In another difficult case dealing with the welfare of a child, the South Dakota Supreme Court yesterday ruled unanimously in favor of the Department of Social Services over a Native American father from California.
Three years ago, DSS took a 12-month-old child (referred to as "P.S.E." in court documents) into protective custody after her mother blew .20 and no sober relatives could be found to take care of the child. The mother later admitted neglecting the child. The court terminated the mother's rights, and the mother did not contest.
But the mother let DSS know that the child's father was in California. Surprise, surprise: DSS's call to this man, a member of the Fort Peck Sioux Tribe, was the first he heard of having a child in South Dakota. Following the Indian Child Welfare Act and basic family values, DSS made placing the child with her father its goal.
Then things got complicated. After DSS's California counterparts conducted a home study, they decided the father needed to do alcohol education, anger management, and parenting classes. In 2010, another home study was held up because California had removed the father's California children from his home due to allegations of physical abuse at the hands of their mother. To get those children back, California added outpatient treatment and a batterer's program to the father's requirements. In March 2011, the father told DSS at a South Dakota hearing that he didn't want to take custody of his South Dakota child until he completed the California program. He showed no comprehension of how long that might take. The South Dakota court thus terminated the father's rights.
The father appealed, saying that South Dakota's Department of Social Services had not made the extra "active" effort required by the Indian Child Welfare Act to keep Indian children with Indian parents. The court accepted the argument that, per ICWA, the state has an extra interest in keeping Indian families together and must work harder to do so than it does in cases involving non-Indian children (an important finding for those investigating South Dakota's compliance with ICWA in its foster care system).
The court found, however, that DSS made active efforts to help the father, paying for some of his alcohol classes, offering to cover lodging for visits to his child in South Dakota, and providing other assistance. More importantly, though, the court found that terminating the father's rights was in the child's best interest:
Here, even though Father has made efforts, they have been unsuccessful. Those efforts have resulted in no positive movement toward placement of P.S.E. with Father. While perhaps Father could one day make enough progress so that a successful California homestudy could be completed and P.S.E. could live with Father, there is no indication this will happen any time soon. And since the inception of Father's involvement in this matter, he has made no progress. P.S.E. should not be required to wait for Father to develop parenting skills that may never materialize. See In re Z.Z., 494 N.W.2d 608, 610 (S.D. 1992). P.S.E. has lived in foster care, where, by all reports, she is flourishing, since her removal in 2009 at the age of 12 months. The record indicates that her foster parents wish to adopt her. Her tribe has sent correspondence urging adoption by the foster parents. The trial court's determination that termination was the least restrictive alternative commensurate with P.S.E.'s best interests was not clearly erroneous [South Dakota Supreme Court, In the Interest of P.S.E., 2012 S.D. 49, issued 2012.06.20].
A child is "flourishing." She has foster parents who want to adopt her. The child's tribe says Make it so. Meanwhile, half a continent away, an absent and surprised father can't say when he'll get his drinking and anger under sufficient control to warrant getting his other kids back, let alone demonstrate his fitness to add another child to his house.
Fathers' rights advocates, fire away. But I think justice has been served.