JEFFREY L. VIKEN, Chief Judge.
The Honorable Jeff Davis is a judge of the Seventh Judicial Circuit, part of the South Dakota Unified Judicial System. Judge Davis is the presiding judge of the Seventh Circuit. He administers the court system for the Circuit and sets policies and procedures in his courtroom. His Seventh Circuit judicial colleagues follow Judge Davis' policies and procedures for the removal of Indian children from their parents' homes.
Judge Davis typically conducts hearings within 48 hours of an Indian child's removal from the parents' care. The hearings usually last less than five minutes.
Mark Vargo is the elected States Attorney for Pennington County, South Dakota. His staff attorneys appear before Judge Davis and other Seventh Circuit judges in cases involving the removal of Indian children from their parents. Mr. Vargo has an obligation to follow federal and state law, to advocate the State's position and to seek justice at all times.
Lynne A. Valenti is the Secretary of the South Dakota Department of Social Services ("DSS"). LuAnn Van Hunnik is the person in charge of DSS Child Protection Services ("CPS") for Pennington County, South Dakota. CPS employees under policy guidance from and the supervision of Ms. Valenti and Ms. Van Hunnik prepare a petition for temporary custody and sign an Indian Child Welfare Act
The court granted parens patriae status to the Oglala Sioux Tribe and the Rosebud Sioux Tribe. The court certified the individual plaintiffs, Madonna Pappan and Lisa Young, as class representatives for all similarly situated Indian parents.
Plaintiffs moved for partial summary judgment on the grounds defendants violate the Indian Child Welfare Act and the Due Process Clause in the removal of Indian children from their parents or Indian custodians. Plaintiffs seek only prospective declaratory and injunctive relief.
The court finds that Judge Davis, States Attorney Vargo, Secretary Valenti and Ms. Van Hunnick developed and implemented policies and procedures for the removal of Indian children from their parents' custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
For the reasons stated below, plaintiffs' motions for partial summary judgment are granted.
Congressional findings to support the passage of IOWA included the following declarations:
25 U.S.C. § 1901(3), (4) & (5). The Indian Child Welfare Act "establishes minimum Federal standards and procedural safeguards to protect Indian families when faced with child custody proceedings against them in State agencies or courts."
"The Indian Child Welfare Act ... was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Mississippi Band of Choctaw Indians, 490 U.S. at 32, 109 S.Ct. 1597. Indian tribes have an interest in the custody of Indian children "which is distinct from but on parity with the interest of the parents" and which "finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognize." Id. at 52, 109 S.Ct. 1597. "[T]he purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities." Id. at 44-45, 109 S.Ct. 1597.
Section 1912 of ICWA addresses the rights of Indian parents during any court proceeding. "In any involuntary proceeding in a State court ... the party seeking the foster care placement of ... an Indian child shall notify the parent or Indian custodian... and the ... tribe ... of the pending proceedings...." 25 U.S.C. § 1912(a). In the event of indigency, Indian
Section 1922 of ICWA states:
25 U.S.C. § 1922.
The Due Process Clause of the Fourteenth Amendment provides "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S.C.A. Amend. XIV, section 1. "[T]he Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights." Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal references omitted).
"[T]he Amendment's Due Process Clause ... guarantees more than fair process.... [it] also includes a substantive component that provides heightened protection against governmental interference with certain fundamental rights and liberty interests." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (internal citations and internal quotation marks omitted). "The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66, 120 S.Ct. 2054.
Plaintiffs filed this action asserting defendants' policies, practices and procedures relating to the removal of Native
Plaintiffs filed two separate motions for partial summary judgment. (Dockets 108 & 110). Those motions will be identified as the "Section 1922 Claims" (Docket 110) and the "Due Process Claims" (Docket 108). Following extensive submissions by the parties, the motions are ripe for resolution.
Under Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment if the movant can "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S.Ct. 2505 (emphasis in original).
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In order to withstand a motion for summary judgment, the nonmoving party "must substantiate [their] allegations with `sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994) (citing Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)).
In assessing a motion for summary judgment, the court is to "consider only admissible evidence and disregard portions of various affidavits and depositions that were made without personal knowledge, consist of hearsay, or purport to state legal conclusions as fact." Howard v. Columbia Public School District, 363 F.3d 797, 801 (8th Cir.2004); see Fed.R.Civ.P. 56(e) (a party may hot rely on his own pleadings in resisting a motion for summary judgment; any disputed facts must be supported by affidavit, deposition, or other sworn or certified evidence). The nonmoving party's own conclusions, without supporting evidence, are insufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.2007); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc).
The following recitation consists of the material facts undisputed by the parties. These facts are developed from the complaint
Plaintiffs Oglala Sioux Tribe and Rosebud Sioux Tribe are Indian tribes officially recognized by the United States with reservations located within the State of South Dakota. (Docket 1 ¶ 2). Both tribes have treaties with the federal government. Id. Plaintiffs Madonna Pappan and Lisa Young reside in Pennington County, South Dakota, and are members of the Oglala Sioux Tribe and the Standing Rock Sioux Tribe, respectively. Id. ¶ 5.
Defendant Lynne A. Valenti is the Secretary of the South Dakota Department of Social Services ("DSS").
Defendant Mark Vargo is the duly elected States Attorney for Pennington County. Id. ¶ 10. Defendant Jeff Davis is the presiding judge of the Seventh Judicial Circuit Court of the State of South Dakota, and is the chief administrator of the Seventh Judicial Circuit Court. Id. ¶ 11.
Approximately one hundred 48-hour hearings involving Indian children
Eight hundred twenty-three Indian children were involved in 48-hour hearings in Pennington County, South Dakota, during the years 2010 to 2013. (Docket 131 ¶ 2). Of those 823 Indian children
Id. 7
The defendants acknowledge Seventh Circuit judges receive an ICWA affidavit prior to the 48-hour hearing, but the affidavit is not marked as a hearing exhibit. (Docket 131 ¶ 37). Indian parents who are present at the 48-hour hearings only began receiving a copy of the petition for temporary custody in May 2014. (Docket 109 ¶ 10). DSS asserts that prior to June 2012 it was the practice of DSS to provide parents attending a 48-hour hearing with a copy of the ICWA affidavit. (Docket 131 ¶ 8). DSS also asserts that since June 2012 it has been DSS's written policy to provide the ICWA affidavit to parents attending a 48-hour hearing. Id. DSS claims that if a parent did not receive the ICWA affidavit, it was an oversight and not an intentional decision by the child protection staff. Id.
Based on the court's review of the transcripts of 48-hour hearings submitted by the parties at which at least one Indian parent or custodian appeared, disclosure of an ICWA affidavit and a petition for temporary custody to a parent was not mentioned in 77 out of 78 cases.
In all 48-hour hearings over which he presided, Judge Davis conveyed the same information using virtually the same language. Following confirmation that at least one Indian parent or custodian was present and confirming DSS intended to proceed on a formal basis, Judge Davis advised the Indian party:
Transcript 10-304.
When the DSS worker advised the court they intended to proceed informally with the parent and not file a formal abuse and neglect petition, Judge Davis provided the following advisement:
Transcript 10-1170.
Judge Davis and the other Seventh Circuit judges presiding over 48-hour hearings (all jointly referred to as the "Seventh Circuit judges") never advised any Indian parent or custodian they had a right to contest the state's petition for temporary custody during the 48-hour hearing. (Docket 109 ¶ 25). The Seventh Circuit judges never advised Indian parents they had a right to call witnesses at the 48-hour hearing. Id. ¶ 23. The Seventh Circuit judges never required the State to present sworn testimony from a live witness. Id. ¶ 36.
Judge Davis never advised Indian parents of their right to testify at the 48-hour hearing. (Docket 131 ¶ 19). Judge Davis did not specifically ask parents if they wanted the opportunity to cross-examine the affiant of the ICWA affidavit during the 48-hour hearing. (Docket 131 ¶ 28). During the 48-hour hearings over which he presided in 2010, Judge Davis did not ask parents if they wanted the opportunity to present evidence as to whether the State had in fact undertaken active efforts to prevent a break-up of their family or whether their child could be safely returned to their home. Id. ¶ 24. Judge Davis admits "no oral testimony is taken at a 48-hour hearing." (Docket 109 ¶ 21).
Parents were never advised they could request a brief continuance of the 48-hour hearing to allow the parent to retain counsel. (Docket 109 ¶ 29). Every time the Seventh Circuit judges agreed during a 48-hour hearing to appoint counsel for indigent parents, the judges delayed the appointment of counsel until after granting DSS custody. Id. ¶ 32.
The Seventh Circuit judges used a standardized temporary custody order
At the conclusion of every 48-hour hearing, Judge Davis entered a temporary custody order finding that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts have proven unsuccessful," and "continued custody of the child(ren) by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child(ren)." (Docket 109 ¶ 42). This language appears in the standardized temporary custody order used by all the Seventh Circuit judges when removing Indian children from their parents.
Every temporary custody order issued by the Seventh Circuit judges granting custody of Indian children to DSS at the conclusion of 48-hour hearings contained the following provision:
Id. ¶ 43; see also Docket 1-7.
Judge Davis admits Indian parents have rights under both the Due Process Clause and ICWA, but he classifies 48-hour hearings as emergency custody proceedings. (Docket 130 ¶ 113; Docket 80 ¶ 43). Judge Davis distinguishes between a petition for temporary custody presented by the State during 48-hour hearings and formal petitions for temporary custody which parents must specifically request during a 48-hour hearing. (Docket 109 ¶ 13). Judge Davis believes 25 U.S.C. § 1922 is a statute of deferment. (Docket 130 if 4). He argues "§ 1922 authorizes state courts to defer applying the protections contained in ICWA until proceedings that occur after 48-hour hearings are held." Id. (emphasis in original).
Judge Davis acknowledged in at least one 48-hour hearing that his concern was not why the children were removed from their parents' custody. (Docket 1 ¶ 53). In at least one 48-hour hearing Judge Davis stated "I don't have what I need here today at the 48 hour hearing to make [a decision to return the children to the mother who was present]." Id. ¶ 54.
Judge Davis admits § 1922 requires first, as a matter of procedure, State authorities "`shall expeditiously initiate a child custody proceeding' that must comply with ICWA." Id. ¶ 92 (citing § 1922). And second, as a matter of substance, State officials "shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child." Id. ¶ 93 (citing § 1922) (emphasis in original). As recently as June 23, 2014, petitions for temporary custody of Indian children submitted by the States Attorney's staff to the Seventh Circuit judges routinely failed to cite § 1922 or its mandates. (Docket 109 ¶ 18).
Plaintiffs allege Judge Davis, Mr. Vargo, Ms. Valenti, and Ms. Van Hunnik in their official capacities "pursued policies and practices that deprive parents of custody of hundreds of Indian children without providing those parents and children with even rudimentary due process." (Docket 108 at p. 6). See also Docket 1 at p. 38 (alleging violations of the Due Process Clause of the Fourteenth Amendment and ICWA). "Plaintiffs are not seeking a ruling at the present time as to whether Judge Davis is responsible for the actions of the other judges.... Plaintiffs are confining this motion ... [to] all of his 48-hour hearings ... and the policies and practices of the other three named Defendants...." (Docket 108 at p. 6 n. 4) (italics removed). Defendants claim none of them have "final policymaking authority." (Docket 129 at p. 19).
Plaintiffs seek to vindicate their rights through 42 U.S.C. § 1983. "Liability... under 42 U.S.C. § 1983 can exist only where the challenged policy or practice is `made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.'" Oglala Sioux Tribe v. Van Hunnik, 993 F.Supp.2d 1017, 1029 (D.S.D.2014) (citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "A policy maker is one who `speak[s] with final policymaking authority ... concerning the action alleged to have caused the particular constitutional or statutory violation at issue,' that is one with the power to make official policy on a
Liability under § 1983 "attaches only where the decisionmaker possesses final authority to establish ... policy with respect to the action ordered." Pembaur, 475 U.S. at 481, 106 S.Ct. 1292. "`[O]fficial policy' often refers to formal rules or understandings — often but not always committed to writing — that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Id. at 480-81, 106 S.Ct. 1292. "If the decision to adopt that particular course of action is properly made by ... authorized decisionmakers, it surely represents an act of official government `policy' as that term is commonly understood." Id. at 481, 106 S.Ct. 1292. "The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to ... liability based on an exercise of that discretion.... The official must also be responsible for establishing final government policy respecting such activity before the [entity] can be held liable. Authority to make ... policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority...." Id. at 481-83, 106 S.Ct. 1292. "[W]hether an official had final policymaking authority is a question of state law." Id. at 483, 106 S.Ct. 1292.
Plaintiffs claim Judge Davis initiated six policies, practices and customs for 48-hour hearings which violate the Due Process Clause and ICWA. (Docket 69 at p. 20). Those are:
Id. at pp. 20-21. Judge Davis claims his "decisions are not `policies, practices, or customs,' they are adjudications of 25 U.S.C. § 1922, and the applicable state law procedures." (Docket 129 at p. 19). Judge Davis argues he is "an initial decision maker, but he is not a final policy maker" for purposes of § 1983 because his decisions are subject to appellate review. (Docket 128 at p. 13). Judge Davis asserts his decisions are not final decisions and he is not "a proper defendant under § 1983." (Docket 129 at p. 19).
Plaintiffs counter that Judge Davis "created all of the practices for which [he is] being sued in this litigation, and recently changed a few of them." (Docket 136 at p. 28) (italics removed). Plaintiffs argue
None of the complained of policies or practices are compelled by state law or § 1922. Judge Davis cannot point to any provision of South Dakota law or ICWA which supports the six actions he created for 48-hour hearings. There is no right of appellate review of Judge Davis' 48-hour hearing decisions because those decisions are not a final judgment subject to appellate review under South Dakota law. SDCL § 15-26A-3. "To be final, a judgment must finally and completely adjudicate all of the issues of fact and law involved in the case." Midcom, Inc. v. Oehlerking, 722 N.W.2d 722, 725 (S.D. 2006) (internal quotation marks and citations omitted).
Judge Davis' decisions are "final decisions" for purposes of § 1983. He established each of the policies and procedures for conducting 48-hour hearings and Judge Davis is empowered to change them at any time.
Plaintiffs assert States Attorney Vargo, DSS Secretary Valenti and Ms. Van Hunnik acquiesced in Judge Davis' policies regarding the manner in which 48-hour hearings are conducted. (Dockets 110 at p. 12; 136 at p. 31). Defendants argue Judge Davis has not "enacted a policy, practice, or custom, [to] which the other... defendants ... could acquiesce." (Docket 128 at p. 5). Defendants' position is untenable.
Defendants Vargo, Valenti and Van Hunnik understand 48-hour hearings are intended to be evidentiary hearings.
Defendants created the appearance of regularity in a highly irregular process. Judicial and prosecutorial immunity do not extend to plaintiffs' claims for injunctive and declaratory relief under § 1983. Pulliam, 466 U.S. at 541-42, 104 S.Ct. 1970; Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir.1975); Oglala Sioux Tribe, 993 F.Supp.2d at 1033 (citations omitted). The defendants are policy makers for purposes of 42 U.S.C. § 1983.
This case focuses on the obligations of the defendants under the Indian Child Welfare Act and its interface with South Dakota law. In South Dakota, any "child may be taken into temporary custody by a law enforcement officer without order of the court ... [i]f the child is abandoned or seriously endangered ... and immediate removal of the child appears to be necessary for the child's protection...." SDCL § 26-7A-12(2). The court is then authorized to "issue a written temporary custody directive...." SDCL § 26-7A-13. "An apparent abused or neglected child taken into temporary custody and not released to the child's parents, guardian, or custodian may be placed in the temporary care of the Department of Social Services...." SDCL § 26-7A-14. "[N]o child may be held in temporary custody longer than forty-eight hours ... excluding Saturdays, Sundays, and court holidays, unless a ... petition has been filed... and the court orders longer custody during a noticed hearing...." Id. A 48-hour hearing under South Dakota law is a temporary custody hearing included in the definition of "foster care placement" under 25 U.S.C. § 1903(1)(i) ("`foster care placement'... shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement ... where the parent or Indian custodian cannot have the child returned upon demand....").
At a 48-hour hearing under South Dakota law, "the court shall consider the evidence of the need for continued temporary custody of the child in keeping with the best interests of the child." SDCL § 26-7A-18. If the court retains the child in the custody of DSS, state law requires judicial review "every sixty days." SDCL § 26-7A-19(3).
Judge Davis argues "§ 1922 defers `the full panoply of ICWA rights,' specifically §§ 1912(d) and (3) of ICWA, until a `child custody proceeding,' as defined in § 1903, is held." (Docket 128 at p. 14). Judge Davis asserts "whether analyzed under state law or § 1922, the imminent danger to the child' triggers the respective emergency custody statutes where it appears `necessary' to protect the child's best interests." Id. at p. 15 (citation to earlier briefing and bracketing omitted).
Section 1922 is not a "statute of deferment." Section 1922 mandates that state officials "insure that the emergency removal... terminates immediately when such removal ... is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of [ICWA], transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate." 25 U.S.C. § 1922. Deferring application of § 1922 would undermine the Congressional declaration that a State's emergency custody authority immediately terminates when "imminent physical damage or harm to the child" is no longer present.
The Department of Interior Guidelines for State Courts; Indian Child Custody Proceedings ("DOI Guidelines") were promulgated to aid in the interpretation of ICWA's provisions. 44 Fed.Reg. 67584-67595 (Nov. 26, 1979). The DOI Guidelines were updated for the first time in thirty-five years on February 19, 2015 ("DOI Revised Guidelines").
Focusing on emergency removal situations, the DOI Guidelines state "[s]ince emergency action must be taken without the careful advance deliberation normally required, procedures must be established to assure that the emergency actions are quickly subjected to review.... The legislative history clearly states that placements under such emergency procedures are to be as short as possible. If the emergency ends, the placement shall end." Id. at 67590. "Unless there is some kind of time limit on the length of an `emergency removal' (that is, any removal not made pursuant to a finding by the court that there is clear and convincing evidence that continued parental custody would make serious physical or emotional harm likely), the safeguards of the Act could be evaded by use of long-term emergency removals." Id.
The DOI Guidelines contemplate that "[e]ach party to a foster care placement... under State law involving an Indian child has the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based. No decision of the court shall be based on any report or other document not filed with the court." Id. at 67592.
The DOI Revised Guidelines "expand upon the emergency procedure provisions in light of evidence that some States routinely rely upon emergency removal and placements in a manner that bypasses implementation of ICWA." (Docket 140-1 at p. 8). The DOI Revised Guidelines "provide minimum Federal standards and best practices to ensure compliance with ICWA and should be applied in all child custody proceedings in which the Act applies." Id. at p. 23. These guidelines recognize and maintain the definition of "foster care placement" to include "any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution ... where the parent or Indian custodian cannot have the child returned upon demand, although parental rights have not been terminated...." Id. at p. 17.
The DOI Revised Guidelines require a state court to "[p]romptly hold a hearing to hear evidence and evaluate whether the removal or placement continues to be necessary whenever new information is received or assertions are made that the emergency situation has ended[] and ... [i]mmediately terminate the emergency removal or placement once the court possesses sufficient evidence to determine that the emergency has ended." Id. at p. 35. "The emergency removal or placement must terminate as soon as the imminent physical damage or harm to the child which resulted in the emergency removal or placement no longer exists...." Id. at p. 37.
In 2007, the South Dakota Unified Judicial System promulgated the South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases. ("SD Guidelines").
Id. (citing SD Guidelines at p. 33). The SD Guidelines provide that "[t]he family services specialist should be ready to detail reasonable efforts [to avoid removal of the child] at the 48 hour hearing," including current and historical information, such as contacts with the parents since the child's removal and previous abuse or neglect issues. Id. ¶ 36 (citing SD Guidelines at pp. 37-38). The SD Guidelines provide where a child is an Indian, DSS must support its petition for temporary custody with an ICWA affidavit or by testimony from a "qualified expert 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 (25 USC 1912(e))." Id. ¶ 37 (citing SD Guidelines at p. 46). In any 48-hour hearing involving an Indian child, the SD Guidelines state that "the Court must determine whether [DSS] has made active efforts to preserve the family (25 U.S.C.A.1912(d))" and whether the person endangering the child has "been removed from the home so the child could remain." Id. ¶ 38 (citing SD Guidelines at p. 38).
The SD Guidelines contemplate that a 48-hour hearing is an evidentiary hearing which may be extended when necessary.
Id. ¶ 40 (citing SD Guidelines at pp. 41-42) (emphasis in original). At the conclusion of the hearing, the court must "determine that removal of the child is or was necessary because continued presence in the home or return to the home would be contrary to the child's welfare." Id. ¶ 38 (citing SD Guidelines at p. 37). The Guidelines recommend use of a temporary custody order with the following language:
Id. ¶ 39.
The DOI Guidelines and the SD Guidelines were publically available to the Seventh Circuit judges including Judge Davis and to the other defendants. A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA § 1922, the DOI Guidelines or the Guidelines promulgated by the South Dakota Unified Judicial System. Indian children, parents and tribes deserve better.
Judge Davis does not conduct any inquiry during the 48-hour hearings to determine whether emergency removal remains necessary.
The defendants acknowledge the practice of Judge Davis is to authorize DSS to perform the function of determining if, or when, the imminent risk of physical harm to an Indian child has passed and to restore custody to the child's parents. (Docket 130 at p. 3; see also Docket 1-7). This authorization vests full discretion in DSS to make the decision if and when an Indian child may be reunited with the parents. This abdication of judicial authority is contrary to the protections guaranteed Indian parents, children and tribes under ICWA.
The policy and practice of Judge Davis does not comply with the requirement of § 1922 to order restoration of custody to Indian parents when the risk of imminent physical harm no longer exists. While Judge Davis may believe granting DSS discretion shortens the potential time period of an emergency placement, the policy ignores the mandate of § 1922 and removes the court from the decision-making process. A competently conducted evidentiary hearing held on an expedited basis is fundamental to ICWA's purposes. ICWA requires the state court to make the custody decision at the earliest possible moment. The court cannot delegate the authority to make the custody decision to a state agency or its employees.
"The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children." Troxel, 530 U.S. at 66, 120 S.Ct. 2054. Defendants agree the basic elements of due process are required at 48-hour hearings. (Docket 129 at p. 1).
Plaintiffs claim the defendants have violated the Due Process Clause since January 1, 2010, in five different areas:
(Docket 108 at pp. 7-8).
"It is well settled that state law does not define the parameters of due process for the purposes of the Fourteenth Amendment." Brown v. Daniels, 290 Fed. Appx. 467, 471 (3d Cir.2008) (referencing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ("[O]nce it is determined that the Due Process Clause applies, the question remains what process is due. The answer to that question is not to be found in the [state] statute.") (citation and internal quotation marks omitted)); Swipies v. Kofka, 419 F.3d 709, 716 (8th Cir.2005) (holding that "a state statute cannot dictate what procedural protections must attend a liberty interest ... as this is the sole province of federal law"). "Federal procedural due process guarantees prompt post-deprivation judicial review in child custody cases." Campbell v. Burt, 141 F.3d 927, 929 (9th Cir.1998). "When the state deprives parents and children of their right to familial integrity, even in an emergency situation, without a prior due process hearing, the state has the burden to initiate prompt judicial proceedings to provide a post deprivation hearing." Whisman v. Rinehart, 119 F.3d 1303, 1311 (8th Cir.1997).
"One of the core purposes of the Due Process Clause is to provide individuals with notice of claims against them." Oglala Sioux Tribe, 993 F.Supp.2d at 1037. A significant component of procedural due process notice is that the "notice should include the date, time and place of the hearing; a clear statement of the purpose of the proceedings and the possible consequences to the subject thereof; the alleged factual basis for the proposed commitment; and a statement of the legal standard upon which commitment is authorized." Syrovatka v. Erlich, 608 F.2d 307, 310 (8th Cir.1979) (quoting Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10, 25 (S.D.Iowa 1975), aff'd, 545 F.2d 1137 (8th Cir.1976)).
"The due process clause ensures every individual subject to a deprivation the opportunity to be heard at a meaningful
As the court concluded in its analysis of ICWA violations, there is no procedure in the Seventh Judicial Circuit ensuring that Indian parents or custodians are given copies of the petition for temporary custody and the ICWA affidavit at 48-hour hearings. Some Seventh Circuit judges do generally require the State to recite a summary of the allegations which form the basis for the emergency removal of Indian children. But that practice must "yield to the requirements that the ... parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation." Application of Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
Defendants refuse to give parents a copy of any police reports which may accompany the ICWA affidavit and petition for temporary custody. (Docket 129 at p. 25). Defendants argue SDCL § 26-7A-29 prohibits them from disclosing police reports. Id. This interpretation of the statute directly contradicts the clear mandate of ICWA and due process which require that all documents to be considered by the court must be disclosed to the parties. 25 U.S.C. § 1912(c) and DOI Guidelines 44 Fed.Reg. at 67592. A judge's order directing that police reports be provided to the Indian parents would satisfy SDCL § 26-7A-29.
Defendants acknowledge indigent Indian parents attending 48-hour hearings are entitled to court appointed-counsel but disagree as to when an appointment of counsel must be made. (Docket 129 at p. 27). The Seventh Circuit judges' practice is to appoint counsel after entry of the temporary custody order. That is, after the court orders foster care placement for the Indian child. Defendants claim their practice of appointing counsel at the end of the 48-hour hearing is not prejudicial because if counsel is appointed, the Indian parent always retains the right to notice a further hearing at which the attorney may appear with them. Id. This practice defies logic because the damage is already done — Indian parents have been deprived of counsel during the course of what should have been an adversarial evidentiary hearing conducted in advance of a court order imposing out-of-home custody for an Indian child.
"[I]t is the [party's] interest in personal freedom ... which triggers the right to appointed counsel...." Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). "[A] fundamental requisite of due process of law is the opportunity to be heard ... [and] [t]he right to be heard would be ... of little avail if it did not comprehend the right to be heard by counsel." Goldberg v. Kelly, 397 U.S. 254, 267 and 270, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). "Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision." Lassiter, 452
Appointing counsel and continuing the 48-hour hearing for a few hours or even a day to allow court-appointed counsel to confer with the Indian parents and become familiar with the critical documents upon which the 48-hour hearing is based would result in an "equal contest of oppos[ing] interests." Id. at 28, 101 S.Ct. 2153. This process undoubtedly will require additional time and more county and judicial resources but these concerns are not adequate reasons to forego rights mandated by ICWA and fundamental due process. "A parent's interest in the accuracy and justice in the decision ... is ... a commanding one." Id. at 27, 101 S.Ct. 2153.
"Ordinarily, the right to present evidence is basic to a fair hearing...." Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). "[T]he Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged." Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). The United States Supreme Court has "frequently emphasized that the right to confront and cross-examine witnesses is a fundamental aspect of procedural due process." Jenkins v. McKeithen, 395 U.S. 411, 428, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (references omitted). It is a central element of due process that a party has the "right to be confronted with all adverse evidence and to cross-examine witnesses." Nevels v. Hanlon, 656 F.2d 372, 376 (8th Cir.1981). Ex parte communications between a Deputy States Attorney, a DSS representative and the judge, whether in the form of undisclosed affidavits and reports or oral communications, violate this fundamental right. Id.
Defendants argue "[a]t the 48-hour hearings, parents are not prevented by Judge Davis from offering evidence or testifying." (Docket 129 at p. 29). This argument is contradicted by Judge Davis' own declaration that no oral testimony is permitted during the 48-hour hearings he conducts. (Docket 130 at p. 5). Defendants cannot create a disputed material fact to defeat summary judgment by ignoring Judge Davis' own admission. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
Defendants argue the ICWA affidavit and petition for temporary custody prepared by the State and presented to the judges prior to the 48-hour hearings qualify as evidence in accord with Cheyenne River Sioux Tribe v. Davis, 822 N.W.2d 62 (S.D.2012). (Docket 129 at pp. 32-33). This argument ignores the parents' due process rights to see these documents, confront them and cross-examine the document preparers.
The Due Process Clause requires a judge to base a decision solely on the evidence presented during a hearing. "[T]he decisionmaker's [action] ... must rest solely on the legal rules and evidence adduced at the hearing." Goldberg, 397 U.S. at 271, 90 S.Ct. 1011. "To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on.... though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law." Id. (internal citation omitted).
Plaintiffs are entitled to judgment as a matter of law on their Due Process Clause claims.
"The focus of this litigation is not to redress past injuries to plaintiffs; rather, it is to prevent future violations of the Due Process Clause of the Fourteenth Amendment and ICWA." Oglala Sioux Tribe, 993 F.Supp.2d at 1028. This litigation "is inextricably bound up with the Tribes' ability to maintain their integrity and `promote the stability and security of the Indian tribes and families.'" Id. (citing 25 U.S.C. § 1902).
Defendants argue plaintiffs are not entitled to declaratory relief against Judge Davis or injunctive relief against the other defendants because plaintiffs' claims have been rectified by an agreement with Attorney Dana Hanna as counsel for the two Tribes. (Docket 129 at p. 34). Defendants argue "there is no longer a case or controversy for purpose of this Court's Article III jurisdiction and Plaintiffs' requested declaratory and injunctive relief should be denied on that basis." Id.
"[A]s a general rule, voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). But jurisdiction, properly acquired, may abate if the case becomes moot because:
Id. (internal citations and quotation marks omitted). "When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law." Id. See also Strutton v. Meade, 668 F.3d 549, 556 (8th Cir.2012) ("Mere voluntary cessation of a challenged action does not moot a case. Rather a case becomes moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.") (internal quotation marks and citations omitted).
Based on the court's analysis, plaintiffs' claims have not been fully resolved. Defendants' informal agreement with Attorney Hanna did not address or resolve a single issue raised in plaintiffs' two motions for partial summary judgment.
The fact States Attorney Vargo and DSS now represent that as of May 2014 they are providing both the petition for temporary custody and the ICWA affidavit to Indian parents at 48-hour hearings does not diminish plaintiffs' right to relief. Judge Davis still maintains § 1922 and the due process rights discussed above do not
Defendants have not shown "it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (italics in original).
Plaintiffs are entitled to injunctive and declaratory relief.
Based on the above analysis, it is hereby
ORDERED that plaintiffs' motions for partial summary judgment (Dockets 108 & 110) are granted. A separate injunction and declaratory judgment order shall issue after submissions by the parties addressing the appropriate remedies, those submissions to be filed with the court on or before
IT IS FURTHER ORDERED that the motion to defer ruling on plaintiffs' pending motion regarding 25 U.S.C. § 1922 (Docket 137) is denied as moot.
