Oglala Sioux Tribe et al v. Van Hunnik et al

Filing 304

PERMANENT INJUNCTION as to Defendants Lisa Fleming, Mark Vargo and Lynne A. Valenti, in their official capacities. Signed by Chief Judge Jeffrey L. Viken on 12/15/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD
SIOUX TRIBE, as parens patriae, to
protect the rights of their tribal
members; MADONNA PAPPAN, and
LISA YOUNG, individually and on behalf
of all other persons similarly situated,

CIV. 13-5020-JLV

PERMANENT INJUNCTION

Plaintiffs,
vs.
LISA FLEMING; MARK VARGO;
HONORABLE CRAIG PFEIFLE; and
LYNNE A. VALENTI, in their official
capacities,
Defendants.

Incorporating the order of March 30, 2015 (Docket 150), the order of
February 19, 2016 (Docket 217), the orders of December 15, 2016 (Dockets 301
and 302), and the declaratory judgment of December 15, 2016 (Docket 303), for
good cause shown and pursuant to the court's inherent equitable authority, it is
ORDERED that defendants Lisa Fleming, Mark Vargo and Lynne A.
Valenti, in their official capacities, are hereby immediately and permanently
restrained and enjoined from engaging in the following activities:
1.

Violating the constitutional rights of the plaintiffs1 guaranteed
by the Due Process Clause of the Fourteenth Amendment;

1"Plaintiffs" include the class members certified by the court's order of
January 28, 2014. (Docket 70 at pp. 14-15).

2.

Violating the statutory rights of the plaintiffs guaranteed by the
Indian Child Welfare Act ("ICWA"), 25 U. S.C. § 1901 et seq., and
particularly those rights guaranteed by 25 U. S. C. § 1922; and

3.

Violating the constitutional and statutory rights of the plaintiffs
as set out in the Declaratory Judgment entered on December
15, 2016, (Docket 303) and restated herein pursuant to Fed. R.
Civ. P. 65(d)(l((C).

IT IS FURTHER ORDERED that defendants Lisa Fleming and Lynne A.
Valenti, in their official capacities, are immediately and permanently required to
comply with the following in all 48-hour hearings2 involving Indian children3,
parents, custodians and tribes and in all subsequent emergency proceedings:4

2SDCL § 26-7 A-14 directs "no child may be held in temporary custody
longer than forty-eight hours . . . excluding Saturdays, Sundays, and court
holidays, unless a . . . petition has been filed . . . and the court orders longer
custody during a noticed hearing . . . . " These proceedings are commonly
referred to as a "48-hour hearing."
3All references to "child(ren)," "parent(s),'' and "custodian(s)" will mean
Indians as that term is defined by 25 U. S. C. § 1903(3).
4"Emergency proceeding means and includes any court action that
involves an emergency removal or emergency placement of an Indian child. "
25 CFR § 23. 2 (December 12, 2016). "These proceedings are distinct from other
types of 'child-custody proceedings' under [ICWA]. " Executive Summary to the
Department of the Interior's regulations implementing ICWA, 81 Fed. Reg.
38778-38876, 38793 (June 14, 2016).

2

1.

The ICWA affidavit must state with sufficient detail the facts5
which justify the emergency removal of a child from its parent
or custodian and the facts which warrant the continued
separation of a child from its parent or custodian to "prevent
imminent physical damage or harm to the child;"6

2.

To use active efforts7 to reunite the family; and

3.

In the event a temporary custody order is entered at the
conclusion of a 48-hour hearing, the South Dakota Department
of Social Services shall immediately report to the State court
that the justification for the temporary custody order has ended
because returning the child to its parent or custodian will not
place the child at imminent risk of physical damage or harm.

IT IS FURTHER ORDERED that defendant Mark Vargo, in his official
capacity, is immediately and permanently required to comply with the following
in all 48-hour hearings involving Indian children, parents, custodians and
tribes, and in all subsequent emergency proceedings:

sAt this point these are only "alleged facts" until proven during a 48-hour
hearing but will be referred to as "facts" unless otherwise indicated.
625 U. S. C. § 1922. "[Section] 1922 does not permit consideration of
'emotional damage or harm' in § 1922 emergency proceedings under 25 CFR part
23. " (Docket 301 at p. 7).
7"Any party seeking to effect a foster care placement of .. . an Indian child
under State law shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved unsuccessful."
25 U. S. C. § 1912(d). See also 23 CFR § 23. 2 (December 12, 2016) which defines
"active efforts. "
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1
.

The ICWA affidavit must state with sufficient detail the facts
which justify the emergency removal of a child from its parent
or custodian and the facts which warrant the continued
separation of a child from its parent or custodian to prevent
imminent physical damage or harm to the child;

2.

The petition for temporary custody ("petition") must:
a. state what documents, if any, are incorporated by
reference and copies of all incorporated documents8
must be attached to the petition;
b. describe that the purpose of the petition is to seek
continued temporary custody of a child with the South
Dakota Department of Social Services ("DSS");
c. advise that the State has the burden to prove by a
preponderance of the evidence that continued removal
is necessary to prevent imminent physical damage or
harm to the child;
d. advise the parent or custodian of the possible
immediate and ultimate consequences of the
proceeding;

81f the incorporated document is a police report subject to the provisions of
SDCL § 26-7A-29, the States Attorney or his designated deputy must file a
written motion or make an oral motion to the court permitting the disclosure of
the police report to the Indian parent or custodian and their attorney.

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e. advise the parent or custodian of the right to request
that the state proceedings be transferred to tribal
court; 9
f.

advise that if the parent or custodian is indigent, the
court will appoint counsel and will grant a continuance,
not to exceed 24 hours, to enable counsel to become
familiar with the facts of the case and confer with the
parent or custodian; 10 and

g. state that the parent or custodian and their attorney
have the following rights at the 48-hour hearing:
1.

to contest the allegations in the petition;

2.

to require the State to present evidence in
support of the petition;

3.

to cross-examine the State's witnesses and the
preparers of any documents presented to the
court; and

4.
3.

to subpoena witnesses and present testimony.

The parent or custodian and tribe must be given a copy of the
ICWA affidavit and the petition at the earliest practical time

9As required by 25 U. S. C. § 1911(b).
10"In any case in which the court determines indigency, the parent or
Indian custodian shall have the right to court-appointed counsel in any removal,
placement, or termination proceeding." 25 U.S. C. § 1912(b).
5

but in no event later than the commencement of the 48-hour
hearing;
4.

The parents, custodians and tribes have the right to subpoena
witnesses and must be permitted to present sworn testimony
and other evidence during a 48-hour hearing;

5.

The parents, custodians and tribes have the right to subpoena
any person who provided information in support of or in
contradiction to the ICWA affidavit or petition;

6.

The parents, custodians and tribes have the right to cross­
examine witnesses including the DSS child protection services
staff member who signed the ICWA affidavit as well as all other
witnesses whose statements form the factual basis for any
document submitted to the court for consideration during the
48-hour hearing;

7.

If indigent, parents and custodians have the right to the
assistance of court-appointed counsel;

8.

If counsel is requested, but not immediately available, or if
counsel is appointed, counsel may request the 48-hour
hearing be continued for a period of time not to exceed 24
hours, to permit the parent, custodian and tribe and counsel
to prepare for the hearing;

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9.

The decision of the State court must be based solely on
testimony and evidence presented during the 48-hour
hearing;

10.

The States Attorney's presentation must include testimony
showing the active efforts of DSS to reunify the family
following the emergency removal or placement;

11.

The decision of the State court must be articulated on the
record and include specific findings as to whether DSS
engaged in active efforts to reunify the family and any reason
authorized by § 1 922 that continued placement with DSS is
necessary to prevent imminent physical damage or harm to
the child;

12.

At the conclusion of a 48-hour hearing, a child must be
restored to the custody of its parent or custodian unless the
State proved by a preponderance of the evidence that
continued custody with DSS is necessary to prevent imminent
physical damage or harm to the child;

13.

In the event a temporary custody order is entered at the
conclusion of a 48-hour hearing, DSS shall immediately
report to the State court that the justification for the
temporary custody order has ended because returning the

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child to its parent or custodian will not place the child at
imminent risk of physical damage or harm; and
1 4.

In the event a temporary custody order is entered at the
conclusion of a 48-hour hearing, the State court shall
immediately return the child to its parent or custodian as
soon as justification for the temporary custody order has
ended because returning the child will not place the child at
imminent risk of physical damage or harm.

IT IS FURTHER ORDERED that this permanent injunction is binding upon
defendants' officers, agents, employees, attorneys and upon those persons in
active concert or participation with them who receive actual notice of this order.
IT IS FURTHER ORDERED that the court retains jurisdiction for the
purpose of enforcing and modifying this permanent injunction and for the
purpose of granting additional relief as may be necessary and appropriate.
Dated December 15, 2016.

BY THE COURT:

CHIE

GE

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