GILBERTSON, Chief Justice.
[¶ 1.] S.T.A. (father) appeals a dispositional order terminating his parental rights over R.T.A. (child), his four-year-old son. We affirm.
[¶ 2.] T.C. (mother) is twenty-five years old and is an enrolled member of the Cheyenne River Sioux Tribe. At the time this matter began in 2016, mother had four children by three different fathers. Mother's two older children were four-year-old twins. Mother's third child, the subject of this case, was about two. Her fourth child was around a year old. Mother was unemployed, homeless, and moved around with her family and occasional boyfriends between Huron, Mitchell, and Eagle Butte. Mother and the family lived in government-assisted housing, roomed with friends, and moved in with mother's mother in Eagle Butte for a time. Eventually, the family stayed with the sister of one of mother's boyfriends in Sioux Falls.
[¶ 3.] Mother's fifth child was born on November 11, 2016 in Sioux Falls. Mother's cord screening was positive for THC, amphetamine, and methamphetamine and the matter was reported to the South Dakota Department of Social Services (DSS). Mother admitted to DSS and law enforcement
[¶ 4.] Mother's four older children, including child, were still staying with mother's boyfriend's sister. Law enforcement visited the sister's residence and removed the children from her care. The sister initially refused the officers entry into her home, but ultimately brought the children out to them. The children were poorly dressed and filthy. All five of the children were eventually placed into DSS custody due to mother's drug use and the lack of appropriate caretakers for them.
[¶ 5.] A petition alleging abuse and neglect of the children was filed on November 23, 2016. Because of the children's Native American heritage, notice was provided to the Rosebud Sioux Tribe and to the Cheyenne River Sioux Tribe pursuant to the Indian Child Welfare Act (ICWA).
[¶ 6.] After removal of the children, mother began to go through the steps of a case plan requiring chemical dependency evaluations, treatment, urinalyses, and establishment of stable housing. DSS initially had difficulty contacting any of the children's fathers.
[¶ 7.] DSS made contact with father in December 2016. Father was on probation for simple assault and escape offenses and was working in Pierre. When DSS asked father about visiting child, he told the worker that he would get back to her. When the worker offered to bring child to Pierre to visit, father replied that it was unnecessary because he would be moving to Sioux Falls and could see child then. DSS did not hear from father again for about three months.
[¶ 8.] The children were adjudicated abused and neglected as to both parents in early 2017. Father did not appear for his adjudicatory hearing. In June 2017, DSS learned of father's incarceration in the Minnehaha County Jail on a probation violation for noncompliance with 24/7 monitoring. DSS routinely met with father while he was incarcerated to update him on child and to inform him of the services available to him in jail. DSS also arranged visitations with child. Father indicated that he was completing chemical dependency treatment at the jail. Meanwhile, mother completed outpatient treatment, relapsed, and failed to begin aftercare as recommended. Mother continued to struggle with methamphetamine and marijuana use throughout the duration of the case and never did establish stable housing.
[¶ 9.] In October 2017, Father received a four-year sentence on his probation violation and was returned to the penitentiary. In addition, federal charges were pending against him for arson and third-degree burglary on the Cheyenne River Sioux Reservation. The dispositional hearing was set for that October but was continued by stipulation of the parties until January 2018. Father's return to the penitentiary led to missed visitations with child until father completed paperwork necessary to resume visitations shortly before the dispositional hearing.
[¶ 11.] The trial court rendered an oral decision on January 17, 2018, that was later incorporated by reference in its findings of fact and conclusions of law. The court found that, despite the provision of numerous services to mother and father, mother's drug use, homelessness, and lack of resources to meet the children's needs persisted. The court further found that father failed to act as a caregiver to child in any meaningful way. The court went on to conclude that: the parents' continued custody of the children would likely result in serious emotional or physical damage to them; active efforts were made to prevent the breakup of the family, but were unsuccessful; and termination of all parental rights was the least restrictive alternative in the children's best interests. The court filed its findings of fact, conclusions of law, and dispositional order terminating all parental rights on January 31.
[¶ 13.] Termination of parental rights in an ICWA case requires a showing of "active efforts ... to prevent the breakup of the Indian family[.]" People ex rel. J.S.B., Jr., 2005 S.D. 3, ¶ 15, 691 N.W.2d 611, 617 (quoting 25 U.S.C. § 1912(d) (1978)). Active efforts must be proven "beyond a reasonable doubt." People ex. rel. S.H.E., 2012 S.D. 88, ¶ 19, 824 N.W.2d 420, 426 (quoting People ex rel. J.I.H., 2009 S.D. 52, ¶ 17, 768 N.W.2d 168, 172). "[W]hether active efforts were provided... is a mixed question of law and fact subject to de novo review" by this Court. Id. ¶ 18, 824 N.W.2d at 425 (quoting People ex rel. P.S.E., 2012 S.D. 49, ¶ 15, 816 N.W.2d 110, 115).
[¶ 14.] Father argues that active efforts were not provided because DSS did not make active efforts to place child with his Native American family on the Cheyenne River Reservation. Instead, after removing the children from mother's care, DSS placed them in non-Native American foster care in the Sioux Falls area where they remained for the duration of the case.
25 U.S.C. § 1915(b) (2012).
[¶ 15.] In support of his argument, father relies primarily on In re Welfare of M.S.S., 465 N.W.2d 412 (Minn. Ct. App. 1991). In that case, the Minnesota Court of Appeals held that active efforts were not proven beyond a reasonable doubt where a father's proposal to place his child permanently with his Native American brother and sister-in-law was not considered by the trial court before it terminated his parental rights.
[¶ 16.] This case is more like J.B. than M.S.S. in terms of credibility issues, failure to identify proposed custodians, and lack of tribal endorsement of father's placement proposal. Before the dispositional hearing, Father did provide DSS with the names of three of his relatives as placement options for the children. However, only father's sister from Pierre responded to DSS's letters by calling in to participate in a planning meeting. DSS attempts to follow-up with the sister were thwarted by the disconnection of her telephone and the return of three subsequent letters to her.
[¶ 17.] During the dispositional hearing itself, father presented testimony from his great aunt who lived on the Cheyenne River Reservation. The aunt testified that she and some of father's other relatives from the reservation received letters from DSS about child's placement and were interested in custody of child. However, the aunt also testified that the letters stated that a custodian would have to take custody of all the children and not just child. The aunt further testified that she telephoned DSS and was told the same thing. Therefore, none of father's relatives pursued custody. DSS records, however, did not show any contact by the aunt responding to its letters of inquiry, and a copy of a DSS letter to the aunt referred only to child and not the other children as she testified. A DSS worker also testified that DSS was conducting a home study of the grandmother of two of the other children to be their custodian because she replied to its letter of inquiry. Accordingly, the trial court found "[n]o credible evidence" supported father's argument that his relatives were "denied placement of [child] due to a requirement that one [custodian] accept all five children."
[¶ 18.] The record also does not show that father's aunt or other relatives were licensed foster parents or that any of them were recommended to be custodians by child's tribe as were the proposed custodians in M.S.S. To the contrary, despite notice, child's tribe did not appear for the dispositional hearing or otherwise endorse any placement that father proposed. Thus, like the Minnesota court in J.B., we reject father's argument that DSS failed to comply with ICWA placement preferences by failing to place child with any of father's relatives. See J.B., 698 N.W.2d at 170.
[¶ 19.] The State also challenges father's premise that compliance with ICWA placement preferences is a factor in determining whether active efforts were made to prevent the breakup of the family. In support of its argument, the State cites the Alaska case David S. v. State, Dep't of Health and Social Servs., 270 P.3d 767 (Alaska 2012). In that case, an incarcerated father, like father here, argued that active efforts were not made before terminating his parental rights because Alaska's Office of Children's Services (OCS)
[¶ 20.] The Alaska court also noted in David S. that its own prior decisions rejected
[¶ 21.] Finally, the court noted in David S. that even if ICWA placement preferences were relevant, Alaska's OCS followed them by exploring placement options with several of the child's family members. 270 P.3d at 781. The court went on to explain the ways in which those placement efforts failed and then cited BIA guidelines defining "good cause" for departure from the placement preferences to include the "unavailability of suitable families for placement[.]" Id. at 782 (quoting Guidelines for State Courts, 44 Fed. Reg. at 67,594, F.3(a)(iii)). The court concluded that, "[b]ecause OCS did explore the availability of `suitable families,' [the] case [fit] within this `good cause' exception." Id. (emphasis added).
[¶ 22.] Federal regulations continue to contain a good cause exception from ICWA placement preferences for "[t]he unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located." 25 C.F.R. § 23.132(c)(5) (2016). DSS's unsuccessful efforts to find a suitable placement for child with father's family due to the family's lack of response are recounted above. DSS workers also testified during the dispositional hearing to their familiarity with ICWA placement preferences, their efforts to find a suitable placement for all the children, and the children's placement with non-Native American foster parents in proximity to mother and father during the reunification phase. The DSS workers agreed that an ideal placement would have been with Native American relatives, or a Native American family in proximity to mother and the fathers during attempted reunification, but none were available.
[¶ 24.] Based upon the DSS workers' testimony and the trial court's findings, even if the ICWA placement preferences were relevant, DSS followed them by exploring placement options with several of child's family members. David S., 270 P.3d at 781. Alternatively, because DSS explored the availability of a "suitable ... placement" for child with a "diligent search," but was unsuccessful, there was good cause for departure from the placement preferences. Id. at 782 (citing Guidelines for State Courts, 44 Fed. Reg. at 67,594, F.3(a)(iii)). Under either view, there was no violation of the placement preferences. Id.; 25 C.F.R. § 23.132(c)(5) (2016).
[¶ 25.] Father's argument that DSS failed to make active efforts to prevent the breakup of his family by failing to comply with ICWA placement preferences and failing to place child with any of his reservation family members is without merit because: there were credibility issues related to his proposed placements; some proposed custodians were not identified; and child's tribe did not endorse father's proposed placements. J.B., 698 N.W.2d at 170. Further, compliance with placement preferences is generally not a factor in determining whether active efforts were made. David S., 270 P.3d at 779-80. Finally, even if compliance with placement preferences were a factor, DSS complied with the preferences or had good cause to depart from them. Id. at 781-82.
[¶ 26.] For these reasons, there was no trial court error in terminating father's parental rights based upon DSS's failure to make active efforts to prevent the breakup of the Indian family. The trial court's order terminating parental rights is affirmed.
[¶ 27.] ZINTER,
Placement preferences are contained in 25 U.S.C. § 1915 (2012).
