SD · rules

S.D. Guidelines for Judicial Process in Child Abuse and Neglect Cases

South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases

activein force · 2026-09-30 – presentact-effective-date

Guidelines for

Judicial Process in

Child Abuse and

Neglect Cases

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ACKNOWLEDGMENTS

These guidelines were developed by the South Dakota Uniﬁed Judicial System, Court Improvement Program Committee,

pursuant to a grant from the US Department of Health and Human Services for reforming the handling of child abuse and

neglect court cases in South Dakota. A project of this magnitude requires the dedication and commitment of many people in

various capacities. The core of this manual was developed and revised by a group of talented and dedicated people throughout

the state who gave generously of their time, knowledge, and experience. The practicality of this manual is due in large measure

to the contributions of the following individuals:

1999 CIP Committee 2014 CIP Committee 2019 CIP Committee 2024 CIP Committee

Hon. Max A. Gors, Chairperson Hon. Jeﬀ W. Davis, Chairperson Hon. Scott Myren, Chairperson Hon. Gregg Magera, Chairperson

Circuit Judge, Sixth Judicial Circuit Presiding Judge, Presiding Judge, Presiding Judge,

J Jay Alderman Seventh Judicial Circuit Fifth Judicial Circuit Fifth Judicial Circuit

Pennington County Deputy State’s Amy Benda Hon. Michelle Comer Hon. Scott Myren

Attorney Sioux Falls Area CASA Circuit Judge, SD Supreme Court Justice

Joan Baker Tony Benning Fourth Circuit Hon. Rachel Rasmussen

Assistant Attorney General Community Representative, Hon. Kent Shelton Circuit Judge, Second Judicial Cir.

Jean Cline Corey Brubakken Circuit Judge Susan Compaan

Attorney, Rapid City Captain, Pennington County Third Judicial Circuit Circuit Admin. Fifth Judicial Circuit

Joyce Country Sheriﬀ’s Oﬃce Hon. Timothy Johns Roxie Erickson

Department of Social Services Vicki Burger Retired Circuit Judge, Pennington County

Cheryl Schrempp DuPris Department of Social Services, Fourth Judicial Circuit Deputy State’s Attorney

Assistant U.S. Attorney CPS, Regional Manager, Representative, District 31 Carrie Mees

Hon. John E. Fitzgerald Sioux Falls Susan Compaan Minnehaha County,

Circuit Judge, Seventh Judicial Circuit Susan Compaan Circuit Administrator, Deputy State’s Attorney

Patrick M. Ginsbach Fifth Judicial Circuit, Fifth Judicial Circuit Rep. Rebecca Reimer

Fall River County State’s Attorney Court Administrator Roxie Erickson Representative, District 26B

Dwight Hall Roxie Erickson Pennington County, Pamela Bennett

Pennington County Sheriﬀ’s Oﬃce Pennington County, Deputy State’s Attorney DSS-CPS, Division Director

Judy Hines Deputy State’s Attorney Virgena Wieseler Sara Sheppick

Department of Social Services Hon. Timothy Johns Department of Social Services, DSS-CPS, Division Director

Liza Kaiser Retired Circuit Judge, CPS, Division Director Eric Grover

Court Appointed Special Advocate Fourth Judicial Circuit Pamela Bennett DSS-CPS, Division Director

Sharon Kallemeyn Representative, District 31 Department of Social Services, Vicki Burger

Victims Assistance Director, Sharon Kallemeyn CPS, Deputy Division Director DSS-CPS, Regional Manager

Pennington County Victims Assistance Director, Vicki Burger Ashley Asmus

Hon. John K. Konenkamp Pennington County Department of Social Services, DSS-CPS, Program Specialist

South Dakota Supreme Court Hon. Scott Myren CPS, Regional Manager Ashley Schlichenmayer-Okroi

Lynn M. McLane Circuit Judge, Lisa Fleming DSS-CPS, Program Specialist

Pennington County Sheriﬀ’s Oﬃce Fifth Judicial Circuit Department of Social Services, Christina Young

John Murphy Becky Morlock-Reeves CPS, Regional Manager Director, CPCM

Attorney, Rapid City Attorney, Watertown Corey Brubakken Dustin Morrison

Robert Pasqualucci Todd Schlekeway Captain, Pennington County Captain, Pennington County

Staﬀ Judge Advocate, Community Representative, Sheriﬀ’s Oﬃce Sheriﬀ’s Oﬃce

SD Army National Guard Dr. Melody Schopp Kate Kelley Jackie Horton

Michael Shad Secretary of Education Director, Northern Hills CASA Executive Director, CASA

Pennington County Deputy State’s Attorney Dave Valandra Spearﬁsh Lindsey-Riter-Rapp

Sheila Troxel ICWA Director, Dr. Becky Guﬃn Attorney

Seventh Circuit CASA LuAnn Van Hunnik Superintendent, Dr. Michelle Vande Weerd

LuAnn Van Hunnik Department of Social Services, Aberdeen School District Brookings School District

Child Protection Services Regional Manager CPS, Regional Manager, Carrie Sanderson Jessica Morson

Rapid City Rapid City Director Flandreau Santee Sioux Tribe

Jim Waggoner Virgena Wieseler Center for the Prevention of Deborah Devine

Attorney, Rapid City Department of Social Services, Child Maltreatment Sisseton Wahpeton Oyate CPS

Merlin Weyer CPS, Division Director Sioux Falls Sara Kelly

Department of Social Services Sara Kelly Dave Vallandra CIP Coordinator

Hon. Marshall Young CIP Coordinator, Tribal Representative Uniﬁed Judicial System

United States Magistrate Judge Uniﬁed Judicial System Sara Kelly Austin Gourley

CIP Coordinator UJS Legal Intern

Uniﬁed Judicial System Uniﬁed Judicial System

The South Dakota Guidelines for Judicial Process in Child Abuse and

Neglect Cases are an overview of the process and is intended to be used

as a reference tool. They are not binding legal authority. The United States

Code, South Dakota Codiﬁed Laws, and case law govern.

These guidelines were developed by the South Dakota Uniﬁed Judicial System in conjunction with the

Court Improvement Program Grant received from the U.S. Department of Health and Human Services,

Administration for Children and Families.

The guidelines were revised in 2025, 300 copies were printed at a cost of $18.57 per copy.

iii

SOUTH DAKOTA GUIDELINES FOR JUDICIAL PROCESS IN CHILD ABUSE AND NEGLECT

CASES

TABLE OF CONTENTS

Contents

TABLE OF CONTENTS............................................................................................................................. iii

I. INTRODUCTION.................................................................................................................................. 1

II. GENERAL ISSUES................................................................................................................................ 2

A. DEFINITION OF ABUSE/NEGLECT.................................................................................................... 2

B. OTHER STATUTES RELATING TO CHILD ABUSE INCLUDING BUT NOT LIMITED TO: ............................. 3

C. REPORTING STATUTES AND IMMUNITY FROM LIABILITY................................................................. 5

D. ROLE OF CHILD’S ATTORNEY........................................................................................................... 7

E. ROLE OF THE DEPARTMENT OF SOCIAL SERVICES – CHILD PROTECTION SERVICES (DSS-CPS)............ 8

1. Provide Accurate and Timely Information...................................... 8

2. Ensure the Child’s Safety.................................................................. 8

3. Coordinate and Collaborate............................................................. 9

4. Prepare for and Participate in Court Proceedings.......................... 9

5. Promote Case Resolution and Permanency.................................... 9

6. Document and Maintain Conﬁdentiality......................................... 9

F. ROLE OF COURT APPOINTED SPECIAL ADVOCATE (CASA)................................................................. 9

1. Training........................................................................................... 10

2. Appointment To Individual Cases.................................................. 10

3. Reports........................................................................................... 10

4. Speaking For The Child................................................................... 10

5. Assignment Of A CASA................................................................... 10

G. INTERSTATE COMPACT PLACEMENT PROCESS (ICPC)..................................................................... 10

H. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)............................... 11

III. INDIAN CHILD WELFARE ACT (ICWA)................................................................................................ 12

A. JURISDICTION............................................................................................................................. 12

1. Exclusive Jurisdiction...................................................................... 13

2. Intervention.................................................................................... 13

B. PLACEMENT PREFERENCES.......................................................................................................... 13

1. ICWA Placement Hierarchy............................................................ 13

2. Tribal Override of Placement Preferences. ................................... 14

3. Deviation of ICWA Preferences. ..................................................... 14

4. Testimony of a QEW....................................................................... 14

C. QUALIFIED EXPERT WITNESS UNDER THE ICWA........................................................................... 14

D. ICWA CONSIDERATIONS/INQUIRIES AT EACH HEARING................................................................ 15

1. Temporary Custody Hearing (TCH)................................................ 15

2. Advising.......................................................................................... 16

3. Adjudication................................................................................... 16

4. Active Eﬀorts.................................................................................. 17

5. Review Hearing.............................................................................. 17

6. Disposition...................................................................................... 17

7. Good Cause Hearing Post-Termination......................................... 18

ICWA FLOW CHART.............................................................................................................................. 18

IV. PROTECTIVE CUSTODY/INTAKE........................................................................................................ 22

A. WHEN LAW ENFORCEMENT TAKES CUSTODY............................................................................... 22

B. COURT ORDERED PLACEMENT WITH NOTICED HEARING: ............................................................. 22

C. AUTHORITY FOR A PICK-UP AND PLACE ORDER WITHOUT NOTICED HEARING: ............................. 22

D. CONTACTING AN INTAKE OFFICER................................................................................................ 23

E. PURPOSE OF AN INTAKE HEARING................................................................................................ 23

F. PROCEDURES FOR AN INTAKE HEARING........................................................................................ 23

G. OPTIONS AT AN INTAKE HEARING................................................................................................ 24

H. NOTICE........................................................................................................................................ 24

V. TEMPORARY CUSTODY HEARING (48-HOUR HEARING)..................................................................... 25

A. TEMPORARY CUSTODY HEARING (48-HOUR HEARING)................................................................. 25

B. PROCEDURES FOR THE TCH (48 HOUR HEARING).......................................................................... 26

C. NOTICE........................................................................................................................................ 27

VI. ADVISORY HEARING....................................................................................................................... 28

A. PURPOSE..................................................................................................................................... 28

B. NOTICE........................................................................................................................................ 29

VII. ADJ

UDICATION HEARING............................................................................................................... 30

A. TIMING AND PURPOSE OF ADJUDICATORY HEARINGS.................................................................. 30

B. DISCOVERY.................................................................................................................................. 31

C. ELEMENTS.................................................................................................................................... 31

D. EVIDENCE.................................................................................................................................... 31

E. DEFENSES..................................................................................................................................... 33

F. FINDINGS OF FACT CONCLUSIONS OF LAW.................................................................................... 33

G. NOTICE........................................................................................................................................ 33

H. NOTICE OF ENTRY........................................................................................................................ 34

VIII. HEARINGS.................................................................................................................................... 35

A. REVIEW HEARING........................................................................................................................ 35

1. Items to be addressed at the review hearing. .............................. 35

2. Key decisions the court must make at the review hearing: ......... 36

B. PERMANENCY HEARING – BEFORE FINAL DISPOSITIONAL HEARING.............................................. 36

C. ADOPTION SAFE FAMILIES ACT (ASFA) HEARING........................................................................... 37

D. MOTION/EVIDENTIARY HEARING................................................................................................. 37

IX. FINAL DISPOSITION......................................................................................................................... 38

A. KEY DECISIONS THE COURT MUST MAKE: ..................................................................................... 38

1. Placement and Care....................................................................... 38

2. Reasonable Eﬀorts......................................................................... 39

3. Guardianship from an A&N Case................................................... 40

4. The Guardianship Order................................................................. 41

5. Best Interests of the Child. ............................................................. 41

6. Conditions for removal still exist. .................................................. 42

7. Compelling reasons to extend services over 1 year. ..................... 42

B. EVIDENCE..................................................................................................................................... 42

C. FINDINGS OF FACT AND CONCLUSIONS OF LAW............................................................................ 42

D. NOTICE........................................................................................................................................ 43

X. POST-DISPOSITION/PERMANENCY HEARING.................................................................................... 45

XI. APPEALS......................................................................................................................................... 46

XII. FORMS.......................................................................................................................................... 47

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2. REPORTING STATUTES

o SDCL 26-8A-3………………………………………………………………………………………….…………………………… ……………..…5,6

o SDCL 26-8A-4………………………………………………………………………………………………………………….…………………...……6

o SDCL 26-8A-6………………………………………………………………………………………………………………….……………….…..……6

o SDCL 26-8A-7……………………………………………………………………………………………………… ………….…………………………6

o SDCL 26-8A-8……………………………………………………………………………..……………………………………….…………..…….6,7

o SDCL 26-8A-9……………………………………………………………………………………………………………… .………………….…..……6

o SDCL 26-8A-10..…………………………………………………………………………………………………………….….…….….…..……….6

o SDCL 26-8A-13 ………………..……………………………………………………………………………………………. .…………..……..…….7

o SDCL 26-8A-14………………………………………………………………………………………………………… .………………..…………….7

D. ROLE OF CHILD’S ATTORNEY

• ICWA (INDIAN CHILD WELFARE ACT) ………………………..…………………………………………………………………………………..………8

• SDCL 19-19-806.2 ……………………………………………………………………………………………………………………………………………......8

• SDCL 19-19-807 ……………………………………………………………………………………………………………………………………….….……..…8

• SDCL 26-7A-33 ………………………………………………………………………………………………………………………………….………….………. 7

• SDCL 26-8A-18……………………………………………………….……………………………………………………………………………………….….….7

• SDCL 26-8A-20 …………………………………………………………………………………………………………………………………………..………….7

• SDCL 26-8A-30………………………………………………………………………………………………………. …………………….…………………..…...8

G. INTERSTATE COMPACT PLACEMENT PROCESS (ICPC)

• SDCL 2-13 (INTERSTATE COMPACT ON PLACEMENT OF CHILDREN) …......................................................................10

H. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

• UCCJEA …………..….……………………………………………………………………………..…..……………………………………………………………11

• SDCL 26-5B ……………………………………………………………………………………………………………………………………..………....….…..11

III. INDIAN CHILD WELFARE ACT (ICWA)

1. ICWA AND DEFINTIONS

o ICWA …………………………………………………..………………………….……….…………………………………….………..……….......12

2. INDIAN CHILD DEFINITION

o 25 U.S.C. § 1903(4) .………...…….………………...…………………………….…….….……………………………….…………….……12

3. CHILD CUSTODY PROCEEDINGS DEFINTION

o 25 U.S.C. § 1903(1)(i)-(iv)..……….….………….…………………………………………………………………………...……………..…12

4. EMERGENCY JURISDICTION

o 25 U.S.C. § 1922 ………..…………..……….…………………………………………………,………..…………………………………..……12

A. JURISDICTION

1. EXCLUSIVE JURISDICTION

o 25 U.S.C. § 1911(a) …………..………………………………………………………………………….………………..………………..……..13

2. INTERVENTION

o 25 U.S.C § 1911(c) ………….………………………………………………………………………….……….…………..……….……..……..13

3. TRANSFER

o 25 U.S.C. § 1911(b) .……………….………………………………………………………………………………… …..…………..…..……..13

B. PLACEMENT PREFERENCES

1. ADOPTIVE PLACEMENT; PREFERENCES

o 25 U.S.C. § 1915 (a) ………..……………………….…………………………………………………………………..…………………..…….13

2. TRIBAL RESOLUTION FOR DIFFERENT ORDER OF PREFERENCE; PERSONAL PREFERENCE CONSIDERED;

ANONYMITY IN APPLICATION OF PREFERENCE.

o 25 U.S.C. § 1915 (c)....………………………………………………………………………………….…………..…….…………………….…14

D. ICWA CONSIDERATIONS/INQUIRIES AT EACH HEARING

1. TEMPORARY CUSTODY HEARING

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CASE LAW REFERENCE TABLE

(Title) (Page)

II. GENERAL ISSUES

• People ex rel. D.A.J., 757 NW2d 70 (SD 2008)…………………………………………………..…………………………………. …..……………2

• Baxter v. Palmigiano, 425 US 308, 96 S.Ct. 1551, 47 L.Ed.2d 810.…………………………………………………….……….…………..2

D. ROLE OF CHILD’S ATTORNEY

• In the Interest of T.A., 2003 S.D. 56, 663 N.W.2d 225.………………………………………………...……………………………..……..…..8

III. INDIAN CHILD WELFARE ACT (ICWA)

• People in Interest of C.R.M., 307 N.W.2d 131, 132 (S.D. 1981)………………………………………………………………….………....12

A. JURISDICTION

1. EXCLUSIVE JURISDICTION

o Matter of Adoption of Halloway, 732 P2d 962 (Utah 1986). ………………………………………….………………….……13

3. TRANSFER

o In re D.M., 685 N.W.2d 768, 2004 S.D. 90 ……………………………………………………………………………………………….13

C. QUALIFIED EXPERT WITNESSES UNDER ICWA

• People ex rel. A.B., 2016 S.D. 44, 880 N.W.2d 95, 102. .……………………………………………………………………………………….15

• Matter of S.D., 402 N.W.2d 346 (S.D. 1987). .……………………………………………………………………………….…..…………………15

• Matter of K.A.B.E., 325 N.W.2d 840 (S.D. 1982)...……………………………………………………………………..…………………………15

• Matter of J.L.H., 316 N.W.2d 650 (S.D. 1982)……………………………………………………………………………..…………………..……15

D. ICWA CONSIDERATIONS/INQUIRIES AT EACH HEARING

4. ACTIVE EFFORTS

o People In Interest of SHE, 824 N.W.2d 420, 2012 S.D. 88 ……………………………………….…………..…………...……..16

IV. PROTECTIVE CUSTODY/INTAKE

E. PURPOSE OF INTAKE HEARING

• Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69, 822 N.W.2d 62. ..…………………………………………………………………..23

VI. ADVISORY HEARING

B. NOTICE

• INTEREST OF N.K., JR. AND S.K., 2024 S.D. 63. .…………………………………………………………………………………………………… 29

VII. ADJUDICATION HEARING

A. TIMING AND PURPOSE OF ADJUDICATORY HEARINGS

• People in the Interest of D.A.J., 2008 S.D. 92, 757 N.W.2d 70. ..……………………………………………………………………………30

• People in Interest of P .M., 299 N.W.2d (S.D. 1980). .….…………………………………………………………………………………………30

• In the Interest of T.G., 2001 S.D. 15, 621 N.W.2d 608. ...………………………………………………………………………………………31

C. ELEMENTS

• Matter of S.W., 428 N.W.2d 521 (S.D. 1988). ..…………………………………………………………………….…………………………….…31

• People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982). ...…………………………..………………………………………………………..31

• Matter of K.A.B.E., 325 N.W.2d 840 (S.D. 1982). ..……………………………………………………………………..………………..………31

• People in Interest of P .B., 371 N.W.2d 366 (S.D. 1985)....……………………………..………………………………………………….…..31

D. EVIDENCE

• Matter of C.J.H., 371 N.W.2d 345 (S.D. 1985). ...………………………………………………………………………………………………….31

• In the Interest of S.O.B., 2006 S.D. 76, 721 N.W.2d 83. ..……………………………………………………………………………….……..31

• Matter of J.A.H., 502 N.W.2d 120 (S.D. 1993). .….………………………………………………………………………………………….…….31

• Matter of C.E., 283 N.W.2d 554 (S.D. 1979)..……………………………………………………………….……………………………………..32

• Matter of N.J.W., 273 N.W.2d 134 (S.D. 1978). ..……………………………………………………….…………………..……………………32

• People in Interest of T.L.J., 303 N.W.2d 800 (S.D. 1981)..…………………………………………………….…………………..………….32

• In the Matter of S.A., 2005 S.D. 120, 708 N.W.2d 673....…………………………………………………………..……….…………………32

• In the Interest of T.A., 2003 S.D. 56, 663 N.W.2d 225. ..……………………………………………………..……….……………………….32

E. DEFENSES

o In the Interest of C.F., 2005 S.D. 126, 708 N.W.2d 313..……………………………………………………………………..……..……….…33

IX. FINAL DISPOSITION

A. KEY DECISIONS THE COURT MUST MAKE

1. PLACEMENT AND CARE

o In Re J.H., 1999 S.D. 36, 590 N.W.2d 473....………………………………………………………………..….…………..…….39

2. REASONABLE EFFORTS

o People in Interest of C.L., 356 N.W.2d 476 (S.D. 1984)....……………………………….…………………………………………39

o Matter of R.Z.F., 284 N.W.2d 879 (S.D. 1979). ..……………………………………………..…………………………..……………39

o Matter of B.E., 287 N.W.2d 91 (S.D. 1979). ..…………………………………………………..………………..……….…….………39

o Matter of D.A.B., 313 N.W.2d 787 (S.D. 1981). ..…………………………………………………………..……………….…………39

o People in Interest of T.L.J., 303 N.W.2d 800 (S.D. 1981). .….……………….……………….………..…………………...……39

o Matter of A.I., 289 N.W.2d 247 (S.D. 1980). ..…………………………..……………………………..………………………...……39

o Matter of C.E., 283 N.W.2d 554 (S.D. 1979). ..……………………………..……………………………………………………..……40

o Matter of M.S.M., 320 N.W.2d 795 (S.D. 1982)….…………………………………..…………………………………………..……40

o In the Interest of C.W., 2005 S.D. 54, 697 N.W.2d 18...……………………………….……………………………………………40

o In the Matter of S.A., 2005 S.D. 120, 708 N.W.2d 673..…………………………………………….………………………..……40

o People in Interest of C.L., 356 N.W.2d 476 (S.D. 1984)...……………………………………………..……………..……….……40

o People in Interest of S.M.M., 349 N.W.2d 63 (S.D. 1984)..…………………………………………..……………………………40

o Matter of S.W., 428 N.W.2d 521 (S.D. 1988)..…………………………………………………………..………………………………40

5. BEST INTERESTS OF THE CHILD

o Matter of L.B., 416 N.W.2d 598 (S.D. 1987)..……………………………………………………………..…..………….……………42

o Matter of Z.Z., 494 N.W.2d 608 (S.D. 1992)..………………………………………………………………..…..………….…………42

o People in Interest of E.D.J., 499 N.W.2d 130 (S.D. 1993)....……………………………………………..……………..…………42

o In Interest of J.L., 2002 S.D. 144, 654 N.W.2d 786....………………………………………………………..……..……..……..…42

o In the Interests of J.G.R., 2004 S.D. 131, 691 N.W.2d 586....…………………………………………..…………………………42

6. CONDITIONS FOR REMOVAL STILL EXIST

o In the Interest of T.I., 2005 S.D. 125, 707 N.W.2d 826..………………………………………………..……………..……………42

B. EVIDENCE

• In the Interest of T.I., 2005 S.D. 125, 707 N.W.2d 826……………………………………………………………………..……..…………….42

XI. APPEALS

• In the Interest of A.D., 2004 S.D. 39, 678 N.W.2d 594........………………………………………………………………….………………..45

SOUTH DAKOTA GUIDELINES FOR JUDICIAL PROCESS IN CHILD ABUSE AND NEGLECT

CASES

GOAL: TO REDUCE THE TIME CHILDREN, SPEND IN TEMPORARY

OUT OF HOME PLACEMENTS

I. INTRODUCTION

Victims of child abuse and neglect come before the court for protection from further

harm and for timely decision-making for their future. Courts must make critical decisions and

oversee social service eﬀorts to rehabilitate and maintain families or to provide alternate

permanent care for children. These guidelines are intended as a tool to assist professionals

and are not binding law. These guidelines set forth the essential elements of properly

conducted abuse and neglect court proceedings. They are recommended for use by judges,

attorneys, family services specialists, law enforcement oﬃcers, and related professionals.

The basic principle underlying these guidelines is the need for timely action in child

abuse and neglect cases. Children have a diﬀerent sense of time from adults. Delays caused by

prolonged litigation can be especially stressful to abused and neglected children. The

uncertainty of not knowing whether they will be removed from home, whether and when they

will go home, and when they might be moved to another home is frightening. Extended

periods of uncertainty exacerbate childhood anxiety and trauma.

Under federal and state law, a permanent placement decision of a child must be made

within 12 months of when a child is removed from their home.

The earlier stages of the case must occur in a timely manner to meet this deadline.

Courts are the gatekeepers of the child welfare system and must make timely litigation in child

abuse and neglect cases their highest priority. Family services specialists, law enforcement

oﬃcers, attorneys, CASA 1 volunteers, and other service providers play a critical role in child

abuse and neglect cases. For the court system to function in the best interests of abused and

neglected children, it is essential that all these participants take active, aﬃrmative steps to

acquire knowledge and expertise in handling these cases and discharge their responsibilities in

an eﬀective and responsible manner. Ultimately, however, the court is responsible for holding

the entire system accountable.

Court Appointed Special Advocate (CASA)

II. GENERAL ISSUES

Professionals in South Dakota dealing with child abuse and neglect cases must be

well versed in the substantive and procedural requirements of the statutory law

regarding child abuse and neglect cases. From reporting and investigation, to petition,

adjudication and disposition, a thorough knowledge of the law is needed to best serve

the client, whether parent or child. In addition to knowledge of the law, participants

must understand the function and role of related disciplines involved in this type of

litigation. Abuse and neglect cases are not based solely on legal principles, but also

depend on psychological, cultural, educational, and social-welfare concerns (additional

resource information on the Supplemental Resources tab).

The purpose of child abuse and neglect proceedings is to determine whether a

child is abused and/or neglected and in need of protection. The culpability of a parent,

guardian or custodian is not particularly relevant to these proceedings and abuse and

neglect proceedings should continue independent of any criminal proceedings. If the

matter is also pursued under the criminal statutes, culpability will be an issue. People ex

rel. D.A.J., 757 NW2d 70 (SD 2008); Baxter v. Pamigiano, 425 US 308, 96 S.Ct. 1551, 47

L.Ed.2d 810.

A. DEFINITION OF ABUSE/NEGLECT

Pursuant to SDCL 26-8A-2, the existence of any one of several conditions

constitutes abuse or neglect, so long as that ultimate ﬁnding is supported by clear and

convincing evidence. An “abused or neglected child” means a child:

1. Whose parent, guardian, or custodian has abandoned the child or has

subjected the child to mistreatment or abuse;

2. Who lacks proper parental care through the actions or omissions of

child’s parent, guardian, or custodian;

3. Whose environment is injurious to the child’s welfare;

4. Whose parent, guardian, or custodian fails or refuses to provide

proper or necessary subsistence, supervision, education, medical care,

or any other care necessary for the child’s health, guidance, or well-being;

5. Who is homeless, without proper care, or not domiciled with the

child’s parent, guardian, or custodian through no fault of the child’s

parent, guardian, or custodian;

6. Who is threatened with substantial harm;

7. Who has sustained emotional harm or mental injury as indicated by

an injury to the child’s intellectual or psychological capacity evidenced

by an observable and substantial impairment in the child’s ability to

function within the child’s normal range of performance and behavior,

with due regard to the child’s culture;

8. Who is subjected to sexual abuse, sexual molestation, or sexual

exploitation by the child’s parent, guardian, custodian, or any other

person responsible for the child’s care;

9. Who was subject to prenatal exposure to abusive use of alcohol,

marijuana, or any controlled drug or substance not lawfully prescribed

by a practitioner as authorized by chapters 22-42 and 34-20B; or

10. Whose parent, guardian, or custodian knowingly exposes the child to

an environment that is being used for the manufacture, use, or

distribution of methamphetamines or any other unlawfully

manufactured controlled drug or substance.

B. OTHER STATUTES RELATING TO CHILD ABUSE INCLUDING BUT NOT LIMITED TO:

CHAPTER 22 – CRIMES

SDCL 22-18-1.1 -- AGGRAVATED ASSAULT DEFINED.

SDCL 22-18-1 -- SIMPLE ASSAULT DEFINED.

SDCL 22-19-9 – VIOLATION OF CUSTODY ORDER BY PARENT. A PARENT WHO

TAKES, ENTICES AWAY, OR KEEPS A CHILD FROM THE CUSTODY OR VISITATION OF

ANOTHER PARENT IS GUILTY OF A MISDEMEANOR.

SDCL 22-19-10 – REMOVAL OF CHILD FROM STATE. A PARENT WHO VIOLATES 22-

19-9 AND REMOVES THE CHILD FROM THE STATE IS GUILTY OF A CLASS 5 FELONY.

SDCL 22-19A-7 – STALKING A CHILD TWELVE OR YOUNGER (WILLFULLY,

MALICIOUSLY AND REPEATEDLY FOLLOWS OR HARASSES A CHILD 12 OR

YOUNGER) IS GUILTY OF FELONY STALKING.

SDCL 22-22-1 -- RAPE DEFINED.

SDCL 22-22-2 -- SEXUAL PENETRATION DEFINED.

SDCL 22-22-7 -- SEXUAL CONTACT WITH CHILD UNDER SIXTEEN -- FELONY OR

MISDEMEANOR.

SDCL 22-22-7.1 -- SEXUAL CONTACT DEFINED.

SDCL 22-22-7.3 -- SEXUAL CONTACT WITH PERSON UNDER SIXTEEN BY A PERSON

UNDER SIXTEEN—MISDEMEANOR.

SDCL 22-22-24.3 -- SEXUAL EXPLOITATION OF MINOR.

SDCL 22-23-2 -- PROMOTING PROSTITUTION—FELONY.

SDCL 22-24A-1 -- SALE OF CHILD PORNOGRAPHY – FELONY.

SDCL 22-24A-3 -- POSSESSING, MANUFACTURING, OR DISTRIBUTING CHILD

PORNOGRAPHY – FELONIES.

SDCL 22-24A-5 -- SOLICITATION OF MINOR –FELONY.

CHAPTER 23A– CRIMINAL PROCEDURE

SDCL 23A-42-2 -- SEVEN-YEAR LIMITATIONS PERIOD FOR OTHER PROSECUTIONS.

CHAPTER 25 – DOMESTIC RELATIONS

SDCL 25-5A-18 – ORDER TERMINATING PARENTAL RIGHTS.

SDCL 25-6-1.1 – FATHER OF ILLEGITIMATE CHILD NOT ENTITLED TO NOTICE OF

ADOPTION UNLESS ACKNOWLEDGED.

SDCL 25-7-16 -- CRIMINAL NONSUPPORT. A PARENT WHO INTENTIONALLY OMITS

TO FURNISH NECESSARY SUPPORT IS GUILTY OF MISDEMEANOR. IF A PARENT

LEAVES THE STATE FOR MORE THAN 30 DAYS DURING A VIOLATION, NONSUPPORT

IS A FELONY.

SDCL 25-10-1 -- DOMESTIC ABUSE— DEFINITIONS.

SDCL 25-10-13 -- VIOLATION OF PROTECTION ORDER OR NO CONTACT ORDER AS

MISDEMEANOR OR FELONY.

CHAPTER 26 - MINORS

SDCL 26-7A-12 -- TEMPORARY CUSTODY BY LAW ENFORCEMENT OFFICER OR

COURT SERVICES OFFICER WITHOUT COURT ORDER.

SDCL 26-7A-13 -- COURT-ORDERED TEMPORARY CUSTODY—NOTICED HEARING—

WITHOUT NOTICED HEARING.

SDCL 26-7A-15 -- NOTICE TO PARENTS, GUARDIAN, OR CUSTODIAN OF CHILD

TAKEN INTO TEMPORARY CUSTODY –NOTICE OF HEARING—INFORMATION TO

INDIAN CUSTODIAN OR DESIGNATED TRIBAL AGENT.

SDCL 26-7A-15.1 -- PROCEEDINGS UNDER CERTAIN CHAPTERS TO WHICH ICWA 1

APPLIES – PROCEDURES.

SDCL 26-7A-15.2 -- FORM OF NOTICE TO PARENT, CUSTODIAN, OR INDIAN TRIBE

OF CHILD CUSTODY PROCEEDING.

SDCL 26-7A-17-- NOTICE TO STATE’S ATTORNEY OF CHILD TAKEN INTO

TEMPORARY CUSTODY—WRITTEN REPORT--NOTICE TO COURT.

SDCL 26-7A-18 -- TEMPORARY CUSTODY HEARING –BEST INTERESTS OF CHILD—

CONDUCTED TELEPHONICALLY.

SDCL 26-7A-19 -- OPTIONS OF COURT FOLLOWING TEMPORARY CUSTODY

HEARING FOR ABUSED OR NEGLECTED CHILD.

SDCL 26-7A-19.1 -- PREFERENCE FOR PLACEMENT OF ABUSED OR NEGLECTED

CHILD WITH RELATIVES AFTER HEARING.

SDCL 26-7A-27-- POLICE RECORDS OF CHILDREN TAKEN INTO TEMPORARY

CUSTODY—CONFIDENTIALITY.

SDCL 26-7A-30 -- DUTY OF COURT TO ADVISE CHILD, PARENTS, GUARDIAN, OR

CUSTODIAN OF RIGHTS--REPRESENTATION BY ATTORNEY—MOTION FOR NEW

HEARING.

SDCL 26-8A-27— TERMINATION OF PARENTAL RIGHTS.

SDCL 26-8A-26.1 – VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

SDCL 26-10-1 -- ABUSE OF OR CRUELTY TO A MINOR IS A FELONY.

SDCL 26-10-30 -- PERMITTING PHYSICAL OR SEXUAL ABUSE OF CHILD AS A

FELONY.

SDCL 26-10-31-- CAUSING CHILD TO BE PRESENT WHERE METHAMPHETAMINES

USED, DISTRIBUTED, OR MANUFACTURED AS A MISDEMEANOR.

C. REPORTING STATUTES AND IMMUNITY FROM LIABILITY

South Dakota law requires that certain professionals report child abuse or neglect.

Those who are not mandated are permitted to report. SDCL 26-8A-3. Mandatory reporters are

to report orally and immediately by telephone or otherwise to the state’s attorney of the

county in which the child resides or is present, to the Department of Social Services (DSS), or to

Indian Child Welfare Act (ICWA)

law enforcement oﬃcers. SDCL 26-8A-8. A mandatory reporter who has reasonable cause to

suspect that a child under the age of eighteen has been abused or neglected as deﬁned in SDCL

26-8A-2 shall report that information. Any person who knows or has reason to suspect that a

child has been abused or neglected as deﬁned in SDCL 26-8A-2 may report that information as

provided in SDCL 26-8A-8. Central intake number to report suspected abuse or neglect: 1-877-

244-0864.

The following list summarizes most of the statutes from SDCL 26-8A related to

reporting, SDCL 26-8A-3 is a comprehensive list of mandatory reporters:

1. Any person who has reasonable cause to suspect that a child has died

as a result of child abuse or neglect shall report that information to the

medical examiner or coroner. SDCL 26-8A-4.

2. Hospitals must have a written policy regarding reporting. Staﬀ of a

hospital or similar institution shall immediately notify the person in

charge of the institution, or his designee of suspected abuse or neglect

and that person must make a report. The person required to report

shall promptly submit all medical examination, treatment, and hospital

records regarding the child to the state’s attorney. SDCL 26-8A-6.

3. Schools (public or private, whether accredited or unaccredited) shall

have a written policy regarding reporting of child abuse and neglect.

When any person has contact with a child through the performance of

services in any school shall notify the school principal or school

superintendent or designee of suspected abuse or neglect. The

superintendent or school principal shall make a report. SDCL 26-8A-7.

4. The person receiving the report shall ask the reporting party if they

would like a written response as to whether the report will be

investigated. When the state’s attorney and law enforcement receive a

report, they shall immediately notify DSS. SDCL 26-8A-8.

5. A report of child abuse or neglect shall be investigated by the DSS or

law enforcement oﬃcers. SDCL 26-8A-9.

6. Investigating personnel may personally interview a child outside the

presence of the child’s parent, guardian, or custodian without advanced

notice or consent. SDCL 26-8A-9.

7. DSS 1 is the central registry for child abuse and neglect reports. SDCL 26-

8A-10. This is a separate administrative process, independent of the

Department of Social Services (DSS)

court proceedings. Parents receive notice from DSS of this process and

their right to appeal.

8. All investigative case records and ﬁles relating to reports of child abuse

or neglect are conﬁdential and no disclosure of any such records, ﬁles,

or other information may be made except as authorized by law. SDCL

26-8A-13.

9. DSS may release information as authorized by SDCL 26-8A-13.

10. Any person or party participating in good faith in the making of a report,

or the submitting of copies of medical examination, treatment, or

hospitalization records is immune from any liability, civil or criminal.

SDCL 26-8A-14. Intentional failure of a mandatory reporter to make a

required report under SDCL 26-8A-8 could result in charges of a Class 1

misdemeanor.

D. ROLE OF CHILD’S ATTORNEY

One of the strengths of the judicial process in child abuse and neglect cases is the

requirement that the child be represented by an attorney. SDCL 26-8A-18. A special

advocate may be appointed to represent the best interest of the child and to assist the

child’s attorney. SDCL 26-8A-20. The child’s attorney and advocate have the function of

protecting the child’s best interest.

In achieving a speedy resolution to the case, and ensuring that children have stable,

caring, and supportive families, the attorney has the following responsibilities:

1. Make cases involving child abuse and neglect a priority over all other

cases. SDCL 26-7A-33.

2. Meet and continue to communicate with the child and become

familiar with the child’s past either by way of interviews with the

child, his/her parents, family services specialists, counselors, teachers

or others familiar with the child.

3. If the child is of another culture, acquire knowledge of that culture,

including child rearing practices and communication barriers.

4. Obtain and review all discovery materials.

5. Interview all prospective witnesses prior to hearing.

6. Protect child’s best interest while maintaining due process rights of

the parents.

7. Advocate for a speedy resolution through adjudication and

disposition.

8. Protect the child from testifying in court if proceedings may be a

signiﬁcantly traumatic event that harms the child. SDCL 19-19-806.2,

19-19-807.

9. Take all steps reasonably necessary to ease the eﬀects that testifying

may have on the child. SDCL 26-8A-30.

10. Monitor deadlines and notice requirements and advocate for

compliance.

11. Take an active role in all proceedings aﬀecting the child, including

presenting evidence at the adjudicatory hearing. In the Interest of

T.A., 2003 S.D. 56, ¶ 18, 663 N.W.2d 225, 232-33.

12. Recommend removal from the home only upon showing that there is

substantial risk of harm to the child that cannot be managed in the

home.

13. Monitor compliance with the Indian Child Welfare Act (ICWA).

*According to Presiding Judge Policy 3-PJ-5 “An attorney appointed to represent abused

and neglected children, including those appointed as guardian ad litem, shall certify that they

have viewed and completed the abuse and neglect attorney training developed by the South

Dakota Uniﬁed Judicial System” http://ujsatv.sd.gov/UJS Video Training Series

E. ROLE OF THE DEPARTMENT OF SOCIAL SERVICES – CHILD PROTECTION SERVICES

(DSS-CPS)

1. Provide Accurate and Timely Information

a. Family Services Specialist (FSS) must present clear, factual, and current

updates about the child’s safety, well-being, and progress.

b. FSS staﬀ must reﬂect any changes in the child’s living situation, health,

or family dynamics in reports and communications.

c. FSS staﬀ must include detailed information on family assessments,

safety planning, and case management activities.

2. Ensure the Child’s Safety

d. FSS staﬀ must prioritize the child’s safety and welfare in all decisions,

interactions, and court documents.

e. FSS staﬀ must be prepared to provide testimony regarding the child’s

safety, protective measures, and permanency goals.

f. FSS staﬀ must recommend and oversee the implementation of services

that support the child’s and family’s progress.

3. Coordinate and Collaborate

g. FSS staﬀ must work closely with attorneys, judges, and other

professionals to ensure timely and comprehensive case details are

provided.

h. FSS staﬀ must partner with law enforcement, healthcare providers, and

educators to gather relevant information and ensure the child’s well-being.

i. FSS staﬀ must utilize community resources eﬀectively to address the

needs of the child and family.

4. Prepare for and Participate in Court Proceedings

j. FSS 1 staﬀ must deliver clear, evidence-based testimony, avoiding

speculation.

k. FSS staﬀ must submit accurate and thorough reports to the court in

advance of hearings.

l. FSS staﬀ must maintain professionalism and impartiality during all court

interactions.

5. Promote Case Resolution and Permanency

m. FSS staﬀ must facilitate timely case progression to avoid unnecessary

delays, ensuring the child’s safety and stability.

n. FSS staﬀ must engage in permanency planning, continuously reassessing

the child’s needs to identify long-term solutions.

o. FSS staﬀ must support reuniﬁcation eﬀorts by clarifying court processes

and connecting families with necessary resources.

6. Document and Maintain Conﬁdentiality

p. FSS staﬀ must record signiﬁcant developments in the case and

communicate these to the appropriate parties, including the court.

q. FSS staﬀ must protect case information by maintaining strict

conﬁdentiality and sharing details only with authorized individuals.

F. ROLE OF COURT APPOINTED SPECIAL ADVOCATE (CASA)2South Dakota CASA

CASA refers to a court appointed special advocate—a trained community

volunteer appointed by a judge to represent the best interests of abused and

neglected children in court. The CASA concept is founded on the belief that every

child deserves a safe, loving, and permanent home.

Family Services Specialist (FSS)

https://sdcasa.org/

1. Training

Before being assigned to any case, CASA volunteers must meet the following

criteria:

a. pass a background check,

b. receive a minimum of 30 hours of pre-service training,

c. receive 12 hours of annual continuing educational training,

d. take an oath of oﬃce, and

e. receive an appointment by a judge.

2. Appointment To Individual Cases

The court enters an order appointing the volunteer to the case and granting the

volunteer access to the child’s record.

3. Reports

The CASA volunteer manages the case by reviewing records and talking to people

who have information about the child—parents, teachers, neighbors, doctors, school

oﬃcials and others with information. The CASA volunteer’s most important task is to get

to know the child.

The CASA volunteer appointed to a case participates in court hearings and

submits a report to the court, including a recommendation regarding placement.

4. Speaking For The Child

The CASA 1 volunteer helps the child understand the court process and answers

questions for the child. The volunteer advocates to the judge of the child’s needs and

views. The volunteer helps keep the case moving towards a permanent outcome.

5. Assignment Of A CASA

In most counties, the local CASA oﬃce will generate a petition and order —

accompanied by a judge’s signature on the order — appointing a CASA volunteer to a

case.

G. INTERSTATE COMPACT PLACEMENT PROCESS (ICPC)

The Interstate Compact on the Placement of Children (ICPC) is a binding agreement

enacted in all 50 states, the District of Columbia, and the Virgin Islands, designed to ensure the

safety, stability, and well-being of children placed across state lines. Governed by South Dakota

Codiﬁed Law (SDCL 26-13) and administrative rules (ARSD 67:14:31:55), the ICPC applies to

placements initiated by public and private agencies, courts, attorneys, physicians, or individuals.

Exemptions include placements with speciﬁc relatives, such as parents, stepparents,

grandparents, adult siblings, and legal guardians, as well as placements in educational or

medical facilities. However, children in the legal custody of the state are always subject to ICPC

requirements.

Court Appointed Special Advocate (CASA)

Placements across state lines require a structured process to ensure compliance

with the Compact. The South Dakota Division of Child Protection Services (CPS) oversees

these requests through the Interstate Compact Administrator. Written approval from the

receiving state, via the ICPC-100A form, is mandatory before any placement occurs. This

applies to foster care 1, adoption, and other placements involving children in state

custody. Speciﬁc documentation must accompany placement requests, including court

orders, medical and educational records, family history, and case service plans. For

adoptions, additional steps involve conﬁrming the child is legally free for adoption and

obtaining agreements with Native American tribes, when applicable, under the Indian

Child Welfare Act (ICWA). Local oﬃces must defer to the CPS 2 State Oﬃce for all ICPC

reviews, ensuring placements meet state and Compact requirements.

H. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)

The UCCJEA is a uniform state law drafted by the National Conference of

Commissioners on Uniform State Laws (now the Uniform Law Commission) and enacted

by all states (with the exception of Massachusetts), the District of Columbia, Guam, and

the Virgin Islands. The UCCJEA addresses a court’s subject matter jurisdiction in child

custody cases, speciﬁcally answering the question of whether a court has the power to

decide a custody case in which more than one state, tribe, or territory is involved. The

law speciﬁes which court has the power to decide a custody case, not how the court

should decide the case, which is governed by the jurisdiction’s general child custody

laws.

Synonymous to “Out-of-Home Placement”

Child Protective Services (CPS)

III. INDIAN CHILD WELFARE ACT (ICWA)

The Indian Child Welfare Act, commonly known as "ICWA," is codiﬁed at 25 U.S.C. §

1901-1963. Both ICWA and the Bureau of Indian Aﬀairs (BIA) provide guidelines for state courts

in administering ICWA cases.

The South Dakota Supreme Court mandates compliance with ICWA in all abuse

and neglect cases involving an Indian child litigated in the Circuit Courts of the state of

South Dakota. People in Interest of C.R.M., 307 N.W.2d 131, 132 (S.D. 1981).

ICWA 1 applies when a child is an "Indian child" and "child custody proceedings"

are involved. ICWA deﬁnes "Indian child" as "any unmarried person who is under the age

of 18 and is either:

(a) a member of an Indian tribe; or

(b) is eligible for membership in an Indian tribe and is the biological child of a

member of an Indian tribe.” 25 U.S.C. § 1903(4).

ICWA and the BIA Guidelines deﬁne "child custody proceedings" as speciﬁcally

including the following:

1. Foster 2 care placement, which is any action removing an Indian child

from his or her parent or Indian custodian for temporary placement in

a foster home or institution or the home of a guardian or conservator

where the parent or Indian custodian cannot have the child returned

upon demand, but where parental rights have not been terminated.

2. Termination of parental rights, which is any action resulting in the

termination of a parent-child relationship.

3. Pre-adoptive placement, which is the temporary placement of an

Indian child in a foster home or institution after the termination of

parental rights, but prior to or in lieu of adoptive placement; or

4. Adoptive placement, which is the permanent placement of an Indian

child for adoption, including any action resulting in a ﬁnal decree of

adoption. 25 U.S.C. § 1903(1)(i)(iv), BIA 3 Guidelines § 23.2.

Jurisdiction between state and tribal courts can be exclusive or concurrent. If

jurisdiction is exclusive, the state court cannot make any legal ﬁndings unless it is

exercising emergency jurisdiction to prevent imminent physical damage or harm to the

child. 25 U.S.C. § 1922. If jurisdiction is concurrent, the state retains jurisdiction over

case proceedings unless the tribe intervenes, and the case is transferred to the tribe.

A. JURISDICTION

Indian Child Welfare Act (ICWA)

Synonymous to “Out-of-Home Placement”

Bureau of Indian Aﬀairs (BIA)

1. Exclusive Jurisdiction

The tribe has exclusive jurisdiction in any of the following situations:

a. Child is a ward of the tribal court, regardless of where the child resides

or is domiciled.

b. Child resides within the reservation of his or her tribe; or

c. Child is domiciled within the reservation.

Exclusive jurisdiction is not at transfer of jurisdiction because, absent emergency

jurisdiction, the state court has no authority to act. This means the state cannot make an

adjudicatory ﬁnding. Instead, the tribe should make arrangements to come and get the child

and the case should be dismissed with the State noting that the tribe had jurisdiction. 25 U.S.C.

§ 1911(a); Matter of Adoption of Halloway, 732 P2d 962 (Utah 1986).

2. Intervention

Once the court conﬁrms that ICWA applies, a tribe may intervene at any point during a

case. 25 USC § 1911(c). The intervention can be telephonically or orally, and at times tribes may

intervene at the Emergency Hearing (Temporary Custody Hearing).

If a tribe intervenes without a motion to transfer, the proceedings stay in state court and

the tribe can fully participate in the proceedings, either through a representative or an attorney.

3. Transfer

Tribes can move to transfer the proceeding from state court to tribal court. 25 U.S.C. §

1911(b). The state court must transfer the case unless a parent objects, or if there is good

cause to the contrary. “Good cause” for denying a transfer can may include:

a. The proceeding is at an advanced stage (when the petition to transfer is

received and the petition is not promptly ﬁled after receipt of notice.

b. The child is over the age of 12 and objects to the transfer.

c. Evidence necessary to decide the case cannot be adequately presented

to the tribal court without undue hardship to witnesses and parties; and

d. The parents of a child over the age of 5 are not available and the child

has had little or no contact with the child’s tribe or members of the

child’s tribe. See: In re D.M., 685 N.W.2d 768, 2004 S.D. 90

Note: The party opposing the transfer has the burden of establishing good cause.

B. PLACEMENT PREFERENCES 1

1. ICWA Placement Hierarchy

In any placement of an Indian Child under state and federal law, a preference shall be

given, in the absence of good cause to the contrary, to a placement with:

a. A member of the child’s extended family.

b. Other members of the Indian Child’s tribe; or

c. Other Indian families.

See 25 U.S.C. § 1915(a)

2. Tribal Override of Placement Preferences.

A tribe can also establish a diﬀerent order of preference and DSS/State court shall

follow those preferences. 25 USC §1915(c).

3. Deviation of ICWA Preferences.

There can be good cause to deviate from the ICWA preferences. A court’s decision to

deviate should be based on one or more of the following:

a. Request by one or both of the parents.

b. Request of the child, if the child is of suﬃcient age and capacity to

understand the decision that is being made.

c. The presence of sibling attachment that can be maintained only through

a particular placement.

d. The extraordinary physical, mental, or emotional needs of the child; and

e. Unavailability of a suitable placement (i.e., lack of Native American foster

homes).

4. Testimony of a QEW

A Qualiﬁed Expert Witness (“QEW”) may be necessary to testify as to whether or not

good cause exists to deviate from placement preferences at diﬀerent stages of the case. A QEW

is described below.

C. QUALIFIED EXPERT WITNESS UNDER THE ICWA

There has been much discussion to clarify what constitutes a "qualiﬁed ICWA 1 witness."

The BIA 2 sets forth guidelines to help state courts decide what constitutes a qualiﬁed expert

witness (QEW) under ICWA. Persons with the following characteristics are most likely to meet

the requirements for a QEW for Indian Child custody proceedings:

1. A member of the Indian child's tribe who is recognized by the tribal

community as knowledgeable in tribal customs as they pertain to family

organization and childrearing practices.

2. A member of another tribe who is recognized to be a QEW by the Indian

child’s tribe based on their knowledge of the delivery of child and family

services to Indians and the Indian child’s tribe.

3. A lay person who is recognized by the Indian child’s tribe as having

substantial experience in the delivery of child and family services to Indians,

and knowledge of prevailing social and cultural standards and childrearing

practices within the Indian child's tribe; and

4. A professional person having substantial education and experience in the

area of his or her specialty who can demonstrate knowledge of the prevailing

social and cultural standards and childrearing practices within the Indian

child’s tribe. People ex rel. A.B., 2016 S.D. 44, ¶ 18, 880 N.W.2d 95, 102.

Indian Child Welfare Act (ICWA)

Bureau of Indian Aﬀairs (BIA)

However, these are merely guidelines and do not have a binding legislative eﬀect on any

of the courts of the state of South Dakota. Matter of S.D., 402 N.W.2d 346, 350 (S.D. 1987). The

courts in the state of South Dakota have indicated that there is already "ﬁrm guidance" as to

whom shall be considered an expert witness in South Dakota. Matter of K.A.B.E., 325 N.W.2d

840, 843-844 (S.D. 1982). As far as the South Dakota Supreme Court is concerned:

A witness is an expert witness and is qualiﬁed to give expert testimony

if the judge ﬁnds that to perceive, know or understand the matter

concerning which the witness is to testify, requires special knowledge,

skill, experience, or training and that the witness has the requisite

special knowledge, skill, experience or training. The qualiﬁcations and

competency of a witness to give opinion evidence is primarily in the

discretion of the trial court and his ruling in determining qualiﬁcations

will not be disturbed unless there is no evidence that the witness had

the qualiﬁcation of an expert, or the trial court has proceeded upon

erroneous legal standards. K.A.B.E., at 844.

Whether an expert witness is in fact "qualiﬁed" is within the sound discretion of the trial

court. The lower court's ruling would be disturbed only in the case of clear abuse of discretion.

Matter of J.L.H., 316 N.W.2d 650, 651-52 (S.D. 1982).

The QEW and the Court focus must be whether continued custody with a parent or

Indian custodian is likely to cause serious emotional and/or physical harm to the child and a

diﬀerent placement is necessary to prevent such harm.

D. ICWA CONSIDERATIONS/INQUIRIES AT EACH HEARING

1. Temporary Custody Hearing (TCH) 1

a. Even though written notice may not be possible, CPS should be

reaching out to the tribe and the parents by phone and/or email

to provide notice of the hearing.

b. At the hearing always ask parents if they are aﬃliated with a tribe.

c. Parental aﬃliation with a tribe does not trigger an automatic

application of ICWA; however, ICWA MAY apply. The State and CPS

should provide notice to the named tribes and the BIA for

conﬁrmation.

d. Although a TCH does not require a QEW 2, the court should still

consider whether removal of the child(ren) was necessary to

prevent imminent danger and whether the child(ren) would likely

experience serious physical and/or emotional harm if returned to

their parent without further investigation.

e. CPS should be looking at family placement, when possible, for

placement under ICWA guidelines and SDCL § 26-7A-19.1.

Also Known as “Emergency Hearing” or “48 Hour Hearing”

Qualiﬁed Expert Witness (QEW)

f. The Court should authorize the release of information to the tribe if it is

believed that ICWA may be applicable and include the release in the TCH

Order.

2. Advising

a. At the Advising Hearing the Court should again inquire if the

parents are aﬃliated with a tribe, and if so, what notice has been

provided to the tribe(s).

b. The parents should be advised regarding the possibility of

transferring the case to their tribe, which is discussed above. The

tribe can make a motion to transfer the case to tribal court and

the parents have a right to make a motion to the tribe to transfer

the case. However, the tribe has a right to deny a parent’s motion

to transfer to tribal court, just as the parents have a right to object

to the tribe’s motion to transfer to tribal court.

c. Parents should be advised as to the burdens of proof at

adjudication (clear and convincing evidence), and the burden of

proof at disposition (proof beyond a reasonable doubt).

d. The Court should inquire as to placement and whether the

children are placed in an ICWA 1 placement preference and if not,

inquire as to the good cause for deviation from the placement

preferences.

3. Adjudication

a. If ICWA has been conﬁrmed by the court to apply to the

proceeding, the tribe is required notice, via certiﬁed receipt

mail, at least 10 days prior to the hearing, and the tribe may ask

for an additional 20 days to prepare for the hearing.

b. If there is a contested hearing, the QEW should testify as to

whether removal was necessary to prevent serious

emotional/physical harm to the child. If the hearing is not

contested, parents can stipulate to this ﬁnding.

c. Placement should be addressed at adjudication. If placement is

outside of the placement preferences (above), then the

prosecutor must present an aﬃdavit or testimony from a QEW as

to good cause to deviate from ICWA placement preferences. If the

hearing is not contested, then the QEW can prepare an aﬃdavit as

to good cause and it must be ﬁled with the adjudicatory order. If

the hearing is contested, then the QEW should provide testimony

about during the hearing.

i. Note: How this is handled is a determination made by

the prosecution and circuit court of the jurisdiction the

proceeding is being handled in; however, placement

Indian Child Welfare Act (ICWA)

needs to be addressed immediately if ICWA is

applicable.

d. The state’s burden of proof at adjudication is clear and convincing

evidence.

4. Active Eﬀorts

a. Active eﬀorts must be made to provide remedial services and

rehabilitative programs designed to prevent the breakup of the

family. 25 U.S.C. § 1912(d).

i. Active eﬀorts are eﬀorts that are more than passive.

“Active eﬀorts occur when the FSS 1 worker takes the

client through the steps of the plan rather than

requiring that the plan be performed on its own.”

People In Interest of SHE, 824 N.W.2d 420, 426, 2012

S.D. 88, ¶ 21.

ii. Active eﬀorts must be provided to the family as a whole,

regardless of a parent’s location. In addition, DSS 2 must

provide active eﬀorts to a parent who is incarcerated,

even though DSS’s eﬀorts will be limited due to the

parent’s incarceration. See Id.

iii. The state cannot be relieved from providing active

eﬀorts in ICWA cases under SDCL §26-8A-21.1.

5. Review Hearing

a. The court should make a record if the tribe(s) received proper

notice. Proper notice is 10 days’ notice by certiﬁed mail.

b. The court should make ﬁndings as to what active eﬀorts are being

made, and whether continued placement is necessary in order to

prevent serious emotional or physical damage to the child(ren).

c. Placement preference should be addressed at every review

hearing. 25 U.S.C. § 1915(b) or (c).

6. Disposition

a. The tribe(s) must receive notice of a petition to terminate parental

rights and notice of the scheduled dispositional hearing.

b. If a tribal representative is present at the hearing, the court may

oﬀer them an opportunity to be heard on the record without the

present of an attorney.

c. A QEW 3 is required to testify as to whether continued custody by

biological parent(s) is likely to cause serious physical and/or

emotional harm to the child.

Family Services Specialist

Department of Social Services (DSS)

Qualiﬁed Expert Witness (QEW)

d. There must be a record made of active eﬀorts by CPS 1 to prevent

the breakup of the Indian family.

e. The court must ﬁnd beyond a reasonable doubt that termination

of parental rights is the least restrictive alternative and is in the

child’s best interests.

7. Good Cause Hearing Post-Termination

a. The ICWA 2 still applies even if the biological parents’ rights have

been terminated because the child’s placement still needs to be

determined.

b. A good cause hearing needs to be set before any adoptive hearing

if the Indian child is not in an ICWA placement preference. Notice

of the good cause hearing must be given to the tribe(s).

c. The DSS 3 will need to state their eﬀorts for placement preference

either by court report, aﬃdavit, or testimony at the hearing what

eﬀorts they have made to identify placement within the ICWA

guidelines and the good cause they have to deviate from the

placement preferences.

d. Any proposed placement plan should include a cultural plan, and

DSS should note whether the tribe(s) has responded and if they

are in agreement with the proposed adoptive plan and placement.

e. The court must enter ﬁndings of fact and conclusions of law and

an order as to any good cause ﬁnding.

Child Protective Services (CPS)

Indian Child Welfare Act (ICWA)

Department of Social Services (DSS)

ICWA FLOW CHART

B. FLOW CHART TO DETERMINE THE APPLICABILITY OF THE INDIAN WELFARE ACT OF 1978

STEP 1

Is the child involved an

Indian child within the

ICWA does not apply.

terms of the act? No

Yes

Is the child under the age of

18?

Yes

Is the child unmarried?

Yes

Is the child either (1) a

member of an Indian tribe,

or (2) eligible for

enrollment in an Indian No

tribe?

Note: 34 U.S. Code § 12133 – “Indian tribe” defined

“Indian tribe” means a tribe, band, pueblo, nation, or

other organized group or community of Indians, including

Continue to STEP 2

Alaskan Native village (as defined in or established under

the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et

seq.) [1] that is recognized as eligible for the special

programs and services provided by the United States to

Indians because of their status as Indians.

ICWA Determination

STEP 2

Does the proceeding involve

removal of the child for ICWA does not

temporary placement where the apply.

parent or Indian Custodian No

Yes

cannot have the child returned

upon demand?

Does the proceeding involve

the voluntary or involuntary

termination of the parent-

Yes child relationship? No

Does the proceeding

involve a pre-adoptive

Yes placement of the child? No

Does the court

proceeding involve the

adoptive placement of

Yes the child? No

Does the court proceeding

involve a status offense?

Yes

Continue to STEP 3

ICWA Determination

STEP 3

Is the Indian child domiciled on a ICWA governs

reservation? proceedings.

Yes No

Is the Indian child a ward of a

tribal court?

Yes No

Tribe has

exclusive

jurisdiction.

Has the state court

granted a petition to

transfer the proceeding

Yes No

to a tribal court?

Case transfers

to the tribe.

IV. PROTECTIVE CUSTODY/INTAKE

In cases of suspected child abuse or neglect, the investigator must realize that

the priority is protection of the child. If the law enforcement oﬃcer believes the

conditions under SDCL 26-7A-12(2) or (4) exist, or if the court believes that any of the

conditions under SDCL 26-7A-13 exist, it may be necessary to place the child in

temporary custody to ensure the child’s safety and well-being.

After the initial placement but before the temporary custody (48-Hour) hearing,

CPS 1 may still explore a Present Danger Plan option (PDP) with the parents and if a PDP

option has been identiﬁed CPS may request a dismissal from the State’s Attorney’s Oﬃce

and a dismissal may be presented to the court prior to the 48-hour hearing.

A. WHEN LAW ENFORCEMENT TAKES CUSTODY

A law enforcement oﬃcer can lawfully take a child into custody under the following

conditions:

1. If the child is abandoned or seriously endangered in the child’s surroundings

or is seriously endangering others and immediate removal of the child

appears to be necessary for the child’s protection or for the protection of

others. SDCL 26-7A-12(2).

2. If the oﬃcer reasonably believes that temporary custody is warranted

because there exists an imminent danger to the child’s life or safety and

there is no time to apply for a court order and the child’s parents, guardian,

or custodian refuse an oral request for consent to the child’s removal from

their custody or the child’s parents, guardian, or custodian are unavailable.

SDCL 26-7A-12(4).

When law enforcement takes custody of the child, the oﬃcer must ﬁll out a temporary

custody directive and serve it on the parents when possible.

B. COURT ORDERED PLACEMENT WITH NOTICED HEARING:

The court may order temporary custody of a child within the jurisdiction of the court

during any noticed hearing. SDCL 26-7A-13.

C. AUTHORITY FOR A PICK-UP AND PLACE ORDER WITHOUT NOTICED

HEARING:

Without noticed hearing, the court or an intake oﬃcer may immediately issue a

written temporary custody directive in the following instances on receipt of an aﬃdavit

or, in the absence of a written aﬃdavit when circumstances make it reasonable, on

receipt of sworn oral testimony communicated by telephone or other appropriate

means:

Child Protective Services (CPS)

1. An application by a state’s attorney, FSS 1 of DSS 2, or law

enforcement oﬃcer stating good cause to believe as follows:

a. the child is abandoned or is seriously endangered by the child’s

environment; or

b. there exists an imminent danger to the child’s life or safety and

immediate removal of the child from the child’s parents,

guardian, or custodian appears to be necessary for the

protection of the child. The court should enter a written order

under SDCL 26-7A-13, authorizing the child’s placement into the

custody of DSS, and that order should be provided to the

parents as notice that the child has been placed into the

temporary custody of DSS.

D. CONTACTING AN INTAKE OFFICER

A law enforcement oﬃcer who removes a child from home shall immediately contact an

intake oﬃcer, who shall hold an intake hearing. SDCL 26-7A-13.1. Intake oﬃcers are circuit

judges or their designees, but not court services oﬃcers, law enforcement oﬃcers, or state’s

attorneys. SDCL 26-7A-1(20). If possible, the FSS 3 and law enforcement oﬃcer should contact

the intake oﬃcer together, to obtain approval for an out-of-home placement until a temporary

custody (48 hour) hearing is held if the child is not released from custody. Available placement

options should be prepared by a FSS.

A temporary custody directive form is available to follow along with the intake oﬃcer

during the hearing. Reviewing the temporary custody directive form ahead of time is

recommended. This will help in knowing what the intake oﬃcer is looking for and what will be

considered in determining whether to continue the removal of the child from the home.

E. PURPOSE OF AN INTAKE HEARING

The intake hearing is to decide whether a child should be held in temporary

custody following initial removal by a law enforcement oﬃcer and pending further

hearings by the court. Intake is an independent judicial review of a law enforcement

oﬃcer’s decision to remove the child.

No child may be held in temporary custody longer than 48 hours excluding

Saturdays, Sundays, and court holidays unless a temporary custody petition or other

petition has been ﬁled, the child is within the jurisdiction of the court, and the court

orders longer custody during a noticed hearing or a telephonic hearing. SDCL 26-7A-14;

Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69 ¶¶ 13-14, 822 N.W.2d 62, 66.

F. PROCEDURES FOR AN INTAKE HEARING

Family Services Specialist (FSS)

Department of Social Services (DSS)

Family Services Specialist (FSS)

1. May be telephonic or other appropriate means. SDCL 26-7A-13.

2. Rules of evidence do not apply. SDCL 26-7A-56.

3. Rules of procedure do not apply. SDCL 26-7A-56.

4. No record is needed.

5. May immediately issue a written temporary custody directive. SDCL

26-7A-13.

G. OPTIONS AT AN INTAKE HEARING

1. The child may be placed in the temporary care of the DSS 1, foster

care 2, or shelter care as designated by the court to be the least

restrictive alternative. SDCL 26-7A-14, SDCL 26-7A-16.

2. Detention is not an option for abused or neglected children. SDCL 26-

7A-26.

3. Jail is not an option for abused or neglected children. SDCL 26-7A-

26(¶1).

H. NOTICE

1. Immediate notice to parents (custodial and noncustodial), guardian,

or custodian of child taken into temporary custody. SDCL 26-7A-15.

2. Notice to the state’s attorney at the earliest opportunity. SDCL 26-7A-

17.

Department of Social Services (DSS)

Synonymous to “Out-of-Home Placement”

V. TEMPORARY CUSTODY HEARING (48-HOUR HEARING)

A. TEMPORARY CUSTODY HEARING (48-HOUR HEARING)

The temporary custody hearing (48-hour hearing) is the initial stage of the formal

court process. SDCL 26-7A-15 requires that a hearing be held within 48 hours of the child

being placed in the emergency temporary custody of DSS. The state’s attorney’s oﬃce is

required to provide notice, without unnecessary delay, of the date, time, and place of

the hearing to the parents, guardian, or custodian. If the temporary custody hearing

concerns an apparent abused or neglected Indian child, the state’s attorney or DSS shall

make reasonable eﬀorts to inform the Indian custodian and the designated tribal agent

for the Indian child’s tribe, if known, of the date, time, and place of the hearing. Failure

to notify the child’s parents, guardian, or custodian, or to inform the Indian custodian or

the designated tribal agent, of the temporary custody hearing is not cause for delay of

the hearing if the child is represented by an attorney. At the temporary custody hearing

the court has the following options available:

1. Order the release of the child from temporary custody, either with or

without restriction or condition or upon written promise of the child’s

parents, guardian, or custodian regarding the care and protection of

the child, SDCL 26-7A-19;

2. Transfer the case to the child’s tribe (either exclusive or concurrent

jurisdiction);

3. Transfer the case to another venue (case is proper wherever the child

and mother are domiciled), SDCL 26-7A-3; or

4. Continue temporary custody of the child under the terms and

conditions for duration and placement that the court requires,

including placement of temporary custody of the child with DSS, in

foster care, or shelter. The court and DSS shall give placement

preference to a relative, custodian, or an individual, not related by

birth, adoption, or marriage, but with an emotionally signiﬁcant

relationship with the child, who is available, qualiﬁed, and provided

that the placement with that relative, custodian, or individual is in the

best interest of the child. SDCL 26-7A-19.

If the temporary custody of the child is continued, the court may grant family time 1 to

the child’s parents, guardian, or family member with the child in order maintain the best

interests of the child. If the child is in temporary custody of DSS 2 and has not been adjudicated

as an abused or neglected child, the court shall review the child’s temporary custody placement

at least once every 60 days.

At the temporary custody (48 hour) hearing, the court will consider information as to

why the children were removed, this information includes police reports, DSS reports, a

statement from the state’s attorney’s oﬃce, and any other information necessary for the court

Also known as “Visitation”

Department of Social Services (DSS)

to decide as to which option is in the best for the child. The court may also appoint attorneys at

this stage if it’s clear the case will move on to the next stage of the proceedings.

Pursuant to SDCL 26-7A-18, at the temporary custody (48-hour) hearing the court shall

consider evidence of the need for continued temporary custody of the child in keeping with the

best interests of the child. While the burden of proof for the temporary custody hearing is not

speciﬁcally enumerated in SDCL 26-7A or SDCL 26-8A, pursuant to SDCL 26-7A-18, the court’s

primary consideration at this stage is not intended to address the merits of the case, but rather

to determine whether continued temporary custody outside the home is necessary to protect

the child. If ICWA 1 applies, the court must address the question as to whether continued

custody is necessary to prevent imminent physical damage or harm to the minor child. SDCL

26-7A-19 gives the options for the court regarding placement of the child following the

temporary custody hearing.

1. HOLD THE HEARING WITHIN 48 HOURS (excluding Saturdays, Sundays

and holidays) SDCL 26-7A-14.

2. IT IS A CLOSED HEARING absent a compelling reason to open it. SDCL

26-7A-36.

3. MAY BE TELEPHONIC. SDCL 26-7A-18.

4. BEST INTERESTS OF THE CHILD At the temporary custody hearing the

court shall consider the evidence of the need for continued temporary

custody of the child in keeping with the best interests of the child.

SDCL 26-7A-18.

5. RULES OF EVIDENCE DO NOT APPLY Instead; the court may design its

own rules of evidence and procedure to fully inform the court of the

exact status of the child. SDCL 26-7A-56.

6. A VERBATIM RECORD SHALL BE TAKEN OF ALL HEARINGS, except

telephonic temporary custody hearings held pursuant to SDCL 26-7A-

13, SDCL 26-7A-35.

7. CONTINUE (only if necessary) the hearing for not more than 24 hours

if additional information or witnesses are needed but resolve as many

issues as possible before continuing the hearing.

8. ISSUE A TEMPORARY CUSTODY ORDER

9. SCHEDULE ADVISORY HEARING

B. PROCEDURES FOR THE TCH 2 (48 HOUR HEARING)

1. PETITION FOR TEMPORARY CUSTODY

2. PETITION FOR ABUSE OR NEGLECT

3. SUMMONS FOR ABUSE OR NEGLECT

4. INDIAN CHILD WELFARE ACT (ICWA) AFFIDAVIT

5. PROOF OF SERVICE OF PETITION AND SUMMONS

6. TEMPORARY CUSTODY HEARING (48 HOUR HEARING) ORDER

Indian Child Welfare Act (ICWA)

Temporary Custody Hearing (TCH)

If a child has been or is to be removed, the court shall determine the removal of

the child is or was necessary because continued presence in, or return to the home,

would be contrary to the child’s welfare and that reasonable eﬀorts have been made by

DSS 1 to avoid removal or to return the child to the home. If ICWA 2 applies, the court

must inquire and address whether the continued custody of the Indian child is necessary

to prevent imminent physical damage or harm to the minor child.

C. NOTICE

All parents should be named and given notice with the petition by either

personal service or publication.

1. Military Status: Timely notiﬁcation should be given to parents serving

in the armed forces. An Aﬃdavit of Non-Military Status should be on

record prior to adjudication. 50 USCS § 3931.

2. ICWA Notice Requirements: See ICWA.

3. Lack of Service: Failure of service on one or more parties may require

modiﬁcation or repetition of the time periods as to those parents or

custodians who have not been served.

4. All Parties need to be provided with the petition and summons not

less than ﬁve days before the date of the advisory hearing. Proof of

service shall be ﬁled with the court before commencement of the

hearing on the petition. Notice can be through personal service or by

publication. SDCL 26-7A-47, SDCL 26-7A-48.

The action can proceed as to those parties who have been served, even if some

other parties have not been served.

Department of Social Services (DSS)

Indian Child Welfare Act (ICWA)

VI. ADVISORY HEARING

A. PURPOSE

SDCL 26-7A-54 mandates that an advisory hearing must be held before an

adjudicatory hearing. The advisory hearing is oftentimes the ﬁrst time the parents

appear before the court. The court will inquire as to whether the parents have received

a copy of the petition and summons (if not, they may be served in court at the advisory

hearing).

The court shall do the following:

1. Advise parents:

a. their right to have an attorney; 1

b. their right to continue the proceedings to another date;

c. the nature of the proceedings;

d. the allegations in the petition;

e. the burden of proof that is on the state;

f. their constitutional and statutory rights; and

g. the possible consequence of the proceedings (ex. Termination of

parental rights).

2. Inquire as to the tribal aﬃliation of each parent.

The following may occur at the advisory hearing:

1. If the parents request an attorney, the parent may enter a denial to

the allegations in the petitions and the matter will be continued to a

future date.

2. If a parent has notice and does not appear, the court may enter a

default adjudication. The petition is admitted to in its entirety by the

parent who does not appear in court. SDCL 26-7A-53.

3. Parents who appear in court for the advisory hearing have the option

to admit to the petition, they can admit to a portion of the petition or

to the entire petition. SDCL 26-7A-55.

4. After a default ruling or an admission, the court will enter oral ﬁndings

of fact and conclusions of law for adjudication and make a speciﬁc

ﬁnding that the children are abused or neglected.

5. The tribe can intervene and/or move to transfer the case to tribal

court. If neither parent objects to the transfer and the case transfers

to tribal court, the case is then closed in state court and state court

jurisdiction ends.

Pursuant to SDCL 26-7A-31 and -32, the court’s advisement of rights shall include the establishment of a lien against the

real or personal property of the parent(s), either jointly or severally, when the parent(s) are appointed an attorney by the

court.

B. NOTICE

If proper notice was not provided to any party, tribe, BIA 1, or U.S. Department of

the Interior the advisory hearing should be continued until all parties are noticed. A party

could waive the notice requirement.PDF copy Interest Of N.K., Jr. And S.K., 2024 S.D. 63.

Bureau of Indian Aﬀairs (BIA)

VII. ADJUDICATION HEARING

“Adjudication of a child as an abused or neglected child is an adjudication of the

status or condition of the child who is the subject of the proceedings and is not

necessarily an adjudication against or in favor of any particular parent, guardian, or

custodian of the child.” SDCL 26-8A-1.

Prior to the adjudicatory hearing the following notices are required:

IN NON-ICWA CASES:

1. All parties need to be provided with the notice of hearing within ﬁve

working days of the adjudicatory hearing. Notice can be through

personal service or by publication. SDCL 26-7A-47, SDCL 26-7A-48.

2. Notice must also be provided to counsel for the parties.

A. TIMING AND PURPOSE OF ADJUDICATORY HEARINGS

1. Timing

Speedy adjudication can reduce the length of time a child spends in foster care 1.

The court should reduce delay while using due diligence to protect the rights of the

parents and child and to determine the best interests of the child.

a. Criminal Proceedings: In all but extremely special circumstances,

the adjudicatory hearing should not be postponed because of

criminal proceedings. The order and timing of both criminal and

civil proceedings relating to the child can have implications

regarding the parent’s Fifth Amendment privilege against self-incrimination. People in the Interest of D.A.J., 2008 S.D. 92 ¶ 12,

757 N.W.2d 70, 74.

b. The court should give greater weight to the interest of the child

and a court should not grant a continuance if it would be in the

detriment of the child.

c. Scheduling Conﬂicts: Continuances because of scheduling conﬂicts

should only be granted upon a showing that a continuance will not

be detrimental to the child and then only for a reasonable time-

period.

2. Purpose

The adjudicatory hearing is a hearing to determine whether the allegations of a

petition alleging that a child is abused or neglected are supported by clear and

convincing evidence. SDCL 26-7A-1(2). In general, the adjudicatory hearing looks to the

past, while the primary focus of the dispositional hearing is in the future. People in

Interest of P.M., 299 N.W.2d 803, 806 (S.D. 1980).

Findings of facts and conclusions of law: Regardless of the outcome of the case,

ﬁndings of fact and conclusions of law must be entered as to the result of the case. SDCL

26-7A-86, SDCL 26-7A-87. Even though the adjudication is as to the status of the child,

Synonymous to “Out-of-Home Placement”

the rights of both parents need to be addressed and an order should be entered as to

the rights of each parent (i.e., mother has abused or neglected or both; father has

abused or neglected or both; or perhaps one has and one has not).

Petition denied: If the petition is not sustained to all parties/respondents or it is

dismissed by the State, jurisdiction of the court is terminated. In the Interest of T.G.,

2001 S.D. 15, ¶¶ 7-8, 621 N.W.2d 608, 610.

B. DISCOVERY

Abuse and neglect cases are civil in nature; therefore, except as otherwise provided in

SDCL 26-7A-57 to -81, the Rules of Civil Procedure apply to adjudicatory hearings. All other

hearings shall be conducted under rules prescribed by the court to enable the court to

determine what is best for the child. SDCL 26-7A-56. Basically, the rules of discovery permit a

party, including the state, to inspect and copy certain documents and records which are

material to the preparation of the case, which are in the possession and control of another

party, or which are intended for use by a party. SDCL 26-7A-60, -61, -68, -69. Certain

documents are privileged or conﬁdential and may not be disclosed. SDCL 26-7A-62, -70. The

court should set discovery and motion deadlines at the temporary custody (48 hour) hearing

or the advisory hearing or at the time that attorneys are appointed. The court may consider

entering a scheduling order, like those issued in other civil cases, at the time of the

appointment of attorneys, setting forth permitted discovery and incorporating discovery and

motion deadlines, to ensure that child abuse and neglect cases proceed eﬃciently and

expeditiously.

C. ELEMENTS

SDCL 26-8A-2 deﬁnes the term “abused or neglected child.” The petition should allege

all the subsections that apply to the case and the facts which substantiate the speciﬁc

allegations, in language that the parent would understand.

At the adjudicatory hearing, the state must prove the alleged elements by clear and

convincing evidence. Matter of S.W., 428 N.W.2d 521, 523-24 (S.D. 1988); SDCL 26-7A-86, -87.

This includes Indian Child Welfare Act cases. People in Interest of S.R., 323 N.W.2d 885, 886 (S.D.

1982); Matter of K.A.B.E., 325 N.W.2d 840, 843 (S.D. 1982); People in Interest of P.B., 371

N.W.2d 366, 371 (S.D. 1985).

D. EVIDENCE

Generally, the evidence at an adjudicatory hearing must relate to the allegations

stated in the petition. Matter of C.J.H., 371 N.W.2d 345, 350 (S.D. 1985). The court may,

however, consider the circumstances that brought about a previous adjudication of the

same child. In the Interest of S.O.B., 2006 S.D. 76, ¶¶ 28-29, 721 N.W.2d 83, 91-92. In an

adjudicatory hearing, the court may judicially notice an earlier ﬁnding of abuse and

neglect with respect to a diﬀerent child and combine this evidence with the parents’

failure to admit that they are perpetrators of child abuse to ﬁnd that the child who is

subject of the petition is abused and neglected, without ﬁnding any speciﬁc instance of

abuse or neglect. Matter of J.A.H., 502 N.W.2d 120, 124 (S.D. 1993). Evidence of

occurrences in the home after the child was removed is admissible as “relevant to the

question of [the parents’] continuing behavior and attitudes.” Matter of C.E., 283 N.W.2d

554, 556 (S.D. 1979); Matter of N.J.W., 273 N.W.2d 134, 138 (S.D. 1978). If evidence of

events after its ﬁling does not relate to the allegations initially alleged in the petition, the

petition should be amended to conform to the evidence. “Evidence that child abuse has

occurred is prima facie evidence that the child is an abused or neglected child regardless

of allegations contained in the petition, and such evidence is suﬃcient to support an

adjudication of the child as an abused or neglected child.” SDCL 26-7A-82.

The Rules of Evidence apply to adjudicatory hearings unless otherwise provided

in SDCL chapter 26-7A. SDCL 26-7A-34(1), -56. SDCL 26-7A-83 allows “written reports

and other material and information relating to the child’s mental, physical and social

history” to be considered by the court. However, the child or parent may require the

person who prepared the report to be present and subject to direct or cross-examination. Reports admissible under the business records exception to the hearsay

rule have been allowed at the adjudicatory hearing. People in Interest of T.L.J., 303

N.W.2d 800, 807 (S.D. 1981). Where reports or other materials come from experts, it is

recommended that the expert be present at the hearing. Hearsay statements of a child

under the age of 13 may be introduced under SDCL 19-19-806.1 and -806.2 upon proper

notice and if the court ﬁnds that the time, content, and circumstances of the statement

and the reliability of the person to whom the statement is made provide suﬃcient

indicia of reliability.

Probable witnesses at the adjudicatory hearing will be FSS 1 involved in the case,

police oﬃcers, teachers or counselors, medical personnel, or other persons who

observed abuse or behaviors leading up to the petition. Children may also be called to

testify. In the Matter of S.A., 2005 S.D. 120, ¶ 19, 708 N.W.2d 673, 679-80. However,

requiring a child to testify against a parent may retraumatize the child. “The child’s

interest should be protected throughout the proceedings and the child’s attorney is

speciﬁcally charged with that duty.” In the Interest of T.A., 2003 S.D. 56, ¶ 18, 663 N.W.2d

225, 232. The child’s attorney should request a motion hearing to state on the record any

objection for the child to testify in court.

Because this is a civil proceeding, parties such as parents and children may be

called as witnesses; however, the parents may not be forced to testify at the

adjudicatory hearing. Interviews of parents by FSS or others may be admitted as

evidence as admissions against interest. Hearsay statements made by children may be

admitted upon motion to oﬀer hearsay evidence. SDCL 19-19-806.1, 806.2, 26-8A-30,

26-8A-31. Notice of intention to use hearsay statements must be given suﬃciently in

advance of trial or hearing to provide the adverse party with a fair opportunity to

prepare to meet the statement. Evidence obtained by counselors or physicians that

relates to abuse and neglect is not privileged and may be admitted. SDCL 26-8A-15.

Family Services Specialist (FSS)

In cases where ICWA 1 applies, qualiﬁed expert testimony must establish, by clear

and convincing evidence, “that the continued custody of the child by the parent or

Indian custodian is likely to result in serious emotional or physical damage to the child.”

25 USC §§ 1912(e), 1912(d). Placement preferences must also be addressed. 25 USC §

1915(b).

E. DEFENSES

One potential defense to an allegation of physical abuse of the child is a parents’

administration of corporal punishment under SDCL 22-18-5. The court has crafted a

two-prong inquiry to assess whether a parents’ administration of corporal punishment is

not abuse as deﬁned under SDCL 26-8A-2. The ﬁrst prong of the inquiry requires the

trial court to determine whether the restraint or corrective measure utilized was

“rendered necessary” by the child’s actions. The second prong requires the trial court to

determine whether the force used was “reasonable in manner and moderate in degree.”

In the Interest of C.F., 2005 S.D. 126, ¶ 19, 708 N.W.2d 313, 317.

F. FINDINGS OF FACT CONCLUSIONS OF LAW

Whatever the result of the adjudicatory hearing, the court must issue written

ﬁndings of fact and conclusions of law, and an adjudicatory order. SDCL 26-7A-86, -87.

G. NOTICE

Notice of entry of adjudicatory orders is required pursuant to SDCL 26-8A-28. The

notice of entry may be served as authorized by the rules of civil procedure to include

service on counsel.

If the allegation(s) are found to be supported by clear and convincing evidence,

the court shall enter an order of adjudication and list detailed and speciﬁc reasons for its

decision in the court’s adjudicatory ﬁndings of fact and conclusions of law. As a

standard, the court shall issue its ﬁnal written ﬁndings of fact and conclusions of law and

adjudicatory order as soon as possible after the adjudicatory hearing. A review hearing

should be set at the close of the adjudicatory hearing while all parties are present to

avoid delays in service of notice. SDCL 26-8A-24.

1. Court Decision — Adjudication

Courts Should Make the following decisions at the Adjudication:

a. a ﬁnding that the child is or is not an Indian child;

b. that proper notice has been given to all parties and the tribes, if

applicable;

c. that jurisdiction and venue is proper;

d. a determination of whether there is an agreement among all parties

concerning paternity. If there is disagreement or the evidence is unclear,

the court may order tests for paternity. It is important to ascertain who

Indian Child Welfare Act (ICWA)

the parents are as soon as possible. When parents are brought into the

litigation late, children often remain in foster care longer than necessary;

e. the need to set terms for support, family time 1, or other issues critical to

preservation and maintaining relationships during the period of

separation if the child is to remain in foster care prior to disposition; and

f. the entry of additional ﬁndings and conclusions and a ﬁnal order if the

allegations are not supported by evidence. SDCL 26-7A-86.

H. NOTICE OF ENTRY

Notice of entry, certiﬁcate of service of an adjudicatory order, and ﬁndings of fact

and conclusions of law shall be made within ﬁve days of issuance of the written

adjudicatory order and served on the child’s attorney and the child’s guardian ad litem or

special advocate, if any, and on all parties in the same manner as service of the

summons. SDCL 26-8A-28. Once the notice of entry of the adjudicatory order is served

properly, the time for appeal from the adjudication expires 10 days later since it is an

intermediate order and subject to intermediate appeal procedure. SDCL 26-7A-87; 15-

26A-13. An adjudicatory order may also be appealed 30 days after entry of the ﬁnal

dispositional order. Appeal time does not begin until notice of entry of adjudication has

been served. Therefore, serving notice of entry upon the parties is imperative in

eliminating later delays.

Also known as “Visitation”

VIII. HEARINGS

Hearings are important for case ﬂow management. It’s important for each type of

hearing order to reﬂect such in the order title/heading, for example: permanency

hearing order or review hearing order.

A. REVIEW HEARING1

Review hearings, sometimes referred to as interim dispositional hearings,

which take place after adjudication and before ﬁnal disposition, provide the court an

opportunity to review the progress made by the parties since the prior hearing. Federal

law contemplates a routine but thorough review of case progress.

Speciﬁcally, review is:

To determine the safety of the child, the continuing necessity for and

appropriateness of the placement, the extent of compliance with the

case plan, and the extent of progress which has been made toward

alleviating or mitigating the causes necessitating placement in foster

care, and to project a likely date by which the child may be returned

to and safely maintained in the home or placed for adoption or legal

guardianship. 42 USC § 675(5)(B).

Review hearings assist in attaining the goal of permanency for children within

one year of removal from the care of their parent, guardian, or custodian. Judicial

oversight of children in foster care will be achieved through a court review of children for

whom an adoptive placement or court sanctioned long term foster care placement has

not occurred. Timetables for review hearings are governed by both federal and state

statute. Federal and state law speciﬁes that review of children in foster care must occur

at least once every six months. 42 USC § 675(5)(B); SDCL 26-8A-24.

1. Items to be addressed at the review hearing.

Review hearings are the forum for the court, parents, children, attorneys, the

agency, and the foster parents to:

1. assess ICWA 2 compliance;

2. determine the appropriateness of the placement;

3. evaluate the extent of cooperation with the case plan;

4. evaluate the extent of progress toward remedying those conditions

necessitating the removal of the child;

5. project a date when a child may be returned home, placed for adoption,

or placed in long term foster 3 care; and

6. evaluate the status and validity of the concurrent plan.

Reports from the agency, the guardian ad litem, and CASA 4 help inform the court

of issues that may need to be addressed at the review hearing. Reports should be

Also known as “Status Hearing”

Indian Child Welfare Act (ICWA)

Synonymous to “Out-of-Home Placement

Court Appointed Special Advocate (CASA)

received prior to each review hearing. Reports should address each of the issues

discussed at the review hearing. The reports and attachments should be distributed in

accordance with local court practices. Best practice is to have the report to all the parties

at least ﬁve days in advance of the hearing.

2. Key decisions the court must make at the review hearing: 1

a. Whether there is a need for continued placement of a child.

b. Whether all options for placement with relatives have been pursued

and documented.

c. Whether the rights of all parents have been addressed in the

proceedings.

d. Whether the permanent plan remains in the child’s best interests.

e. Whether services and responsibilities outlined in the case plan need

to be modiﬁed or clariﬁed.

f. Whether the agency is making reasonable eﬀorts to rehabilitate the

family and to eliminate the need for placement.

g. Whether terms of family time 2 or support need to be modiﬁed.

h. Whether the child’s current placement is appropriate to meet the

child’s needs.

i. Whether additional court orders are required to move the child closer

to permanency.

B. PERMANENCY HEARING – BEFORE FINAL DISPOSITIONAL HEARING 3

Permanency hearings are required every 12 months until the permanent plan is

achieved, and the case is closed. Permanency hearings may be held in conjunction with

review hearings.

In cases where parental rights are not terminated, and the child is not returned

to the home, the court must state compelling reasons (1) for not terminating parental

rights and (2) for continuing services. SDCL 26-8A-22(2), -26(3)).

The purpose of this permanency hearing is to make sure that there is an

appropriate permanency goal for each child, that everyone is doing their part to achieve

the goal, that the right steps are being taken to achieve the goal as quickly as possible,

and if not, what changes are necessary. The questions asked of the family services

specialist at the permanency hearing are designed to maintain a sense of urgency in

moving the child towards achieving permanency while at the same time examine

whether the needs of the child, and of the family, are being met in a way that will

promote permanency. They are also meant to give greater consistency to the process so

that everyone knows what to expect at each permanency hearing. The goal in

See SDCL 26-8A-25

Also known as “Visitation”

See 26-8A-21.2

developing these questions is that every hearing will be substantive as well as eﬃcient.

For sample questions, refer to the form on page 234.

C. ADOPTION SAFE FAMILIES ACT (ASFA) HEARING

SDCL 26-8A-21 mandates DSS 1 to provide reasonable eﬀorts to the family for

reuniﬁcation of the children and parents. SDCL 26-8A-21.1 sets forth the exceptions to

providing reasonable eﬀorts (this does not apply to ICWA cases). The state must provide

notice of its intent to seek a ruling under the Adoption Safe Families Act (ASFA).

ASFA 2 allows the State to seek ﬁnal disposition sooner than the one year allowed

in most cases for permanency. Petitioner should:

1. add a paragraph to the petition for abuse or neglect with supporting facts

pursuant to SDCL 26-8A-21.1 or ﬁle a separate petition for ASFA;

2. provide notice to the parties that the state intends to seek a ruling that

ASFA applies;

3. request that a no further reasonable eﬀorts hearing be scheduled after the

adjudicatory hearing;

4. present certiﬁed copies of supporting documents at the AFSA hearing,

those documents could include:

a. Adjudicatory ﬁndings of fact and conclusions of law from a prior

abuse and neglect proceeding;

b. Final dispositional ﬁndings of fact and conclusions of law for

termination of parental rights in a prior abuse and neglect

proceeding; or

c. Certiﬁed copies of a judgement of conviction in a criminal case

pursuant to the list of crimes in 26-8A-21.1.

5. request a ﬁnal dispositional hearing once the court determines that ASFA

applies; and

6. Prepare the ASFA ﬁndings of fact conclusions of law and order.

The FSS 3 worker should testify as to the following: previous removals of the child

or siblings, the eﬀorts DSS has provided in the previous cases, as well as in the open case

and why the same conditions exist that should authorize DSS to stop providing eﬀorts for

reuniﬁcation in the open case. Pursuant to SDCL 26-8A-21.2, a permanency hearing must

be set within 30 days.

D. MOTION/EVIDENTIARY HEARING

If a Motion is ﬁled by any party, the court shall hold a hearing to address the motion

ﬁled. This can be done at the adjudicatory hearing or in a separate hearing.

Department of Social Services (DSS)

Adoption Safe Families Act (ASFA)

Family Services Specialists (FSS)

IX. FINAL DISPOSITION

In abuse and neglect proceedings, the dispositional phase is the phase in which the

court makes the determination regarding the placement and care of the child both in the short-term and ultimately, on a permanent basis. SDCL 26-7A-34 requires a dispositional hearing to

be conducted “to inform the court fully of the exact status of the child and to ascertain the

history, environment, past and present physical, mental and moral condition of the child and of

the child’s parents, guardian, or custodian.”

Disposition should occur quickly, particularly when the child is placed out of the

home. Dispositional hearings may be held in conjunction with review hearings if the

parties and the judge have had suﬃcient opportunity to review the reports. In addition,

both a Final Disposition and Guardianship hearing could coincide in the same proceeding

if the court ordered the Guardianship.

Dispositional decisions will be revised during subsequent case reviews; therefore,

there is no need to postpone the dispositional hearing to resolve every issue.

Final Disposition must occur within 12 months after the removal and placement

of the child into foster1 care. SDCL 26-8A-22. However, an extension beyond the 12-month period may exist by the showing of good cause.

A. KEY DECISIONS THE COURT MUST MAKE:

1. Placement and Care

The court will make the determination of the placement and care of the child

placed out of the home. If the child is to remain at home or returned home, the court

may impose speciﬁc conditions on the parents. In considering conditions to be imposed,

the judge should determine what agency supervision will be needed for the child’s

protection and what services will be provided.

While termination of parental rights usually begun by a petition to terminate

rights ﬁled by the state’s attorney, it is not the only way a disposition of termination may

occur. In Re J.H., 1999 S.D. 36, ¶ 23, 590 N.W.2d 473, 477. The child’s attorney may also

ask for termination. Id.

In deciding whether a parent’s rights should be terminated, the court considers

the behavior and condition of the parent. Typical grounds for termination of parental

rights include extreme parental disinterest in the child (e.g., desertion or abandonment),

parental failure to improve in spite of reasonable eﬀorts by the agency to help, parental

inability to care for the child (e.g., mental or emotional incapacity and uncontrollable

substance dependency), prolonged imprisonment of the parent, extreme or repeated

abuse of the child, and in some cases where return of the child would be harmful

because of the special needs or condition of the child.

1Synonymous to “Out-of-Home Placement”

In deciding whether termination is in the best interest of the child, the court

typically considers what alternatives are available and whether those alternatives can

provide a better permanent home for the child. The fact that an adoptive family has not

been identiﬁed should not deter a court from terminating parental rights when it is in

the child’s best interests not to be with biological caretakers.

The court must prepare ﬁndings of fact and conclusions of law, whether

termination of parental rights is granted. The ﬁndings must address whether the

grounds for termination were satisﬁed and if so whether termination was in the best

interest of the child. Because a large proportion of termination cases are appealed,

ﬁndings must be suﬃcient for appellate review. SDCL 26-8A-26, -26.1, -27.

Guardianship of a child in DSS 1 custody or for whom DSS has placement

responsibility shall be initiated by a petition on behalf of the person for whom

guardianship is sought. Unlike adoption, caregivers assume legal guardianship of a child

in out-of-home care without terminating the rights of a parent. The person(s) appointed

as guardian of the child has the custody, care, and supervision of the child until the age of

majority. The court shall set a date for a hearing and determine how legal noticed is to be

assured. The court appoints a guardian by letter of guardianship and the guardian

accepts by oath of guardianship.

Another Planned Permanent Living Arrangement (APPLA) is a term created by

ASFA 2 to replace the term “Long-term Foster Care”. With APPLA, DSS maintains care and

custody of the child and arranges a living situation in which the child is expected to

remain until the child reaches the age of majority (18 years of age); however, a child who

is 16 years of age or older may have APPLA as a permanency plan. SDCL 26-8A-21.2.

APPLA does not apply to children who are younger than 16 years of age. APPLA is a

permanent placement option when reuniﬁcation, adoption, or legal guardianship has

been ruled out.

2. Reasonable Eﬀorts 3

What constitutes "reasonable eﬀorts" varies greatly and depends upon the facts and

circumstances of each individual case. "Reasonable" means "reasonable under the

circumstances” and not "on exhaustion of every possible form of assistance" as sometimes

urged by defense attorneys. People in Interest of C.L., 356 N.W.2d 476, 478 (S.D. 1984). (see

also, Matter of R.Z.F., 284 N.W.2d 879, 882 (S.D. 1979) (the best interest of the child trumps the

reasonable eﬀorts to aid parents); Matter of B.E., 287 N.W.2d 91, 95 (S.D. 1979) (the best

interests of the child remain the paramount consideration in these proceedings).

If the parents are uncooperative or the services do not work, termination of parental

rights is justiﬁed. Matter of D.A.B., 313 N.W.2d 787, 788 (S.D. 1981); People in Interest of T.L.J.,

303 N.W.2d 800, 806-07 (S.D. 1981); Matter of A.I., 289 N.W.2d 247, 249 (S.D. 1980); Matter of

Department of Social Services (DSS)

Adoption Safe Families Act (ASFA)

See SDCL 26-8A-21

R.Z.F., 284 N.W.2d 879, 882 (S.D. 1979); Matter of C.E., 283 N.W.2d 554, 556 (S.D. 1979); Matter

of M.S.M., 320 N.W.2d 795, 799 (S.D. 1982).

Even when the parent has completed or participated in the items identiﬁed in the

case plan, termination may be justiﬁed if the parent has not been open and honest in all

areas and has never oﬀered a plausible explanation for how a child’s injuries occurred or

what could be done to correct the problems. In the Interest of C.W., 2005 S.D. 54, ¶ 20,

697 N.W.2d 18, 23. Terminating a parent’s rights may be justiﬁed regardless of the

parent’s participation in the protective capacity assessment case plan if the children

remain in danger. Id. Terminating a parent’s rights may be the least restrictive alternative

to ensure the well-being of the child. In the Matter of S.A., 2005 S.D. 120, ¶ 25, 708

N.W.2d 673, 682-83.

The state does not have to exhaust every possible form of assistance. People in

Interest of C.L., 356 N.W.2d 476, 478 (S.D. 1984). Parental rights can be terminated upon

showing that the services to the family are unavailing. People in Interest of S.M.M., 349

N.W.2d 63, 65 (S.D. 1984); Matter of S.W., 428 N.W.2d 521, 525 (S.D. 1988).

There is no minimum or maximum period; a parent must be provided reasonable

eﬀorts. Matter of B.E., 287 N.W.2d 91, 97 (S.D. 1979). However, SDCL 26-8A-26

mandates that no child remains in foster care if the court ﬁnds compelling reasons not to

terminate, but mandates that no child shall remain in foster care for a period in excess of

12 months without the court setting forth one of the SDCL 26-8A-26 options.

3. Guardianship from an A&N Case 1

If the permanency outcome for children evolves into a guardianship placement, the

guardianship should be initiated within the abuse and neglect case. The child’s attorney (or

retained attorney) should ﬁle all documents necessary to open a guardianship ﬁle and obtain an

Odyssey “GDN” ﬁle number. SDCL 29A-5.

A reference to the fact that the minor child is “in the custody of the Department of

Social Services” in the Petition for Guardianship is suﬃcient to provide notice to the Court that

there is an abuse and neglect proceeding. A 15-day notice is required of all parties prior to the

guardianship being granted; however, parents can waive the notice. The following necessary

forms should be ﬁled in the guardianship (GDN) ﬁle:

a. The Petition for Guardianship

b. The Consent to Guardianship (Consent from DSS state oﬃce)

c. The Oath of the Guardian

d. Letters of Guardianship

e. Order (also ﬁled in the abuse and neglect ﬁle, see below)

Important: The proposed guardian and the minor(s), who are ten years or older and are in placement of a guardian, must

attend the guardianship hearing unless good cause has been shown. See SDCL 29A-5-208.

The guardianship hearing and abuse and neglect ﬁnal disposition should be set

for simultaneous hearings before the abuse and neglect judge because that judge is

familiar with the case and parties. The purposed guardians must be canvassed on the

conﬁdential nature of the abuse and neglect case at the beginning of the matter if they

are not otherwise a party to the abuse and neglect proceeding.

At the time of the Final Dispositional Hearing, the Court will inquire of the State as to

the Department’s recommendations. The State will typically request that the Court accept the

recommendations and enter an Order of Guardianship in the guardianship ﬁle and will then

request that the abuse and neglect ﬁle be closed as to the minor child(ren) under the

guardianship. If the judge grants the guardianship, the guardianship ﬁle should be referenced in

the A&N Final Dispositional Order and the Order Appointing Guardian should be attached to

the Final Dispositional Order for reference. The A&N ﬁle may then be closed.

Any substantive information pertaining to the case including court reports and CASA

reports should be ﬁled only within the abuse and neglect ﬁle. Guardianship ﬁles are often open

to the general public, whereas A&N cases are closed, and only authorized personnel and the

Court can access information contained within.

4. The Guardianship Order

In a general guardianship, a conservatorship and annual accounting is required;

however, per statute that can be waived in abuse and neglect cases. The training that is

typically required of guardians can also be waived in abuse and neglect cases.

Guardians can be directed to the UJS 1 website for the necessary forms to fulﬁll

statutory and court-ordered reporting obligations, as well as to meet any requirements

related to modifying or terminating the guardianship.

Guardianships, by their very nature, are temporary rather than permanent,

consideration of a guardianship needs to be the less restrictive alternative (LRA) from the

child’s vantage point and in the child’s best interests and needs to be considered on a case-by-case basis. This is a concern that has been repeatedly recognized by the South Dakota

Supreme Court.

The child’s attorney may submit a payment voucher for the guardianship ﬁling in the

abuse and neglect case.

5. Best Interests of the Child.

All individuals working in any abuse and neglect case, including family services

specialists, CASA 2 volunteers, attorneys, and judges, must always look for what is in the child’s

Uniﬁed Justice System (UJS)

Court Appointed Special Advocate (CASA)

best interest, as the Supreme Court of South Dakota pointed out in Matter of L.B., 416 N.W.2d

598, 599 (S.D. 1987).

The rights of the parents must give way to the best interests of the child. Matter of Z.Z.,

494 N.W.2d 608, 609 (S.D. 1992); People in Interest of E.D.J., 499 N.W.2d 130, 135 (S.D. 1993).

This principle is followed in every abuse and neglect case. Its importance cannot be over-

emphasized or stressed enough by all those involved in an abuse and neglect case. However,

the fact that a substitute parent might provide a child with good care or even better care than

its natural parent is not an appropriate standard for determining the best interest of the child.

In Interest of J.L., 2002 S.D. 144, ¶ 21, 654 N.W.2d 786, 792. Long term foster care 1 is generally

not in the best interest of a child. In the Interests of J.G.R., 2004 S.D. 131, ¶ 22, 691 N.W.2d 586,

592.

6. Conditions for removal still exist.

To terminate parental rights, SDCL 26-8A-26 requires that the conditions which

led to the removal of the child still exist, and there is little likelihood that those

conditions will be remedied so the child can be returned to the custody of the child’s

parents. The court can consider conditions identiﬁed after the child is in the state’s

custody. In the Interest of T.I., 2005 S.D. 125, ¶ 24, 707 N.W.2d 826, 836. The court may

consider returning the child if conditions that lead to the removal cease to exist.

7. Compelling reasons to extend services

over 1 year.

In cases where parental rights are not terminated, and the child is not returned

to the home (i.e., APPLA 2 or relative placement), the court must state compelling

reasons (1) for not terminating parental rights and (2) for continuing services. SDCL 26-

8A-22(2), -26(3).

B. EVIDENCE

Witnesses may be required to address dispositional issues. These witnesses are

generally diﬀerent than those needed at the adjudicatory hearing. The rules of evidence that

apply at adjudicatory hearings do not apply at dispositional hearings. SDCL 26-7A-56. Written

reports containing hearsay generally can be considered by the court. SDCL 26-7A-90. It is

important that the reports be distributed to the parties suﬃciently in advance to allow the

parties time to consider proposals for disposition. Parents may be called to testify at

dispositional hearings; however, parents may not be required to testify regarding matters that

would be incriminating and would violate the parents’ privilege against self-incrimination. In the

Interest of T.I., 2005 S.D. 125, ¶ 38, 707 N.W.2d 826, 840.

C. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Synonymous to “Out-of-Home Placement”

Another Planned Permanent Living Arrangement (APPLA)

As a matter of practice, the state’s attorney submits the ﬁndings of fact and

conclusions of law and a proposed dispositional order to the court within 10 days of the

hearing. SDCL 15-6-52(a). The other party then has ﬁve days to submit objections and

proposed ﬁndings. SDCL 15-6-52(a). Final order must address child support arrearages.

SDCL 25-5A-18; 26-8A-27.

D. NOTICE

Notice of entry of ﬁnal dispositional orders are required SDCL 26-8A-28. The

notice of entry may be served as authorized by the rules of civil procedure to include

service on counsel.

X. POST-DISPOSITION/PERMANENCY HEARING

Permanency hearings are required every 12 months until the permanent plan is

achieved, and the case is closed. SDCL 26-8A-22(3). Permanency hearings may be held in

conjunction with review hearings. The purpose of these hearings is to review the child’s

placement after the ﬁnal dispositional hearing. The case is not over when parental rights

are terminated. Post-dispositional review hearings should be held until adoption or

permanency for the child is achieved. Upon termination of parental rights, custody and

guardianship of the children mandatorily vests with DSS 1. SDCL 26-8A-27. It is important

for the court who hears the termination of parental rights to continue to be responsible

for the case through the adoption or until the jurisdiction is transferred to another court

for the ﬁnalization of the adoption. SDCL 26-8A-29. There should be periodic reviews to

assure that eﬀorts are made to place the child in a permanent placement following

termination of parental rights. Many of the previously discussed guidelines in relation to

disposition and review hearings also apply to case review hearings after termination of

parental rights.

Except under circumstances where placement was with another relative of the

child, any relative who has been denied adoptive placement by DSS 2 may request a

hearing to determine if the placement was an abuse of discretion. The request shall be

ﬁled with the circuit court having jurisdiction pursuant to SDCL 26-8A-29 and shall be

ﬁled within 30 days of written notiﬁcation from the department by regular mail to the

relative's last known address. The hearing shall be held within 30 days of the ﬁling of the

request for hearing and may be continued for not more than 30 days upon good cause

shown. The relative shall be granted limited intervention only for the purpose of the

placement Review Hearing. 26-8A-29.1

No intervention may be allowed in a proceeding involving an apparent, alleged,

or adjudicated abused or neglected child, including an adoption or guardianship

proceeding for a child placed in the custody of DSS pursuant to § 26-8A-27.

Department of Social Services (DSS)

XI. APPEALS

An appeal from a ﬁnal order in an abuse or neglect case must be taken within 30

days after written notice of entry is given to the adverse party. SDCL 15-26A-6. The

Supreme Court has also shortened brieﬁng schedules from 45 days to 25 days for

appellant’s and appellee’s briefs. (Reply briefs are still due within 15 days.) SDCL 15-26A-

75. The notice of appeal and docketing statement is ﬁled directly with the clerk of the

South Dakota Supreme Court and served upon counsel for each party SDCL 15-26A-4(3)

and the attorney general SDCL 26-7A-112. Documents and briefs in appeals involving

juveniles must identify the children and family members by initials only. SDCL 15-26A-

4(1); SDCL 15-26A-63.1. The rules of appellate procedure for civil appeals are set forth at

SDCL chapter 15-26A. Additionally, the appellant parent must sign the brief pursuant to

SDCL 15-26A-60. A parent’s attorney may submit a “Korth brief” if the attorney

identiﬁes no “arguably meritorious issues for appeal.” In the Interest of A.D., 2004 S.D.

39, ¶ 8, 678 N.W.2d 594, 597. Discretionary appeals may be ﬁled intermittently from

other orders in abuse and neglect cases, may be sought by ﬁling a petition for

permission to appeal, within 10 days after notice of entry is served upon the party

appealing. SDCL 15-26A-13.

XII. FORMS

DISCLAIMER:

The guidelines set forth herein identify the essential elements of properly conducted child abuse and

neglect court proceedings. The accompanying forms are examples only and may contain facts not

related to your case. Specific requirements may vary by jurisdiction.

FORMS

TEMPORARY CUSTODY DIRECTIVE …………………………………………………………………………………………. 51

STATE’S AFFIDAVIT OF ABUSE OR NEGLECT ……………………………………………………………………………..52

TEMPORARY CUSTODY ORDER FOR ABUSE OR NEGLECT ………………………………………………………… 54

PETITION FOR TEMPORARY CUSTODY FOR ABUSE OR NEGLECT …………………………………………….56

48 HOUR HEARING ORDER FOR ABUSE OR NEGLECT ……………………………………………………………… 63

INDIAN CHILD WELFARE ACT (ICWA) AFFIDAVIT ………………………………………………………………………65

PETITION FOR DECLARATION OF ABUSE OR NEGLECT …………………………………………………………….. 70

SUMMONS FOR ABUSE AND NEGLECT …………………………………………………………………………………. 73

ADVISORY HEARING ORDER (ICWA) ………………………………………………………………………………………. 75

ADVISORY HEARING ORDER (NON-ICWA) ………………………………………………………………………………. 77

STATE’S PROPOSED ADJUDICATORY FINDINGS OF FACT AND CONCLUSIONS OF LAW (ICWA)……79

STATE’S PROPOSED ADJUDICATORY ORDER (ICWA) …………………………………………………………………85

STATE’S PROPOSED ADJUDICATORY FINDINGS OF FACT AND CONCLUSIONS OF LAW (NON-ICWA) ……………………………………………………………………………………………………………………………………...88

STATE’S PROPOSED ADJUDICATORY ORDER (NON-ICWA) ……………………………………………………….. 92

STATE’S PROPOSED ADOPTION AND SAFE FAMILIES ACT FINDINGS OF FACT AND

CONCLUSIONS OF LAW (NON-ICWA) ……………………………………………………………………………………… 94

STATE’S PROPOSED ADOPTION AND SAFE FAMILIES ACT ORDER (NON-CWA) ………………………… 99

REVIEW HEARING ORDER (ICWA) …………………………………………………………………………………………..101

REVIEW HEARING ORDER (NON-ICWA) …………………………………………………………………………………..104

PERMANENCY HEARING ORDER (ICWA) ………………………………………………………………………………….106

PERMANENCY HEARING ORDER (NON-ICWA) ………………………………………………………………………… 109

PETITION FOR TERMINATION OF PARENTAL RIGHTS FOR ABUSE OR NEGLECT ………………………… 112

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(ICWA) …………………………………………………………………………………………………………………………………… 114

STATE’S PROPOSED FINAL DISPOSITIONAL ORDER (ICWA) ……………………………………………………… 124

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(NON-ICWA) ……………………………………………………………………………………………….128

STATE’S PROPOSED FINAL DISPOSITIONAL ORDER (NON-ICWA)…….……………………………………….. 136

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(ASFA) …………………………………………………………………………………………………………………………………….139

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(RETURN TO PARENTS—ICWA) …………………………………………………………………….. 147

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(RETURN TO PARENT—NON-ICWA) ………………………………………………………………..154

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(COMPELLING REASONS NOT TO TERMINATE PARENTAL RIGHTS—ICWA)……………………………….. 161

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(GUARDIANSHIP—ICWA) ………………………………………………………………………….. 169

STATE’S PROPOSED FINAL DISPOSITIONAL ORDER (GUARDIANSHIP—ICWA) ………………………….. 175

STATE’S PROPOSED FINAL DISPOSITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

(APPLA—NON-ICWA) …………………………………………………………………………………………………………….. 178

STATE’S PROPOSED FINAL DISPOSITIONAL ORDER (APPLA—NON-ICWA) ………………………………. ..185

GUARDIAN FORMS

ACCEPTANCE OF OFFICE …………………………………………………………………………………………………………. 189

ACKNOWLEDGEMENT OF RIGHT TO COUNSEL ……………………………………………………………………….. 191

ADMISSION OF SERVICE …………………………………………………………………………………………………………..193

CONSENT TO GUARDIANSHIP ……………………………………………………………………...195

LETTER OF GUARDIANSHIP ……………………………………………………………………………………………………...197

NOMINATION OF GUARDIAN …………………………………………………………………………………………………. 198

NOTICE OF ENTRY OF ORDER APPOINTING GUARDIAN …………………………………………. 199

NOTICE OF ENTRY OF ORDER FOR HEARING……………………………………………………………………………. 201

ORDER APPOINTING GUARDIANS…………………………………………………………………………………………… 202

ORDER FOR HEARING……………………………………………………………………………………………………………….204

PETITION FOR APPOINTMENT OF GUARDIAN…………………………………………………………………………. 205

STATEMENT OF FINANCIAL RESOURCES…………………………………………………………………………………...209

STATEMENT OF RIGHTS TO SEEK MODIFICATION OR TERMINATION OF GUARDIANSHIP……….. 212

WAIVER OF ACTUAL NOTICE AND TIME REQUIREMENT FOR HEARING OF PETITION………………..215

MOTION/ORDER TO DROP AND/OR ADD PARTIES………………………………………………..217

OTHER POST-DISPOSITIONAL FORMS

GOOD CAUSE FINDINGS OF FACT AND CONCLUSIONS OF LAW (ICWA) …………………………………... 220

GOOD CAUSE ORDER (ICWA) …………………………………………………………………………………………………. 228

POST DISPOSITIONAL PERMANENCY HEARING ORDER (PERMANENT CUSTODY

GUARDIANSHIP — ICWA)……………………………………………………………………………………………………….. 232

POST DISPOSITIONAL PERMANENCY HEARING ORDER (PERMANENT CUSTODY FOR

GUARDIANSHIP — NON ICWA)…………………………………………………………………............................... 234

POST DISPOSITIONAL PERMANENCY HEARING ORDER (ICWA — APPLA)………………… ……………… 236

POST DISPOSITIONAL PERMANENCY HEARING ORDER (NON-ICW A APPLA PLAN)…………………… 238

POST DISPOSITIONAL PERMANENCY HEARING ORDER (ADOPTION— ICWA)………………………….. 241

POST DISPOSITIONAL PERMANENCY HEARING ORDER (ADOPTION NON-ICWA)……………………… 243

FINAL DISPOSITIONAL ORDER RE: CHILD SUPPORT …………………………………………………………………..245

FAMILY SERVICES SPECIALIST SAMPLE QUESTIONS ……………………………………………..... 247

SOUTH DAKOTA UNIFIED JUDICIAL SYSTEM

TEMPORARY CUSTODY DIRECTIVE

NAME:

ADDRESS:

MOTHER: FATHER:

Other custodian or guardian information:

AGE: DOB: SEX: ☐ Male ☐ Female RACE: ☐ White ☐ Indian ☐ Other

DATE: TIME: COUNTY:

CALLER: AGENCY: TITLE: PHONE:

Mother Available: ☐ Yes ☐ No Suitable: ☐ Yes ☐ No

Father Available: ☐ Yes ☐ No Suitable: ☐ Yes ☐ No

ALLEGATION(S):

CONSIDERATIONS (check as appropriate):

Apparent, alleged or adjudicated DECISION

(Least restrictive alternative)

ABUSED OR NEGLECTED CHILD

☐ Child is abandoned or is seriously endangered by the child’s

☐ Released to:

environment; or

☐ Parent:

☐ There exists imminent danger to the child’s life or safety and

immediate removal of the child from the child’s parents, guardian or ☐ Other:

custodian appears to be necessary for the protection of the child. ☐ Restrictions:

CHILD IN NEED OF SUPERVISION – CHINS

☐ The child has failed to comply with court services or a court-ordered

Department of Corrections program;

☐ Bond: $

☐ The child is being held for another jurisdiction as a parole or

probation violator, as violator, as a runaway or as a person under ☐ Dept. of Social Services Custody (A&N only)

court-ordered detention; Foster Care at:

☐

☐ The child has a demonstrated propensity to run away from the

child’s home, from court-ordered placement outside the child’s home

or from agencies charged with providing temporary care for the child; Shelter at:

☐

☐ The child is under court-ordered home detention in this jurisdiction;

☐ There are specific, articulated circumstances which justify the

detention for the protection of the child from potentially immediate

harm to the child or others; or (Abused or neglected children may not be detained or

☐ The child is accused of or has been found in violation of a valid court jailed.)

order. (CHINS may NOT be held more than 24 hours in secure

DELINQUENT CHILD detention but may be placed in shelter longer than 24

☐ The child has failed to comply with court services or a court-ordered hours. CHINS who have violated a valid court order may

Department of Corrections program; be held longer if a temporary custody hearing is held by a

☐ The child is a fugitive from another jurisdiction; circuit judge within 24 hours.)

☐ Detained at:

☐ The child is charged with sexual contact (22-22-7), a crime of

violence (22-1-2(9)) or a serious property crime (felony); or

☐ The child is already held in detention or on conditional release in

connection with another juvenile delinquency proceeding.

(Jail may ONLY be used for children who have been

The child has a demonstrable recent record of: transferred to adult court and who are 15, 16 or 17 AND if

☐ Willful failures to appear for juvenile court; the offense is sexual contact or a crime of violence.)

☐ Violent conduct;

Comments:

☐ Adjudications for serious property offenses; or

☐ The child is under the influence and detention is the least restrictive SIGNED:

alternative in view of the gravity of the alleged offense and is

necessary for the physical safety of the child, public or others.

INTAKE OFFICER

Temporary Custody Directive

STATE’S AFFIDA VIT

ABUSE OR NEGLECT

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF,

______________________________

(DOB: _______________)

_______________ _______________

(DOB: _______________)

Child(ren), and con

cerning

______________________________

(DOB: _______________)

_______________ _______________

(DOB: _______________)

Respondent(s),

Court File No: ________

STATE’S AFFIDAVIT

ABUSE OR NEGLECT

_______

I, (YOUR NAME), (DEPUTY STATE’S ATTORNEY/STATE’S ATTORNEY),

(COUNT

Y NAME)

County, having been duly sworn, depose and state that there is good cause

to believe that the minor child has been abandoned or there exists an imminent danger to the

life or safety of the minor child and immediate removal appears necessary for the protection of

the child as follows:

1. Referrals and history of issues presented.

2. Law enforcement contact and other documentation to show the child’s environment is injurious

to the child’s welfare.

3. Address all parents/custodians/guardians responsible for the child’s care.

The Department of Social Services has made reasonable efforts to prevent the removal

of the child from the home but the removal of the child is necessary as continued placement

State’s Affidavit: Abuse or Neglect

________________________________________

with the Respondent parents is injurious to the minor child’s welfare and the Department

cannot assure the safety of the minor child in the current situation and thus believes the child to

be in imminent danger. The State prays this Court place the minor child in the legal and

physical custody of the Department of Social Services, a hearing to be held as soon as possible.

Dated this (DAY) day of (MONTH), (YEAR)

(DEPUTY STATE’S

ATTORNEY / STATE’S

ATTORNEY)

(STREET ADDRESS)

(CITY), SD (POSTALCODE)

(123) 456- 7890

Subscribed and sworn to before me this (DAY) day of (MONTH ), (YEAR)

________________________________________

Notary Public, South Dakota

My Commission Expires: (MM/DD/YYYY)

State’s Affidavit: Abuse or Neglect

TEMPORARY CUSTODY ORDER

ABUSE

OR NEGLECT

STATE OF SOUTH DAKOTA:

SS:

COUNTY OF _______________

IN CIRCUIT COURT

_______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF,

______________________________

(DOB: _______________)

_______________ _______________

(DOB: _______________)

Child(ren), and concerning

______________________________

(DOB: _______________)

_______________ _______________

(DOB: _______________)

Respondent(s),

Court File No: _______________

TEMPORARY CUSTODY ORDER

ABUSE O

R NEGLECT

The above-entitled matter having come before this Court by request of the Department of

Social Services; the Court having considered the request presented and the Affidavit of the State,

and finding that good cause does exist, does now hereby

ORDER, that there exists an emergency that requires the immediate removal of the minor

child from the home; and it is further

ORDERED, that it is contrary to the welfare of the minor child to remain in the home; and

it is further

ORDERED, that law enforcement shall assist the Department of Social Services by

picking up the minor child and placing the minor child in the legal and physical custody of the

Department of Social Services using whatever means necessary, this being the least restrictive

alternative available and in the best interest of the minor child; and it is further

Temporary Custody Order

ORDERED, that the Court shall be immediately notified of the child’s placement with the

Department of Social Services; and it is further

ORDERED, that the minor children shall be placed in temporary emergency legal and

physical custody of the Department of Social Services as soon as the child are located; and it is

further

ORDERED, that a 48 Hour Hearing will be held at the (COUNTY NAME) County

Courthouse as set by the Court and the hearing will be before the Honorable in Courtroom

(COURTROOM DETAILS).

The Order is effective the (DAY) day of (MONTH), (YEAR).

BY THE COURT:

_______________________________

ATTEST: The Honorable (FIRST AND LAST NAME)

Judge of the Circuit Court

Clerk of Court

BY: ___________________

Deputy (FIRST AND LAST NAME)

(SEAL)

Temporary Custody Order

PETITION FOR TEMPORARY

CUSTODY ABUSE OR NEGLECT

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF Court File No: _______________

SOUTH DAKOTA IN THE INTEREST OF,

______________________________

(DOB: _______________)

_______________ _______________

(DOB: _______________) PETITION FOR TEMPORARY

Child(ren), and concerning CUSTODY ABUSE OR NEGLECT

______________________________

(DOB: _______________)

_______________ _______________

(DOB: _______________)

Respondent(s),

The State of South Dakota, through (DEPUTY STATE’S ATTORNEY/STATE’S ATTORNEY),

(FIRST AND LAST NAME), hereby petitions the Court for an Order granting temporary custody of the

minor child to the South Dakota Department of Social Services and does hereby advise the parents,

guardians, and/or custodians of the following:

REMOVAL

The minor child was removed from the home on the (DAY) day of (MONTH), (YEAR), pursuant to SDCL

26-7A-12:

The child was placed into the temporary custody of the South Dakota Department of Social Services for

the reason that:

☐ the child was abandoned or seriously endangered in the child’s surroundings or was seriously

endangering others and immediate removal of the child appeared to be necessary for the child’s protection

or for the protection of others or

☐ the officer reasonably believed that temporary custody was warranted because there existed an

imminent danger to the child’s life or safety and there was not time to apply for a court order and the

child’s parents, guardian, or custodian refused an oral request or consent to the child’s removal from their

custody or the child’s parents, guardian or custodian were unavailable. Pursuant to SDCL 26-7A-13 the

Court Ordered temporary custody of the child during a noticed hearing; or Pursuant to SDCL 26-7A-13

Petition for Temporary Custody Abuse or Neglect

without a noticed hearing, the Court may immediately issue a written temporary custody directive on

receipt of an Affidavit, or on receipt of sworn testimony, stating good cause to believe:

☐ The child is abandoned or is seriously endangered by the child’s environment; or

☐ There exists an imminent danger to the child’s life or safety and immediate

removal of the child from the parent’s, guardian, or custodian appears to be

necessary for the protection of the child

☐ If the Indian Child Welfare Act applies, removal of the child from the

custody of the child’s parents, guardian or custodian was necessary to prevent

imminent physical damage or harm to the minor child.

INCORPORATED DOCUMENTS

The following documents are incorporated by reference and copies of said documents are attached

to the Petition for Temporary Custody:

☐ Notice of Temporary Custody

☐ Petition for Abuse or Neglect

☐ Summons for Abuse or Neglect Advisory Hearing

☐ Email correspondence as to the facts that led to the child’s removal

☐ Court Order authorizing placement

If the Indian Child Welfare Act (ICWA) applies to these proceedings the following documents are also

incorporated by reference and copies of said documents are attached to the Petition for Temporary

Custody:

☐ ICWA Affidavit (prepared by DSS worker)

PURPOSE

The purpose of the Petition for Temporary Custody is to seek continued temporary custody of the child

with the Department of Social Services. At the Temporary Custody Hearing the Court shall consider the

evidence of the need for continued temporary custody of the child in keeping with the best interests of the

child. If the Indian Child Welfare Act applies, the Court shall consider the evidence of whether emergency

Petition for Temporary Custody Abuse or Neglect

removal is no longer necessary to prevent imminent physical damage or harm to the child and the State

has the burden to prove by a preponderance of the evidence that continued removal of the child is

necessary to prevent imminent physical damage or harm to the child.

POSSIBLE IMMEDIATE CONSEQUENCES

The possible immediate consequences of the Temporary Custody Hearing are as follows:

Pursuant to SDCL 26-7A-19 the Court has the following options available following the

Temporary Custody Hearing, if the child is an apparent, alleged, or adjudicated abused or neglected child,

after the temporary custody hearing the Court may:

(1) Order the release of the child from temporary custody, either with or without restriction or

condition or upon written promise of the child’s parent, guardian, or custodian regarding the care and

protection of the child; or

(2) Continue the temporary custody of the child under the terms and conditions for duration and

placement that the court requires, including placement of temporary custody of the child with the

Department of Social Services, in foster care or shelter.

The Court and the Department of Social Services shall give placement preference to a relative or

custodian who is available and who has been determined by the Department to be qualified, provided that

placement with the relative or custodian is in the best interest of the child. If temporary custody of the

child is continued by the Court, the court may provide for visitation of the child by the parents, guardian

or custodian, or family members in keeping with the best interests of the child.

If the Indian Child Welfare Act applies, pursuant to 25 USC 1922 any emergency removal or placement of an

Indian Child under State law must terminate immediately when the removal or placement is no longer

necessary to prevent imminent physical damage or harm to the child. The State Court must (1) make a finding

on the record that the emergency removal or placement is necessary to prevent imminent physical damage or

harm to the child; (2) promptly hold a hearing on whether the emergency removal or placement continue to

be necessary whenever new information indicates that the emergency situation has ended; and (3) at any court

hearing during the emergency proceeding, determine whether the emergency removal or placement is no

longer necessary to prevent imminent physical damage or harm to the child; and (4) immediately terminate

Petition for Temporary Custody Abuse or Neglect

(or ensure that the agency immediately terminates) the emergency proceeding once the court or agency

possesses sufficient evidence to determine that the emergency removal or placement is no longer necessary

to prevent imminent physical damage or harm to the child.

An emergency proceeding can be terminated by one or more of the following actions:

(1) Initiation of a child custody proceeding subject to the provisions of ICWA;

(2) Transfer of the child to the jurisdiction of the appropriate Indian Tribe; or

(3) Restoring the child to the parent or Indian Custodian.

If the child is in the temporary custody of the Department of Social Services and has not been adjudicated

to be an abused or neglected child the Court shall review the child’s temporary custody placement at least

once every 60 days.

Placement preference shall be given to a relative. If the Department of Social Services is contacted by a family

member who desires to be a temporary or permanent placement for alleged or adjudicated abused or neglected

child who have been removed from the child’s parent, guardian or custodian, the Department shall document

the contact in the child’s file. The Department shall send information to the relative within five business days

informing the relative of the steps required in order for the relative to be considered for placement.

POSSIBLE ULTIMATE CONSEQUENCES

The possible ultimate consequence of an Abuse or Neglect proceeding are as follows:

Pursuant to SDCL 26-8A-22 and 26-8A-26 and 26-8A-27 at the completion of the dispositional phase of

the proceeding, the Court shall enter a final decree of disposition. That Final Decree can include:

(1) The Court may place the child in the custody of one or both of the child’s parents, a guardian, a

relative of the child, or another suitable person, or a party or agency (with, or without, protective

supervision) or the Department of Social Services subject to the conditions and the length of

time that the Court deems necessary or appropriate. If the Court returns custody to the parent,

guardian, or custodian, such return of custody may be with supervision during which the court

may require the parent, guardian, custodian, and any other adult residing in the home, to

cooperate with home visits by the Department and may require the parent, guardian, custodian,

and any other adult residing in the home to submit, at the request of the Department to tests for

alcohol, marijuana, or any controlled drug or substance. If the adjudication of abuse or neglect

was related to the use of alcohol, marijuana, or any controlled drug or substance, the parent,

guardian, or custodian, and any other adult residing in the home, may be required, in those areas

Petition for Temporary Custody Abuse or Neglect

where such testing is available, to submit to regular tests for alcohol, marijuana, or any controlled

drug or substance. If a positive test for alcohol, marijuana, or any controlled drug or substance

is obtained, or the person fails to submit to the test as required, the Department may immediately

remove the child from the physical custody of the parent, guardian, custodian, or any other adult

residing in the home whose test was positive or who failed to submit to the test, without prior

Court order subject to a review hearing, which may be held telephonically, within 48-hours

excluding weekends and court holidays.

(2) The Court (after determining that compelling reasons exist) may place the child in the permanent

custody of the Department of Social Services for purpose of creating a guardianship for the child

until the child reaches the age of eighteen.

(3) The Court may order that the child be examined or treated by a physician or by a qualified mental

health professional or that the child receives other special care and may place the child in a

suitable facility for such purposes under conditions that the court deems necessary or appropriate.

(4) The Court can Order that the parental rights of the parents be terminated and place the child in

the adoptive custody of the Department of Social Services.

(5) The Court can continue foster care placement of the child for a specified period of time and order

that the child receive independent living services.

COURT APPOINTED ATTORNEY

Pursuant to SDCL 26-8A-18 the Court shall appoint an attorney to represent any child alleged

to be abused or neglected in any judicial proceeding. The attorney for the child shall represent the

child’s best interests and may not be an attorney for any other party involved in the proceedings. The

Court may designate other persons, including a guardian ad litem or special advocate, who may or may

not be attorneys licensed to practice law, to assist the attorney of the child in the performance of the

attorney’s duties.

If a parent, guardian or custodian is indigent and cannot afford an attorney, the Court will appoint

counsel to represent the parent, guardian or custodian and counsel may request the 48 Hour Hearing be

continued; and the Court will grant a continuance, not to exceed 24 hours, to enable the attorney to

become familiar with the facts of the case and to meet and confer with the parent, guardian, or custodian

and to permit the parent, custodian and Tribe and counsel to prepare for the Hearing.

Petition for Temporary Custody Abuse or Neglect

INDIAN CHILD WELFARE ACT

If the child is eligible for membership or enrollment, or is enrolled in or is a member of, a

federally recognized Native American Tribe then the Indian Child Welfare Act will apply to these

proceedings and the parent, guardian, or custodian has the following rights:

If a parent, guardian, or custodian is indigent and cannot afford an attorney, the Court will

appoint counsel to represent the parent, guardian, or custodian and the Court will grant a continuance,

not to exceed 24 hours, to enable the attorney to become familiar with the facts of the case and to meet

and confer with the parent, guardian, or custodian.

If the Indian Child Welfare Act applies, the parents, guardians or custodians and their attorney

and the Tribe have the following rights at the Temporary Custody Hearing:

(1) To contest the allegations in the Petition for Temporary Custody;

(2) To require the State to present evidence in support of the Petition for Temporary

Custody;

(3) To cross-examine the State’s witnesses and the preparers of any documents presented to the

Court; including the DSS Child Protection Services Staff member who signed the ICWA

Affidavit as well as all other witnesses whose statements form the factual basis for any

document submitted to the Court for consideration during the 48-Hour Hearing;

(4) To subpoena witnesses and present sworn testimony and other evidence; and

(5) To subpoena any person who provided information in support of or in contradiction to the

ICWA Affidavit or Petition for Temporary Custody

(6) The parent, guardian or custodian has the right to request that these proceedings be transferred

to the Tribal Court.

(7) To an Order based on the evidence presented at the hearing

The parent, guardian, custodian, and Tribe must be given a copy of the ICWA Affidavit (prepared

by DSS) and the Petition for Temporary Custody at the earliest practical time but in no event later than

the commencement of the 48-Hour Hearing.

WHEREFORE, the State of South Dakota prays that the Court enter an Order granting temporary

custody of the above-named child to the South Dakota Department of Social Services.

Petition for Temporary Custody Abuse or Neglect

Dated this (DAY) day of (MONTH), (YEAR).

(DEPUTY STATE’S/STATE’S)

Attorney

(COUNTY NAME) County,

South Dakota

Petition for Temporary Custody Abuse or Neglect

48 HOUR HEARING ORDER

ABUSE OR NEGLECT

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, Court File No: _______________

______________________________

(DOB: _______________)

______________________________

(DOB: _______________) 48 HOUR HEARING ORDER

Child(ren), and concerning ABUSE OR NEGLECT

______________________________

(DOB: _______________)

______________________________

(DOB: _______________)

Respondent(s),

The above-entitled matter having come before the Court for a 48 Hour Hearing on the

(DAY) day of (MONTH), (YEAR), the Honorable (FIRST AND LAST NAME) presiding; the

State of South Dakota represented by Deputy State’s Attorney,(FIRST AND LAST NAME); the

South Dakota Department of Social Services (APPEARING / NOT APPEARING) through

Family Services Specialist; the minor’s Respondent father (APPEARING / NOT APPEARING)

in person but (REPRESENTED BY COUNSEL / NOT REPRESENTED BY COUNSEL); the

Respondent mother (APPEARING / NOT APPEARING) in person and (REPRESENTED BY

COUNSEL / NOT REPRESENTED BY COUNSEL); the minor children (APPEARING / NOT

APPEARING) in person but represented by counsel; CASA (APPEARING / NOT

APPEARING); the Court, having reviewed the records and files herein and being fully informed

in the premises, does now hereby:

ORDER, that the Indian Child Welfare Act does not apply to this case; and it is further

ORDERED, that the minor children shall remain in the Department of Social Services’

legal and physical custody through the pendency of the proceedings; and it is further

Petition for Temporary Custody Abuse of Neglect

ORDERED, that the Department of Social Services has made reasonable efforts to

prevent the removal of the children from the home but removal of the children from the home

was necessary as continued placement in the home was contrary to the welfare of the minor

children; and it is further

ORDERED, that returning legal and physical custody of the children to the Respondent

parents would be injurious to the welfare of the minor children at this time; and it is further

ORDERED, that the least restrictive alternative available in the children’s best interest is

continued placement in the legal and physical custody of the Department of Social Services; and

it is further

ORDERED, that the Department of Social Services shall begin supervised visitation at

their discretion provided that if any Protective Order is in place it can be modified to allow for

contact visitation; and it is further

ORDERED, that an Advisory Hearing shall be scheduled for (DATE) at (TIME).

ALLEGED ABUSED OR NEGLECTED CHILDREN SHALL NOT BE DETAINED

OR JAILED.

Dated this (DAY) day of (MONTH) (YEAR), effective however the (DAY) day of

(MONTH) (YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (FIRST AND LAST NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (FIRST AND LAST NAME)

(SEAL)

Petition for Temporary Custody Abuse of Neglect

______________________________

INDIAN CHILD WELFARE ACT

(ICWA) AFFIDA VIT

STATE OF SOUTH DAKOTA:

SS:

COUNTY OF _______________

IN CIRCUIT COURT

_______________ JUDICIAL CIRCUIT

IN THE INTEREST OF,

(DOB: _______________)

Child(ren), and concerning

(DOB: _______________)

Respondent Parents

File No: _______________

INDIAN CHILD WELFARE ACT

(ICWA) AFFIDA VIT

Comes now, (FIRST AND LAST NAME) (Family Services Specialist), being first duly sworn

upon Oath, and deposes and says:

1. That Affiant is a resident of the State of South Dakota and over the age of 18 years.

2. That Affiant is a Family Services Specialist for Child Protection Services.

3. That in the above capacity, the Affiant was consulted and involved concerning the removal of the

child(ren) from the Respondent Parents’ care.

4. That Respondent Mother, (FIRST AND LAST NAME), is birth mother to the minor child(ren) and her

address is (ADDRESS). She is a resident of (COUNTY NAME) County.

5. That Respondent Father, (FIRST AND LAST NAME), is the birth father to the minor child(ren) and

his address is: (ADDRESS). He is a resident of (COUNTY NAME) County.

6. That Mother (IS / IS NOT) an enrolled member of the (TRIBE NAME) Tribe.

• According to whom? Call the tribe immediately and ask. Document this here.

7. That father (IS / IS NOT) an enrolled member of the (TRIBE NAME) Tribe.

• According to whom? Call the tribe immediately and ask. Document this here.

8. The child(ren) are enrolled/affiliated with (TRIBE NAME) Tribe. Document this here.

ICWA Affidavit

9. That the minor child(ren) were taken into the temporary emergency legal and physical protective custody

by Law Enforcement Officer (OFFICER FIRST AND LAST NAME) on (DATE) and transferred to the

care of the Department of Social Services. The minor child(ren) were placed into licensed

foster/kinship/fictive kinship/group care on the same date.

10. Prior to the removal of the child(ren), the Department of Social Services made the following active efforts

to prevent the removal of the child(ren):

• Specialist (FIRST AND LAST NAME) assessed the possibility of managing the present

danger through implementation of a Present Danger Plan. A present danger plan was

determined insufficient to manage the present danger due to:

i. (Regarding the Present Danger Plan, provide information below that was used

to determine the plan’s insufficient status.)

1. Parent was assessed by the Department of Social Services staff

(FIRST AND LAST NAME) and Law Enforcement Officer

(FIRST AND LAST NAME) to be too impaired/intoxicated to

consent to a Present Danger Plan.

2. Parent refused to provide names

3. Parent provided names and these individuals were contacted, but

not able to be reached.

4. Parent provided names and these individuals refused or were

assessed and determined unable to manage the present danger

due to….

5. Parent’s whereabouts were unknown.

6. Whatever the reason…

• Non-Court Services were in place from (DATE) to (DATE).

• Any other services, etc. that were done PRIOR to custody

11. That temporary custody of the child(ren) by the Department of Social Services is necessary to prevent

imminent physical damage or harm to the child(ren); for the reasons stated below:

• (Provide Description of Present Danger resulting in custody)

In addition to the above-stated facts, the facts that warrant the continued separation of the child(ren)

from their parents or custodian to prevent imminent physical damage or harm to the child(ren) are as

follows:

• Describe why Present Danger Continues

• What other factors influence the present danger (Prior History with related Danger

Threats, Pattern, Severity, Vulnerability of Child, Ability to Protect),

12. The Department has made the following active efforts to comply with ICWA placement

preferences:

• On (DATE), Specialist (NAME) spoke with Mother about relative placement

options….

ICWA Affidavit

• On (DATE), Specialist (NAME) spoke with Father about relative placement

options….

• On (DATE), Specialist (NAME) reviewed the Department of Social Services’ records

and located (NAME) as possible relative(s) and possible contact information for

(NAME). Specialist (NAME) called (NAME); there was no answer and a voicemail

was left.

• Facebook search? FACIS search? Etc.

• On (DATE), Specialist (NAME) sent electronic correspondence to the (TRIBE

NAME) Tribe Indian Child Welfare Act representative (REPRESENTATIVE NAME)

alerting him/her to the placement of the Indian Child(ren) and requested assistance

in locating relatives.

• On (DATE), Specialist (NAME) sent facsimile to the (TRIBE NAME) Tribe’s Indian

Child Welfare Act representative (REPRESENTATIVE NAME) notifying him/her of

the placement of the child(ren) into temporary emergency custody and requested

assistance in locating relatives.

• On (DATE), Specialist (NAME) reviewed the emergency list for foster homes available

in the area; no Native American foster homes currently have openings for the

child(ren). Office/Region has (NUMBER) number of Native American foster

homes…. Summary).

• On (DATE), Kinship Specialist (DATE) was assigned to search for relatives. Kinship

search efforts are ongoing for the purposes of placement, maintaining connections,

and concurrent planning.

13. The following active efforts have been made to rehabilitate and reunite the family by the

Department of Social Services and to provide remedial services and rehabilitative programs

designed to prevent the breakup of the Indian Family and these efforts have proved

unsuccessful;

• (Likely repeat number 10’s supporting bullets)

• Law Enforcement Officer (OFFICER NAME) determined emergency protective

custody of the minor child(ren) was necessary to ensure their safety after it was

determined a Present Danger Plan was insufficient to manage the child(ren)’s

safety.

• A voluntary Present Danger Plan was considered, but not approved for the

following reasons: (i.e.)

• The Respondent Parents refused to provide relative names and contact

information to the Department; this negatively affected the Department’s

ability to maintain the Indian Family.

• The Mother was assessed by Law Enforcement Officer (OFFICER NAME)

and Specialist (SPECIALIST NAME) and deemed too impaired from

alcohol/drugs to meaningfully consent to a voluntary plan; this negatively

affected and hindered the Department’s ability to maintain the Indian

Family.

ICWA Affidavit

• Specialist (NAME) inquired as to the parent’s whereabouts from (ENTER TEXT).

Called last known phone number, sent Facebook message, etc. There was no answer;

this negatively affected and hindered the Department’s ability to maintain the Indian

Family.

• Specialist (NAME) spoke with the Division of Child Support regarding (ENTER

TEXT) address and contact information; a message was left requesting a call back.

• Specialist (NAME) assessed (ENTER TEXT) for kinship placement; these efforts

were unsuccessful.

• Specialist (NAME) contacted (ENTER TEXT) and requested a urinalysis on. (DATE).

• Specialist (NAME) reviewed (ENTER TEXT)’s Department of Social Services’ and

local criminal history. The information was assessed and discussed with

Supervisor(ENTER TEXT). Based on the totality of the alcohol-related reports,

criminal convictions, and previous placements in the care of the Department of Social

Services, it was determined that the completion of the Initial Family Assessment is a

service necessary to ensure the safety of child(ren). Specialist (NAME) was assigned

for completion of the Initial Family Assessment.

• Supervisor (ENTER TEXT) and Specialist (NAME) discussed the case history,

circumstances, and present danger. A Team Decision Making Meeting referral was

submitted on (ENTER TEXT) to discuss family strengths, identify needs, and identify

relative placements and/or supports.

• Family Group Coordinator (ENTER TEXT) was assigned on (ENTER TEXT) to

facilitate family meetings and concurrent planning.

14. The Affiant finds that the ICWA requirements have been met and the least restrictive alternative

available in the child(ren)’s best interest is continued placement in

FOSTER/KINSHIP/FICTIVE KINSHIP/GROUP CARE with the Department of Social

Services.

15. In the event a temporary custody order is entered at the conclusion of a 48 Hour Hearing, the

South Dakota Department of Social Services shall immediately report to the State Court that

the justification for the temporary custody order has ended because returning the child to its

parent or custodian will not place the child at imminent risk of physical damage or harm.

ICWA Affidavit

Further Affiant sayeth not.

Dated this (DAY) day of (MONTH), (YEAR)

Affiant

STATE OF SOUTH DAKOTA:

SS:

COUNTY OF _______________:

Subscribed and sworn to before me on, (DAY) day of (MONTH), (YEAR).

(Notary Public)

My commission expires on (DATE)

(SEAL)

ICWA Affidavit

PETITION

ABUSE OR NEGLECT

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________)

______________________________

(DOB: _______________)

Child(ren), and concerning PETITION

______________________________

ABUSE OR NEGLECT

(DOB: _______________)

______________________________

(DOB: _______________)

Respondent Parents

The Petition of (ENTER TEXT) respectfully represents:

1) That she is a resident of the State of South Dakota.

2) That (NAME) is a child under eighteen years of age, being of the age of (ENTER TEXT) years

old and who was residing in (COUNTY NAME) County at the commencement of these

proceedings.

3) That the names and addresses of the parents guardian or custodian of said child are:

Name Date of Address Relationship

Birth

(PERSON ONE (PERSON (PERSON ONE (PERSON ONE

NAME) ONE DATE ADDRESS) RELATIONSHIP)

OF BIRTH)

(PERSONE (PERSON (PERSON TWO (PERSON TWO

TWO NAME) TWO DATE ADDRESS) RELATIONSHIP)

OF BIRTH)

4) That said child is in the legal and physical custody of the Department of Social Services.

5) That this action is brought by the State on behalf of the South Dakota Department of Social Services.

6) The minor child (IS / IS NOT) an Indian Child as defined by the Indian Child Welfare Act (ICWA)

and thus ICWA would (APPLY / NOT APPLY) to these proceedings. (TRIBE)

Petition: Abuse or Neglect

7) That said child is alleged to be ABUSED OR NEGLECTED pursuant to the following:

A) The parent guardian or custodian has abandoned the minor child or subjected the child to

mistreatment or abuse. (26-8A-2(1))

B) The child lacks proper parental care through the actions or omissions of the child’s parents,

guardian or custodian. (26-8A-2(2))

C) The child’s environment is injurious to the child’s welfare (26-8A-2(3));

D) The child’s parent, guardian, or custodian fails or refuses to provide proper or necessary

subsistence, supervision, education, medical care, or any other care necessary for the child’s

health, guidance or wellbeing (26-8A-2(4));

E) The child is homeless, without proper care, or not domiciled with the child’s parent,

guardian, or custodian through no fault of the child’s parent, guardian or custodian (26-8A-

2(5));

F) The child is threatened with substantial harm (26-8A-2(6));

G) The child has sustained emotional harm or mental injury as indicated by an injury to the

child’s intellectual or psychological capacity evidence by an observable and substantial

impairment in the child’s ability to function within the child’s normal range of performance

and behavior, with due regard to the child’s culture (26-8A-2(7));

H) The child is subject to sexual abuse, sexual molestation, or sexual exploitation by the child’s

parent, guardian, or custodian, or any other person responsible for the child’s care (26-8A-

2(8));

I) The child was subject to prenatal exposure to abusive use of alcohol, marijuana, or any

controlled drug or substance not lawfully prescribed by a practitioner (26-8A-2(9));

J) The child’s parent, guardian, or custodian knowingly exposes the child to an environment

that is being used for the manufacture, use, or distribution of methamphetamine or any other

unlawfully manufactured controlled drug or substance (26-8A-2(10)).

8) That the facts which bring said child within the Court’s jurisdiction are as follows:

A) FACTS MUST SUPPORT THE SUBSECTION OF THE STATUTE BEING CITED

FOR EACH PARENT.

B) FACTS CAN INCLUDE PRIOR CPS INVOLVEMENT, PRIOR REMOVAL

AND/OR PRIOR TERMINATIONS.

C) FACTS SHOULD BE SPECIFIC AND CAN INCLUDE MEDICAL

DOCUMENTATION AND FACTS IN POLICE REPORTS.

D) FACTS SHOULD IDENTIFY PATERNITY FOR EACH CHILD AND

ALLEGATIONS AS TO EACH FATHER IF PATERNITY IS NOT ESTABLISHED

JOHN DOE MUST BE INCLUDED.

IF ASFA APPLIES THE FOLLOWING PARAGRAPH IS INCLUDED (NOT IN ICWA CASES):

Petition: Abuse or Neglect

[binding.law: PDF page 87 withheld — the text engines read it differently]

SUMMONS

ABUSE OR NEGLECT

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________)

______________________________

(DOB: _______________)

Child(ren), and concerning SUMMONS

______________________________ ABUSE OR NEGLECT

(DOB: _______________)

______________________________

(DOB: _______________)

Respondent(s)

TO THE PARENT, GUARDIANS, OR OTHER RESPONDENTS ABOVE-NAMED, GREETINGS:

YOU ARE HEREBY NOTIFIED that a verified Petition has been filed in the above-named Court in

which it is represented to the Court that the minor child is ABUSED OR NEGLECTED.

YOU ARE HEREBY NOTIFIED that the permanent termination of your parental/custodial rights is

a possible disposition under these proceedings and that you and the child have a right to an attorney at all

stages of the proceedings.

YOU ARE HEREBY NOTIFIED that the Court has set an Advisory Hearing on (DAY OF THE

WEEK), the (DAY) day of (MONTH), (YEAR) at the hour of (TIME) at the (COUNTTY NAME) County

Courthouse, (CITY NAME) South Dakota. You are required to appear at this hearing and respond to the

Petition.

YOU ARE HEREBY NOTIFIED that pursuant to SDCL 26-7A-44 and 27-7A-53 that failure to

appear, answer, or respond to this Petition will result in a finding that you are in default and shall be deemed

by the Court to be an admission to the Petition.

Summons: Abuse or Neglect

YOU ARE HEREBY NOTIFIED that the Indian Child Welfare Act does apply to these

proceedings.

Dated this (DAY) day of (MONTH), (YEAR)

(COUNTY NAME) County

(DEPUTY STATE’S/STATE’S) Attorney

Subscribed and sworn before me this (DAY) day of (MONTH), (YEAR).

____________________________________

Notary Public, South Dakota

(SEAL)

My Commission expires: (EXPIRY DATE)

Summons: Abuse or Neglect

ADVISORY HEARING

ORDER

(ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________)

Child(ren), and concerning

______________________________

(DOB: _______________) ADVISORY HEARING

______________________________ ORDER

(DOB: _______________)

(ICWA)

Respondent(s)

_____________________

Intervenor.

The above-entitled matter having come before the Court for an Advisory Hearing on the

(DAY) day of (MONTH), (YEAR), the Honorable (ENTER NAME), presiding; the State of

South Dakota being represented by (DEPUTY STATE’S / STATE’S ATTORNEY), (ENTER

NAME); the South Dakota Department of Social Services appearing through Family Services

Specialist (ENTER NAME); the Respondent mother, (APPEARING IN PERSON / NOT

APPEARING IN PERSON) and (REPRESENTED BY COUNSEL / IS NOT REPRESENTED

BY COUNSEL), (ENTER NAME); the Respondent father, (APPEARING IN PERSON / NOT

APPEARING IN PERSON) (AND / BUT), (REPRESENTED BY COUNSEL / IS NOT

REPRESENTED BY COUNSEL), (ENTER NAME); the minor child (APPEARING IN

PERSON / NOT APPEARING IN PERSON) (AND IS / BUT) represented by counsel,(ENTER

NAME); CASA (APPEARING THROUGH ITS DESIGNATED AGENT / IS NOT

APPEARING); the Tribe (REPRESENTED BY COUNSEL / IS NOT REPRESENTED BY

Advisory Hearing Order (ICWA)

COUNSEL), (ENTER NAME), (AND / OR) (APPEARING THROUGH ICWA SPECIALIST /

ICWA SPECIALIST IS NOT APPEARING) the Court, having reviewed the records and files

herein and being fully informed in the premises, does now hereby:

ORDER, that the minor child shall remain in the Department of Social

Services’ legal and physical custody; and it is further

ORDERED, that the Department of Social Services has made active efforts to achieve the

permanent plan of reunification of the child with the Respondent parents and these efforts have been

unsuccessful, and it would be contrary to the child’s welfare to be returned home; and it is further

ORDERED, that returning custody of the child to the Respondent parents would likely result in

serious emotional and/or physical damage to the minor child at this time; and it is further

ORDERED, that active efforts have been made to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and that these efforts have proven

unsuccessful; and it is further

ORDERED, that the least restrictive alternative available in the child’s best interest is continued

placement in the legal and physical custody of the Department of Social Services; and it is further

ORDERED, that there is good cause to place the child outside the ICWA Placement preferences.

Dated this (DAY) day of (MONTH), (YEAR) effective however, the (DAY) day of (MONTH),

(YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

____________________________________

The Honorable (NAME)

Judge of the Circuit Court

ATTEST:

Clerk of Courts

BY__________

Deputy (NAME)

(SEAL)

Advisory Hearing Order (ICWA)

ADVISORY HEARING

ORDER

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________)

Child(ren), and concerning

______________________________ ADVISORY HEARING

(DOB: _______________) ORDER

______________________________

(DOB: _______________)

Respondent(s)

The above-entitled matter having come before the Court for an Advisory Hearing on the

(DAY) day of (MONTH), (YEAR), the Honorable (ENTER NAME), presiding; the State of

South Dakota being represented by (DEPUTY STATE’S / STATE’S ATTORNEY), (ENTER

NAME); the South Dakota Department of Social Services appearing through Family Services

Specialist (ENTER NAME); the Respondent mother, (APPEARING IN PERSON / NOT

APPEARING IN PERSON) (AND/BUT) (REPRESENTED BY COUNSEL / IS NOT

REPRESENTED BY COUNSEL), (ENTER NAME); the Respondent father, (APPEARING IN

PERSON / NOT APPEARING IN PERSON) (AND / BUT), (REPRESENTED BY COUNSEL /

IS NOT REPRESENTED BY COUNSEL), (ENTER NAME); the Respondent father 2,

(APPEARING IN PERSON / NOT APPEARING IN PERSON) (AND / BUT),

(REPRESENTED BY COUNSEL / IS NOT REPRESENTED BY COUNSEL), (ENTER

NAME); the minor child (APPEARING IN PERSON / NOT APPEARING IN PERSON) (AND

IS / BUT) represented by counsel,(ENTER NAME); CASA (APPEARING THROUGH ITS

State Proposed: Advisory Hearing Order

DESIGNATED AGENT / IS NOT APPEARING); the Court, having reviewed the records and

files herein and being fully informed in the premises, does now hereby:

ORDER, that the Indian Child Welfare Act does not apply to this case; and it is further

ORDERED, that the minor children shall remain in the Department of Social Services’

legal and physical custody through the pendency of the proceedings; and it is further

ORDERED, that the Department of Social Services has made reasonable efforts to achieve

the permanent plan of reunification of the children with the Respondent parents and those efforts

have been unsuccessful and it would be contrary to the children’s welfare to be returned at this

time; and it is further

ORDERED, that the least restrictive alternative available commensurate with the best

interest of the children is continued custody with the Department of Social Services as return of

custody of the minor child to the Respondent parents would be injurious to the minor children’s

welfare.

Dated this (DAY) day of (MONTH), (YEAR) effective however, the (DAY) day of (MONTH),

(YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (NAME)

(SEAL)

State Proposed: Advisory Hearing Order

STATE’S PROPOSED

ADJUDICATORY FINDINGS OF FACT AND CONCLUSIONS OF LAW

(ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF,

______________________________ Court File No: _______________

(DOB: _______________)

______________________________

(DOB: _______________)

Child(ren), and concerning

______________________________ STATE’S PROPOSED

(DOB: _______________) ADJUDICATORY FINDINGS OF FACT AND

______________________________ CONCLUSIONS OF LAW

(DOB: _______________)

Respondent(s), (ICWA)

______________________________

(DOB: _______________)

Indian Custodian,

______________________________

Intervenor

The above-entitled matter having come on for an Adjudicatory Hearing on the (DAY) day of

(MONTH), (YEAR), the Honorable (ENTER NAME), presiding; the State of South Dakota being

represented by (DEPUTY STATE’S / STATE’S ATTORNEY), (ENTER NAME); the South Dakota

Department of Social Services appearing through Family Services Specialist (ENTER NAME); the

Respondent mother, (APPEARING IN PERSON / NOT APPEARING IN PERSON) (AND / BUT)

(REPRESENTED BY COUNSEL / IS NOT REPRESENTED BY COUNSEL), (ENTER NAME); the

Respondent father, (APPEARING IN PERSON / NOT APPEARING IN PERSON) (AND / BUT),

(REPRESENTED BY COUNSEL / IS NOT REPRESENTED BY COUNSEL), (ENTER NAME); the

Indian Custodian, (APPEARING IN PERSON / NOT APPEARING IN PERSON) (AND / BUT),

(REPRESENTED BY COUNSEL / IS NOT REPRESENTED BY COUNSEL), (ENTER NAME); the

minor child (APPEARING IN PERSON / NOT APPEARING IN PERSON) (AND IS / BUT)

State Proposed: Adjudicatory FFCL (ICWA)

represented by counsel,(ENTER NAME); the Tribe (REPRESENTED / IS NOT REPRESENTED) by

counsel, (AND / BUT) (APPEARING / NOT APPEARING) through ICWA Representative; CASA

(APPEARING / NOT APPEARING) through its designated agent; the Court, having reviewed the

records and files herein and being fully informed in the premises, does now hereby make and enter its

Adjudicatory Findings of Fact and Conclusions of Law by clear and convincing evidence as follows:

FINDINGS OF FACT

Proper notice has been given, and the parties have been provided an opportunity to

participate.

The Court has jurisdiction over these proceedings, and this is the proper venue.

(ENTER NAME) (DOB: (ENTER DOB)) and (ENTER NAME) (DOB: (ENTER

DOB)) are minor children who are in the legal and physical custody of the Department of

Social Services and who were residents of (COUNTY NAME) County at the commencement

of these proceedings.

The Respondent MOTHER is the biological mother of the minor children. She

(RECEIVED NOTICE OF THESE / HAS NOT RECEIVED NOTICE OF THESE)

proceedings and (HAS BEEN APPRISED OF HER RIGHTS AND OBLIGATIONS,

INCLUDING TH POSSIBILITY OF TERMINATION OF HER PARENTAL RIGHTS /

HAS NOT BEEN APPRISED OF HER RIGHTS AND OBLIGATIONS, INCLUDING THE

POSSIBILITY OF TERMINATION OF HER PARENTAL RIGHTS). MOTHER

(APPEARED AT THESE PROCEEDINGS / HAS NOT APPEARED AT THESE

State Proposed: Adjudicatory FFCL (ICWA)

PROCEEDINGS) (AND / BUT) (WAS REPRESENTED / WAS NOT REPRESENTED) by

counsel, (ENTER NAME).

The Respondent FATHER is the biological father of the minor children. He (HAS

RECEIVED NOTICE OF THESE PROCEEDINGS / HAS NOT RECEIVED NOTICE OF

THESE PROCEEDINGS), but (HAS BEEN / HAS NOT BEEN) fully apprised of his rights

and obligations, including the possibility of termination of his parental rights. FATHER

(DID NOT APPEAR / APPEARED) at these proceedings (BUT / AND) was (NOT

REPRESENTED / REPRESENTED) by counsel,(ENTER NAME).

The Respondent Indian CUSTODIAN is the children’s Indian Custodian as defined by the

Indian Child Welfare Act. (HE / SHE) (HAS RECEIVED NOTICE / HAS NOT RECEIVED

NOTICE) of these proceedings, (AND / BUT) has been fully apprised of her rights and

obligations, including the possibility of termination of her custodial rights. CUSTODIAN

(APPEARED / DID NOT APPEAR) at these proceedings (BUT / AND) was

(REPRESENTED / NOT REPRESENTED) by counsel,(NAME).

The Respondent mother, after an advisement of her rights including the possibility of

termination of her parental rights admitted to the portion (ENTER FACTS ABOUT THE

CASE HERE).

The Respondent mother’s admissions were knowingly and intelligently entered and

during these proceedings she has been represented by competent counsel.

State Proposed: Adjudicatory FFCL (ICWA)

The Respondent mother understands the nature of her admissions and the

consequences thereof. The reports provide a further factual basis from which to rely that the

minor children are adjudicated to be abused or neglected children as defined by SDCL 26-

8A-2 due to the actions and/or omissions of the Respondent mother.

10.

The Indian Custodian after an advisement of her rights including the possibility of

termination of her custodial rights (ENTER TEXT) admit to the allegations contained within

the Amended Petition for Abuse or Neglect but was unable to provide a factual basis for the

Court to determine that the children should be adjudicated to be abused or neglected and

therefore the matter went to full hearing.

11.

The State has met its burden by clear and convincing evidence to establish the facts set forth

in the Amended Petition for Abuse or Neglect that the minor children are adjudicated to be

abused or neglected children as defined by South Dakota law as a result of the actions and/or

omissions of the Indian Custodian.

12.

FACTS AS ESTABLISHED BY THE COURT. The Court adjudicates the minor children to

be abused or neglected as defined by SDCL 26-8A-2 in that their environment was injurious

to their welfare.

13. (IF NOT APPLICABLE, DELETE PARAGRAPH BELOW)

The Respondent (MOTHER / FATHER) was properly noticed of these proceedings

and failed to appear and is in default of these proceedings pursuant to the provisions of

SDCL § 26-7A-53 and therefore, the Abuse or Neglect Petition in this matter is hereby taken

as admitted to in its entirety by the Respondent (MOTHER / FATHER).

State Proposed: Adjudicatory FFCL (ICWA)

14.

The minor children are adjudicated to be abused or neglected children as defined by

SDCL 26-8A-2 due to the actions and/or omissions of the father.

15.

The minor children are an Indian Children as defined by the Indian Child Welfare Act

therefore the Indian Child Welfare Act applies to these proceedings.

16.

The minor children are eligible for enrollment or membership in the Tribe.

17.

The Department of the Interior, the Bureau of Indian Affairs, and the (TRIBE

NAME) Tribe and the (TRIBE NAME) Tribe have been notified of these proceedings in

accordance with the Indian Child Welfare Act. The (TRIBE NAME) Tribe (HAS

INTERVENED / HAS NOT INTERVENED) in these proceedings.

18.

The Department of Social Services has made reasonable and active efforts to reunite

the minor children with the Respondent parents and Indian Custodian.

19.

The Department of Social Services has made active efforts to provide remedial

services and rehabilitative programs designed to prevent the breakup of the Indian family.

20.

Continued custody of the children by the Respondent parents or Indian Custodian

would likely result in serious emotional or physical damage to the minor children at this time.

21.

The least restrictive alternative available commensurate with the best interest of the

minor children is for physical and legal custody of the minor children to remain with the

State Proposed: Adjudicatory FFCL (ICWA)

Department of Social Services during the pendency of these proceedings, it being contrary to

the welfare of the minor children to return legal or physical custody to the Respondent

parents or Indian Custodian at this time.

Based upon the foregoing Findings of Fact, the Court now makes and enters the

following Conclusions of Law

CONCLUSIONS OF LAW

Any Conclusion of Law deemed to be a Finding of Fact or vice versa shall be appropriately

incorporated into the Findings of Fact or Conclusions of Law.

This Court has jurisdiction over the parties and subject matter of this action.

The allegations contained in the Petition for Abuse or Neglect are supported by clear

and convincing evidence that the minor children are abused or neglected children as defined

by SDCL 26-8A-2 due to the actions and/or omissions of the Respondent mother, the

Respondent father, and the Indian Custodian.

Dated this (DAY) day of (MONTH), (YEAR) effective however, the (DAY) day of

(MONTH), (YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

_______________________________

The Honorable (NAME)

Judge of the Circuit Court

ATTEST:

Clerk of Court

BY: _________________

Deputy (NAME)

(SEAL)

State Proposed: Adjudicatory FFCL (ICWA)

STATE’S PROPOSED

ADJUDICATORY ORDER

(ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, Court File No: _______________

______________________________

(DOB: _______________)

______________________________

(DOB: _______________)

Child(ren), and concerning

______________________________

(DOB: _______________)

______________________________

(DOB: _______________) STATE’S PROPOSED

Respondent(s), ADJUDICATORY ORDER

______________________________

(DOB: _______________) (ICWA)

Indian Custodian,

______________________________

Intervenor

The above-entitled matter having come before the Court for an Adjudicatory Hearing on the

(DAY) day of (MONTH), (YEAR), the Honorable (ENTER NAME); the State of South Dakota

represented by (DEPUTY STATE’S / STATE’S ATTORNEY), (ENTER NAME); the South Dakota

Department of Social Services appearing through Family Services Specialist,(ENTER NAME);

(ENTER NAME), the Respondent (MOTHER / FATHER), (APPEARING / NOT APPEARING) in

person (AND / BUT), (REPRESENTED BY COUNSEL / NOT REPRESENTED BY COUNSEL),

(ENTER NAME);(ENTER NAME), the Respondent (MOTHER / FATHER), (APPEARING / NOT

APPEARING) in person (AND / BUT), (REPRESENTED BY COUNSEL / NOT REPRESENTED

BY COUNSEL), (ENTER NAME); the minor child(ren) (APPEARING / NOT APPEARING) in

States Proposed: Adjudicatory Order (ICWA)

person (AND / BUT) represented by counsel,(ENTER NAME); the Tribe (APPEARING THROUGH

ICWA REPRESENTATIVE / NOT APPEARING THROUGH ICWA REPRESENTATIVE) (AND /

BUT), (REPRESENTED BY COUNSEL / NOT REPRESENTED BY COUNSEL),(ENTER

NAME); CASA (APPEARING THROUGH ITS DESIGNATED AGENT / NOT APPEARING); the

Court, having reviewed the records and files herein and being fully informed in the premises, and

having made and entered its Adjudicatory Findings of Fact and Conclusions of Law by clear and

convincing evidence does now hereby:

ORDER, the minor children are adjudicated to be abused or neglected children as defined by

SDCL §26-8A-2 through the actions and/or omissions of the Respondent mother; and it is further

ORDERED, that the minor children are adjudicated to be abused or neglected children as defined

by SDCL §26-8A-2(5) through no fault of the Respondent father; and it is further

ORDERED, that the minor children shall remain in the Department of Social Services’ legal and

physical custody through the pendency of the proceedings; and it is further

ORDERED, that the Department of Social Services has made reasonable and active efforts to

achieve the permanent plan of reunification of the children with their parents, and these efforts have

been unsuccessful, and it would be contrary to the children’s welfare to be returned home; and it is

further

ORDERED, that returning custody of the children to the parents would likely result in serious

emotional and/or physical damage to the minor children; and it is further

ORDERED, that active efforts have been made to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and these efforts have proven

unsuccessful; and it is further

States Proposed: Adjudicatory Order (ICWA)

ORDERED, that the least restrictive alternative available in the child’s best interest if continued

legal and physical custody with the Department of Social Services; and it is further

ORDERED, that there is good cause to place outside the ICWA placement preference.

Dated this (DAY) day of (MONTH), (YEAR) effective, however, the (DAY) day of

(MONTH), (YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (NAME)

(SEAL)

States Proposed: Adjudicatory Order (ICWA)

STATE’S PROPOSED

ADJUDICATORY FINDINGS OF FACT

AND CONCLUSIONS OF LAW

(NON ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________) STATE’S PROPOSED

Child(ren), and concerning ADJUDICATORY FINDINGS OF FACT

AND CONCLUSIONS OF LAW

______________________________ (NON ICWA)

(DOB: _______________)

______________________________

(DOB: _______________)

Respondent(s),

The above-entitled matter having come on for an Adjudicatory Hearing on the (DAY) day of

(MONTH), (YEAR), the Honorable (ENTER NAME), presiding; the State of South Dakota being

represented by its (DEPUTY STATE’S / STATE’S ATTORNEY), (ENTER NAME); the South

Dakota Department of Social Services appearing through Family Services Specialist (ENTER NAME);

(ENTER NAME), the Respondent mother, (APPEARING IN PERSON / NOT APPEARING IN

PERSON) (AND / BUT) (REPRESENTED BY COUNSEL / IS NOT REPRESENTED BY

COUNSEL), (ENTER NAME), the Respondent father, (APPEARING IN PERSON / NOT

APPEARING IN PERSON) (AND / BUT) (REPRESENTED BY COUNSEL / IS NOT

REPRESENTED BY COUNSEL), (ENTER NAME), the minor child, (APPEARING IN PERSON /

NOT APPEARING IN PERSON) (AND IS / BUT) represented by counsel,(ENTER NAME); CASA;

(APPEARING / NOT APPEARING), the Court, having reviewed the records and files herein and being

fully informed in the premises, does now hereby make and enter its Findings of Fact and Conclusions

of Law for Adjudication by clear and convincing evidence, as follows:

FINDINGS OF FACT

States Proposed: Adjudicatory FFCL (Non-ICWA)

Proper notice has been given and that the parties have been given opportunity to participate.

This Court has jurisdiction and this is the proper venue.

(NAME) is a minor child who is in the legal and physical custody of the Department of Social

Services and who was a resident of (COUNTY NAME) County at the commencement of these proceedings.

(NAME) is the biological mother of the minor child. She (HAS / HAS NOT) received notice of these

proceedings, (AND / BUT) (HAS / HAS NOT) been apprised of her rights and obligations in these

proceedings, including the possibility of termination of her parental rights. (ENTER TEXT) (APPEARED

IN PERSON / NOT APPEARED IN PERSON) (AND / BUT) (WAS REPRESENTED BY COUNSEL /

WAS NOT REPRESENTED BY COUNSEL).

(NAME) is the (ALLEGED BIOLOGICAL FATHER / BIOLOGICAL FATHER) of the minor child. He has

received notice of these proceedings and has been apprised of his rights and obligations in these proceedings,

including the possibility of termination of parental rights. (ENTER TEXT) (APPEARED IN PERSON / NOT

APPEARED IN PERSON) (AND / BUT) (WAS REPRESENTED BY COUNSEL / WAS NOT

REPRESENTED BY COUNSEL).

(NAME)is the biological father of the minor child. He (HAS / HAS NOT) received notice of these

proceedings through publication and (HAS / HAS NOT) been apprised of his rights and obligations in these

proceedings, including the possibility of termination of his parental rights. (ENTER TEXT) (APPEARED /

FAILED TO APPEAR) at these proceedings.

7. (IF NOT APPLICABLE, DELETE PARAGRPH BELOW)

States Proposed: Adjudicatory FFCL (Non-ICWA)

The Respondent mother, (NAME), is in default of these proceedings pursuant to the provisions

of SDCL§ 26-7A-53 and therefore, the Petition for Abuse or Neglect filed in this matter is hereby taken

as admitted to by the Respondent father,(NAME). The minor child is adjudicated to be an abused or

neglected child through the actions and/or omissions of the Respondent father.

The minor child is not an Indian Child as defined by the Indian Child Welfare Act therefore the

Indian Child Welfare Act does not apply to these proceedings.

The Department of Social Services has made reasonable efforts to reunite the minor child with the

Respondent parents and these efforts are on-going.

10.

The least restrictive alternative available commensurate with the best interest of the minor child is for

physical and legal custody of the minor child to remain with the Department of Social Services during

the pendency of these proceedings, it being contrary to the welfare of the minor child to return legal or

physical custody to the Respondent parents at this time.

Based upon the foregoing Findings of Fact, the Court now makes and enters the following

Conclusions of Law;

CONCLUSIONS OF LAW

Any Conclusion of Law deemed to be a Finding of Fact or vice versa shall be appropriately incorporated

into the Findings of Fact or Conclusions of Law.

This Court has jurisdiction over the parties and subject matter of this action.

States Proposed: Adjudicatory FFCL (Non-ICWA)

The allegations contained in the Petition for Abuse or Neglect are supported by clear and

convincing evidence that the minor child is abused or neglected within the meaning of SDCL § 26-8A-2

due to the actions and/or omissions of the Respondent father,(NAME).

Dated this (DAY) day of (MONTH), (YEAR) effective however, the (DAY) day of

(MONTH), (YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (NAME)

(SEAL)

States Proposed: Adjudicatory FFCL (Non-ICWA)

STATE’S PROPOSED

ADJUDICATORY ORDER

(NON ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________)

Child(ren), and concerning

STATE’S PROPOSED

______________________________ ADJUDICATORY ORDER

(DOB: _______________) (NON ICWA)

______________________________

(DOB: _______________)

Respondent(s),

The above-entitled matter having come before the Court for an Adjudicatory Hearing on the

(DAY) day of (MONTH), (YEAR), the Honorable (ENTER NAME), presiding; the State of South

Dakota being represented by its (STATE’S / DEPUTY STATE’S) Attorney, (ENTER NAME); the South

Dakota Department of Social Services appearing through Family Services Specialist,(ENTER NAME);

(ENTER NAME), the Respondent mother, (APPEARING IN PERSON / NOT APPEARING IN

PERSON) (AND / BUT) (REPRESENTED BY COUNSEL / NOT REPRESENTED BY COUNSEL),

(ENTER NAME); (ENTER NAME), the Respondent father, (APPEARING IN PERSON / NOT

APPEARING IN PERSON) (AND / BUT) (REPRESENTED BY COUNSEL / NOT REPRESENTED

BY COUNSEL), (ENTER NAME); the minor child not appearing in person but represented by counsel,

(ENTER NAME); CASA (APPEARING THROUGH ITS DESIGNATED AGENT / NOT

APPEARING); the Court, having reviewed the records and files herein and being fully informed in the

State Proposed: Adjudicatory Order (Non-ICWA)

premises, and having made and entered its Findings of Fact and Conclusions of Law for Adjudication

by clear and convincing evidence, does now hereby:

ORDER, that the minor child is adjudicated to be an abused or neglected child as defined by

SDCL § 26-8A-2 due to the actions and/or omissions of the Respondent parents, and it is further

ORDERED, that the minor child shall remain in the Department of Social Services’ legal and

physical custody through the pendency of the proceedings; and it is further

ORDERED, that the Department of Social Services has made reasonable efforts to achieve the

permanent plan of reunification of the child with his parents and these efforts have been unsuccessful

and it would be injurious to the child’s welfare to be returned home; and it is further

ORDERED, that the least restrictive alternative available in the child’s, best interest is continued legal

and physical custody with the Department of Social Services; and it is further

ORDERED, that returning custody of the child to the parents would be injurious to the child’s welfare.

Dated this (DAY) day of (MONTH), (YEAR) effective, however, the (DAY) day of (MONTH),

(YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (NAME)

(SEAL)

State Proposed: Adjudicatory Order (Non-ICWA)

STATE’S PROPOSED ADOPTION AND SAFE FAMILIES ACT FINDINGS OF FACT

AND CONCLUSIONS OF LAW

(NON ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________) STATE’S PROPOSED ADOPTION AND

Child(ren), and concerning SAFE FAMILIES ACT FINDINGS OF

FACT AND CONCLUSIONS OF LAW

______________________________

(DOB: _______________) (NON ICWA)

______________________________

(DOB: _______________)

Respondent(s),

The above-entitled matter having come before the Court for a “No Reasonable Efforts” Hearing

pursuant to the Adoption and Safe Families Act on the (DAY) day of (MONTH), (YEAR); the Honorable

(ENTER NAME) presiding; the State of South Dakota represented by (STATE’S / DEPUTY STATE’S)

Attorney,(ENTER NAME); the South Dakota Department of Social Services appearing through Family

Services Specialist, (ENTER NAME); (ENTER NAME), the Respondent mother (APPEARING IN

PERSON / NOT APPEARING IN PERSON) (AND / BUT) (REPRESENTED BY COUNSEL / NOT

REPRESENTED BY COUNSEL), (ENTER NAME); (ENTER NAME). the Respondent father

(APPEARING IN PERSON / NOT APPEARING IN PERSON) (AND / BUT) (REPRESENTED BY

COUNSEL / NOT REPRESENTED BY COUNSEL), (ENTER NAME); the minor child (NOT

APPEARING / APPEARING) in person (AND / BUT) represented by counsel, (ENTER NAME); CASA

(APPEARING THROUGH REPRESENTATIVE / NOT APPEARING); and the Court, having reviewed

the records and files herein and being fully informed in the premises does now hereby make and enter its

Findings of Fact and Conclusions of Law by clear and convincing evidence as follows:

Proposed-ASFA-FFCL-NON-ICWA

FINDINGS OF FACT

Proper notice has been given and the parties have been provided an opportunity to participate.

This Court has jurisdiction and this is the proper venue.

(ENTER NAME) is a minor child who is in the legal and physical custody of the Department of Social

Services, and who was a resident of (COUNTY NAME) County at the commencement of these

proceedings.

(ENTER NAME) is the biological mother of the minor child. She received notice of these

proceedings and has been fully apprised of her rights and obligations in these proceedings, including the

possibility of termination of her parental rights. (ENTER NAME) (APPEARED / DID NOT APPEAR)

at these proceedings (AND / BUT) (WAS REPRESENTED / WAS NOT REPRESENTED) by counsel,

(ENTER NAME).

(ENTER NAME) is the biological father of the minor child. He received notice of these

proceedings and has been fully apprised of his rights and obligations in these proceedings, including the

possibility of termination of his parental rights. (ENTER NAME) (APPEARED / DID NOT APPEAR)

at these proceedings (AND / BUT) (WAS REPRESENTED / WAS NOT REPRESENTED) by counsel,

(ENTER NAME).

The minor child is not an Indian Child as defined by the Indian Child Welfare Act and thus the

Indian Child Welfare Act does not apply to these proceedings.

Proposed-ASFA-FFCL-NON-ICWA

The Court, having received the State’s Exhibits of certified copies of the Adjudicatory Findings

of Fact and Conclusions of Law, and the Adjudicatory Order from (COUNTY NAME) County file

(ENTER TEXT), and having taken judicial notice of both Court Files, finds that the Respondent

parents previously had a child removed from their custody because the removed child was adjudicated

abused and neglected by a court on at least one previous occasion. As such, the Adoptions and Safe

Families Act, specifically as codified at SDCL 26-8A-21.1(8) is applicable to this case as to the

Respondent parents.

A number of concerning risk factors exist despite the fact that the Respondent parents have been

offered numerous services by the Department of Social Services as part of a prior Abuse and Neglect

proceeding.

The Respondent parents were provided services by the Department of Social Services from

(ENTER DATE) until ENTER DATE). The child, (ENTER NAME) was removed from the home on

(ENTER DATE) when (HE / SHE) was (ENTER TEXT) because (ENTER TEXT). The Department

worked with the Respondent parents to address the issues. Services provided in (ENTER TEXT)

included (A / THE FOLLOWING): (ENTER TEXT – EXAMPLES - PROTECTIVE CAPACITIES

ASSESSMENT AND EVALUATIONS; MEDICAL SERVICES; KINSHIP SERVICES; UAS;

PSYCHOLOGICAL EVALUATION; CHEMICAL DEPENDENCY EVALUATION;

TRANSPORTATION; THERAPY AND CONCURRENT PLANNING AS WELL AS ATTEMPTS TO

ENGAGE THE RESPONDENT WHO REFUSED TO PARTICIPATE FOR MOST OF THE CASE).

The minor child was adjudicated to be abused or neglected through the actions and/or omissions of the

Respondent (ENTER NAME).

10.

Proposed-ASFA-FFCL-NON-ICWA

The minor child came into care again on (ENTER DATE) due to concerns of (ENTER TEXT). The

minor child was (ENTER TEXT) when he came back into care.

11.

The conditions continue to exist and that the very same issues that existed in (ENTER TEXT)

regarding both parents continue to exist.

12.

The Adoption and Safe Families Act applies to these proceedings and thus further services are

not required under the Adoption and Safe Families Act.

13.

The Department of Social Services has made reasonable efforts to prevent the

removal of the minor child from the home and to reunite the minor child with the parents,

and to achieve the permanent plan of reunification; and those efforts are no longer required.

14.

Return of custody of the minor child to the Respondent parents would be injurious to

the minor child’s welfare.

15.

The least restrictive alternative available commensurate with the best interest of the minor

child is for legal and physical custody of the minor child to remain with the Department of

Social Services, it being contrary to the welfare of the minor child to return legal and/or

physical custody to the Respondent parents.

Based upon the foregoing Findings of Fact, the Court now makes and enters its

Conclusions of Law pursuant to the Adoption and Safe Families Act as follows:

CONCLUSIONS OF LAW

Proposed-ASFA-FFCL-NON-ICWA

Any Conclusion of Law deemed to be a Finding of Fact or vice versa shall be appropriately

incorporated into the Findings of Fact or Conclusions of Law as applicable.

This Court has jurisdiction over the parties and subject matter of this action.

The Court has considered and applied the legal holdings found in (ENTER TEXT).

The Court finds that it is the best interests of the minor child to apply the Adoption

and Safe Families Act, it being the least restrictive alternative available in the minor child’s

best interests that no further reasonable efforts be required to reunite the minor child with the

Respondent parents and to set a Final Dispositional Hearing within thirty days.

Dated this (DAY) day of (MONTH, YEAR), effective, however, the (DAY) day of

(MONTH), (YEAR), being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (ENTER NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (ENTER NAME)

(SEAL)

Proposed-ASFA-FFCL-NON-ICWA

STATE’S PROPOSED

ADOPTION AND SAFE FAMILIES ACT ORDER

(NON ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________) STATE’S PROPOSED

Child(ren), and concerning ADOPTION AND SAFE FAMILIES ACT

ORDER

______________________________

(DOB: _______________) (NON-ICWA)

______________________________

(DOB: _______________)

Respondent(s),

The above-entitled matter having come before the Court for a “No Reasonable Efforts”

Hearing pursuant to the Adoption and Safe Families Act on the (DAY) day of (MONTH),

(YEAR); the Honorable (ENTER NAME) presiding; the State of South Dakota represented by

(STATE’S / DEPUTY STATE’S) Attorney,(ENTER NAME); the South Dakota Department of

Social Services appearing through Family Services Specialist, (ENTER NAME); (ENTER

NAME), the Respondent mother, (APPEARING IN PERSON / NOT APPEARING IN

PERSON) (AND / BUT) (REPRESENTED BY COUNSEL / NOT REPRESENTED BY

COUNSEL), (ENTER NAME); (ENTER NAME), the Respondent father, (APPEARING / NOT

APPEARING) in person (AND / BUT), (REPRESENTED BY COUNSEL / NOT

REPRESENTED BY COUNSEL), (ENTER NAME); the minor children (APPEARING / NOT

APPEARING) in person (AND / BUT) represented by counsel, (ENTER NAME); CASA

(APPEARING THROUGH REPRESENTATIVE / NOT APPEARING); and the Court, having

reviewed the records and files herein and being fully informed in the premises and having made

State Proposed: ASFA Order (Non-ICWA)

and entered its Findings of Fact and Conclusions of Law by clear and convincing evidence does

now hereby:

ORDER, that the Adoption and Safe Families Act is applicable to this case; and it is further

ORDERED, that the Department of Social Services has provided reasonable efforts to prevent

the removal of the minor child from the home but the removal of the child from the home was

necessary because continued presence of the child in the home was injurious to his welfare; and

it is further

ORDERED, that the least restrictive alternative available in the minor child’s best interest is for

the legal and physical custody of the minor child to remain with the Department of Social

Services, it being contrary to the child’s best interests and welfare to return to the legal and

physical custody of the child to the Respondent parents; and it is further

ORDERED, that the Department of Social Services is relieved from providing any

further efforts towards reunification; and it is further

ORDERED, that a Dispositional Hearing shall be held within 30 days.

Dated this (DAY) day of (MONTH, YEAR), effective, however, the (DAY) day of (MONTH),

(YEAR), being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (ENTER TEXT)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (ENTER NAME)

(SEAL)

State Proposed: ASFA Order (Non-ICWA)

REVIEW HEARING ORDER

(ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF,

File No: _______________

______________________________

(DOB: _______________)

Child(ren), and concerning

______________________________ REVIEW HEARING

(Respondent and Indian Custodian) ORDER

______________________________ (ICWA)

______________________________

Respondent(s),

______________________________

Intervenor

The above-entitled matter having come before the Court for a Review Hearing on the (DAY) day

of (MONTH), (YEAR), the Honorable (ENTER NAME), presiding; the State of South Dakota

represented by Deputy State’s Attorney, (ENTER NAME); the South Dakota Department of Social

Services appearing through Family Services Specialist (ENTER NAME); (ENTER NAME), the

Respondent mother (APPEARING / NOT APPEARING) in person (AND / BUT) (REPRESENTED /

NOT REPRESENTED) by counsel, (ENTER NAME); (ENTER NAME), the Respondent father,

(APPEARING / NOT APPEARING) in person (AND / BUT) (REPRESENTED / NOT

REPRESENTED) by counsel, (ENTER NAME); the Respondent Indian Custodian, (APPEARING /

NOT APPEARING) in person (AND / BUT) (REPRESENTED / NOT REPRESENTED) by counsel,

(ENTER NAME); the minor children (APPEARING / NOT APPEARING) in person (AND / BUT)

represented by counsel, (ENTER NAME); CASA (APPEARING THROUGH ITS DESIGNATED

AGENT / NOT APPEARING); the Tribe (REPRESENTED / NOT REPRESENTED) by counsel,

Review Hearing Order (ICWA)

(ENTER NAME); the Court, having reviewed the records and files herein and being fully informed in

the premises and having heard the testimony presented, does now hereby:

ORDER, that the minor child(ren) shall remain in the Department of Social Services’ legal and

physical custody through the pendency of the proceedings; and it is further

ORDERED, that the Department of Social Services has made active efforts to achieve the

permanent plan of reunification of the child(ren) with their parents and Indian Custodian and these

efforts have been unsuccessful and it would be contrary to the child’s welfare to be returned home; and it

is further

ORDERED, that returning legal and physical custody of the child(ren) to the parents or Indian

Custodian would likely result in serious emotional and/or physical damage to the minor children at this

time; and it is further

ORDERED, that active efforts have been made to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and these efforts have proven

unsuccessful; and it is further

ORDERED, that the least restrictive alternative available in the minor child(ren)’s best interest is

continued placement in the legal and physical custody of the Department of Social Services; and it is

further

ORDERED, that there is good cause to place outside the ICWA Placement Preferences.

Dated this (DAY) day of (MONTH, YEAR), effective however, the (DAY) day of (MONTH),

(YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (ENTER NAME)

Judge of the Circuit Court

Review Hearing Order (ICWA)

Clerk of Court

BY:

Deputy (ENTER NAME)

(SEAL)

Review Hearing Order (ICWA)

REVIEW HEARING ORDER

(NON-ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________)

Child(ren), and concerning REVIEW HEARING

ORDER

______________________________

(DOB: _______________) (NON-ICWA)

______________________________

(DOB: _______________)

Respondent(s),

The above-entitled matter having come before the Court for a Review Hearing, on the (DAY)

day of (MONTH), (YEAR), the Honorable (ENTER NAME) presiding; the State of South Dakota

represented by (STATE’S ATTORNEY / DEPUTY STATE’S ATTORNEY), (ENTER NAME); the

South Dakota Department of Social Services appearing through Family Services Specialist (ENTER

NAME); (ENTER NAME), the Respondent (MOTHER / FATHER), (APPEARING / NOT

APPEARING) (IN PERSON / VIA TELEPHONE / VIA ELECTRONICALLY) (AND / BUT)

(REPRESENTED BY COUNSEL / NOT REPRESENTED BY COUNSEL), (ENTER NAME);

(ENTER NAME), the Respondent (MOTHER / FATHER), (APPEARING / NOT APPEARING) (IN

PERSON / VIA TELEPHONE / VIA ELECTRONICALLY) (AND / BUT) (REPRESENTED BY

COUNSEL / NOT REPRESENTED BY COUNSEL), (ENTER NAME); the minor children

(APPEARING / NOT APPEARING) in person (AND / BUT) Represented by counsel, (ENTER

NAME); CASA (APPEARING THROUGH ITS DESIGNATED AGENT / NOT APPEARING); the

Review Hearing Order (Non-ICWA)

Court, having reviewed the records and files herein and being fully informed in the premises, does now

hereby:

ORDER, that the Indian Child Welfare Act does not apply to this case; and it is further

ORDERED, that the minor children shall remain in the Department of Social Services’ legal and

physical custody through the pendency of the proceedings; and it is further

ORDERED, that the Department of Social Services has made reasonable efforts to achieve the

permanent plan of reunification of the children with the Respondent parents and those efforts have been

unsuccessful and it would be contrary to the children’s welfare to be returned at this time; and it is

further

ORDERED, that the least restrictive alternative available commensurate with the best interest of

the children is continued custody with the Department of Social Services as return of custody of the

minor child to the Respondent parents would be injurious to the minor children’s welfare.

Dated this (DAY) day of (MONTH, YEAR) effective, however, the (DAY) day of (MONTH),

(YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (ENTER NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (ENTER NAME)

(SEAL)

Review Hearing Order (Non-ICWA)

PRE-DISPOSITIONAL

PERMANENCY HEARING

ORDER

(ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF, File No: _______________

______________________________

(DOB: _______________)

Child(ren), and concerning

______________________________ PRE-DISPOSITIONAL

(DOB: _______________) PERMANENCY HEARING

______________________________ ORDER

(DOB: _______________)

Respondent(s),

(ICWA)

______________________________

Intervenor

The above-entitled matter having come before the Court for an Permanency Hearing on the

(DAY) day of (MONTH), (YEAR); the Honorable (ENTER NAME) presiding; the State of South

Dakota represented by (DEPUTY STATE’S ATTORNEY / STATE’S ATTORNEY), (ENTER

NAME); the South Dakota Department of Social Services appearing through Family Services

Specialist, (ENTER NAME); (ENTER NAME), the Respondent (MOTHER / FATHER),

(APPEARING / NOT APPEARING) in person (AND / BUT) (REPRESENTED BY COUNSEL /

NOT REPRESENTED BY COUNSEL), (ENTER NAME); (ENTER NAME), the Respondent

(MOTHER / FATHER), (APPEARING / NOT APPEARING) in person (AND / BUT)

(REPRESENTED BY COUNSEL / NOT REPRESENTED BY COUNSEL), (ENTER NAME); the

minor children (APPEARING / NOT APPEARING) in person (AND / BUT) represented by counsel,

(ENTER NAME); CASA (APPEARING THROUGH ITS DESIGNATED AGENT / NOT

Permanency Hearing Order (ICWA)

APPEARING); the Tribe (REPRESENTED BY COUNSEL / NOT REPRESENTED BY

COUNSEL), (ENTER NAME); the Court, having reviewed the records and files herein and being

fully informed in the premises, does now hereby

ORDERED, that the minor child shall remain in the Department of Social Services’ legal and

physical custody through the pendency of the proceedings; and it is further

ORDERED, that the Department of Social Services has made active efforts to achieve the

permanent plan of reunification of the child with her parents and these efforts have been unsuccessful

and it would be contrary to the children’s welfare to be returned home; and it is further

(CHOOSE ONE: ORDERED, that the Department of Social Services shall adopt the following

plan: / The court finds a compelling reason to not return the child/children home or to move for

termination of parental rights or guardian based on the following circumstances: (ENTER DETAILS).)

(CHOOSE ONE: the child/children shall be reunified with the [birth father/birth mother/birth parents]

and a plan for that reunification shall be followed. / the child/children shall be placed for adoption; the

state is hereby ordered to notify the parties of the intent to seek the termination of parental rights, if the

notice has not been previously provided. / the child/children shall be referred for legal guardianship with

the following individual: (ENTER DETAILS). / the child/children shall be placed permanently with a fit

and living relative: (ENTER DEAILS). / this court having found a compelling reason that no other

option be adopted, The child (Child over 16 years old) shall be placed in a planned permanent living

arrangement as follows: (ENTER DETAILS).

ORDERED that the least restrictive alternative available in the minor child’s best interest is

continued legal and physical custody with the Department of Social Services.

ORDERED, that returning custody of the child to the parents would likely result in serious

emotional and/or physical damage to the minor child; and it is further

Permanency Hearing Order (ICWA)

ORDERED, that active efforts have been made to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and these efforts have proven

unsuccessful.

Dated this (DAY) day of (MONTH, YEAR) effective however, the (DAY) day of (MONTH),

(YEAR), that being the date of the hearing affording judicial basis for this order.

BY THE COURT:

ATTEST: The Honorable (ENTER NAME)

Judge of the Circuit Court

Clerk of Court

BY:

Deputy (ENTER NAME)

(SEAL)

Permanency Hearing Order (ICWA)

PRE-DISPOSITIONAL

PERMANENCY HEARING

ORDER

(NON ICWA)

STATE OF SOUTH DAKOTA: IN CIRCUIT COURT

SS:

COUNTY OF _______________ _______________ JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF SOUTH

DAKOTA IN THE INTEREST OF,

File No: _______________

______________________________

(DOB: _______________)

Child(ren), and concerning

PRE-DISPOSITIONAL

______________________________ PERMANENCY HEARING

(DOB: _______________) ORDER

______________________________

(DOB: _______________) (NON ICWA)

Respondent(s),

The above-entitled matter having come before the Court for a Permanency Hearing on the