Motions to Dismiss Denied in Federal Class Action

On January 28, 2014, the Federal District Court denied all motions to dismiss that had been submitted in Oglala Sioux Tribe v. Van Hunnik, and also certified the case as a class action.  I have been waiting for these decisions by the Court before writing about this case, but unfortunately find myself too busy to devote sufficient time to the topic at the moment.  As such, my comments at the moment will less extensive than they could be.

This case primarily involves the judicial procedures used when children are initially removed.  Typically the removal of a child from the home is unplanned, such as when the child’s parents are arrested.  The child cannot be held for more than two business days without a hearing and court order.  This hearing is referred to as the 48-hour hearing.  At the 48-hour hearing, it is the norm for the court to grant custody of an allegedly abused or neglected child to the Department of Social Services (DSS) for 60 days.  The Plaintiffs in the federal case are alleging violations of due process and the ICWA based on some of the particulars of these initial proceedings.  As summarized by me, the alleged violations are (1) not providing parents with the allegations and information against them, (2) not allowing parents to cross-examine witnesses and present their own evidence at this stage, (3) not requiring expert witness testimony at this stage as allegedly required by the ICWA, and (4) not ensuring that foster placements terminate as soon as required by the ICWA.  The first two alleged violations are not dependent on ICWA status, and would have application to all abuse and neglect cases.

When ruling on the motions to dismiss, the Federal Court had to assume that the factual allegations made by the Plaintiffs were all true.  The Defendants argued that even if the factual allegations of the Plaintiffs were accurate, they did not have a case.  By denying the motions to dismiss, the Federal Court essentially found that if the Plaintiff’s allegations were accurate, a violation of the law occurred.  The Court’s refusal to grant the motions to dismiss is therefore quite significant, although it is far from a final ruling.  There will now be a discovery phase in the case, as part of which the Plaintiffs will be obtaining transcripts from other 48-hour hearings.  Absent a settlement along the way, the Court will still need to determine contested facts, likely make additional legal rulings, and determine the appropriate relief for any constitutional or ICWA violations.

I feel the need to point out what this case is NOT, namely a challenge to how South Dakota Courts apply the ICWA placement preferences or the overall number of Indian children removed.  The suit essentially contends that things which eventually happen in abuse and neglect cases should happen at a much earlier point in the proceedings.  Therefore, the primary practical effect of a victory by the Plaintiffs would be the creation of procedures that would result in children who are eventually returned to their parents and families being returned earlier.  This result would be laudatory, as removal for any period of time is traumatic for both children and parents.  However, it would probably not result in a significant decrease in the number of removed children who are never returned to their parents.

Below are most of the court documents filed to date, which have also been posted by Matthew L.M. Fletcher on Turtletalk.  The curious may also want to read the Cheyenne River Sioux Tribe v. Davis decision by the South Dakota Supreme Court, which describes some of the facts and procedures from the state court case of one of the plaintiff parents.  Those wanting to read mostly about the substantive claims in this case rather than class-action certification, standing, and abstention doctrines, would do best to limit their reading to the Complaint, the relevant parts of the various motions to dismiss and responses thereto, and the relevant parts of the Order Denying Motions to Dismiss.  Those wishing to limit their reading to one document would do best to start at page 18 of the Order Denying Motions to Dismiss and read to the end.