May 01, 2015

Emergency Removal Hearings Violated ICWA and Due Process

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Oglala Sioux Tribe v. Van Hunnik, 2015 WL 1466067 (D. S.D.).

Where state court had emergency removal hearings which lasted five minutes, did not allow for presentation or cross examination of witnesses, no access to appointed counsel, and where parents were not provided copies of petitions or other documents, the hearings violated Indian Child Welfare Act and Due Process Clause.

The Oglala Sioux and Rosebud Sioux Tribes brought a class action lawsuit, with two named plaintiff families. They sought declaratory and injunctive relief claiming the court, prosecutor, and child welfare agency violated the Indian Child Welfare Act (ICWA) and due process under the Fourteenth Amendment.

The United States District Court for the District of South Dakota granted the plaintiffs summary judgment against all defendants on all claims, concluding the defendants violated the plaintiffs’ ICWA and due process rights. The District Court ordered the parties to brief the court about the appropriate injunctive and declaratory remedies.

The plaintiffs contended the defendants supported policies and practices that violated their rights at 48-hour emergency removal hearings. In the county, these hearings were usually conducted in under five minutes. The hearings never had witnesses other than the child welfare agency and parents and parents were not given opportunities to cross-examine the agency. While parents may have been appointed counsel at the emergency hearings, this usually occurred after the court had made its decisions.  

During or before the hearings, parents did not receive copies of the dependency petitions or other documents. The District Court recited multiple examples of transcripts where parents (or their counsel) did not have copies of documents or know the allegations against them at emergency hearings. None of the hearing transcripts indicated that there were recesses or continuances to allow them to review the documents supporting the removals.

Next, the court reviewed the history and intent behind the passage of the ICWA, highlighting Congress’s desire to protect Indian families and tribal sovereignty.  The court noted the Act required appointment of counsel for indigent parents, that each party be offered an opportunity to review documents used in any hearing, that the state must provide active efforts to prevent removal, and that qualified expert witnesses participate in hearings. 

Regarding the evidence taken during the emergency hearings, the court noted the South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases also envisioned an emergency hearing as an evidentiary hearing. In contrast, the circuit court’s practice had been to simply rely on the petition or ICWA affidavit. Again, these documents were not always provided to the parents. 

This was coupled with the fact that orders routinely provided broad discretion for the agency to return the child when it deemed it safe after the hearing. This was an improper abdication of judicial authority to provide oversight over the agency’s actions, and did not comply with the Act. 

The court found the practice of appointing counsel at the end of the 48-hour hearing illogical, noting the parents have already been harmed. It concluded the practice violated due process and the Act.

Regarding the Due Process Clause, the court noted that it encompassed substantive and procedural rights. Procedurally, the due process clause has similarly been held to require “the opportunity to be heard at a meaningful time and in a meaningful manner.” As to copies of petitions and other items, like police reports, these are required to be presented to the parents as soon as practical.