The South Dakota Supreme Court has ruled that a local judge erred when he transferred a child abuse and neglect case from state court to tribal court without considering testimony from the child’s doctor.
“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,” said the Supreme Court’s opinion, which was published April 17.
The case will now go back to 7th Circuit court for a new hearing on the transfer request.
The case dates to Sept. 1, 2016, when law enforcement removed a day-old baby from the mother’s care after both tested positive for methamphetamine. Because the child and mother are affiliated with the Oglala Sioux Tribe, the South Dakota Department of Social Services notified the tribe of the child’s removal, as required by the federal Indian Child Welfare Act.
The state placed the child in foster care temporarily. After the mother completed an outpatient treatment program, the state returned the child to the mother’s care on Jan. 5, 2017. Eight days later, the mother missed a urinalysis required in connection with a pending criminal case, and the child was placed back in foster care.
The mother tried again to earn a reunification with her child by obtaining part-time employment, completing a parenting class, and submitting to twice weekly urinalysis tests and daily breathalyzer tests, all while visiting her child weekly.
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The state was working on a plan to return the child to the mother’s care until Aug. 26, 2017, when the mother drove while intoxicated, struck a vehicle and fled the scene. After she was released on bond, she was arrested again on Sept. 14, 2017, for violating the terms of her court-ordered participation in a 24/7 sobriety program.
A hearing to determine the child’s fate was scheduled for Nov. 27, 2017. When the hearing began, the tribe asked 7th Circuit Judge Matthew Brown to transfer the matter to tribal court. Brown suspended that day’s hearing and conducted a transfer hearing on Jan. 4, 2018.
Cassidy Stalley, a Rapid City-based lawyer appointed to represent the child, attempted to present expert testimony from the child’s pediatrician, David Whitney. He planned to testify that taking the child away from the foster parents could cause the child to suffer short- and long-term physical and emotional effects.
The tribe, through its attorney, Dana Hanna, of Rapid City, claimed it had insufficient notice of the pediatrician’s testimony and argued that the bond between a child and foster parents was not an appropriate factor to consider in a transfer motion.
Judge Brown excluded the pediatrician’s testimony and in March 2018 ordered the case’s transfer to tribal court.
Stalley, the lawyer for the child, appealed Brown’s transfer ruling to the state Supreme Court. The Supreme Court froze the transfer order and considered briefs from each side before issuing its opinion.
“Here, Dr. Whitney was Child’s pediatrician and had been for most of her young life,” the Supreme Court’s opinion said. “His testimony concerning the impact of the transfer upon Child may well have yielded relevant and admissible evidence.”
Contact Seth Tupper at firstname.lastname@example.org