People ex rel. S.H.E.
824 N.W.2d 420
| S.D. | 2012Background
- Father is biological father of four children and stepfather of two; children are enrolled Oglala Sioux Tribe members and ICWA applies; initial allegations of abuse/neglect and rape against Father led to removal; Father and Mothers incarcerated during dispositional hearing; DSS provided various services to the mothers but limited options existed for Father due to incarceration; court terminated parental rights to four children and to two Stepchildren with planned permanent living arrangements for two Stepchildren; final order filed January 25, 2012.
- Dispositional and reunification efforts occurred from 2010–2011, including case plans, urinalysis requests, therapy attempts, and transportation assistance; Father’s incarceration restricted DSS’s ability to provide full reunification efforts; DSS engaged in concurrent planning and family assessments.
- ICWA expert and social workers testified that termination was least restrictive and in the best interests; court found reasonable and active efforts were made and that conditions existed to support termination; final decision affirmed on appeal.
- Motherl’s longer involvement and progress contrasted with Father’s incarceration and ongoing allegations; the record showed extensive services to the family overall, including to Motherl and Mother2, while Father faced limited rehabilitative options due to incarceration.
- Final disposition: termination of Father’s parental rights found to be the least restrictive alternative and in the best interests of the children; ICWA active efforts standard satisfied; court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DSS satisfied ICWA active efforts beyond reasonable doubt | Father contends DSS failed to provide active efforts due to incarceration | DSS argues active efforts were provided to the family, including to non-incarcerated parents | Active efforts satisfied; DSS’s services to the family were adequate under ICWA |
| Whether non-incarcerated parent services can count toward active efforts | Father argues only services to him should count | Record supports considering services to Motherl and Mother2 in keeping the family together | Yes, services to non-incarcerated parent(s) counted under ICWA |
| Whether termination was the least restrictive alternative | Father argues guardianship or other options could be less restrictive | ICWA expert and attorney recommended termination for permanency and stability | Termination deemed least restrictive alternative; guardianship deemed insufficient to ensure permanency |
| What is the proper standard of review for ICWA active efforts | Not explicitly argued in the provided material | Active efforts are a mixed question of law and fact, reviewed de novo | Active efforts review is de novo; other factual findings reviewed for clear error |
Key Cases Cited
- People ex rel. L.S., 2012 S.D. 22, 812 N.W.2d 505 (S.D. 2012) (standard for reviewing ICWA best interests and LRA findings; clear error standard apply to facts)
- People ex rel. P.S.E., 2012 S.D. 49, 816 N.W.2d 110 (S.D. 2012) (active efforts versus reasonable efforts under ICWA; de novo review for active efforts)
- In re J.S., 177 P.3d 590 (Okla.Civ.App.2008) (illustrative of active efforts concept beyond mere plan performance)
- In re A.N., 106 P.3d 556 (Mont. 2005) (passage on non-incarcerated parent involvement and active efforts)
- Dashiell R. v. State, Dep’t of Health & Soc. Servs., 222 P.3d 841 (Alaska 2009) (recognizes considering non-incarcerated parent services in active efforts)