In Re Interest of C.H.

#29446-r-PJD
2021 S.D. 41

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.H., Minor Child,
and Concerning C.M. and C.H., Respondents.

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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA

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THE HONORABLE JON R. ERICKSON
Retired Judge

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JASON R. RAVNSBORG
Attorney General

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

DOUGLAS E. KLUDT of
Churchill, Manolis, Freeman,
Kludt, & Burns, LLP
Huron, South Dakota Attorneys for respondent and
appellant, C.M.

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CONSIDERED ON BRIEFS
MAY 13, 2021
OPINION FILED 07/14/21
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DEVANEY, Justice

[¶1.] C.M. (Mother) appeals the dispositional order terminating her parental

rights to C.H., asserting that the circuit court’s findings and conclusions do not

support termination. Because the evidence does not establish that active efforts

were made to reunify Mother and C.H., we reverse and remand.

Factual and Procedural Background

[¶2.] On July 5, 2018, the South Dakota Department of Social Services

(DSS) began working with Mother and Father to assist them in providing a safe

home for their daughter, C.H., born on September 8, 2017. DSS implemented a

safety plan in August 2018 that would allow C.H. to remain in Mother and Father’s

custody, but on October 2, 2018, DSS took C.H. into protective custody because it

determined that the dangers in the home remained. In particular, DSS had

observed that C.H., a toddler, was left unsupervised or alone for extended periods of

time and that her living conditions were unsafe.

[¶3.] On October 4, 2018, the State filed a petition alleging C.H. to be

abused or neglected and attached an affidavit from DSS in support. The affidavit

identified that Mother was 22 years old and that Father was 28 years old. It

further reported that Mother and Father abuse marijuana and cannot control their

addiction or substance abuse. DSS determined that Mother is an enrolled member

of the Lower Brule Sioux Tribe; Father is eligible for enrollment as a member of the

Crow Creek Sioux Tribe; and C.H. is eligible for enrollment in the Lower Brule

Sioux Tribe. The Indian Child Welfare Act’s (ICWA) definition of an “Indian child”

includes a child who “is eligible for membership in an Indian tribe and is the

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biological child of a member of an Indian tribe[.]” 25 U.S.C. § 1903(4)(b). Thus,

C.H. is an Indian child, and ICWA applies to these proceedings.

[¶4.] According to DSS, a family services specialist made an unannounced

visit to Mother and Father’s home at 9:00 a.m. on October 2, 2018, and found

Mother and Father sleeping while C.H. stood awake in her playpen in a diaper

overfull with urine. Mother told the specialist that she had taken sleeping pills for

her sleeping disorder and the pills caused her to sleep late rather than care for C.H.

The specialist observed hazards located near C.H.’s playpen and within C.H.’s reach

and observed small wrappers and candy on the floor that C.H. could have put in her

mouth. The specialist also reported that she saw an oscillating fan with a missing

cover and prescription medication bottles in locations that C.H. could access.

Finally, the specialist reported that she observed moldy bottles in C.H.’s diaper bag

and living and dead cockroaches on the counters and walls of the kitchen. In DSS’s

view, neither Mother nor Father have the parenting knowledge, skills, or

motivation to care for C.H., and their drug use renders them incapable of attending

to C.H.’s basic needs.

[¶5.] At a hearing on the petition on October 23, 2018, Mother and Father

admitted to the allegations. Thereafter, the State asked the circuit court to adopt a

report submitted by DSS containing information similar to that contained in DSS’s

affidavit submitted in conjunction with the State’s petition. The report also related

that both Mother and Father were currently unemployed and that Mother was

suffering from unmanaged mental health needs. Further, DSS summarized the

services provided to Mother, Father, and C.H. since C.H. was taken into protective

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custody and noted that DSS had placed C.H. in temporary custody with Father’s

sister.

[¶6.] The circuit court adopted the findings in DSS’s report and determined

that the State proved by clear and convincing evidence that C.H. was abused and

neglected by the actions or inactions of Mother and Father and that DSS had made

active efforts to provide remedial services designed to prevent the breakup of the

Indian family. The court further found that the least restrictive alternative in

C.H.’s best interests would be continued legal and physical custody with DSS. For

unknown reasons, the circuit court did not address DSS’s request that it appoint an

attorney to represent C.H.

[¶7.] A review hearing was held on December 18, 2018, and the State

requested that the court maintain legal and physical custody of C.H. with DSS

while the State worked toward reunification. The State also submitted an updated

report to the court from DSS. Because this appeal concerns only Mother’s parental

rights to C.H., what follows focuses primarily on Mother.

[¶8.] In the report, DSS advised that Mother was still unemployed and could

not control her addiction and substance abuse. DSS further reported that although

Mother continued spending time with individuals known to abuse illegal drugs, she

had begun weekly counseling sessions at Community Counseling Services. In

regard to visitation, DSS related that although Mother and Father had been offered

multiple visits with C.H. while she was in kinship care in Redfield, South Dakota,

they only attended two visits. DSS noted that the parents participated in video

chats with C.H. a couple of times, Mother attended an in-person visitation at DSS’s

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office, and both parents exercised a supervised visit with C.H. in their home. At the

conclusion of the report, DSS again requested that the court appoint an attorney to

represent C.H. Once again, the court did not address this request.

[¶9.] After the December 2018 review hearing, the circuit court issued an

order continuing legal and physical custody with DSS, and DSS continued to work

with Mother and Father toward reunification. Between February and December

2019, the circuit court held multiple review hearings, and DSS submitted updated

reports to the court regarding Mother and Father. The record reveals that during

this period, Mother and Father often did not avail themselves of the programs or

services offered by DSS. For example, Mother did not complete parenting classes or

a chemical dependency evaluation. Also, although she began counseling, she

eventually quit and gave no reason for why she stopped. In DSS’s view, Mother and

Father did not know how to parent C.H., and Mother did not understand how her

behaviors put C.H. at risk. However, DSS noted that it was apparent C.H. was very

attached to Mother during visitations.

[¶10.] In April 2019, DSS reported that Mother and Father admitted to using

marijuana in March and that the two continued to reside in the same apartment

with “life threatening living arrangements.” However, in June 2019, DSS reported

that Mother claimed she was over a month sober from marijuana and that she and

Father separated and were no longer living together. In September 2019, DSS

reported that Mother claimed to still be sober from marijuana and still separated

from Father. According to DSS, Mother was living with her boyfriend, and the two

of them were attending parenting classes together.

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[¶11.] At the beginning of the December 2019 review hearing, the State

informed the court that it had intended to seek termination of Mother’s and

Father’s parental rights. However, the State then advised that in light of an email

from counsel for Mother proposing that Mother work with a behavioral

interventionist, the State would agree to set a termination hearing for March 2020.

The State noted that if Mother was successful in that period, the State “wouldn’t

seek” termination. The court agreed to set a hearing for March 2020. It then

addressed Mother, noting that she had “more work . . . to do” and that it was “really

up to [Mother] now.” The court also informed Mother that DSS has offered her “the

services that [it has] available[,]” and now Mother “need[s] to take advantage of”

working with Community Counseling Services.

[¶12.] The circuit court’s order following the review hearing reflects that the

court adopted DSS’s December 3, 2019 report; however, the record does not contain

this report. Also, although the court’s order provides that “reasonable and active

efforts will be made to reunite the family[,]” the court further ordered,

inconsistently, that “no further efforts be made by the Department of Social

Services to reunite [C.H.] with” Mother or Father. 1 The court set a final

dispositional hearing for March 17, 2020.

[¶13.] It is undisputed that DSS made no further efforts to reunify Mother

and C.H. after the December 2019 hearing and that no further judicial proceedings

occurred in the case until September 18, 2020. The March 2020 termination

1. The transcript from the December 2019 hearing does not contain a request
from the State for an order directing DSS to cease all efforts toward
reunification.

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hearing was moved to July due to the COVID-19 pandemic, and for reasons not

specified in the record, the July hearing was also continued. The court heard

testimony at the dispositional hearing from an ICWA expert, a DSS family services

specialist, Mother, C.H.’s maternal grandmother, and Mother’s counselors.

[¶14.] The ICWA expert, Ray Cournoyer, opined that based on his review of

the information provided to him by the State, including DSS’s reports, it would be

detrimental for C.H. to remain in the custody of her parents. The DSS family

services specialist, Dana Duvall, similarly believed that Mother and Father should

not have custody of C.H. According to Duvall, the conditions that led to C.H.’s

removal from the home continued to exist despite DSS’s reasonable and active

efforts to achieve a permanent plan of reunification. However, Duvall

acknowledged that she had not observed Mother’s home in the past nine months

and had no personal knowledge about Mother’s current living conditions.

[¶15.] Valere Walton, a board certified behavioral analyst with Community

Counseling Services, testified that she began working with Mother in October 2019

on a behavioral intervention plan to address Mother’s issues, such as: completing

tasks necessary for independent living, poor self-care and self-advocacy, and

irregular sleeping patterns. Walton met with Mother four days a week at the same

time each day to ensure Mother was working toward her goals. Walton further

testified that Mother’s mother, J.M., assisted in keeping her accountable. According

to Walton, at first Mother did a poor job in making progress; she had no consistency

or reliability. However, Walton testified that as they continued working together

during the 90 days (December 2019 to March 2020), Mother began to improve and

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complete required tasks. Walton believed that Mother put in a lot of effort during

the 90-day plan and showed marked improvement. She further testified that

Mother “was able to take care of changing a lot of aspects of her life, including

relationships.” Mother had completed parenting classes in March 2020 prior to the

initially set dispositional hearing. Also, by the time of the rescheduled September

2020 dispositional hearing, Mother had completed her drug treatment counseling.

[¶16.] Walton further testified that although the intervention plan ended

after 90 days, she continued working with Mother, as part of “generalization, basic

maintenance,” to make sure Mother “was able to care for herself[, c]are for her

home[, a]nd continue to follow through with the things that she said she would do.”

Walton communicated with Mother multiple times a week and testified that she did

not observe any indication that Mother was using drugs or alcohol. Walton also

observed where Mother currently lived, albeit virtually because of the pandemic.

She testified that Mother lived with her mother, that the home is “picked up[,]”

“organized[,]” “100 percent better than” before, child-proofed, and would be suitable

for a three-year old. Walton had observed Mother’s video interactions with C.H.,

and in her view, C.H. “loves her mom” and there is a bond there. She also testified

that she helped Mother fill out the paperwork for a divorce from Father. Walton

described their marriage as a “very, very poor relationship.”

[¶17.] When asked whether Mother “is capable of taking care of her

daughter[,]” Walton replied, “I would feel way more comfortable with her having her

daughter now. I think she could do it.” The court asked Walton “how much time it

would take before [Mother] is ready to live on her own and take care of [C.H.’s]

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needs[,]” noting that Mother has already had two years. Walton replied that with

continued work, she would give Mother another six months, but that it could take

less time as Mother “is very motivated to get [C.H.] back[.]” When asked whether

Walton had tried to communicate Mother’s progress to DSS, Walton replied that she

had, but that DSS made “no attempt to further contact [Mother.]” According to

Walton, “[t]here was a lot of resistance and a lot of desire to continue to terminate

[Mother’s] parental rights.”

[¶18.] Mother’s mother, J.M., who was 60 years old at the time, testified

about the condition of the apartment she and Mother lived in. She noted that they

have lived together for a year and a half and testified that their home would be

suitable for her, Mother, and C.H. She provided a letter from their landlord

confirming that the apartment did not have bugs. According to J.M., she believes

Mother is able to care for C.H.

[¶19.] Mother acknowledged that she could have worked harder when DSS

was involved. She also recognized that she only recently completed parenting

classes and drug treatment. However, she testified that she learned a lot from the

classes and treatment. She also claimed that she is in a better position because of

her work with Walton than when DSS was working with her. She requested that

she be given one-on-one time with C.H. to prove to DSS that she can appropriately

care for her.

[¶20.] At the conclusion of the hearing, the State requested termination of

the parental rights of both Mother and Father. In regard to Mother, the State

asserted that “[e]nough is enough[,]”noting that Mother has had over two years to

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prove she can parent C.H. and despite that she has not completed what was asked

of her. The State further claimed that even though Mother had made progress in

working with Walton, Mother would still need more time before she could properly

parent C.H. Thus, according to the State, it would be unfair for C.H. to wait any

longer.

[¶21.] In response, counsel for Mother asserted that the evidence “should give

anyone pause to even consider[] terminating this young lady’s rights.” Counsel

conceded that Mother completed some requirements shortly before the termination

hearing; however, counsel referred to the fact that Mother was young and

uneducated. Counsel also claimed that the location of C.H.’s foster home 2 in

another town made visitation difficult given that Mother does not have

transportation. Counsel argued that Mother had taken significant steps to

understand what was necessary to parent C.H. and pointed out that there was

nothing in the record showing that Mother’s current apartment is unsuitable for

C.H. According to counsel, DSS “basically gave up” when it should have gotten

“back in the game here and acknowledged that [Mother] has made some real

progress.” Counsel requested that the court deny termination.

[¶22.] In its oral ruling, the circuit court noted that Mother had made some

improvements. However, the court concluded that Mother did not address her

mental health issues, finances, housing, or employment. The court acknowledged

that Walton believed Mother should be given more time, but in the court’s view,

2. C.H. remained in the kinship placement with her paternal aunt, who had
completed the necessary classes to become a licensed foster parent.

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“[t]he truth of the matter is [Mother] has never provided for [C.H.’s] basic needs”

and “has not shown that she can provide for [her] basic needs.” The court therefore

ordered that Mother’s parental rights be terminated.

[¶23.] In its written findings of fact, conclusions of law, and order, the court

determined beyond a reasonable doubt that the State “made reasonable and active

efforts to provide remedial services designed to prevent the breakup of the family

and those rehabilitative programs have been unsuccessful.” The court also found

that Mother “failed to follow the recommendations of [DSS,]” is “unfit,” and has

never provided for C.H.’s basic needs. According to the court, the conditions that

led to C.H.’s removal continue to exist and “[t]here is little likelihood that these

conditions will be remedied to allow [C.H.] to be returned to the custody of

[Mother.]” The court then indicated that it “carefully balanced the rights of the

child, the parents, the State and the public” before determining beyond a reasonable

doubt that termination of Mother’s parental rights was the least restrictive

alternative commensurate with C.H.’s best interests.

[¶24.] Mother appeals, asserting that the circuit court’s findings of fact and

conclusions of law do not support termination of her parental rights.

Analysis and Decision

[¶25.] Mother contends the circuit court clearly erred in finding that the

conditions that led to C.H.’s removal continued to exist at the time of the

dispositional hearing. She further claims the court erred in concluding that

“[a]ppropriate services to the family have failed” and that Mother “failed to follow

the recommendation of the Department of Social Services.” According to Mother,

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although she did not complete the requirements on DSS’s timetable, she

successfully addressed her marijuana issues, has “greatly improved her housing[,]”

has removed herself from the negative influences identified by DSS, and has

received parenting education and behavior modification training. She therefore

asserts the evidence does not support termination and that termination was not the

least restrictive alternative commensurate with C.H.’s best interests.

[¶26.] “[W]e review the circuit court’s findings of fact for clear error.” In re

S.H.E., 2012 S.D. 88, ¶ 18, 824 N.W.2d 420, 425. “The circuit court’s factual

findings are clearly erroneous if ‘we are left with a definite and firm conviction that

a mistake has been made.’” Id. (quoting In re L.S., 2012 S.D. 22, ¶ 12, 812 N.W.2d

505, 508). Under 25 U.S.C. § 1912(d), “[a]ny party seeking . . . termination of

parental rights to[ ] an Indian child under State law shall satisfy the court that

active efforts have been made to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and that these

efforts have proved unsuccessful.” Proof of active efforts must exist beyond a

reasonable doubt, and whether active efforts have been provided is a mixed

question of law and fact reviewed de novo. S.H.E., 2012 S.D. 88, ¶¶ 18–19, 824

N.W.2d at 425–26.

[¶27.] Although the circuit court found beyond a reasonable doubt that active

efforts were provided to prevent the breakup of the Indian family and that the

efforts were unsuccessful, it is undisputed that DSS ceased providing any efforts

toward reunification after the December 2019 hearing. This means that from

December 2019 to September 2020 no efforts were made by DSS to provide Mother

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remedial services or rehabilitative programs and no efforts were made to reunite

C.H. with Mother. The circuit court’s finding of fact to the contrary—that DSS “has

been providing active efforts to this family since October 2, 2018; including in-home

services to prevent placement, and ongoing services to allow safe return of the child

to no avail”—is not supported by the record. To the extent this finding suggests

that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is

clearly erroneous.

[¶28.] More importantly, however, this Court has held that the active efforts

requirement under ICWA imposes a heightened responsibility on DSS. In re P.S.E.,

2012 S.D. 49, ¶ 22, 816 N.W.2d 110, 117–18. Therefore, DSS cannot simply give a

parent a case plan and wait for the parent to complete the plan. Id. ¶ 19, 816

N.W.2d at 116. As one court explained, “[t]he client should not be required to

develop his or her own resources toward bringing the plan to fruition.” In re D.J.S.,

456 P.3d 820, 838 (Wash. Ct. App. 2020). Rather, active efforts require that DSS

take the parent through the steps of the case plan to prepare the parent for

reunification. See 25 C.F.R. § 23.2 (explaining that “active efforts” “involve[s]

assisting the parent or parents or Indian custodian through the steps of a case plan

and with accessing or developing the resources necessary to satisfy the case plan”).

[¶29.] Here, the record reveals that the circuit court ordered in December

2019 that DSS cease all efforts toward reunification. Thereafter, Mother’s existing

counselor and her lawyer facilitated Mother’s efforts to work with a behavioral

analyst in an effort to develop the skills necessary to parent C.H. DSS did not

direct Mother toward any further services or programs, let alone make active efforts

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to aid her in developing the resources necessary to satisfy the case plan between

December 2019 and the dispositional hearing in September 2020. Additionally,

DSS did not facilitate any visits between Mother and C.H. after December 2019.

[¶30.] The State contends that the circuit court “was justified in relieving

DSS of its efforts burden” in December 2019 because the State had proven that up

to that point active efforts were made as required under ICWA. However, the State

has not identified any authority allowing the circuit court to excuse DSS from

continuing to make active efforts when the State agreed to continue the

dispositional hearing so that Mother could continue working with her counselors to

remedy the problems that led to C.H.’s removal.

[¶31.] In In re J.S.B., Jr., the circuit court had relieved DSS of providing

further remedial services or rehabilitative programs to reunite an Indian child with

his parents in December 2002 despite the fact that the final dispositional hearings

were not held until April 15 and May 12, 2003. 2005 S.D. 3, ¶¶ 9–10, 691 N.W.2d

611, 615. In its final order, the circuit court justified its decision that DSS did not

need to provide active efforts because, in the court’s view, the Adoption and Safe

Families Act (ASFA) applied. Id. ¶ 9. Under ASFA, the State can be relieved “from

making merely perfunctory remedial efforts in cases where a court has found that

the parent has subjected the child to aggravated circumstances of abuse or neglect.”

Id. ¶ 17, 691 N.W.2d at 617.

[¶32.] On appeal, this Court held that the circuit court erred in relying on

ASFA to eliminate the State’s obligation to provide active efforts after December

2002. Id. ¶ 29, 691 N.W.2d at 621. The Court noted that ICWA “seeks to prevent

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capricious severance” of the “familial, tribal, and cultural ties” and established the

minimum standards governing the removal of Indian children from their families

and placement in foster or adoptive homes. Id. ¶¶ 14, 17, 691 N.W.2d at 616–17. In

contrast, “ASFA identifies permanency as a major consideration in promoting the

best interests of children.” Id. ¶ 17, 691 N.W.2d at 617. The Court further

distinguished ICWA and ASFA. It noted that ASFA requires “reasonable efforts” to

be made toward reunification with certain statutory exceptions, while ICWA

requires, without exception, “that state agencies make ‘active’ efforts to provide

services aimed at the prevention of a family breakup.” Id.

[¶33.] Ultimately, the Court did not reverse the final dispositional order in

J.S.B. because the record revealed that DSS continued to provide active efforts

toward reunification despite the circuit court’s December 2002 order. Id. ¶ 29, 691

N.W.2d at 621. Here, in contrast, it is undisputed that DSS made no efforts toward

reunification after December 2019. Therefore, while it does not appear from the

record that the circuit court relied on ASFA in relieving DSS of its obligation to

make active efforts under 25 U.S.C. § 1912(d), the circuit court nevertheless erred

in terminating Mother’s parental rights on the basis that DSS had been making

active efforts since the inception of the case and that such efforts proved

unsuccessful.

[¶34.] Additionally, and as a result of the circuit court’s order directing that

DSS make no further efforts despite the continuation of the dispositional hearing,

neither the State nor DSS had any knowledge about what had transpired with

Mother in the nine months leading up to the hearing. The only evidence in the

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record regarding Mother’s current circumstances and living conditions at the time

of the dispositional hearing came from Mother and her witnesses. Importantly,

much of this evidence was contrary to the factual underpinnings upon which DSS,

and ultimately the circuit court, relied on to support termination. In fact, Duvall

acknowledged that she had not visited Mother’s apartment since January 2020, and

she had not communicated with Walton about the progress Mother had made since

the December 2019 hearing.

[¶35.] This is not the typical case wherein the parent asks “for repeated

chances to forestall termination of parental rights after minimal or no improvement

in parenting” despite DSS’s efforts to rehabilitate and reunite the family. See In re

L.R., 2014 S.D. 95, ¶ 9, 857 N.W.2d 886, 889. Rather, this is a unique case

involving the cessation of active efforts by DSS some nine months prior to the

dispositional hearing despite Mother’s ongoing work with counselors on her own

accord, and a clearly erroneous finding by the circuit court that DSS had been

providing active efforts toward reunification since October 2, 2018. Therefore, the

circuit court erred in terminating Mother’s parental rights in the absence of

contemporaneous evidence to support its decision.

[¶36.] Because this error requires a remand, we take this opportunity to

address additional errors that occurred below to prevent their reoccurrence. First,

the circuit court erred when it failed to appoint an attorney to represent C.H.

Under SDCL 26-8A-18, “the court shall appoint an attorney for any child alleged to

be abused or neglected in any judicial proceeding.” (Emphasis added.) Here,

although DSS requested that an attorney be appointed to represent C.H. in its

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report prior to the adjudicatory hearing and in every report to the court thereafter,

neither the court nor the parties mentioned or addressed this request until the final

dispositional hearing when the court inquired about who was representing C.H.

The State responded that C.H. was less than a year old when the case started, and

an attorney had never been appointed for her. No further discussion was held, and

the court moved forward with the hearing. The statutory provision requiring that

children in abuse and neglect proceedings be appointed counsel is not discretionary

or dependent on the age of the minor children. Therefore, the circuit court is

directed to appoint an attorney to represent C.H. as soon as the case is remitted.

[¶37.] Second, although not raised as an issue on appeal, there are glaring

defects involving ICWA mandates in the underlying proceeding that we cannot

ignore. Under 25 U.S.C. § 1912(f), “[n]o termination of parental rights may be

ordered in such proceeding in the absence of a determination, supported by evidence

beyond a reasonable doubt, including testimony of qualified expert witnesses, that

the continued custody of the child by the parent or Indian custodian is likely to

result in serious emotional or physical damage to the child.” (Emphasis added.)

Our prior decisions have recognized that ICWA does not require that an expert’s

testimony track the statutory language verbatim. See In re A.B., 2016 S.D. 44, ¶ 26,

880 N.W.2d 95, 104. Here, however, the ICWA expert called by the State opined

only that continued custody could be “detrimental” to C.H., and like DSS, he was

not basing his opinion on Mother’s current circumstances. In fact, when questioned

by Mother’s counsel, he admitted that his opinion would be affected if he had known

that Mother had completed drug and alcohol treatment and parenting classes, was

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separated from Father, and was working with counselors to modify her behaviors.

Moreover, although the court’s order contained the exact language from § 1912(f),

the court did not identify any evidence in the record to support its ruling, and the

court’s written findings only stated that “[t]here is evidence showing that potential

harm could result to the child were she to be returned to” Mother. (Emphasis

added.)

[¶38.] Finally, the circuit court’s determination that termination of Mother’s

parental rights was the least restrictive alternative commensurate with C.H.’s best

interests with due regard to the rights of Mother was perfunctory at best. Notably,

in DSS’s September 2019 report to the court, DSS had indicated that C.H.’s

paternal aunt, with whom C.H. had been residing since she was removed from her

parents’ custody, was willing to enter into a guardianship because she wanted to see

C.H. reunified with her parents. In the report DSS submitted to the court for the

dispositional hearing, there was no indication that the paternal aunt was no longer

willing to consider such a guardianship. Yet, the court did not enter any findings

related to whether an alternative besides termination of Mother’s parental rights

existed. 3

[¶39.] “Under SDCL 26-8A-27, the court must find, by clear and convincing

evidence, that termination is the least restrictive alternative ‘commensurate with

the best interests of the child with due regard for the rights of the parents, the

public and the state[.]’” A.B., 2016 S.D. 44, ¶ 28, 880 N.W.2d at 104 (quoting the

3. When the DSS witness was questioned at the dispositional hearing about
whether the paternal aunt wanted to adopt C.H., the State objected, arguing
this topic was not relevant. The court sustained the objection.

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statutory language). The best interest of the child is viewed from the child’s

perspective, not the parent’s. S.H.E., 2012 S.D. 88, ¶ 29, 824 N.W.2d at 428. In

this vein, we have often observed that “[children] should not be required to wait for

parents to acquire parenting skills that may never develop.” Id. ¶ 33, 824 N.W.2d

at 429 (quoting In re P.K., 2006 S.D. 17, ¶ 24, 711 N.W.2d 248, 256). We have

further noted that “‘guardianships, by their very nature, are temporary’ and, as a

result, ‘subject the children to further years of insecurity and lack of stability[.]’” Id.

(quoting P.K., 2006 S.D. 17, ¶ 26, 711 N.W.2d at 257). However, ICWA also

“acknowledges that Indian children should retain familial, tribal, and cultural ties”

and affords “different protections for parents whose rights are subject to

termination[.]” J.S.B., 2005 S.D. 3, ¶¶ 14, 21, 691 N.W.2d at 616, 619. In the event

the circuit court, on remand, is once again confronted with the question whether

termination of Mother’s parental rights is the least restrictive alternative

commensurate with C.H.’s best interests, the court must apply the correct legal

standards. The circuit court must also support its decision with adequate findings

of fact.

Conclusion

[¶40.] The circuit court’s order terminating Mother’s parental rights to C.H.

is reversed. On remand, the circuit court is directed to appoint an attorney to

represent C.H. and require that the State and DSS follow the dictates of both ICWA

and applicable South Dakota law in reassessing Mother’s and C.H.’s current

circumstances.

[¶41.] Reversed and remanded.

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[¶42.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

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