Leading the fight against abuses of South Dakota's foster care system is the American Civil Liberties Union, which is helping the Oglala and Rosebud Sioux tribes fight state officials who have been removing children from American Indian homes without sufficient due process and in violation of the federal Indian Child Welfare Act.

The ACLU had to fight South Dakota judges to gain access to transcripts from initial custody hearings involving Oglala and Rosebud parents and children. ACLU attorney Stephen Pevar says the 120 transcripts they've been able to review so far show regular disregard for parental and child rights under ICWA:

Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.

During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit [Stephen Pevar, "Why Are These Indian Children Being Torn Away From Their Homes?" ACLU: Blog of Rights, 2014.07.23].

Department of Social Services data show that South Dakota Indian children are eleven times more likely to be taken from their parents and placed in foster care than non-Indian children.

In a motion for summary judgment filed July 11, the ACLU and plaintiffs contend that the defendants (Department of Social Services Secretary Kim Malsam-Rysdon, Department of Social Services employee LuAnn Van Hunnik, Pennington County State's Attorney Mark Vargo and 7th Judicial Circuit Court Presiding Judge Jeff Davis) have failed to dispute any material facts in the case, including the clear obligation imposed on the state by this clause in the Indian Child Welfare Act:

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 [ICWA, Section 1922, emphasis added in plaintiffs' motion for summary judgment, Oglala et al. v. Hunnik et al., 2014.07.11].

Pevar offers these examples from the 48-hour hearing transcripts of the state failing to terminate emergency removal or placement of Indian children when the threat of imminent harm has passed:

  • A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge's decision, the mother pleaded with the judge not to punish her for what the abuser had done.
  • A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
  • A mother lost custody of her daughter merely because the daughter's babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
  • A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father's custody [Pevar, 2014.07.23].

The plaintiffs had to get federal Judge Jeffrey Viken to order the release of the transcripts that support their case. Defendant Judge Davis had released some of those transcripts of his own accord but now is apparently trying to withhold additional information. In a motion to unseal filed Monday, the plaintiffs allege that Judge Davis is "concealing information prejudicial to his case" by asserting that a motion for sanctions filed by the plaintiffs should remain sealed because "it subjects the Defendant Judge Davis to unnecessary and unjustified embarrassment and public scandal." The plaintiffs find that justification for sealing a public document wanting:

The ground asserted by Judge Davis in support of keeping the Motion sealed is invalid in this context. Specifically, if subjecting a party to “unnecessary and unjustified embarrassment and public scandal” could justify the sealing of pleadings in federal litigation in the manner asserted here, every defendant in every civil case would have the power to seal each plaintiff’s complaint and other court filings.

...The sole ground tendered by Judge Davis for keeping Plaintiffs’ Motion for Sanctions sealed is invalid. This is a case of major public importance, involving the fundamental liberty interests and federal statutory rights of every Indian family with children in Pennington County, South Dakota. Judge Davis may not control the public’s access to documents filed in federal court merely to protect his sensibilities or his reputation [Plaintiff's Motion to Unseal, Oglala et al. v Hunnik et al., 2014.07.21].

This is a case of major public importance. A victory in this lawsuit would be a firm step toward addressing the systemic abuses of Indian family rights in South Dakota's foster care system revealed by NPR's Laura Sullivan and Amy Walters in 2011. That victory requires the persistence of the tribes and the continued conscientious service of the ACLU.

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John Hult tries to write a detailed report on investigations of abuse in South Dakota's foster care system. Writing such a report is hard, Hult notes, because South Dakota keeps such investigations secret.

But it's children! you say. We can't subject those children or their families to public scrutiny and shame. It might deter people from coming forward with reports of neglect and abuse.

Funny: Minnesota doesn't have that problem:

In Minnesota, that information would be available. In 2001, the state opened all abuse and neglect hearings and records after a two-year pilot project. The response has been positive, said Judy Nord, a lawyer with that state's Judicial Branch.

"We still have arguments in Minnesota about whether a child should have been placed in one home or the other. That hasn't stopped," she said. "The difference is that now, if something happens, you can go back through and find out what happened throughout the process."

Before the pilot project, opponents argued that opening records would lead to disclosure of the names of the children and families involved, that people would be less willing to report abuse for fear of the spotlight, and that parents would contest the allegations and press for a trial instead of admitting them in public.

Those concerns were unfounded, Nord said.

"The hearings are open, the records are open, and we haven't seen any problems," she said. "We still have people reporting abuse, we still have as many admissions as we did before opening the hearings."

Now, Nord said, relatives, teachers and others close to a child have started appearing at the hearings to offer help [John Hult, "Secrecy Cloaks Foster Care Investigations by S.D. Social Services," that Sioux Falls paper, 2014.05.04].

I suppose that saying we should learn from Minnesota's example is a sure way to get Pierre not to take the desired action.

Among the information Hult can find are the data on investigations and substantiated case of abuse and neglect in foster homes and other homes in South Dakota. The foster care numbers are small and thus statistically less reliable, but Hult's numbers show that the percentage of investigations revealing substantiated cases of abuse and neglect in foster homes over the last five fiscal years is about 7%, compared to 22% for other homes. From these numbers, one could draw a number of logical guesses:

  1. Foster homes are subject to more scrutiny and thus more reports of possible abuse, which subsequently turn out to be unsubstantiated.
  2. The state's vetting process for foster parents works, producing a subset of caregivers who commit less abuse than the general population of parents and guardians.
  3. Foster homes' substiantiation-to-investigation ratio is depressed by the fact that the state has an interest in protecting itself from liability that colors its initial investigations in a way that does not happen in investigations of non-foster homes.

As long as South Dakota keeps its investigations of foster homes secret, citizens will have a hard time determining which of those three interpretations is the most accurate.

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A Brown County jury convicted Fred Slota Wednesday of raping and having sexual contact with a seven-year-old girl in his care. It is the second time in two years that an Aberdeen foster father will go to prison for raping one of his own foster children.

Foster children have been raped by their foster fathers. And to some extent, it is our fault.

You and I and all South Dakotans are responsible for our state's foster children. We decide that their natural parents are failing to take care of them. We take those children from their natural homes. We take on the responsibility of placing those children in better homes. We create and fund a Department of Social Services and a foster care system to identify, recruit, license, monitor, and pay foster parents to take on the enormous burden of protecting, raising, and loving children who can be very hard to protect, raise, and love.

And in the case of Fred Slota, and in the case of Richard Mette, we have placed children in the care of rapists.

Human institutions fail. Background checks don't catch every scumbag. No matter how hard we try, bad people do bad things.

But we can't shrug at the rape of our children. Emphasize our. These victims are our children, South Dakota's children. We told these children, "These men will take care of you," handed them over, and then failed to save them from being raped.

Our Department of Social Services failed to weed out these predators. Our elected officials failed to provide the staff, the resources, or the rules that could have protected these children. And we, we, we have failed these children by not demanding an investigation of the failures of our foster care system and a serious effort to reform it.

The children in these foster homes have been scarred for life. We bear some blame. Will we shrug, or will we act?

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The Department of Social Services balked at obeying a court order in the state's failed prosecution of foster care whistleblowers Brandon Taliaferro and Shirley Schwab in late 2012–early 2013. Now some judges seem to be getting in the act.

The Rosebud and Oglala Sioux Tribes and three Lakota parents are suing state and local officials over alleged violations of the Indian Child Welfare Act in South Dakota's placement of American Indian children in foster care. U.S. District Judge Jeffrey Viken ruled that the plaintiffs are entitled to custody hearing transcripts to help make their case. Four South Dakota circuit court judges and one retired judge are refusing to order the release of those transcripts:

Presiding Seventh Circuit Judge Jeff Davis has signed the order authorizing transcripts of hearings he supervised. But the attorney representing the other judges has said his clients will not sign orders releasing transcripts of their hearings, according to the court documents.

On Monday, the plaintiffs' attorneys filed a motion asking Viken to compel the judges or Davis to sign the transcript orders. Davis has refused to sign the transcript orders for the other judges, including Thorstenson, who left the bench a year ago.

Viken responded to the motion to compel by ordering the defendants to respond to the motion by March 28. Viken also gave the judges the same deadline to explain their reasons for not signing the orders [Andrea Cook, "Circuit Judges Accused of Ignoring Federal Judge's Order in Suit over Native Children Custody Hearings," Rapid City Journal, 2014.03.19].

I know judges can awfully owly about being bossed around in their own courtrooms. But when a federal judge says, "Do this," a state judge with respect for the judicial system ought to say, "Yes, sir!" Either these five judges have some pretty solid privacy arguments to make on behalf of children, or they are running interference for the state Department of Social Services against American Indian plaintiffs trying to protect their children and their tribe abuses by the state.

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In January 2013, Judge Gene Paul Kean dismissed the state's flimsy case against of Shirley Schwab and Brandon Taliaferro for witness tampering and other charges. Last December, Judge Kean ordered the expungement five of the counts on which Taliaferro was arrested, noting with distaste the state's brazen disregard for court orders.

But Schwab says justice still hasn't been done. Schwab thus appears to be launching a whistleblowing campaign to challenge the state and raise money for legal costs. Her first public salvo is this video, summarizing her argument that the state has abused its power to shield a sexually abusive foster father and his silently complicit wife and protect itself from a lawsuit on behalf of abused Native American children:

To summarize Schwab's narrative:

The South Dakota Department of Social Services had evidence for over a decade that the five Native American children it placed in the home of Richard and Wendy Mette in Aberdeen. In 2001, DSS had the Mettes sign a contract requiring that they lock up pornographic materials in their home and refrain from touching the children. In 2007, DSS documented porn, physical beatings, and sexual touching the home. DSS left the children in the home.

Richard Mette was arrested in November 2010 and later indicted on multiple counts of physical and sexual abuse. Wendy Mette was indicted in March 2011 for child abuse.

On June 1, 2011, court-appointed guardian ad litem Scott Heidepriem reported that there was the potential for the Mettes' Native American foster children to pursue a civil claim against the state. The threat of such legal action, says Schwab, prompted the state to dismantle the team assembled to protect the children and sabotage its own case against the Mettes. Schwab alleges that the state executed and leaked search warrants against herself and Taliferro in order to cast doubt on the allegations against the Mettes. The state completely shielded itself from civil litigation by dropping all charges against Wendy Mette and returning the abused children to her legal guardianship.

Schwab says she and Taliaferro have incurred a quarter million dollars (and counting: the state is still fighting them) in legal costs. This video is part of her effort to raise money to cover past, present, and future litigation.

Update 2014.03.03 07:58 CST: Schwab offers documents to support her story and seeks donations to the "South Dakota Child Advocates Defense Fund" online at http://childadvocatesdefensefund.com.

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A South Dakota state law enforcement officer faces a protection order for harassing his ex-wife.

On February 13, 2014, Patricia Ann Black of Aberdeen asked the court to keep her ex-husband Mark Robert Black away from her.

Patricia Ann Black, petition for temporary protection order, TPO #14-010, 2014.02.13, clip from page 1

Patricia Ann Black, petition for temporary protection order, TPO #14-010, 2014.02.13, clip from page 1

Mark Black is an agent for the Division of Criminal Investigation based in Aberdeen. According to the petition, Agent Black showed a history of intimidating, violent behavior toward his wife until and after he filed for divorce in March 2013. The protection order petition says Agent Black routinely carries a concealed weapon off duty. The petition accuses Black of verbally and physically assaulting his wife, throwing and breaking things, punching holes in walls. After the divorce was finalized, Agent Black continued to harass Patricia, apparently using his law enforcement authority to enhance his threats:

Patricia Ann Black, petition for temporary protection order, TPO #14-010, 2014.02.13, clip from page 3

Patricia Ann Black, petition for temporary protection order, TPO #14-010, 2014.02.13, clip from page 3

Shortly after threatening to have Patricia arrested, Agent Black married another woman. According to the petition, the last five months have been a maudlin mix of the newly re-wed agent sending intimidating texts, pleading for forgiveness, and threatening to violate the divorce decree and subject Patricia to an IRS audit. In a handwritten letter dated October 23, 2013, Agent Black admits physically abusing his wife:

TPO14-010-p16-Mark Black letter clip p3

Mark Robert Black, letter to Patricia Ann Black, 2013.10.23, excerpt

This personal drama figures in the blog coverage because of Agent Black's participation in the state's failed prosecution of Brandon Taliaferro and Shirley Schwab. As discussed here last month, the state's effort to punish Taliaferro and Schwab for protecting Native American children suffering sexual abuse in foster care involved numerous abuses of power.

Agent Black mentions that trial in his October plea to his ex-wife:

I sit and think about the week I left. The Schwab trial was going horribly, the AG and Gorto wanted me gone over Laura's B.S. lies and most importantly we were falling apart. You pleaded w/me to talk to you and I kept pushing you away. That was without a doubt the worst week of my life [Mark Robert Black, letter to Patricia Ann Black, 2013.10.23, part of TPO #14-010, submitted to Fifth Circuit Court, Brown County, 2014.02.13].

It certainly was a bad week for Agent Black in court. He had led the investigation of Taliaferro and Schwab. He had conducted intimidating interrogations of the foster children the defendants had been trying to protect:

In a basement interrogation room in South Dakota, agents of the state’s Department [sic] of Criminal Investigation were on the firing line. A group of Native American children were claiming sexual and physical abuse by their white adoptive parents, whose home they first entered as foster children.

...Startlingly, the agents who summoned the children to the interrogation that day in November 2011 were working hard to get the youngsters to recant their abuse claims. State officials also brought charges against the deputy state’s attorney and a child welfare advocate, Brandon Taliaferro and Shirley Schwab, who moved to stop the abuse. Their trial on charges of getting the children to lie about the abuse is set for January 7, 2013.

That day, Sheriff’s deputies had taken the children out of school, court records show, and brought them to the basement room, with its table, chairs, one-way mirror, and recording equipment. One by one, the children faced Agent Mark Black of the Department [sic] of Criminal Investigations and a partner. The children were each alone, without an adult present on their behalf.

While being questioned by the agents, the children became fearful and wept, according to someone familiar with the case who asked not to be identified for fear of retribution. The youngsters were apparently not told they were being recorded. While left alone for a time, one explored the room, discovered the camera equipment behind a peephole, and began to cry [Stephanie Woodard, "Rough Justice in Indian Child Welfare," 100 Reporters, 2012.12.26].

The video of that interrogation also caught an unsympathetic and incautious Agent Black discussing intimidation tactics to be used against adult witnesses in this case:

One agent says the children “have been f—ing with us.” The men talk about questioning the therapist to whom the children described the sexual assaults. Agent Black says, “I guarantee we put [her] in here. Put the f—ing hot screws in her. Bitch you’re in f—ing deep shit. You better start talking.” Later Black says, “At least we f— with Brandon” [Woodard, 2012.12.26].

Judge Gene Paul Kean dismissed the case before the defendants had to call a single witness. Judge Kean expressed disgust with the state's shoddy police work and their blatant refusal to obey a court order.

Agent Black's treatment of his wife reflects the intimidation tactics Agent Black demonstrated in the Taliaferro-Schwab case. This dangerous behavior convinced Fifth Circuit Judge Scott Myren to issue a temporary protection order.

Patricia Black is asking the court to prohibit her ex-husband from coming within 500 yards of her and to not set foot in her house for five years. She also asks that the court require Agent Black to submit to counseling for anger management, depression, and other mental and emotional issues.

Until the March 12 hearing on this request before Judge Jon S. Flemmer, Agent Black is to have no contact with his ex-wife. He also was ordered to immediately turn over all weapons and ammunition to the local sheriff... which could complicate being a state law enforcement agent.

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Last week Judge Jeffrey Viken ruled that the Rosebud and Oglala Sioux tribes and three individual Lakota plaintiffs may move forward with their lawsuit against state and local officials in South Dakota for alleged violations of the Indian Child Welfare Act. The Lakota parents contend that South Dakota has systematically ripped apart Indian families and placed far too many Lakota children in non-Indian foster families.

Such abuses may not be limited to South Dakota. Yesterday the National Indian Child Welfare Association sent a letter to the Department of Justice Civil Rights Division calling for an investigation of ICWA violations in private adoptions and public child welfare systems nationwide. The text of the letter, signed by directors of four leading Native American advocacy groups, does not mention South Dakota specifically, but the footnotes include well-known reports about ICWA violations in our sometimes unfair state.

The letter asserts the good ICWA has done and the ills states do to tribes when they ignore this federal law:

...ICWA halted what was for some communities the wholesale removal of Indian children from their family, culture, and community. There is no question that where ICWA is applied, it has been intergral to keeping countless Native American families together. ICWA is not just considered good practice for AI/AN [American Indian/Alaska Native] children by experts and practitioners alike, but the principles and processes it embodies were recently described as the "gold standard" for child welfare practice generally.

...Non-compliance with ICWA harms children. Attorneys, social workers, and judges cannot, and should not, ignore deferal law and the civil rights of AI/AN children, parents, and families. When ICWA is not followed, the cultural bias and prejudice present in the child welfare system goes unchecked. When ICWA is not followed, AI/AN children's connection to their families, their communities, and their culture is severed. When ICWA is not followed, AI/AN children are subject to familiar disruption, cultural discontinuity, and extreme post-traumatic stress that is unwarranted and avoidable. When ICWA is not followed, tribes lost citizens, and with them, the ability to keep their traditions, practices, and culture alive. Without federal oversight, patterns of non-compliance and poor implementation will continue [Terry L. Cross, National Indian Child Welfare Association, et al., letter to Jocelyn Samuels and Eve L. Hill, Civil Rights Division, U.S. Department of Justice, 2014.02.03].

NICWA and its fellow organizations are speaking of the same community-destroying evils that Judge Viken cited in his ruling last week to recognize the Rosebud and Oglala Sioux tribes' standing to fight in court for their member-parents' rights. They speak of the same cultural forces that our ancestors used against the tribes as we seized this land and tore tribes apart by sending their children to far-off boarding schools.

South Dakota's leaders should diligently stamp out any such tribe-destroying practices in its foster care and adoption system. And if South Dakota's leaders will not do so, we must hope the Department of Justice will heed NICWA's call to investigate and support consisten enforcement of the Indian Child Welfare Act.

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On Wednesday I discussed how the Brandon Taliaferro case exposes the ugly politics in South Dakota's foster care system. Now, a postscript from the judge.

A year ago, Judge Gene Paul Kean dismissed the state's case against Taliaferro, saying the state had failed to present a prima facie case requiring any response from the defense. Since then, Taliaferro, a lawyer and former Brown County assistant state's attorney, has been fighting to have the needless and baseless arrest expunged from his record. On December 20, Judge Kean granted Taliaferro's motion for expungement on the five counts on which he was acquitted.

There is much to discuss in this order; this morning, I excerpt Judge Kean's explication of how the Department of Social Services unfairly stalled in complying with Taliaferro's discovery request as he prepared to defend himself against the state's wrongful charges:

Judge Gene Paul Kean, "In the Matter of the Expungement of the Record Concerning Brandon Taliaferro CIV 13-346 (Brown County)," Dec. 20, 2013, p. 3

Judge Gene Paul Kean, "In the Matter of the Expungement of the Record Concerning Brandon Taliaferro CIV 13-346 (Brown County)," Dec. 20, 2013, p. 4

Judge Gene Paul Kean, "In the Matter of the Expungement of the Record Concerning Brandon Taliaferro CIV 13-346 (Brown County)," Dec. 20, 2013, pp. 3-4

The court granted a motion for discovery. The judicial branch told the executive branch of the state of South Dakota to turn over documents to aid a citizen in his proper defense. The executive branch declined and dawdled and only complied at the last minute. Even when it did comply, the state imposed conditions beyond anything the court allowed in its order. In doing so, the state sought to deny a citizen his constitutional rights at trial.

Officers of the executive branch who feel they do not need to yield to the orders of the judicial branch threaten the balance of power and the constitutional rights of all citizens. That's what's at stake in rooting out the corruption that riddles South Dakota government.

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