People Ex Rel. A.B., 880 N.W.2d 95

Background

In 2014 DSS removed A.B., a Northern Arapaho child, after Mother admitted methamphetamine use/sales and leaving A.B. in unsafe situations; Father (Cheyenne River Sioux) later sought and obtained custody.
DSS provided services and a case plan; Mother repeatedly tested positive, was episodically incarcerated, and made little progress toward reunification.
At the dispositional hearing DSS sought termination of Mother’s parental rights; Mother opposed termination but did not oppose Father’s custody.
The State presented DSS caseworker Van Den Hemel and ICWA expert Luke Yellow Robe (a Rosebud Sioux member) who testified about tribal childrearing practices and opined termination was in A.B.’s best interest and that continued custody with Mother would be injurious.
The circuit court terminated Mother’s parental rights, citing findings both “beyond a reasonable doubt” and “by clear and convincing evidence,” but explicitly relied on the clear and convincing phrase when stating that continued custody would cause serious emotional or physical harm.
The Supreme Court remanded, holding the court erred by failing to apply the beyond-a-reasonable-doubt standard required by 25 U.S.C. § 1912(f) for the specific finding that continued custody would likely cause serious harm, but upheld that Yellow Robe was a qualified ICWA expert and that evidence otherwise supported termination/least-restrictive-alternative determinations on remand if the § 1912(f) finding is made.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court abused discretion in qualifying the State’s ICWA expert	Mother: Yellow Robe lacked specialized knowledge of Northern Arapaho culture per 2015 BIA Guidelines	State: Yellow Robe had substantial knowledge of Native culture and Arapaho childrearing; BIA Guidelines nonbinding	Court: No abuse — Yellow Robe qualified under South Dakota precedents requiring substantial knowledge of Native childrearing practices
Proper standard of proof under 25 U.S.C. § 1912(f)	Mother: § 1912(f) requires proof beyond a reasonable doubt; court applied clear and convincing standard, warranting reversal	State: Court knew the correct standard; issue waived or harmless because evidence meets § 1912(f)	Court: Court erred by not making the explicit § 1912(f) beyond-a-reasonable-doubt finding regarding likely serious harm; remand required for that determination
Sufficiency of expert testimony that continued custody would cause serious harm	Mother: Yellow Robe only said custody could be “injurious,” not that serious harm was likely—insufficient under § 1912(f)	State: § 1912(f) requires the court’s determination supported by expert testimony; expert need not use talismanic words; testimony plus facts suffice	Court: Expert’s testimony combined with record supports legal sufficiency; “injurious” language not fatal, but remand still required due to standard-of-proof error
Whether termination was the least restrictive alternative	Mother: Should retain legal rights while Father has full custody to preserve relationship	State: Mother’s ongoing instability prevents permanency; termination provides child stability	Court: If on remand § 1912(f) finding is made beyond reasonable doubt, prior least-restrictive and best-interest determinations stand; termination appropriate to secure permanency

Key Cases Cited

In re J.I.H., 768 N.W.2d 168 (S.D. 2009) (statutory standards for ICWA findings and proof burdens)
In re O.S., 701 N.W.2d 421 (S.D. 2005) (qualification of ICWA expert and role of cultural testimony)
In re M.H., 691 N.W.2d 622 (S.D. 2005) (BIA guidelines nonbinding; need for experts to explain Native childrearing practices)
In re S.D., 402 N.W.2d 346 (S.D. 1987) (discussion of BIA 1979 Guidelines and categories of expert witnesses)
In re L.S., 812 N.W.2d 505 (S.D. 2012) (least restrictive alternative and best-interest standard in termination)
In re P.S.E., 816 N.W.2d 110 (S.D. 2012) (treatment of active efforts and ICWA standards in termination proceedings)