State of South Dakota
This bill has been extensively amended (hoghoused) and may no longer be consistent
with the original intention of the sponsor.
Representatives Bradford, Hargens, Valandra, and Van Norman and Senators
Moore, Adelstein, Kooistra, and Olson (Ed)
FOR AN ACT ENTITLED, An Act to
establish certain notice provisions related to the custody
and placement of Indian children.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
be amended to read as follows:
The officer or party who takes a child into temporary custody, with or without
a court order, except under a court order issued during a noticed hearing after an action has been
commenced, shall immediately, without unnecessary delay in keeping with the circumstances,
inform the child's parents, guardian, or custodian of the temporary custody and of the right to
a prompt hearing by the court to determine whether temporary custody should be continued. If
the child's parents, guardian, or custodian cannot be located after reasonable inquiry, the officer
or party taking temporary custody of the child shall report that fact and the circumstances
immediately to the state's attorney. The state's attorney shall notify the child's parents, guardian,
or custodian, without unnecessary delay, of the time, date, and place of the temporary custody
If the temporary custody hearing concerns an apparent abused or neglected Indian child
or an apparent Indian child in need of supervision pursuant to
26-8B-3, the state's attorney or
Department of Social Services shall make reasonable efforts to inform the Indian custodian and
Indian child's tribe, if known, of the time, date, and place of the temporary custody hearing. The
information regarding the temporary custody hearing may be provided to the Indian custodian
or Indian child's tribe orally or in writing, including by telephone or facsimile.
The hearing shall
be held within forty-eight hours if it concerns any apparent abused or neglected child or if it
concerns any apparent delinquent child pursuant to 26-8C-3 or within twenty-four hours if it
concerns any apparent child in need of supervision pursuant to § 26-8B-3, excluding Saturdays,
Sundays, and court holidays, after taking the child into temporary custody, unless extended by
order of the court. Failure to notify the child's parents, guardian, or custodian
, or to inform the
Indian custodian or the Indian child's tribe,
of the temporary custody hearing is not cause for
delay of the hearing if the child is represented by an attorney at the hearing.
As used in this
section, the terms, Indian child, Indian custodian, and Indian child's tribe, are defined as in 25
1903, as amended to January 1, 2005.
be amended by adding thereto a NEW SECTION to read as
In any proceeding under chapters 26-7A, 26-8A, or 26-8B, to which the terms of the "Indian
Child Welfare Act", 25 U.S.C. sec. 1901, et seq., as amended to January 1, 2005, apply:
(1) If the state's attorney knows or has reason to know that an Indian child is involved,
the state's attorney shall notify the parent or Indian custodian and the Indian child's
tribe, if known, of the pending proceedings and of their right of intervention. The
notice shall be sent by registered mail with return receipt requested but may be
personally served on any person entitled herein to receive notice in lieu of mail
service. If the identity or location of the parent or Indian custodian and the Indian
child's tribe cannot be determined, the notice shall be given to the United States
Secretary of the Interior in like manner, who has fifteen days after receipt to provide
the requisite notice to the parent or Indian custodian and the tribe;
(2) The state's attorney shall provide such notice prior to any adjudicatory hearing and
prior to any final dispositional hearing in which the state seeks termination of
parental rights of one or both parents or termination of the rights of the Indian
custodian. However, upon intervention, the parent, tribe, or Indian custodian is
entitled to notice in the manner authorized by the Rules of Civil Procedure and
chapters 26-7A and 26-8A;
(3) The court shall establish in the record that a notice of the proceeding was provided
as required in this section. No foster care placement or termination of parental rights
proceedings may be held until at least ten days after receipt of the foregoing notice
by the parent or Indian custodian and the tribe or the Secretary. The parent or Indian
custodian or the tribe shall, upon request, be granted up to twenty additional days to
prepare for the proceeding;
(4) The notice required in this section shall be written in clear and understandable
language and shall include the following:
(a) The name and tribal affiliation of the Indian child;
(b) A copy of the petition unless the notice is served by publication pursuant to
(c) The name and address of the state's attorney;
(d) A statement listing the rights of the Indian child's parents, Indian custodians,
and tribes, under the Indian Child Welfare Act, 25 U.S.C.
1901, et. seq., as
amended to January 1, 2005, including:
(i) The right of a Indian custodian or the Indian child's tribe to intervene
in a proceeding for the foster care placement of, or termination of
parental rights to, the Indian child;
(ii) The right to file a motion to transfer the proceeding to the tribal court
of the Indian child's tribe;
(iii) The right to be granted up to twenty days from the receipt of the notice
to prepare for the proceeding; and
(iv) The right to request that the court grant further extensions of time;
(e) A statement of the potential legal consequences of an adjudication on future
custodial rights of the Indian child's parents or Indian custodians;
(f) A statement that if the Indian child's parents or Indian custodian are unable to
afford counsel, counsel may be appointed to represent them;
(g) A statement in the notice to the tribe that the information contained in the
notice, petition, pleading, or other documents are confidential; and
(h) The location, mailing address and telephone number of the court.
The original or a copy of each notice sent pursuant to this section shall be filed with
the court together with any return receipts or other proof of service;
(5) Each party may examine all reports or other documents filed with the court upon
which any decision with respect to such action may be based.
As used in this section, the terms, Indian, Indian child, parent, Indian custodian, tribe, Indian
child's tribe, foster care placement, termination of parental rights, and secretary, are defined as
in 25 U.S.C. § 1903, as amended to January 1, 2005.
be amended to read as follows:
If all necessary parties admit the allegations contained in the petition and the
court accepts the admissions, the court may find, conclude and make a decision as to
adjudication of the child under the applicable provisions of chapter 26-8A, 26-8B, or 26-8C.
The court may then proceed with the dispositional phase of the proceedings without conducting
a formal adjudicatory hearing on the petition with the concurrence of all parties. However, at
the request of any party or if required by the court, the court shall set a later time and date for
the dispositional hearing. The court shall then determine interim dispositional arrangements
concerning the child and the parties.
If the petition is not admitted by all necessary parties, including the child, if appropriate, or
if the petition is denied by any necessary party or the child, if appropriate, the court shall
proceed with the adjudicatory hearing on the petition
, if notice has been given as required by
section 2 of this Act, if applicable,
or schedule the adjudicatory hearing for a later time and date.
If the advisory hearing is adjourned and continued or if the advisory hearing is completed
and the adjudicatory hearing on the petition is scheduled for a later time and date, the court shall
make an interim order regarding temporary custody of the child as determined by the court.
The form of the notice provided for in section 2 of this Act is as follows:
STATE OF SOUTH DAKOTA )
IN CIRCUIT COURT
COUNTY OF ______________)
THE PEOPLE OF THE STATE OF )
SOUTH DAKOTA IN THE INTEREST )
NOTICE TO PARENT, CUSTODIAN,
MINOR CHILD(REN), AND )
OR INDIAN TRIBE OF CHILD CUSTODY
CONCERNING __________________, )
TO: [Name and Address of the Parent /Custodian/Tribe]:
PLEASE TAKE NOTICE that, pursuant to the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1912, et. seq.), a child custody proceeding is now pending in the above-named court. The
child(ren) who (is/are) the subject of this proceeding (is/are) believed to be (an) "Indian
child(ren)" (as defined in 25 U.S.C. § 1903(4)) affiliated with the _________ Tribe.
A HEARING HAS BEEN SCHEDULED FOR _____ [date] AT _____ [time] (a.m./p.m.)
(CST/MST) IN THE COURTROOM OF THE _____ COUNTY COURTHOUSE, _____,
SOUTH DAKOTA. A copy of the Petition by which this proceeding was initiated is attached.
You are further notified that:
1. The following information is known regarding the parents, grandparents and Indian
a. The names and last known addresses of the parents, grandparents and great
grandparents or Indian custodians are as follows:
b. Any maiden, married and former names and aliases are as follows:
c. Birthdates and places of birth and death are as follows:
d. Tribal enrollment number(s):
2. You, as the parent(s) or Indian custodian, and the child(ren)'s tribe, may have a right
to intervene in these proceedings.
3. If you, as the parent(s) or Indian custodian, are unable to afford an attorney, an
attorney may be appointed to represent you. If you desire a court-appointed attorney,
you should contact the court using the information provided in paragraph 7 below.
4. You may have the right, as the parent(s), Indian custodian, or Indian tribe, to have,
upon request, 20 additional days to prepare for the hearing. If you desire additional
time to prepare for the hearing, you should contact the court using the information
provided in paragraph 7 below.
5. You may have the right, as (a) parent(s), Indian custodian, or Indian tribe, to petition
this Court for transfer of the proceeding to tribal court.
6. The Petitioner in this action is the State of South Dakota, and the name and address
of the attorney for the Petitioner is: _____, State's Attorney for _____ County,
_____, South Dakota.
7. The Court's phone number is _____. The Court's mailing address is _____. Please
report to the Court or to the State all information you have as to the status of the
above-named child(ren), including the eligibility/membership of the child(ren) or the
parent(s) in any Indian tribe.
8. If you are the child(ren)'s parent, it is possible that your parental rights will be
terminated in this proceeding. If your parental rights are terminated in this
proceeding, you will no longer be able to exercise parental, custodial or any other
rights with regard to the child(ren).
9. Since custody proceedings are conducted on a confidential basis, you are requested
to keep confidential all information contained in this Notice.
Dated this _____ day of _____, 20 ____.