962 N.W.2d 730
S.D.2021Background
- C.R.W., an Indian child (eligible for Oglala Sioux Tribe enrollment through her father), was removed in 2018 after unsafe living conditions and parental instability; DSS placed the child in foster care and later sought termination of parental rights.
- South Dakota statute (SDCL 26-8A-18) required appointment of counsel for the child; the child’s attorney concluded termination was in the child’s best interest and joined DSS’s request.
- The Oglala Sioux Tribe intervened under ICWA and moved to disqualify the child’s attorney, asserting a conflict because the attorney advocated termination while the child initially expressed a wish to return to parents.
- Mother moved (late, at the start of the termination hearing) to transfer the proceedings to tribal court; the Tribe later renewed a transfer motion after presenting a tribal-jurisdiction order.
- The circuit court denied the Tribe’s motions to disqualify and to appoint a GAL, denied Mother’s and Tribe’s motions to transfer to tribal court (finding the termination proceeding was at an advanced stage and the child opposed transfer), and entered an order terminating parental rights.
- On appeal the Tribe contested denial of disqualification; Mother appealed denial of transfer. The Supreme Court of South Dakota affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Tribe could disqualify child’s attorney for advocating the child’s best interest contrary to the child’s earlier stated wishes | Tribe: attorney had an ethical conflict—Rule 1.2 requires abiding by client’s objectives; counsel should advocate child’s expressed wishes; disqualification and GAL appointment required | State/child’s counsel: SDCL 26-8A-18 requires the child’s attorney to represent the child’s best interests; counsel may override client wishes when necessary; Tribe nonetheless had standing to raise conflict | Court: Tribe had standing, but no disqualifying conflict shown. SDCL 26-8A-18 requires best-interest representation; when counsel’s best-interest view differs from child’s wishes, counsel must present both the child’s wishes and the basis for counsel’s contrary recommendation to the court; denial affirmed |
| Whether the circuit court abused its discretion by denying Mother’s motion to transfer the case to tribal court | Mother: she only recently learned about tribal-transfer option; denial deprived her of a meaningful hearing and relief; requested evidentiary hearing | DSS/State: the termination proceeding was at an advanced stage; Mother had been represented and previously advised of transfer rights; the child opposed transfer; no additional evidence or hearing requested by parties | Court: no abuse of discretion. Court afforded parties opportunity to be heard, found advanced-stage good-cause to deny transfer and properly considered the child’s objection; denial affirmed |
Key Cases Cited
- People ex rel. M.H., 691 N.W.2d 622 (S.D. 2005) (ICWA preserves tribal interest in Indian children and permits tribal intervention)
- Ward v. Lange, 553 N.W.2d 246 (S.D. 1996) (courts have duty to address attorney ethical issues and potential conflicts)
- Wheat v. United States, 486 U.S. 153 (1988) (courts’ independent duty to inquire into conflicts of interest)
- Interest of J.P.B., 419 N.W.2d 387 (Iowa 1988) (child’s attorney advocates best interests; present child’s wishes when differing)
- In re K.H., 285 P.3d 474 (Mont. 2012) (adopting best-interest advocacy by child’s attorney while requiring disclosure of child’s wishes)
- In re Marriage of Rolfe, 699 P.2d 79 (Mont. 1985) (attorney for child advocates best interest, must disclose child’s wishes and reasons for disagreement)
- Harter v. Plains Ins. Co., 579 N.W.2d 625 (S.D. 1998) (abuse of discretion standard for attorney disqualification rulings)
- People in Interest of E.T., 932 N.W.2d 770 (S.D. 2019) (ICWA transfer rules; presumptive tribal jurisdiction and good-cause exceptions)
- People in Interest of A.O., 896 N.W.2d 652 (S.D. 2017) (denial of ICWA transfer reviewed for abuse of discretion; advanced-stage factor)
- In re Brandon M., 54 Cal. App. 4th 1387 (Cal. Ct. App. 1997) (ICWA does not wholly occupy child-custody field; no implied preemption of state procedures)