Earlier this week I had my first opportunity to observe temporary custody (48 hour) hearings in Pennington County since the Federal District Court entered its Order granting partial summary judgment in the Oglala Sioux Tribe v. Van Hunnik case. Among other things, the Federal Court found that Pennington County courts were violating the constitutional due process rights of parents by denying them the opportunity to present evidence in their defense, cross-examine witnesses, or be represented by counsel. Unfortunately, it appears that these violations continue to occur.
I base my conclusion on primarily on the advisement of rights that was given by the Court to the parents present. As a lawyer with experience in this area, I have little doubt that I was better able to comprehend the Court’s advisement than any of the parents present. Here is what I did NOT hear, but should have:
- You have the right to contest the removal of your children.
- The State would have to prove X, Y, and Z if you contest the removal of your children.
- You have the right to present evidence at a hearing contesting the removal of your children.
- You have the right to be represented by an attorney if you contest the removal of your children.
- Here’s what you have to do to request a hearing contesting the removal of your children (e.g. request a hearing when your case comes up; your lawyer may request a hearing after consulting with you; a hearing will be held within X days if requested).
Rather than making those things clear, the Court’s advisement gave the distinct impression that there was nothing the parents could do until either the next hearing in the case or the filing of a formal petition by the State. It was explicitly stated in the advisement that testimony would not be taken at the hearing. With regard to rights the parents (should) have to contest their children’s initial removal, the advisement was actually misleading.
In actual practice, children were returned to a parent at many of the hearings I observed, and attorneys were appointed for the parents who were present and whose children were not returned. I don’t think the ultimate outcome of most of the cases would have been significantly different. But, this misses the point. It is not OK to disregard constitutional rights because they are inconvenient or probably will not be consequential to the outcome. In some cases, they will be. I believe the result in the case I was there for was different because of my early involvement.
The Federal Court is still weighing the multiple motions to reconsider that I discussed in this post. As such, no injunction or declaratory judgment has yet been made to give teeth to the Court’s prior Order. Hopefully that happens soon, because it is clear that the current practice will not change otherwise. I remain curious regarding the exact relief that will be granted, but it is still self-evident to me that it is unconstitutional to take someone’s children for months without the opportunity for a meaningful hearing.