CHAPTER 139
(HB 1226)
Child custody proceedings to comply with Indian Child Welfare 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:
Section
1.
That
§
26-7A-15
be amended to read as follows:
26-7A-15.
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
hearing.
If the temporary custody hearing concerns an apparent abused or neglected Indian child,
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
U.S.C.
§
1903, as amended to January 1, 2005.
Section
2.
That chapter
26-7A
be amended by adding thereto a NEW SECTION to read as
follows:
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 and
to the area director for the Bureau of Indian Affairs in like manner, who have 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, if known, of the Indian child;
(b) A copy of the petition unless the notice is served by publication pursuant to
26-7A-48;
(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) If the petition alleges the child to be an abused or neglected child, a statement
that the termination of parental or custodial rights is a possible remedy under the
proceedings;
(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.
Section
3.
That
§
26-7A-55
be amended to read as follows:
26-7A-55.
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.
Section
4.
The form of the notice provided for in section 2 of this Act is as follows:
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STATE OF SOUTH DAKOTA )
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IN CIRCUIT COURT
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COUNTY OF ______________)
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_____JUDICIAL CIRCUIT
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THE PEOPLE OF THE STATE OF )
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Juv. No.___________
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SOUTH DAKOTA IN THE INTEREST )
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OF____________________________, )
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NOTICE TO PARENT, CUSTODIAN,
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MINOR CHILD(REN), AND )
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OR INDIAN TRIBE OF CHILD CUSTODY
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CONCERNING __________________, )
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PROCEEDINGS (ICWA)
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________________________________, )
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RESPONDENTS. )
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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.
§ 1901, 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
custodians:
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 ____.
_________________________________
State's Attorney
Signed March 7, 2005