Every week, Native American families are torn apart in Rapid City in violation of their constitutional rights, attorneys representing two South Dakota tribes and parents said Thursday after filing a federal lawsuit.
The "lawsuit seeks to put an end to disgraceful and unlawful practices that unfortunately have been standard practice in Pennington County, South Dakota, for a long time," Stephen Pevar, an attorney with the American Civil Liberties Union, said at a news conference after filing the lawsuit in federal court in Rapid City.
The Oglala Sioux and Rosebud Sioux Tribes along with three Native American mothers filed the class action, alleging the state is violating the Indian Child Welfare Act and the due process clause of the Fourteenth Amendment.
Named as defendants in the case are Kim Malsam-Rysdon, secretary of the South Dakota Department of Social Services; LuAnn Van Hunnick, head of Child Protective Services in Rapid City; Pennington County State's Attorney Mark Vargo and presiding 7th Circuit Judge Jeff Davis. They were not named as individuals, but as officials who set policies.
The mothers — Rochelle Walking Eagle, Madonna Pappan and Lisa Young — represent all parents in Pennington County who have had similar experiences with the state Department of Social Services and 7th Circuit Court procedures, according to Pevar and Dana Hanna, a Rapid City attorney also representing the plaintiffs.
At the heart of the issue is a hearing required within 48 hours after children are taken from a home by law enforcement or Department of Social Service workers. Those hearings are one-sided, according to Pevar.
Hanna says current courtroom procedures are nothing more than a "rubber-stamping" of Department of Social Service petitions to take the children. In those brief hearings, parents are not allowed to speak or see the evidence used against them, nor are they fully instructed in their rights, Hanna said.
"You get more due process if they take your car than if they take your kids," Hanna said.
This case is not about money, the attorneys emphasized.
In the lawsuit, the tribes and parents are asking the federal courts for a ruling declaring that the state's current policies and practices of not providing adequate notice and meaningful hearings are a violation of the Due Process Clause of the Fourteenth Amendment and of the Indian Child Welfare Act. The lawsuit also requests a permanent and preliminary injunction preventing a continuation of the current practices.
If parents were given the opportunity to participate in a meaningful hearing within the first 48 hours after their children are taken, most would be returned to their homes, Hanna said.
Hanna has spent the past 18 months representing the rights of the Cheyenne River Sioux, Oglala Sioux and Rosebud Sioux Tribes in child-custody issues in Pennington County courtrooms. The tribes have the right to intervene in cases involving tribal members under the Indian Child Welfare Act. Many of those 48-hour hearings have lasted between 60 and 90 seconds, he said.
Two of the mothers named in the lawsuit attended Thursday’s news conference. One of them, Walking Eagle, briefly shared her story about how long it took her to get her children back.
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"It was not until more than four months after DSS took my children from me and put my children in foster care that I was given a real hearing in court to determine if my children had been neglected," Walking Eagle said. After that two-day hearing, Walking Eagle's children were returned to her.
Walking Eagle's four-month separation from her children could have been avoided had the circuit court not automatically approved the Department of Social Service's petition to remove the children and had given Walking Eagle a proper hearing within 48 hours of taking the children, Hanna said.
It was Hanna's attendance at the hearings that called attention to the magnitude of what was happening in Pennington County courtrooms, said Robert Doody, director and attorney for the South Dakota ACLU. Before that, the ACLU received calls from all over the state. Hanna's presence confirmed what parents were telling the ACLU, he said.
After more than 16 months of work on the case, Hanna and Pevar are aware of only one hearing "in hundreds" where a judge gave children back to the family at a 48-hour hearing.
"We all understand that in certain situations of extreme or chronic neglect and abuse children must be protected by removal from their parents' home," OST President Brian Brewer said at the news conference, held at Adoba Eco Hotel in Rapid City.
South Dakota officials, however, have a history of unwarranted and unnecessary long-term removals of Indian children from their families without any proof of abuse or neglect, Brewer said. Those children suffer emotional trauma, anxiety, depression and long-lasting injury, he said.
Pennington County prosecutors and courts have routinely allowed the Department of Social Services to take Native American and non-Native children from their families and place them in foster homes without giving the parents a "fair and meaningful hearing" Brewer said.
"Parents and children are not given any opportunity to challenge the state," he said. "This is an abuse of state power."
The tribes are fighting not only to protect Lakota children but to protect the rights of all parents in South Dakota, Brewer said.
Tony Venhuizen, an adviser to Gov. Dennis Daugaard, said Department of Social Service officials haven’t yet been served in the federal lawsuit and do not comment on pending litigation, anyway.
Presiding 7th Circuit Court Judge Jeff Davis said it would not be appropriate for him to comment. Pennington County State’s Attorney Mark Vargo did not immediately return a call to his office seeking comment.
A Department of Social Service official in Pierre did provide policy guidelines for the removal of children from the home. They are removed because of safety concerns due to abuse and neglect by a parent, guardian or custodian, according to the department.
DSS must have involvement of law enforcement or the courts to remove children from the home. DSS policy is then first to try to return the children to their family. After that, DSS looks for relatives to care for the children. The next step is foster care.