SD Supreme Court nixes transfer of child abuse case to tribe

South Dakota News

PIERRE, S.D. (AP) — The South Dakota Supreme Court has ruled a judge erred when he transferred a child abuse and neglect case from state court to tribal court.

In an opinion issued last week, the high court said the 7th Circuit Court judge should have considered testimony from the child’s doctor before making the transfer.

The case dates to September 2016, when a newborn was removed from the mother’s care after both tested positive for methamphetamine. The South Dakota Department of Social Services notified the Oglala Sioux Tribe, with which the mother is affiliated, of the removal as required by federal law, the Rapid City Journal reported. The child was placed in temporary foster care. After the mother completed an outpatient treatment program, she was reunited with her baby. But, when she missed a court-ordered urinalysis, the child was again placed in foster care.

The mother again worked toward reunification by getting a job, completing a parenting class and submitting to drug and alcohol screening. The state was working on a plan to return the child to the mother when she was arrested in August 2017 for driving drunk, striking a vehicle and fleeing.

A hearing to determine placement of the child was held in November 2017 when the Oglala Sioux asked that the case be transferred to tribal court. Judge Matthew Brown eventually transferred the case to tribal court but excluded testimony from the child’s pediatrician.

A lawyer appointed for the child, Cassidy Stalley, attempted to present expert testimony from Dr. David Whitney that taking the child away from the foster parents could cause short- and long-term physical and emotional effects.

Tribal attorney Dana Hanna argued she had insufficient notice of the doctor’s testimony and argued the bond between the child and the foster parents was not an appropriate factor to consider in a transfer motion.

The case will now go back to the 7th Circuit for a new hearing on the transfer request.

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