DOJ Brief & Thoughts on Relief in OST v. Van Hunnick

I have been meaning to write this post for a while, but how to do so in any remotely concise fashion has proven difficult to figure out.  Just the Plaintiffs’ motions for summary judgment span over 60 combined pages.  The following is my best shot, and leaves out a lot of what I could say on this topic.

I will first note that the Department of Justice has weighed in on the case with an amicus brief.  Having quickly read it once, I believe I agree with it in most respects.  It is reproduced at the following link:  2014_08_14 122-1 DOJ Amicus Brief 

At this point, a quick overview of the current procedures when children are removed may be useful.  Most children come into state custody unexpectedly, often when their parents are arrested.  Within two business days, a “48-hour hearing” is held.  At this point, almost without exception, the Court will grant continued custody of the child to the State Department of Social Services for somewhere between 30 and 90 days until the next review hearing in the case is to be held.  Parents are not allowed to present their own evidence or cross examine witnesses at the 48-hour hearing and typically are not yet represented by counsel at that hearing.  Sometime after the next review hearing will be an adjudication hearing, at which point there is finally a full evidentiary hearing where the parents get to present their own evidence and cross-examine witnesses.

The federal lawsuit is primarily directed at the inadequacy of the 48-hour hearings.  The Plaintiffs allege that ICWA is being violated in the following ways:

  1. Defendants failed to prove during 48-hour hearings that an emergency continued to exist.
  2. Defendants failed to instruct DSS to return Indian children to their homes as soon as the emergency had terminated.

The Plaintiffs allege that parents’ due process rights are being violated in the following ways:

  1. Defendants have failed to give parents adequate notice of the claims against them, the issues to be decided, and the State’s burden of proof.
  2. Defendants have denied parents the opportunity to present evidence in their defense.
  3. Defendants have denied parents the opportunity to confront and crossexamine adverse witnesses.
  4. Defendants have failed to provide indigent parents with the opportunity to be represented by appointed counsel.
  5. Defendants have removed Indian children from their homes without basing their removal orders on evidence adduced in the hearing, and then subsequently issued written findings that bore no resemblance to the facts presented at the hearing.

With respect to the 48-hour hearings, every single one of these allegations is factually accurate.  All of them, without exception.  The first and fifth due process claims are especially egregious, and are indefensible in my opinion.

There is no justifiable reason to not allow a parent to see the allegations and evidence against them that the Judge is supposedly basing the decision on.  My understanding is that the State has changed its practices since the initiation of this suit and is now providing parents with a copy of the temporary custody petition and supporting affidavits.  It should stay that way.

It should also go without saying that a judge should not make factual findings that have no evidentiary support.  I have tried to challenge such boilerplate findings in the past at a later stage in the proceeding.  In one particular case, DSS not only did not make any efforts to reunite a child with a previously noncustodial parent, but actively hindered such efforts by, among other things, not submitting a home study request until over five months into the case and over four weeks after a specific order from the Court that it be submitted within two weeks.  The Court still found that DSS had “made reasonable efforts to achieve the permanent plan of reunification” with that parent.  For me personally, that case kicked off what I would describe as my present lack of faith in our judicial system to deal with cases involving children and families consistently and adequately.

I find some of the other allegations less damning as they relate to 48-hour hearings.  For example, I’m not sure how feasible it would be to have a full-blown evidentiary hearing less than 48 hours after a child is removed.  Attorneys for the parents would probably not be appointed yet, and even if they were, probably would not have had a chance to meet with their clients, prepare for an evidentiary hearing, or subpoena any witnesses.  A similar problem would exist for the child’s attorney.  In my opinion, such an evidentiary hearing could be constitutionally delayed for another week or so, with the 48-hour hearing essentially acting as a probable-cause hearing, advisory hearing, and opportunity to appoint counsel.

With regard to the ICWA claims, I think the Plaintiffs try to ignore the option in Section 1922 of the ICWA that gives the State the option to “expeditiously initiate a child custody proceeding subject to the provisions of this chapter.”  In my opinion, this means that once a formal abuse and neglect petition is submitted, the “likely to result in serious emotional or physical damage” standard of Section 1912(e) is applicable rather than the “imminent physical damage or harm” standard of Section 1922.  However, what this does mean is that the “emergency,” “temporary,” or whatever you want to call it custody phase actually does need to be very limited in duration.  It strains the bounds of common sense to say that a case is still in the emergency or temporary stages more than a week into the case in most situations.  To the parents and children involved, that first week is an eternity.

There are undoubtedly a few different ways that the initial phases of an abuse and neglect proceeding could be handled in a constitutional fashion that complies with ICWA.  One option may be to make the 48-hour hearings MUCH more involved such that, in and of themselves, they adequately protect parents’ rights to present evidence, cross-examine witnesses, and be represented by council.  I’m not sure how feasible that will be, especially when it comes to being able to involve appointed counsel that early.  Another option would be to use the 48-hour hearing primarily as a probable-cause hearing, advisory hearing, and  and to hold a second evidentiary hearing within a reasonable time once attorneys have been appointed.  Whatever the solution, what should be apparent is that the government cannot take someone’s kids for 60+ days without any meaningful judicial review.

What would really be great would be a concerted effort to exceed the minimum thresholds established by the constitution and federal legislation, rather than a begrudging forced acceptance of minimum standards.  There is a LOT of room to improve South Dakota’s child welfare system, but doing so will require executive and judiciary leadership that has thus far been lacking.  South Dakota’s children deserve more than the bare minimum.