you don’t have to hold the hearing until you hold the hearing

There’s a great bit of news out of South Dakota: tribes and parents have won a federal Indian Child Welfare Act (ICWA) case against the state, based on a South Dakota court’s persistent practice of delaying a meaningful hearing after an Indian child is removed from the home.

The key provision of ICWA at play is 25 U.S.C. § 1922, which deals with “emergency removal” of an off-reservation Indian child from her home by the state:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved 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 and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, 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.

The statute does not say what “expeditiously” means. Child welfare practices vary widely from state to state. Some states have a very short hearing within no more than a day or two of removal, followed by a much more leisurely timeline before there is a full hearing at which parents (and, in the case of Indian children, the tribe) can be heard. Other states have a full hearing within a few days, or a week.

In the particular South Dakota circuit (the Seventh) whose officers were sued, the presiding judge used the former procedure:

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.

The 48-hour hearings were not just brisk — they frequently failed to give parents any substantial notice of the reasons the child was removed; nor did they give parents or the tribe any opportunity to make a meaningful argument:

In a number of transcripts [of 48-hour hearings] there are specific exchanges with a judge in which an Indian parent asked about the allegations against them or why their children were removed . . . . In none of these hearings did a Deputy States Attorney, DSS representative or the judge contradict the statements of the Indian parents or counsel or recess the proceedings to allow the parties to receive and review the ICWA affidavit and petition for temporary custody . . . .

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 . . . .

Judge Davis does not conduct any inquiry during the 48-hour hearings to determine whether emergency removal remains necessary. He permits no testimony by the Indian parents or presentation of testimony by the tribal attorney to determine whether the risk of imminent physical harm has passed.

Even so, at the end of every hearing the court managed to make factual findings and determine that other alternatives were hopeless.

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).” This language appears in the standardized temporary custody order used by all the Seventh Circuit judges when removing Indian children from their parents.

The majority of children were separated from their families, with no meaningful due process, for weeks or months at a time.

Eight hundred twenty-three Indian children were involved in 48-hour hearings in Pennington County, South Dakota, during the years 2010 to 2013. Of those 823 Indian children

  • 87 children were discharged from DSS custody the day of the 48-Hour hearing;
  • 268 children were discharged from DSS custody within 1-15 days after the 48-hour hearing;
  • 114 children were discharged from DSS custody within 16-30 days after the 48-hour hearing;
  • 44 children were discharged from DSS custody within 31-45 days after the 48-hour hearing;
  • 50 children were discharged from DSS custody within 46-60 days after the 48-hour hearing; and
  • 260 children remained in DSS court-ordered custody for more than 60 days after the 48-hour hearing . . . .

So if the 48-hour hearing probably can’t be considered an expeditious child custody hearing, and state custody of the child in the majority of cases seems to be for considerably longer than the minimum necessary to get the child out of imminent physical danger, then what is going on here?

The state officials argued, with admirable, Mad Hatter-like simplicity, that § 1922 just isn’t triggered until a child custody proceeding is held. Including the provision that requires them to expeditiously hold a child custody proceeding.

The federal court did not buy that argument. The court cited Department of Interior guidelines requiring judges 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.” The court also noted that the Seventh Circuit judges’ practice of holding only a brief hearing and routinely adopting the findings of the state Department of Social Services was essentially an “abdication of judicial authority” and was “contrary to the protections guaranteed Indian parents, children and tribes under ICWA.”

Interestingly, the Seventh Circuit judges’ procedures in child welfare cases were so deficient that the federal court also found for the plaintiffs on a due process claim, because parents did not have counsel during the 48-hour hearing, they were not given time to review the allegations against them, and they were not permitted to testify on their own behalf.

A very good decision, IMO.


In other good news for people studying/practicing Indian law, the Indian law issue of Federal Lawyer has the ultimate cheat sheet: a list of every Supreme Court Indian law case of the last 40 years, compiled and annotated by Lawrence Baca. There are things to quibble with in Baca’s descriptions — I’m not sure, for example, that I agree that Hodel v. Irving, which invalidated a federal statute intended to deal with fractionated land interests, really “[f]avors Indian interests.” But it’s a wonderful thumbnail guide and a great thing to keep bookmarked.

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