Interest of C.R.W.

#29111, #29117-a-SRJ
2021 S.D. 42

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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The People of the State of South Dakota
In the Interest of C.R.W., Child, and concerning
D.S. and J.R.W., Respondents,
OGLALA SIOUX TRIBE, Intervenor.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE JEFFREY R. CONNOLLY
Judge

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DANA L. HANNA
Rapid City, South Dakota Attorney for intervenor and
appellant, Oglala Sioux Tribe.

ILISJA DUFFY
Rapid City, South Dakota Attorney for respondent and
appellant, D.S.

COURT W. ROPER
Special Assistant Attorney General
Pierre, South Dakota Attorneys for petitioner and
appellee, State of South Dakota.

GARY D. JENSEN of
Beardsley, Jensen & Lee
Rapid City, South Dakota Attorneys for appellee, C.R.W.,
Child.

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CONSIDERED ON BRIEFS
MARCH 22, 2021
OPINION FILED 07/21/21
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JENSEN, Chief Justice

[¶1.] D.S. (Mother) and J.R.W. (Father) are the biological parents of C.R.W.,

who was the subject of an abuse and neglect proceeding before the circuit court.

The Oglala Sioux Tribe (the Tribe) intervened in the proceeding pursuant to the

Indian Child Welfare Act (ICWA). The Tribe moved to disqualify C.R.W.’s attorney

alleging the attorney had a conflict of interest with C.R.W. because the attorney

was not advocating for C.R.W.’s expressed wishes. During the termination

proceedings, Mother and Tribe moved to transfer the case to tribal court. The

circuit court denied the motion to disqualify C.R.W.’s attorney and the motions to

transfer jurisdiction. The court entered a final dispositional order terminating the

parental rights of both parents. Mother and the Tribe appeal. We affirm.

Facts and Procedural History

[¶2.] In early 2018, C.R.W. lived with Father and her stepmother

(Stepmother) in Rapid City. She was eleven years of age at the time. Mother had

not been the active caregiver since 2009. On January 11, Father was arrested for

violating a no contact order. Around 3:00 a.m. that same night, C.R.W. called Rapid

City dispatch to report that Stepmother left her home alone with an unknown male

and she felt unsafe. Law enforcement arrived at the house and questioned the man,

who was sleeping. He identified himself as J.J. J.J. told law enforcement that he

was not providing care for C.R.W. and did not know Stepmother left the house

without C.R.W. C.R.W. informed law enforcement that J.J. entered the home

around 2:00 a.m. and Stepmother left around 2:30 a.m. The responding officers

reported that the carpets were covered in garbage, dirty dishes were piled up in the

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sink, food was spilled on the counters and stove, and the kitchen smelled like sour

milk. C.R.W. believed that Stepmother and other unknown associates were

smoking marijuana in the home prior to her leaving.

[¶3.] C.R.W. was removed from the residence and taken to her maternal

grandmother’s (Grandmother) home. Grandmother reported several ongoing

concerns related to C.R.W.’s truancy and living conditions. Grandmother reported

that C.R.W. had head lice for months, yet it went untreated even though she

provided Father with tips on how to treat lice. C.R.W. was placed in the

Department of Social Services’ (DSS) temporary custody because Father was

incarcerated and Mother’s whereabouts were unknown.

[¶4.] A 48-hour hearing was held on January 16, 2018. Mother, Father, and

C.R.W. were each appointed counsel. C.R.W. was eligible for enrollment in the

Oglala Sioux Tribe by virtue of Father’s enrolled status. 1 Thus, C.R.W. is

considered an Indian child under ICWA, pursuant to 25 U.S.C. § 1903(4). The Tribe

intervened in the proceedings. Following a March 2018 hearing, the circuit court

entered a default adjudicatory order, after both parents failed to appear personally,

determining C.R.W. to be abused and neglected. The attorneys for each parent

were present at the hearing.

[¶5.] Over the next several months, C.R.W. remained in foster care and the

circuit court found at periodic review hearings that “returning custody of [C.R.W.] to

the Respondent parents would likely result in serious emotional and/or physical

damage to [C.R.W.].” Father had a history of domestic abuse and refused to

1. Mother is non-Indian.

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cooperate or maintain contact with DSS during the proceedings. Father also

refused efforts by DSS to set up visitation for him with C.R.W. Mother had a

history of instability and substance abuse. She had been in and out of C.R.W.’s life

since birth. DSS’s reports to the circuit court showed that Mother made no

movement toward reunification during this time.

[¶6.] DSS filed a petition to terminate parental rights on October 4, 2018,

and served the same on both parents. A final dispositional hearing was scheduled

for December 3, 2018, but was later cancelled at DSS’s request. A permanency

hearing was held in January 2019. At the hearing, DSS again expressed its

intention to request termination of parental rights and asked the court to set a final

dispositional hearing within 30 days. C.R.W.’s attorney joined in this request

expressing that termination of parental rights was in C.R.W.’s best interest. The

attorneys for both parents objected to setting a final dispositional hearing.

[¶7.] The Tribe also objected to setting a final hearing and requested the

circuit court to direct C.R.W.’s attorney to advise whether C.R.W. agreed with her

attorney’s request to terminate parental rights. C.R.W.’s attorney informed the

court that C.R.W. “would like to go home to her parents” but “she understands her

parents are not in a position right now to provide her with stability.” C.R.W.’s

attorney further informed the court of C.R.W.’s other placement preferences “if she

can’t go home to her parents.” C.R.W.’s attorney relayed her belief that

reunification was not in C.R.W.’s best interest and expressed that the court should

terminate parental rights.

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[¶8.] Based on these statements, the Tribe argued a conflict of interest

existed between C.R.W. and her attorney, and that the attorney should be

disqualified. The Tribe requested that a guardian ad litem (GAL) be appointed for

C.R.W. and that a review hearing be set to address whether C.R.W.’s attorney had a

conflict of interest. The circuit court denied the Tribe’s request to appoint a GAL

but set a review hearing for February 25, 2019, to consider the Tribe’s motion to

disqualify C.R.W.’s attorney.

[¶9.] On February 20, the Tribe filed a written motion to disqualify C.R.W.’s

attorney. The Tribe claimed that C.R.W.’s attorney created a conflict of interest by

recommending termination of parental rights to the court when C.R.W. desired to

be reunited with her parents. The Tribe argued that the conflict of interest

deprived C.R.W. of her due process and statutory right to counsel. The Tribe also

argued that C.R.W.’s attorney had an ethical duty to advocate for C.R.W.’s wishes

pursuant to Rule 1.2 of the South Dakota Rules of Professional Conduct. 2 The Tribe

again requested that a GAL be appointed to represent C.R.W.’s best interests.

[¶10.] C.R.W.’s attorney filed a response arguing that the Tribe did not have

standing to bring a motion to disqualify C.R.W.’s attorney, but even if the Tribe had

standing, the statute authorizing the appointment of counsel for a child in abuse

and neglect proceedings requires “[t]he attorney for the child [to] represent the

2. Rule 1.2 provides in relevant part:

a lawyer shall abide by a client’s decisions concerning the
objectives of representation and, as required by Rule 1.4, shall
consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client
as is impliedly authorized to carry out the representation.

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child’s best interests . . . .” SDCL 26-8A-18. 3 C.R.W.’s attorney also provided a

memorandum from the State Bar Ethics Committee addressing an attorney’s

professional responsibility in representing children in abuse and neglect

proceedings. The Committee’s memo provided that “SDCL 26-8A-18 requires a

lawyer to disregard client wishes when they conflict with the lawyer’s assessment of

the best interests of the client.”

[¶11.] At the February 25 review hearing, the circuit court ruled that the

Tribe had standing to raise the alleged conflict with C.R.W. and her attorney

because “any party has standing . . . to bring to the court’s attention if they believe

there’s an ethical violation or some reason where a party should be disqualified.”

The court stated possible “friction” existed between the rules of professional conduct

and SDCL 26A-8-18 but did not attempt to resolve any conflict between them.

Instead, the circuit court found that the record failed to show that a conflict existed

between C.R.W. and her attorney requiring disqualification. The court denied the

motion to disqualify, as well as the request to appoint a GAL. However, the court

expressed that it would be open to hearing directly from C.R.W.

[¶12.] On February 26, 2019, DSS noticed a final dispositional hearing for

March 25, 2019, and filed a petition to terminate the parental rights of Father and

Mother. On March 22, 2019, the Tribe renewed its motion to disqualify C.R.W.’s

3. SDCL 26-8A-18 provides in relevant part:

the court shall appoint an attorney for any child alleged to be
abused or neglected in any judicial proceeding. . . . The attorney
for the child shall represent the child’s best interests and may
not be the attorney for any other party involved in the judicial
proceedings.

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attorney. The Tribe specifically requested the circuit court to address the

obligations of C.R.W.’s attorney under SDCL 26-8A-18 and the Rules of Professional

Responsibility.

[¶13.] During the termination hearing, C.R.W. appeared and was questioned

by the court and counsel concerning her preferences and express wishes. C.R.W.

relayed that she wanted Mother’s and Father’s parental rights to be terminated so

that she could live in a forever home. C.R.W. also stated that she had initially

wanted to return to her parents but changed her mind over time because of her

parents’ instability and inconsistency in visiting her. C.R.W. expressed that her

first choice would be to live permanently with her brother’s foster family, where she

was staying at the time of the final dispositional hearing, or another home

permanently. Based upon C.R.W.’s testimony, the court found that C.R.W. “wanted

her parents’ rights terminated and that she wanted to be adopted.” The court orally

denied the Tribe’s second motion to disqualify C.R.W.’s attorney.

[¶14.] At the start of the final dispositional hearing on March 25, Mother

orally moved to transfer the case to tribal court. Mother claimed that she had only

recently learned about the possibility of transferring the case to tribal court from

members of Father’s family. Father and the Tribe did not take a position on the

motion because neither attorney knew whether their clients wished to transfer the

case. 4 The Tribe also informed the circuit court that the tribal court had not

conditionally accepted jurisdiction of the case.

4. Father did not personally appear at the hearing.

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[¶15.] DSS objected to Mother’s transfer motion, arguing that good cause

existed to deny transfer because the final dispositional hearing was at an advanced

stage in the proceedings. C.R.W.’s attorney also objected to Mother’s oral motion to

transfer. C.R.W.’s attorney reiterated that C.R.W. specifically expressed her desire

to move forward with the termination hearing so that she could be placed in a

forever home. The court asked the Tribe if it had a position on whether good cause

existed, to which the Tribe replied “[C.R.W.’s] desires and rights on this issue

should be respected[.]”

[¶16.] The circuit court found that good cause existed to deny Mother’s

motion to transfer because the case was in the advanced stages of the proceeding.

The circuit court also considered the fact that C.R.W. opposed transfer. Although

Mother argued that she just recently found out about the ability to transfer the

proceedings, the court found that Mother had been involved in every stage of the

litigation, represented by counsel throughout the proceedings, and advised of her

right to transfer at the 48-hour hearing in January 2018.

[¶17.] The termination hearing was not concluded on March 25 so the parties

returned for a second day. At the start of the continued hearing on March 28, the

Tribe, for the first time, made an oral motion to transfer to tribal court. The Tribe’s

counsel indicated that the tribal court had taken action to assume jurisdiction, but

he did not yet have a copy of the order. Mother also orally renewed her motion to

transfer. In making the transfer motion, the Tribe conceded that the case was in

the advanced stages of the proceeding.

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[¶18.] Following a break during the hearing, the Tribe’s attorney presented a

tribal court order dated March 11 accepting jurisdiction of the case. The circuit

court and the parties, including the Tribe’s attorney, were not previously aware of

the tribal court order. Mother argued that the court should reconsider the denial of

the motion to transfer because she would have made the motion earlier had she

known that the tribal court accepted jurisdiction of the case. The circuit court

determined good cause existed to deny both the Tribe’s motion and Mother’s

renewed motion on the same grounds upon which the court had denied the original

transfer motion.

[¶19.] Following the final dispositional hearing, the court issued a lengthy

memorandum opinion confirming its oral rulings denying the Tribe’s motion to

disqualify C.R.W.’s attorney, as well as the motions to transfer jurisdiction to tribal

court. The court then issued findings of fact and conclusions of law, and an order

terminating Mother’s and Father’s parental rights.

[¶20.] The Tribe raises a single issue on appeal of whether the circuit court

erred when it denied the Tribe’s motion to disqualify C.R.W.’s attorney. Mother

appeals arguing that the circuit court abused its discretion when it denied her

motion to transfer jurisdiction.

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Issues

1. Whether the circuit court erred when it denied the
Tribe’s motions to disqualify C.R.W.’s attorney.

a. Standing

[¶21.] DSS initially argues that the Tribe lacked standing to disqualify

C.R.W.’s attorney before the circuit court, or to appeal the issue to this Court. 5 We

disagree. Under ICWA, an Indian tribe has an interest in an Indian child that is

distinct from the parents’ interest. People ex rel. M.H., 2005 S.D. 4, ¶ 14, 691

N.W.2d 622, 627 (quoting Mississippi Band of Choctaw Indians v. Holyfield, 490

U.S. 30, 52, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989)). Additionally, ICWA was

established to help preserve “the tribe’s ability to assert its interest in its children.”

Id. (quoting Holyfield, 490 U.S. at 52) (emphasis omitted). As such, a tribe may

intervene as a party in any abuse and neglect proceeding involving an Indian child.

We conclude that the Tribe’s interest in protecting the welfare of Indian children

and its status as a party under ICWA is sufficient to show injury for the purpose of

standing to raise an alleged conflict between C.R.W. and her attorney. 6 See Cable v.

Union Cnty. Bd. of Cnty. Comm’rs, 2009 S.D. 59, ¶ 22, 769 N.W.2d 817, 826.

[¶22.] Moreover, the circuit court also properly recognized its inherent

authority to ensure that counsel appearing and advocating before the court comply

5. C.R.W. joined DSS’s brief and did not file a separate brief.

6. 25 U.S.C. § 1914 authorizes the Tribe to petition a court to invalidate any
action for termination of parental rights upon a showing that such action
violated any provision of sections 1911, 1912, or 1913. One such provision,
section 1912(b), provides that the court may appoint counsel for the child if
the court determines that appointment of counsel is in the child’s best
interests.

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with the professional responsibilities of an attorney. Courts have recognized that

judges have an obligation to address ethical issues involving potential conflicts of

interest that may exist between a litigant and her attorney. Ward v. Lange, 1996

S.D. 113, ¶¶ 26-28, 553 N.W.2d 246, 253 (recognizing the circuit court’s obligation to

raise and prevent, even sua sponte, conflicts of interest arising when an attorney

representing a client seeks to testify in the same proceeding). See also, Wheat v.

United States, 486 U.S. 153, 161, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140 (1988)

(stating that courts have an independent duty to inquire into conflict of interests in

a dual criminal case to ensure the defendant has adequate representation).

b. Conflict of Interest

[¶23.] The Tribe argues that a conflict of interest existed between C.R.W. and

her attorney when the attorney argued for what the attorney believed was in

C.R.W.’s best interest rather than advocating for C.R.W.’s expressed wishes. In

particular, the Tribe points to C.R.W.’s attorney joining in DSS’s request to

terminate parental rights, while indicating that C.R.W. still desired to be reunited

with her parents. The Tribe argues that C.R.W.’s attorney violated Rule 1.2 by

failing to comply with the directives of her client in advocating for C.R.W.

[¶24.] We review a circuit court’s ruling on a motion to disqualify an attorney

under an abuse of discretion standard. Harter v. Plains Ins. Co., Inc, 1998 S.D. 59,

¶ 21, 579 N.W.2d 625, 631. In denying the motion to disqualify, the court concluded

that the record did not demonstrate that a conflict of interest existed between

C.R.W. and her attorney. Even if the views of C.R.W. and her attorney differed to

some degree at the time of the January permanency hearing, the court found that

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C.R.W. expressed a desire to terminate parental rights and be adopted at the final

dispositional hearing in March. Further, the court determined that the attorney

appropriately advocated for what she believed was in the best interest of C.R.W. as

required by SDCL 26-8A-18 and that the “Tribe did not present any authority for

the proposition that a Court should disqualify an attorney because another party

believes the attorney is not properly abiding by their client’s decisions.”

[¶25.] The court also concluded that, contrary to the Tribe’s assertions,

C.R.W.’s attorney did not violate Rule 1.2 in her representation of C.R.W. The court

noted that C.R.W.’s attorney had obtained an opinion from the South Dakota State

Bar Ethics Committee that “recently made clear that Counsel has not violated

ethical obligations to her client.” Moreover, the court concluded that “little or

nothing in the record supports the Tribe’s interpretation that [C.R.W.] ever directed

her attorney to argue against termination.” The court’s factual determinations that

a conflict did not exist between C.R.W. and her attorney are supported by the

record.

[¶26.] However, the Tribe argues that the circuit court erred as a matter of

law by interpreting SDCL 26-8A-18 to permit an attorney, appointed to represent

the child in an abuse and neglect proceeding, to argue the attorney’s belief as to the

child’s best interest rather than for the express wishes of the child. The Tribe

argues that SDCL 26-8A-18 requires an attorney to provide client-directed

representation, and the attorney must abide by the child’s direct wishes. The

Tribe’s argument centers around its reading of the word “attorney” and the ethical

obligations upon an attorney in representing the client’s interests under Rule 1.2.

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[¶27.] The Tribe’s arguments present an issue of first impression in South

Dakota– whether an attorney appointed to represent a child in an abuse and

neglect proceeding under SDCL 26-8A-18 provides the child with client-directed

representation or “best interest” representation, wherein the attorney advocates for

the child’s best interest. To answer this question, we turn to the relevant statutes

and rules.

[¶28.] Interpretation of a statute or court rule is reviewed de novo. State v.

Bryant, 2020 S.D. 49, ¶ 20, 948 N.W.2d 333, 338 (citation omitted). “[T]he starting

point when interpreting a statute must always be the language itself.” Id. (quoting

State v. Livingood, 2018 S.D. 83, ¶ 31, 921 N.W.2d 492, 499 (alteration in the

original). “The purpose of statutory interpretation is to discover legislative intent.”

Id. (citation omitted). “[This Court] gives words their plain meaning and effect, and

read statutes as a whole . . . .” Expungement of Oliver, 2012 S.D. 9, ¶ 6, 810 N.W.2d

350, 352 (citation omitted) (second alteration in the original).

[¶29.] South Dakota law requires appointment of counsel for a child in an

abuse and neglect proceeding:

the court shall appoint an attorney for any child alleged to be
abused or neglected in any judicial proceeding. The court shall
appoint an attorney in the manner the county in which the
action is being conducted has chosen to provide indigent counsel
under § 23A-40-7. The attorney for the child shall represent the
child’s best interests and may not be the attorney for any other
party involved in the judicial proceedings. The court may
designate other persons, including a guardian ad litem or special
advocate, who may or may not be attorneys licensed to practice
law, to assist the attorney of the child in the performance of the
attorney’s duties. Compensation and expense allowances for the
child’s attorney shall be determined and paid according to § 26-
7A-31.

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SDCL 26-8A-18.

[¶30.] The plain language of SDCL 26-8A-18 provides: “The attorney for the

child shall represent the child’s best interests[.]” (emphasis added). This Court has

made clear its rules on statutory construction:

There are two primary rules of statutory construction. The first
rule is that the language expressed in the statute is the
paramount consideration. The second rule is that if the words
and phrases in the statute have plain meaning and effect, we
should simply declare their meaning and not resort to statutory
construction.

Abata v. Pennington Cnty. Bd. of Comm’rs, 2019 S.D. 39, ¶ 18, 931 N.W.2d 714, 721

(citation omitted) (internal quotations omitted). Thus, an attorney appointed

pursuant to SDCL 26-8A-18 must first and foremost advocate for the child’s best

interests. 7

[¶31.] The Tribe argues that notwithstanding the “best interests” language in

SDCL 26-8A-18, the ethical obligations of an attorney under the Rules of

Professional Conduct require a lawyer to “abide by a client’s decisions concerning

the objectives of representation . . . .” SDCL 16-18 App., Rules of Prof. Conduct,

7. Other states have similar statutes governing representation of children. See
WY ST 14-3-211 (“The attorney . . . shall be charged with representation of
the child’s best interest.”); See also In re K.H., 2012 M.T. 175, 285 P.3d 474
(holding that a child’s attorney advocates for the child’s best interest). This
interpretation also is consistent with articles addressing the topic. See Kasey
L. Wassenaar, Defenseless Children: Achieving Competent Representation for
Children in Abuse and Neglect Proceedings Through Statutory Reform in
South Dakota, 56 S.D. L. Rev. 182, 183 (2011) (“The attorney’s role in a best
interests capacity requires the attorney to step outside his or her traditional
role and look at the situation from a bigger perspective to determine what is
in the best interests of the child.”); See also Noy Davis, Amy Harfeld, Elisa
Weichel, A Child’s Right to Counsel (4th Ed.), 2019, at 133, (Children in
South Dakota receive “best interest representation”).

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Rule 1.2. See also SDCL 16-18 App., Rules of Prof. Conduct, Rule 1.4. The Tribe

argues that a conflict of interest arises whenever the attorney’s view of a child’s best

interests conflicts with the child’s express wishes.

[¶32.] Ethical considerations can no doubt arise from “best interests”

representation. See Wassenaar, 56 S.D. L. Rev. at 205. However, in addressing

possible conflicts, several states have reconciled an attorney’s separate obligations

to protect a child’s best interest and to advocate for a child’s wishes by requiring the

attorney to present both views to the court. See Clark v. Alexander, 953 P.2d 145,

153 (Wyo. 1998); In re K.H., 2012 M.T. 175, 285 P.3d 474; Interest of J.P.B., 419

N.W.2d 387 (Iowa 1988). These courts recognize the unique role of an attorney

appointed to represent a child and how the relationship differs from the usual

attorney-client relationship.

[T]he very reason for contested custody proceedings is that the
children involved are not yet mature enough to be self-
determining. It is the best interests of these minor children, not
their wishes, which determine the outcome of the case. In other
words, their real interests are not inconsistent or mutually
exclusive.

J.P.B., 419 N.W.2d at 391.

[¶33.] The Supreme Court of Montana explained its views (albeit in a child

custody dispute) this way:

We recognize that in Montana the attorney for the child is not a
guardian ad litem. Nevertheless his role in a custody dispute is
to advocate the child’s best interest, not the child’s wishes. This
is a difficult role, particularly when the child’s expressed wishes
conflict with the attorney’s determination of his best interests.
But, given the immaturity of the client and the pressures that
often exist in a divorce situation, it is this Court’s opinion that
the best interests of the child, the paramount concern in all
custody disputes, is best served by modifying that traditional
lawyer-client relationship.
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...
This Court is aware that determining a child’s best interests is
difficult and is concerned about the child’s right to an advocate.
We reiterate our position that a child’s wishes deserve serious
consideration[.] . . . If the court-appointed attorney concludes
that the child’s expressed wishes are not in his best interest the
attorney must disclose this to the court. The district court must
be clearly informed of the child’s wishes and the basis for the
attorney’s determination that it is not in the child’s best interest
to live with the preferred parent.

In re Marriage of Rolfe, 216 M.T. 39, 52-53, 699 P.2d 79, 86-87 (internal citations

omitted). The Montana Supreme Court later applied the same analysis to abuse

and neglect proceedings. See In re K.H., 2012 M.T. 175, 285 P.3d 474.

[¶34.] We adopt this approach as it relates to a child’s attorney appointed in

abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney

appointed pursuant to the statute is required to advocate for the child’s best

interest. However, when the attorney’s determination of what constitutes the

child’s best interest conflicts with the child’s expressed wishes, the ethical

obligations of the attorney require consultation with the child to insure that the

child’s objectives are presented to the court, along with the basis for the attorney’s

determination of the child’s best interest. This approach “gives priority to the

paramount goal of discerning the child’s best interest while enabling the lawyer to

advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419

N.W.2d at 392. 8

8. The Tribe contends that this reading of SDCL 26-8A-18 violates the child’s
due process rights. The Tribe argues that excusing any duty on the part of an
attorney to advocate for a child’s requests and preferences violates the
“opportunity to be heard at a meaningful time and in a meaningful manner”
under the Due Process Clause. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.
(continued . . .)
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[¶35.] The Tribe also argues that when the best interest recommendations of

the child’s attorney conflict with the child’s express wishes, a GAL must be

appointed to represent the child’s best interest so the attorney can advocate as

directed by the child. 9 SDCL 26-8A-20. The Tribe claims that interpreting statutes

to require best interest representation by an attorney creates a redundancy in the

duties of a GAL, resulting in an absurd or unreasonable interpretation of SDCL 26-

8A-18. See Argus Leader Media v. Hogstad, 2017 S.D. 57, ¶ 9, 902 N.W.2d 778, 782.

[¶36.] We have recognized that an ambiguity “may exist where the literal

meaning of a statute leads to an absurd or unreasonable conclusion.” People ex rel.

J.L., 2011 S.D. 36, ¶ 4, 800 N.W.2d 720, 722. However, we can discern no reason to

consider this exceptional canon of construction here. There is nothing absurd or

ambiguous about the Legislature’s requirement that both the attorney and GAL,

appointed for a child in an abuse and neglect proceeding, are obligated to advocate

for the child’s best interest. The GAL serves to assist the attorney in representing

the best interest of the child. See SDCL 26-8A-20. While the duties of the attorney

and the GAL may occasionally overlap, these court-appointed representatives serve

________________________
(. . . continued)
Ct. 893, 902, 47 L. Ed. 2d 18 (1976) (citation omitted) (internal quotations
omitted). However, this argument is undeveloped beyond the Tribe’s bare
assertion and is unsupported by authority. The Tribe’s constitutional claim
also fails to account for the fact that our standard requires the child’s
attorney to present the child’s wishes to the circuit court.

9. On appeal, the Tribe does not challenge the circuit court’s denial of the
Tribe’s request to appoint a GAL for C.R.W. The record shows that the
circuit court appointed a CASA special advocate to represent the best
interests of the child, in addition to appointing counsel.

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an integral role in providing a voice for the child and advocating for the child’s best

interest.

c. Supremacy Clause

[¶37.] The Tribe also contends that ICWA preempts SDCL 26-8A-18 to the

extent that the statute requires an attorney to advocate for a child’s best interest

rather than a child’s wishes. In part, the Tribe points to the Code of Federal

Regulations, which requires every party to be heard regarding foster care

placement, pre-adoptive placement, adoptive placement, and transfer hearings

regarding the proceeding. See 25 C.F.R. § 23.118(b); See 25 C.F.R. § 23.132(c)(2).

[¶38.] “There is a strong presumption against federal preemption.” In re

Estate of Flaws, 2016 S.D. 61, ¶ 17, 885 N.W.2d 580, 584 (citation omitted).

“Federal preemption ‘occurs when Congress . . . expresses a clear intent to pre-empt

state law, . . . where there is implicit in federal law a barrier to state regulation,

where Congress has legislated comprehensively, . . . or where the state law stands

as an obstacle to the accomplishment and execution of the full objectives of

Congress.’” Id. ¶ 18, 885 N.W.2d at 584 (quoting La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355, 368–69, 106 S. Ct. 1890, 1898, 90 L. Ed. 2d 369 (1986)) (alterations in

original).

[¶39.] “[ICWA] contains nothing at all by way of an express preemption

provision.” In re Brandon M., 54 Cal. App. 4th 1387, 1396, 63 Cal. Rptr. 2d 671

(1997). Further, ICWA does not comprehensively occupy the field of child custody

or adoption of Indian children. “In rare cases, the Court has found that Congress

‘legislated so comprehensively’ in a particular field that it ‘left no room for

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supplementary state legislation[.]’” Kansas v. Garcia, 140 S. Ct. 791, 804, 206 L.

Ed. 2d 146 (2020) (quoting R. J. Reynolds Tobacco Co. v. Durham County, 479 U.S.

130, 140, 107 S. Ct. 499, 93 L. Ed. 2d 449 (1986)). However, “ICWA is totally devoid

of any provisions dealing with, e.g., the bases on which a child may be removed from

a parent’s custody, when and how often hearings must be held to review a child’s

status, who is entitled to what reunification services and for how long, or many,

many other similar issues.” In re Brandon, 54 Cal. App. 4th at 1396. Additionally,

25 U.S.C. § 1902 provides that ICWA was implemented based on a national policy of

promoting “the stability and security of Indian tribes and families by the

establishment of minimum Federal standards for the removal of Indian children

from their families . . . .” (emphasis added).

[¶40.] The Tribe has failed to show how SDCL 26-8A-18 conflicts with any

provision of ICWA. Under federal law, a court has discretion to appoint an attorney

for an Indian child in an abuse and neglect proceeding. 25 U.S.C. § 1912(b). South

Dakota law requires a circuit court to appoint an attorney for any child alleged to be

abused and neglected. See SDCL 26-8A-18. Thus, South Dakota law grants Indian

children a higher standard of protection than federal law by requiring a child be

appointed counsel in abuse and neglect proceedings, in turn directly promoting

Congress’s purpose and objectives under ICWA. See 25 U.S.C. § 1902.

[¶41.] In the end, we conclude the circuit court did not err in its legal

conclusion that SDCL 26-8A-18 required the child’s attorney to represent the child’s

best interests, nor did the circuit court abuse its discretion in denying the motion to

disqualify C.R.W.’s attorney.

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2. Whether the circuit court abused its discretion in
denying Mother’s motions to transfer jurisdiction.

[¶42.] A circuit court’s “[d]enial of a motion to transfer jurisdiction under

[ICWA] is reviewed under the abuse of discretion standard.” People in interest of

A.O., 2017 S.D. 30, ¶ 8, 896 N.W.2d 652, 654 (citation omitted). “An abuse of

discretion ‘is a fundamental error of judgment, a choice outside the range of

permissible choices . . . .’” Id. (citations omitted) (alteration in original). A circuit

court’s factual findings are reviewed for clear error. Id. (citation omitted). A

finding is clearly erroneous if this Court is “left with the definite and firm

conviction” that a mistake has been made. Id. (citation omitted).

[¶43.] Pursuant to ICWA, “state courts and tribal courts share concurrent

jurisdiction over abuse and neglect cases involving Indian children who are not

domiciled on reservations or wards of a tribal court.” People in Interest of E.T., 2019

S.D. 23, ¶ 11, 932 N.W.2d 770, 773 (citations omitted). “However, this shared

jurisdiction is presumptively tribal[,]” and “state courts must transfer, upon motion,

foster-care-placement and termination-of-parental-rights proceedings to tribal court

jurisdiction unless 1) either parent objects; 2) the tribal court declines jurisdiction;

or 3) good cause to the contrary exists.” Id. (citation omitted). “If a party objects to

the transfer on the grounds that good cause to the contrary exists, all parties must

be given the ‘opportunity to provide the court with views regarding whether good

cause to deny transfer exists.’” Id. ¶ 12, 932 N.W.2d at 773 (quoting 25 C.F.R. §

23.118).

[¶44.] Mother argues that the circuit court erred when it did not conduct a

separate evidentiary hearing on her motion to transfer. She believes this deprived

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her of an adequate opportunity to be heard. Mother relies on People in Interest of

M.C., 504 N.W.2d 598, 601 (S.D. 1993) (holding that a child opposing a motion to

transfer jurisdiction to tribal court was entitled to an evidentiary hearing to

establish good cause to deny the transfer of jurisdiction to the tribe) and People in

Interest of A.O., 2017 S.D. 30, 896 N.W.2d 652 (holding that the circuit court abused

its discretion in determining good cause existed to deny a transfer motion based on

the fact that the case had been pending for more than a year without first holding

an evidentiary hearing). We have also stated that “circuit courts need the benefit of

a sufficiently developed record to assist in the good cause determination.” E.T.,

2019 S.D. 23, ¶ 16, 932 N.W.2d at 774.

[¶45.] The circuit court satisfied these requirements for a hearing on the

question of good cause and made specific findings based upon a well-developed

record. The circuit court considered evidence from the record and C.R.W.’s

statements when making its ruling on the motion to transfer. The circuit court also

afforded all the parties an opportunity to be heard on both motions to transfer

jurisdiction to tribal court. Finally, unlike the cases cited above, no party sought to

present additional evidence or to be heard further on the question of whether good

cause existed to deny transfer. Mother’s claim of procedural error by the circuit

court fails.

[¶46.] Mother next argues that the circuit court erred in determining that

good cause existed to deny the motion to transfer. Good cause to deny a motion to

transfer may exist if the proceeding is at an advanced stage. A.O., 2017 S.D. 30, ¶

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10, 896 N.W.2d at 655. The circuit court must determine on a case-by-case basis

whether the proceeding is at an advanced stage. Id. (citation omitted).

[¶47.] The guidelines to 25 C.F.R. § 23.118 state that “The final rule also

clarifies that ‘advanced stage’ refers to the proceeding, rather than the case as a

whole. Each individual proceeding will culminate in an order, so ‘advanced stage’ is

a measurement of the stage within each proceeding.” This guidance is also

consistent with 25 C.F.R. § 23.115(b) which provides that “[t]he right to request a

transfer is available at any stage in each foster-care or termination-of-parental-

rights proceeding.” Therefore, we must determine whether the circuit court

properly determined that Mother’s motion to transfer was made at an advanced

stage of the termination proceedings.

[¶48.] In its findings on the transfer motion, the circuit court stated:

The termination proceeding was at an advanced stage when the
Respondent mother moved to transfer at the start of the
termination hearing. The matter had been pending for fifteen
months at the time the Respondent mother requested that the
case be transferred. The Department had filed the Petition for
Termination of Parental Rights almost six months earlier, on
October 4, 2018. The Final Dispositional Hearing was canceled
shortly thereafter. However, the intent to renew the
termination proceedings was identified in Court on January 23,
2019; the Respondent mother was present. The Final
Dispositional Hearing was reset for March 25, 2019 and a
second notice of intent to terminate was filed on February 27,
2019. The Respondent mother, as well as the Tribe and all
parties, received notice of the matter long before it became an
advanced proceeding. Between February 27, 2019 and March
25, 2019, the Respondent mother did not file, serve, or give any
indication that she intended to seek transfer of the case to the
Oglala Sioux Tribe. The Respondent mother had been
represented by counsel throughout these proceedings and has
attended numerous hearings. The Respondent mother appeared
and was represented by counsel at the [48] Hour Hearing on
January 16, 2018 and she was advised on her right to transfer at

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that time. The Respondent mother knew of these proceedings
since their inception and she knew she had the right to move for
transfer at any time. Advanced stage of the termination of
parental rights proceedings represents good cause not to
transfer the proceeding upon the Respondent mother’s eleventh-
hour motion.
The second reason for good cause to deny the Respondent
mother’s motion to transfer is based on the minor child’s
objection to transfer. The minor child was present at the Final
Dispositional Hearing on March 25, 2019 and objected to the
transfer. In this case, the wishes of the twelve-year-old child are
compelling. The objection of the child constitutes good cause to
deny transfer.

[¶49.] The court’s findings that the termination proceeding had reached an

advanced stage are supported by the record. Mother failed to give any indication

that she intended to seek transfer of the case until she orally moved to transfer the

case at the start of the termination hearing on March 25. Yet, DSS initially filed a

petition for termination in October, requested a final disposition hearing in

January, and filed a second petition for termination in February. Mother’s claim

that she was unaware she could seek transfer to tribal court until one week before

the final dispositional hearing cannot be countenanced when she was advised of her

right to seek transfer at the 48-hour hearing one year earlier.

[¶50.] Additionally, the circuit court properly considered C.R.W.’s objections

in determining that good cause existed to deny transfer of jurisdiction to tribal

court. Mother argues, however, that the circuit court erroneously relied on the

statement of C.R.W.’s attorney that “[C.R.W.] would like to be placed in a forever

home.” She cites the Bureau of Indian Affairs regulations, which proscribe certain

factors from being considered, including “whether transfer could affect the

placement of the child[.]” 25 C.F.R. § 23.118(c)(3).

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[¶51.] Although C.R.W. expressed a placement preference, the record does

not show that this placement was an option for C.R.W., or that her preferred

placement would be impacted by the motion to transfer jurisdiction to tribal court.

Further, C.R.W.’s desire for a permanent home was made in the context of wanting

a final resolution of the proceedings that had already been pending for more than a

year. Finally, the circuit court stated in its memorandum opinion that it did not

consider whether transfer would impact the placement of C.R.W. in its good cause

determination.

[¶52.] Based on the foregoing, the circuit court did not abuse its discretion

when it denied Mother’s motions to transfer.

[¶53.] We affirm.

[¶54.] SALTER, DEVANEY, and MYREN, Justices, concur.

[¶55.] KERN, Justice, deeming herself disqualified, did not participate.

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