Interest of E.T.

#28548-r-MES
2019 S.D. 23

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 E.T., Child, and Concerning, A.T. and J.H.,
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 MATTHEW M. BROWN
Judge

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CASSIDY M. STALLEY
Lynn, Jackson, Shultz & Lebrun, P.C.
Rapid City, South Dakota Attorneys for child E.T. and
appellant.

DANA L. HANNA
Rapid City, South Dakota Attorney for intervenor and
appellee.

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CONSIDERED ON BRIEFS
ON JANUARY 7, 2019

OPINION FILED 04/17/19
CORRECTED ON 08/28/19
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SALTER, Justice

[¶1.] This is an appeal from a final dispositional order transferring

jurisdiction of an abuse and neglect proceeding to tribal court. Counsel for the child

maintains the circuit court abused its discretion when it granted the motion to

transfer because the court improperly refused expert-witness testimony at the

transfer hearing, the proceeding was at an advanced stage, and the court

erroneously determined the father’s objection to the transfer was untimely. We

reverse and remand for the purpose of conducting an evidentiary hearing.

Facts and Procedural History

[¶2.] On September 1, 2016, one day after her birth, law enforcement

removed E.T. (Child) from A.T.’s (Mother) care after both Child and Mother tested

positive for the presence of methamphetamine in their systems. Having reason to

know Child and Mother were affiliated with the Oglala Sioux Tribe (the Tribe), the

Department of Social Services (DSS) notified the Tribe of Child’s removal pursuant

to the provisions of the Indian Child Welfare Act (ICWA). The Tribe intervened at

the initial “48-hour” emergency-custody hearing and received timely notice of all

additional filings. In a September 28, 2016 petition, the State alleged that Child

was abused or neglected.

[¶3.] DSS initially placed Child into foster care. However, after Mother

completed an outpatient-treatment program, DSS placed Child with Mother on an

in-home safety plan on January 5, 2017. But the reunification was short-lived.

Mother was arrested on January 13, 2017, for missing a urinalysis required in

connection with a pending criminal case, and Child was placed back into foster care.

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[¶4.] Despite the setback, Mother continued to work with DSS. She

obtained part-time employment, completed a parenting class, submitted to twice-

weekly urinalysis testing and daily PBTs, and consistently participated in weekly

visitation with Child. Mother also earned enough money to pay her child support

arrears regarding a different child, allowing her to be freed of her work release

requirement and to have her ankle monitor removed. 1 Mother was doing so well, in

fact, that at an August 9, 2017 review hearing, the circuit court instructed DSS to

begin working on another in-home safety plan so Child could be returned to

Mother’s care.

[¶5.] Before a plan could be finalized, however, Mother was arrested on

August 26, 2017. She was driving while intoxicated, struck another vehicle, and

then fled the scene. The circuit court granted Mother bond on these charges, but

she was taken into custody again on September 14, 2017, for a 24/7 sobriety

program violation. At a review hearing held October 4, 2017, the State and Child’s

counsel requested the matter be set for a final dispositional hearing. The State

served notice of the final dispositional hearing on the Tribe on October 6, 2017.

[¶6.] At the outset of what was to have been the final dispositional hearing

on November 27, 2017, before any argument or evidence was presented, the Tribe

orally moved to transfer the abuse and neglect case to tribal court. Child’s counsel

1. Though the record from the unrelated child support enforcement action is not
included in the record on appeal, the current record does contain references
to the child support case and certain restrictions placed upon Mother. We
interpret these to be conditions imposed by the court presiding over the
enforcement action to obtain compliance with the child support order.
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resisted the motion, arguing the transfer request came at an advanced stage of the

case and was contrary to Child’s best interests.

[¶7.] The circuit court suspended the final dispositional hearing and held a

transfer hearing on January 4, 2018. To support the objection to the Tribe’s

transfer request, Child’s counsel attempted to present expert medical testimony

from Child’s pediatrician, Dr. David Whitney. The Tribe claimed it had insufficient

notice of the substance of Dr. Whitney’s expert opinions and requested an offer of

proof. Child’s counsel obliged and offered the following:

Dr. Whitney is going to testify about the bond that develops
between an infant and their caregiver and what happens when
that bond is broken to a child physically, mentally, and
emotionally.

And that testimony is going to be used to establish good
cause because at this point in time, the tribe waited until the
day of the final dispositional hearing, which was well [over] a
year after [Child] came into care. . . .

The BIA guidelines specifically also state that the [c]ourt
can consider exceptional circumstances. And this is an
exceptional circumstance because we have a baby that was
placed at birth with the people that have been her primary
caregiver. They are the only family she knows. This is not a
case where we have a four year old that’s taken temporarily
from their parents or grandparents and then is going to be
returned home or we can explain to them what’s happening.

This is an infant who only knows [Foster Parents] and
knows them as Mom and Dad. We can’t explain to [Child]
what’s going to happen to her and she will face long-term and
short-term physical and emotional effects and that’s what Dr.
Whitney is going to testify to.

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[¶8.] In response, the Tribe objected to the entirety of Dr. Whitney’s

proposed testimony, 2 arguing bonding between Child and the foster parents was not

an appropriate factor to consider when determining a motion to transfer. The

circuit court sustained the Tribe’s objection and excluded Dr. Whitney’s expert

opinions. The court noted that bonding “in and of itself” did not constitute good

cause to deny transfer, but it also recognized that the best interests of the child is a

relevant factor to consider. The court, nevertheless, determined Dr. Whitney’s

testimony would be irrelevant, reasoning the testimony could be useful only to

establish an accepted and unremarkable general proposition that a delay in seeking

transfer can impact a child’s best interests. The circuit court received no other

testimony or exhibits. It took the motion to transfer under advisement to determine

if good cause existed to deny the motion, given the Child’s argument that the

proceeding was at an advanced stage.

[¶9.] After receiving post-hearing briefing from Child’s counsel, the circuit

court entered findings of fact and conclusions of law on February 21, 2018. The

court ultimately determined the proceeding was not at an advanced stage because

no argument or evidence was presented at the final dispositional hearing before the

Tribe made its motion to transfer.

[¶10.] On February 22, 2018, one day after the circuit court’s findings and

conclusions were entered, but before a final order was entered, J.H. (Father)

2. Though Dr. Whitney was present at the hearing and had provided
preliminary testimony about his qualifications, he did not provide testimony
for the offer of proof, which was more in the nature of a proffer by Child’s
counsel. The parties have not alleged the form of the offer of proof is
significant in this appeal.
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objected to the transfer through his counsel. The circuit court entered a final order

on March 1, 2018, granting the Tribe’s motion to transfer. On March 20, 2018, the

court entered an order denying Father’s objection to the transfer because it was not

in proper form 3 and because it was untimely. Child’s counsel filed an application

for special relief, requesting this Court to enter a stay in the matter pending appeal.

We granted the application and stayed the circuit court’s transfer order.

Analysis

[¶11.] Under the 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. Miss. Band of Choctaw Indians

v. Holyfield, 490 U.S. 30, 36, 109 S. Ct. 1597, 1602, 104 L. Ed. 2d 29 (1989) (citing

25 U.S.C. § 1911(b)). However, this shared jurisdiction is presumptively tribal. Id.

As such, 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.

[¶12.] 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.” 25 C.F.R. § 23.118.

The admissibility of evidence regarding good cause is generally governed by the

3. Father, who was living in Arkansas, indicated to his counsel that he objected
to the transfer. Counsel emailed the circuit court and the other parties,
notifying them of Father’s objection and informing them that Father would
state his objection on the record when requested.
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rules of evidence. We note, however, that the rules of evidence may be relaxed

when considering the disposition of juvenile matters, which includes the transfer of

jurisdiction to a tribal court. See SDCL 26-7A-56. “Questions of the relevance of

proffered testimony are committed to the discretion of the trial court and this court

will not reverse its ruling absent an abuse of discretion.” State v. Olson,

408 N.W.2d 748, 752 (S.D. 1987). “An abuse of discretion ‘is a fundamental error of

judgment, a choice outside the range of permissible choices[.]’” In re A.O., 2017 S.D.

30, ¶ 8, 896 N.W.2d 652, 654 (quoting MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9,

871 N.W.2d 617, 622).

[¶13.] The statutory provisions of the ICWA do not define “good cause to the

contrary.” Historically, the Bureau of Indian Affairs (BIA) has issued guidelines for

state courts to assist in determining the existence of good cause to deny a motion to

transfer. Though they were not binding upon this Court, we have recognized that

these guidelines, issued in 1979 and in 2015, were “given important but not

controlling significance.” In re A.L., 442 N.W.2d 233, 236 (S.D. 1989) (quoting

Batterton v. Francis, 432 U.S. 416, 424–25, 97 S. Ct. 2399, 2405, 53 L. Ed. 2d 448,

456 (1977)).

[¶14.] In 2016, however, the BIA undertook formal rule-making and

promulgated binding regulations which address, among other things, motions to

transfer ICWA cases to tribal jurisdiction. See 25 C.F.R. § 23.115, et seq. The BIA

subsequently issued its corresponding 2016 guidelines that expressly “replace the

1979 and 2015 versions of the Department’s guidelines.” Guidelines for

Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96,476 (Dec. 30, 2016).

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[¶15.] Though they do not provide a specific definition of “good cause,” the

2016 regulations and guidelines effect noteworthy changes to the BIA’s previous

regulatory efforts in ICWA transfer determinations. First, the 2016 regulations

have the effect of law and are binding upon state courts. 4 See In re M.H., 2005 S.D.

4, ¶ 10 n. 3, 691 N.W.2d 622, 625 n. 3 (observing BIA guidelines are not binding

because “the BIA did not promulgate their guidelines for state courts in Indian child

custody proceedings as regulations”). Second, rather than listing relevant

considerations for the determination of good cause to deny a motion to transfer, as

the earlier guidelines had, the 2016 regulations proscribe certain enumerated

considerations including, among others, “whether transfer could affect placement of

the child.” See 25 C.F.R. § 23.118 (listing proscribed considerations for

determination of good cause to deny a motion to transfer jurisdiction).

[¶16.] With or without the 2016 regulations, though, circuit courts need the

benefit of a sufficiently developed record to assist in the good cause determination.

See A.O., 2017 S.D. 30, ¶ 13, 896 N.W.2d at 656; In re M.C., 504 N.W.2d 598, 601

(S.D. 1993). In both A.O. and M.C., we held that the circuit court should have

conducted an evidentiary hearing before determining the motion to transfer

jurisdiction. In the absence of a developed record, we are unable to conduct

meaningful appellate review concerning the merits of the parties’ claims.

4. The parties have not challenged the validity of the 2016 BIA regulations.
Cf. Brackeen v. Zinke, 338 F.Supp.3d 514, 542-544 (N.D. Tex. 2018) (declaring
disputed portions of 2016 BIA regulations invalid, reasoning that the BIA
lacks authority under the ICWA to issue regulations binding on the states).

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[¶17.] As it relates to this case, we conclude that the circuit court abused its

discretion when it granted the Tribe’s motion to transfer without hearing the

testimony of the child’s physician who was present in the courtroom. Relying upon

the impromptu offer of proof by Child’s counsel, the court determined that Dr.

Whitney’s testimony was categorically irrelevant. We disagree.

[¶18.] Proffered evidence is relevant under our rules if:

(a) It has any tendency to make a fact more or less probable than it
would be without the evidence; and

(b) The fact is of consequence in determining the action.

SDCL 19-19-401 (Rule 401).

[¶19.] Here, Dr. Whitney was Child’s pediatrician and had been for most of

her young life. His testimony concerning the impact of the transfer upon Child may

well have yielded relevant and admissible evidence. Separate and apart from

placement or bonding concerns, it is possible that at least some of Dr. Whitney’s

opinions could have been relevant to broader best-interests considerations such as

stability, health or the presence of extraordinary circumstances. See In re J.L.,

2002 S.D. 144, ¶¶ 18-19, 23, 654 N.W.2d 786, 791 (providing the best interests of

the child may constitute good cause for denying a motion to transfer).

[¶20.] We understand that the proffer relating to Dr. Whitney’s proposed

testimony by Child’s counsel seemed to implicate opinions involving prohibited

considerations such as bonding and placement. However, we do not think the

proffered testimony should be viewed as exclusively involving prohibited

considerations. Rather, we believe the context of the proffer and the court’s ability

to relax the rules of evidence suggest the need for flexibility in its assessment.

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[¶21.] In this regard, there was apparently no procedural requirement noted

by any party or the court that obligated Child’s counsel to identify Dr. Whitney as

an expert witness and disclose the substance of his opinions prior to the transfer

motion hearing. For this reason, the offer of proof was requested by the Tribe’s

counsel to provide an idea of the proposed testimony before there was even an

objection to the testimony, much less a ruling from the court. This process differs

from the more common offer of proof which is sought by a party adversely impacted

by a court’s evidentiary ruling as a means of carefully establishing a factual record

for appellate review. See State v. Sprik, 520 N.W.2d 595, 600 (S.D. 1994) (failure to

make an offer of proof deprives an appellate court of a record for appellate review).

Under the circumstances here, the court’s view of the offer of proof was too narrow,

particularly given the fact that the proffer also described Dr. Whitney’s anticipated

testimony in broader best-interests terms concerning stability, health and the

harmful effects of delay—e.g., “We can’t explain to [Child] what’s going to happen to

her and she will face long-term and short-term physical and emotional effects and

that’s what Dr. Whitney is going to testify to.”

[¶22.] We, therefore, reverse the circuit court’s order to transfer jurisdiction

to tribal court and remand for further proceedings to determine the Tribe’s motion

for transfer anew. Because the evidentiary issue is dispositive of this intermediate

appeal, it is unnecessary to address the other issues presented by Child.

[¶23.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and

SEVERSON, Retired Justice, concur.

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