| (Cite
as: 614 N.W.2d 383, 2000 SD 94)
Supreme
Court of South Dakota.
In
the Matter of A.S., Alleged Abused/Neglected Child.
No.
21349.
Considered on Briefs July
13, 2000.
Decided
July 19, 2000.
*384
Mark W. Barnett, Attorney General, Joan P. Baker, Assistant Attorney General,
Pierre, South Dakota, Attorneys for appellee State of South Dakota.
Nichole A. Carper, Minnehaha
County Public Defender, Sioux Falls, South Dakota, Attorney for appellant
Mother.
PER CURIAM.
**1
Mother appeals the trial court order terminating her parental rights to
two and one-half-year-old daughter, A.S. We affirm.
FACTS AND PROCEDURE
**2
On February 6, 1997, Mother and Father were involved in the commission
of a robbery in Sioux Falls. Four-month old son, C.S., was waiting with
Mother in their vehicle while the crime was being committed. He was dressed
in
a soiled t-shirt and diaper, both of which were too small for him. Upon
his parents' arrest, he was taken to Children's Inn and subsequently placed
in his paternal grandparents' custody in Minnesota.
**3
In April 1997, Father began serving a twenty-year sentence at the state
penitentiary in Sioux Falls for robbery in the first degree. Charges of
commission of a felony while armed and habitual offender were dismissed.
In July 1997, Mother began serving a four-year sentence in the Springfield
women's prison for accessory after the fact; a robbery charge was dismissed.
Daughter A.S. was born October 1, 1997 while Mother was in prison. From
her birth until April 1998, A.S.'s paternal grandparents cared for her
and C.S.
**4
Mother was released on parole in March 1998 and cared for A.S. from April
to August 1998. In June 1998, her parole officer made a referral to the
Department of Social Services (DSS) based on conditions she observed in
the home. Both children were then living with Mother in a one-bedroom
garage that had been converted into an apartment. Four other adults and
one child lived with them. The parole officer noted the home was infested
with flies and that flies were observed in open food and an open can of
baby formula. The home was "absolutely filthy" with windows
boarded shut and no ventilation within. The report indicated A.S. had
a very flat affect, showing no emotion or reaction to anything and also
noted Mother's history of drug and alcohol use. DSS noted that Mother
was on a waiting list for housing and wrote to the parole officer
indicating its determination, after review of the referral, that no cause
for further investigation had been established.
**5
By August, the paternal grandparents had separated. Grandfather moved
to California and Mother allowed C.S. to accompany him. On August 31,
1998, Mother was stopped at 3:30 a.m. driving a stolen vehicle in Sioux
Falls. A.S. was in the vehicle with her. Mother claimed she *385
was unaware the vehicle was stolen and gave false identification to the
officer. She was brought into custody on the impersonation charge and
returned to prison on the parole violation, this time housed in the women's
prison in Pierre. A.S. was placed in emergency foster care as no family
member was available to care for her. Mother stipulated that A.S. was
a neglected child due to her incarceration. Foster placement continued.
**6
Mother was denied parole in June 1999. She was parole eligible in February
2000 but the record does not indicate whether she was successful in this
bid for parole. She is scheduled for release June 18, 2001. Father's first
parole date is February 6, 2007.
**7
A.S. was ten months old when placed in foster care and, at the date of
the dispositional hearing, had been in foster care for fourteen months.
DSS workers took A.S. from her foster home in the Sioux Falls area to
visit her Mother in prison in Pierre seven times. DSS workers noted that
Mother played well with A.S. but did not talk much to her. A.S. did not
seem to
recognize her Mother.
**8
A dispositional hearing was held October 22, 1999. At that time, A.S.
was two years old. The trial court found neither parent presently able
to care for the child and that there was little likelihood these deficiencies
would be remedied in the near future. The court terminated parental rights
of Mother and Father to A.S. Mother appeals, raising four issues that
are consolidated into two for purposes of our discussion.
ANALYSIS AND DECISION
**9
1.
Whether the
trial court erred in ruling that ICWA did not apply and further erred
in not granting Mother's request for delay of the proceedings.
**10
Mother claims the trial court erred in concluding the Indian Child Welfare
Act (ICWA) did not apply in this case. A.S. is of Native American and
Asian descent. ICWA applies to termination proceedings where the Indian
child is "any unmarried person who is under age eighteen and is either
(a) a member of an Indian Tribe or (b) [ ] eligible for membership in
an Indian Tribe and is the biological child of a member of an Indian Tribe."
25 U.S.C. § 1903(1)(ii) and (4); In
re M.C., 504
N.W.2d 598, 600 (S.D.1993).
**11
The record shows A.S. is not an enrolled member of the tribe. Mother testified
she believes she herself may be enrolled because she received funding
from the tribe at one time. This is not evidence of enrollment. There
was no evidence of enrollment forthcoming from the tribe and no additional
evidence of
enrollment was produced. The trial court found A.S. was not enrolled or
eligible for enrollment and concluded that ICWA did not apply to these
proceedings
**12
Before a trial court applies the higher standard of proof required under
ICWA, "some evidence must show that the child is an Indian and that
[ ] ICWA applies. [ ] 'ICWA requires an initial determination by the trial
court that the children are Indian children.' " In
re B.R.B.,
381 N.W.2d 283, 284 (S.D.1986)(quoting In
re K.A.B.E.,
325 N.W.2d 840, 842 (S.D.1982)). In B.R.B.,
the evidence was unclear whether Mother and child were enrolled tribal
members or eligible for enrollment in the Cheyenne River Sioux Tribe.
The tribe had declined jurisdiction without indicating eligibility or
enrollment status of Mother or child. We held the trial court did not
err in not applying ICWA. Id.
**13
"It is incumbent upon the party asserting applicability of ICWA to
prove the child meets the criteria under ICWA." In
re J.D.B.,
584 N.W.2d 577, 582 (Iowa Ct.App.1998); In
re A.M., 235
Neb. 506, 455 N.W.2d 572, 573 (1990). In the present case, Mother failed
to come forward with such proof and the evidence supports the trial court's
finding that A.S. *386
is not an "Indian child" as defined under 25 U.S.C. § 1903(4).
The court did not err in not applying ICWA.
**14
As a separate issue, Mother claims the trial erred in denying
her request for a delay to allow the tribe additional time to become involved.
We hold that ICWA does not apply to these proceedings, therefore, there
was no requirement the court delay them to give the tribe more time to
act. However, the relevant facts involving notice to the tribe are set
forth below.
**15
A.S. was taken into DSS custody August 31, 1998. DSS contacted the Oglala
Sioux Tribe on September 15, 1998, September 18, 1998, May 20, 1999 and
September 23, 1999 regarding her custody and the tribe's involvement with
this case. DSS received no response despite the fact that its letters
and notices of hearings were sent certified and signed receipts were returned
by the tribe. DSS made telephone contact with the tribe September 17,
1999 and was informed the tribe would make a motion to intervene or accept
jurisdiction. At that time, DSS informed the tribe it would recommend
termination of parental rights as Mother was not granted parole in June.
DSS sent the tribe copies of court documents to date and informed the
tribe of the scheduled dispositional hearing.
**16
DSS made telephone contact again October 20, 1999, two days before the
dispositional hearing, and was informed the tribe would not be involved.
However, at the hearing, Mother's attorney informed the court that A.S.'s
attorney had been in contact with the tribal attorney who indicated he
would fax "some sort of paperwork" to the court the day before
the hearing to accept jurisdiction
or "at the very least" intervene. The trial court noted, at
ten minutes into the dispositional hearing, the tribe had done neither
and that nothing had been received by the court.
**17
As noted, ICWA does not apply in this case. Even so, the facts show that
the tribe received sufficient notice under the Act, 25 U.S.C. § 1912(a).
The trial court did not err in declining to grant a continuance in these
proceedings.
**18
2. Whether the
trial court erred in finding that termination was the least restrictive
alternative and in the best interests of A.S.
**19
Parental rights may be terminated if it is in the best interests of the
child and is also the least restrictive alternative available. SDCL 26-8A-26.
The best interests of the child are viewed from the child's, not the parents',
perspective. In
re E.D.J.,
499 N.W.2d 130, 135 (S.D.1993). Our standard of review is "whether
the trial court's ultimate finding--that clear and convincing evidence
indicated termination was the least restrictive alternative commensurate
with the child's best interests--was clearly erroneous." In
re J.Y., 502
N.W.2d 860, 862 (S.D.1993); In
re A.H., 421
N.W.2d 71 (S.D.1988)
**20
At the time of the dispositional hearing, A.S. was two years old. She
had lived with Mother only four months of her life, from age six months
to ten months. Every other month, weather and schedule dependent, for
a
total of seven visits, the DSS worker drove A.S. the four hours to visit
with Mother in prison for one and one-half to two hours. DSS testified
that there was no discernable bond between the two during these visits
and that A.S. reacted to Mother as she would a stranger. Mother was able
to engage A.S. in play, but initiated minimal verbal contact with her
daughter. The foster mother reported A.S. is cheerful and easy to care
for. DSS testified that A.S. had formed a significant attachment with
her foster mother, but this family was not available as an adoptive placement.
**21
"When it comes to something as important as the welfare of young
children, promises of the parents to conform to the *387
standard of care for their children which is expected in our society do
not carry as much weight as their past actions of not properly caring
for the children.' " E.D.J.,
499 N.W.2d at 137 (quoting In
re J.M.V.D.,
285 N.W.2d 853, 855 (S.D.1979)). Mother had an opportunity to parent A.S.
when she was released on parole in March 1998. Within a few short months,
she violated the rules of her release, putting her child's welfare in
jeopardy and leaving her once again without a parent. The referral to
DSS by her parole officer included in the record shows she also put her
children at risk in their home environment, although DSS concluded the
conditions did not warrant investigation.
**22
Mother urged the trial court to consider her next parole eligibility date,
however, the court chose not to speculate on her chances for parole and
looked
instead to the June 18, 2001 date when Mother is scheduled for release
from prison. DSS testimony indicated that even after Mother's release,
A.S. should not be returned to her until, at a minimum, she had secured
adequate housing and had a successful transitional visitation period.
**23
Parents' incarceration limits DSS in its attempts to rehabilitate the
family. In re
T.H., 396 N.W.2d
145, 151 (S.D.1986). DSS determined Father was not a placement resource
for A.S. as he was serving a twenty-year sentence and had been incarcerated
since before A.S.'s birth. Mother's transfer to prison in Pierre limited
visits with her child and many were postponed and rescheduled due to inclement
weather and the DSS worker's schedule. She was encouraged to complete
parenting classes while in prison and did so. However, when she was not
granted parole in June 1999, DSS concluded it would recommend termination
so a permanent home could be located for A.S.
**24
Mother's own testimony shows her to be a model prisoner (no one from the
prison testified on this subject). However, the facts remain that the
trial court had to assume that A.S. would be without her Mother until
June 2001 and some time thereafter while Mother found housing and continued
visitation. The trial court determined that was too long for A.S. to be
kept waiting for a permanent home and stability. We have previously noted:
Children
are not static objects. They grow and develop, and their proper growth
and development require more than day-to-day satisfaction of their physical
needs. Their growth and development also require day-to-day satisfaction
of their emotional needs, and a primary emotional need is for permanence
and stability.... A child's need for permanence and stability, like his
or her other needs, cannot be postponed. It must be provided early.
In re Baby Boy
K, 1996 SD
33, ¶ 43, 546 N.W.2d 86, 97 (citation omitted).
**25
The court did not err in refusing to make A.S. wait another year and eight
months after the dispositional hearing until Mother's release from prison
and then wait another indefinite period of time in hopes that Mother would
become a suitable placement for her daughter. Termination of Mother's
parental rights so that A.S. could be placed in a permanent home now was
the least restrictive alternative and in the best interests of the child.
**26
Affirmed.
**27
MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON,
Justices, participating.
614 N.W.2d 383, 2000
SD 94
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