perfunctory; court must apply §1912(f) standards and adequately analyze least‑restrictive alternatives on remand |
Key Cases Cited
- In re S.H.E., 824 N.W.2d 420 (S.D. 2012) (standard of review and that active‑efforts question is mixed law and fact)
- In re P.S.E., 816 N.W.2d 110 (S.D. 2012) (heightened ICWA obligation: agencies must take parents through case‑plan steps, not merely provide a plan)
- In re J.S.B., Jr., 691 N.W.2d 611 (S.D. 2005) (court cannot use ASFA to excuse ICWA active‑efforts requirement)
- In re A.B., 880 N.W.2d 95 (S.D. 2016) (ICWA expert testimony need not recite statutory language verbatim but must support §1912(f) determination)
- In re D.J.S., 456 P.3d 820 (Wash. Ct. App. 2020) (explains active efforts include assisting parents through case‑plan steps and developing resources)