Interest of A.A., A.T., and A.A., 967 N.W.2d 810

Background

Mother (Lower Brule Sioux Tribe member) was found impaired and huffing aerosol spray while caring for two young children; DSS took the children into protective custody and ICWA applied.
Father lived separately, was not an active caregiver early on, and initially did not participate in the case; DSS located him and facilitated visits and a trial reunification with Mother in Oct. 2018.
The trial reunification collapsed after Mother became intoxicated and the children’s whereabouts were unknown for nearly two weeks; Father had left the children with intoxicated Mother and later admitted a no-fault adjudication.
Father had multiple 2019 convictions for domestic-related assaults, moved frequently (ultimately to Sioux Falls), and did not consistently complete or engage in recommended services until shortly before disposition.
DSS provided multiple services and referrals (parenting, substance treatment, visitation assistance, housing guidance); the State petitioned to terminate both parents’ rights after ~21–23 months of proceedings.
The circuit court terminated Father’s parental rights, concluding DSS made active efforts, continued custody by Father would likely cause serious emotional or physical harm, and termination was the least restrictive alternative; Father appealed.

Issues

Issue	Father’s Argument	State/DSS’s Argument	Held
1. Premature signing of findings under SDCL 15‑6‑52(a)	Court violated rule by signing the State’s proposed findings same day; that frustrated opportunity to respond and prejudiced Father	Error was procedural only and not prejudicial to Father’s rights; issues were preserved for appeal	Court acknowledged error but found no prejudice and declined to reverse
2. ICWA active‑efforts requirement (25 U.S.C. §1912(d))	DSS failed to provide active efforts tailored to Father specifically (housing, services)	DSS made affirmative, timely efforts to reunite the family as a whole and assisted both parents throughout	Court held beyond a reasonable doubt that DSS provided active efforts to prevent breakup
3. ICWA §1912(f) — likely serious emotional or physical damage; causal connection per 25 C.F.R. §23.121	Inadequate housing alone cannot show the required causal link; no expert proof tying Father’s conditions to likely serious harm	Combined evidence (Father’s abdication, domestic violence convictions, instability, inadequate housing, belated engagement) supports likelihood of harm	Court’s finding was not clearly erroneous; the combined evidence satisfied the causal/§1912(f) standard
4. Least restrictive alternative / best interests	Termination was unnecessary because Father had housing, employment, ended relationship with Mother, and proposed niece guardianship	Father’s efforts were belated; parenting deficits and safety concerns persisted; prolonged delay would harm children’s need for permanency	Court found termination was the least restrictive alternative and not clearly erroneous

Key Cases Cited

In re A.D., 416 N.W.2d 264 (S.D. 1987) (prejudice standard for procedural error on findings)
In re M.D., 920 N.W.2d 496 (S.D. 2018) (active‑efforts under ICWA must be proven beyond a reasonable doubt)
In re P.S.E., 816 N.W.2d 110 (S.D. 2012) (standard of review for mixed law‑and‑fact ICWA questions)
In re E.T., 932 N.W.2d 770 (S.D. 2019) (federal ICWA regulations are binding on state courts)
In re C.H., 962 N.W.2d 632 (S.D. 2021) (DSS cannot merely issue a case plan and passively wait for compliance)
In re A.B., 880 N.W.2d 95 (S.D. 2016) (elements and burdens for termination under ICWA and analysis of least restrictive alternative)
In re M.V., 808 N.W.2d 916 (S.D. 2011) (clear‑error review standard for factual findings)